Scott v State of New York

[*1] Scott v State of New York 2005 NY Slip Op 52233(U) [10 Misc 3d 1073(A)] Decided on November 29, 2005 Ct Cl Midey, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on November 29, 2005
Ct Cl

ROBERT SCOTT, Claimant(s)

against

THE STATE OF NEW YORK, Defendant(s)



111014



Claimant's attorney:ROBERT SCOTT, Pro Se

Defendant's attorney:HON. ELIOT SPITZER

Attorney General

BY: Thomas M. Trace, Esq.,

Nicholas V. Midey, J.

Recitation:

In Motion No. M-70471, claimant seeks poor person relief. Defendant has brought Motion No. M-70473 seeking an order dismissing the claim for failure to state a cause of action. Claimant has responded with Motion No. M-70498, in which he seeks an order dismissing the affirmative defense of absolute immunity asserted by the defendant in its motion to dismiss. For purposes of [*2]judicial economy, all of these motions will be considered herein.

The following papers were considered by the Court in connection with these motions: "Affidavit in Support of Application Pursuant to CPLR § 1101(f)" (M-70471) 1Pre-Answer Motion to Dismiss Claim, Affirmation in Support, with Exhibits (Including Affidavit of Samuel Spurgeon as Exhibit 2 (M-70473) 2,3Notice of Motion, Affidavit in Support (M-70498) 4,5Correspondence from Thomas M. Trace, Esq., Senior Attorney, dated August 15, 2005 (M-70473 and M-70498) 6

Correspondence from Claimant dated August 16, 2005 (M-70473 and M-70498)7

Filed Papers: Claim



Text of the decision:

The Court will first address claimant's motion (M-70498) in which he seeks an order striking defendant's affirmative defense of absolute immunity. In these proceedings, defendant has brought a pre-answer motion seeking an order dismissing the claim, in which it argues that the doctrine of absolute immunity should apply. As a result, defendant has not yet served or filed an Answer to this claim. Accordingly, defendant has not yet pleaded any affirmative defenses, and therefore claimant's motion is, at best, premature. Nevertheless, the Court, in its discretion, has considered this motion (M-70498) as opposition to defendant's motion to dismiss (M-70473).

In its dismissal motion, the State contends that claimant has failed to state a cause of action upon which this Court may grant judgment. In his filed claim, claimant, an inmate currently housed at Oneida Correctional Facility, alleges that certain of his State constitutional rights were violated when his application for temporary release pursuant to the Comprehensive Alcohol and Substance Abuse Treatment Program (CASAT) was denied.

As set forth in his filed claim, claimant alleges that on March 14, 2005, the temporary release committee at Oneida Correctional Facility denied his application for work release pursuant to Correction Law § 855(4) (see Exhibit C to filed claim). Claimant further alleges that on April 6, 2005, he received notification that his administrative appeal had been denied (see Exhibit D to filed claim). Claimant alleges that certain of his State constitutional rights were violated in both the initial decision by the temporary release committee and in the denial of his subsequent administrative appeal.

Although claimant has couched his claim under a constitutional tort theory, it is clear that pursuant to statute, participation in a temporary release program is a privilege, and an inmate does not have any right to participate (Correction Law § 855[9]). As a result, the refusal to grant claimant permission to participate in the temporary release program cannot form a basis for a claim against the State (see Rivera v State of New York, 169 AD2d 885 [refusal to grant an inmate leave to make [*3]a deathbed visit]; People ex rel Feliciano v Waters, 99 AD2d 850 [removal of an inmate from a work release program does not violate any cognizable legal right]).

Furthermore, the principle of absolute immunity also requires dismissal of this claim. Claimant's application for the work release program was denied by the temporary release committee at Oneida Correctional Facility and was affirmed following claimant's administrative appeal. It is well settled that the State is absolutely immune from liability for the decisions of a temporary release committee in its exercise of discretion to grant or deny temporary release (Santangelo v State of New York, 101 AD2d 20; see Arteaga v State of New York, 72 NY2d 212).

Accordingly, even though claimant has framed this claim under a constitutional tort theory, the State is nevertheless immune from liability in a claim for money damages premised upon determinations made by a temporary release committee. (See Sanders v State of New York, Ct Cl, June 14, 2005, Collins, J., Claim No. 104073, [UID #2005-015-516]).[FN1] This claim must therefore be dismissed.

In view of this decision to dismiss the claim herein, claimant's application for poor person status (M-70471) has been rendered moot.

Therefore, it is

ORDERED, that Motion No. M-70473 is hereby GRANTED; and it is further

ORDERED, that Motion No. M-70471 and M-70498 are both hereby DENIED; and it is further

ORDERED, that Claim No. 111014 is hereby DISMISSED.

Appendices: Footnotes

Footnote 1: Unpublished decisions and selected orders of the Court of Claims are available via the Internet at http://www.nyscourtofclaims.state.ny.us/decisions.