Carrington v Moore

Carrington v Moore 2013 NY Slip Op 02122 Decided on March 28, 2013 Appellate Division, Third Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided and Entered: March 28, 2013
513818

[*1]STEVEN CARRINGTON, Appellant,

v

PH SUPERINTENDENT MOORE, as Hearing Officer, et al., Respondents.

Calendar Date: February 14, 2013
Before: Peters, P.J., Spain, Garry and Egan Jr., JJ.


Steven Carrington, Wallkill, appellant pro se.
Eric T. Schneiderman, Attorney General, Albany
(Robert M. Goldfarb of counsel), for respondents.

MEMORANDUM AND ORDER


Garry, J.

Appeal from an order of the Supreme Court (Melkonian, J.), entered September 9, 2011 in Ulster County, which granted defendants' motion to dismiss the complaint.

In September 2010, plaintiff, an inmate at Sullivan Correctional Facility in Sullivan County, commenced this proceeding pursuant to 42 USC § 1983 against defendants, employees of the Department of Corrections and Community Supervision, challenging a positive urinalysis report. Supreme Court granted defendants' motion seeking dismissal of the complaint. Plaintiff appeals, and we reverse.

Upon the appeal, the Attorney General concedes that the primary ground cited for dismissal was improper. Supreme Court found that it lacked jurisdiction based upon Correction Law § 24, which requires that actions alleging negligence by state correction officers be commenced in the Court of Claims; however, it has been established that this provision may not be applied to bar actions brought pursuant to 42 USC § 1983 (see Haywood v Drown, 556 US 729, 736 [2009]).

Peters, P.J., Spain and Egan Jr., JJ., concur. [*2]

ORDERED that the order is reversed, on the law, without costs, and matter remitted to the Supreme Court for further proceedings not inconsistent with this Court's decision.