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Steven Carrington v. Ph Superintendent Moore

State of New York Supreme Court, Appellate Division Third Judicial Department


March 28, 2013

STEVEN CARRINGTON, APPELLANT,
v.
PH SUPERINTENDENT MOORE, AS HEARING OFFICER, ET AL., RESPONDENTS.

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.

The opinion of the court was delivered by: Garry, J.

MEMORANDUM AND ORDER

Calendar Date: February 14, 2013

Before: Peters, P.J., Spain, Garry and Egan Jr., JJ.

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.

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.

ENTER:

Robert D. Mayberger Clerk of the Court

20130328

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