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Diaz v. State

Supreme Court of New York, Third Department

November 16, 2017

FREDERICK DIAZ, Appellant,
v.
STATE OF NEW YORK, Respondent.

          Calendar Date: October 20, 2017

          Frederick Diaz, Elmira, for appellant.

          Eric T. Schneiderman, Attorney General, Albany (Robert M. Goldfarb of counsel), for respondent.

          Before: McCarthy, J.P., Lynch, Devine, Clark and Pritzker, JJ.

          MEMORANDUM AND ORDER

          Lynch, J.

         Appeals (1) from an order of the Court of Claims (Collins, J.), entered April 11, 2016, which, among other things, denied claimant's motion for summary judgment, and (2) from an order of said court, entered November 3, 2016, which denied claimant's motion to reargue.

         Following a tier III disciplinary hearing, claimant, a prison inmate, was found guilty of harassing a grievance supervisor and a penalty was imposed. Upon claimant's administrative appeal, the disciplinary determination was reversed, and all references thereto were expunged from claimant's institutional record. Claimant thereafter filed this claim for damages - alleging that he had been wrongfully confined to the facility's special housing unit for 78 days as a result of the flawed disciplinary determination. Specifically, claimant contended that he was denied due process because the Hearing Officer impermissibly curtailed his questioning of the grievance supervisor, improperly turned off the tape recording of the disciplinary hearing and, thereafter, abruptly ended the hearing. Defendant answered and asserted, among other things, that it was immune from liability for the discretionary acts of the Hearing Officer undertaken in the context of the disciplinary determination. Claimant thereafter moved for summary judgment, which defendant opposed. The Court of Claims denied claimant's motion for summary judgment and, upon searching the record, sua sponte granted summary judgment in favor of defendant and dismissed the claim. Claimant's subsequent motion to reargue proved to be unsuccessful, prompting these appeals.

         Preliminarily, inasmuch as "no appeal lies from the denial of a motion to reargue" (Schillaci v Sarris, 122 A.D.3d 1085, 1087 [2014]), claimant's appeal from the Court of Claims' November 2016 order must be dismissed (see Murray Bresky Consultants, Ltd. v New York Compensation Manager's Inc., 106 A.D.3d 1255, 1261-1262 [2013]). As to the merits of the wrongful confinement claim, the case law makes clear that the "actions of correctional facility employees with respect to inmate discipline matters are quasi-judicial in nature and, unless the employees exceed the scope of their authority or violate the governing statutes and regulations, [defendant] has absolute immunity for those actions" (Holloway v State of New York, 285 A.D.2d 765, 765 [2001]; accord Loret v State of New York, 106 A.D.3d 1159, 1159 [2013], lv denied 22 N.Y.3d 852');">22 N.Y.3d 852 [2013]; Davidson v State of New York, 66 A.D.3d 1089, 1090 [2009]; see Arteaga v State of New York, 72 N.Y.2d 212, 218-220 [1988]; Shannon v State of New York, 111 A.D.3d 1077, 1077 [2013]; Mitchell v State of New York, 32 A.D.3d 594, 594-595 [2006]). Contrary to claimant's assertion, the record before us fails to demonstrate that the Hearing Officer either exceeded the scope of her authority or violated any of the pertinent governing regulations.

         An inmate's right to call witnesses at a prison disciplinary hearing is conditional (see Matter of Kalwasinski v Venettozzi, 151 A.D.3d 1417, 1418 [2017]; Matter of Smith v Prack, 138 A.D.3d 1286, 1287 [2016]; Matter of Johnson v Prack, 122 A.D.3d 1323, 1323 [2014]), i.e., an "inmate may call witnesses on his [or her] behalf provided their testimony is material, is not redundant, and doing so does not jeopardize institutional safety or correctional goals" (7 NYCRR 254.5 [a]; see Matter of Cortorreal v Annucci, 28 N.Y.3d 54, 58 [2016]). Accordingly, an inmate may not ask a particular witness any question that he or she desires; rather, it is for the Hearing Officer - in his or her quasi-judicial role - to ascertain whether the questions posed will elicit material and relevant testimony and, correspondingly, to curtail testimony that is immaterial, irrelevant and/or redundant (see Matter of Taylor v Fischer, 89 A.D.3d 1298, 1299 [2011]; cf. Minieri v State of New York, 204 A.D.2d 982, 982 [1994]). In this regard, claimant concedes that he was permitted to ask the grievance supervisor certain questions, but challenges the Hearing Officer's denial of his request to ask additional questions. Even assuming, without deciding, that the Hearing Officer abused her discretion in denying claimant's request, the action taken fell within her discretionary authority, and claimant has failed to demonstrate a violation of the subject regulation (cf. Holloway v State of New York, 285 A.D.2d at 766). Claimant's related assertion - that the Hearing Officer abruptly ended both the testimony of the grievance supervisor and the hearing itself - fails for similar reasons, as the manner in which the disciplinary hearing was conducted was a matter committed to the Hearing Officer's reasoned judgment (see Matter of Arteaga v State of New York, 72 N.Y.2d at 218-219).

         We reach a similar conclusion regarding claimant's assertion that the Hearing Officer violated 7 NYCRR 254.6 (a) (2), which provides, in relevant part, that "[t]he entire hearing must be electronically recorded." On this point, there does not appear to be any dispute that claimant and the Hearing Officer engaged in an off-the-record discussion during the course of the disciplinary hearing. To the extent that claimant contends that he was denied due process in this regard, we note that "[t]he failure to electronically record a [disciplinary] hearing involves a regulatory rather than a fundamental right" (Matter of Weiss v Coughlin, 199 A.D.2d 638, 639 n [1993]). Further, while claimant asserts that the off-the-record conversation necessarily colored the Hearing Officer's determination, nothing in the record suggests that the Hearing Officer elicited any proof during the course of this conversation that, in turn, formed the basis for her ultimate determination (compare Matter of Berrios v Kuhlmann, 143 A.D.2d 475, 476-477 [1988], with Matter of Lopez v Selsky, 5 A.D.3d 897, 898 [2004]). Under these circumstances, we discern neither prejudice to claimant nor a regulatory violation (see Matter of Kussius v Walker, 247 A.D.2d 911, 912 [1998]; Matter of Berrios v Kuhlmann, 143 A.D.2d at 477; see also Matter of Abdur-Raheem v Mann, 200 A.D.2d 918, 920 [1994], affd 85 N.Y.2d 113');">85 N.Y.2d 113 [1995]; Matter of Abreu v Coughlin, 157 A.D.2d 1028, 1029 [1990]).

         Finally, to the extent that claimant alleges that the underlying disciplinary determination was not supported by substantial evidence and/or was the product of Hearing Officer bias, suffice it to say that ascertaining whether there is substantial evidence to support a finding of guilt involves the very sort of quasi-judicial, discretionary conduct for which defendant enjoys absolute immunity (see Arteaga v State of New York, 72 N.Y.2d at 218-219). Accordingly, the Court of Claims properly awarded summary judgment in favor of defendant and dismissed the claim.

          McCarthy, J.P., Devine, Clark and Pritzker, JJ., concur.

         ORDERED that the order entered April 11, 2016 is affirmed, without costs.

         ORDERED that the appeal from the order entered November 3, 2016 is ...


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