        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

1258
CA 14-01922
PRESENT: SCUDDER, P.J., CENTRA, PERADOTTO, LINDLEY, AND VALENTINO, JJ.


CHRIS MOUSTAKOS, CLAIMANT-APPELLANT,

                    V                             MEMORANDUM AND ORDER

STATE OF NEW YORK, DEFENDANT-RESPONDENT.
(CLAIM NO. 121157.)


CHRIS MOUSTAKOS, CLAIMANT-APPELLANT PRO SE.

ERIC T. SCHNEIDERMAN, ATTORNEY GENERAL, ALBANY (KATHLEEN M. ARNOLD OF
COUNSEL), FOR DEFENDANT-RESPONDENT.


     Appeal from an order of the Court of Claims (Renée Forgensi
Minarik, J.), entered July 30, 2014. The order denied claimant’s
motion for partial summary judgment.

     It is hereby ORDERED that the order so appealed from is
unanimously affirmed without costs.

     Memorandum: Claimant commenced this action seeking damages for,
inter alia, unlawful confinement after the Third Department annulled
the determination in a prison disciplinary proceeding that he had
violated various inmate rules (Matter of Moustakos v Venettozzi, 92
AD3d 992). Contrary to claimant’s contention, the Court of Claims
properly denied his motion for partial summary judgment on liability
on his cause of action for unlawful confinement.

     The Third Department found that defendant had violated claimant’s
“right to present relevant documentary evidence” when it failed to
provide claimant with a memorandum containing allegedly exculpatory
evidence (id. at 993; see 7 NYCRR 254.6 [a] [3]). Defendant did not
appeal from the order of the Third Department and is thus collaterally
estopped from challenging the Court’s determination that defendant
violated its own rules and regulations (see DuBois v State of New
York, 25 Misc 3d 1137, 1139; see generally D’Arata v New York Cent.
Mut. Fire Ins. Co., 76 NY2d 659, 664).

     We reject claimant’s contention that the decision of the Third
Department entitles him to partial summary judgment on liability on
the unlawful confinement cause of action. It is well settled that,
where, as here, the actions of correction personnel have violated the
due process safeguards contained in 7 NYCRR parts 252 through 254,
those actions “[will] not receive immunity” (Arteaga v State of New
York, 72 NY2d 212, 221). Contrary to claimant’s contention, however,
                                 -2-                          1258
                                                         CA 14-01922

the absence of an immunity defense does not entitle claimant to
partial summary judgment on liability on his unlawful confinement
cause of action. As defendant correctly contends, the “removal of
immunity . . . does not result in absolute liability to defendant
because claimant is still required to prove the merits of his claim”
(Turley v State of New York, Ct Cl, June 4, 2010, Hard, J., claim No.
111013, UID No. 2010-032-504; see Moreno v State of New York, Ct Cl,
Apr. 5, 2001, Bell, J., claim No. 100335, UID No. 2001-007-551).
“Where, as here, a prison inmate contends that he was wrongfully
confined as a result of the flawed prison disciplinary proceeding,
once the absolute immunity is removed by showing that the governing
rules and regulations were not followed, he [or she] may recover
damages if he [or she] is able to prove the traditional elements of
the tort of [unlawful confinement]: (1) that the confinement was
intentional; (2) that Claimant was conscious of the confinement; (3)
that Claimant did not consent to the confinement; and (4) that the
confinement was not otherwise privileged” (Kilpatrick v State of New
York, Ct Cl, Dec. 2001, Patti, J., claim No. 100462, UID No. 2001-013-
031, citing Broughton v State of New York, 37 NY2d 451, 456; cf.
Lamage v State of New York, 31 Misc 3d 1205[A], 2010 NY Slip Op
52393[U], *2-3). “In other words, not every violation of the rules
and regulations governing the imposition of prison discipline will
result in liability on the part of the State; the rule violations
merely remove the cloak of absolute immunity and make the State
potentially liable, if liability would be imposed under common law
tort principles” (Kilpatrick, claim No. 100462, UID No. 2001-013-031).

     Here, there is no dispute concerning the first three elements of
the unlawful confinement cause of action, and the dispositive issue is
whether claimant established as a matter of law that the confinement
was not otherwise privileged. He did not. “Absent any evidence that
the [exculpatory evidence] . . . would have . . . changed the outcome
of the hearing, the Court of Claims properly denied claimant’s motion
for partial summary judgment” (Watson v State of New York, 125 AD3d
1064, 1065; cf. DuBois, 25 Misc 3d at 1142).

     Finally, we note that claimant improperly contends for   the first
time in his reply brief that the exculpatory evidence would   have
changed the outcome of the hearing, and we therefore do not   address
that contention (see Przesiek v State of New York, 118 AD3d   1326,
1327).




Entered:   November 13, 2015                    Frances E. Cafarell
                                                Clerk of the Court
