Defendant moves by Notice of Motion filed January 11, 2024, seeking an order, pursuant to CPLR 3211 (a) (7) dismissing the claim for failure to state a cause of action. The motion has been submitted without opposition.

Claimant filed this claim for wrongful confinement with the Clerk of this Court, as a self-represented litigant, on December 11, 2023. The Claim, sent by certified mail, return receipt requested was received by the Office of the Attorney General on December 7, 2023.

By letter dated May 3, 2024, this Court set forth a briefing schedule directing, inter alia, that opposition to Defendant's motion be mailed by Claimant so as to be delivered to the Office of the Attorney General and the Chief Clerk of the Court of Claims by June 5, 2024. Having received no opposition by that date, the Court provided Claimant with a courtesy adjournment of the deadline of the opposition papers to August 16, 2024 by letter dated July 1, 2024. Subsequently, as a courtesy to the Claimant, the deadline for opposition was adjourned to September 20, 2024. As of that date, no opposition has been received by this Court. Based upon Claimant's failure to timely submit opposition or seek an extension of time to file same, the motion was submitted for decision without opposition.

In his claim, Claimant alleges that he was wrongfully confined from October 6, 2023 until October 17, 2023, that he was innocent of any wrongdoing, and that he was randomly identified out of a crowd of incarcerated individuals during a riot in the main yard at Auburn Correctional Facility on October 5, 2023 (hereinafter, the "Claim"). Claimant further alleges that the Inmate Misbehavior Report issued to him on October 6, 2023 was false. A Tier III hearing [*2]was commenced on October 11, 2023. On October 16, 2023, Claimant was transferred to Elmira Correctional Facility (hereinafter, "Elmira"). The Tier III hearing was reconvened and concluded at Elmira on October 17, 2024. Claimant was found not guilty and all charges were dismissed.

Claimant states in the Claim that the Defendant's "failure to investigate quickly that Claimant had not [sic] to do with the incident nor did he posses[s] a weapon, or the strength . . . was reckless and degrading to [C]laimant forcing him to endure 14 days of wrongfull [sic] excessive confinement in the SHU".

In support of the instant motion, counsel argues that Claimant's prehearing confinement was authorized pursuant to 7 NYCRR 251-1.6 (a) as he was charged with a violation of facility rules. Counsel further points out that Claimant has not alleged in his claim that the State "violated any of its own rules and regulations in conducting the hearings," or that he was not "released from confinement immediately once he was found not guilty of the charges." Counsel further argues that the "determination by the hearing officer to believe the claimant and not to credit the misbehavior report, and the interim decisions made by the hearing officer throughout the proceedings, which resulted in the dismissal of the charges, is exactly the type of quasi-judicial conduct for which the State is cloaked with absolute immunity" and that "[d]iscretionary determinations to keep claimant confined during the pendency of the hearing are also immunized."

Wrongful confinement, a species of the tort or false imprisonment, is established when it is shown that "(1) the defendant intended to confine [the claimant] (2) the [claimant] was conscious of the confinement, (3) the [claimant] did not consent to the confinement and (4) the confinement was not otherwise privileged" (Broughton v State of New York (37 NY2d 451, 456 [1975], cert denied sub nom. Schanbarger v Kellogg, 423 US 929 [1975]).

In this instance, it is clear that the first three elements of a claim for wrongful confinement were established. With respect to the fourth element, the confinement is privileged to the extent it is imposed "under color of law or regulation" (Gittens v State of New York, 132 Misc 2d 399, 402 [1986]). The burden of establishing that the confinement was privileged is on the party charged with the commission of the tort (Hollender v Trump Vil. Coop., 58 NY2d 420, 425 [1983]; Parvi v City of Kingston, 41 NY2d 553, 557 [1977]; Gonzalez v State of New York, 110 AD2d 810, 812 [1985], lv dismissed 67 NY2d 647 [1986]). An inmate may be confined to his cell where there are reasonable grounds to believe that the inmate represents a threat to the safety, security or order of the facility or a danger to other persons or property (7 NYCRR § 251-1.6 [a]). This regulation has been interpreted as "authorizing keeplock whenever an officer reasonably believes that a facility rule has been violated by an [incarcerated individual], thus establishing an immediate threat to the order of the facility" (Matter of Bowe v Smith, 119 Misc 2d 453, 455 [Sup Ct, Wyoming County 1983] [internal quotation marks and citation omitted]; see Matter of Pettus v West, 28 AD3d 907, 908 [3d Dept 2006]). Because the decision to confine an incarcerated individual pursuant to 7 NYCRR 251-1.6 requires an inherently discretionary determination, it cannot form the basis for a wrongful confinement claim (Green v State of New York, UID No. 2020-015-044 [Ct Cl, Collins, J., May 6, 2020]); see also Diaz v State of New York, 155 AD3d 1279, 1282 [3d Dept 2017], lv dismissed in part & denied in part 30 NY3d 1101 [2018]). However, after the 72-hour investigatory period expired, DOCCS regulations [*3]required that Claimant be "(1) transferred to another housing unit, (2) scheduled for transfer to another facility; (3) released from such confinement; or (4) placed in protective custody" (7 NYCRR 251-1.6 [b] [1]-[4] [former]).

Courts have held that the State is liable for wrongful confinement where the claimant is confined prior to a hearing, "[n]o misbehavior report was provided[,] and no hearing was held within the time limitations set forth in 7 NYCRR § 251-5.1 (a)" (Lamage v State of New York, UID No. 2007-015- 552 [Ct Cl, Collins, J., May 10, 2007]; see Green v State of New York, UID No. 2015-044-004 [Ct Cl, Schaewe, J., Apr. 28, 2015]; see also Green v State of New York, UID No. 2010-015-156 [Ct Cl, Collins, J., June 21, 2010]).

Applying the foregoing, the Court finds that the State has satisfactorily demonstrated that the hearing was timely commenced and concluded and that the confinement was privileged.

Accordingly, it is hereby

ORDERED, that M-100409 is GRANTED, and Claim No. 141538 is DISMISSED.