6. Filed Papers: Claim and Answer
For the reasons stated below, I conclude that Defendant waived its objection to
the timeliness of the claim, and that absolute immunity shields Defendant from
liability. Defendant's motion is granted. Claimant's motion is denied on the
grounds that it is moot.
This is (or at least appears to be) a story of love under extremely trying
circumstances. Marjorie Vogel, Claimant, is an Assistant Probation Officer
employed by the Wyoming County Probation Department. James Blackwell, who
describes himself as Vogel's fiancé, is an inmate in the custody of the
New York State Department of Correctional Services. He resided, at all times
relevant to this proceeding, in the Wyoming Correctional Facility. The two
filed this claim together on February 22, 2000; however, it is only the claim of
Ms. Vogel that is before me now.
The causes of action set forth in the claim can all be traced to a decision by
the Department of Correctional Services (Department) in May 1999 to confine Mr.
Blackwell to administrative segregation. The Department apparently decided to
take this action because it was concerned that the relationship between Vogel
and Blackwell was compromising security at Wyoming.
The first count of the claim is the only one that pertains to Vogel. In it,
she alleges that Defendant defamed her in two written documents that related to
the administrative segregation recommendation: a May 9, 1999 Administrative
Segregation Recommendation (Recommendation) issued by Lieutenant C. Richards;
and a May 13, 1999 Administrative Segregation Hearing Determination
(Determination) signed by Captain K. Gilbert, a hearing officer. Claimant
asserts that these statements defamed her because they would lead the average
reader to believe that she violated the confidentiality requirements of her
Defendant's challenge to the timeliness of the claim turns in part on two
issues: (1) the date that the defamation claim accrued; and (2) the sufficiency
of the two notices of intention that Claimant and Mr. Blackwell served before
they filed their claims.
A claim for defamation accrues on the date of first publication (Gelbard v
Bodary, 270 AD2d 866). Words are "published" within the meaning of the law
of libel when they are in writing and are read by someone other than the person
who was allegedly defamed (Fedrizzi v Washingtonville Central School
Dist., 204 AD2d 267). Publication of a defamatory statement can occur when
the statement is read or heard by anyone, even a member of a claimant's family
(60 Minute Man v Kossman, 161 AD2d 574, citing Kolko v City of
Rochester, 93 AD2d 977; Prosser and Keeton, Torts §113, at 798 [5th
ed]). But, it is not enough to show that Defendant disseminated the defamatory
communication; it must also be shown that a third party read it or heard it
(see, Rossignol v Silvernail, 146 AD2d 907, 908; see
also, McGill v Parker, 179 AD2d 98, 106; Prosser and Keeton,
Torts §113, at 798 [5th ed], supra).
The attachments to Defendant's moving papers make clear that Defendant served
the Recommendation upon Mr. Blackwell on May 9, 1999, and that Defendant's
Hearing Officer read the Recommendation, including the alleged defamatory
statement it contained, to Blackwell during the May 13, 1999 hearing
(see, Gelormini Affidavit, Exhibit 1 at 2, 3; Exhibit 2 at 1-2).
The Hearing Officer also read the Determination to Claimant at the conclusion of
the May 13 hearing (see, Gelormini Affidavit, Exhibit 2 at 6).
Therefore, Claimant's cause of action accrued no later than May 13, 1999. To
extend the time for filing this claim to one year from accrual, Claimant had 90
days from May 13, or until August 11, 1999, to serve a notice of intention on
the Attorney General personally or by certified mail, return receipt requested
(Court of Claims Act §§10[3-b], 11[a]).
The Attorney General admits that it received two notices of intention, but
claims that neither one was legally sufficient to extend the time for Claimant
to serve her claim. One of those notices plainly did not satisfy the Court of
Claims Act. It arrived at the Attorney General's office on August 13, 1999, two
days after the deadline, and it was sent by express mail, an improper means of
effecting service (see, Negron v State of New York, 257
AD2d 652; Hodge v State of New York, 213 AD2d 766, appeal dismissed
87 NY2d 968). Defendant preserved its objections to this notice of
intention with particularity in its answer to the claim (see,
Court of Claims Act §11[c]).
The other notice of intention was properly served. It arrived at the office of
the Attorney General by certified mail, return receipt requested, on August 9,
1999, two days before the deadline. Although it bore the names of Vogel and
Blackwell and alleged that the Recommendation defamed Claimant, Defendant argues
that Claimant cannot rely upon it because Blackwell was the only one who signed
and verified it.
Court of Claims Act §11[b] requires "[t]he claim and notice of intention
to file a claim shall be verified in the same manner as a complaint in an action
in the supreme court." CPLR 3020(d), which governs the verification of
complaints and other pleadings in Supreme Court, requires that "[t]he
verification of a pleading shall be made by the affidavit of the party, or if
two or more parties united in interest are pleading together, by at least one of
them who is acquainted with the facts..." (see, Hood v State of
New York, 113 Misc 404, 407-408 [notice of intention verified by one of two
parties united in interest satisfied the jurisdictional requirements of the
Court of Claims]).
Recently, Judge Corbett of this Court held in a case of apparent first
impression that the verification requirement was jurisdictional and that an
unverified claim had to be dismissed (see, Martin v State of
New York, _____ Misc2d _____, 713 NYS2d 831, 2000 NY Misc2d LEXIS
A critical distinction between Martin and this case is the manner in
which the failure to verify is claimed to have affected the proceedings. In
Martin, the defendant advised the claimant in an affirmative defense that
it was treating the claim as a nullity because it was not verified. The issue
came before Judge Corbett on the eve of trial when the claimant sought to
overcome the affirmative defense by moving to amend the claim nunc pro
tunc, and the defendant cross-moved to dismiss the claim because it was
jurisdictionally defective (see, Martin v State of New
York, 713 NYS2d at 836, supra). Judge Corbett intimated that
since the failure to verify impacted the Court's jurisdiction, it did not have
to be pleaded with particularity in the answer and could be raised at any time.
I believe that a different result must be reached where, as here, the failure
to verify a notice of intention is said to render the claim untimely. This
conclusion is compelled by Court of Claims Act §11(c) which requires
objection or defense based upon a failure to comply with (i) the time
limitations contained in section ten of this act... is waived unless raised,
with particularity, either by a motion to dismiss made before service of
the responsive pleading is required or in the responsive pleadings, and if so
waived the court shall not dismiss the claim for such failure [emphasis
Since there is no affirmative defense in Defendant's answer specifically
directed to the sufficiency of the August 9, 1999 notice of intention, I
conclude that Defendant has waived that defense (see, Sinacore
v State of New York, 176 Misc 2d 1; Fowles v State of New York, 152
Misc 2d 837).
This brings me to Defendant's second argument in support of dismissal. Relying
upon Arteaga v State of New York (72 NY2d 212) and principles of the law
of defamation, Defendant argues that the claim must be dismissed because it was
privileged to make the challenged statements.
In Arteaga, the Court of Appeals held that Defendant is absolutely
immune for the actions of employees of the Department of Correctional Services
in preparing and filing misbehavior reports, confining inmates and making
dispositions following Superintendent's hearings (72 NY2d 212). Although
Arteaga arose in the context of inmate disciplinary proceedings, the
Court's reasoning left little doubt that the same result should attach to
administrative segregation proceedings. The Court concluded that charging
inmates with misbehavior, conducting inmate disciplinary proceedings and making
decisions about pre- and post-hearing confinement were quasi- judicial in nature
and deserving of absolute immunity because those activities "entail
discretionary decisions in furtherance of general policies and purposes where
the exercise of reasoned judgment can produce different results" (Arteaga v
State of New York, 72 NY2d 212, supra). Addressing the issue
of pre-hearing confinement specifically, the Court said that "[i]n determining
whether there are reasonable grounds to believe that an inmate represents an
immediate threat to the safety, security or order of the facility (7 NYCRR
251-1.6) and that they should, therefore, confine the inmate..., correction
officers fulfill a role that is in a sense judicial."
Based upon Arteaga, I conclude that administrative segregation
proceedings are quasi-judicial. The standard for confining an inmate to
administrative segregation is virtually the same as the standard used to confine
inmates to their cells pending a disciplinary hearing. Officers must decide
whether the inmate should be administratively segregated because his "presence
in general population would pose a threat to the safety and security of the
facility" (7 NYCRR 301.4[b]; compare, 7 NYCRR 251-1.6). The
procedure used to adjudicate this issue is a Superintendent's Hearing -- the
same procedure used to adjudicate the misbehavior reports at issue in
Arteaga (72 NY2d 212, 215, supra) (7 NYCRR 301.4; 7 NYCRR
254.1 et seq.). In deciding whether to confine an inmate to
administrative segregation for the safety and security of the facility,
correction officers and hearing officers employ the same type of discretionary
judgment that they use when deciding how to respond to alleged misbehavior
(Arteaga v State of New York, supra at 215).
The law of defamation, as it has developed in this state, also leads me to
conclude that an absolute privilege or absolute immunity bars this claim. In
New York, statements made by hearing officers, parties, attorneys and witnesses
in the course of a quasi-judicial proceeding are absolutely privileged,
notwithstanding the motive with which they are made, so long as they are
material and pertinent to the issues to be resolved in the proceeding
(see, Herzfeld & Stern v Beck, 175 AD2d 689, 691,
appeal dismissed 79 NY2d 914, 82 NY2d 789 and 89 NY2d 1064;
Wiener v Weintraub, 22 NY2d 330, 331-332; Allan Arts v Rosenblum,
201 AD2d 136, 139, appeal denied 85 NY2d 921, cert.
denied 516 US 914).
A proceeding is quasi-judicial and subject to the privilege when, as in the
case of the hearing at issue, it is adversarial, results in a determination that
derives from the application of appropriate provisions of the law to facts, and
is susceptible to judicial review (Herzfeld & Stern v Beck,
The scope of the privilege extends to the Recommendation and the Disposition.
The Recommendation is essentially a complaint or a statement of charges. This
type of document has long been protected by absolute privilege, regardless of
the motives of the person who prepared the document (see,
Sullivan v Board of Education of Eastchester Union Free School Dist., 131
AD2d 836, 839 [statement of charges in Education Law disciplinary hearing];
Wiener v Weintraub, 22 NY2d 330, supra [complaint letter to
attorney grievance committee]; Herzfeld & Stern v Beck, 175 AD2d 689,
supra at 691-692 [broker termination notice filed with stock
exchange]; Stilsing Electric v Joyce, 113 AD2d 353 [complaint filed by
union investigator with State Commissioner of Labor]). The Determination is
akin to a decision or order, which is another type of document protected by the
privilege (Restatement [Second] of Torts §585, comment d; Prosser and
Keeton, Torts §114, at 816 [5th ed], supra).
Contrary to Claimant's assertion, it does not matter that Claimant was not a
party to the administrative segregation determination. To hold otherwise would
defeat the efficacy of the immunity. In Arteaga, the Court of Appeals
found that exposing Defendant to tort liability for the actions of its
correction officers and hearing officers would seriously undermine the officers'
performance of their duties.