4, 5 Filed Papers: Claim, Answer
Upon the foregoing papers, this motion is denied.
The Defendant seeks dismissal of the claim herein on numerous grounds. The
claim alleges causes of action relating to an incident occurring at the Auburn
Correctional Facility when Claimant was placed in solitary confinement for 10
days, and other disciplinary punishments. The penalties were reversed on
December 9, 1998, but Claimant alleges that he was not released from keeplock
confinement until December 14, 1998. Claimant then alleges that he was
reconfined in solitary on the morning of December 16, 1998. He alleges that his
due process safeguards were violated.
The claim, filed on March 11, 1999, alleges that it accrued on December 6 - 14
and 16, 1998. The Defendant acknowledges service by certified mail, return
receipt requested, on March 11, 1999. Dismissal is sought for the alleged lack
of subject matter and personal jurisdiction in that no Notice of Intention to
file a claim was served upon the Defendant within 90 days of accrual of the
cause(s) of action, and thus the claim, served and filed on March 11, 1999, was
The answer herein, filed on April 8, 1999, in relevant part, raises as its
Second Affirmative Defense:
That this Court lacks subject matter jurisdiction of the claim as it was not
filed with the Clerk of the Court of Claims pursuant to Section 11(a) of the
Court of Claims Act.
By the Laws of 1990, Chapter 625, Court of Claims Act §11 was amended to
include subsection c, which, in relevant part, states that any objection or
defense based upon a failure to comply with the time limitations contained in
section ten of the act is waived unless it was raised, with particularity,
either in a motion to dismiss made before service of the answer was required, or
in the answer.
The Second Affirmative Defense addresses only the purported failure to have
filed the claim with the Clerk, and raises no objections whatsoever with respect
to the timeliness of service or filing, both of which occurred on the same date.
While it might be argued that the preservation of a defense for the total
failure to file is inclusive of the ground dealing with untimely filing, it
certainly is not done with particularity or clarity (Sinacore v State of New
York, 176 Misc 2d 1; Firth v State of New York, 184 Misc 2d 105).
Furthermore, it overtly waives any argument dealing with untimely service.
Since the defense of untimeliness was not preserved, and thus was waived, the
instant motion for dismissal on jurisdictional grounds must be denied.
Additionally, it is arguable whether there was any untimeliness whatsoever, as
causes of action sounding in false imprisonment, or wrongful excessive
confinement, accrue upon the release from confinement (Karen v State of New
York, 111 Misc 2d 396, 398; also see, Ramirez v State of New York,
171 Misc 2d 677), and thus filing and service of the claim on March 11, 1999,
was accomplished on the 87th day following the release from keeplock on December
14, 1998, and appears timely.
Defendant also seeks dismissal for the alleged failure to state a cause of
action, primarily relying upon Arteaga v State of New York, 72 NY2d 212,
asserting absolute immunity. I do not and have not interpreted Arteaga,
supra, as providing absolute immunity, and neither did the Court of
There is no basis for the contention that giving full immunity to the conduct of
correction employees in taking authorized disciplinary measures will deprive
inmates of all rights to recover damages against the State in the Court of
Claims (Correction Law §24) for unlawful actions of employees taken
beyond their authority or in violation of the governing rules and regulations
(citations omitted). Thus, actions of correction personnel in physically
abusing inmates (see, Correction Law §137) or in confining them
without granting a hearing or other required due process safeguard (see,
7 NYCRR 251-5.1; parts 252-254) would not receive immunity. (emphases
supplied) [Arteaga, supra, 72 NY2d 212, 220-221]
Accordingly, the motion for dismissal of the claim herein is denied in all