New York State Court of Claims

New York State Court of Claims

KILPATRICK v. THE STATE OF NEW YORK, #2001-013-031, Claim No. 100462, Motion No. M-64030


Pro se claim will not be dismissed for improper service when unrefuted documentary evidence from Claimant establishes that additional copies of the claim and notice of intention were timely and properly served. Prison officials' conduct of a disciplinary hearing was not entitled to immunity where it was not carried out in compliance with relevant rules and regulations. Summary judgment is denied, giving Claimant an opportunity to prove that his confinement was wrongful.

Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
Cross-motion number(s):

Claimant's attorney:
Defendant's attorney:
Attorney General of the State of New York
BY: William D. Lonergan, Esq.Assistant Attorney General
Third-party defendant's attorney:

Signature date:
December , 2001

Official citation:

Appellate results:

See also (multicaptioned case)


On October 17, 2001, the following papers were read on Defendant's motion for an order of dismissal or, in the alternative, for summary judgment in its favor:
1. Notice of Motion and Supporting Affidavit of William D. Lonergan, Esq. ("Lonergan Affidavit"), with Annexed Exhibits

2. Affidavit in Opposition of Victor Kilpatrick, pro se ("Kilpatrick Affidavit"), with Annexed Exhibits

3. Filed Papers: Claim; Answer

In his claim, Claimant alleges that on March 1, 1999, he was confined to his cell at Wende Correctional Facility pending a Tier III hearing. At the hearing he was found guilty of the charges against him, but this finding was subsequently reversed because he had not been given an opportunity to present a witness on his behalf. The claim asserts a cause of action for wrongful confinement and seeks damages in the amount of $2,900.00.

Defendant has moved to dismiss the claim on the ground that both the notice of intention and the claim were improperly served on the Attorney General. In support of the motion, counsel for Defendant has submitted photocopies of the envelopes in which these two documents were received (Lonergan Affidavit, Exhibits A and B). Both show that they were sent as part of Claimant's "legal mail" allotment and that regular mail postage was used. In its answer, Defendant set forth the defense of improper service with sufficient particularity to satisfy the requirements of Court of Claims Act §11(c).[1] According to Defendant's exhibits, the notice of intention was received on May 13, 1999, and the claim was received on June 7, 1999.

In opposition to the motion, Claimant concedes that the notice of intention and the claim that are attached to Defendant's moving papers were served by regular mail, but states: "What the defendant has failed to mention is that they received another notice of intention to file claim along with the actual claim, delivered to them by return receipt/certified mail on the 22d of June 1999" (Kilpatrick Affidavit, ¶3). Attached to his affidavit is a photocopy of a certified mail, return receipt form establishing that an item of mail was received by the Department of Law on June 22, 1999 (Kilpatrick Affidavit, Exhibit A, 2nd page). From a copy of a letter from Claimant to the Chief Clerk of this Court, dated June 22, 1999, it appears that Claimant received a form letter from the Court asking him to forward the affidavit of service of the claim which was filed on May 28th. Claimant wrote, "...I thought that I enclosed an affidavit of service for the claim but your attached notice made me think I had not. Accordingly, I sent the A.G. another copy of the claim cert. & R.R.R. to avoid a problem later on" (Kilpatrick Affidavit, Exhibit A, 1st page).

Claimant also states that he was not released from confinement until April 27, 1999, and that the claim was therefore timely, since it was served within ninety days of that date.[2] Claimant is correct that a cause of action for wrongful excessive confinement in a prison setting, which is a species of the tort of false imprisonment (Ramirez v State of New York, 171 Misc 2d 677), accrues on the date of release from confinement (Broughton v State of New York, 37 NY2d 451, cert denied sub nom. Schanbarger v Kellogg, 423 US 929), and a claim served on June 22, 1999 would be timely with respect to a cause of action that accrued on April 27, 1999.

Defendant has not responded to Claimant's submissions, either to refute them or to confirm that, indeed, there was a second, properly served claim arising from this same series of events. It would have been a far better practice to respond in some fashion, possibly withdrawing that branch of the motion if such a step was warranted, rather than leaving the Court in a quandary. Silence will be considered as an indication that Defendant does not refute the assertions or documents contained in Claimant's submission. Because there has been no response from Defendant, because of the letter explaining why Claimant would have taken the unusual step of serving a second claim, and because some document was sent to the Attorney General by way of certified mail, return receipt requested, and received by that office on June 22, 1999, I conclude that Claimant's account is accurate. Consequently, Defendant is not entitled to dismissal of this claim on the ground that the notice of intention and/or the claim were improperly served.

The second branch of Defendant's motion seeks summary judgment in its favor, dismissing the claim on the ground that the asserted cause of action lacks legal merit. According to Defendant, the State cannot be liable for Claimant's confinement because it is entitled to absolute immunity in connection with the discretionary actions related to commencing and carrying out formal disciplinary hearings in its prisons (Arteaga v State of New York, 72 NY2d 212).

It is true that the judicial and quasi-judicial acts of correction employees in bringing disciplinary charges and conducting disciplinary hearings are entitled to absolute immunity (id.). Thus, as a general rule, an inmate is not entitled to recover damages for wrongful confinements imposed as the result of a disciplinary proceeding, even when it results in a conviction that is ultimately overturned (Melette v State of New York, 163 AD2d 703).

The absolute immunity recognized in Arteaga, however, is not unconditional. In that decision the Court of Appeals indicated that such immunity attaches only when correction officials act "entirely within their authority and in compliance with the applicable rules and regulations" (Arteaga v State of New York, supra at 218); see also, Varela v State of New York, 283 AD2d 841; Davis v State of New York, 262 AD2d 887). In this claim, Claimant alleges that prison officials violated one of the relevant rules regarding the conduct of the disciplinary hearing. There does not appear to be any dispute that this is so. According to a letter from the Director of Special Housing/Inmate Discipline of the Department of Correctional Services (DOCS), Claimant's hearing was reversed "due to a failure to interview a relevant witness" (Kilpatrick Affidavit, Exhibit B).

Where a prison disciplinary hearing was not conducted in accordance with governing rules and regulations, other judges of this Court have held that liability is possible (see, e.g., Kasiem v State of New York, Ct Cl, Aug. 28, 2001 [Claim No. 101387, Motion No. M-63784], Lebous, J. [MacLaw No. 2001-019-561]); Varela v State of New York, Ct Cl, August 23, 2000 [Claim No. 97607, Motion No. M-62078], McNamara, J. [MacLaw No. 2000-011-573]).[3] In Moreno v State of New York (Ct Cl, April 5, 2001 [Claim, No. 100335], Bell, J. [MacLaw No. 2001-007-551]), the inmate claimant was awarded $480.00 for the sixty days he was confined to keeplock as a result of a Tier III hearing. Prior to the hearing in that case, the claimant had exercised his right to request that a certain witness be produced. Although the governing regulation (7 NYCRR 254.5) establishes certain legitimate grounds for denying such a request, the denial in that case was not made on one of those grounds: "Denying an inmate's request to produce a witness solely upon the basis that the witness is not housed at the facility where the hearing is conducted is not a proper denial under DOCS' rule" (id.). Because prison officials failed to comply with the governing rules related to conduct of the disciplinary hearing, the protection of absolute immunity recognized in Arteaga was lost. As Judge Bell also observed, however: "Although establishing that defendant did not follow its own rule removes immunity from the case, it does not result in absolute liability of defendant [citations omitted]. Claimant still must prove the merits of his claim" (Moreno v State of New York, supra).

Consequently, where prison officials fail to follow the rules and regulations governing prison disciplinary proceedings that have been established by DOCS, their actions are no longer entitled to absolute immunity but, instead, may give rise to liability on common law tort principles. 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 may recover damages if he is able to prove the traditional elements of the tort of false imprisonment: (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 (Broughton v State of New York, 37 NY2d 451, supra, cert. denied sub nom. Schanbarger v Kellogg, 423 US 929, supra).

In the instant action, it appears that Claimant was charged with refusing to submit to a urinalysis test. If he was in fact guilty of this conduct, then his confinement was privileged, notwithstanding the irregularity of the initial Tier III hearing. Further, I note that the letter from the DOCS Director of Special Housing/Inmate Discipline indicates that after Claimant's hearing was reversed, a rehearing was ordered. If such a hearing was held and Claimant was found guilty after another, properly conducted hearing on the same charges (and as long as he was given credit against that sentence for the time he had already spent in keeplock), the confinement of which he complains here would be privileged, irrespective of his guilt or innocence, because it would -- in the end -- been imposed pursuant to a properly conducted prison disciplinary proceeding that was entitled to absolute immunity. 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.

Consequently, because the Tier III hearing that lead to Claimant's confinement was not carried out in compliance with the governing rules and regulations, and thus was not protected by absolute immunity, Defendant is not entitled to summary judgment in its favor at this juncture. Claimant must still, however, establish the elements of the cause of action by the preponderance of credible evidence.

Defendant's motion is denied.

December , 2001
Rochester, New York

Judge of the Court of Claims

  1. [1]The relevant portion of Defendant's sixth affirmative defense reads as follows: "Court of Claims Act, Section 11, requires that service on the State of New York be made personally on the Attorney General or by Certified Mail, Return Receipt Requested, to the Attorney General. Claimant served the Claim and Notice of Intention to File a Claim by Regular Mail." This statement adequately identifies the source of the requirements regarding manner of service and points out the manner in which service is alleged to be improper (see, Sinacore v State of New York, 176 Misc 2d 1, 6; Fowles v State of New York, 152 Misc 2d 837).
  2. [2]If the claim was timely and properly served, it was not necessary for a notice of intention to be filed. Consequently, if a notice of intention was served along with the claim on June 22nd, it was, in effect, a nullity.
  3. [3]These decisions may be found on the Court of Claims website at