New York State Court of Claims

New York State Court of Claims

GIBSON v. STATE OF NEW YORK, #2001-018-079, Claim No. 103024, Motion No. M-62446


Defendant's pre-answer motion to dismiss granted on the grounds that the Court does not have personal or subject matter jurisdiction and the claim fails to state a cause of action.

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: JOEL L. MARMELSTEIN, ESQUIREAssistant Attorney General
Third-party defendant's attorney:

Signature date:
April 3, 2001

Official citation:

Appellate results:

See also (multicaptioned case)


Defendant brings a pre-answer motion to dismiss the claim. The Court has considered

the following documents in determining the motion:

Notice of Motion...........................................................................................1

Affirmation in Support of Joel L. Marmelstein, Esquire

Assistant Attorney General................................................................2

"Answer" in Opposition of Kelly Gibson, with all exhibits attached

thereto................................................................................................3 Defendant seeks an order dismissing the claim on the grounds that the Court does not have personal or subject matter jurisdiction and the claim fails to state a cause of action. Claimant vigorously opposes the motion.

The claim is quite lengthy and purports to assert 33 causes of action for intentional torts and negligence which occurred at the Riverview Correctional Facility. The claim arises out of seven separate incidents between May 14, 1999 and May 29, 1999, while Claimant was confined in the Special Housing Unit and hearings that were held as a result of misbehavior reports issued. The alleged incidents range from an officer swearing at Claimant for whistling, to tampering with his food tray by lessening the portions or adding a foreign substance to the food. Claimant repeatedly refused to return his food trays, when requested, in order to retain proof of the tampering until a higher ranking officer could observe Claimant's complaints. Due to these refusals, Claimant was repeatedly issued misbehavior reports for failing to obey a direct order and harassment. After a hearing on each report was held, Claimant was found "guilty" and certain time was imposed in keep-lock along with the loss of telephone and commissary usage, and loss of packages. Claimant appealed each of the hearing findings which were all affirmed.

Claimant asserts that these incidents give rise to causes of action for: harassment, sexual harassment, assault, mental anguish, reckless disregard of the rights of others, reckless misconduct, recklessness, negligence, conspiracy, aiding and abetting, accessories to the fact, malice, wantonness, deliberate interference, cruel and unusual punishment, libel, personal involvement in events, working and operating under color of state law, premeditated acts of cruelty, failure to protect, attempted murder, deprivation of the minimal civilized measure of life's necessities, acting "partial towards [his] person," committing oppression, harmful intent, callous indifference, causing him to be a victim of respondeat superior, violating his substantive due process rights, violating his procedural due process rights, violating all his due process rights. (Verified Claim¶ ¶68-100)

Claimant served a notice of intention upon the Assistant Attorney General on September 10, 1999. The claim was filed on August 31, 2000, and served on the Assistant Attorney General on September 1, 2000. Defendant brings this motion to dismiss prior to interposing an Answer.

It is Defendant's position that using Claimant's last day of accrual, the date of the last incident, May 29, 1999, the claim or a notice of intention should have been served by August 27, 1999. Since it was not, it is untimely and the Court cannot overlook such a jurisdictional defect. Furthermore, Claimant's causes of action for intentional torts are also untimely in that the claim was not served within one year of the date of accrual as required by Court of Claims Act §10(3). Defendant also argues that even if the Court finds that the claim was served and filed timely, the claim fails to state a cause of action.

Claimant is quite incensed by Defendant's allegations in its' dismissal motion. Claimant argues that the food tampering incidents may have all occurred between May 14, 1999 and May 29, 1999, but the unfair hearings, inmate grievances and letters to the Superintendent, Commissioner, and Inspector General continued well after May 29, 1999, and in fact through October 7, 1999. Claimant maintains that where the actions and non-actions of State employees are "interrelated, one cannot put a time limitation(s) on one incident without waiting for the final results." (Gibson Answer ¶4)

Claimant finds it appalling that Defendant can even bring a motion to dismiss for failure to state a cause of action. Claimant goes on to explain that "[n]ot only did employees violate [his] rights and work under color of state law 42 U.S.C.A. §1983, but went on to violate (32) thirty-two other stated causes of action, all explained in [his] timely filed intention [sic] tort claim." (Gibson Answer ¶10)

The Court will address the claim, initially based upon the seven incidents from May 14, 1999 until May 29, 1999, which primarily involve allegations of tampering with Claimant's food trays. Calculating 90 days from even the last incident date would require that for all causes of action arising from these incidents a notice of intention or claim be served, or served and filed, by August 27, 1999. Since the notice of intention was not served until September 10, 1999, Defendant is correct and the causes of action arising from these incidents are untimely. Compliance with sections 10 and 11 of the Court of Claims Act constitutes a jurisdictional prerequisite to the institution and maintenance of a claim against the State, and must be strictly construed. (Byrne v State of New York, 104 AD2d 782)

Claimant extends his allegations to include causes of action for the improper conduct of officials in issuing misbehavior reports, unfairly conducting hearings and making findings based upon, in Claimant's opinion, insufficient evidence, imposing sanctions, affirming the findings from the unfair hearings on appeal, and denying all of his grievances. The dates for these various actions are not all set forth in the claim, and therefore the timeliness issue cannot be resolved. Nonetheless, the causes of action based upon these allegations must also be dismissed. Employees and officers involved in maintaining security and discipline within a correctional facility are accorded absolute immunity in making decisions involving whether to issue a misbehavior report, whether there is sufficient evidence to support a finding of misbehavior after a hearing, and whether to impose disciplinary action. (Arteaga v State of New York, 72 NY2d 212) Accordingly, Claimant's causes of action stemming from the conduct of the officers in issuing misbehavior reports, and making findings after a hearing do not state a cause of action upon which relief may be granted in this Court.

Accordingly, Defendant's motion must be granted and the claim DISMISSED.

April 3, 2001
Syracuse, New York

Judge of the Court of Claims