Orlando Allen ("Claimant") alleges that the State of New York held him in
"keeplock" for more than seven days without a hearing in violation of 7 NYCRR
251-5.1 and denied him inmate assistance in preparing for his hearing in keeping
with 7 NYCRR 251-4.1(a) - (b). Claimant filed Claim No. 98914 on September 4,
1998. I held a trial on this matter on September 19, 2001 at Wende Correctional
Claimant testified that on July 28, 1998, while he was confined at Wende
Correctional Facility, two correction officers conducted a "facility frisk" in
B-block, Gallery 7, Cell 6 (Claimant's cell). Claimant identified the officers
as Correction Officer Tomaselli and Correction Officer Peacock. Officer
Tomaselli conducted the search on the outside of the cell while Officer Peacock
searched inside the cell. Tomaselli issued Claimant a contraband slip for a
nine inch rod/shank that he found in the track on the outside of Claimant's
cell. Officer Tomaselli then placed Claimant in keeplock, and the next day,
July 29, 1998, Claimant was issued a misbehavior report relating to this
Claimant states he was in keeplock for fifteen days without a hearing.
During that time, Claimant signed a request for employee assistance in preparing
for the disciplinary hearing relating to that incident. He did not receive the
requested assistance. However, no disciplinary hearing was ever conducted.
Claimant notified an unidentified officer in charge of B company that Claimant
had been in keeplock for 14 days and still had not received a hearing or
assistance. The next day, Claimant's fifteenth day in keeplock, he was
The State proffered no witnesses. The State did request admission of a copy of
the claim and the envelope in which it was received to demonstrate that the
claim was served upon the Attorney General by regular mail. When the proof was
closed, Defendant moved to dismiss the claim based on
Arteaga v State of New York
, 72 NY2d 212, arguing that the correction
officials possess immunity for their actions relating to disciplinary hearings.
Defendant also moved to dismiss for Claimant's failure to serve the claim by
certified mail, return receipt requested, as required by Court of Claims Act
motion is denied. The uncontroverted testimony of Claimant
demonstrated that he was held in keeplock without a hearing for fifteen days. 7
NYCRR § 251-5.1 (a) provides as follows:
Where an inmate is confined
pending a disciplinary hearing or superintendent's hearing, the hearing must be
commenced as soon as is reasonably practicable following the inmate's initial
confinement pending said disciplinary hearing or superintendent's hearing, but
in no event may it be commenced beyond seven days of said confinement without
authorization of the commissioner or his designee.
The quasi-judicial acts of correction employees taken in furtherance of
measures are entitled to absolute immunity
(Arteaga v State of New York
, 72 NY2d 212, 219-220 supra.). However,
because Claimant was held for more than 7 days without a hearing being
commenced, Defendant is not protected by Arteaga
adequately demonstrated that he was illegally confined to keeplock for eight
However, Defendant's motion to dismiss the claim on the basis that it was not
served in a manner prescribed by Court of Claims Act §11 must be granted.
Court of Claims Act §11 requires that a claim be served either personally
or by certified mail return receipt requested. Failure to serve the claim in
the manner prescribed by the statute results in a lack of personal jurisdiction
(Thomas v State of New York
, 144 AD2d 882). Defendant has provided a
copy of the envelope in which the claim was received and the postage markings
on the envelope indicate that mailing was done by regular mail. Claimant
offered nothing to contradict this evidence.
Based upon the foregoing, the
motion is granted and the claim is dismissed.
LET JUDGMENT BE ENTERED ACCORDINGLY.