New York State Court of Claims

New York State Court of Claims

ALLEN v. THE STATE OF NEW YORK, #2001-031-504, Claim No. 98914


Defendant's motion to dismiss for improper service of claim granted.

Case Information

ORLANDO ALLEN Caption amended sua sponte to show the only proper defendant.
Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :
Caption amended sua sponte to show the only proper defendant.
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: GREGORY P. MILLER, ESQ.Assistant Attorney General
Third-party defendant's attorney:

Signature date:
November 15, 2001

Official citation:

Appellate results:

See also (multicaptioned case)


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 Facility.

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 incident.

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 released.

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 Section 11.
Arteaga 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
authorized disciplinary 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 immunity. Claimant adequately demonstrated that he was illegally confined to keeplock for eight days.
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.

November 15, 2001
Rochester, New York

Judge of the Court of Claims