New York State Court of Claims

New York State Court of Claims

NICKELSON v. THE STATE OF NEW YORK, #2002-015-287, Claim No. 105948, Motion No. M-65247


Pro se claimant's claim barred by absolute immunity, failure to state a constitutional tort cause of action and lack of jurisdiction over alleged violation of U.S. Constitution.

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:
Darrell Nickelson, Pro Se
Defendant's attorney:
Honorable Eliot Spitzer, Attorney GeneralBy: Joel L. Marmelstein, Esquire
Third-party defendant's attorney:

Signature date:
September 10, 2002
Saratoga Springs

Official citation:

Appellate results:

See also (multicaptioned case)


The defendant's pre-answer motion to dismiss the claim for lack of jurisdiction is granted. The instant claim seeks to recover money damages on two distinct bases arising out of three separate incidents. In one portion of the claim claimant seeks recovery for alleged constitutional violations arising out of his conviction and punishment on misbehavior charges following a Superintendent's Hearing. That conviction was later reversed and claimant's institutional record was expunged on a second appeal (see, Exhibit F attached to claim) after his release from SHU. He requests monetary compensation for his loss of liberty.

The claimant also seeks to recover for two alleged withdrawals of money from his inmate account at Cayuga Correctional Facility by other inmates without his authorization. Specifically, the claim alleges that an unnamed prisoner withdrew $383.95 from his account on January 8, 2002. An unnamed prisoner also withdrew $198.98 from his account on January 11, 2002. The claim does not state whether claimant filed an administrative claim with regard to the alleged loss.

The defendant moved to dismiss the claim on the following grounds: (1) absolute immunity (see, Arteaga v State of New York, 72 NY2d 212) regarding that portion of the claim arising in alleged wrongful confinement; (2) the Court lacks subject matter jurisdiction to adjudicate a claim based on a violation of the United States Constitution (Brown v State of New York, 89 NY2d 172) or one based upon a violation of 42 USC § 1983 (Zagarella v State of New York,149 AD2d 503; Gittens v State of New York, 132 Misc 2d 399); (3) a constitutional tort under the New York State Constitution will not lie under the present circumstances (De LaRosa v State of New York, 173 Misc 2d 1007, 1010-1011) and (4) that portion of the claim relating to the unauthorized withdrawals from claimant's inmate account is untimely.

"It is well settled that actions of correctional facility employees with respect to inmate discipline matters are quasi-judicial in nature and, unless the employees exceed the scope of their authority or violate the governing statutes and regulations, the State has absolute immunity for those actions (see, Arteaga v State of New York, 72 NY2d 212, 214, 218-220)" (Holloway v State of New York, 285 AD2d 765).

The allegations in the claim asserting that the Hearing Officer's decision deprived the claimant of a fair and impartial hearing, his liberty interests and certain unspecified constitutional rights (see claim, paragraph 14) and was an abuse of the Hearing Officer's authority (claim, paragraph 17) do not provide a basis for liability under the Arteaga standard. The claim neither specifies the constitutional provisions allegedly violated nor asserts the violations of any governing statute, rule or regulation or that the employees involved exceeded the scope of their authority. Nor does the claim set forth any such allegations regarding the initial affirmance of the Hearing Officer's finding of guilt by Donald Selsky, Director of Inmate Disciplinary Programs (see claim paragraphs 15, 18 and 19). Absolute immunity for disciplinary matters is not lost where an inmate alleges that the author of a misbehavior report (C. O. Charlebois) was motivated by improper motives or malice (as alleged in paragraphs 13, 16 and 19 of the claim) (see, Arteaga v State of New York, supra at 220, footnote 2 citing Tarter v State of New York, 68 NY2d 511, 518).

Similarly, the instant claim does not appear to state a viable cause of action for a constitutional tort as recognized by the Court of Appeals in Brown v State of New York, (89 NY2d 172) since the claim does not allege a violation by the defendant of any specific provision of the State Constitution (see, Zulu v State of New York, 2001 WL 880883). While in his unsworn opposition to the motion claimant refers to an alleged denial of due process pursuant to Article I, Section 6 of the State constitution, the mere reference to a State constitutional provision presented in this manner does not cure the claim's defect in this regard. Absent citations in the claim to a specific provision of the State Constitution the four stage analysis of a viable constitutional tort claim recommended in Zulu v State of New York, supra, cannot be undertaken. That portion of the claim is therefore subject to dismissal for its failure to state a cause of action sounding in constitutional tort.

It is also established that a claimant may not pursue an action against the State of New York in this Court for a violation of the United States Constitution or for a violation of 42 USC § 1983 (see, Brown v State of New York, supra; Zagarella v State of New York, 149 AD2d 503). To the extent the instant claim seeks to assert such a cause of action it too is dismissed.

With regard to the portion of the claim seeking to recover for the alleged loss of money from the claimant's inmate account, the defendant asserts that the claim was untimely commenced due to the fact that the notice of intention to file a claim received by the Attorney General on March 25, 2002 was unverified and does not reference the alleged monetary loss and the claim itself was not filed until well after the 90 day filing period set forth in Court of Claims Act § 10 (3).

Since "suits against the State are allowed only by the State's waiver of sovereign immunity and in derogation of the common law, statutory requirements regarding claims must be strictly construed" (Martin v State of New York, 185 Misc 2d 799, 804). One such statutory requirement is found in section 11 (b) of the Court of Claims Act which, in relevant part provides, "[t]he claim and notice of intention to file a claim shall be verified in the same manner as a complaint in an action in the supreme court" (emphasis added). It has been held that a claimant's failure to verify a claim in accordance with the statutory direction is a fatal jurisdictional defect which "could be raised at any time and could not be waived by any officer or authority representing the state (citations omitted) (Buckles v State of New York, 221 NY 418, 424)" (Martin v State of New York, supra at 804). While a timeliness defense premised upon an unverified notice of intention may be waived (see, Vogel v State of New York, 187 Misc 2d 186) no such waiver may be found here as the defendant's pre-answer motion asserts the defense with the requisite specificity (see, Court of Claims Act § 11 (c)).

The claim alleges monetary losses occurring on January 8, 2002 and January 11, 2002. Since claimant failed to verify the notice of intention to file a claim he is unable to avail himself of the two year extension of time to serve and file his claim. Therefore, the claim received by the Attorney General on April 22, 2002 was untimely as the 90 day period for service and filing of a claim expired on April 8, 2002 and April 11, 2002, respectively.

Furthermore, even had the notice of intention been timely served, a review of the notice reveals that it related to an alleged loss of liberty, the infliction of emotional distress and an alleged loss of property accruing on October 27, 2001 and March 12, 2002. It contains no reference to the misappropriation of funds from claimant's institutional account or to any events occurring on January 8 or 11, 2002. The notice of intention, therefore, cannot be found to have given the State substantial notice of the events giving rise to the State's potential liability for the loss allegedly suffered by the claimant in January 2002.

The claim is accordingly dismissed.

September 10, 2002
Saratoga Springs, New York

Judge of the Court of Claims

The Court considered the following papers:
  1. Notice of motion dated May 7, 2002;
  2. Affirmation of Joel L. Marmelstein dated May 7, 2002, with exhibits;

Submitted but not considered:

Unsworn "REPLICATION OF MOTION TO DISMISS CLAIM" of Darrell Nickelson dated June 3, 2002.