Paul Alexander, the Claimant herein, alleges in Claim Number 104325 that
Defendant's agents wrongfully destroyed and/or confiscated his property and
failed to provide him with reimbursement while he was an inmate at Green Haven
Correctional Facility (hereafter Green Haven). Trial of the matter was held at
Green Haven on June 20, 2003.
Claimant testified that during a facility lock-down on October 2, 2000 his cell
was searched and 8 packs of Newport cigarettes, 27 packs of Top tobacco, and 9
ceramic pieces were confiscated. He was given a contraband receipt [Exhibit 8],
and served with a misbehavior report, alleging violation of facility rules
proscribing possession of excess tobacco and sale or exchange of property
without authorization. [Exhibit 7];
, 7 NYCRR §270.2 [113.15;113.19]. The misbehavior report recites
that there were ". . . no proof[s] of purchase on the receipts he had dating
back seven months . . . on the tobacco product inmate claims to smoke but no
other tobacco products were found in cell ie ash tray [sic
] lighters or
After a disciplinary hearing held October 4, 2000, he was found not guilty of
excess tobacco possession, but guilty of its unauthorized sale or exchange.
[Exhibit 6]. The penalty imposed was that the items confiscated be destroyed,
as well as loss of recreational privileges.
Claimant's signature appears on the bottom of the disposition
Claimant testified that the proper interpretation of the disciplinary
disposition is as a finding that he was within the limitations of tobacco
possession - including cigarettes and loose tobacco - as shown by Directive 4913
concerning inmate personal property limits, [
, Exhibit 5], and that the guilty finding referable to unauthorized
exchange was with respect to the ceramics only. On cross-examination he appeared
to concede that at least the destruction of the ceramics was authorized. It does
not appear that Claimant appealed the disciplinary disposition. He did,
however, file a facility claim on November 22, 2000 for reimbursement for the
cost of the 8 packs of Newport cigarettes, and 27 packs of Top tobacco. [Exhibit
The facility reimbursement claim was disapproved on December 13, 2000, with the
explanation that "inmate signed disposition to destroy items confiscated as per
his penalty." [Exhibit 10]. The superintendent's appeal was also denied on
February 1, 2001 with the notation "no proof that items were received legally by
Correction Officer Frank Middleton also testified as to facility rules and
procedures. He indicated that rules concerning unauthorized exchange are in
place because of the use of property - especially tobacco - as currency in an
institutional setting otherwise prohibiting the possession of money. He said
that ceramics would "not normally" be used as currency. Ceramics are made by
prisoners in the hobby shop. They are not allowed to keep the ceramic items
they make, but must either send them out or donate them to charity within thirty
As an initial matter, Defendant made a motion to dismiss the Claim filed in this
Court, based upon its second affirmative defense, a failure to timely and
properly serve the claim, pursuant to Court of Claims Act §§10 and
The Claim itself was filed with the Clerk of the Court on May 23, 2001. The
affidavit of service appended to the filed Claim does not indicate service upon
the Attorney General, but rather states that the Claim was mailed to the Chief
Clerk of the Court of Claims by certified mail, return receipt requested on May
, Claim No. 104325]. The letter from the Chief Clerk acknowledging
receipt of the Claim and assigning a claim number indicates "if you have not yet
filed proof of service of the claim upon the defendant, please do so
immediately." [Exhibit 4]. At trial, Claimant offered an affidavit of service
dated June 19, 2001 indicating that the Claim was served by certified mail,
return receipt requested upon the Attorney General on that same date. [Exhibit
1]. The attached receipts show the Claim was received by the Attorney General's
office on June 22, 2001. [Ibid].
An Answer was served on Claimant by
mail on July 19, 2001.
The filing and service requirements contained in Court of Claims Act
§§10 and 11
are jurisdictional in nature and must be strictly construed. Finnerty v New
York State Thruway Auth.
, 75 NY2d 721, 722-723 (1989); See,
, Welch v State of New York
, 286 AD2d 496, 729 NYS2d 527, 529
(2d Dept 2001); Conner v State of New York
, 268 AD2d 706, 707 (3d Dept
2000). Indeed, the statute provides in pertinent part ". . . [n]o judgment
shall be granted in favor of any claimant unless such claimant shall have
complied with the provisions of this section applicable to his claim. . . "
Court of Claims Act §10.
Court of Claims Act §11(a) provides that ". . . a copy [of the claim]
shall be served personally or by certified mail, return receipt requested, upon
the attorney general . . ." within the time prescribed in Court of Claims Act
§10; and service is complete when it is received in the Attorney General's
office. Service upon the Attorney General by ordinary mail is generally
insufficient to acquire jurisdiction over the State, unless the State has failed
to properly plead jurisdictional defenses or raise them by motion. Court of
Claims Act §11(c)
; Edens v State of New York
, 259 AD2d 729 (2d Dept 1999); Philippe v
State of New York
, 248 AD2d 827 (3d Dept 1998).
The Claimant has the burden of establishing proper service [Boudreau v
, 154 AD2d 638, 639 (2d Dept 1989)] by a preponderance of the
evidence. See, Maldonado v County of Suffolk
, 229 AD2d 376 (2d
Dept 1996). Regulations require that proof of service be filed with the Chief
Clerk within ten (10) days of service on the Defendant. 22 NYCRR §
The defense of a lack of jurisdiction based upon untimeliness was properly
raised with particularity. The applicable statute of limitations for service of
the claim - depending on how the cause of action is framed - is either ninety
(90) days or one hundred twenty (120) days.
, Court of Claims Act §§10(3) and 10(9). In either case,
the Claim was not served and filed within the time allowed. Claimant has only
offered proof that the Claim was served upon the Attorney General on June 22,
2001. The date of accrual was October 2, 2000. For this reason alone the Claim
should be dismissed.
More substantively, however, the Claim should be also dismissed. The
confiscated items appear to have been destroyed pursuant to an authorized
disciplinary disposition. Two different disciplinary violations were asserted.
One concerned only whether Claimant possessed tobacco in excess of an amount
allowed. The reviewing officer concluded that he did not, and Claimant was
found not guilty of possessing more than the personal property limitation
amount. The other charge, however, concerned unauthorized exchange. On this
charge Claimant was found guilty, and the disposition - acknowledged by his
signature at the bottom of the form - included destruction of all confiscated
items. Regardless of whether he was "under the limit" for tobacco possession,
the hearing officer found that the possession was part and parcel of
unauthorized exchange activities.
The quasi-judicial acts of correctional employees taken in furtherance of
authorized disciplinary measures are entitled to absolute immunity.
Arteaga v State of New York
, 72 NY2d 212, 219-220 (1988). The disposition
entered after a timely concluded hearing on October 4, 2000 is just the type of
quasi-judicial determination shielded by the immunity principles of Arteaga v
State of New York
Accordingly, Claim Number 104325 is in all respects dismissed in its
Let Judgment be entered accordingly.