New York State Court of Claims

New York State Court of Claims

ALEXANDER v. THE STATE OF NEW YORK, #2003-030-026, Claim No. 104325


Synopsis


Pro se inmate's bailment claim dismissed: claim not timely served. Disposal of inmate's property authorized disciplinary measure.

Case Information

UID:
2003-030-026
Claimant(s):
PAUL ALEXANDER
Claimant short name:
ALEXANDER
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
104325
Motion number(s):

Cross-motion number(s):

Judge:
THOMAS H. SCUCCIMARRA
Claimant's attorney:
PAUL ALEXANDER, PRO SE
Defendant's attorney:
HON. ELIOT SPITZER, NEW YORK STATE ATTORNEY GENERALBY: MARY B. KAVANEY, ASSISTANT ATTORNEY GENERAL
Third-party defendant's attorney:

Signature date:
August 6, 2003
City:
White Plains
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision
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];
See, 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 matches." [Id].
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.
[Id]. Claimant's signature appears on the bottom of the disposition form.
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, [
See, 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 10].
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 inmate."
[Id].
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 (30) days.

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 11.
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 18, 2001.[1]
[See, 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, also, 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 Ivanov, 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 § 206.5(a).
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.
See, 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, supra.
Accordingly, Claim Number 104325 is in all respects dismissed in its entirety.

Let Judgment be entered accordingly.

August 6, 2003
White Plains, New York

HON. THOMAS H. SCUCCIMARRA
Judge of the Court of Claims




[1] Claimant also furnished the original return receipts showing receipt by the Chief Clerk of documents on May 23, 2001 which confirms this fact as well. [Exhibit 2].