After carefully considering the papers submitted and the applicable law, the
motion is disposed of as follows:
Claimant alleges in Claim Number 107324 that on or about October 29, 2002 he
was found guilty of certain disciplinary rule violations while in the custody of
the New York State Department of Correctional Services (hereafter DOCS) at Green
Haven Correctional Facility (hereafter Green Haven). According to the Claimant
the decision was reversed on or about December 2, 2002, and Claimant was
released from the Special Housing Unit (hereafter SHU) where he had been
confined on December 9, 2002. In his Claim, he asks for reimbursement for the
cost of mailing his personal belongings to and from SHU; back wages for the time
spent in SHU; damages for personal suffering for 63 days of confinement in SHU;
and the cost of obtaining a copy of his hearing tape for his administrative
appeal as well as the cost of mailing the disciplinary appeal. Although the
Claim indicates that Claimant was kept confined after the determination was
reversed, it does not indicate that any privileges were suspended beyond that
period. The Assistant Attorney General's Affirmation indicates that the
reversal was on or about December 20, 2002, and that Claimant was not kept
confined beyond that period. Neither the Claimant nor the Assistant Attorney
General has provided documentation concerning the time periods.
A copy of the envelope in which the Claim arrived at the Attorney General's
Office, shows that the document was received by regular mail. [Affirmation of
Jeane L. Strickland Smith, Assistant Attorney General, Exhibit "1"]. Claimant
has not offered any other proof of service, or otherwise addressed the merits of
Defendant's motion, but has instead written two letters saying the claim is a
legitimate claim, and that he was unaware he needed to serve the claim certified
mail, return receipt requested.
In a motion to dismiss a claim for failure to state a cause of action the
movant is held to have conceded the truth of every fact alleged by the Claimant
for purposes of the motion. Civil Practice Law and Rules §3211(a)(7).
Determination of the motion, generally, does not rest upon resolution of the
ultimate facts, but rather on whether those facts asserted make out a claim.
See, Stukuls v State of New York, 42 NY2d 272, 275 (1977); c.f.
Rovello v Orofino Realty Co., Inc., 40 NY2d 633 (1976).
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 (1988). If officers act
inconsistently with their own rules and regulations, or otherwise act outside
the sphere of privileged actions, liability may attach. The fact that charges
are ultimately dismissed does not give rise to a cognizable cause of action when
there is no evidence defendant acted inconsistently with its own rules and
regulations. Arteaga v State of New York, supra; Holloway v
State of New York, 285 AD2d 765 (3d Dept 2001); c.f. Gittens v
State of New York, 132 Misc 2d 399 (Ct Cl 1986).
To establish a prima facie case of wrongful confinement, a "species" of
the tort of false imprisonment, [Gittens, supra., at 407], a
claimant must show "...(1) the defendant intended to confine him, (2)
the...[claimant] was conscious of the confinement, (3) the...[claimant] did not
consent to the confinement and (4) the confinement was not otherwise
privileged...." Broughton v State of New York, 37 NY2d 451, 456 (1975),
cert denied, 423 US 929 (1975).
Dispositions entered after properly conducted and timely concluded hearings are
the type of quasi-judicial determinations shielded by the immunity principles of
Arteaga v State of New York, supra. Because of the appeal process,
those determinations were reversed in this case. Claimant does assert in his
Claim that Claimant was kept confined beyond the reversal of the final
disposition. Thus, on the face of the Claim, a cause of action is stated.
More importantly, the Claim does not appear to have been served upon the
Attorney General via certified mail, return receipt requested, as required. 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
Court of Claims Act §11(a)(i) 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 §
Here, the Claimant has not established that he served the Claim upon the
Attorney General as required, and the Defendant has raised the jurisdictional
issue in a timely motion. Assuming an accrual date of December 2, 2002, the
Claimant had until March 2, 2003 to properly serve the Claim on the Attorney
General. Court of Claims Act §§10(3), 11(a). Since he has not done
so, this Court lacks jurisdiction over the Claim.
Accordingly, Motion Number M-66507 is hereby granted in its entirety, and Claim
Number 107324 is hereby dismissed for a lack of jurisdiction.