New York State Court of Claims

New York State Court of Claims

SORRENTINO v. THE STATE OF NEW YORK, #2003-030-536, Claim No. 107324, Motion No. M-66507


Defendant's motion to dismiss claim for failure to state cause of action as well as failure to properly serve claim granted and wrongful confinement claim dismissed.

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:
Defendant's attorney:
Third-party defendant's attorney:

Signature date:
April 30, 2003
White Plains

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers numbered 1 to 5 were read on Defendant's motion to dismiss the

Claim herein for failure to state a cause of action as well as failure to properly serve the Claim:

1,2 Notice of Motion, Affirmation of Jeane L. Strickland Smith, Assistant Attorney General and supporting exhibit

3,4 Letter to Clerk of the Court from Patrick Sorrentino, Claimant, dated February 28, 2003; Letter to Court from Patrick Sorrentino, Claimant, dated March 14, 2003

  1. Filed papers: Claim
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 Act §10.

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 § 206.5(a).

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.

April 30, 2003
White Plains, New York
Judge of the Court of Claims