New York State Court of Claims

New York State Court of Claims

VICTOR v. THE STATE OF NEW YORK, #2003-031-105, Claim No. 107859, Motion No. M-67171


Case Information

HERMAN VICTOR Caption amended sua sponte to reflect the only proper defendant.
Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :
Caption amended sua sponte to reflect the only proper defendant.
Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
Cross-motion number(s):

Claimant's attorney:
Defendant's attorney:
New York State Attorney General
BY: HEATHER R. RUBINSTEIN, ESQ.Assistant Attorney General
Third-party defendant's attorney:

Signature date:
December 30, 2003

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers, numbered 1 to 5, were read on motion by Defendant for dismissal of the claim:
  1. Notice of Motion, filed July 23, 2003;
  2. Affirmation of Heather R. Rubinstein, Esq., dated July 21, 2003, with attached exhibits;
3) Affidavit of Carol McKay, sworn to July 15, 2003, with attached exhibits;
  1. Correspondence from Claimant, dated July 22, 2003, with attached exhibit;
  2. Claimant's "Motion in Reply to Dismiss," filed August 20, 2003, with attached exhibits. Upon the foregoing papers, Defendant's motion is granted.
This is Defendant's motion for the dismissal of the claim in this matter. In his underlying claim, filed on June 11, 2003, Claimant, an inmate at Auburn Correctional Facility at the time, alleges that he was illegally confined from February 22, 2003 through March 9,2003, after receiving a bogus inmate misbehavior report. Although the claim is confusing and presents a questionable time line regarding the events alleged, the complaint, combined with the exhibits Claimant submitted in response to this motion, demonstrate that the allegedly bogus inmate misbehavior report was written on February 22, 2003, and given to Claimant on February 23, 2003. According to Claimant, the disciplinary hearing relating to the February 22, 2003 incident was adjourned once, at his request, and then completed on March 9, 2003. He alleges that, pending the hearing, he was confined to his cell ("keeplocked") until completion of the hearing on March 9, 2003, at which time the charges against him were dismissed.

Defendant seeks dismissal of the claim, in part, based upon Claimant's failure to serve the claim upon the Attorney General by certified mail, return receipt requested, as required by Court of Claims Act § 11(a). Defendant has submitted the affidavit of Senior Clerk Carol McKay, which indicates Mr. Herman served the claim upon the Attorney General by regular first class mail on June 12, 2003. A copy of the envelope in which the claim was received was attached as an exhibit to Ms. McKay's affidavit.

Claimant, in opposing Defendant's motion, asserts that he did serve Defendant by certified mail, return receipt requested, and he attaches to his response an affidavit of service purporting to support his allegation. However, the claim was verified on June 8, 2003, and this affidavit of service (which appears to relate to the notice of intention and not the claim) states that Defendant was served on April 30, 2003. For this reason, that affidavit could not have related to Claimant's service of the claim.

Claimant has also failed to submit adequate proof, such as a copy of the return receipt, or his mailing disbursement form, to demonstrate service upon Defendant. Self-serving statements that the claim was properly served are insufficient to defeat Defendant's motion to dismiss. (Washington v State of New York, Ct Cl, December 2, 2002 [Claim No. 105145], Ruderman, J., UID #2002-010-054). Generally, a claimant is required to produce the return receipt when the manner of service is challenged (Govin v State of New York, 301 AD2d 757).

Court of Claims Act § 11(a) provides, in relevant part, that a copy of the claim at issue "shall be served personally or by certified mail, return receipt requested, upon the attorney general." The requirements set forth in Court of Claims Act § 11 are jurisdictional in nature and, as such, must be strictly construed (see Finnerty v New York State Thruway Auth., 75 NY2d 721, 722; Commack Self-Serv. Kosher Meats v State of New York, 270 AD2d 687). The Court is not free to disregard this requirement. "[D]iscretion, equity, or a harsh result may not temper application of a rule of law" (Martin v State of New York, 185 Misc 2d 799, 804).

Claimant has failed to meet the literal requirements of Court of Claims Act § 11 by effecting proper service of the claim upon the Attorney General. The claim must, therefore, be dismissed.

Additionally, I find that, even if the claim had been properly served, Defendant's motion must still be granted because the claim fails to set forth a valid cause of action. The actions of prison personnel involving inmate disciplinary matters are generally quasi-judicial and, unless they exceed the scope of their authority or violate applicable rules, are afforded absolute immunity (Arteaga v State of New York, 72 NY2d 212; Davis v State of New York, 262 AD2d 887, lv denied 93 NY2d 819).

Claimant does not allege that his disciplinary hearing was untimely, or that he was confined after the hearing concluded. Claimant's action is premised on the fact that the disciplinary charges against him were dismissed after the hearing. Claimant apparently believes that this demonstrates a valid cause of action concerning his confinement, pending the outcome of the hearing. However, 7 NYCRR § 251-1.6(a) specifically permits confinement of an inmate pending his disciplinary hearing. As the pre-hearing confinement of Claimant did not exceed Defendant's authority, the decision to so confine Claimant is entitled to absolute immunity and the claim must be dismissed.

Based upon the foregoing it is:

ORDERED, that Defendant's motion for dismissal of the claim is granted. The claim is dismissed in its entirety. The Clerk is directed to close the file.

December 30, 2003
Rochester, New York

Judge of the Court of Claims