New York State Court of Claims

New York State Court of Claims

LAMAGE v. THE STATE OF NEW YORK, #2006-015-140, Claim No. 111068, Motion Nos. M-72162, M-72216, CM-72335


Synopsis


Defendant's cross-motion to dismiss inmate's claim for improper service was denied on ground of equitable estoppel. Claimant's motion for summary judgment on causes of action for wrongful confinement was denied.

Case Information

UID:
2006-015-140
Claimant(s):
EDWIN LAMAGE
Claimant short name:
LAMAGE
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
111068
Motion number(s):
M-72162, M-72216
Cross-motion number(s):
CM-72335
Judge:
FRANCIS T. COLLINS
Claimant’s attorney:
Edwin Lamage, Pro Se
Defendant’s attorney:
Honorable Eliot Spitzer, Attorney General
By: Michele M. Walls, EsquireAssistant Attorney General
Third-party defendant’s attorney:

Signature date:
December 22, 2006
City:
Saratoga Springs
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

In two motions, claimant moves for summary judgment on his second (M-72162) and sixth causes of action (M-72216) asserting separate periods of alleged wrongful confinement. Defendant opposes the motions and cross-moves (CM-72335) for dismissal on the ground that both the claim and the amended claim, which contained only what was denominated a sixth cause of action, were improperly served upon the Attorney General by regular mail. For the reasons which follow, the defendant's cross-motion dismissing the claim is denied as are the claimant's motions for summary judgment. On June 27, 2005 claimant filed a claim in which five unrelated causes of action are alleged. Claimant moves for summary judgment on his second cause of action for "30 days wrongful confinement/keeplock" at the Great Meadow Correctional Facility from May 10, 2004 thru June 9, 2004. In support of his motion for summary judgment on this cause of action, the claimant submitted as Exhibit "A" a letter from Girard Monahan, the Deputy Superintendent of Security Services, which indicates that the determination of guilt following claimant's Tier II disciplinary hearing was reversed and expunged from his disciplinary records. Mr. Monahan stated in the letter that "[t]his reversal was determined based upon state law involving an inmate's right to have relevant witnesses testify on his behalf at a disciplinary hearing."

On August 24, 2005 an "Amend-Supplement Claim" was filed in which only a "sixth" cause of action was stated. Claimant alleged in this cause of action that "the defendant subjected claimant to 28 days wrongful confinement/keeplock, start date July 6, 2005 thru August 2, 2005, at the Wende C.F., County of Erie." Claimant alleges in support of this claim that the hearing on the charges which resulted in the claimant's confinement was not completed in a timely manner and that no confinement report was issued to the superintendent.

Defendant argues in its cross-motion for dismissal that because service of the claim and the amended claim by regular mail was improper, the Court lacks subject matter jurisdiction to hear the claim and personal jurisdiction over the defendant. The cross-motion is supported by a copy of the envelope in which the claim was mailed, which confirms that the claim was served on the defendant by regular mail. The Court will address the cross-motion first.

Court of Claims Act § 11(a) (i) requires that a copy of the claim "shall be served upon the attorney general. . . either personally or by certified mail, return receipt requested". Thus, service upon the attorney general by regular mail is insufficient to acquire jurisdiction over the state (see Govan v State of New York, 301 AD2d 757; Philippe v State of New York, 248 AD2d 827). Defendant raised as an affirmative defense in its answers to both the claim (defendant's second affirmative defense) and the amended claim (defendant's first affirmative defense) that the Court lacks subject matter jurisdiction over the claim and personal jurisdiction over the defendant as the result of improper service of the claims by regular mail (see Court of Claims Act § 11 [c]).

Claimant opposes the cross-motion to dismiss the claim on the grounds that the claim was in fact served by certified mail, return receipt requested and, if it was not, fault lies with prison officials who failed to heed his request that the claim be served in that manner. Claimant avers therefore that the conduct of prison officials was an "obstacle beyond claimant control within the prison."

A review of the envelope in which the claim was mailed leaves no doubt that service was accomplished by regular mail. Claimant's argument that the conduct of prison officials precluded him from serving his claim by certified mail, return receipt requested is essentially one of estoppel. In support of his argument, claimant points to the defendant's response to a notice to admit in which Correction Officer Marian Duminuco admitted the following:
  1. June 18, 2005, claimant gave you a yellow legal size envelope with certified receipt/certified card, to be mailed out certified mail & Return Receipt.
6. As of June 18, 2005, this such legal mail, to be mailed out by certified mail & Return Receipt was in your possession to be sent to the Wende C.F., mailroom to be mailed out by certified mail & Return Receipt (see, Notice To Admit and Responses To Claimant's Notice To Admit verified on September 9, 2005).
As additional support for his estoppel argument claimant points to the Certified Mail Log Book entry for June 18, 2005, produced by the defendant in the course of discovery, which reflects the claimant's request that an item be mailed to the Attorney General with the parenthetical notation "disbursement, use free legal postage cert. mail ret. recpt. req'd."

The question to be decided is whether the misfeasance or malfeasance of the State employees in effectuating service of a claim or notice of intention on behalf of an inmate may estop the State from invoking a defense alleging improper service. Opinion among the judges of this Court is divided (see Davidson v State of New York, Ct Cl, April 5, 2006 [Claim No. 111164, Motion Nos. M-70642, M-70545, CM-70625, UID # 2006-031-019], Minarik, J., unreported[1] ; Rodriguez v State of New York, Ct Cl, February 7, 2006 [Claim No. None, Motion No. M-71057, UID # 2006-028-518], Sise, P.J., unreported; Brodie v State of New York, Ct Cl, February 15, 2006 [Claim No. 107265, Motion No. M-70666, UID # 2006-032-008], Hard J., unreported; Amaker v State of New York, Ct Cl, December 12, 2005 [Claim No. 110971, Motion Nos. M-70565, CM-70619, UID # 2005-019-566], Lebous, J., unreported) and the Appellate Division, Third Department's recent decisions on the issue are less than consistent. In Rodriguez v State of New York (307 AD2d 657) the Court held:
In the instant case, the claim was received by the Attorney General's office by ordinary mail. Since this defect in service is jurisdictional, we find no merit to claimant's contention that defendant is estopped from claiming a lack of jurisdiction because the state's prison officials, who control his mail, failed to effectuate the certified mailing that he requested and paid for. A lack of subject matter jurisdiction is a defect that cannot be overlooked or remedied by either waiver or estoppel (see Finnerty v New York State Thruway Auth., supra at 723; Pagano v New York State Thruway Auth., 235 AD2d 408, 408 [1997], lv denied 90 NY2d 804 [1997]).
The rigorous rule set forth above in Rodriguez was somewhat ameliorated in Cendales v State of New York (2 AD3d 1165) in which the Third Department recognized that an estoppel defense may be asserted against a governmental entity in rare or unusual circumstances. Later, in Rivera v State of New York (5 AD3d 881) the Court stated that "[u]nder certain circumstances, misfeasance or malfeasance on the part of facility officials may be a proper excuse for failure to timely file thus warranting estoppel" citing Wattley v State of New York (146 Misc 2d 968). Wattley involved a motion to dismiss an inmate's claim which was served upon the Attorney General by regular mail. The claimant opposed the motion with proof that his personal account was debited for service of the claim by certified mail, return receipt requested. Judge Rossetti held:
While the mere allegation of State failure to act is not sufficient to overcome the presumption of regularity (see, e.g., Richardson, Evidence § 72 [Prince 10th ed]), at bar we have the documentary equivalent of an admission by defendant that claimant's mailing request was received and charged for, but not acted on (citation omitted) (Id. at 970).
From the above discussion it seems clear that under proper circumstances the defendant may be estopped from asserting the defense that a claim or notice of intention was served by regular mail where there is proof that the actions or inactions of its employees prevented service by certified mail, return receipt requested.

Here, as in Wattley, supra, application of the doctrine of estoppel is appropriate to prevent the defendant from being rewarded for its own apparent breach of duty. Correction Officer Marian Duminuco admittedly was requested to serve legal papers on the Attorney General by certified mail, return receipt requested but failed to do so (see Responses To Claimant's Notice To Admit verified September 9, 2005). Claimant's request that his claim be served by certified mail, return receipt requested is further evidenced by the certified mail, logbook entry of June 18, 2005. As stated by the Court in Wattley:
The State has a legal obligation to allow prisoner suits and that includes the allowance of proper proof of service. In the face of claimant's evidence of delivery, the burden was on defendant to explain why claimant's instructions were not complied with (citation omitted) (Id. at 970).
Claimant in this case sufficiently established that he delivered his legal mail to a prison official with the request that it be mailed by certified mail, return receipt requested. Upon receipt of the answer in which the defense of improper service of the claim was raised, the claimant immediately sought discovery on the issue, which included a Notice to Admit dated August 11, 2005 and a Demand For Disclosure dated September 18, 2005. Absent this discovery, claimant could not have prevailed on a motion to dismiss this affirmative defense. Thus, the fact that the claimant did not immediately move to dismiss the defense is no impediment to the application of estoppel under these facts (cf., Lundy v State of New York, Ct Cl, March 13, 2002 [Claim Nos. 100259, 100260, Motion Nos. M-64627, M-64628] Corbett, J., [UID 2002-005-522]).

The Court finds the claimant intended that the claim be served by certified mail, return receipt requested; that he delivered the claim to one of the defendant's employees with the request that it be served in such a manner; that he relied upon the defendant's employees to effectuate such service and that the claim was served by regular mail as a result of the misfeasance of defendant's employees. Here, as in Wattley, "it would be a manifest injustice in these particular circumstances to penalize claimant for the sins of negligence or intent committed by State officers or employees" (Wattley v State of New York, supra, 146 Misc 2d at 970). This Court concludes, therefore, that the doctrine of estoppel is applicable under the circumstances and the defendant is precluded from raising the defense of improper service.

Defendant's assertion that the service of the amended claim by regular mail was improper is incorrect. Section 206.7(b) of the Uniform Rules for the Court of Claims ( 22 NYCRR § 206.7[b]) permits a pleading to be amended in the manner provided by CPLR Rule 3025, "except that a party may amend a pleading once without leave of court within 40 days after its service, or at any time before the period for responding to it expires, or within 40 days after service of a pleading responding to it." CPLR Rule 3025(b) provides in pertinent part that "a party may amend his pleading, or supplement it by setting forth additional or subsequent transactions or occurrences, at any time by leave of court or by stipulation of all parties..." Here, there is no dispute that the claim was amended as of course within 40 days after receipt of the defendant's answer and leave of court was therefore not required. In addition, it is undisputed that the amended claim may include additional or subsequent occurrences as is the case here ( CPLR Rule 3025[b] ; see also, Bastian v State of New York, 8 AD3d 764; Jones v State of New York, Ct Cl, March 2, 2001 [Claim No. 102461, Motion Nos. M-62300, M-62272 UID # 2001-018-070, Fitzpatrick, J.). With respect to the manner of service, CPLR 2103 (b)(2) specifically provides for service by regular mail on an attorney in a pending action (see also Rohany v State of New York, 144 Misc 2d 940). Service of the amended claim by regular mail was therefore proper.

The Court next turns to the claimant's motions for summary judgment on his second and sixth causes of action for wrongful confinement. In order to establish a prima facie case of wrongful confinement, 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).

"It is well settled that actions of correctional facility employees with respect to inmate discipline matters are quasi-judicial in nature and, unless the employees exceed the scope of their authority or violate the governing statutes and regulations, the State has absolute immunity for those actions" (Holloway v State of New York, 285 AD2d 765, 766, citing Arteaga v State of New York, 72 NY2d 212, 214, 218-220; see also, Mitchell v State of New York, 32 AD3d 594). The mere fact that a disposition from a disciplinary hearing is later reversed does not necessarily breach the cloak of immunity afforded prison officials in the exercise of their discretionary functions (see, Arteaga v State of New York, 72 NY2d 212; Davis v State of New York, 262 AD2d 887 lv denied 93 NY2d 819). However, as made clear by the Court of Appeals in Arteaga, the State is not immune from liability for "actions of correction personnel in physically abusing inmates (see, Correction Law § 137[5]) or in confining them without granting a hearing or other required due process safeguard (see, 7 NYCRR 251-5.1; parts 252-254)..." ( Id. at 221). Where the regulation permits the exercise of discretion, however, immunity attaches even though it may be later determined that such discretion was abused (see, Holloway v State of New York, supra, 285 AD2d at 766).

In support of his motion for summary judgment on his second cause of action, claimant established that the determination of guilt following his Tier II disciplinary hearing was reversed and expunged from his records. According to the letter from Girard Monahan, the Deputy Superintendent of Security Services, the reversal was based on "state law involving an inmate's right to have relevant witnesses testify on his behalf at a disciplinary hearing." This showing is insufficient to permit the Court to determine whether the alleged violation in the conduct of the Tier II disciplinary hearing was an exercise of discretion (though later determined to be wrong) or a violation of claimant's due process right to call witnesses.

Claimant alleges a violation of 7 NYCRR 253.5(a) , which states:
The inmate may call witnesses on his behalf provided their testimony is material, is not redundant, and doing so does not jeopardize institutional safety or correctional goals. If permission to call a witness is denied, the hearing officer shall give the inmate a written statement stating the reasons for the denial, including the specific threat to institutional safety or correctional goals presented.
The plain language of the regulation permits the exercise of discretion in determining whether to grant a claimant's request to call witnesses. In addition, as correctly pointed out by defense counsel, although the claimant identified the witnesses he sought to have testify he has failed to describe their expected testimony or to establish that the witnesses' testimony was material, not redundant and would not jeopardize institutional safety or correctional goals. In fact, no proof was submitted as to the basis for the denial either in support or opposition to the motion. In this context, however, it was incumbent upon the movant to establish his entitlement to judgment as a matter of law which, in the Court's view, he has failed to do. Questions of fact exist regarding immunity and whether the defendant's actions constituted a violation of applicable regulations. Claimant's motion for summary judgment on the second cause of action set forth in the claim is therefore denied.

Claimant alleges as a basis for his sixth cause of action that the defendant failed to issue a confinement report as required by 7 NYCRR 251-1.6(e)(1) and that the hearing with respect to the charges brought against him was not completed within 14 days following the writing of the misbehavior report as required by 7 NYCRR 251-5.1(b). Claimant argues that the conduct of the defendant in failing to abide by these regulations is not subject to immunity as these regulations are ministerial in nature requiring no exercise of discretion. With respect to the alleged failure to issue a confinement report, § 251-1.6(e)(1) states that the employee who places the inmate in confinement "shall report such fact, in writing, to the superintendent as soon as possible, but in any event before going off duty." The regulation does not require that the report be provided to the claimant and no violation of an alleged due process safeguard is implicated. In addition, the alleged violation neither resulted in the charges for which the inmate was confined or affected the proceedings brought against him and, therefore, may not form the basis for a claim of wrongful confinement (cf., Craft v State of New York, 189 Misc 2d 661).

With respect to the alleged violation of § 251-5.1(a), the Court notes that an extension for the completion of the hearing was obtained on July 21, 2005 to permit confidential medical testimony to be heard. Section 251-5.1(b) provides for the completion of a hearing within 14 days of the writing of a misbehavior report "unless otherwise authorized by the commissioner or his designee". A question of fact exists as to whether the claimant's disciplinary hearing was conducted in a timely manner requiring denial of the motion for summary judgment on claimant's sixth cause of action.

Based on the foregoing the defendant's cross-motion to dismiss the claim is denied and the claimant's motions for summary judgment are denied.






December 22, 2006
Saratoga Springs, New York

HON. FRANCIS T. COLLINS
Judge of the Court of Claims


The Court considered the following papers:
  1. Notice of motion dated August 9, 2006;
  2. Affidavit of Edwin Lamage sworn to August 9, 2006 with exhibit;
  3. Notice of motion dated August 25, 2006;
  4. Affidavit of Edwin Lamage sworn to August 25, 2006;
  5. Notice of cross-motion dated September 26, 2006;
  6. Affirmation of Michele M. Walls dated September 26, 2006 with exhibits;
  7. "Affirmation" of Edwin Lamage sworn to October 4, 2006.

[1].Unreported decisions from the Court of Claims are available via the internet at http://www.nyscourtofclaims.state.ny.us./decision.htm.