New York State Court of Claims

New York State Court of Claims

JORGENSEN v. THE STATE OF NEW YORK, #2007-013-037, Claim No. 114112, Motion Nos. M-73946, M-74042


A claim for damages alleging perjury at an inmate's disciplinary hearing and reliance upon the purported requirement of exhaustion of all administrative remedies under the federal Prison Litigation Reform Act is dismissed on motion as untimely filed and served. Claimant's late claim application is denied, as the State is entitled to immunity for money damages relating to prison disciplinary proceedings as long as there are no violations of an inmate's due process rights (Arteaga v State of New York, 72 NY2d 212), and, here, in the absence of such allegations, the proposed claim does not have the appearance of meritoriousness

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):
M-73946, M-74042
Cross-motion number(s):

Claimant’s attorney:
Defendant’s attorney:
Attorney General of the State of New York
BY: PAUL VOLCY, ESQ.Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
October 25, 2007

Official citation:

Appellate results:

See also (multicaptioned case)


On October 17, 2007, the following papers were read on motion by Defendant for dismissal of the claim, and on motion by Claimant for permission to file a late claim:

Defendant’s Notice of Motion, Affirmation and Exhibits Annexed

Answering Affidavit and Exhibits Annexed

Claimant’s Responsive Notice of Motion, Affidavit and Exhibits Annexed

Opposing Affirmation and Exhibits Annexed

Filed Papers: Claim

Upon the foregoing papers, Defendant’s motion is granted and Claimant’s responsive motion is denied.

The claim herein was filed on August 17, 2007 and served on August 13, 2007. It alleges wrongful acts committed by two physician assistants employed by the Defendant who purportedly offered false testimony at a Superintendent’s hearing on or about March 21, 2007 at Wende Correctional Facility (Wende). The claim alleges that a notice of intention to file a claim was served upon the Defendant on June 25, 2007 via certified, return receipt mail.

In lieu of an answer, the Defendant brought Motion No. M-74042 seeking to dismiss the claim as untimely, as well as on grounds of an impermissible challenge to a disciplinary determination and absolute immunity. Prior to addressing the substantive aspects of Defendant’s motion, I review the timeliness argument first. There is no question that the instant claim arose on March 21, 2007 (as alleged in the claim itself), and there is no dispute that service of the notice of intention, properly served by certified mail, return receipt requested, was not completed until June 25, 2007. In that regard, Defendant moves for dismissal on the ground that Claimant has failed to timely serve his notice of intention or serve and file his claim within 90 days of accrual as required by Court of Claims Act §10(3), to wit, no later than June 19, 2007.

In opposing dismissal, Claimant raises several arguments. Notably, he alleges that he only learned of the allegedly false testimony on June 6 or 8, 2007, when he received his medical records. Claimant also asserts that the consequences of the allegedly false testimony only became final on June 11, 2007, when he was advised that his administrative remedies were exhausted, thus he was not “technically” harmed until such time. In that respect, Claimant cites the “prison litigation reform act (PLRA) 42 USC §1997e(a)” which ostensibly requires prisoners to exhaust all administrative remedies before commencing actions. Claimant’s reliance upon such federal statute is misplaced, as no such requirement exists in the Court of Claims in actions for money damages. The claim here, damages resulting from alleged perjury and false testimony resulting in disciplinary action, accrued on the date of the hearing and imposition of the disciplinary penalties.

Claimant also raises a “delay” of ten days before he could obtain notary services for his notice of intention, from June 8, 2007 when he “received” both his medical records and notification from Albany that his administrative remedies had been exhausted, and June 18, 2007 when notary services were provided. This explanation is somewhat questionable and Claimant’s complaint of a ten-day delay is rejected. First, he would have the Court believe that he sought to have his notice of intention notarized on the same day that he received his medical records, and that he wrote and prepared his notice of intention on said day, and sought notary services also on the same day (I note that no written request for such services is provided). Moreover, Claimant asserts that this was simultaneous with his receipt of denial of his appeals and the exhaustion of his administrative remedies on June 8, 2007. However, such assertion and Claimant’s explanation are belied by his own Exhibit C to his opposing papers, the written review and affirmation of the Superintendent’s hearing, which while dated June 8, 2007, contains a “received” stamp at Wende of June 11, 2007. Thus, even if Claimant received it on that day, his assertion that he had submitted a request for notary services at least three or four days earlier is rejected. There is nothing before me which establishes any delay attributable to the Defendant.

Claimant also argues that there was yet another “delay” from June 18, 2007, when his request for disbursement for mailing is dated, until its approval on June 20, 2007 and the actual date of mailing on June 21, 2007. Since Claimant’s request for disbursement for mailing is not dated until June 18, 2007, and since timely service upon the Defendant required service to have been completed by receipt no later than June 19, 2007 (Court of Claims Act §11[a][i]), none of the alleged delays warrants judicial intervention. To the extent that Claimant is constructively seeking to have the Court apply estoppel to the Defendant to preclude it from raising the untimeliness of the notice of intention, it is rejected (cf. Francis v State of New York, 155 Misc 2d 1006).

Accordingly, since the notice of intention to file a claim was served on June 25, 2007, more than 90 days after accrual of the claim, the claim, filed on August 17, 2007 and served on August 13, 2007, was untimely. The failure to comply with the time or manner of service requirements contained in Sections 10 and 11 of the Court of Claims Act is a fatal jurisdictional defect and deprives this Court of the power to hear the claim (Dreger v New York State Thruway Auth, 81 NY2d 721; Bogel v State of New York, 175 AD2d 493). Even those claims that miss the filing or service deadlines by only one day must be dismissed (Dependable Trucking Co. v New York State Thruway Auth., 41 AD2d 985; Matter of Marshall v State of New York, 144 Misc 2d 193). Inasmuch as the notice of intention was not served nor was the claim served and filed within 90 days of accrual of the claim, it is untimely (Court of Claims Act §§10[3] and 11), and Defendant’s motion in lieu of an answer (Court of Claims Act §11[c]) to dismiss the claim is granted. It therefore is unnecessary to address Defendant’s other grounds for dismissal.

Claimant also responded to the Defendant’s dismissal motion by making a responsive motion for permission to file a late claim pursuant to Court of Claims Act §10(6). Although not raised by the Defendant, the responsive motion is deficient because it does not include a proposed claim as required. However, under the circumstances extant, in the papers before me the parties have addressed the filed claim above as if it were the proposed claim, and for purposes of the responsive motion I will deem it to be the proposed claim. Generally I would address each of the six statutory factors seriatim before making a determination on the motion. Here, however, I address whether the proposed claim has the appearance of meritoriousness, for it would be an exercise in futility to grant this application (Savino v State of New York, 199 AD2d 254; Prusack v State of New York, 117 AD2d 729) if it did not meet this threshold.

Claimant has not been able to establish that the proposed claim is not patently groundless, frivolous or legally defective or that there is reasonable cause to believe that a valid cause of action exists (see Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1). Primarily this claim arose in the context of a disciplinary hearing during which Claimant alleges that two State employees committed perjury regarding what might be characterized as a medical justification defense, to wit, regarding his inability to provide a urine sample and the resulting disciplinary proceeding and penalties imposed.

As recently reiterated by Presiding Judge Richard E. Sise in Lewis v State of New York (UID #2007-028-560, Claim No. 113060, Motion Nos. M-73107 and M-73226, July 16, 2007):[1]

It is well-established that the State is entitled to absolute immunity from claims for money damages for confinement or other injury resulting from the discretionary, quasi-judicial actions of prison officials in connection with prison disciplinary proceedings, even if the underlying result of such proceedings are later reversed administratively or as the result of a successful article 78 proceeding, as long as the disciplinary proceeding was conducted in accordance with the rules and procedures established by the Department of Correctional Services (hereinafter “DOCS”) (Arteaga v State of New York, 72 NY2d 212 [1988]; Davis v State of New York, 262 AD2d 887 [3d Dept 1999], lv denied 93 NY2d 819 [1999]). If in the course of the proceeding, prison officials fail to comply with one of the ministerial rules or regulations governing such disciplinary hearings, that absolute immunity is lost...

The Defendant argues that administrative proceedings, including these disciplinary proceedings for which the administrative remedies were exhausted on June 8, 2007, may be challenged by CPLR article 78 proceedings, which must be raised in Supreme Court no later than four months after receipt of written notification.

While it is troubling to hear allegations of perjury and false testimony by employees of the Defendant, it is not clear from the moving papers, and certainly is beyond the common knowledge of the Court, whether the purportedly false testimony regarding the levels of creatine had any impact on Claimant’s purported inability to provide a sample for a urinalysis (cf. Nyberg v State of New York, 154 Misc 2d 199). Beyond that, it is also not clear whether such testimony would have had any bearing on the determination at the disciplinary proceedings.

To the extent that Claimant seeks money damages relating to the disciplinary proceedings, the Court of Appeals has cloaked such quasi-judicial proceedings with immunity, excepted only for acts beyond the authority of DOCS employees or in violation of the governing rules and regulations (Arteaga v State of New York, 72 NY2d 212, 219-220). Claimant raises no allegations whatsoever regarding violation of any of his due process rights. As such, his claim for money damages runs into the wall of immunity articulated in Arteaga, and therefore cannot establish the appearance of meritoriousness necessary for a successful late claim motion. The availability of other remedies for Claimant pursuant to the federal statute he referenced, the Prison Litigation Reform Act of 1995, or actions under 42 USC §1983, have not been addressed.

Since it would be futile to grant an application for permission to file a late claim which failed to demonstrate the appearance of meritoriousness (Savino v State of New York, 199 AD2d, 254, supra; Prusack v State of New York, 117 AD2d 729, supra), there is no need to examine the other statutory factors. Based upon the above, I decline to exercise my discretion on Claimant’s behalf, and the responsive motion for permission to file a late claim is denied.

October 25, 2007
Rochester, New York

Judge of the Court of Claims

  1. [1]Decisions and selected orders of the New York State Court of Claims are available on the Internet at