New York State Court of Claims

New York State Court of Claims

FAISON v. STATE OF NEW YORK, #2000-001-004, Claim No. 96369, Motion No. M-60772


Synopsis


Defendant's motion to dismiss the claim for untimeliness where claimant is alleging injuries resulting from the purported untimeliness of his parole release hearings is granted

Case Information

UID:
2000-001-004
Claimant(s):
DONALD FAISON
Claimant short name:
FAISON
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
96369
Motion number(s):
M-60772
Cross-motion number(s):

Judge:
Susan Phillips Read
Claimant's attorney:
Donald Faison, Pro Se
Defendant's attorney:
Hon. Eliot Spitzer, NYS Attorney GeneralBy: Kevan Acton, Assistant Attorney General
Third-party defendant's attorney:

Signature date:
April 25, 2000
City:
Albany
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)

.
Decision

The following papers were read and considered on defendant's motion to dismiss the claim and/or for summary judgment pursuant to CPLR 3211 (a) (2), (7) and (8) and CPLR 3212: Notice of Motion, dated November 16, 1999 and filed November 22, 1999; Affirmation in Support of Kevan J. Acton, dated November 16, 1999 and filed November 22, 1999; "Affirmation in Opposition of Donald Faison," dated November 24, 1999 and filed November 29, 1999, with annexed Exhibits A-E; Claim No. 96369, filed June 9, 1997; Verified Answer, sworn to July 17, 1997 and filed July 21, 1997; and Reply to Verified Answer, dated July 24, 1997 and received August 7, 1997, with annexed Exhibits A-F.

Claimant Donald Faison ("claimant"), acting pro se, claims injuries resulting from the purported untimeliness of his parole release hearings allegedly held on March 21, 1995 and March 6, 1997 in violation of the provisions of Executive Law § 259-i (2) (a) (Claim No. 96369, filed June 9, 1997). Defendant State of New York ("defendant" or "the State") contends that claimant's 1995 parole hearing was held on March 2, 1995, not March 21, 1995; does not dispute that claimant's 1997 parole release hearing was held on March 6, 1997; and moves for an order dismissing the claim and/or granting summary judgment, arguing substantial compliance with the applicable provisions of law, the claim's untimeliness and the absence of any injury to claimant (see, Affirmation in Support of Kevan J. Acton, dated November 16, 1999 and filed November 22, 1999 ["Acton Aff."], ¶¶ 3, 5, 6, 8, 10 and 11).

Prior to October 1, 1995, Executive Law § 259-i (2) (a) required the New York State Board of Parole ("the Board") to conduct an initial parole release interview at least one month prior to the expiration of an inmate's minimum period of imprisonment fixed by the court or the Board,[1] and [i]f parole is not granted upon such review, the inmate shall be informed in writing within two weeks of such appearance of the factors and reasons for such denial of parole. Such reasons shall be given in detail and not in conclusory terms. The board shall specify a date not more than twenty-four months from such determination for reconsideration, and the procedures to be followed upon reconsideration shall be the same (emphasis added; see also, 9 NYCRR § 8002.3 [d]).

Claimant alleges and the State does not dispute that his initial parole release hearing was held on March 6, 1991 and his first reconsideration hearing, which took place on March 2, 1993, was timely. He alleges that his second reconsideration hearing occurred on March 21, 1995; his third, on March 6, 1997; and that these hearings were 19 and 9 days late respectively (see,

Reply to Verified Answer, dated July 24, 1997 and received August 7, 1997, with annexed Exhibits A-F ["Reply"], ¶ 3).

First, the Court notes that the written determination following claimant's initial parole release hearing held on March 6, 1991 specifies "3/93 Bd." as his next appearance date; the written determination following his first reconsideration hearing on March 2, 1993 specifies "3/95 Board." as his next appearance date; the written determination following his second reconsideration hearing held on either March 21 (as claimant contends) or March 2 (as defendant contends), 1995 specifies "3/97 Board." as his next appearance date; and the written determination, dated March 10, 1997, following his third reconsideration hearing held on March 6, 1997 specifies, under the heading "Parole Decision" the comment "Denied–Hold for 24 months, next appearance date: 03/1999" (see, Reply, Exhibits A, B, C and D respectively). In other words, the Board may interpret Executive Law § 259-i (2) (a) as requiring it to reconsider an inmate's parole at a Board meeting scheduled for and held on any day during a specified month not more than 24 months after a written determination denying parole.

Case law suggests that such has, in fact, been the Board's scheduling practice for many years (see, e.g., Matter of Johnson v New York State Bd. of Parole, 50 AD2d 801 [after denying parole to inmate on December 12, 1974, Board fixed March, 1976 as the date for reconsideration]; Matter of Fusco v Chairman, Bd. of Parole of State of N.Y., 59 AD2d 973 [petitioner denied parole in January, 1976 was scheduled for reconsideration of parole release in January, 1978]; Greenman v New York State Bd. of Parole, 120 Misc 2d 959 [decision of Board read, in part, "Parole denied: Hold 20 months – May 1984 Board"]; and lends some support for it (see, Matter of Ganci v Hammock, 99 AD2d 546 [Board complied with 24-month time limitation in Executive Law § 259-i (2) (a) when it scheduled a petitioner denied parole in September, 1981 for reconsideration of parole release in September, 1983]). Nor has the Court found any case holding that the Board must compute the date of a parole reconsideration hearing mandated by section 259-i (2) (a) of the Executive Law with reference to section 30 of the General Construction Law,[2] as claimant impliedly argues. In any event, claimant has failed to make a timely claim.

Specifically, claimant concedes that his 1993 parole reconsideration hearing was held on March 2, 1993, and the Board's determination denying parole bears the same date (see, Reply, Exhibit B); therefore, if section 30 of the General Construction Law applies, his reconsideration hearing held 24 months later should have taken place no later than March 2, 1995. Defendant argues that claimant's 1995 parole reconsideration hearing was, in fact, held on this date (see, Acton Aff., ¶ 6; cf., Reply, Exhibit C), but claimant alleges that it did not occur until March 21, 1995. Giving claimant the benefit of the doubt on this score, however, any damages on account of the alleged untimeliness of his 1995 parole reconsideration hearing were ascertainable no later than March 21, 1995 (see, Greenspan Bros. v State of New York, 122 AD2d 249). Since claimant did not serve any notice of intention or file and serve any claim until June 9, 1997, any cause of action that he may have had with respect to the alleged untimeliness of his 1995 parole reconsideration hearing was not prosecuted within 90 days of accrual and is therefore untimely (see, Court of Claims Act, §§ 10, 11). Moreover, if claimant's 1995 parole reconsideration determination dates from March 21, 1995, as he alleges, his parole reconsideration hearing in 1997, which he alleges occurred on March 6, 1997, was timely held within 24 months of the date of the 1995 determination denying him parole, assuming that section 30 of the General Construction Law applies.

Contrariwise, if, as defendant alleges, claimant's 1995 parole reconsideration hearing took place and the determination denying parole was rendered on March 2, 1995, claimant's parole reconsideration hearing on March 6, 1997 was held four days late, assuming that section 30 of the General Construction Law applies. Again, however, claimant has not timely prosecuted any cause of action that he may have had in this regard: any damages on account of such four-day lapse accrued no later than March 6, 1997, but claimant did not serve any notice of intention or file and serve any claim until June 9, 1997; i.e., 95 days later (see, Court of Claims Act, §§ 10, 11).

Claimant contends that his cause of action on account of the purported untimeliness of his 1997 parole reconsideration hearing accrued March 10, 1997, the date of the adverse parole determination, not March 6, 1997, the date of the hearing. If so, this cause of action is timely even though he served and filed his claim 91 days after accrual because the 90th day was a Sunday (see, "Affirmation in Opposition of Donald Faison," dated November 24, 1999 and filed November 29, 1999, with annexed Exhibits A-E, Exhibit C; see also, Court of Claims §§ 10, 11; Gen. Constr. Law § 25-a[1]). The Court, however, finds that whatever cause of action claimant may have had on account of the alleged untimeliness of his 1997 parole reconsideration hearing accrued on March 6, 1997, not March 10, 1997: first, claimant alleges damages on account of a supposedly late hearing, not a supposedly late determination; and second, the determination was, in fact, timely because it was issued within two weeks of March 2, 1997, the latest possible hearing date assuming that section 30 of the General Construction Law applies.

In light of the foregoing, the Court need not reach and does not decide the proper method for computing the 24-month time limitation provided for by Executive Law § 259-i (2) (a); or whether the State's failure to hold a parole reconsideration hearing within the 24-month time limitation, however computed, would ever entitle a claimant to recover damages, especially in the event parole release is denied in a timely determination (cf., Matter of Risalek v Russi, 226 AD2d 798 [CPLR article 78 proceeding commenced after an allegedly untimely parole reconsideration hearing dismissed as untimely and further found moot because petitioner was, in fact, reconsidered for but denied parole]); and notes that claimant unsuccessfully challenged the Board's 1997 determination denying him parole release (Matter of Faison v Travis, 260 AD2d 866).

The Court accordingly grants defendant's motion to dismiss the claim for untimeliness; the claim is dismissed.

April 25, 2000
Albany, New York

HON. SUSAN PHILLIPS READ
Judge of the Court of Claims




[1]The Sentencing Reform Act of 1995 amended Executive Law § 259-i (2) (a) to make the parole availability date set by Penal Law § 70.40 the trigger for the initial parole hearing for a ten-year period from October 1, 1995 until September 30, 2005 (L 1995, c 3, §§ 39, 74 [a], [d]).
[2] Section 30 provides that "[a] number of months after or before a certain day shall be computed by counting such number of calendar months from such day, exclusive of the calendar month in which such day occurs, and shall include the day of the month in the last month so counted having the same numerical order in days of the month as the day from which the computation is made, unless there be not so many days in the last month so counted, in which case the period computed shall expire with the last day of the month so counted."