New York State Court of Claims

New York State Court of Claims

JONES v. THE STATE OF NEW YORK, #2000-011-545, Claim No. 100951, Motion No. M-61631


Synopsis

Defendant's motion for summary judgment granted.

Case Information

UID:
2000-011-545
Claimant(s):
DAVID JONES, 90 A4653
Claimant short name:
JONES
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
100951
Motion number(s):
M-61631
Cross-motion number(s):

Judge:
Thomas J. McNamara
Claimant's attorney:
David Jones, Pro Se
Defendant's attorney:
Hon. Eliot Spitzer, Attorney General(Kevan J. Acton, Esq., of counsel)
Third-party defendant's attorney:

Signature date:
July 5, 2000
City:
Saratoga Springs
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision


Defendant has moved for summary judgment in this claim which alleges that Claimant has been subjected to unlawful imprisonment. Claimant asserts that the Parole Board unlawfully imprisoned him for violation of the terms and conditions of his parole by applying a regulation, 9 NYCRR 8005.20(c), more onerous than the law in effect on the date of the offense. He maintains that this is a violation of the ex post facto clause of the constitution.

Whether the claim is read as asserting a cause of action for false imprisonment or constitutional tort the motion should be granted.

A cause of action for false imprisonment requires proof that the confinement was not privileged (Broughton v State of New York, 37 NY2d 451) while the claim for constitutional tort requires a showing that some provision of the constitution, here the ex post facto clause, was violated (see, Brown v State of New York, 89 NY2d 172). However, the regulation involved here is not a law within the meaning of the ex post facto clause (People ex rel. Johnson v Russi, 258 AD2d 346). Thus, applying the regulation to Claimant's circumstances was not a violation of the constitution and consequently, the confinement of Claimant, through the action of the Parole Board, is privileged. Inasmuch as Claimant cannot, as a matter of law, establish either cause of action, the motion is granted and the claim is dismissed.

July 5, 2000
Saratoga Springs, New York

HON. THOMAS J. MCNAMARA
Judge of the Court of Claims



Papers Considered:

1. Amended Order to Show Cause signed on April 20, 2000.
2. Affirmation of Kevan J. Acton, Esq., dated March 16, 2000.
3. Unsworn statement of David Jones dated April 23, 2000.