New York State Court of Claims

New York State Court of Claims

MALIK v. THE STATE OF NEW YORK, #2000-015-031, Claim No. None, Motion No. M-61280


Synopsis


The failure of the appeals unit of the Board of Parole to decide an administrative appeal within the four month time period set forth in 9 NYCRR 8006.4(c) does not give rise to a cause of action for money damages in the Court of Claims.

Case Information

UID:
2000-015-031
Claimant(s):
ABDEL-JABBOR MALIK
Claimant short name:
MALIK
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
None
Motion number(s):
M-61280
Cross-motion number(s):

Judge:
FRANCIS T. COLLINS
Claimant's attorney:
Abdel-Jabbor Malik, Pro Se
Defendant's attorney:
Honorable Eliot Spitzer, Attorney General
By: Saul Aronson, EsquireAssistant Attorney General
Third-party defendant's attorney:

Signature date:
June 2, 2000
City:
Saratoga Springs
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)


Decision


The application of movant for an order pursuant to Court of Claims Act § 10(6) permitting him to serve and file a late claim is denied. In a decision and order filed on December 14, 1999, the Court dismissed a prior version of the proposed claim giving rise to this motion upon the ground that the claim had never been served upon the Attorney General, although it had been filed with the Clerk of the Court on July 14, 1999. By this motion, the movant, a pro se inmate, seeks permission to serve and file a late claim containing a cause of action to recover for money damages upon an alleged violation of his right to due process of law in that the Board of Parole failed to timely decide his administrative parole revocation appeal. In particular, the proposed claim alleges that pursuant to 9 NYCRR 8006.4(c) the Board of Parole has four months in which to decide an administrative appeal from a parole revocation determination, which it failed to do with respect to claimant's administrative appeal taken on November 23, 1998. The proposed claim alleges that the cause of action accrued on March 23, 1999 when the Appeals Unit of the Division of Parole failed to issue its findings and recommendations within four months of the date that the perfected appeal was received.

Subdivision 6 of section 10 of the Court of Claims Act permits this Court, if the applicable Statute of Limitations set forth in article 2 of the CPLR has not expired, to allow the filing of a late claim upon consideration of the following factors: "whether the delay in filing the claim was excusable; whether the state had notice of the essential facts constituting the claim; whether the state had an opportunity to investigate the circumstances underlying the claim; whether the claim appears to be meritorious; whether the failure to file or serve upon the attorney general a timely claim or to serve upon the attorney general a notice of intention resulted in substantial prejudice to the state; and, whether the claimant has any other available remedy".

Turning to the statutory factors, this Court has broad discretion in deciding a motion to permit the late filing of a claim (Ledet v State of New York, 207 AD2d 965), and the statutory factors are not exhaustive or one factor controlling (Matter of Gavigan v State of New York, 176 AD2d 1117). The most important factor is whether the potential claim has merit, as it would be a futile exercise to permit litigation of a clearly baseless lawsuit (Savino v State of New York, 199 AD2d 254).

The first issue is whether the motion is timely as the Court may permit the late filing of a claim only if a motion seeking such relief is made within the applicable Statute of Limitations period set forth in article 2 of the CPLR (Williams v State of New York, 235 AD2d 776). The proposed claim alleges that movant was denied due process of law when his administrative appeal was not timely determined. Thus, the proposed cause of action is one for constitutional tort in that it asserts a violation of the New York State Constitution pursuant to the theory of recovery recognized by the Court of Appeals in Brown v State of New York, 89 NY2d 172. The Statute of Limitation applicable to a State constitutional tort cause of action is the three year period set forth in CPLR 214 (5) (Brown v State of New York, 250 AD2d 314, 318) and this motion is timely.

Claimant states, by way of excuse for his delay, that he timely "sent" a notice of intention and claim addressed to the Attorney General but through the mismanagement of the Department of Correctional Services the items were misplaced and never mailed. The affirmation in opposition to the motion does not contest movant's assertion that the Department of Correctional Services mishandled the mailing of the notices of intention and claims and as a consequence the Court must accept that allegation as true for purposes of the motion (Schweikert v State of New York, 64 AD2d 1026).

The intertwined issues of notice, opportunity to investigate and prejudice will be considered together. The alleged wrongdoing here involved a written administrative appeal and the failure to act upon that appeal within the time frame set forth in the regulation. The administrative appeal and the manner in which it was handled by the Appeals Unit will be memorialized in documents and as a consequence there will be no substantial prejudice to the State in permitting a late claim (Remley v State of New York, 174 Misc 2d 523, 524).

The most important of the statutory factors is the potential merit of the proposed claim (Savino v State of New York, 199 AD2d 254, supra). 9 NYCRR 8006.4(c) provides:
(c) Should the appeals unit fail to issue its findings and recommendation within four months of the date that the perfected appeal was received, the appellant may deem this administrative remedy to have been exhausted, and thereupon seek judicial review of the underlying determination from which the appeal was taken. In that circumstance, the division will not raise the doctrine of exhaustion of administrative remedy as a defense to such litigation.
The rule was enacted as a means of precluding the defense of failure to exhaust an administrative remedy in any article 78 proceeding brought by the detainee when the Appeals Unit fails to timely determine an administrative appeal (Matter of Buford v Russi, 152 Misc 2d 23). Consequently, the failure to decide a parolee's administrative appeal from a parole revocation hearing within the four month period set forth in 9 NYCRR 8006.4(c) does not render "the decision of the appeals unit constitutionally defective", as the only "consequence of the appeals unit's failure to decide an administrative appeal within four months is that petitioner may deem his administrative remedy exhausted and may immediately seek judicial review of the underlying determination" (Matter of Lord v State of New York Exec. Dept. Bd./Div., 263 AD2d 945, 946). Thus, movant's assertion that the administrative delay constituted a violation of his constitutional rights to due process lacks merit as a violation of 9 NYCRR 8006.4(c) does not invalidate a parole revocation or otherwise prejudice the inmate (People ex rel Tyler v Travis, ____ AD2d ____, 702 NYS2d 705; Matter of Graham v New York State Div. of Parole, ____ AD2d ____, 702 NYS2d 708). The operation of 9 NYCRR 8006.4 and the remedy for a breach of one of its time provisions is explained by the Court in the case of Matter of Buford v Russi, 152 Misc 2d 23, supra at 24, as follows:
Respondent does not challenge petitioner's allegation that no decision has been rendered on his administrative appeal, which was filed nearly nine months ago. Respondent's procedures are governed by section 259-i of the Executive Law, which contains numerous time constraints for the conduct of the Board's work. Not among those time constraints, however, is any fixed period within which a decision on a parole appeal must be rendered. Rather, the statute leaves it to the Board to determine the time in which an appeal must be resolved in its rules and regulations (Executive Law § 259-i[4][a]). The Board has enacted 9NYCRR 8006.4, governing the disposition of appeals, without establishing a time period, other than to provide that if a decision is not issued within four months from the date of receipt of the appeal, an appellant may seek judicial review and the defense of exhaustion of administrative remedies by the Board is precluded. ...

The court finds that the failure of the respondent to decide and notify petitioner of the results of his appeal filed on November 30, 1990 constitutes an unreasonable delay. Petitioner's relief, however, is not to be restored to parole status, but rather a judgment directing the Board to perform fully its statutory obligations.
Thus, when the Appeals Unit of the Board of Parole fails to decide an administrative appeal within the time frame set forth in 9 NYCRR 8006.4 (c) the constitutional rights of the parolee are not violated or prejudiced, and his remedy is an article 78 proceeding in the nature of mandamus to compel a determination. The movant has failed to establish a potentially meritorious constitutional tort cause of action.

As to the last factor, at this late date it does not appear that the claimant has another available remedy. The Statute of Limitations relative to mandamus to compel is four months (CPLR § 217; Matter of Cullinan v Ahern, 212 AD2d 103), which begins to run at the time a demand is made (Matter of Van Luven v Henderson, 52 AD2d 1042; People ex rel Davis v Henderson, 52 AD2d 1093), and the filing of a claim in the Court of Claims can be deemed a demand for purposes of commencing the running of the limitations period (see, Matter of Mutschler v Bd. of Educ. of the William Floyd Union Free School Dist, 177 AD2d 629 and McBride v State of New York, 110 Misc 64, 72). Claimant's previously dismissed claim filed on July 14, 1999 was such a demand. As a result, that is the date upon which the four month limitations period to commence a proceeding pursuant to article 78 of the CPLR began to run. Consideration of all of the factors, especially the lack of potential merit, leads the Court to deny the motion.


June 2, 2000
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 February 21, 2000;
  2. Statement of Abdel-Jabbor Malik in support of the motion dated February 21, 2000;
  3. Proposed claim (improperly denominated "Claim";
  4. The affirmation in opposition of Saul Aronson dated March 29, 2000.