New York State Court of Claims

New York State Court of Claims

CUNNINGHAM v. THE STATE OF NEW YORK, #2001-001-037, Claim No. 103353, Motion No. M-62855


Synopsis


The Court grants defendant's motion to dismiss the claim.

Case Information

UID:
2001-001-037
Claimant(s):
JOSEPH CUNNINGHAM
Claimant short name:
CUNNINGHAM
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
103353
Motion number(s):
M-62855
Cross-motion number(s):

Judge:
Susan Phillips Read
Claimant's attorney:
Joseph Cunningham, Pro Se
Defendant's attorney:
Hon. Eliot Spitzer, NYS Attorney GeneralBy: Kathleen M. Resnick, Esq., Assistant Attorney General, Of Counsel
Third-party defendant's attorney:

Signature date:
June 29, 2001
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 pursuant to CPLR 3211 (2), (7) and (8): Notice of Motion, dated December 13 and filed December 14, 2000; Affirmation in Support of Defendant's Motion to Dismiss of Kathleen M. Resnick, Esq., AAG, dated December 13 and filed December 14, 2000, with annexed Exhibits A-B; Affidavit in Opposition of Joseph Cunningham, pro se, undated and filed May 4, 2001, with annexed Exhibits A-S; Reply Affirmation of Kathleen M. Resnick, Esq., AAG, dated May 3 and filed May 7, 2000; and the claim, undated and filed November 6, 2000. Claimant Joseph Cunningham ("claimant") filed this claim, pro se, on November 6, 2000. The claim appears to allege that: (1) claimant was wrongfully transferred from Rikers Island to Downstate Correctional Facility for classification and placement on October 1, 1999 while he had a Federal habeas corpus petition pending before the United States District Court for the Southern District of New York (claim, undated and filed November 6, 2000 ["claim"], ¶¶ 1-5);[1] (2) he was wrongfully denied parole because the Division of Parole failed to take into account certain factors in reaching its determination (id., at ¶¶ 5-12); and (3) the Division of Parole breached a contract when it transferred claimant (id., "STATEMENT OF CLAIM"). Defendant State of New York ("defendant" or "the State") filed this CPLR 3211 motion to dismiss the claim in lieu of an answer on December 14, 2000.

The State's motion is predicated on CPLR 3211 (a) (2), (7) and (8) (Notice of Motion, dated December 13 and filed December 14, 2000). The State first argues that the Court lacks personal jurisdiction over the claim as the Notice of Intention was served upon the Attorney-General on August 16, 2000 and the claim was not served until November 6, 2000. Thus, it is untimely (Affirmation in Support of Defendant's Motion to Dismiss of Kathleen M. Resnick, Esq., AAG, dated December 13 and filed December 14, 2000, with annexed Exhibits A-B ["Resnick Aff."], ¶¶ 4-9). The State also argues that inasmuch as the claim alleges that the Division of Parole's determination was erroneous due to its failure to take certain factors into account (claim, ¶¶ 9-12), the Court lacks jurisdiction (Resnick Aff., ¶¶ 10-12, citing Lublin v State of New York, 135 Misc 2d 419, affd 135 AD2d 1155, lv denied 71 NY2d 802). Defendant also notes that there is no contract between claimant and the State, thus he has failed to state a cause of action to the extent the claim appears also to plead a breach of contract cause of action (Resnick Aff., ¶ 15).

Claimant resists the State's motion explaining, among other things, that because the final decision regarding his parole denial was made on April 24, 2000, and mailed to him on May 26, 2000, his Notice of Intention and claim were timely (Affidavit in Opposition of Joseph Cunningham, pro se, undated and filed May 4, 2001["Cunningham Aff."]).[2] His opposition papers also detail an alleged pattern of harassment by parole officers that are not related to the allegations encompassed in the claim (id., "Conclusion").

Even if claimant's allegations that the Division of Parole erred in making its determination are taken as true, as they must be on this CPLR 3211 motion to dismiss (see, Cron v Hargro Fabrics, 91 NY2d 362, 366; Ferran v Belawa, 241 AD2d 841), his alleged cause of action regarding his parole denial fails: discretionary determinations of the Division of Parole are cloaked with absolute immunity and cannot serve as a basis for tort liability against the State (see, Tarter v State of New York, 68 NY2d 511; Semkus v State of New York, 272 AD2d 74, lv denied 95 NY2d 761; Lublin v State of New York, supra). Although it appears to be a moot point at this juncture (see, n 2, supra), claimant's sole remedy for the allegedly erroneous parole denial was by way of a CPLR article 78 proceeding commenced in Supreme Court (see, Lublin v State of New York, supra).

Claimant's cause of action alleging that he was wrongfully transferred out of the Southern District of New York while he had a habeas corpus petition pending in Federal court also fails. Even assuming that Federal Rule of Appellate Procedure, Rule 23 ("FRAP 23") was violated by moving claimant from Rikers Island to the reception center at Downstate Correctional Facility, and eventually Gowanda and Collins Correctional Facilities, he has not pleaded that this move prejudiced or damaged him with respect to his pending Federal habeas corpus petition.[3]Pending review of a decision in a habeas corpus proceeding commenced before a court, justice, or judge of the United States for the release of a prisoner, the person having custody of the prisoner must not transfer custody to another unless a transfer is directed in accordance with this rule. When, upon application, a custodian shows the need for a transfer, the court, justice or judge rendering the decision under review may authorize the transfer and substitute the successor custodian as a party. Although claimant's claim and accompanying Notice of Intention contend that defendant transferred him out of the Southern District in violation of FRAP 23 (a), he does not allege in what manner this transfer damaged him. Even assuming that the move was made without the proper order, claimant still cannot demonstrate a compensable injury as a result because the move would not have divested the Federal court entertaining his habeas corpus petition of jurisdiction (see, e.g., Moorish Science Temple of America v Smith, 693 F2d 987, 988-989; Hammer v Meachum, 691 F2d 958, 960-961, cert denied 460 US 1042; Pethtel v Attorney General of Indiana, 704 F Supp 166, 169). In short, there has been no allegation that the move harmed claimant and it could not have interfered with his pending habeas corpus petition. Further, the claim for his wrongful transfer would have accrued on October 1, 1999, as his alleged damages would have been reasonably ascertainable immediately after his removal (see, Augat v State of New York, 244 AD2d 835, lv denied 91 NY2d 814). Thus, the Notice of Intention served on August 16, 2000 and the claim, served on November 6, 2000, would have been untimely (see, Court of Claims Act § 10).

Finally, upon review of claimant's file and motion papers, the Court can find no factual basis upon which to make a determination that claimant has stated a cause of action sounding in contract against the State.

Based upon the foregoing, the Court grants defendant's motion to dismiss the claim.


June 29, 2001
Albany, New York

HON. SUSAN PHILLIPS READ
Judge of the Court of Claims




[1]Claimant alleges that he was thereafter transferred to Gowanda Correctional Facility and then to Collins Correctional Facility (claim, ¶¶ 3, 6).
[2]This latter date was the date of the "Decision Notice" from his parole appeal (Cunningham Aff., Exh. A). Claimant explains that he was conditionally released on October 30, 2000 (id., "Conclusion"). This release would appear to render any cause of action based on the earlier denial moot (see, Matter of Carr v New York State Div. of Parole Appeals Unit, 251 AD2d 880, appeal dismissed 92 NY2d 921).

[3] Rule 23 (a) provides: