New York State Court of Claims

New York State Court of Claims

MACON v. THE STATE OF NEW YORK DIVISION OF PAROLE, A. SANTIAGO, SENIOR PAROLE OFFICER, H. RAMIREZ, PAROLE OFFICER, ET AL., #2001-001-042, Claim No. 103996, Motion No. M-63444


Synopsis


The Court dismisses this claim for lack of jurisdiction; and denies claimant's request for permission to file a late claim without prejudice.

Case Information

UID:
2001-001-042
Claimant(s):
ROGER MACON
Claimant short name:
MACON
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK DIVISION OF PAROLE, A. SANTIAGO, SENIOR PAROLE OFFICER, H. RAMIREZ, PAROLE OFFICER, ET AL.
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
103996
Motion number(s):
M-63444
Cross-motion number(s):

Judge:
Susan Phillips Read
Claimant's attorney:
Roger Macon, Pro Se
Defendant's attorney:
Hon. Eliot Spitzer, NYS Attorney GeneralBy: Susan J. Pogoda, Esq., Assistant Attorney General, Of Counsel
Third-party defendant's attorney:

Signature date:
July 16, 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: Notice of Motion, dated April 26 and filed April 30, 2001; Affirmation of Susan J. Pogoda, Esq., AAG, dated April 26 and filed April 30, 2001, with annexed Exhibit A; Affidavit in Opposition of Roger Macon, pro se, sworn to June 4 and filed June 7, 2001, with annexed Exhibit A; and the claim, verified March 13 and filed March 21, 2001.

Claimant Roger Macon ("claimant"), proceeding pro se, filed this claim on March 21, 2001 pursuant to Court of Claims Act § 8-b alleging that the New York State Division of Parole ("the Division") had unjustly imprisoned him for a parole violation (claim, verified March 13 and filed March 21, 2001 ["claim"], ¶¶ 8-11). Claimant was paroled on March 21, 2000 and subsequently tested positive for alcohol use which, evidently, he was not allowed to consume as a special condition of his parole (Affidavit in Opposition of Roger Macon, pro se, sworn to June 4 and filed June 7, 2001 ["Macon Aff."], Exh. A).[1] Claimant seems to contend that the Division should not have detained him after he tested positive for alcohol usage, but should have instead referred him to a drug/alcohol treatment facility pursuant to a special condition of his parole, which states "[m]andatory substance abuse evaluation and treatment as recommended" (claim, ¶¶ 8-9, Exh. A).

Defendant State of New York ("defendant" or "the State") filed this CPLR 3211 pre-answer motion to dismiss the claim, arguing primarily that claimant has failed to serve either a timely Notice of Intention or a timely claim upon the Attorney-General pursuant to Court of Claims Act § 10 (Affirmation of Susan J. Pogoda Esq., AAG, dated April 26 and filed April 30, 2001 ["Pogoda Aff."], ¶¶ 3-8). In opposition, claimant asserts that the accrual date of his action was the day he was detained due to the parole violation, December 20, 2000, not--as the State contends--March 21, 2000, his parole release date (Macon Aff., ¶¶ 4-6; Pogoda Aff., ¶ 5). Claimant avers that since he mailed the claim to the Attorney-General by registered mail, return receipt requested, on March 13, 2001, he timely served the claim within the requisite 90-day period (Macon Aff., ¶ 7). Claimant alternatively asks for permission to file a late claim, stating that if the Court finds that the claim was not timely, "please consider [Court of Claims Act § 10 (6)]; that in so filing said claim the claimant was in conformity with all clauses therein" (Macon Aff., ¶ 8).

Claimant incorrectly contends that the date of service is the day that he mailed the claim to defendant: the statute and relevant case law make clear that service upon the Attorney-General's office by certified mail, return receipt requested, "shall not be complete until the claim or notice of intention is received in the office of the [Attorney-General]" (Court of Claims Act § 11 [a]; see, Firth v State of New York, 184 Misc 2d 105, 109 ["the date of receipt is the dispositive date"]). Here, even accepting claimant's argument that his claim did not accrue until December 20, 2000 (the day he was taken into custody for his parole violation), the claim was not served upon the Attorney-General until March 28, 2001, 98 days later. Thus, defendant's assertion of untimely service is correct even if the Court accepts the accrual date proffered by claimant.

The filing and service requirements contained in Court of Claims Act §§ 10 and 11 are jurisdictional in nature and must be strictly construed (see, Finnerty v New York State Thruway Auth., 75 NY2d 721, 722-723). Claimant's failure to comply with these requirements deprives this Court of jurisdiction and requires dismissal of his action (see, Nish v Town of Poestenkill, 179 AD2d 929, 930, appeal dismissed 79 NY2d 1040; Firth v State of New York, supra, 184 Misc 2d 105, 109). Accordingly, the Court grants the State's motion to dismiss claim No. 103996.

In order to entertain claimant's alternative request that he be given permission to file a late claim (Macon Aff., ¶ 8), the Court must consider, among other relevant factors, the six factors set forth in subdivision 6 of section 10 of the Court of Claims Act: 1) whether the delay in filing the claim was excusable; 2) whether defendant had notice of the essential facts constituting the claim; 3) whether defendant had an opportunity to investigate the circumstances underlying the claim; 4) whether the claim appears to be meritorious; 5) whether the failure to file or serve a timely claim or serve a timely notice of intention resulted in substantial prejudice to defendant; and 6) whether the claimant has another available remedy. Claimant has provided no information for the Court's use to evaluate his request in terms of these six factors; therefore, his request for permission to file a late claim is denied without prejudice.

July 16, 2001
Albany, New York

HON. SUSAN PHILLIPS READ
Judge of the Court of Claims




[1]Claimant includes as an Exhibit to his claim a copy of his parole conditions dated March 20, 2000, which do not specify that he must abstain from alcohol; however, the copy of the Board of Parole Preliminary Violation Hearing references a violation of a special condition of release dated December 6, 2000, which claimant has not included in the opposition papers (Macon Aff., Exh. A).