New York State Court of Claims

New York State Court of Claims

McCANTS v. THE STATE OF NEW YORK, #2002-015-258, Claim No. 105349, Motion Nos. M-64678, M-64679


Court dismissed claim based on parole revocation issue for lack of jurisdiction because of sovereign immunity. Dismissal rendered moot claimant's motion to amend claim and to strike defenses.

Case Information

ANDRE T. McCANTS The Court hereby amends the caption sua sponte to reflect the only properly named defendant.
Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :
The Court hereby amends the caption sua sponte to reflect the only properly named defendant.
Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
M-64678, M-64679
Cross-motion number(s):

Claimant's attorney:
Andre T. McCants, Pro Se
Defendant's attorney:
Honorable Eliot Spitzer, Attorney General
By: Michael W. Friedman, EsquireAssistant Attorney General
Third-party defendant's attorney:

Signature date:
June 6, 2002
Saratoga Springs

Official citation:

Appellate results:

See also (multicaptioned case)


The Court, sua sponte, dismisses the claim for lack of subject matter jurisdiction and the claimant's motions to amend the claim and to strike certain defenses are denied as moot. As originally filed with the Court on December 14, 2001 the claim seeks to recover money damages for the alleged negligence of the hearing officer who presided over claimant's preliminary parole revocation hearing in refusing to allow claimant to "present" a certain document. The claim further asserts that the claimant pursued an administrative appeal of the hearing officer's decision and that in January, 2001 he received notification that the hearing officer's determination was affirmed on appeal. Claimant alleges that the list of documents relied upon in affirming the original disposition "did not reflect that the preliminary transcript was not considered. Also, none of the commissioner [sic] in their decision reflected claimant's argument relating to his denial to present his document." This inaction is alleged to also constitute negligence.

By the instant motions the claimant seeks leave to amend his claim to assert causes of action sounding in constitutional tort and to strike certain defenses asserted in the answer. The State opposed the motion to amend the claim, in part, on the basis that the acts complained of are discretionary and quasi-judicial in nature and thus the State is immune from liability. The defendant did not submit opposition to the claimant's motion to strike defenses.

Before considering the merits of either motion it is plain from the allegations of the claim, both as originally submitted and as sought to be amended, that the actions complained of concern discretionary determinations made in the course of a parole revocation hearing. Certainly the question of what evidence shall be received in a preliminary parole revocation hearing is quasi-judicial in nature in that "discretionary or quasi-judicial acts involve the exercise of reasoned judgment which could typically produce different acceptable results" (Tango v Tulevech, 61 NY2d 34, 41). So too is the determination to affirm the hearing officer's decision in the matter a discretionary, quasi-judicial function (McCants v Travis, 291 AD2d 594).

Where the actions complained of involve the exercise of discretion or judgment of a quasi-judicial nature to which governmental immunity attaches the Court of Claims is without subject matter jurisdiction (Gerson v New York State Attorney-General, 139 AD2d 617; Board of Educ. of City of N.Y. v State of New York, 88 AD2d 1057).

Subject matter jurisdiction is not waivable but "may be [raised] at any stage of the action, and the court may, ex mero motu, [on its own motion], at any time, when its attention is called to the facts, refuse to proceed further and dismiss the action" (Fry, Matter of, v Village of Tarrytown, 89 NY2d 714, 718 quoting Robinson v Oceanic Steam Nav. Co., 112 NY 315, 324).

That is the course which will be taken here. The alleged actions of the hearing officer and Board of Parole asserted in the claim pertain to the issue of parole revocation which is sovereign and quasi-judicial in nature and subject to absolute immunity (Semkus v State of New York, 272 AD2d 74). As a result, this Court lacks subject matter jurisdiction to adjudicate the claim and the claim is, therefore, dismissed (Lublin v State of New York, 135 Misc 2d 419 affd 135 AD2d 1155; lv to appeal denied 71 NY2d 802).

June 6, 2002
Saratoga Springs, New York

Judge of the Court of Claims

The Court considered the following papers:
  1. Notice of motion (M-64678) dated January 14, 2002;
  2. "Affirmation" [sic] of Andre T. McCants dated January 14, 2002 with exhibit;
  3. "Claimant [sic] motion to strike" (M-64679) dated January 28, 2002;
  4. Affirmation of Michael W. Friedman dated February 21, 2002 with exhibit.