New York State Court of Claims

New York State Court of Claims

DIGIOIA v. THE STATE OF NEW YORK, #2003-015-309, Claim No. 106725, Motion No. M-65992


Doctrine of absolute immunity bars claim seeking recovery of money damages for incarceration stemming from Parole Board's revocation of claimant's parole which was later annulled on appeal.

Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
Cross-motion number(s):

Claimant's attorney:
Robert A. Becher, Esquire
Defendant's attorney:
Honorable Eliot Spitzer, Attorney General
By: Dennis M. ActonAssistant Attorney General
Third-party defendant's attorney:

Signature date:
January 21, 2003
Saratoga Springs

Official citation:

Appellate results:

See also (multicaptioned case)


Defendant's motion to dismiss the claim for lack of jurisdiction as a result of claimant's alleged failure to commence the action within 90 days of accrual is denied. The claim is, however, dismissed for lack of jurisdiction and failure to state a cause of action. The claim seeks money damages arising from claimant's confinement in a State correctional facility for approximately 22 months following a final parole revocation hearing held on November 21, 2000. The Parole Board's determination was later annulled by the Appellate Division, Third Department on July 3, 2002 (DiGioia, Matter of v Travis, ____ AD2d ____) on the ground that claimant's contacts with a female inmate participating in a work release program in the waiting room of the parole office and again outside the office a month later did "not rise to the level of association or fraternization proscribed by the [Division's] regulation" (9 NYCRR 8003.2 [g]). The Appellate Division further found that the Board's interpretation of the term fraternize as dependent upon the parolee's underlying conviction was "inherently arbitrary and subject to discriminatory application" (DiGioia, Matter of v Travis, supra). On October 1, 2002 claimant filed his claim and an affidavit of service alleging personal service of the claim upon the Attorney General's Legal Records Manager.

Although defense counsel asserts on the motion that the claim is untimely "since no notice of intention or claim was served within 90 days of the accrual of the alleged cause or causes of action," he has provided no testimonial or documentary support for his contention. As a result, that part of the motion which seeks to dismiss the claim as not timely filed is denied.

Defendant has also moved to dismiss the claim on the ground that it fails to state a cause of action in that "actions of the Parole Board are protected from suit by Absolute Immunity." Claimant opposed the motion alleging that the claim states causes of action pursuant to both Court of Claims Act § 8-b and traditional tort concepts of unlawful imprisonment and malicious prosecution.

The standard for determining a motion pursuant to CPLR Rule 3211 (a) (7) is well established. The claim will be deemed legally sufficient and the dismissal motion denied if a claimant is entitled to recover upon any reasonable view of the stated facts (see, 219 Broadway Corp. v Alexander's, Inc., 46 NY2d 506, 509). "Whatever an ultimate trial may disclose as to the truth of the allegations, on such a motion, a court is to take them as true and resolve all inferences which reasonably flow therefrom in favor of the pleader" (Sanders v Winship, 57 NY2d 391, 394).

The claim must be dismissed for the simple reason that "[d]eterminations pertaining to parole and its revocation . . . are deemed strictly sovereign and quasi-judicial in nature and, accordingly, the State, in making such determinations, is absolutely immune from tort liability (Lublin v State of New York, 135 Misc 2d 419, 420, affd 135 AD2d 1155, lv denied 71 NY2d 802)" Semkus v State of New York, 272 AD2d 74, 75, lv denied 95 NY2d 761).

It is clear from a reading of the claim herein that claimant seeks to impose liability upon the State based upon the Board of Parole's allegedly wrongful or improper revocation of his parole. Such a claim is barred by the doctrine of absolute immunity (Tarter v State of New York, 68 NY2d 511) notwithstanding the fact that the Board's decision to revoke claimant's parole was later determined to have been in error (Semkus, supra at 74).

The defendant's motion is granted in this respect and the claim is hereby dismissed.

January 21, 2003
Saratoga Springs, New York

Judge of the Court of Claims

The Court considered the following papers:
  1. Notice of motion dated October 29, 2002;
  2. Affidavit of Dennis M. Acton sworn to October 29, 2002;
  3. Affirmation of Robert A. Becher dated November 20, 2002 with exhibit.