New York State Court of Claims

New York State Court of Claims

SCALES v. THE STATE OF NEW YORK, #2003-032-120, , Motion No. M-67126


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:
Anthony Scales, Pro Se
Defendant's attorney:
Hon. Eliot Spitzer, Esq., NYS Attorney General
By: Saul Aronson, Esq., Assistant Attorney General,Of Counsel
Third-party defendant's attorney:

Signature date:
December 19, 2003

Official citation:

Appellate results:

See also (multicaptioned case)


Movant's proposed claim alleges that in the spring of 2001, while he was incarcerated on a parole violation at Rikers Island Correctional Facility, a facility operated by the New York City Department of Correctional Services (NYCDOCS), he uncovered a massive escape attempt planned by certain gang members. He brought this to the attention of authorities and, following meetings with officials from New York City and the New York State Division of Parole, it was determined that movant should work for both the City and the State in an undercover operation targeting those involved in illegal drug distribution. This arrangement was put into operation and, according to movant, he provided information on a bi-weekly basis to the "gang intelligence unit" of NYCDOCS. The proposed claim lists a number of situations in which, it is alleged, movant's information was of significant benefit to correction officials.
Movant alleges that he reached agreement with both State and local officials whereby he was to plead guilty to the charges against him and would receive a sentence of time served and be restored to parole status. This agreement is alleged to have been reached on July 20, 2001 (proposed claim, ¶22). Thereafter, on August 10, 2001, Commissioner Robert Dennison, of the Division of Parole, increased movant's eight month sentence to a sentence of 36 months. Movant alleges that this increase was made without authorization and without following the Division's own rules and guidelines and was arbitrary and capricious. Movant states that he did not learn of the increased sentence for several weeks, until he was informed in a letter from his wife that there had been a "double cross." The sentence was appealed and, in what he maintains is another violation of governing rules, the outcome of the appeal was not transmitted to movant until approximately eleven months later. This delay, movant alleges, was a "deliberate stalling tactic, to hamper movant's efforts at getting into state supreme court, which could not be done until he had exhausted his appeal" (id., ¶30). The proposed claim sets forth a number of causes of action, including violations of constitutional rights, violation of procedural rights, and breach of a "mutual interest contract."
In determining a motion for permission to file a late claim, 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 the State had notice of the essential facts constituting the claim; 3) whether the State 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 the State; and 6) whether the movant has another available remedy. The Court in the exercise of its discretion balances these factors; the presence or absence of any one factor is not dispositive (Bay Terrace Coop. Section IV v New York State Employees' Retirement Sys. Policemen's and Firemen's Retirement Sys., 55 NY2d 979 [1982]).

Without conceding that any of the other factors weigh in favor of granting the requested relief, counsel for defendant contends that the proposed claim lacks apparent merit because it does not state a cause of action for which relief can be granted in this Court. In order to permit a proposed claim to be late filed, it must be established that it is not patently groundless, frivolous, or legally defective and that there is reasonable cause to believe that a valid cause of action exists (Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1 [Ct Cl 1977]). Permitting a defective claim to be filed, even if the other factors in Court of Claims Act §10(6) supported the granting of movant's motion, would be meaningless and futile (Prusack v State of New York, 117 AD2d 729 [2d Dept 1986]; Rosenhack v State of New York, 112 Misc 2d 967 [Ct Cl 1982]). Where an action is clearly barred or beyond the court's jurisdiction, it has been held that there is no discretion for the court to permit late filing, and reversible error if it does so (Yonkers Contracting Co. v State of New York, 74 NY2d 682 [1989]; Berger v State of New York, 171 AD2d 713 [2d Dept 1991]).
The gravamen of the proposed claim is that an official within the Division of Parole failed to honor an "agreement" that would have required him to order movant's immediate release but an increased sentence was imposed upon claimant. It is axiomatic that a dispute falls outside the jurisdiction of the Court of Claims and must be resolved by way of an Article 78 proceeding where the relief sought is strictly equitable in nature or where an award of money damages is "incidental" to such equitable relief.[1] In Safety Group No. 194 v State of New York (2001 WL 939747 [Ct Cl 2001], affd 298 AD2d 785 [3d Dept 2002), Judge Richard E. Sise proposed two tests, or standards, to apply to identify situations in which such monetary relief is "incidental" to the Article 78 proceeding:
  1. where the monetary award is an automatic consequence of the equitable relief afforded by an Article 78 proceeding (i.e., where "a natural or automatic result of a favorable determination on the issues would be reimbursement, restitution or payment of the sums in question, without the necessity of a separate judicial order or direction"); and
  1. where in order to determine if a claimant is entitled to money damages the court must engage in the type of analysis appropriate to an Article 78 proceeding (i.e., deciding whether a State official's decision was made in accordance with lawful authority, was arbitrary and capricious, and/or was supported by substantial evidence [CPLR 7803]).
Movant's characterization of his proposed claim as one sounding in "contract" does not and cannot decide the matter. "Whether the instant action constitutes one for money damages [or damages that are merely incidental to an equitable determination] is not determined by how claimant characterizes it in his pleadings, but on the actual issues presented (Sidoti v State of New York, 115 AD2d 202, 203 [3d Dept 1985], citing to Schaffer v Evans, 86 AD2d 708, 709 [3d Dept 1982], affd 57 NY2d 992)" (id).
What must be considered in the instant proposed claim is the type of analysis that must be employed to decide if movant's extended sentence was lawfully imposed. In order to make such a determination, the Court would be required to review the events leading up to Commissioner Dennison's decision to increase movant's sentence for parole violation rather than to honor the purported "contract" to release him immediately so that he could participate in the proposed undercover operation. Such a review cannot be conducted without engaging in the type of analysis appropriate only in an Article 78 proceeding: deciding whether the decision was made in accordance with lawful authority, was arbitrary and capricious, and/or was supported by substantial evidence.
Focusing on the nature of the alleged wrongdoing also points out an even more fundamental defect in the proposed cause of action. Decisions of the Commissioners of the Division of Parole are discretionary and prisoners have no right to such release prior to the expiration of their sentences and thus any perceived error is properly addressed in either an administrative review of the Commissioner's determination or by way of an Article 78 proceeding (People ex rel. Quartararo v Demskie, 238 AD2d 792, 793 [3d Dept 1997], lv denied 90 NY2d 802). Because the Court of Claims does not have jurisdiction except when the State has waived its sovereign immunity (NY Const Art 3, §19; Court of Claims Act §8) and when the State has not waived its immunity with respect to discretionary, quasi-judicial determinations of its officials (Arteaga v State of New York, 72 NY2d 212, 216 [1988] and cases cited therein; Tango v Tulevech, 61 NY2d 34 [1983]), the cause of action asserted by movant lies outside the jurisdiction of this Court.
Inasmuch as it would be an abuse of discretion to permit the proposed claim to be filed, movant's motion is denied.

December 19, 2003
Albany, New York

Judge of the Court of Claims

The following papers were read on movant's motion for permission to file an untimely claim
1. Notice of Motion and Supporting Affidavit of Anthony Scales, pro se, with annexed Exhibits

2. Affirmation in Opposition of Saul Aronson

3. Responding Affidavit (captioned "Traverse") of Anthony Scales, pro se

Filed papers: None

In contrast, the Court of Claims has jurisdiction to entertain actions based on tort or contract, in many situations where the cause of action is created by statute, and where a constitutional provision or statute gives rise to a private right of action (id).