New York State Court of Claims

New York State Court of Claims

FRANK v. THE STATE OF NEW YORK, #2003-032-122, Claim No. 107172, Motion No. M-67314


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 Frank, Pro Se
Defendant's attorney:
Hon. Eliot Spitzer, Esq., NYS Attorney General
By: Michael C. Rizzo, Esq., Assistant Attorney General,Of Counsel
Third-party defendant's attorney:

Signature date:
December 22, 2003

Official citation:

Appellate results:

See also (multicaptioned case)


In this action, claimant seeks monetary compensation for the period of time that, he alleges, he was wrongfully confined to Gowanda Correctional Facility as a result of an incorrect computation of the length of his prison sentence. Counsel for defendant has moved for summary judgment dismissing the claim on three grounds: 1) that the claim is not verified, in violation of the requirement of section 11(b) of the Court of Claims Act, 2) that the claim does not state a date of accrual, in violation of the same statute, and 3) that claimant's credit for time spent in a local jail was accurately calculated and thus he was not required to be incarcerated in excess of his lawfully imposed sentence.


At the time that it was raised by defendant, the defense based on lack of verification would have been determinative (see, Price v State of New York, 2003 WL 21669922 [Ct Cl 2003]). Recently, however, the Court of Appeals laid to rest the argument that failure to comply with the verification requirement contained in section 11(b) of the Court of Claims Act is a fatal jurisdictional defense that may not be waived by the State. In Lepkowski v State of New York (__ NY2d __ [Dec 18, 2003]), the high court ruled that the provisions of CPLR 3022 apply to the verification requirement contained in the Court of Claims Act in the same manner that they do to the requirement of verification in other statutes. Because there is no proof that the State responded to claimant's failure to verify his claim by rejecting it as a nullity with "due diligence," this defense has been waived.

Failure to State Date of Accrual

Although the claim does not specifically identify a specific date as the "date of accural," claimant alleged in paragraph 2 of his claim that he was "held past his conditional release date and maximum expiration date on his sentence, on the 10th day of June 2002, until the 5th day of November, 2002." The claim was filed and served within ninety days of November 5, 2002, and it is noteworthy that defendant has not moved for dismissal on the ground of untimeliness, although that defense had been raised in its answer. A plain reading of the claim indicates that it asserts a cause of action for wrongful confinement that arose on November 5, 2002.

Calculation of Release Date

The claim sets forth a number of dates and events as relevant to claimant's allegations that he was held in custody beyond his maximum release date. On August 9, 2001, claimant, who was then on parole status, was arrested on a parole warrant and held in custody at the Onondaga County Justice Center. While in such custody, criminal charges alleging forgery and criminal impersonation were filed against him, and it was also determined that, under another name, he had been charged with driving while intoxicated in July 2001. Claimant received his final revocation hearing on September 6, 2001, at which time it was determined that he should serve until the maximum expiration of his sentence, which would be reached in one year, two months and ten days (see, claim, Exhibit 1-A [Parole Revocation Decision Notice]). A conditional release date would be reached within ten months (id). By claimant's calculations, this would have made his maximum expiration date October 19, 2002 and his conditional release date

May 25, 2002. Claimant contends that the date on which he was ultimately released, November 5, 2002, was seventeen days beyond his maximum expiration date and five months, two days beyond his conditional release date.

In support of its motion for summary judgment, defendant State of New York has submitted the affidavit of Patricia O'Malley, Assistant Counsel for the Division of Parole. In this affidavit, she describes a number of documents annexed as Exhibits. It appears undisputed that claimant was entitled to 29 days parole jail time, covering the period from August 9 to August 12, 2001 (when he was arrested on the forgery and impersonation charges) and from May 16 to June 9, 2002, after he purportedly concluded serving a local sentence and before he was returned to State custody. At issue, however, is whether claimant was also entitled to credit for the 276 days from August 12, 2001 to May 15, 2002, when he remained at the County facility.

Ms. O'Malley contends that this time was spent serving a nine month local sentence for the charge of driving while intoxicated which arose from a July 21, 2001 arrest of claimant under a different name (O'Malley affidavit, ¶ 9, Exhibit I). Claimant contends that he was held in the local facility during that time period in connection with the forgery and false impersonation charges, charges that were ultimately dismissed (Frank Affidavit, ¶6).

The parties agree that the relevant law is contained in Penal Law §70.40(3)(c), which reads as follows:
Any time spent by a person in custody from the time of delinquency to the time service of the sentence resumes shall be credited against the term or maximum term of the interrupted sentence, provided:
(i) that such custody was due to an arrest or surrender based upon the delinquency; or

(ii) that such custody arose from an arrest on another charge which culminated in a dismissal or an acquittal; or

(iii) that such custody arose from an arrest on another charge which culminated in a conviction, but in such case, if a sentence of imprisonment was imposed, the credit allowed shall be limited to the portion of the time spent in custody that exceeds the period, term or maximum term of imprisonment imposed for such conviction.

In essence, claimant contends that he is entitled to credit for the 276 days pursuant to subdivision (ii), because the forgery and impersonation charges against him were dismissed. Defendant's position is that subdivision (iii) applies, and that claimant is therefore entitled to credit only for those days that were in excess of the term of imprisonment imposed in connection with the DWI conviction.

Summary judgment is an extraordinary remedy that should not be granted "where there is any possible doubt as to the existence of a triable or arguable issue" (Dykstra v Windridge Condominium One, 175 AD2d 482, 483 [3d Dept 1991]). In the instant case, some doubt remains.

Included in the documents submitted by defendant are a Parole Jail Time Certificate, dated June 11, 2002, indicating claimant's entitlement to 29 days jail time (O'Malley affidavit, Exhibit J). But there is also a subsequent Parole Jail Time Certificate, dated October 31, 2002 that states claimant was entitled to 300 days jail time credit for the period in question (id, Exhibit K). Although Ms O'Malley states that the later certification was "an error" (id, ¶7), there is no documentation to that effect and no reasonable basis for the Court to reject the most recent authoritive statement from the Division of Parole's own records. In addition, another document is a certification from the Onondaga County Sheriff's Office, dated November 8, 2002, which indicates that claimant was in custody from August 13, 2001 to May 15, 2002 in connection with the DWI charge but adds a statement that that sentence was "concurrent with parole" (id, Exhibit L). The Court has not been given any explanation as to what that wording might mean or the effect when a local sentence is concurrent, rather than consecutive to, time served on parole violation.

Defendant has failed to establish that it is entitled to summary judgment dismissing the claim and, consequently, this motion is denied.

December 22, 2003
Albany, New York
Judge of the Court of Claims

The following papers were read on defendant's motion for summary judgment dismissing the claim:

1. Notice of Motion and Supporting Affirmation of Michael C. Rizzo, Esq., AAG, with annexed Exhibits

2. Affidavit in Opposition of Robert Frank, pro se, with annexed Exhibit

Filed papers: Claim; Answer