New York State Court of Claims

New York State Court of Claims

MILEY v. THE STATE OF NEW YORK, #2003-032-124, Claim No. 103545, Motion No. M-67065


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:
Kassiem Miley, Pro Se
Defendant's attorney:
Hon. Eliot Spitzer, Esq., NYS Attorney General
By: Paul F. Cagino, Esq., Assistant Attorney General,Of Counsel
Third-party defendant's attorney:

Signature date:
December 23, 2003

Official citation:

Appellate results:

See also (multicaptioned case)


By this action, claimant Kassiem Miley seeks to recover monetary damages for alleged interference with his right to a timely hearing following issuance of parole warrants against him. According to the claim, claimant was released from prison on parole supervision on April 10, 1997. Subsequently, on a date not set forth in the claim, he was declared delinquent and a parole warrant was issued. In September 1997, he was arrested in Virginia on unrelated criminal charges, and the parole warrant was then lodged as a detainer with Virginia authorities. The criminal charges were dismissed on September 24, and claimant was then held solely on the parole warrant. Claimant waived extradition and, it is alleged, the New York State Division of Parole was informed of this fact on September 24, 1997. He was not, however, returned to New York, nor was he released from the Virginia jail until April 24, 1999, after he successfully sought a writ of habeas corpus in Federal court. On June 10, 2000, claimant was arrested on the parole warrant in North Carolina. He again waived extradition and was returned to New York on

July 5, 2000. He received a preliminary revocation hearing on July 20. Claimant asserts that on both occasions he was entitled to notice of a hearing on his parole violation within five days, pursuant to Executive Law §259-i(3)(c)(ii).[1]

In the claim, claimant alleged that his cause of action accrued on September 29, 2000, the date of his eventual release from custody, asserting that the "complained of conduct" began on April 10, 1997 and continued until the date of his release. The claim was filed on December 18, 2000, within ninety days of the date of release. In its answer, defendant State of New York alleged in its first affirmative defense that the claim was untimely. The statement was made with sufficient particularity to comply with the requirement of section 11(c) of the Court of Claims Act. Counsel for defendant has now moved for an order dismissing the claim on the ground that it is untimely.

Assuming, arguendo, that this Court would have jurisdiction over a cause of action such as that alleged by claimant (but see, e.g., McIver v Murray, 275 AD2d 1009 [4th Dept 2000][challenge by way of a petition for habeas corpus based allegations that the Division of Parole failed to comply with statutory time requirements]; Soto v New York State Bd. of Parole,

107 AD2d 693 [2d Dept 1985][Article 78 proceeding is the appropriate forum for challenging alleged untimeliness of parole hearing in certain circumstances]), the Court would agree with defense counsel that a separate cause of action would have arisen from each failure to provide notice of a hearing within five days. Those causes of action would have accrued on the fifth day after September 24, 1997 and after June 10, 2000. As to the second cause of action, the latest possible date of accrual would have been July 20, 2000, when claimant actually received a hearing. This action, in which the claim was filed on December 18, 2000, was not commenced within ninety days of any of those dates (Court of Claims Act §10[3]).

Failure to comply with the time and manner of service requirements contained in sections 10 and 11 of the Court of Claims Act is a fatal jurisdictional defect and deprives this court of the power to hear the claim (Dreger v New York State Thruway Auth., 81 NY2d 721, 724 [1992]; Bogel v State of New York, 175 AD2d 493 [3d Dept 1991]). Claimant has submitted no opposition to the motion.

Defendant's motion is granted, and Claim No. 103545 is dismissed.

December 23, 2003
Albany, New York

Judge of the Court of Claims

The following papers were read on defendant's motion for an order of dismissal
1. Notice of Motion and Supporting Affirmation of Paul F. Cagino, Esq., AAG

2. Affirmation in Opposition (none received)

Filed papers: Claim; Answer

[1] In the current version of the statute, parolees against whom a warrant is issued are to receive notice of the hearing within three days after the warrant is issued (subd. 3[c][iii]) and the hearing shall be conducted within fifteen days (subd 3[c][i]). Where the alleged violator is in another state, the warrant is deemed to be executed when the individual is in custody solely as a result of the warrant and the Division of Parole is notified that extradition has been waived or extradition is ordered (subd 3[a][iv]).