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
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
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).
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 ; Bogel v State of New
York, 175 AD2d 493 [3d Dept 1991]). Claimant has submitted no opposition to
Defendant's motion is granted, and Claim No. 103545 is dismissed.