New York State Court of Claims

New York State Court of Claims

Di ROSE v. THE STATE OF NEW YORK, #2004-015-410, Claim No. NONE, Motion No. M-68266


Late claim application denied where movant sought judicial review of Parole Board's determination of ineligibility for parole and denial of administrative appeal of such ineligibility.

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:
Ricardo A. Di Rose
Defendant's attorney:
Honorable Eliot Spitzer, Attorney General
By: Saul Aronson, EsquireAssistant Attorney General
Third-party defendant's attorney:

Signature date:
June 24, 2004
Saratoga Springs

Official citation:

Appellate results:

See also (multicaptioned case)


Movant's application for late claim relief is denied and his request for assignment of counsel is denied as moot. The proposed claim seeks to recover $25,810.00 plus future medical and court costs stemming from movant's continued confinement by the Department of Correctional Services (DOCS) following a denial of parole in January 2002. The proposed claim asserts six causes of action including ministerial negligence and alleged statutory and constitutional violations all of which are traceable to either the Parole Board's initial denial of parole or to an alleged untimely determination of movant's administrative appeal.

Subdivision 6 of section 10 of the Court of Claims Act permits this Court, if the applicable Statute of Limitations set forth in article 2 of the CPLR has not expired, to allow the filing of a late claim upon consideration of the following factors: "whether the delay in filing the claim was excusable; whether the state had notice of the essential facts constituting the claim; whether the state had an opportunity to investigate the circumstances underlying the claim; whether the claim appears to be meritorious; whether the failure to file or serve upon the attorney general a timely claim or to serve upon the attorney general a notice of intention resulted in substantial prejudice to the state; and, whether the claimant has any other available remedy".

The first issue for determination upon a late claim motion is whether the application is timely. Since the proposed claim seeks to assert causes of action sounding in ministerial neglect and constitutional tort the three year Statute of Limitations set forth in CPLR § 214(4) applies (Brown v State of New York, 250 AD2d 314, 318; Johnson v State of New York, 131 Misc 2d 630). The motion is therefore timely.

Turning to the statutory factors, this Court has broad discretion in deciding a motion to permit the late filing of a claim (Ledet v State of New York, 207 AD2d 965), and the statutory factors are not exhaustive or one factor controlling (Matter of Gavigan v State of New York, 176 AD2d 1117). The most important factor is whether the potential claim has merit, as it would be a futile exercise to permit litigation of a clearly baseless lawsuit (Savino v State of New York, 199 AD2d 254).

The excuses advanced for the failure to timely serve and file a claim are movant's alleged difficulties in accessing legal materials due to physical illness and disability and the unavailability of persons knowledgeable in Court of Claims practice to assist in the preparation of the claim. The latter excuse is the equivalent of ignorance of the law which is not an acceptable excuse (Griffin v John Jay College, 266 AD2d 16). "Similarly, conclusory allegations that one is incarcerated and without access to legal references have also been rejected as a reasonable explanation (see, e.g., Matter of Thomas v State of New York, 272 AD2d 650, 651; Matter of Sevilla v State of New York, 145 AD2d 865, 866, lv denied 74 NY2d 601)" (Matter of Sandlin v State of New York, 294 AD2d 723, 724). In Duffy v State of New York (264 AD2d 911, 912), the Appellate Division, Third Department rejected a movant's excuse that he had been hospitalized and bedridden where notwithstanding his alleged infirmities he had managed to timely file a notice of intention (see discussion below). Although the instant movant may have encountered some difficulty in obtaining access to legal materials due to his alleged disability his real excuse seems to be time spent in contemplation of the most appropriate course of legal action. The excuses proffered are determined to be unreasonable and this factor weighs against granting the motion.

The intertwined issues of notice, opportunity to investigate and prejudice to the State will be considered together. Movant alleges that a notice of intention to file a claim served upon the Attorney General's Office by certified mail, return receipt requested on September 10, 2002 afforded the State ample notice and an opportunity to investigate the underlying facts thereby obviating any prejudice stemming from the delay in filing a claim. However, an examination of the notice of intention (Exhibit D) reveals that the notice merely seeks "to recover costs, fee's and expenses necessary to prosecute and Administrative Challenge by way of an Article 78 Proceeding" [sic]. The notice of intention cannot therefore be said to have placed the State on notice relative to a potential action for money damages stemming from claimant's alleged wrongful confinement following denial of his application for parole. The notice of intention attached to the motion as Exhibit D would not have triggered an investigation of the facts underlying the proposed claim and does not negate the prejudice to the State arising from the delay in filing the proposed claim. These factors weigh against granting the motion.

The most important of the statutory factors is the potential merit of the proposed claim (Savino v State of New York, 199 AD2d 254, supra). Movant alleges in the proposed claim that (i) as a result of the Parole Board's actions he was confined by DOCS for a period in excess of that permitted by parole guidelines; (ii) that his administrative appeal from the Board's January 16, 2002 denial of parole was perfected within the time allowed but the appeal was not timely decided within four months; (iii) the Division of Parole Appeals Unit's November 1, 2002 decision (Exhibit G attached to the proposed claim) which affirmed the denial of his discretionary release and the imposition of a 24 month hold was "meaningless"; and (iv) movant's subsequent hearing on January 28, 2004 before three different parole commissioners who recommended his release on or before March 10, 2004 demonstrates that the Board's January 16, 2002 denial of parole was erroneous. As a result of the above movant contends that he was unlawfully confined for 24 months without just or reasonable cause. He seeks compensation for 730 days of confinement at $13.00 per day, $16, 320.00 in alleged lost wages for 104 weeks and unspecified damages for future medical and court costs.

It is well settled that the Parole Board's determination of whether and under what conditions an inmate may be released on parole is classically judicial in nature and entitled to complete immunity (Tarter v State of New York, 68 NY2d 511; see also, Arteaga v State of New York, 72 NY2d 212). Immunity applies to the granting or denial of parole even when the Board allegedly failed to consider applicable Division of Parole guidelines (see, Tarter v State of New York, supra) or when the Board's decision is eventually determined to have been in error (Semkus v State of New York, 272 AD2d 74 appeal denied 95 NY2d 761).

Movant acknowledged in both his affidavit in support of the motion and in his proposed claim that he was aware of his right to challenge the parole board's determination by way of an article 78 proceeding but elected not to do so since his chance of success in such a proceeding was "infintessimal" [sic] and the relief afforded was merely a rehearing.

It has long been held that the provisions of statutes such as CPLR articles 78 (Proceeding against body or officer) and 70 (habeas corpus) which vest jurisdiction over review of administrative agency determinations in the supreme court must be followed (see, Lublin v State of New York, 135 Misc 2d 419, 420; affirmed 135 AD2d 1155, motion for leave to appeal denied 71 NY2d 802). "[C]ollateral review may not be sought under the guise of a claim for money damages" (Lublin v State of New York, supra at 420). As a result, the Court is precluded from authorizing the service and filing of the proposed claim since it lacks subject matter jurisdiction to review the legality or appropriateness of the Board's determination.

It is settled that the failure of the Board's Appeals Unit to decide an administrative appeal within four months does not constitute a denial of due process (People ex rel Sanchez v Herbert, 2 AD3d 1352) or render the decision constitutionally defective (Matter of Lord v State of New York Exec. Dept. Bd./Div., 263 AD2d 945, 946). Furthermore, "Petitioner's administrative remedy was deemed exhausted when the Appeals Unit failed to rule on his appeal within four months, permitting immediate judicial review of the Board's determination (see, 9 NYCRR 8006.4 [c])" (Matter of Graham v New York State Division of Parole, 269 AD2d 628, 629). These decisions demonstrate that movant's constitutional tort claims stemming either from the Board's initial denial of parole or the Appeals Unit's alleged delay are meritless.

As to the last factor it does not appear at this late date that movant has another available remedy.

Consideration of all of the above listed factors, particularly the lack of potential merit, requires denial of claimant's late claim application. Claimant's request for the assignment of an attorney in this matter is denied as moot.

June 24, 2004
Saratoga Springs, New York

Judge of the Court of Claims

The Court considered the following papers:
  1. Notice of motion dated March 11, 2004;
  2. Affidavit of Ricardo A. Di Rose sworn to March 15, 2004 with exhibits;
  3. Affirmation of Saul Aronson dated April 19, 2004.