New York State Court of Claims

New York State Court of Claims

DECAPUA v. THE STATE OF NEW YORK, #2004-034-594, Claim No. 109409, Motion No. M-68688


Defendant's motion to dismiss is granted. The claim is untimely and the Court lacks subject matter jurisdiction. The date of accrual for matters involving a parole revocation is the date the agency determination is final and the petitioner is aggrieved by that determination. Moreover, the State is entitled to absolute immunity for quasi-judicial function of parole board.

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:
Defendant's attorney:
New York State Attorney General
BY: MICHAEL C. RIZZO, ESQ.Assistant Attorney General
Third-party defendant's attorney:

Signature date:
November 3, 2004

Official citation:

Appellate results:

See also (multicaptioned case)


Defendant has filed this motion to dismiss the claim as untimely and for lack of subject matter jurisdiction. The Court will grant the motion and dismiss the Claim.

The Court has considered the following papers in connection with this motion:

1. Claim, verified May 20, 2004, filed May 27, 2004;

2. Notice of Motion, dated June 21, 2004, filed June 23, 2004;

3. Affidavit in Support of Motion to Dismiss of Michael C. Rizzo, sworn to June 21, 2004, with attached exhibit;

4. Affidavit in Opposition of Steven DeCapua, dated June 29, 2004, filed July 1, 2004;

5. Letter of Steven DeCapua, dated September 20, 2004, with attachments.

Claimant filed this action to recover monetary damages for the alleged wrongful revocation of his parole based upon three unexcused absences from a mandatory counseling program, and for negligent infliction of emotional distress for not being granted permission to attend his mother's out-of-state funeral in September of 2002. Although he pled guilty at the parole revocation hearing, Claimant has sought recovery based upon what he contends was the hearing officer's improper refusal to credit his explanation for the absences. The parole revocation was subsequently affirmed upon administrative appeal on October 6, 2003. Mr. DeCapua thereafter challenged that determination in a CPLR Article 78 proceeding commenced in Supreme Court, Erie County, by a petition sworn to December 20, 2003, and filed January 20, 2004. That proceeding remains pending.

The claim herein was filed on May 27, 2004, and Defendant brought this pre-joinder motion to dismiss as untimely and for lack of subject matter jurisdiction. Each ground supports dismissal of the claim.

Court of Claims Act § 10 (3) requires that a claim be filed and served within 90 days of accrual. That requirement is to be strictly construed, and the failure to comply with that section is a jurisdictional defect which compels dismissal (Alston v State of New York, 97 NY2d 159 [2001]). In measuring accrual for the parole revocation claim the Court notes that "[a]n agency determination is final - - triggering the statute of limitations - - when the petitioner is aggrieved by the determination." (Carter v State of New York, 95 NY2d 267, 270 [2000] citing Matter of Biondo v New York State Bd. of Parole, 60 NY2d 832, 834 [1983]). Mr. DeCapua has not challenged the date of accrual urged by the State, October 6, 2003, when the parole determination was affirmed. Since the claim was not filed until May of 2004, more than 90 days after accrual, that cause of action must be dismissed as untimely. Likewise, to the extent a claim for negligent infliction of emotional distress could be maintained under the allegations presented (compare Jensen v Whitford Co., Inc., 167 AD2d 826 [1990] [absent a physical injury, plaintiff must establish a breach of duty owed directly to plaintiff which endangered his physical safety or caused him to fear for his safety]) that cause of action would be time-barred, as more than 90 days elapsed between the date of the funeral and the filing of the claim.

Moreover, this Court lacks jurisdiction to hear a challenge to the parole determination. The Court of Claims is a court of limited jurisdiction and may only ". . . render judgment in favor of the claimant or the state for such sum as should be paid by or to the state." (Court of Claims Act § 9 [4]). This Court cannot grant strictly equitable relief, but only where such grant is incidental to the award of damages (see generally Psaty v Duryea, 306 NY 413 [1954]; Ozanam Hall of Queens Nursing Home v State of New York, 241 AD2d 670 [1997]). "Whether the essential nature of the claim is to recover money, or whether the monetary relief is incidental to the primary claim, is dependent upon the facts and issues presented in a particular case." (Gross v Perales, 72 NY2d 231, 236 [1988]). Here, in order to award monetary damages the Court would first be required to review the determination of the New York State Board of Parole. Any award of damages would be incidental to a finding that the Board of Parole acted improperly (see Gross, 72 NY2d at 231). Thus the relief sought is primarily equitable, and beyond the jurisdiction of this Court.

Lastly, no action for damages would lie for the discretionary determination of the Board of Parole, which is entitled to absolute immunity in its quasi-judicial function (Tarter v State of New York, 68 NY2d 511, 519 [1986]).

Based upon the above, it is hereby

ORDERED, that the claim is dismissed. The Clerk of the Court is directed to close the file.

November 3, 2004
Buffalo, New York

Judge of the Court of Claims