New York State Court of Claims

New York State Court of Claims

JACKSON v. THE STATE OF NEW YORK, #2005-016-020, Claim No. 100653, Motion Nos. M-69231, CM-69627


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):
Alan C. Marin
Claimant’s attorney:
S. Tito Sinha, Esq.
Defendant’s attorney:
Eliot Spitzer, Attorney GeneralBy: Gwendolyn Hatcher, Esq., AAG
Third-party defendant’s attorney:

Signature date:
March 3, 2005
New York

Official citation:

Appellate results:

See also (multicaptioned case)


In his underlying claim, Mark Jackson seeks monetary damages for unlawful detention following his return to custody after he allegedly violated conditions of his parole. This is Mr. Jackson’s motion for an order directing summary judgment in his favor and granting him $1,500.00 per day for “no less than 55 days” (along with attorneys’ fees and costs), or in the alternative, granting him summary judgment on liability and an immediate trial for damages. Defendant cross-moves for an order dismissing the claim pursuant to CPLR §§3211 and 3212.

The claim alleges as follows: On October 3, 1998 at 9:00 p.m., Jackson, who had previously been released to parole supervision, was “falsely arrested in an arbitrary narcotics sweep” by the New York City Police Department as he was leaving his mother’s house after dropping off his 3-year-old son. He was held in the custody of the New York City Police Department until October 4th at 12:00 p.m., when he was released without any criminal charges having been lodged against him. Claim, ¶¶5, 6 and 11.

At his next scheduled appointment with his parole officer, on October 6, 1998, claimant reported what had happened and on November 3, 1998, the parole officer executed a warrant for his arrest, on the basis that he had violated his 10:00 p.m. curfew on October 3rd. He was arrested on November 3rd and remanded to the custody of the New York City Department of Corrections on Rikers Island. Claim, ¶¶20-22.

A final parole revocation hearing was scheduled for December 14, 1998, but rather than proceed to that hearing, claimant entered into a “written agreement” on December 4, 1998, pursuant to which he agreed to enroll in a High Impact Incarceration Program (“HIIP”). Claim, ¶¶22 and 23.

The “agreement” is annexed to claimant’s moving papers as exhibit C. Paragraphs 6 and 7 thereof state in relevant part that:
I understand that if I fail to complete the program . . . my [parole revocation] Hearing will be held on the adjourned date that I have just requested . . . .

I understand that if I enter and successfully complete the HIIP PROGRAM, I will be restored to [parole] supervision, subject to a new special condition of release requiring me to complete any aftercare treatment program that I am assigned to by HIIP staff or the Division of Parole.

Claimant successfully completed the HIIP program on February 9, 1999 and was issued a certificate of completion, but rather than releasing him, the New York State Division of Parole kept him in custody (of the City Department of Corrections) until two days later, on February 11, 1999, when a final parole revocation hearing was held. At the hearing, claimant, who was not represented by counsel, “was effectively compelled to plead guilty to the curfew violation.” While the administrative law judge presiding at the hearing made a “revoke and restore” recommendation, i.e. recommending that claimant be released to parole supervision, the Division of Parole instead remanded claimant to the custody of the New York State Department of Correctional Services and he was transferred to Ulster Correctional Facility in Napanoch. Claim, ¶¶25-29.

On March 13, 1999, claimant petitioned the Supreme Court, Bronx County, for a writ of habeas corpus. On April 5, 1999, the Division of Parole, through its Chief Administrative Law Judge, “effectively affirmed the February 11, 1999 finding of the administrative law judge that Claimant should have been released,” and he was then released on April 7, 1999, although the Supreme Court had not yet ruled on his habeas corpus petition. Claim, ¶¶30-32.
* * *
In a June 11, 1999 decision, the Hon. Peggy Bernheim converted claimant’s habeas corpus petition into an Article 78 proceeding, as he had already been released to parole supervision. A copy of Judge Bernheim’s decision is annexed to claimant’s moving papers as exhibit G. The claims before her in such proceeding were that there had been: (1) a “violation of right to counsel”; (2) a “violation of 14 day notice requirement”; (3) a “violation of 90 day hearing requirement”; (4) a “denial of due process for failure to abide by a contract agreement”; and (5) a “failure to notify petitioner of final determination.” Judge Bernheim dismissed the first three claims and did not reach the fifth one. As to the fourth claim, she ruled in favor of claimant, stating that:
. . . the Division of Parole had entered into and permitted a program disposition. Petitioner has met all terms of his side of the bargain. It was only after the petitioner’s successful completion of the HIIP program (see Certificate of Completion, dated February 9, 1999) that the Division, through the same Parole Officer who witnessed petitioner’s signature on the Application to HIIP, notified him of the new final hearing date.

The ALJ at the hearing, in reliance upon the recommendations of the parole representative, made a revoke and restore recommendation, apparently consistent with the accord of the December 4 HIIP application (see provision 7). Although the same record clearly advises the petitioner that the Parole Board could choose not to follow the recommendation, the Division has not shown why any modification, much less two modifications, was proper in light of the agreement of December 4, between the Division and petitioner.

Accordingly, the Court finds that the petitioner has established that a failure of due process occurred in this instance. The second review of the ALJ’s ruling by the Acting Chief ALJ . . . effectively affirmed the February 11 . . . finding terminating the hold, but the Division’s [actions] throughout equally effectively served to impose a “sentence” of at least 153 days (11/3 to 4/5) of jail time upon petitioner for a guilty plea to a curfew violation, when petitioner should have served less than 100 days (11/3 to 2/9).

. . .

Accordingly, the petition is sustained, the warrant is dismissed and the petitioner is restored to the same parole status he enjoyed prior to the incident of October 3, 1998.

* * *

Judge Bernheim thus effectively found that claimant should have been released following his completion of the HIIP program on February 9, 1999 and it is apparently his time in custody thereafter for which he now seeks monetary damages in this Court.[1]
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In Semkus v State of New York, 272 AD2d 74, 75, 708 NYS2d 288, 289 (1st Dept 2000), lv denied 95 NY2d 761, 714 NYS2d 711 (2000), the First Department affirmed the dismissal of a claim in which monetary damages were sought in the Court of Claims after the Division of Parole improperly classified claimant as a “category 2" violator and revoked his parole, stating that:
[s]ince claimant seeks damages attributable to the State’s decision to revoke his parole, his claim is barred (Tarter v State of New York, 68 NY 2d 511). This conclusion is not altered by the circumstance that the decision of the Parole Board revoking claimant’s parole was eventually determined to have been in error, since the action of the Parole Board was not thereby deprived of its quasi-judicial character . . .”

See also the following cases:
The claim must be dismissed for the simple reason that “[d]eterminations pertaining to parole and its revocation . . . are deemed strictly sovereign and quasi-judicial in nature and, accordingly, the State, in making such determinations, is absolutely immune from tort liability (Lublin v State of New York, 135 Misc 2d 419, 420, affd 135 AD2d 1155, lv denied 71 NY2d 802)” Semkus v State of New York, 272 AD2d 74, 75, lv denied 95 NY2d 761) . . . It is clear from a reading of the claim herein the claimant seeks to impose liability upon the State based upon the Board of Parole’s allegedly wrongful or improper revocation of his parole. Such a claim is barred by the doctrine of absolute immunity (Tarter v State of New York, 68 NY2d 511) notwithstanding the fact that the Board’s decision to revoke claimant’s parole was later determined to have been in error (Semkus, supra at 74).

[i]t is well established that the decisions of the Parole Board in determining when and under what conditions to release a prisoner are “classically judicial” in nature and deserving of full immunity (Arteaga v State of New York, 72 NY2d 212 at 217, citing Tarter v State of New York, 68 NY2d 511). The decisions of the Parole Board enjoy this immunity even where the Parole Board’s decision was subsequently “determined to have been in error” (Semkus v State of New York, 272 AD2d 74).

In view of the foregoing, I find that the claim of Mark Jackson is barred by the doctrine of absolute immunity. Accordingly, having reviewed the parties’ submissions[3], IT IS ORDERED that motion no. M-69231 be denied, that cross-motion no. CM-69627 be granted, and that claim no. 100653 be dismissed.

March 3, 2005
New York, New York

Judge of the Court of Claims

  1. [1]Claimant seeks damages for “no less than 55 days.” It is unclear exactly how this was calculated. The period of time from his February 9, 1999 program completion through his April 7, 1999 release is in fact 57 days, although claimant may have started his calculation from the February 11, 1999 hearing or ended it on April 5, 1999 when the Chief Administrative Law Judge affirmed the “restore and revoke” recommendation.
  2. [2]This and other decisions of the Court of Claims may be found on the Court’s website:
  3. [3]The following were reviewed: claimant’s notice of motion with affirmation in support and exhibits A through G; defendant’s notice of cross-motion with attached affirmation and exhibits 1 through 7; claimant’s “Affirmation of Counsel in Opposition to Defendant’s Cross-Motion to Dismiss and for Summary Judgment”; and defendant’s “Reply Affirmation in Opposition to Motion for Summary Judgment and in Further Support of Motion to Dismiss and for Summary Judgment.”