The following papers were read on defendant’s motion to dismiss the claim:
Notice of Motion, Affirmation in Support and Exhibits; Affirmation in Opposition
Defendant moves to dismiss this claim on the ground that the Court lacks
jurisdiction over the matter because the State is immune from suit based on
determinations of the State Division of Parole, which are discretionary or
quasi-judicial in nature.
Claimant alleges that he was falsely arrested on June 17, 2004, and wrongfully
imprisoned until September 10, 2004, as a result of an alleged parole violation
for possession of pepper spray. Claimant further alleges that defendant is
liable for malicious prosecution, the violation of his civil rights pursuant to
42 USC § 1983, and a number of additional causes of action.
According to claimant, a favorable outcome of his parole revocation hearing
occurred on August 24, 2004, but he remained in custody until September 10,
2004. The underlying criminal allegations were eventually dismissed.
The only pertinent determination of the Parole Board involved in this claim is
that claimant had not violated the terms of his parole. The claim does not
arise out of that determination. Rather, what is at issue are the circumstances
surrounding claimant’s arrest, which he asserts was unprivileged and in
“bad faith” (see e.g. Best v State of New York, 264 AD2d
404), and that despite a favorable outcome of the August 24, 2004 proceeding, he
remained confined until September 10, 2004. Defendant’s submission
addresses neither of these allegations.
The defendant has also moved to dismiss the claim on the ground that it is
untimely. An objection to the timeliness of the service or filing of a claim
must be stated “with particularity” or it is waived. Court of
Claims Act section 11(c). The statement, in the defendant’s Answer that
the claim is untimely “in whole or in part” renders the defense
insufficiently particular. Given the several causes of action alleged in the
claim, some sounding in intentional tort and others in negligence, this language
fails to adequately articulate the defense, which is therefore not stated with
the particularity required by section 11(c), as a result of which the defense of
timeliness has been waived, so that the defendant’s motion to dismiss the
claim on that ground must be denied (see, Sinacore v State of New York,
176 Misc 2d 1; Fowles v State of New York, 152 Misc 2d 837, 840 [“A
claimant should not be left in a quandary to determine what an affirmative
defense is referring to”]).
Defendant’s motion to dismiss the claim is granted only with respect to
the 42 USC § 1983 cause of action, which “does not give rise to a
claim against the State [citations omitted]” (Zagarella v State of New
York, 149 AD2d 503), and in all other respects is denied.
A preliminary conference is hereby scheduled for June 14, 2006, at 10:00