New York State Court of Claims

New York State Court of Claims

STEWART v. NEW YORK STATE DIVISION OF PAROLE, #2006-014-508, Claim No. 111023, Motion No. M-70703


Synopsis


Defendant’s motion to dismiss the claim on the ground that it arises from discretionary determinations of the Division of Parole is denied.

Case Information

UID:
2006-014-508
Claimant(s):
GARY STEWART
1 1.The Court has amended the caption to delete a named individual over whom the Court does not have jurisdiction.
Claimant short name:
STEWART
Footnote (claimant name) :

Defendant(s):
NEW YORK STATE DIVISION OF PAROLE
Footnote (defendant name) :
The Court has amended the caption to delete a named individual over whom the Court does not have jurisdiction.
Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
111023
Motion number(s):
M-70703
Cross-motion number(s):

Judge:
S. MICHAEL NADEL
Claimant’s attorney:
Craig L. Davidowitz
Defendant’s attorney:
Eliot Spitzer, Attorney GeneralBy: Ellen Matowik, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
May 5, 2006
City:
New York
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

The following papers were read on defendant’s motion to dismiss the claim: Notice of Motion, Affirmation in Support and Exhibits; Affirmation in Opposition and Exhibits.

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 AM.


May 5, 2006
New York, New York

HON. S. MICHAEL NADEL
Judge of the Court of Claims