New York State Court of Claims

New York State Court of Claims

SAFRAN v. STATE OF NEW YORK, #2006-015-127, Claim No. 112358, Motion No. M-71895


Article 78 relief in the Supreme Court was the appropriate relief for the alleged failure of the Division of Parole to render a decision on the claimant's administrative appeal within the requisite time period. Court of Claims was without jurisdiction.

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:
David J. Safran, Pro Se
Defendant’s attorney:
Honorable Eliot Spitzer, Attorney General
By: Michael C. Rizzo, EsquireAssistant Attorney General
Third-party defendant’s attorney:

Signature date:
September 25, 2006
Saratoga Springs

Official citation:

Appellate results:

See also (multicaptioned case)


Defendant's motion to dismiss the claim for lack of jurisdiction is granted. Although the claim facially seeks $20,000,000 in damages based upon various alleged violations of law (Uniform Commercial Code [UCC 3-401 (1)], Correction Law 601 [a], Executive Law 259 [10] [11] [12] [13], Penal Law § 170.10 [2], Executive Law 8004 [2] [a] [b] [sic], USCA [1] [4] [5] [6] [8] [14] sic, and New York State Constitution Article 1 sections 2 and 6) the claim is in fact premised upon the alleged failure of the Division of Parole (the Division) to act upon the claimant's administrative appeal within four months of the appeal's final submission pursuant to 9 NYCRR 8006.4. The claim, alleging an accrual date of April 14, 2006, was filed on May 19, 2006. The instant pre-answer motion seeks dismissal of the claim.

"An appeal may be taken from a final determination of the Board of Parole regarding a minimum period of imprisonment, parole release, parole recission or final revocation proceeding" (9 NYCRR 8006.1 [a]). The instant claim does not specify the grounds of the administrative appeal or the date on which the appeal was perfected. The claim merely informs the reader that the Division failed to decide the appeal within the time limits established by the Division's regulations. Determination of administrative appeals is governed by 9 NYCRR 8006.4 which in relevant part provides:
(c) Should the appeals unit fail to issue its findings and recommendation within four months of the date that the perfected appeal was received, the appellant may deem this administrative remedy to have been exhausted, and thereupon seek judicial review of the underlying determination from which the appeal was taken. In that circumstance, the division will not raise the doctrine of exhaustion of administrative remedy as a defense to such litigation.

The judicial review referenced in the above-quoted regulation is obtained by way of an article 78 proceeding in Supreme Court (see, CPLR 7804 (b); Matter of Miller v Board of Parole, 278 AD2d 697) and cannot be had in the Court of Claims (see Madura v State of New York 12 AD3d 759). Determinations pertaining to parole are sovereign and quasi-judicial in nature and collateral review cannot be obtained under the guise of a claim for money damages (see Lublin v State of New York, 135 Misc 2d 419, 420 affirmed 135 AD2d 1155, lv denied 71 NY2d 802; Brown v New York State Board of Parole, Ct Cl, December 20, 2002 [Claim No. 106427, Motion Nos. M-65765, M-65827] Sise, J. unreported[1]).

Accordingly, the defendant's pre-answer motion to dismiss the claim is granted.

September 25, 2006
Saratoga Springs, New York

Judge of the Court of Claims

The Court considered the following papers:
  1. Notice of motion dated June 19, 2006;
  2. Affidavit of Michael C. Rizzo sworn to June 19, 2006 with exhibit;
  3. Motion to dismiss Defendant's Motion dated June 25, 2006.

[1].Unreported decisions from the Court of Claims are available via the internet at