New York State Court of Claims

New York State Court of Claims

WELLS v. THE STATE OF NEW YORK, DIVISION OF PAROLE, #2007-016-034, Claim No. None, Motion No. M-73113


Late claim motion was denied.

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:
Carl D. Wells, Pro Se
Defendant’s attorney:
Andrew M. Cuomo, Attorney General
By: Ellen Matowik Russell, Esq., AAG and Gail Pierce-Siponen, Esq., AAG
Third-party defendant’s attorney:

Signature date:
August 15, 2007
New York

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant Carl D. Wells moves for permission to file a late claim pursuant to §10.6 of the Court of Claims Act (the “Act”). In his proposed claim[1], Mr. Wells alleges that on November 2, 2006, he was released to parole status from Mohawk Correctional Facility. He went to the shelter that had been designated in his “Certificate of Release,” but left and spent the night “outside . . . drinking and smoking coke.” The next day, claimant reported to his parole officer and “told her that he had gotten high and had problems with the shelter system . . .” According to Wells, his parole officer urged him to “stay clean and to get a job [and to] go back to the shelter and get a bed,” however he continued to drink and use drugs regularly. Claimant recalled that on December 8, 2006, he “was involved in a motor vehicle accident as he was intoxicated and passed out . . .”

A Division of Parole document (exhibit A-2 to claimant’s moving papers) indicates that on or about December 28, 2006, it was determined that a warrant would be issued for claimant’s arrest as he had been charged with violating his parole by: changing his approved residence without his parole officer’s permission; being involved in a car accident while under the influence of alcohol where he was found in possession of crack cocaine; and engaging in two December 2006 incidents in which he forced persons out of their cars, one at gunpoint.

Claimant essentially argues that the “Division of Parole was negligent for not assigning a parole officer that handles Shelter cases from the start” and that the State did not act “to assure [his] successful placement back into society.” In order to determine this motion, six factors enumerated in the Act must be considered: whether (1) defendant had notice of the essential facts constituting the claim; (2) defendant had an opportunity to investigate the circumstances underlying the claim; (3) defendant was substantially prejudiced; (4) claimant has any other available remedy; (5) the delay was excusable and (6) the claim appears to be meritorious. The factors are not necessarily exhaustive, nor is the presence or absence of any particular factor controlling.[2]

The first three factors – whether defendant had notice of the essential facts constituting the claim, had an opportunity to investigate or would be prejudiced by the granting of this motion are entwined and may be considered together. Brewer v State of New York, 176 Misc 2d 337, 342, 672 NYS2d 650, 655 (Ct Cl 1998). Claimant has failed to articulate particular alleged deficiencies in his parole supervision that would permit the State to investigate and determine the essential facts of this claim. The State would thus be prejudiced by the granting of this motion on the limited facts asserted.

With regard to an alternate remedy, the Court of Claims is the sole proper venue for claims against the State for monetary damages. As for excuse, claimant argues that he was incarcerated and had limited law library access; conclusory allegations thereof do not constitute an excuse for the purposes of the act. See Luciano v State of New York, Ct Cl, February 7, 2005 (unreported, motion no. M-69249, Collins, J., UID #2005-015-008[3]).

The remaining factor to be considered is whether the proposed claim appears meritorious. “Determinations 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 . . .” Semkus v State of New York, 272 AD2d 74, 75, 708 NYS2d 288 (1st Dept 2000), citing Lublin v State of New York, 135 Misc 2d 419, 420, 515 NYS2d 385 (Ct Cl 1987), affd 135 AD2d 1155, 523 NYS2d 21 (1st Dept 1987), lv denied 71 NY2d 802, 527 NYS2d 768 (1988). Accordingly, claimant has failed to demonstrate that his proposed claim is meritorious. See Prusack v State of New York, 117 AD2d 729, 730, 498 NYS2d 455, 456 (2d Dept 1986).

In view of the foregoing, having reviewed the submissions[4], IT IS ORDERED that motion no. M-73113 be denied.

August 15, 2007
New York, New York

Judge of the Court of Claims

  1. [1]For the purposes of this motion, the document submitted by claimant that is entitled “Late Notice of . . . Claim . . . Application” will be considered his proposed claim.
  2. [2]See Bay Terrace Coop. Section IV, Inc. v New York State Employees’ Retirement Sys. Policemen’s and Firemen’s Retirement Sys., 55 NY2d 979, 449 NYS2d 185 (1982); Scarver v State of New York, 233 AD2d 858, 649 NYS2d 280 (4th Dept 1996).
  3. [3]This and other decisions of the Court of Claims may be found on the Court’s website:
  4. [4]The Court reviewed the following: claimant’s “Late Notice of . . . Claim . . . Application” with exhibits A-1 through A-3, B and C; defendant’s affirmations in opposition; and claimant’s “Affidavit in Response” dated May 29, 2007.