New York State Court of Claims

New York State Court of Claims

SAYLES v. THE STATE OF NEW YORK, #2008-015-064, Claim No. None, Motion No. M-75016


Motion for late claim relief was denied. Administrative determination to withhold "good time credits" was a discretionary one for which art. 78 review in the Supreme Court was the appropriate remedy.

Case Information

1 1.The caption is amended sua sponte to reflect the only properly named defendant.
Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :
The caption is amended sua sponte to reflect the only properly named defendant.
Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
Cross-motion number(s):

Claimant’s attorney:
Chiacchia & Fleming, LLPBy: Christen Archer Pierrot, Esquire
Defendant’s attorney:
Honorable Andrew M. Cuomo, Attorney General
By: Michele M. Walls, EsquireAssistant Attorney General
Third-party defendant’s attorney:

Signature date:
August 14, 2008
Saratoga Springs

Official citation:

Appellate results:

See also (multicaptioned case)


Movant seeks permission to file a late claim pursuant to Court of Claims Act § 10 (6). The proposed claim sets forth causes of action under the Federal Constitution and for wrongful confinement arising from a decision to deny him “good time credits” by the Time Allowance Committee (TAC) at Bare Hill Correctional Facility. The claim alleges the TAC decision ultimately resulted in the denial of parole. The following facts are taken from the proposed claim: Movant pled guilty to driving while intoxicated in February 2004 and was sentenced to an indeterminate sentence of 24-72 months in prison. During the course of a visit from his wife and his then 8-year-old daughter, he was accused of inappropriate sexual contact with his daughter. The following day, he was charged with a violation of facility visiting procedures for having his daughter on his lap.[2] The hearing officer at a Tier III disciplinary hearing concluded that the movant "held his daughter on his lap and rubbed her chest and back" (proposed claim, claimant's Exhibit A, ¶14, ¶ 15)[3]. The proposed claim alleges "[t]he hearing officer went on to state that he 'believed' that [the movant] touched his daughter in an inappropriate manner and he recommended that [the movant] serve 60-days in isolated housing at Fishkill Correctional Facility” (id. ¶ 16).

In March 2006 the movant was notified of a recommendation that he participate in a sex offender program (SOP) at Oneida CF. In order to participate in the SOP, however, movant was required to admit any and all past sexual offenses, including that he had touched his daughter in a sexual manner. Movant refused to admit to this fact and, as a consequence, he was found to have refused to participate in the SOP. On or about April 19, 2006 movant was denied parole based on his refusal to complete the SOP. By May of 2007 movant had allegedly accumulated two years of good time credit and anticipated being released on parole no later than July 2007. However, in May 2007 the TAC determined to withhold movant's good time credit of two years because of his refusal to participate in SOP. Movant was notified in June 2007 that he was being denied good time credit due to his "overall unacceptable level of program attendance" (proposed claim, Exhibit A, ¶ 30). He was denied parole in July 2007 on the same basis.

The proposed claim alleges that there was no relationship between movant’s conviction for DWI and the requirement that he participate in the SOP. It also alleges that the administrative proceeding in which the movant was found guilty of violating a facility visiting regulation was “an insufficient process by which to find [movant] guilty of sexual misconduct sufficient to warrant his participation in and completion of the SOP” (proposed claim, Exhibit A, ¶ 62).

Based on these facts the movant submits a proposed claim alleging causes of action for violation of his fifth amendment right to remain silent and to be free from self-incrimination (first cause of action), his constitutional right to substantive due process (second cause of action), his constitutional right to procedural due process (third cause of action) and for wrongful confinement (fourth cause of action).

Although the proposed claim alleges movant was not eligible for parole until July 2009, the attorney's affirmation submitted in support of the motion indicates that following the commencement of a special proceeding in the Supreme Court, his good time credits were eventually restored and he was released from prison on February 25, 2008. According to the attorney's affirmation, however, the special proceeding was not finally determined.

The first issue to resolve upon a late claim motion is whether the application is timely. Subdivision 6 of section 10 requires that a motion to file a late claim be made "before an action asserting a like claim against a citizen of the state would be barred under the provisions of article two of the civil practice law and rules." The statute of limitations on the proposed cause of action for wrongful confinement is one year from the date of accrual (CPLR 215 [3]; Charnis v Shohet, 2 AD3d 663 [2003]; Englehart v State of New York, 278 AD2d 361 [2000]), which is the date the wrongful confinement ends (Charnis v Shohet, supra; Ramirez v State of New York, 171 Misc 2d 677 [1997]). As movant was released on February 25, 2008, the motion is timely with respect to this cause of action. The instant application is also timely with respect to movant’s proposed causes of action predicated upon violations of his constitutional rights (see CPLR 214 [5]).

Subdivision 6 of section 10 of the Court of Claims Act permits the filing of a late claim upon consideration of the following factors: "whether the delay in filing the claim was excusable; whether the state had notice of the essential facts constituting the claim; whether the state had an opportunity to investigate the circumstances underlying the claim; whether the claim appears to be meritorious; whether the failure to file or serve upon the attorney general a timely claim or to serve upon the attorney general a notice of intention resulted in substantial prejudice to the state; and whether the claimant has any other available remedy."

Turning to the statutory factors, this Court has broad discretion in deciding a motion to permit the late filing of a claim (Ledet v State of New York, 207 AD2d 965 [1994]). The statutory factors are not exhaustive nor is any one factor controlling (Matter of Gavigan v State of New York, 176 AD2d 1117 [1991]). The most important factor is whether the potential claim has merit, as it would be a futile exercise to permit litigation of a clearly baseless lawsuit (Savino v State of New York, 199 AD2d 254 [1993]).
The law is clear that "[a]s a court of limited jurisdiction, the Court of Claims has no

jurisdiction to grant strictly equitable relief" (Madura v State of New York, 12 AD3d 759, 760 [2004], lv denied 4 NY3d 704 [2005], citing Ozanam Hall of Queens Nursing Home v State of New York, 241 AD2d 670, 671 [1997] and Psaty v Duryea, 306 NY 413 [1954]). The threshold question in determining the subject matter of the Court of Claims is "[w]hether the essential nature of the claim is to recover money, or whether the monetary relief is incidental to the primary claim" ( Matter of Gross v Perales, 72 NY2d 231, 236 [1988]; see also Guy v State of New York, 18 AD3d 936 [2005]). "The second inquiry, regardless of how a claimant categorizes a claim, is whether the claim would require review of an administrative agency's determination – which the Court of Claims has no subject matter jurisdiction to entertain, as review of such determinations are properly brought only in Supreme Court in a CPLR article 78 proceeding" (City of New York v State of New York, 46 AD3d 1168, 1169 [2007]; citing Hoffman v State of New York, 42 AD3d 641, 642 [2007] and Matter of Scherbyn v Wayne-Finger Lakes Bd. of Coop. Educ. Servs., 77 NY2d 753 [1991]; see also Sidoti v State of New York, 115 AD2d 202, 203 [1985]; Schaffer v Evans, 86 AD2d 708, 709 [1982], affd 57 NY2d 992 [1982]). Where an act of an administrative agency is challenged on the ground that it "was made in violation of lawful procedure, was affected by an error of law or was arbitrary and capricious or an abuse of discretion" a proceeding in the form prescribed by article 78 should be maintained (CPLR 7803[3]).

Here, movant's essential claim is equitable in nature as he seeks to annul the discretionary determination to withhold good time credit as the result of his purported refusal to attend the sex offender program. Notably in this regard the applicable regulation provides that "[g]ood behavior allowances are in the nature of a privilege to be earned by the inmate and no inmate has the right to demand or to require that any good behavior allowance be granted to him" (7 NYCRR 260.2; see also Matter of Benjamin v New York State Dept. of Correctional Servs., 19 AD3d 832 [2005]; Matter of Thomas v Time Allowance Comm. at Arthur Kill Correctional Facility, 4 AD3d 637 [2004]). Likewise, Correction Law § 803 [4] makes clear that the determination to grant or deny a good time allowance is a discretionary one which is not subject to judicial review "if made in accordance with law" (Correction Law § 803 [4]; Matter of Benjamin v New York State Dept. of Correctional Servs, supra; Matter of Thomas v Time Allowance Comm. at Arthur Kill Correctional Facility, supra).[4]

This case is a "quintessential example of a dispute governed under CPLR article 78" (Madura v State of New York, (12 AD3d at 761); see also Harvard Fin. Servs. v State of New York, 266 AD2d 685 [1999]). In order to award movant monetary relief the court must necessarily review and set aside the administrative determination to withhold good time credit (see Ouziel v State of New York, 174 Misc 2d 900, 905 [1997]). Inasmuch as this Court lacks subject matter jurisdiction over actions seeking to annul an administrative determination, the movant’s application for late claim relief must be denied.
Moreover, assuming arguendo that the movant succeeds in his article 78 proceeding, the State is immune from liability for the conduct complained of in this case. It is well settled that determinations relating to parole are discretionary, quasi-judicial determinations for which the State is absolutely immune from liability (Tarter v State of New York, 68 NY2d 511 [1986]; Semkus v State of New York, 272 AD2d 74 [2000], lv denied 95 NY2d 761 [2000]; Lublin v State of New York, 135 Misc 2d 419 [1987]; affd 135 AD2d 1155 (1987), lv denied 71 NY2d 802 [1988]; see also Arteaga v State of New York, 72 NY2d 212 [1988]). So too are the discretionary recommendations of the TAC and the Commissioner or his designee confirming or modifying the amount of good time credit an inmate will be granted (see 7 NYCRR § 262.1 [c]; Correction Law § 803 [4]; Graham v State of New York, UID # 2001-015-132, Claim No. 102124, Motion No. M-62876 [Ct Cl, March 29, 2001] Collins, J.) .

Lastly, the State is not a "person" subject to suit under 42 USC § 1983 and the Court therefore has no jurisdiction over actions alleging violation of movant’s federal civil rights (see, Brown v State of New York, 89 NY2d 172 [1996]; Will v Michigan Dept. of State Police, 491 US 58 [1989]). The Court also lacks jurisdiction to the extent the proposed claim seeks a declaration that the actions of the State violated his rights under the New York State Constitution (see Court of Claims Act § 9 [2])[5].

As the Court has determined that it lacks jurisdiction to entertain any of the causes of action asserted in the proposed claim it is unnecessary to address the remaining factors enumerated in Court of Claims Act § 10(6).

Accordingly, the movant’s application for late claim relief is denied.

August 14, 2008
Saratoga Springs, New York

Judge of the Court of Claims

The Court considered the following papers:
  1. Notice of motion dated May 23, 2008;
  2. Affirmation of Christen Archer Pierrot dated May 23, 2008 with exhibits including affidavit of Michael Sayles sworn to May 23, 2008;
  3. Affirmation of Michele M. Walls dated June 16, 2008.

[2]. According to the affidavit of the movant, he was charged with a violation of inmate rule 180.10 (7 NYCRR 270.2 [B] [26] [i] [facility visiting procedures]). That rule states only that “[a]n inmate shall comply with and follow the guidelines and instructions given by staff regarding facility visiting procedures pursuant to the requirements of departmental Directive No. 4403 (7 NYCRR Part 200)”.
[3].The allegation of sexual abuse was referred to the Erie County Office of Children and Family Services for investigation which determined the charge was “unfounded”.
[4]. So long as the discretionary determination to withhold good time credits has a rational basis, the determination will not be annulled in a proceeding pursuant to article 78 (Matter of Bolster v Goord, 300 AD2d 711 [2002]; Matter of Majeed v Goord, 279 AD2d 832 [2001], lv denied 96 NY2d 713 [2001]).
[5]. Although the proposed claim does not specifically set forth a cause of action for a violation of movant’s rights under the New York State Constitution it seeks a declaration in the “Wherefore” clause that his rights under the New York State Constitution were violated.