New York State Court of Claims

New York State Court of Claims

JUSTICE v. THE STATE OF NEW YORK, #2008-015-084, Claim No. 115070, Motion Nos. M-75107, CM-75270


Claim alleging defendant's failure to provide a written service plan pursuant to CPL § 330.20 (12) was dismissed for lack of jurisdiction. The matter should be determined in an article 78 proceeding.

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:
John D. Justice, Pro Se
Defendant’s attorney:
Honorable Andrew M. Cuomo, Attorney General
By: Paul F. Cagino, EsquireAssistant Attorney General
Third-party defendant’s attorney:

Signature date:
November 18, 2008
Saratoga Springs

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant, an inmate proceeding pro se, moves for summary judgment pursuant to CPLR 3212. Defendant opposes the motion and cross-moves to dismiss the claim for failure to state a cause of action pursuant to CPLR 3211 (a) (7). Claimant alleges that he "is currently to be supervised by the Defendant State of New York, through the New York State Office of Mental Health, by an Order of Conditions pursuant to Criminal Procedure Law § 330.20. Said Order of Conditions was granted by the Hon. Ronald H. Tills on January 3, 2006, (Supreme Court, County of Erie)" (claim, ¶ 4). The Order of Conditions, submitted as claimant's Exhibit E in support of the motion, reflects that the claimant was found not responsible for certain of the crimes with which he was charged by reason of a mental disease or defect. Claimant alleges that upon the application of the Commissioner of Mental Health for the Order of Conditions and a release order, the Commissioner failed to include both a written service plan for continued treatment and a detailed statement of the extent to which supervision of the claimant was required following his release. He alleges that pursuant to CPL § 330.20 (12) the inclusion of the written service plan in the application for the Order of Conditions was required. Claimant alleges that as the result of the failure to incorporate the written service plan into the Order of Conditions he suffers mental pain and anguish because he does not know whether the Commissioner of the New York State Department of Mental Health considers him in compliance with the Order of Conditions. Claimant also alleges that he suffers anxiety because he fears anything he says may be used against him in a recommitment application pursuant to CPL § 330.20 (14) and that he is burdened with the prospect of filing periodic article 78 proceedings to clarify his status.

Claimant filed an article 78 proceeding in the Supreme Court, which was decided by order of the Hon. Russell P. Buscaglia, A.J.S.C., on July 9, 2007 (claimant's Exhibit F). Although the petition was not submitted in support of the instant motions, review of Judge Buscaglia's decision reflects that the claimant alleged in that proceeding, as he does here, that the Order of Conditions failed to incorporate a written service plan as required by CPL § 330.20. In his decision, Judge Buscaglia specifically found that "there is the written service plan to the extent that it is required by the Criminal Procedure Law and, therefore, that request of Mr. Justice is denied" (claimant's Exhibit F, p. 5).

Thereafter, the claimant allegedly filed another article 78 proceeding "to clarify whether the New York State Office of Mental Health, and the Erie County District Attorney's Office, were of the view that your Claimant possessed a dangerous mental disorder" (claim, p. 3). The Hon. M. William Boller, A.J.S.C., dismissed the petition in a Decision and Order filed on January 31, 2008. In his Decision and Order, Judge Boller characterized the relief sought in the petition as in the nature of mandamus to compel respondents to apply for a recommitment order pursuant to CPL § 330.20 (14). Judge Boller noted in the Decision and Order that the claimant was released from the custody of the Department of Correctional Services on September 9, 2005 and that the application of the Commissioner of Mental Health for an Order of Conditions and Release was granted on January 6, 2006. Thereafter, claimant was arrested for a parole violation on August 7, 2006 and his parole was subsequently revoked on July 3, 2007. In dismissing the petition, Judge Boller found that mandamus does not lie to compel respondent to apply for re-commitment as the decision to do so was discretionary in nature under CPL § 330.20 (14) and "[t]he remedy of mandamus 'lies to compel the performance of a purely ministerial act where there is a clear legal right to the relief sought' " (Claimant's Exhibit I, p. 3, quoting Matter of Legal Aid Socy. of Sullivan County v Scheinman, 53 NY2d 12, 16 [1981]).

The Court will first consider the defendant's cross-motion to dismiss the claim for failure to state a cause of action pursuant to CPLR 3211 (a) (7). On a motion to dismiss a claim pursuant to CPLR 3211 (a) (7) the court is required to “accept the facts as alleged in the [claim] as true, accord [claimant] the benefit of every possible favorable inference, and determine only whether the facts alleged fit within any cognizable legal theory” (Leon v Martinez, 84 NY2d 83, 87-88 [1994]; see also Goshen v Mutual Life Ins. Co. of N.Y., 98 NY2d 314, 326 [2002]). Thus, the determination to be made is whether “the proponent of the pleading has a cause of action, not whether he has stated one” (id. at 88).

The contention that the Commissioner of Mental Health failed to provide a written service plan and a statement of the extent to which supervision is proposed as required by CPL 330.20 (12) is a matter to be determined in a proceeding pursuant to CPLR article 78 (see e.g. Berrian v State of New York, 45 AD3d 995 [2007]). Claimant in fact pursued this remedy in the Supreme Court where Judge Buscaglia specifically found that there was compliance with the statutory requirement that the Order of Conditions "shall" incorporate a written service plan (CPL 330.20 [12]). Claimant may not now collaterally attack the merit of this finding under the guise of a claim for money damages in the Court of Claims (Lublin v State of New York, 135 Misc 2d 419 [1987], affd 135 AD2d 1155 [1987], lv denied 71 NY2d 802 [1988]; Hoffman v State of New York, 42 AD3d 641 [2007]). Accordingly, the defendant's cross-motion is granted and the claim is dismissed. As the result of this determination, claimant's motion is denied as moot.

November 18, 2008
Saratoga Springs, New York

Judge of the Court of Claims

The Court considered the following papers:
  1. Notice of motion dated June 5, 2008;
  2. Affidavit of John D. Justice sworn to June 3, 2008 with exhibits;
  3. Notice of cross-motion dated July 21, 2008;
  4. Affirmation of Paul F. Cagino dated July 21, 2008 with exhibits;
  5. Affidavit of John D. Justice sworn to July 25, 2008 with exhibits.