New York State Court of Claims

New York State Court of Claims
McPHERSON v. THE STATE OF NEW YORK, # 2009-015-200, Claim No. 116270, Motion No. M-76412


Claimant's motion for partial summary judgment on issue of liability and for change of venue was denied. While claimant established that DOCS improperly imposed a two-year term of PRS rather than the one-year term imposed by the sentencing court, he failed to establish the maximum expiration date of the one-year term. Claimant also failed to establish a change of venue was warranted.

Case information

UID: 2009-015-200
Claimant(s): MARK McPHERSON
Claimant short name: McPHERSON
Footnote (claimant name) :
Footnote (defendant name) :
Third-party claimant(s):
Third-party defendant(s):
Claim number(s): 116270
Motion number(s): M-76412
Cross-motion number(s):
Claimant's attorney: Seidner, Rosenfeld & Guttentag, LLP
By: Larry Rosenfeld, Esquire
Defendant's attorney: Honorable Andrew M. Cuomo, Attorney General
By: Thomas R. Monjeau, Esquire
Assistant Attorney General
Third-party defendant's attorney:
Signature date: September 9, 2009
City: Saratoga Springs
Official citation:
Appellate results:
See also (multicaptioned case)


Claimant moves for partial summary judgment on the issue of liability pursuant to CPLR 3212 and for a change of venue from the Albany District to the New York District of the Court of Claims.

Claimant seeks damages for wrongful confinement arising from the alleged erroneous imposition of a two-year term of postrelease supervision (PRS) rather than the one-year term imposed at sentencing by the Hon. Stephen Braslow, County Court, Suffolk County. On July 17, 2006 claimant pled guilty to attempted possession of a controlled substance in the fourth degree. On July 17, 2006 he was sentenced to a two-year determinate prison term with one year of PRS (claimant's Exhibit C, Sentencing Minutes, p.11). Claimant was released from prison on July 12, 2007 at which time a two-year period of PRS was administratively imposed.

As reflected in the Case Summary of the Division of Parole (claimant's Exhibit E), claimant was initially declared delinquent for violating the conditions of his PRS on January 18, 2008. Following a parole hearing on April 15, 2008, claimant's parole was revoked and he was restored to parole supervision. On November 15, 2008 claimant was arrested for a crime involving a firearm (claimant's Exhibit E). He was arraigned in the Suffolk County District Court and remanded to the custody of the Suffolk County Sheriff's Department in lieu of cash bail (id.). Claimant was subsequently declared delinquent in abiding by the conditions of his parole and a parole warrant was issued on November 17, 2008. Probable cause for the parole violation was found (failing to comply with his curfew) and a final hearing was scheduled for December 16, 2008 (claimant's Exhibit E). In the meantime, claimant filed a writ of habeas corpus in Supreme Court alleging that the one-year period of PRS imposed by the sentencing court expired on November 9, 2008. A hearing was held on December 10, 2008 and adjourned to December 17, 2008 to enable the claimant to support his application with a copy of the sentencing minutes. Claimant produced the sentencing minutes on December 17, 2008 but the matter was again adjourned to December 24, 2008, this time to enable the Assistant Attorney General to undertake a re-computation of the maximum expiration date to account for any additional time or interruptions in the sentence which may have resulted from prior arrests or violations of parole. While claimant avers in his affidavit in support of the motion that he was released from incarceration on December 24, 2008, the minutes of the hearing for that date are missing (claimant's Exhibit F) and no order or judgment determining the claimant's petition for a writ of habeas corpus was submitted in support of claimant's motion.

Claimant's counsel avers that claimant's one-year term of PRS expired on October 9, 2008, prior to the date he was arrested for a parole violation. In performing this computation, claimant's counsel considered the claimant's parole revocation on January 18, 2008 and restoration on April 15, 2008. However, the uncertified records from the Department of Correctional Services' website submitted in support of the motion reflect the maximum expiration date of claimant's PRS term was November 9, 2008 (claimant's Exhibit H).

The first issue for determination is whether the State is immune from liability for the conduct alleged in this case. It is well established that when official action involves the exercise of discretion, the State is immune from liability for the injurious consequences of that action even if resulting from negligence (Lauer v City of New York, 95 NY2d 95, 115 [2000]; Tango v Tulevech, 61 NY2d 34, 40 [1983]). "[T]his immunity reflects a value judgment that - despite injury to a member of the public - the broader interest in having government officers and employees free to exercise judgment and discretion in their official functions, unhampered by fear of second-guessing and retaliatory lawsuits, outweighs the benefits to be had from imposing liability for that injury" (Haddock v City of New York, 75 NY2d 478, 484 [1990]). Where injury results not from an exercise of judgment and discretion but from an act or omission of a purely ministerial nature, the policy rationale for the rule no longer applies and a municipal defendant may not be shielded from liability for the injurious consequences of his or her conduct (see e.g. Lapidus v State of New York, 57 AD3d 83 [2008]). "[D]iscretionary or quasi-judicial acts involve the exercise of reasoned judgment which could typically produce different acceptable results whereas a ministerial act envisions direct adherence to a governing rule or standard with a compulsory result (Tango v Tulevech, 61 NY2d at 41).

It is clear that the performance of sentence calculations by DOCS is a nondiscretionary, ministerial duty (Matter of Bottom v Goord, 96 NY2d 870 [2001]; Matter of Maguire v New York State Div. of Parole, 304 AD2d 1003, 1004 [2003]; Matter of Patterson v Goord, 299 AD2d 769, 770 [2002]; Matter of Cruz v New York State Dept. of Correctional Servs., 288 AD2d 572, 573 [2001], appeal dismissed 97 NY2d 725 [2002]; Hudson v State of New York, UID # 2008-040-020, Claim No. 114628 [Ct Cl, April 17, 2008] McCarthy, J.). The alleged failure of DOCS to adhere to the one-year term of PRS specifically prescribed by the sentencing Court in this case is likewise a ministerial error for which immunity does not attach.

Those cases in which this Court held, inter alia, that DOCS is immune from liability for the administrative imposition of PRS are distinguishable in at least two important respects (see e.g. Nazario v State of New York, 24 Misc 3d 443 [2009]). First, the sentencing court in those cases failed to impose the statutorily mandated term of PRS and, consistent with the then-prevailing decisional law holding that PRS was an automatic consequence of a determinate sentence, DOCS imposed the mandatory PRS term. In those circumstances, this Court held that "[g]iven the declaratory nature of the statutory language at the time the allegedly tortious action occurred, the statute's lack of clarity with regard to the mechanisms by which postrelease supervision was to be applied and the apparent illegality of a determinate sentence not including a period of postrelease supervision . . .DOCS applied its judgment and exercised its discretion in determining what actions were required to be taken in carrying out both the requirements of the statute and its own official duties (Id. at 459). Here, on the other hand, a one-year term of postrelease supervision was imposed at sentencing and DOCS clearly was without discretionary authority to increase the sentence. All that DOCS was required to do was calculate the PRS maximum release date based upon the sentence imposed by Judge Braslow at sentencing.

Moreover, in those cases in which the sentencing court failed to pronounce the PRS component of a sentence, proximate cause for the claimant's confinement on a parole violation was lacking because, had no error in sentencing occurred, the claimants in those cases would have been subject to PRS and properly confined. Here, in contrast, claimant was allegedly confined for a parole violation which would not have occurred but for the error of DOCS in administratively increasing the PRS term. The alleged error here, therefore, was that of DOCS in failing to strictly adhere to the sentence handed down by the Judge. As the alleged error of DOCS may be said to be the cause-in-fact of claimant's injuries, the Court will determine whether claimant has established his entitlement to summary judgment as a matter of law.

It is well established that " 'summary judgment is a drastic remedy and should not be granted where there is any doubt as to the existence of a triable issue' " (Rotuba Extruders, Inc. v Ceppos, 46 NY2d 223, 231 [1978][citation omitted]). "The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case" (Winegrad v New York Univ. Med. Center, 64 NY2d 851, 853 [1985]) . Once the movant has made this showing, the burden shifts to the party opposing the motion "to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action" (Alvarez v Prospect Hospital, 68 NY2d 320, 324 [1986] citing Zuckerman v City of New York, 49 NY2d 557, 562 [1980]).

Claimant established through the submission of the sentencing minutes (Exhibit C) and Certificate of Release to Parole Supervision (Exhibit D) that a two-year term of PRS was erroneously imposed by DOCS rather than the one-year term to which he was sentenced. Claimant failed to establish, however, that the one-year term had expired at the time of his arrest and confinement for the parole violation. While the claimant avers he was released from incarceration on December 24, 2008, he submitted no evidence that it was the alleged PRS error by DOCS that resulted in his release. The minutes of the hearing conducted on December 24, 2008 are missing, and no admissible evidence was submitted establishing the date the PRS term expired. Notably, the printout from the DOCS' website (claimant's Exhibit H) is not in admissible form and conflicts with claimant's counsel's calculation of the PRS maximum expiration date. On this proof, other arrests and interruptions in the claimant's PRS term cannot be ruled out. Absent proof in admissible form as to the maximum expiration date of the claimant's PRS term, the Court is unable to conclude as a matter of law that the claimant was not subject to PRS at the time of his arrest for parole violations. Accordingly, claimant's motion for summary judgment must be denied.

The Court will now turn its attention to the claimant's request for a change of venue. There are no provisions in the Court of Claims Act governing motions for a change of venue; consequently the relevant provisions of the CPLR apply (see Court of Claims Act 9 [9]; Award Incentives v State of New York, 4 AD2d 985 [1957]; Richards v State of New York, 281 App Div 947 [1953]). CPLR 510 (3) states that the Court may change the place of trial where "the convenience of material witnesses and the ends of justice will be promoted by the change." The party seeking the change bears the burden of proof (Andros v Roderick, 162 AD2d 813 [1990]) and the motion is directed to the Court's discretion (O'Brien v Vassar Bros. Hosp., 207 AD2d 169, 171 [1995]). To succeed on a motion for a change of venue pursuant to CPLR 510 (3) the proponent of the motion "must assert the names and addresses of the witnesses, the substance and materiality of their expected testimony on the issues presented, their willingness to testify and the manner in which they will be inconvenienced by a trial in the venue where the action was commenced" (Frontier Ins. Co. in Rehabilitation v Big Apple Roofing Co., Inc., 50 AD3d 1239 [2008]; see also Stainbrook v Colleges of Senecas, 237 AD2d 865 [1997]). Claimant's own affidavit in which he avers that he will be inconvenienced in the event the venue of this action is not changed is insufficient support for a change of venue. The law is settled that the convenience of a party, without more, is not a proper consideration (A.M.I. Intl. v Gary Pool Sales & Serv., 94 AD2d 890 [1983]; Ray v Beauter, 90 AD2d 988 [1982]). Inasmuch as the claimant failed to submit the names and addresses of his prospective witnesses, the substance of their expected testimony and the manner in which they would be inconvenienced by a trial in the Albany District, the Court cannot conclude that the ends of justice would best be served by a change of venue to the New York District.

Based on the foregoing, claimant's motion for summary judgment on the issue of liability and for a change of venue is denied.

September 9, 2009

Saratoga Springs, New York


Judge of the Court of Claims

The Court considered the following papers:

  1. Notice of motion dated March 16, 2009;
  2. Affirmation of Larry Rosenfeld dated March 16, 2009 with exhibits;
  3. Affidavit of Thomas R. Monjeau sworn to June 12, 2009;
  4. Reply affirmation of Larry Rosenfeld dated June 16, 2009.