New York State Court of Claims

New York State Court of Claims
BARBER v. THE STATE OF NEW YORK, # 2009-015-224, Claim No. 115261, Motion No. M-77052

Synopsis

Court lacked subject matter jurisdiction of claim alleging claimant was improperly confined for a parole violation where he failed to pursue his administrative remedies and review in a proceeding pursuant to CPLR article 78. In any event, State is immune from liability for discretionary determinations of the Board of Parole.

Case information

UID: 2009-015-224
Claimant(s): ERNEST C. BARBER
Claimant short name: BARBER
Footnote (claimant name) :
Defendant(s): THE STATE OF NEW YORK
Footnote (defendant name) :
Third-party claimant(s):
Third-party defendant(s):
Claim number(s): 115261
Motion number(s): M-77052
Cross-motion number(s):
Judge: FRANCIS T. COLLINS
Claimant's attorney: Learned, Reilly, Learned & Hughes, LLP
By: Scott J. Learned, Esquire
Defendant's attorney: Honorable Andrew M. Cuomo, Attorney General
By: Michael T. Krenrich, Esquire
Assistant Attorney General
Third-party defendant's attorney:
Signature date: December 4, 2009
City: Saratoga Springs
Comments:
Official citation:
Appellate results:
See also (multicaptioned case)

Decision

Claimant moves for partial summary judgment on the issue of liability on his claim for wrongful confinement pursuant to CPLR 3212.(1) For the reasons which follow, the motion is denied and the claim is dismissed, sua sponte, for lack of subject matter jurisdiction.

Claimant was convicted of the criminal sale of a controlled substance in violation of Penal Law 220.31 and sentenced as a second felony offender to a term of imprisonment of 3 to 7 years. He was released from prison on January 3, 2003 on the condition that he participate in a drug treatment program at Willard Drug Treatment Campus ("Willard"). Claimant alleges he was released from Willard to parole supervision on April 1, 2003. Claimant was arrested pursuant to a parole warrant on May 1, 2006 and charged with violating various conditions of his parole, all of which involved the use or possession of marijuana (claimant's Exhibit B). He was also issued an appearance ticket for unlawful possession of marijuana.(2) A parole violation notice was issued on May 2, 2006. Claimant waived a preliminary hearing and pleaded guilty to one of the parole violation charges resulting in the revocation of his parole and the imposition of a 12-month time assessment. The Parole Revocation Decision Notice dated May 19, 2006 reflects a delinquency date of May 1, 2006 with three years, seven months and one day remaining on the undischarged portion of claimant's sentence (defendant's Exhibit F). Claimant was released from prison on March 19, 2007.

Relying on Executive Law 259-j (3-a), claimant alleges as the basis for his claim that his imprisonment for the parole violation was improper because his sentence terminated on April 1, 2005, prior to his arrest for violating the conditions of parole. Executive Law 259-j (3-a) provides that the Division of Parole "must grant termination of sentence after two years of unrevoked parole to a person serving an indeterminate sentence for any [non-class A] felony offense defined in article two hundred twenty or two hundred twenty-one of the penal law." The effective date of the statute is February 12, 2005, approximately two months prior to the date the claimant would have completed two years of unrevoked parole.

In opposition to the motion, defendant argues that "nothing in the statutory language indicates that the law was intended to encompass persons who had achieved two years of unrevoked parole a mere two months after the effective date of the statute" (affirmation of Michael T. Krenrich dated September 9, 2009, 6). Defense counsel contends that a strict interpretation of the statute requires that only those persons who achieve two years of unrevoked parole wholly after the effective date of the statute may benefit from its provisions, citing Matter of Ciccarelli v New York State Div. of Parole (35 AD3d 1107 [2006]).(3)

While the claimant assumes that his release from prison was prompted by the belated realization of the Division of Parole that on the date of his arrest for parole violations he was no longer under parole supervision due to the statutory mandate of Executive Law 259-j (3-a), he never sought review of the administrative determination which found him guilty of a parole violation pursuant to CPLR article 78 nor did he seek his release from prison pursuant to CPLR article 70. Review of appellate authority interpreting the application of 259-j (3-a) reveals that the procedural vehicle utilized to secure termination of a sentence or a prisoner's release from confinement was a proceeding pursuant to either CPLR article 78 (see Matter of Sweeney v Dennison, 52 AD3d 882 [2008]; Matter of Ciccarelli v New York State Div. of Parole, (supra); Matter of Walker v Dennison, 36 AD3d 89 [2006]) or CPLR article 70 (People ex rel. Jenkins v Piscotti, 52 AD3d 1207 [2008]; People ex rel. Ordonez v Warden of Rikers Is. Correctional Facility, 38 AD3d 212 [2007]). Claimant here pursued neither of these remedies thereby precluding an award for money damages in the Court of Claims (see also Lublin v State of New York, 135 Misc 2d 419 [Ct Cl 1987], affd 135 AD2d 1155 [1987], lv denied 71 NY2d 802 [1988]; O'Neal v State of New York, UID # 2008-015-506, Claim No. 112354 [Ct Cl, July 28, 2008], Collins, J.; cf. Jackson v State of New York, UID # 2008-038-597, Claim No. 114376, Motion No. M-74354 [Ct Cl, May 28, 2008] DeBow, J.).

Claimant seeks to frame his claim as alleging negligence on the part of the Division of Parole in failing to terminate his sentence on April 1, 2005, the date he achieved two consecutive years of unrevoked parole pursuant to Executive Law 259-j (3-a). In real terms, however, what claimant seeks is money damages for the time he was confined in state prison as a result of the revocation of his parole.

In Digioia v State of New York (UID No. 2003-015-309, Claim No. 106725, Motion No. M-65992 [Ct Cl, January 21, 2003] Collins, J.) this Court found the following with regard to a claim seeking monetary damages for time the claimant was confined following denial of his application for parole:

"The claim must be dismissed for the simple reason that '[d]eterminations 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 (Lublin v State of New York, 135 Misc 2d 419, 420, affd 135 AD2d 1155, lv denied 71 NY2d 802)' Semkus v State of New York, 272 AD2d 74, 75, lv denied 95 NY2d 761).

It is clear from a reading of the claim herein that claimant seeks to impose liability upon the State based upon the Board of Parole's allegedly wrongful or improper revocation of his parole. Such a claim is barred by the doctrine of absolute immunity (Tarter v State of New York, 68 NY2d 511) notwithstanding the fact that the Board's decision to revoke claimant's parole was later determined to have been in error (Semkus, supra at 74)."

In Semkus v State of New York, 272 AD2d 74, 75 the Appellate Division, First Department, described the matter at issue and disposed of it in the following manner:

Claimant seeks damages for his alleged "illegal incarceration" when the Division of Parole improperly classified him as a "category 2" violator and revoked his parole. Determinations pertaining to parole and its revocation, however, are deemed strictly sovereign and quasi-judicial in nature and, accordingly, the State, in making such determinations, is absolutely immune from tort liability (Lublin v State of New York 135 Misc 2d 419, 420, affd 135 AD2d 1155, lv denied 71 NY2d 802). Since claimant seeks damages attributable to the State's decision to revoke his parole, his claim is barred (Tarter v State of New York, 68 NY2d 511). This conclusion is not altered by the circumstance that the decision of the Parole Board revoking claimant's parole was eventually determined to have been in error, since the action of the Parole Board was not thereby deprived of its quasi-judicial character (supra, at 517-518).

In Tarter v State of New York (68 NY2d 511 [1986]) the Court of Appeals held that notwithstanding the failure to consider mandatory parole guidelines, the decision of the Parole Board to grant a parole application was nonetheless subject to absolute immunity and, therefore, not actionable. The Court found that the Board performed "classically judicial tasks" and should be extended the same protection from suits provided judges, who enjoy absolute immunity even where the challenged actions are not "letter perfect" or, even, "tainted by improper motives". In so holding the Court of Appeals quoted from the United States Supreme Court's decision in Stump v Sparkman (435 US 349, 359 [1978], quoting Bradley v Fisher, 13 Wall. 335, 357 [1871]) in which the Court stated that the "erroneous manner in which [the Courts] jurisdiction was exercised, however it may have affected the validity of the Act, did not make the act any less a judicial act".

This Court is not constrained by the manner in which a claimant attempts to categorize his or her claim (City of New York v State of New York, 46 AD3d 1168 [2007], lv denied 10 NY3d 705 [2008]). Here it is clear the claimant seeks to assert a claim for money damage alleging the Parole Board wrongfully revoked his parole and thereby subjected him to a loss of liberty. Regardless of the merits of the respective arguments as to the application of Executive Law 259-j (3-a), the act of the Board in revoking claimant's parole was a classically judicial one for which the State is absolutely immune from liability.

Based on the foregoing, the claimant's motion for partial summary judgment is denied and the claim is dismissed sua sponte.

December 4, 2009

Saratoga Springs, New York

FRANCIS T. COLLINS

Judge of the Court of Claims

The Court considered the following papers:

  1. Notice of motion dated August 3, 2009;
  2. Affidavit of Scott J. Learned sworn to July 14, 2009 with exhibits;
  3. Memorandum of Law of Scott J. Learned dated July 14, 2009;
  4. Affidavit of Ernest Barber sworn to July 10, 2009 with exhibits;
  5. Affirmation of Michael T. Krenrich dated September 9, 2009 with exhibits;
  6. Reply letter memorandum of Scott J. Learned dated September 17, 2009.

1. Claimant's notice of motion requests "an Order granting it summary judgment dismissing the Complaint pursuant to CPLR Rule 3212 . . . ". Inasmuch as the attorney's affidavit submitted in support of the motion makes clear that the relief sought is actually summary judgment on the issue of liability in his client's favor, and defendant interpreted the motion as such and opposed it on the merits, the Court will disregard the technical error in the notice of motion (see CPLR 2001; Matter of August ZZ., 42 AD3d 745 [2007]; Matter of Venner, 235 AD2d 805 [1997]).

2. The Court has not been apprised of the outcome of that charge.

3. In Matter of Ciccarelli (supra) the Appellate Division, Third Department, held the ameliorative provisions of Executive Law 259-j (3-a) inapplicable to periods of unrevoked parole which occurred wholly prior to the effective date of the statute where the parole was subsequently revoked and the parolee returned to prison before the statute became effective.