New York State Court of Claims

New York State Court of Claims
PARTEE v. THE STATE OF NEW YORK, # 2009-038-578, Claim No. 117058, Motion No. M-77197, Cross-Motion No. CM-77225


Defendant's motion to dismiss claim for damages arising from the Parole Board's failure to timely render a decision on claimant's administrative appeal from a denial of parole is granted. There is no ministerial duty to render the decision within a certain time, and the assertion of a State constitutional tort is precluded by the availability of an alternative remedy in the nature of an article 78 proceeding to compel a decision.

Case information

UID: 2009-038-578
Claimant(s): CEDRIC PARTEE
Claimant short name: PARTEE
Footnote (claimant name) :
Footnote (defendant name) :
Third-party claimant(s):
Third-party defendant(s):
Claim number(s): 117058
Motion number(s): M-77197
Cross-motion number(s): CM-77225
Claimant's attorney: CEDRIC PARTEE, Pro se
Defendant's attorney: ANDREW M. CUOMO, Attorney General of the State of New York
By: J. Gardner Ryan, Assistant Attorney General
Third-party defendant's attorney:
Signature date: December 11, 2009
City: Albany
Official citation:
Appellate results:
See also (multicaptioned case)


Claimant, an individual incarcerated in a State correctional facility, filed this claim seeking damages as a result of the alleged "negligence by the State of New York for failure [sic] to perform its ministerial duties in accordance with the Rules and Regulations of the Division of Parole, set forth under the established procedures when an appeal is taken, where the Parole Board denies parole release (9 NYCRR 8002.3[d]; 9 NYCRR 8006.4[d])" (Claim No.117058, at 2). Specifically, the claim alleges that claimant was denied release by the State Parole Board, that he perfected an appeal of that decision, and that he did not receive a final decision from the Division of Parole's Appeals Unit within 120 days of the perfection of the appeal. The claim alleges that defendant breached a ministerial duty to timely render a decision and that his due process and equal protection rights under the State Constitution were violated. The verified answer asserts the following affirmative defenses: (1) the claim fails to state a cause of action, (2) the Court lacks jurisdiction over the claim as the cause of action should be asserted in an Article 78 proceeding, and (3) claimant's exclusive remedy is to seek review of the administrative action through an Article 78 proceeding. Claimant moves pursuant to CPLR 3211(b) to dismiss the affirmative defenses. Defendant opposes the motion and cross-moves to dismiss the claim for failure to state a cause of action. Claimant opposes the cross motion.

Turning first to the cross motion to dismiss the claim, defendant contends that the claim fails to state a cause of action because the Division of Parole's Appeals Unit had no obligation or duty to act within 120 days and therefore claimant has "no common-law, due process or equal protection right or interest that is injured by the Divisions [sic] failure to act within that period" (Ryan Affirmation, at 6). Further, defendant maintains that a State constitutional cause of action is available only when there is no alternative remedy, and claimant has a remedy under Article 78 of the CPLR.

On a motion to dismiss for failure to state a cause of action:

claimant's claim is liberally construed and all facts asserted therein, as well as its submissions in opposition to defendant's motion, are accepted as true (see CPLR 3026; 511 W. 232nd Owners Corp. v Jennifer Realty Co., 98 NY2d 144, 152 [2002]; see also Nonnon v City of New York, 9 NY3d 825, 827 [2007]; State of New York v Shaw Contract Flooring Servs., Inc., 49 AD3d 1078, 1079 [2008]). Where, as here, the motion is premised upon claimant's failure to state a claim (see CPLR 3211[a][7] ) . . . the dispositive inquiry is whether it has a cause of action and not whether one has been stated, i.e., "whether the facts as alleged fit within any cognizable legal theory" (Leon v Martinez, 84 NY2d 83, 87-88 [1994]; accord Nonnon v City of New York, 9 NY3d at 827).

(IMS Engineers-Architects, P.C. v State of New York, 51 AD3d 1355, 1356 [3d Dept 2008], lv denied 11 NY3d 706 [2008]).

The claim alleges that the Appeals Unit's failure to timely render a decision on his appeal constituted a breach of a ministerial duty. Section 8006.4 of the Division of Parole regulations states:

Should the appeals unit fail to issue its findings and recommendation within four months of the date that the perfected appeal was received, the appellant may deem this administrative remedy to have been exhausted, and thereupon seek judicial review of the underlying determination from which the appeal was taken. In that circumstance, the division will not raise the doctrine of exhaustion of administrative remedy as a defense to such litigation

(9 NYCRR 8006.4 [c]). On its face, this section merely provides that if an administrative appeal is not rendered within four months, the appellant may seek judicial review of the underlying administrative decision and the respondent waives the defense of exhaustion of administrative remedies. The regulatory provision does not impose a duty requiring a determination to be rendered within a particular period of time (see Matter of Buford v Russi, 152 Misc 2d 23, 24 [Sup Ct, Orange County 1991]). Thus, the claim does not state a cause of action for a breach of such a ministerial duty because no such duty exists.

A generous reading of the claim as required on a motion to dismiss reveals the assertion of implied State constitutional torts in the nature of violation of claimant's due process and equal protection rights. The Court of Appeals in Brown v State of New York (89 NY2d 172 [1996]) recognized a private cause of action in limited circumstances for violations of the State Constitution, but the State constitutional tort is a "narrow remedy" that is available only when no other remedy is available to enforce the claimed constitutional right (see Brown v State of New York, supra at 189, 192; Martinez v City of Schenectady, 97 NY2d 78, 83-84 [2001]; Waxter v State of New York, 33 AD3d 1180 [3d Dept 2006]; Bullard v State of New York, 307 AD2d 676, 678 [3d Dept 2003]). Here, a remedy in the form of an Article 78 proceeding in the nature of mandamus to compel the Appeals Unit to render a decision is available (see Matter of Buford v Russi, supra; Matter of Brown v New York State Board of Parole, 2009 WL 2440308, 2009 NY Slip Op 31733[U] [Sup Ct 2009]; Malik v State of New York, UID # 2000-015-031, Motion No. M-61280, Collins, J. [June 2, 2000]). Thus, a cause of action sounding in State constitutional tort is foreclosed, and the claim should be dismissed (see Shelton v New York State Liq. Auth., 61 AD3d 1145 [3d Dept 2009]).

Claimant's motion to dismiss defendant's affirmative defense will be denied as moot.

Accordingly, it is

ORDERED, that Motion No. CM-77225 is GRANTED, and Claim No. 117058 is DISMISSED, and it is further

ORDERED, that Motion No. M-77197 is DENIED.

December 11, 2009

Albany, New York


Judge of the Court of Claims

Papers considered:

(1) Claim No. 117058, filed June 29, 2009;

(2) Verified Answer, filed July 29, 2009;

(3) Notice of Motion Pursuant to CPLR 3211 (b), filed September 14, 2009;

(4) Affidavit of Cedric Partee in Support of Motion to Strike Pursuant to CPLR 3311(b) [sic],

verified and sworn to September 10, 2009;

(5) Notice of Cross Motion to Dismiss, dated September 22, 2009;

(6) Affirmation of J. Gardner Ryan, AAG, in Opposition to Claimant's Motion to Strike

Defenses and in Support of Defendant's Cross Motion to Dismiss, dated September 23,


(7) "Traverse the Return" of Cedric Partee, sworn to November 9, 2009.