New York State Court of Claims

New York State Court of Claims
MERTENS v. THE STATE OF NEW YORK, # 2009-040-026, Claim No. 113052, Motion No. M-75486, Cross-Motion No. CM-75793

Synopsis

Claimant's motion for summary judgment denied. State's cross-motion for summary judgment granted. Alleged negligence of Parole Board. Court concludes determination of Parole Board entitled to absolute immunity.

Case information

UID: 2009-040-026
Claimant(s): MARK MERTENS
Claimant short name: MERTENS
Footnote (claimant name) :
Defendant(s): THE STATE OF NEW YORK
Footnote (defendant name) :
Third-party claimant(s):
Third-party defendant(s):
Claim number(s): 113052
Motion number(s): M-75486
Cross-motion number(s): CM-75793
Judge: CHRISTOPHER J. MCCARTHY
Claimant's attorney: Mark Mertens, Pro Se
Defendant's attorney: ANDREW M. CUOMO
Attorney General of the State of New York
By: Michael T. Krenrich, Esq., AAG
Third-party defendant's attorney:
Signature date: March 27, 2009
City: Albany
Comments:
Official citation: 901 NYS2d 744
Appellate results: affd 73 AD3d 1376
See also (multicaptioned case)

Decision

For the reasons set forth below, Claimant's motion for summary judgment in his favor is denied and Defendant's cross-motion for dismissal for failure to state a cause of action is granted.

The Amended Claim, which was filed with the Clerk of the Court on January 4, 2007, alleges malicious prosecution, wrongful confinement and negligence on the part of the State. A Claim was filed with the Clerk of the Court on November 29, 2006. Based upon a reading of the Claim, Amended Claim and exhibits attached thereto, it appears that Claimant was convicted of a crime for which he was serving a prison term of 8-1/3 to 25 years. He was re-paroled on September 8, 1997 with a maximum expiration date of his prison term of December 24, 2008. On September 8, 1997, Claimant was verbally directed by his parole officer not to be in the vicinity of the residence of his cousin, Glen Baker, nor to try to contact Mr. Baker. On September 25, 1997, Claimant was arrested on a parole violation after he was discovered sitting in a vehicle directly in front of the Baker residence.

The Amended Claim further alleges that an Administrative Law Judge ("ALJ") issued a Parole Revocation Decision dated December 2, 1997 and that Division of Parole Commissioner Finnerty "without probable cause, and without any rational belief that [C]laimant was guilty of these charges, nevertheless sustained these violations of parole by . . . modifying the ALJ's time assessment imposed from 12 months to an eleven year, 2 month and 29 day sentence" (Amended Claim, 6). The Commissioner's reason for imposing this sentence was that Claimant allegedly previously violated parole by sitting in a parked vehicle near his victim's residence and did so again, despite a condition of his parole being to not go near the victim's residence.

The Amended Claim asserts that Claimant was not arrested in September 1997 for having been near his victim's house and that he did not previously violate his parole conditions by being near his victim's home. Claimant asserts that Commissioner Finnerty's actions in increasing his sentence to the maximum expiration date of his original sentence, when he was not arrested or charged with the violation Commissioner Finnerty found he committed, was an act of negligence (Amended Claim, 5). Claimant further alleges that, in response to an action he filed in Supreme Court, counsel for the Division of Parole wrote him a letter, dated December 5, 2005, wherein counsel stated that he had reviewed the revocation documents contained in Claimant's parole file and could not locate a prior revocation proceeding that sustained a charge wherein it was alleged Claimant was within the vicinity of the victim. Counsel stated he was expunging that portion of the parole revocation decision drafted by Commissioner Finnerty (Amended Claim, 13).

Summary judgment is a drastic remedy to be granted sparingly and only where no material issue of fact is demonstrated in the papers related to the motion (see Crowley's Milk Co. v Klein, 24 AD2d 920 [3d Dept 1965]; Wanger v Zeh, 45 Misc 2d 93 [Sup Ct, Albany County 1965], affd 26 AD2d 729 [3d Dept 1966]). CPLR 3212(b) requires that a motion for summary judgment be supported by a copy of the pleadings (Capelin Assoc. v Globe Mfg. Corp., 34 NY2d 338 [1974]). In support of his motion, Claimant did not submit a copy of his Claim, the Amended Claim or the State's Answer and its Answer to the Amended Claim. The failure to include pleadings in support of a motion for summary judgment requires that the motion be denied, regardless of the merits of the motion (Senor v State of New York, 23 AD3d 851 [3d Dept 2005]; Bonded Concrete, Inc. v Town of Saugerties, 3 AD3d 729 [3d Dept 2004], lv dismissed 2 NY3d 793 [2004]; Deer Park Assocs. v Robbins Store, 243 AD2d 443 [2d Dept 1997]; CPLR 3212[b]). In addition, CPLR 3212(b) requires that the motion be supported by "available proof." Claimant submitted only his own "affirmation" in support of his motion and did not present any evidentiary proof. Therefore, based upon the foregoing, Claimant's motion for summary judgment is denied.

The Court now turns to Defendant's cross-motion seeking dismissal pursuant to CPLR 3211 (a)(7) for failure to state a cause of action. By letter dated December 18, 2008, the Court advised the parties that pursuant to CPLR 3211(c) the Court was considering the State's dismissal motion as one for summary judgment, adjourned the return date of the motion and cross-motion from November 12, 2008 to January 14, 2009, and gave both sides an opportunity to submit further information regarding the State's cross-motion.

The State asserts that dismissal is warranted on the theory that Defendant's actions are privileged because they are judicial, quasi-judicial or discretionary determinations made by its agents or employees acting within the scope of their duties as public officials. Thus, Defendant asserts that it is immune from liability for such actions (Affirmation of Assistant Attorney General Michael T. Krenrich [Krenrich Affirmation], 33).

As noted above, Claimant asserts that Commissioner Finnerty was negligent when he increased Claimant's sentence to the maximum expiration date of his original sentence because he had not been arrested or charged with the violation Commissioner Finnerty found he committed (Amended Claim, 5). Claimant further notes that the Division of Parole's letter indicated that the portion of the parole revocation decision drafted by Commissioner Finnerty would be expunged to remove the allegation that Claimant was in the vicinity of the victim (Amended Claim, 13; see Ex. P attached to State's motion papers).

While the State has waived its sovereign immunity from liability and consented to be sued under the same rules that apply to individuals or corporations when it acts in many areas that implicate the "everyday operations of government . . . the State retained its immunity for those governmental actions requiring expert judgment or the exercise of discretion" (Arteaga v State of New York, 72 NY2d 212, 216 [1988]). In such cases, no liability attaches "for the injurious consequences" of such "quasi-judicial acts [involving] the exercise of reasoned judgment" even where such actions result from "negligence or malice" (Tango v Tulevech, 61 NY2d 34, 40-41 [1983]). To be sure, not every official determination involving discretion belongs to that class of judicial action as to confer complete immunity. It is settled, however, that parole release and revocation decisions are "classically judicial tasks" that do render the State absolutely immune from tort actions arising therefrom (Tarter v State of New York, 68 NY2d 511, 518 [1986]; see Semkus v State of New York, 272 AD2d 74, 75 [1st Dept 2000], lv denied 95 NY2d 761 [2000]). "The State has not waived immunity with respect to these activities" (Lublin v State of New York, 135 Misc 2d 419, 420 [Ct Cl 1987], affd 135 AD2d 1155 [1st Dept 1987], lv denied 71 NY2d 802 [1988]).

Claimant seeks damages here for an alleged improper revocation of his parole, asserting that Parole Commissioner Finnerty imposed a harsher sentence (based upon incorrect information) than the one the ALJ recommended. As stated above, however, determinations dealing with parole and its revocation are strictly sovereign and quasi-judicial in nature and, when making such determinations, the State is absolutely immune from tort liability (Tarter v State of New York, 68 NY2d 511, supra; Semkus v State of New York, 272 AD2d 74, supra at 75; Lublin v State of New York, 135 Misc 2d 419, supra). That is so even if the decision of the Parole Commissioner was based on apparently erroneous information and Claimant's records were expunged (see Tarter v State of New York, 68 NY2d 511, supra at 517; Semkus v State of New York, 272 AD2d 74, supra at 75). Since Commissioner Finnerty's actions were quasi-judicial in nature, the State has complete immunity from tort liability with regard to them. Therefore, the State's cross-motion seeking dismissal pursuant to CPLR 3211(a)(7), which the Court has converted to a motion for summary judgment, is granted and the Claim is hereby dismissed.

March 27, 2009

Albany, New York

CHRISTOPHER J. MCCARTHY

Judge of the Court of Claims

The following papers were read and considered by the Court on Claimant's motion for summary judgment as to liability and the State's cross-motion for summary judgment dismissing the Claim:

Papers Numbered

Notice of Motion, "Affirmation" in Support 1

Notice of Motion, Affirmation in Opposition to

Claimant's Motion and in Support of Cross-Motion

and Exhibits Attached 2

Opposition to Cross-Motion, "Affirmation" 3

Filed Papers: Claim, Amended Claim, Answer, Answer to Amended Claim