New York State Court of Claims

New York State Court of Claims

NADAL v. STATE OF NEW YORK, #2009-040-086, Claim No. 116110, Motion No. M-77025


State’s motion to dismiss pursuant to CPLR 3211(a)(7) for failure to state a cause of action granted.

Case Information

1 1.Caption amended to reflect the State of New York as the proper defendant.
Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :
Caption amended to reflect the State of New York as the proper defendant.
Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
Cross-motion number(s):

Claimant’s attorney:
GETZ & BRAVERMAN, P.C.By: Michael Braverman, Esq.
Defendant’s attorney:
Attorney General of the State of New YorkBy: Thomas R. Monjeau, Esq., AAG
Third-party defendant’s attorney:

Signature date:
November 10, 2009

Official citation:

Appellate results:

See also (multicaptioned case)


For the reasons set forth below, Defendant’s motion to dismiss, pursuant to CPLR 3211(a)(7) on the basis that the Claim fails to state a cause of action, is granted.

The Claim, which was filed with the Clerk of the Court on November 21, 2008, alleges that:
On or about September 23, 2005, Claimant was sentenced to an indeterminate sentence of 1 and one half to 3 years incarceration. The Claimant’s September, 2005 Sentence and Commitment was silent regarding Claimant’s 1999 sentence, yet the Respondent unilaterally and without authority, calculated Claimant’s sentences consecutively.
Defense counsel asserts, in his affirmation submitted in support of the State’s motion, that, assuming all the allegations and facts set forth in Claimant’s Claim are true and will be proved at trial, there is no merit to the Claim (Affirmation of Thomas R. Monjeau, Esq., ¶ 2). Counsel asserts that the Court of Appeals has addressed and settled the exact issue raised in this Claim in People ex rel. Gill v Greene (12 NY3d 1 [2009]) and the ruling is contrary to Claimant’s position (id.).

Claimant has submitted no opposition to the State’s motion[2].

In People ex rel. Gill v Greene (supra), Mr. Gill “asserted that his 1994 sentence was, as a matter of law, concurrent with the earlier ones, because the sentencing court had not said otherwise” (id. at 4-5). This is the same argument Claimant is making in his Claim.

The Court of Appeals stated in Gill:
There is no question that, ... the sentencing court was required in 1994 to impose a consecutive sentence. Gill was sentenced under the second felony offender statute, Penal Law § 70.06, and his sentence was therefore governed by Penal Law § 70.25 (2-a), which says: “When an indeterminate ... sentence of imprisonment is imposed pursuant to section ... 70.06 ... and such person is subject to an undischarged indeterminate or determinate sentence of imprisonment imposed prior to the date on which the present crime was committed, the court must impose a sentence to run consecutively with respect to such undischarged sentence.” (id. at 5).
Here, there is no dispute that Claimant’s sentence was governed by Penal Law § 70.25 (2-a). Penal Law § 70.25 (2-a) says the second sentence must be consecutive.
Nothing in the statute and nothing in the Constitution requires the sentencing court to say the word “consecutive,” either orally or in writing. Nothing in the statute even requires that the sentencing court be made aware that the prior sentences are undischarged. (id. at 6).
The Court of Appeals in Gill further stated:
We read the words of Penal Law § 70.25 (2-a) – “the court must impose a sentence to run consecutively with respect to such undischarged sentence” – to mean that any sentence imposed by the court shall run consecutively to the undischarged sentence, whether the sentencing court says so or not. (id.).
The Court held that the Department of Correctional Services properly interpreted Mr. Gill’s 1994 sentence as being consecutive to his previous underlying sentences as required by Penal Law § 70.25 (2-a) (id. at 7).

Claimant’s Claim is identical to that of Mr. Gill. The Court finds that the decision of People ex rel. Gill v Greene (12 NY3d 1 [2009]) is directly on point. The Court concludes that Claimant was properly sentenced to consecutive terms of imprisonment and his Claim, therefore, fails to state a cause of action. The State’s motion to dismiss pursuant to CPLR 3211(a)(7) is granted and the Claim is dismissed.

November 10, 2009
Albany, New York

Judge of the Court of Claims

The following papers were read and considered by the Court on the State’s motion to dismiss:

Papers Numbered

Notice of Motion, Affirmation
& Exhibits attached 1

Filed Papers: Claim, Answer

[2].The Court’s principal law clerk contacted Claimant’s counsel on the motion’s return date to inquire if he had submitted opposition papers. Counsel advised that he was not opposing the motion.