New York State Court of Claims

New York State Court of Claims

ORTIZ v. THE STATE OF NEW YORK, #2009-15-192, Claim No. NONE, Motion No. M-76570


As the proposed claim would require this Court to review and vacate DOCS’ administrative imposition of PRS, jurisdiction is lacking and late claim relief was denied.

Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

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

Claimant’s attorney:
Robert Dembia, P.C.By: Robert Dembia, Esquire
Defendant’s attorney:
Honorable Andrew M. Cuomo, Attorney General
By: Michael T. Krenrich, EsquireAssistant Attorney General
Third-party defendant’s attorney:

Signature date:
July 23, 2009
Saratoga Springs

Official citation:

Appellate results:

See also (multicaptioned case)


Movant seeks late claim relief pursuant to Court of Claims Act § 10 (6). The proposed claim alleges that on January 22, 2002 movant was sentenced upon a plea of guilty to a 3-year determinate prison term without any term of postrelease supervision ("PRS"). Notwithstanding the failure of the sentencing court to impose a term of PRS, the movant alleges that the State of New York Unified Court System, Division of Parole and Department of Correctional Services administratively imposed a five-year term of postrelease supervision, which ended on November 21, 2008. The proposed claim does not allege that the movant sought review of the administrative imposition of PRS by way of a proceeding pursuant to either article 70 or 78 in the Supreme Court. Nor is there any allegation that the movant was resentenced without the imposition of the PRS term pursuant to Correction Law § 601-d. Rather, the movant alleges that "[o]n or about November 21, 2008, the five year term of post release supervision to which I was wrongly subjected expired" (Affidavit of Ismael Ortiz, p. 3, ¶ 4 [i]). Although page 4 of the proposed claim is missing (Exhibit A), movant's attorney's affirmation submitted in support of the motion makes clear that the movant proposes to assert multiple causes of action arising out of the administrative imposition of postrelease supervision, including a cause of action for wrongful confinement.

The first issue for determination is whether this court has subject matter jurisdiction to entertain a damages claim arising out of the administrative imposition of a term of PRS which remains undisturbed. The law is clear that "[a]s a court of limited jurisdiction, the Court of Claims has no jurisdiction to grant strictly equitable relief" (Madura v State of New York, 12 AD3d 759, 760 [2004], lv denied 4 NY3d 704 [2005], citing Ozanam Hall of Queens Nursing Home v State of New York, 241 AD2d 670, 671 [1997] and Psaty v Duryea, 306 NY 413 [1954]). The threshold question in determining the subject matter of the Court of Claims is "[w]hether the essential nature of the claim is to recover money, or whether the monetary relief is incidental to the primary claim" (Matter of Gross v Perales, 72 NY2d 231, 236 [1988]; see also Guy v State of New York, 18 AD3d 936 [2005]). "The second inquiry, regardless of how a claimant categorizes a claim, is whether the claim would require review of an administrative agency's determination – which the Court of Claims has no subject matter jurisdiction to entertain . . . " (City of New York v State of New York, 46 AD3d 1168, 1169 [2007], lv denied 10 NY3d 705 [2008]; citing Hoffman v State of New York, 42 AD3d 641, 642 [2007] and Matter of Scherbyn v Wayne-Finger Lakes Bd. of Coop. Educ. Servs., 77 NY2d 753, 757 [1991]; see also Matter of Salahuddin v Connell, 53 AD3d 898 [2008]; Sidoti v State of New York, 115 AD2d 202, 203 [1985]; Schaffer v Evans, 86 AD2d 708, 709 [1982], affd 57 NY2d 992 [1982]). Here, it is clear that although the proposed claim seeks only monetary damages, it would require review of an administrative determination which this Court has no jurisdiction to entertain. It is settled that "an administrative agency's determination may be reviewed only in the context of a CPLR article 78 proceeding commenced in Supreme Court, and not in an action brought in the Court of Claims" (Buonanotte v New York State Off. of Alcoholism & Substance Abuse Servs., 60 AD3d 1142 [2009]). Whether a body or officer proceeded in excess of jurisdiction is a question reviewable in a proceeding pursuant to CPLR 7803 (2). In fact, this was the procedural vehicle utilized by the petitioner in Matter of Garner v New York State Dept. of Correctional Servs. (10 NY3d 358 [2008]), which held that a term of PRS "is not automatically included in the pronouncement of a determinate sentence, and thus a defendant has a statutory right to have that punishment imposed by the sentencing judge" (Id. at 363).[1] Here, movant could have similarly sought to prohibit the administrative imposition of PRS in a proceeding pursuant to CPLR 7803 (2) but failed to do so. Movant may not now be permitted to collaterally attack the administrative imposition of a term of PRS under the guise of a claim for money damages (see e.g. Lublin v State of New York, 135 Misc 2d 419, 420 [1987], affd 135 AD2d 1155 [1987], lv denied 71 NY2d 802 [1988]).

As the proposed claim would require review of an administrative agency's determination, the Court of Claims lacks jurisdiction to hear the claim. Accordingly, movant's application for an order granting late claim relief is denied.

July 23, 2009
Saratoga Springs, New York

Judge of the Court of Claims

The Court considered the following papers:
  1. Notice of motion dated April 16, 2009;
  2. Affidavit of Ismael Ortiz sworn to April 16, 2009;
  3. Affirmation of Robert Dembia dated April 16, 2009 with exhibits;
  4. Affirmation of Michael T. Krenrich dated May 13, 2009;
  5. Reply affirmation of Robert Dembia dated May 18, 2009.

[1]. Decided the same day as Garner, People v Sparber (10 NY3d 457 [2008]) rejected the argument that expungement is the proper remedy for a term of PRS imposed by DOCS. Rather, the Court stated that "[t]he sole remedy for a procedural error such as this is to vacate the sentence and remit for a resentencing hearing so that the trial judge can make the required pronouncement . . ." (10 NY3d at 471).