Claimant moved to reargue this Court's prior decision and order dismissing the claim upon a finding that this Court lacks jurisdiction to review decisions of the Board of Parole. The motion was denied.
|Claimant short name:||JOHNSON|
|Footnote (claimant name) :|
|Defendant(s):||STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||FRANCIS T. COLLINS|
|Claimant's attorney:||Johnathan Johnson, Pro Se|
|Defendant's attorney:||Honorable Andrew M. Cuomo, Attorney General
By: Michael C. Rizzo, Esquire
Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||May 20, 2010|
|See also (multicaptioned case)|
Claimant, an inmate proceeding pro se, seeks an Order pursuant to CPLR 2221 granting reargument of this Court's prior Decision and Order dismissing the claim upon a finding that this Court lacks jurisdiction to review decisions of the Board of Parole and that, in any event, decisions regarding parole release are quasi-judicial in nature and entitled to absolute immunity.
As set forth in this Court's prior Decision and Order, claimant alleges causes of action for "mental and emotional stress, and a liberty interest" stemming from the Board of Parole's denial of his release to parole supervision. Claimant alleges in his first cause of action that he suffered damages as the result of the failure of the Board of Parole to timely render a decision on his appeal from the initial determination denying his request for parole. Claimant alleges in his second cause of action that the Board of Parole improperly relied upon incorrect information contained in his "Presentence Investigation Report" which resulted in the yearly denial of parole from 2005 through 2009 (Claim, p. 4).
It is well settled that a motion to reargue is addressed to the sound discretion of the Court and requires the moving party to demonstrate that the Court overlooked or misapprehended matters of fact or misapplied existing law to the facts presented (see CPLR, Rule 2221 [d] ; Peak v Northway Travel Trailers, 260 AD2d 840 ; Spa Realty Assocs. v Springs Assocs., 213 AD2d 781 ). Such a motion does not serve as a vehicle to permit the unsuccessful party to argue once again the very questions previously decided (Foley v Roche, 68 AD2d 558, 567 , lv denied 56 NY2d 507 ).
Claimant argues in support of the instant motion that this Court overlooked the provisions of Executive Law § 259-q (1) and (2) in dismissing the claim for lack of subject matter jurisdiction. Executive Law 259-q (1) provides that no action shall be brought against any employee of the Division of Parole in his personal capacity "for damages arising out of any act done or the failure to perform any act within the scope of the employment and in the discharge of the duties by such officer or employee." Executive Law § 259-q (2) provides the following:
"Any claim for damages arising out of any act done or the failure to perform any act within the scope of the employment and in the discharge of the duties of any officer or employee of the division shall be brought and maintained in the court of claims as a claim against the state."
As noted by the Appellate Division, Fourth Department, in Moulden v White (49 AD3d 1250, 1251 ), these provisions are identical to those contained in Correction Law § 24, which vests exclusive jurisdiction in the Court of Claims for the redress of claims arising from the conduct of employees of the Department of Correctional Services. Nothing in Executive Law § 259-q (2) changes the principle that this Court lacks jurisdiction to review an administrative determination (Buonanotte v New York State Off. of Alcoholism & Substance Abuse Servs., 60 AD3d 1142 ). Moulden v White (supra), cited by the claimant, does not hold otherwise. In that case, an action was brought against an employee of the Division of Parole for violations of her constitutional rights and intentional infliction of emotional distress arising from the execution of an arrest warrant. The Court held that the Supreme Court lacked jurisdiction, stating "[J]ust as 'Correction Law § 24 . . . creates an exclusive forum for plaintiffs seeking redress of claims [for conduct by DOCS employees] against the state - the Court of Claims'. . . , Executive Law § 259-q likewise creates an exclusive forum for plaintiffs seeking redress of claims for conduct by employees of the Division" (Id. at 1251 [citation omitted]). In that case, review and vacatur of an administrative determination was unnecessary to a determination of liability. Here, by contrast, any award in claimant's favor would require review and vacatur of the determination of the Division of Parole, equitable relief which this Court lacks jurisdiction to grant (Psaty v Duryea, 306 NY 413 ; Court of Claims Act § 9).
To the extent claimant's second cause of action is based on the conduct of an employee of the probation department in failing to properly prepare the presentence investigation report on which the Board of Parole relied in denying the claimant release to parole supervision, the result is the same. Claimant's recourse was a timely challenge before the sentencing Court, not a plenary action in the Court of Claims (Matter of Sutherland v Alexander, 64 AD3d 1028 ; People v Freeman, 67 AD3d 1202 ).
As claimant failed to establish that the Court overlooked or misapprehended matters of fact or misapplied existing law to the facts presented, claimant's motion for reargument is denied.
May 20, 2010
Saratoga Springs, New York
FRANCIS T. COLLINS
Judge of the Court of Claims
The Court considered the following papers: