Opinion
# 2015-040-021 Claim No. 125157 Motion No. M-86019 Cross-Motion No. CM-86357
04-27-2015
JUNIEPA FACEY, Individually and as the Administrator of the Estate of RAYMOND FACEY and on behalf of distributes therein v. THE STATE OF NEW YORK
STEWART LAW FIRM, PLLC By: Nadira S. Stewart, Esq. ERIC T. SCHNEIDERMAN Attorney General of the State of New York By: Anthony Rotondi, Esq., AAG
Synopsis
Claimant's decedent was murdered by a parolee from state prison. The Claim alleges that the parole board improperly released him. State's motion to dismiss on the basis that parole board determinations are absolutely immune from liability granted.
Case information
| UID: | 2015-040-021 |
| Claimant(s): | JUNIEPA FACEY, Individually and as the Administrator of the Estate of RAYMOND FACEY and on behalf of distributes therein |
| Claimant short name: | FACEY |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| 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): | 125157 |
| Motion number(s): | M-86019 |
| Cross-motion number(s): | CM-86357 |
| Judge: | CHRISTOPHER J. McCARTHY |
| Claimant's attorney: | STEWART LAW FIRM, PLLC By: Nadira S. Stewart, Esq. |
| Defendant's attorney: | ERIC T. SCHNEIDERMAN Attorney General of the State of New York By: Anthony Rotondi, Esq., AAG |
| Third-party defendant's attorney: | |
| Signature date: | April 27, 2015 |
| City: | Albany |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
For the reasons set forth below, Defendant's motion to dismiss on the basis that the decisions of the Parole Board are absolutely immune from liability is granted. The remainder of the State's motion to dismiss is denied as moot. Claimant's cross-motion to amend the Claim pursuant to CPLR 3025 is denied.
The Claim, which was filed with the Clerk of the Court on October 23, 2014, alleges that Claimant is the wife of decedent, Raymond Facey, and is administrator of his estate. The Claim alleges that, on October 23, 2012 from approximately 10:30 a.m. through 11:30 a.m., while Mr. Facey was pulled over on the Cross Island Parkway, within a five-mile radius of 241st Street and Jamaica Avenue in Queens, New York, Mr. Facey was murdered during a car-jacking by Darrell Fuller (Claim, ¶¶ 7 & 11). It is asserted that Mr. Fuller was improperly released on parole by the New York State Parole Board.
Defendant moves to dismiss the Claim on three separate grounds. The first is that, in pleading a cause of action for negligent performance of a governmental function, Claimant bears the burden of pleading and showing that Defendant owed a special duty to the decedent. Defendant asserts that the Claim fails to state a cause of action because the Claim does not allege a special duty and is devoid of any facts that could create such a special duty (Affirmation in Support of Anthony Rotondi, ¶ 6 [hereinafter, "Rotondi Affirmation"]).
The second asserted ground for dismissal is that Claimant has failed to comply with Court of Claims Act § 11(b) in that Claimant has failed to state the place where the Claim arose with sufficient particularity and, thus, the Claim is jurisdictionally defective and should be dismissed (Rotondi Affirmation, ¶¶ 8, 9, 11).
The third asserted ground for dismissal is that determinations pertaining to parole are sovereign and quasi-judicial in nature and, therefore, in making such determinations, the State is absolutely immune from tort liability (Rotondi Affirmation, ¶ 12). Defendant asserts that Claimant has thus failed to state a cause of action.
The Court will deal with Defendant's third argument first. In opposition to the motion, Claimant's counsel asserts that the State is not immune in all instances pertaining to parole determinations such as where its actions are beyond the scope of its authority or in contravention of applicable rules and regulations, or where the discretion afforded to Defendant was not, in fact, exercised (see Arteaga v State of New York, 72 NY2d 212, 220 [1988]; Robinson v State of New York, UID No. 2014-018-534 [Ct Cl, Fitzpatrick, J., Sept. 30, 2014]) (Affirmation of Nadira S. Stewart, Esq., ¶¶ 43, 44, 45).
In Tarter v State of New York (68 NY2d 511, 518-519), the Court of Appeals stated:
The functions of the impartial [Parole] Board in deciding whether to grant parole are classically judicial tasks (Butz v Economou, 513-514; Sellers v Procunier, 641 F2d 1295, 1303, cert denied 454 US 1102; see also, Cleavinger v Saxner [106 S Ct 496,] 502; Santangelo v State of New York, 101 AD2d 20, 28). The Board must measure the facts of a particular inmate's case against the backdrop of the guidelines. Just as a Judge performs the original sentencing function, weighing the defendant's particular situation against case law, sentencing statutes and the Judge's prior experience, the Board must fit the inmate's factual circumstances within the guidelines and use its discretion in its disposition of the matter. Both are decisions which involve the officials' expertise, an application of law and an exercise of their judgment. We do not suggest that every official act involving discretion will be considered a judicial function conferring absolute immunity. It is the peculiar nature of the duties of the Board of Parole with respect to the weighing of evidence, deciding the relative importance of the determining factors and the ultimate discretionary disposition which render it so. Therefore, the Board's actions are entitled to absolute immunity, notwithstanding that discovery could prove claimants' allegations.
The Court of Appeals also held that any claim based upon the negligent supervision of a parolee fails because claimant completely failed to allege both a special duty to protect the claimant and that claimant relied on specific assurances of protection (id. at 519). Accordingly, the Court of Appeals dismissed the case.
Here, as in Tarter (supra), a person was attacked by a parolee. The allegations here also are similar. Based upon the Court of Appeals' determination that the Parole Board's determinations are entitled to absolute immunity, the Court grants the motion to dismiss on those grounds, and the Claim hereby is dismissed.
The Court does not find it necessary to address the other prongs of the State's motion and they are denied as moot. Claimant's cross-motion to amend is denied as the proposed amendment does not change the case law, as stated above, that Parole Board determinations are entitled to absolute immunity. In addition, Claimant asserts in the proposed Amended Claim, that the State improperly supervised the parolee. However, as was the case in Tarter (supra), the negligent supervision of the parolee, as stated in the proposed Amended Claim, must fail as Claimant failed to allege a special duty to protect decedent as an identified person and reliance on the part of decedent on a specific assurance of protection.
April 27, 2015
Albany, New York
CHRISTOPHER J. McCARTHY
Judge of the Court of Claims
The following papers were read and considered by the Court on Defendant's motion for dismissal and Claimant's cross-motion to serve and file an amended Claim:
Papers Numbered
Notice of Motion, Affirmation in Support & Exhibit attached 1
Notice of Cross-Motion, Affirmation in
Opposition to State's Motion & in Support of Claimant's Cross-Motion & Exhibits attached 2
Affirmation in Further Support of State's Motion & in Opposition to Cross-Motion & Exhibit attached 3
Reply Affirmation in Support of Cross-Motion 4
Filed Papers: Claim