Opinion
108257
Decided April 5, 2005.
MITCHELL D. KESSLER, ESQ., Claimant's attorney.
HON. ELIOT SPITZER, ATTORNEY GENERAL, Defendant's attorney, Leslie A. Stroth, Esq., Assistant Attorney General, Third-party defendant's attorney.
Recitation:
In reaching its decision on the motion and cross-motion, the Court has relied on the following papers:
(1) Notice of Motion for Summary Judgment dated September 7, 2004 and filed on September 14, 2004;
(2) Affidavit In Support of Carlos Rivera, sworn to September 7, 2004 and filed on September 14, 2004, together with Exhibits A-D, ( Rivera Affidavit);
(3) Notice of Cross-Motion for Summary Judgment and Dismissal dated November 24, 2004 and filed on November 29, 2004;
(4) Affirmation in Support of the Cross-Motion and in Opposition to the Motion, of Leslie A. Stroth, Assistant Attorney General, dated November 24, 2004 and filed November 29, 2004, together with Exhibits A-J ( Stroth Affirmation);
(5) Affirmation in Reply of Mitchell D. Kessler, Esq., dated December 20, 2004 and filed January 3, 2005 ( Kessler Affirmation);
(6) Reply to Claimant's Affirmation in Opposition to Defendant's Cross-Motion for Summary Judgment of Leslie A. Stroth, Assistant Attorney General, dated January 18, 2005 and filed on January 20, 2005 ( Stroth Reply).
Text of the decision:
Statement of Facts
In 2001, after having been convicted of sodomizing a six year old girl, the Claimant was released on parole, subject to various conditions (Notice of Cross-Motion, Exhibit C), as well as special conditions (Notice of Cross-Motion, Exhibit D). Included in the special conditions was a requirement that the Claimant not pick-up hitchhikers, or offer rides to men, women and/or children without prior knowledge or permission of his parole officer (Notice of Cross-Motion, Exhibit D, ¶ 6).
On February 8, 2002, the Claimant was observed driving a car with a woman passenger (Notice of Cross-Motion, Exhibit E). As a result of his actions, the Claimant's parole officer, Oscar Soto, violated him. The Claimant was thereafter arrested, waived a preliminary hearing, and was held for a Final Hearing.
The special conditions also prohibited the Claimant from obtaining a drivers license without the permission of his parole officer (Notice of Cross-Motion, Exhibit D, condition 5).
At his Final Hearing, the Claimant submitted the testimony of Miriam Hernandez, who stated that the Claimant was behind the wheel because the passenger door was broken. She also presented a receipt from a garage showing a repair of the door.
The Administrative Law Judge sustained the violation and was affirmed by the Commissioners from the Parole Board. The decision was ultimately reversed by an Appellate Administrative Board on March 17, 2003. The Commissioners found that the special condition prohibiting the Claimant from obtaining a drivers license without permission did not prohibit him from driving a car. They also found that the Division of Parole had failed to prove the case beyond a reasonable doubt (Notice of Cross-Motion, Exhibit J).
As a result of the reversal, the Claimant initiated the present action.
The Claimant alleges that the State Board of Parole and the individual parole officers sought to "frame" him. He further alleges that he has been a victim of false arrest and false imprisonment. In the instant Motion, Claimant moves for Summary Judgment in his favor. The State cross-moves for Summary Judgment dismissing the Claim because the Court lacks jurisdiction. In view of the fact that the greatest portion of the arguments deal with the issue of jurisdiction, the Court will consider this issue first.
The Court will not discuss the allegation concerning violation of 42 USCA § 1983 inasmuch as the Court has no jurisdiction over the alleged violation of this federal statute.
The State contends that the Court lacks jurisdiction because the decisions of the Division of Parole are quasi-judicial in nature and subject to immunity ( Stroth Affirmation, ¶¶ 25 and 27). The State's argument relies on the applicability of two cases which are cited by the Defendant. In the first case, Lublin v. State of New York ( 135 Misc 2d 419, affd 135 AD2d 1155, lv denied 71 NY2d 802), Judge Weisberg held that the question of parole and its revocation are sovereign in nature, and the State has not waived immunity with respect to these activities. In Semkus v. State of New York, 272 AD2d 74 (1st Dept. 2000), the Appellate Division held that a claim based upon an alleged improper parole revocation was barred, because the decision of the Parole Board even though erroneous was quasi-judicial in nature and that, therefore, the State was immune from suit.
The attorney for the Claimant seeks to distinguish both cases, relying on various factual distinctions ( Kessler Reply, p. 2). After reading the Claimant's papers, the Court is not persuaded that the rule of law articulated in these cases is not applicable to the instant matter. The Court also finds that the Claimant's reliance on the case of Best v. State of New York ( 264 AD2d 404), is misplaced. In Best, the Court held that the State had erroneously argued that the acts of parole officers were subject to absolute immunity. The State Appellate Division found that the acts of the parole officers were entitled to qualified immunity ( Best v. State of New York, at 404-405). In the instant case, the State has argued that the parole officers are entitled to a qualified rather than an absolute immunity. Also, there has been no challenge to the fact that the parole officers followed the proper procedure in reporting the Claimant's conduct to the appropriate authority, who had a warrant issued. Although Claimant alleges that the officers "framed" him, he has not challenged their statements, either in a preliminary hearing, which he waived, or submitted facts to sustain his allegation. In fact, he substantiated the claim of the officers that he was behind the wheel of a car, although he sought to explain his action as a result of a broken passenger door. The Court finds that the action of the Division of Parole was quasi-judicial in nature and, therefore, cloaked with immunity and that, accordingly, an action may not be maintained against the Defendant based on such decisions ( see Tarter v. State of New York, 68 NY2d 511). Therefore, it is
The case is also distinguishable in that the Claimant, Mr. Rivera unlike the Claimant Ms. Best did not seek a writ of habeas corpus.
ORDERED, that Claim No. 108257 be dismissed.
Having dismissed the claim, the Court need not consider the Claimant's application for summary judgment.