Opinion
# 2011-038-565 Claim No. 119778 Motion No. M-80073 Cross-Motion No. CM-80129
10-26-2011
WORD v. STATE OF NEW YORK
Synopsis
Defendant's cross motion to dismiss claim for damages arising from failure of Board of Parole to determine claimant's administrative appeal granted. Claim required review of administrative procedure, which review should be sought in an Article 78 proceeding. Case information
UID: 2011-038-565 Claimant(s): DIANE WORD Claimant short name: WORD Footnote (claimant name) : Defendant(s): STATE OF NEW YORK Footnote (defendant name) : Third-party claimant(s): Third-party defendant(s): Claim number(s): 119778 Motion number(s): M-80073 Cross-motion number(s): CM-80129 Judge: W. BROOKS DeBOW Claimant's attorney: DIANE WORD, Pro se ERIC T. SCHNEIDERMAN, ATTORNEY GENERAL Defendant's attorney: OF THE STATE OF NEW YORK By: Thomas R. Monjeau, Assistant Attorney General Third-party defendant's attorney: Signature date: October 26, 2011 City: Albany Comments: Official citation: Appellate results: See also (multicaptioned case) Decision
Claimant, an individual who is incarcerated in a State correctional facility, filed this claim seeking monetary damages for injuries allegedly suffered as a result of the failure of the Board of Parole to issue a written disposition of claimant's appeal from a denial of parole. Claimant moves for a default judgment on the ground that defendant has failed to provide disclosure of certain materials. Defendant opposes claimant's motion and cross-moves for dismissal of the claim for lack of subject matter jurisdiction. Claimant opposes the cross motion.
Turning first to the cross motion to dismiss the claim, defendant asserts that the Court of Claims lacks jurisdiction to review a decision of the Board of Parole (see Monjeau Affirmation, ¶¶ 6-7), and further contends that the Board's failure to timely render a decision on an appeal from a denial of parole does not give rise to a cause of action for money damages (see id., ¶¶ 8-9). Claimant argues that the Court of Claims has jurisdiction over this claim because claimant is seeking only money damages (see Claimant's Pro Se Objection, ¶2.[2]), and contends that defendant's arguments regarding the timeliness of defendant's determination of her administrative appeal are misplaced (see id., ¶2.[1]).
In this regard, claimant argues that 9 NYCRR § 8006.4(c), upon which defendant relies, is inapplicable to the facts as alleged in the claim. That section provides that if the Board of Parole appeals unit does not issue its findings and recommendations within four months, an inmate may deem his or her administrative remedies to be exhausted and may seek judicial review. While this provision, on its face, does not address the instant situation - where the appeals unit issues findings and recommendations but the reviewing members of the Board do not issue a disposition - it has been held to apply to situations, like here, in which the administrative appeal has not been timely decided (see Matter of Grigger v New York State Div. of Parole, 16 AD3d 853 [3d Dept 2005], lv denied 5 NY3d 702 [2005]; Matter of Graham v New York State Div. of Parole, 269 AD2d 628 [3d Dept 2000], lv denied 95 NY2d 753 [2000]; Matter of Lord v State of N.Y. Exec. Dept. Bd./Div. of Parole, 263 AD2d 945 [4th Dept 1999], lv denied 94 NY2d 753 [1999]). The issue of exhaustion of administrative remedies, i.e., whether 9 NYCRR § 8006.4(c) applies in this situation, is a matter to be resolved in the Article 78 proceeding (see e.g. Maldonado v New York State Div. of Parole, 87 AD3d 1231 [2011]; People ex rel. Martinez v Beaver, 8 AD3d 1095 [4th Dept 2004]).
The Court of Claims has subject matter jurisdiction over claims against the State when the essential nature of the claim is to recover money (see Guy v State of New York, 18 AD3d 936, 937 [3d Dept 2005], quoting Harvard Fin. Servs. v State of New York, 266 AD2d 685, 685 [1999]), but lacks jurisdiction "where monetary relief is incidental to the primary claim" (id. [internal quotations omitted]). Monetary relief is incidental to the primary claim if "the claim would require review of an administrative agency's determination" (Carver v State of New York, 79 AD3d 1393, 1394 [3d Dept 2010], quoting Buonanotte v New York State Off. of Alcoholism & Substance Abuse Servs., 60 AD3d 1142, 1143 [2009], lv denied 12 NY3d 712 [2009]). The administrative process for the review and determination of an appeal from a denial of parole is set forth in 9 NYCRR § 8006.4, and the instant claim would require review of whether the Board of Parole complied with that provision.Thus, this Court lacks subject matter jurisdiction to hear the claim.
This view of the claim is supported by the claim itself, which alleges that the reviewing members of the Board of Parole "fail[ed] to perform [a] ministerial duty enjoined by law upon them" (Claim number 119778, p.1). This is an alleged omission for which review is available in Supreme Court pursuant to Article 78 of the CPLR (see CPLR 7803[1]).
It must be noted that the Court's determination of the nature of the claim is not mandated by the claimant's characterization of the claim (see Carver v State of New York, supra), and thus, the fact that the claim alleges that defendant's failure to act is tortious conduct is not controlling. Further, to the extent that claimant alleges a State constitutional tort, such a claim does not lie when a proceeding pursuant to CPLR Article 78 is an available remedy (see id., citing Martinez v City of Schenectady, 97 NY2d 78, 83 [2001]; Partee v State of New York, UID # 2009-038-578, Claim No. 117058, Motion Nos. M-77197, CM-77225, DeBow, J. [Dec. 11, 2009]). To the extent that the claim alleges a deprivation of rights under the Federal constitution, such a claim must be brought under a cause of action pursuant to 42 USC § 1983, over which the Court of Claims lacks jurisdiction (see Carlson v State of New York, UID # 2011-034-547, Claim No. 113748, Motion No. M-79726, Hudson, J. [Sept. 8, 2011]).
Defendant's cross motion to dismiss the claim for lack of subject matter jurisdiction is meritorious, and the claim must be dismissed. Accordingly, claimant's motion for default judgment need not be addressed. It is
ORDERED, that claimant's motion number M-80073 is DENIED as moot, and it is further
ORDERED, that defendant's cross motion number CM-80129 is GRANTED, and claim number 119778 is DISMISSED.
October 26, 2011
Albany, New York
W. BROOKS DeBOW
Judge of the Court of Claims
Papers considered:
(1) Claim Number 119778, filed April 26, 2011;
(2) Notice of Motion for Default Judgement in Favor of the Claimant for Such Sum as Should
be Paid by State to Claimant, dated June 23, 2011;
(3) "Affirmation" in Support of Motion for Default Judgement in Favor of the Claimant for
Such Sum as Should be Paid by State to Claimant, dated June 23, 2011;
(4) Notice of Cross Motion, dated July 19, 2011;
(5) "Affidavit" in Opposition and in Support of Motion to Dismiss of Thomas R. Monjeau, AAG, dated July 19, 2011, with Exhibits A-C;
(6) Claimant's Pro Se Objection to the Defendant's Cross Motion and Objection to Defendant's
Motion to Dismiss, dated July 25, 2011.