Opinion
# 2012-041-091 Claim No. 118462 Motion No. M-81814 Cross-Motion No. CM-81971
11-07-2012
WILLIAM ROACH v. THE STATE OF NEW YORK
Synopsis
Claim alleging that defendant unlawfully confined claimant beyond correct maximum expiration date is dismissed on defendant's cross-motion for summary judgment where period of confinement at issue was privileged. Claimant's negligence cause of action based upon ALJ error in setting parole delinquency date is barred by quasi-judicial immunity defense. Case information
UID: 2012-041-091 Claimant(s): WILLIAM ROACH Claimant short name: ROACH Footnote (claimant name) : Defendant(s): THE STATE OF NEW YORK Footnote (defendant name) : Third-party claimant(s): Third-party defendant(s): Claim number(s): 118462 Motion number(s): M-81814 Cross-motion number(s): CM-81971 Judge: FRANK P. MILANO ROURKE FINE & JANUSAS, ESQS. Claimant's attorney: By: Kenneth J. Gorman, Esq. HON. ERIC T. SCHNEIDERMAN New York State Attorney General Defendant's attorney: By: Thomas R. Monjeau, Esq. Assistant Attorney General Third-party defendant's attorney: Signature date: November 7, 2012 City: Albany Comments: Official citation: Appellate results: See also (multicaptioned case) Decision
Claimant moves for partial summary judgment as to defendant's liability in this wrongful confinement claim. Defendant opposes the claimant's motion and cross-moves for summary judgment dismissing the claim.
The claim alleges that claimant was wrongfully imprisoned for fifty-seven (57) days, commencing March 1, 2010 and ending April 26, 2010, because his maximum expiration date was "erroneously entered as March 1, 2011, instead of the correct date of March 1, 2010."
According to the claim, claimant was initially sentenced in Kings County Supreme Court on December 7, 2004 to a "two year sentence nunc pro tunc to September 26, 2004, with a three year period of post release supervision until September 26, 2009."
Claimant was released to postrelease supervision on September 26, 2006 and was arrested pursuant to a parole warrant on November 24, 2009 based upon claimant's failure "to report to parole on June 18, 2009."
The claim further alleges that claimant "was sentenced on the parole violation on December 11, 2009 until his Maximum Expiration date, however this date was erroneously entered as March 1, 2011, instead of the correct date of March 1, 2010."
The claim currently sounds in wrongful confinement and negligence. The claim's causes of action for intentional or negligent infliction of emotional distress and for violation of claimant's constitutional rights were dismissed by the Court's previous Decision and Order, filed November 29, 2010.
The defendant's answer alleges as affirmative defenses, among several affirmative defenses, that the claim fails to state a cause of action, that defendant's acts were privileged and were discretionary and immune from liability.
In its motion papers, defendant acknowledges that March 1, 2010, rather than March 1, 2011, was claimant's correct maximum expiration date. Defendant explains that the mistake as to claimant's maximum expiration date was due to an error by the Administrative Law Judge presiding at claimant's parole revocation hearing of December 11, 2009. The Administrative Law Judge stated on the record at the hearing, and in her written Parole Revocation Decision Notice, that claimant's Parole Delinquency Date was June 18, 2008 rather than the correct date of June 18, 2009. Claimant does not deny that the Administrative Law Judge's error was the cause of the incorrect maximum expiration date calculation by defendant, and, consequently, of claimant's incarceration beyond his correct maximum expiration date.
The standard for review of these motions is well-established. "A motion for summary judgment should be entertained only after the moving party has established, by competent admissible evidence, that it is entitled to judgment as a matter of law. . . If the movant meets this initial burden, the opposing party is required to submit evidence which raises a material issue of fact to preclude an award of summary judgment" (Ware v Baxter Health Care Corp., 25 AD3d 863, 864 [3d Dept 2006]).
Once the moving party has satisfied this obligation, the burden shifts and the party opposing the motion must demonstrate by admissible evidence the existence of a factual issue (see Svoboda v Our Lady of Lourdes Mem. Hosp., Inc., 31 AD3d 877 [3d Dept 2006]).
No questions of fact have been raised. Neither party suggests that issues of fact exist. The motions involve matters of law alone.
Claimant's negligence cause of action will be considered first. The only potential basis for negligence liability appearing in the record is the error of the Administrative Law Judge in stating, on the record at the hearing, and in her written Parole Revocation Decision Notice, that claimant's Parole Delinquency Date was June 18, 2008 rather than the correct date of June 18, 2009
The error of the Administrative Law Judge, however, cannot serve as a basis of liability because absolute immunity attaches to any purportedly negligent acts or omissions in the quasi-judicial Parole Revocation Hearing (Tarter v State of New York, 68 NY2d 511, 518-519 [1986]; see Executive Law § 259-i [5]: "Any action by the board [of parole] or by a hearing officer pursuant to this article shall be deemed a judicial function"). This point is illustrated by Semkus v State of New York (272 AD2d 74 [1st Dept 2000], lv denied 95 NY2d 761 [2000]), in which the claimant sought damages for alleged illegal incarceration after the Division of Parole mistakenly classified him as a Category 2 violator and revoked his parole. The Semkus court reminded that "[d]eterminations pertaining to parole and its revocation, however, are deemed strictly sovereign and quasi-judicial in nature and, accordingly, the State, in making such determinations, is absolutely immune from tort liability" (Semkus, 272 AD2d at 75).
Defendant's subsequent miscalculation of claimant's maximum expiration date, based upon the incorrect Parole Delinquency Date, is also insufficient to support claimant's negligence cause of action. Defendant's obligation to determine a maximum expiration date is a governmental function (see Maguire v New York State Div. of Parole, 304 AD2d 1003 [3d Dept 2003]). Valdez v City of New York (18 NY3d 69, 75 [2011]), explains that where a "case involves . . . a classic governmental, rather than proprietary, function . . . [it is a] fundamental obligation of a [claimant] pursuing a negligence cause of action to prove that the putative defendant owed a duty of care."
In McLean v The City of New York (12 NY3d 194, 203 [2009]), the Court of Appeals recited the law as to the state's duty of care with respect to the negligent performance of a governmental function:
"Government action, if discretionary, may not be a basis for liability, while ministerial actions may be, but only if they violate a special duty owed to the plaintiff, apart from any duty to the public in general."
The calculation of a maximum expiration date (as well as the accurate recital of its underlying Delinquency Date) is a "a continuing, nondiscretionary, ministerial obligation" (Matter of Bottom v Goord, 96 NY2d 870, 872 [2001]).
Claimant is thus required to prove that he was owed a special duty by defendant (Valdez, 18 NY3d at 80: "[I]f [claimant] cannot overcome the threshold burden of demonstrating that defendant owed the requisite duty of care, there will be no occasion to address whether defendant can avoid liability by relying on the governmental function immunity defense").
A "[special] duty is born of a special relationship between the [claimant] and the governmental entity. When such a relationship is shown--and it is [claimant's] burden to establish it--the government is under a duty to exercise reasonable care toward the [claimant]" (Pelaez v Seide, 2 NY3d 186, 198-199 [2004]). The Pelaez opinion explains that a "special relationship can be formed in three ways: (1) when the [defendant] violates a statutory duty enacted for the benefit of a particular class of persons; (2) when it voluntarily assumes a duty that generates justifiable reliance by the person who benefits from the duty; or (3) when the [defendant] assumes positive direction and control in the face of a known, blatant and dangerous safety violation" (Pelaez, 2 NY3d at 199-200 [2004).
Claimant has not pled, much less proven, that he was owed a special duty by defendant as contemplated by Pelaez and claimant therefore cannot sustain the "fundamental obligation of a [claimant] pursuing a negligence cause of action to prove that the putative defendant owed a duty of care" (Valdez, 18 NY3d at 75).
Claimant's negligence cause of action fails as a matter of law.
As to claimant's wrongful confinement cause of action, claimant must prove that "(1) the defendant intended to confine him, (2) the [claimant] was conscious of the confinement, (3) the [claimant] did not consent to the confinement and (4) the confinement was not otherwise privileged" (Broughton v State of New York, 37 NY2d 451, 456 [1975], cert denied sub nom. Schanbarger v Kellogg, 423 US 929; Krzyzak v Schaefer, 52 AD3d 979 [3d Dept 2008]).
The only dispute on these motions is whether claimant's confinement was "otherwise privileged."
Claimant argues that the confinement was not "otherwise privileged" because, according to the affirmation of claimant's attorney, defendant "knowingly and intentionally defied a Supreme Court sentencing order" in confining claimant for 57 days beyond his correct maximum expiration date of March 1, 2010. Claimant's attorney does not state that he has any personal knowledge to support this allegation of knowing and intentional defiance of the sentencing order by defendant and offers no alternative admissible proof to support his assertion.
Claimant further argues that defendant lacked any jurisdiction over claimant after March 1, 2010, his correct maximum expiration date.
"There is a distinction between acts performed in excess of jurisdiction and acts performed in the clear absence of any jurisdiction over the subject matter. The former is privileged, the latter is not" (Sassower v Finnerty, 96 AD2d 585, 586 , appeal dismissed 61 NY2d 756 [1984], appeal denied 61 NY2d 608 [1984]; see Collins v State of New York, 69 AD3d 46, 51-52 [4th Dept 2009]; Nazario v State of New York, 75 AD3d 715, 718 [3d Dept 2010], lv denied 15 NY3d 712 [2010]).
The defendant's error regarding claimant's Delinquency Date caused defendant to incorrectly calculate claimant's maximum expiration date as March 1, 2011 rather than March 1, 2010, but the Court finds that defendant had "jurisdiction over the subject matter" (Sassower, 96 AD2d at 586) of its acts regarding claimant, whether mistaken or not, from when claimant was first incarcerated pursuant to his criminal sentence, in 2004, until claimant's discharge from defendant's jurisdiction on April 26, 2010.
The Court further finds that claimant's periods of confinement subsequent to March 1, 2010 were privileged because he was confined pursuant to a facially valid parole warrant and the Parole Revocation Decision Notice, both issued by the Division of Parole which had "jurisdiction over the subject matter" (Sassower, 96 AD2d at 586) of the warrant.
Because the alleged period of confinement was privileged, the claim fails to state a cause of action for wrongful confinement as a matter of law.
Accordingly, the defendant's cross-motion for summary judgment is granted. The claim is dismissed. Claimant's motion for summary judgment is denied as moot.
November 7, 2012
Albany, New York
FRANK P. MILANO
Judge of the Court of Claims
Papers Considered:
1. Claimant's Notice of Motion, filed July 2, 2012;
2. Affirmation of Kenneth J. Gorman, dated June 28, 2012, and annexed exhibits;
3. Defendant's Notice of Cross-Motion, filed August 7;
4. Affirmation of Thomas R. Monjeau, dated July 30, 2012, and annexed exhibits.