Opinion
# 2016-040-106 Claim No. 128227 Motion No. M-89116
12-21-2016
PAUL SALAMONE v. THE STATE OF NEW YORK
Paul Salamone, Pro Se ERIC T. SCHNEIDERMAN Attorney General of the State of New York By: Ray A. Kyles, Esq., AAG
Synopsis
State's pre-answer motion to dismiss on basis Court lacks jurisdiction over Claim because decisions of Parole Board are immune from liability is granted.
Case information
| UID: | 2016-040-106 |
| Claimant(s): | PAUL SALAMONE |
| Claimant short name: | SALAMONE |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 128227 |
| Motion number(s): | M-89116 |
| Cross-motion number(s): | |
| Judge: | CHRISTOPHER J. McCARTHY |
| Claimant's attorney: | Paul Salamone, Pro Se |
|---|---|
| Defendant's attorney: | ERIC T. SCHNEIDERMAN Attorney General of the State of New York By: Ray A. Kyles, Esq., AAG |
| Third-party defendant's attorney: | |
| Signature date: | December 21, 2016 |
| City: | Albany |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
For the reasons set forth below, Defendant's pre-Answer Motion to Dismiss on the basis that this Court lacks jurisdiction because the decisions of the Parole Board (hereinafter, "Board") are absolutely immune from liability is granted. The remainder of the State's Motion to dismiss is denied as moot.
The Claim, which was filed in the office of the Clerk of the Court on July 18, 2016, alleges that, in 2009, Claimant was convicted and sentenced to an indeterminate term of incarceration of four to 12 years (Claim, ¶ 3) and that the sentence commenced upon receipt of Claimant by the Department of Corrections and Community Supervision (hereinafter, "DOCCS") (id.). Claimant asserts that he completed all suggested and required program assignments. Therefore, he became eligible for merit parole release consideration. He was also granted an Earned Eligibility Certificate (id., ¶ 4).
He further states that a merit parole release interview was conducted on September 30, 2014. By decision dated October 3, 2014, Claimant's request for parole was denied and he was ordered held until his initial interview date of June 2, 2015 (Claim, ¶ 5). Claimant asserts, based upon review of the merit release transcript and the printed denial decision, that the decision was legally flawed (id., ¶ 6). Claimant filed an administrative appeal and, when he did not receive an administrative determination within the required 120-day period, he filed a proceeding pursuant to CPLR Article 78 in Supreme Court, Albany County in March 2015 (id., ¶ 7).
While the Article 78 matter was pending, Claimant appeared before the Board for his initial parole release consideration on June 2, 2015 (Claim, ¶ 8). The Board voted to grant Claimant parole effective October 26, 2015 (id.). Claimant asserts, that on June 22, 2015, in the Article 78 proceeding, the Attorney General agreed to a new merit parole interview (id., ¶ 9) and that, on June 26, 2015, Supreme Court, in the Article 78 matter, ordered a de novo merit parole interview. He states that judgment was entered on July 24, 2015 (id., ¶ 10).
Claimant states that he appeared before the Board again on September 1, 2015, and that the hearing was postponed because the Board could not reach a consensus, despite the fact that he had already been granted a parole release date (Claim, ¶ 11). Claimant appeared before a different panel of the Board on September 29, 2015, and was denied release and held to the already-approved release date of October 26, 2015. According to Claimant, the Board declared that he was a threat to the community if released, although he had already been granted parole. Claimant stated that the Board even acknowledged that Claimant could be "getting out a little bit earlier," and that the Board relied on erroneous information (id., ¶ 12).
Defendant moves to dismiss on the basis that the Court lacks subject matter jurisdiction pursuant to CPLR 3211(a)(2) and Claimant has failed to state a cause of action pursuant to CPLR 3211(a)(7). The Appellate Division, Third Department, in Griffin v Anslow (17 AD3d 889, 891-892 [3d Dept 2005]) stated:
It is well established that " '[o]n a motion to dismiss pursuant to CPLR 3211, the pleading is to be afforded a liberal construction. We accept the facts as alleged in the complaint as true, accord [claimants] the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory … [D]ismissal is warranted only if the documentary evidence submitted conclusively establishes a defense to the asserted claims as a matter of law' " (Arnav Indus. Retirement Trust v Brown, Raysman, Millstein, Felder & Steiner, 96 NY2d 300, 303 [2001], quoting Leon v Martinez, 84 NY2d 83, 87-88 [1994] [citations omitted]; see Morgenthow & Latham v Bank of N.Y. Co., 305 AD2d 74, 78 [1st Dept] [2003], lv denied 100 NY2d 512 [2003]; Unadilla Silo Co. v Ernst & Young, 234 AD2d 754 [3d Dept] [1996]). "However, '[i]n those circumstances where the [claimant's] legal conclusions and factual allegations are flatly contradicted by documentary evidence, they are not presumed to be true or accorded every favorable inference, and the criterion becomes "whether the proponent of the pleading has a cause of action, not whether he has stated one" ' " (Morgenthow & Latham v Bank of N.Y. Co., supra at 78, quoting Ark Bryant Park Corp. v Bryant Park Restoration Corp., 285 AD2d 143, 150 [1st Dept] [2001], quoting Guggenheimer v Ginzburg, 43 NY2d 268, 275 [1977] [citations omitted]; see also Biondi v Beekman Hill House Apt. Corp., 257 AD2d 76, 81 [1st Dept] [1999], affd on other grounds 94 NY2d 659 [2000]).
Defendant asserts that, "[w]hile Correction Law § 805 uses mandatory language to create a presumption in favor of release, the due process clause only requires that the inmate be afforded an opportunity to be heard, and that, upon the denial of parole, the Board inform him of the reasons for the denial of parole. The Board still possesses the discretion to determine whether the parole candidate has met the statutory criteria and deserves release" (Affirmation of Ray A. Kyles, Esq., Assistant Attorney General [hereinafter, "Kyles Affirmation"], ¶ 13; see Matter of Rhoden v New York State Div. of Parole, 270 AD2d 550 [3d Dept 2000], lv dismissed 95 NY2d 898 [2000]; Matter of Howard v New York State Div. of Parole, 270 AD2d 539 [3d Dept 2000]; Matter of Salcedo v Ross, 183 AD2d 771 [2d Dept 1992]). "As for due process/constitutional liberty interest in a legitimate expectation of early release, at the Federal level, there is no inherent constitutional right to parole" (id., ¶ 14; see Greenholtz v Nebraska Penal Inmates, 442 US 1, [1979]) "or to be released before the expiration of a valid sentence" (id.; see Swarthout v Cooke, 562 US 216 [2011]). "Nor, under the New York State Constitution, is there a due process right to parole" (id., see Matter of Russo v New York State Bd. of Parole, 50 NY2d 69 [1980]).
Defendant further asserts "that 'determinations pertaining to parole are deemed strictly sovereign and quasi-judicial in nature and, accordingly, the State, in making such determinations, is absolutely immune from tort liability.' Even when the determination is made in error, immunity applies [Semkus v State of New York, 272 AD2d 74 (1st Dept 2000), lv denied 95 NY2d 761 (2000); Mertens v State of New York, 73 AD3d 1376 (3d Dept 2010), lv denied 15 NY3d 706 (2010)]" (Kyles Affirmation, ¶ 16). Thus, according to Defendant, the Claim must be dismissed.
The Court agrees with Defendant that "[c]ontrary to [Claimant's] assertion, the receipt of an earned eligibility certificate does not preclude the Board from denying parole" (Matter of Romer v Dennison, 24 AD3d 866, 867 [3d Dept 2005]).
The Court of Appeals in Russo further stated:
We conclude that New York has given no guarantee to a convicted defendant that he will be considered for parole … What the New York statute promises, simply put, is that guidelines shall be established and followed unless reasons are given for not following them. That guidelines are provided does not mean they cannot be deviated from or create an entitlement to release at any particular time; the system is thus discretionary and holds out no more than the possibility of parole (Greenholtz v Nebraska Penal Inmates, [supra at 9-12]; Boothe v Hammock, 605 F2d 661, 663, 664; Walker v Oswald, 449 F2d 481, 485, supra).
(Matter of Russo v New York State Bd. of Parole, supra at 75)
Therefore, the Court finds and concludes that Claimant had no protected liberty interest to parole and Defendant has established a defense to this Claim as a matter of law. In addition, in order to award Claimant a money judgment, the Court would have to review and overturn or annul the Board's determination. The appropriate remedy for such a challenge is a CPLR Article 78 proceeding (see Polanco v State of New York, 130 AD3d 1494, 1495 [4th Dept 2015]; City of New York v State of New York, 46 AD3d 1168, 1169 [3d Dept 2007], lv denied 10 NY3d 705 [2008]). This Court lacks subject matter jurisdiction over the Claim, which is equitable in nature.
Finally, it is well established that parole determinations are strictly sovereign and quasi-judicial in nature and, accordingly, the Board, in making those determinations, is absolutely immune from tort liability (Polanco v State of New York, supra; Semkus v State of New York, supra at 75). Claimant has not asserted any facts to support his conclusory statement that the Board acted in excess of its authority, in violation of any relevant rules or regulations, or relied on allegedly erroneous facts in reaching its decision (Polanco v State of New York, supra; Mertens v State of New York, supra at 1377).
Therefore, the State's pre-Answer Motion to dismiss the Claim is granted and the Claim is dismissed.
December 21, 2016
Albany, New York
CHRISTOPHER J. McCARTHY
Judge of the Court of Claims The following papers were read and considered by the Court on the State's Motion to dismiss: Papers Numbered Notice of Motion, Affirmation & Exhibits attached 1 Affidavit in Reply 2 Filed Papers: Claim