DOMINIC M. FRANZA, Appellant,
STATE OF NEW YORK, Respondent.
Calendar Date: June 5, 2018
Dominic M. Franza, Beacon, appellant pro se.
Barbara D. Underwood, Attorney General, Albany (Kate H.
Nepveu of counsel), for respondent.
Before: Garry, P.J., Egan Jr., Aarons, Rumsey and Pritzker,
MEMORANDUM AND ORDER
from an order of the Court of Claims (DeBow, J.), entered
November 16, 2016, which granted defendant's motion to
dismiss the claim.
an inmate, commenced this action seeking damages for an
alleged violation of his due process rights when the Board of
Parole declined to release him to parole supervision
following a hearing in 2015. Specifically, claimant alleges
that his rights were violated when the Board denied his
release without having promulgated "written
procedures" that incorporate risk and needs principles
in making parole release determinations, as required by the
2011 amendments to Executive Law Â§ 259-c (4) (L 2011, ch 62,
part C, subpart A, Â§ 38-b). According to claimant, rather
than promulgating written procedures, the Board only added
risk and needs assessment to the factors to be considered in
making parole release decisions (see Executive Law Â§
259-i  [c] [a]; 9 NYCRR former 8002.3), which was contrary
to the Legislature's intent and rendered his parole
proceeding unlawful. Defendant moved to dismiss the claim for
failure to state a cause of action. The Court of Claims
granted defendant's motion, prompting claimant's
affirm. "[A]n agency of government is not liable for the
negligent performance of a governmental function unless there
existed a special duty to the injured person, in contrast to
a general duty owed to the public" (McLean v City of
New York, 12 N.Y.3d 194, 199  [internal quotation
marks and citation omitted]; see Signature Health Ctr.,
LLC v State of New York, 92 A.D.3d 11, 14 , lv
denied 19 N.Y.3d 811');">19 N.Y.3d 811 ). Such a special
relationship "can be formed in three ways: (1) when the
[agency] 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 [agency]
assumes positive direction and control in the face of a
known, blatant and dangerous safety violation"
(Pelaez v Seide, 2 N.Y.3d 186, 199-200 ;
accord McLean v City of New York, 12 N.Y.3d at 199).
contends that the Board breached a statutory duty in failing
to promulgate the written provisions, as required by the 2011
amendments, establishing a special relationship. "To
form a special relationship through breach of a statutory
duty, the governing statute must authorize a private right of
action" (Pelaez v Seide, 2 N.Y.3d at 200;
accord Signature Health Ctr., LLC v State of New
York, 92 A.D.3d at 14). Inasmuch as Executive Law
article 12-B, which sets forth the procedures governing
parole, does not expressly authorize a private right of
action for claimant to recover civil damages for a violation
of its provisions, recovery may only be obtained if a private
right of action may be implied (see McLean v City of New
York, 12 N.Y.3d at 200; Signature Health Ctr., LLC v
State of New York, 92 A.D.3d at 14). "One may be
fairly implied when (1) [claimant] is one of the class for
whose particular benefit the statute was enacted; (2)
recognition of a private right of action would promote the
legislative purpose of the governing statute; and (3) to do
so would be consistent with the legislative scheme"
(Pelaez v Seide, 2 N.Y.3d at 200 [citation omitted];
accord McLean v City of New York, 12 N.Y.3d at 200).
"If one of these prerequisites is lacking, the claim
will fail" (Pelaez v Seide, 2 N.Y.3d at 200).
agree with the Court of Claims that a private action may not
be fairly implied here. The Legislature provides recourse
under CPLR article 78 for inmates to address perceived
instances where the Board did not satisfy its statutory
obligations in making parole release determinations
(see CPLR 7803; Signature Health Ctr., LLC v
State of New York, 92 A.D.3d at 17; see e.g. Matter
of Hawthorne v Stanford, 135 A.D.3d 1036');">135 A.D.3d 1036 ;
Matter of Garfield v Evans, 108 A.D.3d 830');">108 A.D.3d 830 )
. As the Legislature has established
procedures for review of parole release decisions, "it
is fair to infer that had it intended to create a private
right of action..., it would have specifically done so"
(Signature Health Ctr., LLC v State of New York, 92
A.D.3d at 17; see McLean v City of New York, 12
N.Y.3d at 200-201). Accordingly, permitting a private action
here would be inconsistent with the legislative scheme
(see Signature Health Ctr., LLC v State of New York,
92 A.D.3d at 15-17). As to claimant's state
constitutional tort claim, the recognition of such a claim is
unnecessary "given the additional avenues of redress
that are available" (Blake v State of New York,
145 A.D.3d 1336, 1337 ; see Martinez v City of
Schenectady, 97 N.Y.2d 78, 83 ). Accordingly, the
Court of Claims properly granted defendant's motion to
dismiss the claim for failure to state a cause of action.
Claimant's remaining contentions have been considered and
found to be without merit.
Jr., Aarons, Rumsey and Pritzker, JJ., concur.
that the order is affirmed, without costs.