Van Luven v. Henderson

Appellate Division of the Supreme Court of New York

Van Luven v. Henderson

52 A.D.2d 1042, 384 N.Y.S.2d 898, 1976 N.Y. App. Div. LEXIS 12952

CourtAppellate Division of the Supreme Court of the State of New York

DecidedMay 21, 1976

StatusPublished

Cited by4 cases

This text of 52 A.D.2d 1042 (Van Luven v. Henderson) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Van Luven v. Henderson, 52 A.D.2d 1042, 384 N.Y.S.2d 898, 1976 N.Y. App. Div. LEXIS 12952 (N.Y. Ct. App. 1976).

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Opinion

Judgment unanimously reversed, without costs, and matter remitted to parole board for further proceedings in accordance with the following memorandum: Petitioner is presently imprisoned in Auburn Correctional Facility under a two and one-third to seven-year sentence. On February 11, 1975 he met with the parole board and was denied parole without any reason being assigned for the denial. He thereupon brought this habeas corpus proceeding on July 3, 1975 (the delay was occasioned at least in part by his transfer from Attica to Auburn). Special Term, holding that habeas corpus was inappropriate, considered petitioner’s application as an article 78 proceeding (see CPLR 103, subd [c]) but held that the Statute of Limitations foreclosed relief (CPLR 217). It dismissed the petition. We have held that a prisoner is entitled to be informed of the reasons that his parole is denied (Matter of Festus v Regan, 50 AD2d 1084), that the right to such relief is retroactive (People ex rel. Ward v Smith, 52 AD2d 755), and that article 78 is the proper remedy when the board fails to comply with this requirement (People ex rel. Ward v Smith, supra; Matter of Speed v Regan, 50 AD2d 1100). Special Term correctly treated the application as an article 78 proceeding but was in error in holding that the proceeding was barred by the Statute of Limitations. Because the proceeding is in the nature of mandamus, to compel the performance of a duty enjoined by law, the statute does not run until after a demand is made and the board refuses to perform the duty, unless petitioner has been guilty of laches (see Matter of Pfingst v Levitt, 44 AD2d 157). The parole board is directed to notify petitioner of the reasons for denial of his parole. (Appeal from judgment of Supreme Court, Cayuga County dismissing article 78 proceeding.) Present— Moule, J. P., Cardamone, Simons, Mahoney and Dillon, JJ.

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Judgment unanimously reversed, without costs, and matter remitted to parole board for further proceedings in accordance with the following memorandum: Petitioner is presently imprisoned in Auburn Correctional Facility under a two and one-third to seven-year sentence. On February 11, 1975 he met with the parole board and was denied parole without any reason being assigned for the denial. He thereupon brought this habeas corpus proceeding on July 3, 1975 (the delay was occasioned at least in part by his transfer from Attica to Auburn). Special Term, holding that habeas corpus was inappropriate, considered petitioner’s application as an article 78 proceeding (see CPLR 103, subd [c]) but held that the Statute of Limitations foreclosed relief (CPLR 217). It dismissed the petition. We have held that a prisoner is entitled to be informed of the reasons that his parole is denied (Matter of Festus v Regan, 50 AD2d 1084), that the right to such relief is retroactive (People ex rel. Ward v Smith, 52 AD2d 755), and that article 78 is the proper remedy when the board fails to comply with this requirement (People ex rel. Ward v Smith, supra; Matter of Speed v Regan, 50 AD2d 1100). Special Term correctly treated the application as an article 78 proceeding but was in error in holding that the proceeding was barred by the Statute of Limitations. Because the proceeding is in the nature of mandamus, to compel the performance of a duty enjoined by law, the statute does not run until after a demand is made and the board refuses to perform the duty, unless petitioner has been guilty of laches (see Matter of Pfingst v Levitt, 44 AD2d 157). The parole board is directed to notify petitioner of the reasons for denial of his parole. (Appeal from judgment of Supreme Court, Cayuga County dismissing article 78 proceeding.) Present— Moule, J. P., Cardamone, Simons, Mahoney and Dillon, JJ.

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Bluebook (online)

52 A.D.2d 1042, 384 N.Y.S.2d 898, 1976 N.Y. App. Div. LEXIS 12952, Counsel Stack Legal Research, https://law.counselstack.com/opinion/van-luven-v-henderson-nyappdiv-1976.

Opinion

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