Abascal v City of New York

Abascal v City of New York 2010 NY Slip Op 08772 [78 AD3d 582] November 30, 2010 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, January 19, 2011

Isidro Abascal, Appellant,
v
City of New York, Respondent.

—[*1] Isidro Abascal, appellant pro se. Michael A. Cardozo, Corporation Counsel, New York (Elina Druker of counsel), for respondent.

Order, Supreme Court, New York County (Saliann Scarpulla, J.), entered August 13, 2009, which granted defendant City's motion for summary judgment dismissing the complaint, and denied plaintiff's motion to strike the answer and for summary judgment, unanimously affirmed, without costs.

The gravamen of plaintiff's complaint is that he was repeatedly denied parole on the basis of faulty information, eventually corrected by the Department of Probation, in his presentence report. Dating accrual of his claim from the last date on which plaintiff's application for parole or work release was denied, the court correctly found that plaintiff failed to file a notice of claim within the 90-day time limit imposed by General Municipal Law § 50-e; nor did plaintiff timely seek leave to file a late notice of claim. Hence, plaintiff's claim was properly dismissed. Were we to consider the merits, we would find that although several reasons were articulated by the Parole Board for denying plaintiff's applications for parole, none referred to the inaccurate information in plaintiff's presentence report, and there is no basis in this record to disturb the Board's exercise of discretion. Although the court also dismissed what it construed, apparently on the basis of some of plaintiff's phrasing, to be a 42 USC § 1983 claim, plaintiff, on appeal, disclaims having advanced such a claim. In any event, we agree that the complaint fails to state a section 1983 claim. Concur—Gonzalez, P.J., Mazzarelli, Nardelli, Renwick and DeGrasse, JJ.