Gershinsky v. State

• Decision Date: 31 July 1958
• Docket Number: No. 32632,32632
• Citation: 176 N.Y.S.2d 667,6 A.D.2d 964
• Parties: Leonard GERSHINSKY, Claimant-Respondent-Appellant, v. The STATE of New York, Appellant-Respondent. Claim
• Court: New York Supreme Court — Appellate Division

Page 667

176 N.Y.S.2d 667

6 A.D.2d 964

Leonard GERSHINSKY, Claimant-Respondent-Appellant, v. The STATE of New York, Appellant-Respondent.

Claim No. 32632.

Supreme Court, Appellate Division, Third Department.

July 31, 1958.

Nathan L. Levine, New York City, for appellant.

Louis J. Lefkowitz, Atty. Gen., for respondent.

Before BERGAN, J. P., and GIBSON, HERLIHY and REYNOLDS, JJ.

MEMORANDUM DECISION.

This is an appeal from a judgment of the Court of Claims awarding claimant $8,515.11, including interest, for his wrongful detention in State Prison from October 6, 1936 to December 29, 1937. Claimant cross-appeals arguing that he should have been awarded damages for 16 days' detention in 1954, and further that the court should have allowed him $500 attorneys fees for services in obtaining claimant's release from prison in 1937.

On February 13, 1923 claimant was sentenced to a 5-year definite term at Sing Sing Prison on a conviction of Burglary in the third degree. On May 15, 1926, claimant was released into the custody of the parole board, having received 1 year, 7 months and 11 days for compensation and commutation (under the old system which treated each separately) from the governor. On May 3, 1929 he was convicted of Robbery second, and sentenced to a 15-year definite term. One of the exhibits, a letter from the Commissioner of Correction, dated July 12, 1929, informed the warden that claimant had to serve the remainder of 1923 sentence before he could begin to serve the second sentence. No documentary showing was made of any action by the parole board. Claimant in 1936 mandamused the Prison Board to certify him to the Governor for release because his term, less time off for commutation and compensation, had ended. This came on before Judge Aldrich who granted the claimant's mandamus (Gerschinsky v. Lawes, N.Y.L.J. 2/13/37, p. 767, col. 1, affirmed without opinion Gerschinsky v. Lawes, 251 App.Div. 893, 298 N.Y.S. 639) stating that the parole board had no right to order the warden to confine the prisoner under the remainder of the term of the first sentence because it had not followed the procedures laid down in the Appellate Division opinion in People ex rel. Rothermel v. Murphy, 245 App.Div. 783, 281 N.Y.S. 150. The prison board on October 30, 1937 certified claimant to the Governor for release, and he was released on December 29, 1937.

The state contends that the claim is barred by the 2-year statute of limitations, on the ground that even though claimant was under a disability by reason of Penal Law, sec. 510, as he was in prison, upon his release his disability ceased, and that the subsequent arrest of claimant in 1938 did not resume the suspension of the statute of limitations because disabilities may not be 'tacked' together. We agree. Claimant argues that a convict on parole is still under the disability of Penal Law, sec. 510 because he is serving his sentence outside prison walls (this, of course, was before the amendment of Penal Law, sec. 510 by L.1946 ch. 260 on the recommendation of the Law Revision Commission, see 1946 Report, Leg.Doc. 65F, which provided, inter alia, that a parolee might sue on being released upon parole), but claimant was not a parolee in the true sense of the word. He was released by gubernatorial commutation on condition that he report to the parole board. In White v. State, 166 Misc. 481, 2 N.Y.S.2d 582, affirmed 260 App.Div. 413, 23 N.Y.S.2d 526, affirmed 285 N.Y. 728, 34 N.E.2d 890, it was held that a prisoner whose sentence was commuted by the Governor was not subject to the disability of Penal Law, sec. 510 even though as a condition to the commutation he had to report to the parole board and could be reincarcerated because of bad behavior. White was a definite-sentence prisoner whose term had been commuted in the same fashion a Gerschinsky's term in 1937. It seems clear then that from December 29, 1937 until his subsequent sentence on November 7, 1938 for another crime claimant was under no disability. This raises the next question, can claimant 'tack' his disability prior to December 29, 1937 to his disability subsequent to November 7, 1938 (when he was sentenced) and still sue because he only had less than a year in which he could have brought the claim?

Sec. 28 of the Civil Practice Act generally states the policy of the legislature regarding disabilities, viz., 'Except as provided in section twenty-seven, a person cannot avail himself of a disability unless it existed when his right of action * * * accrued.' Sec. 27 relates to enemy aliens so that sec. 28 would apply here if it is otherwise applicable to cases governed by the Court of Claims Act.

Sec. 1 of the Civil Practice Act provides that it shall apply 'to the civil practice in all the courts of record of the state.' See also sec. 9(9) of the Court of Claims Act and Davison, Claims against the State of New York, sec. 26.01. If sec. 28 of the Civil Practice Act applies, it seems obvious that claimant here has no right to sue the state. Court of Claims Act, sec. 10(5) provides that if a claimant is under a disability he may sue within two years after the disability ceases. Sec. 28 of the Civil Practice Act essentially defines 'disability' as one existing at the time the cause of action accrues. Here claimant had such a disability, but it ceased in 1937. According to the clear wording of the statute, claimant was required to sue the state within two years of the end of that disability. And, according to the clear wording of sec. 28 of the Civil...