IN RE: Jose VELEZ (2018)

MEMORANDUM AND ORDER

Appeal from a judgment of the Supreme Court (Walsh, J.), entered May 15, 2017 in Albany County, which dismissed petitioner's application, in a proceeding pursuant to CPLR article 78, to review a determination of respondent recalculating, among other things, petitioner's parole eligibility date.

On April 18, 2011, the New York City Department of Corrections (hereinafter NYCDOC) issued a revised jail time certificate that, among other things, reduced petitioner's jail time credit to 16 days for a period that he spent in NYCDOC's custody in Queens County in 1993.  Respondent thereafter recalculated, among other things, petitioner's parole eligibility date to be June 28, 2018 based, in part, on NYCDOC's 2011 jail time certificate.¹  Petitioner commenced this CPLR article 78 proceeding against respondent alone challenging, primarily, NYCDOC's recalculation of his jail time credit and respondent's subsequent recalculation of his parole eligibility date based thereon.  Supreme Court dismissed the petition on the merits, and petitioner appeals.

While respondent recalculated petitioner's parole eligibility date, it is settled law that, in making those calculations, respondent was “bound by the jail-time certificate issued by NYCDOC” (Matter of Neal v. Goord, 34 A.D.3d 1142, 1143, 826 N.Y.S.2d 455 [2006];  see People ex rel. Moultrie v. Yelich, 95 A.D.3d 1571, 1572 n., 944 N.Y.S.2d 319 [2012];  see also Correction Law § 600–a).  We agree with respondent that NYCDOC is a necessary party to this proceeding challenging its jail time certificate and, as such, NYCDOC should have been joined in this proceeding (see CPLR 1001[a];  Matter of Neal v. Goord, 34 A.D.3d at 1143, 826 N.Y.S.2d 455;  see e.g. Matter of Bottom v. Goord, 96 N.Y.2d 870, 871–872, 730 N.Y.S.2d 767, 756 N.E.2d 55 [2001] ).²  NYCDOC is a necessary party to this proceeding “because petitioner is seeking additional credit for jail time spent in correctional facilities in New York City [under NYCDOC] and, if petitioner is successful, [NYCDOC's] commissioner will be required, pursuant to ․ Correction Law [§ 600–a], to recompute petitioner's jail time and deliver a certified transcript of the record of petitioner's jail time” (Matter of Brooks v. Dalsheim, 103 A.D.2d 986, 986, 479 N.Y.S.2d 817 [1984] ).

While respondent did not raise this issue in Supreme Court, it is well-established that “ ‘a court may always consider whether there has been a failure to join a necessary party’, including on its own motion, and for the first time on appeal” (Olney v. Areiter, 104 A.D.3d 1100, 1101, 962 N.Y.S.2d 489 [2013] [brackets omitted], quoting City of New York v. Long Is. Airports Limousine Serv. Corp., 48 N.Y.2d 469, 475, 423 N.Y.S.2d 651, 399 N.E.2d 538 [1979];  see Matter of Smith v. New York State Off. of the Attorney Gen., 110 A.D.3d 1201, 1204, 973 N.Y.S.2d 404 [2013] ).  As this Court “may not, on its own initiative, add or direct the addition of a party[,] ․ the matter must be remitted to Supreme Court to order [NYCDOC] to be joined if [it] is subject to the jurisdiction of the court and, if not, to permit [its] joinder by stipulation, motion or otherwise and, if joinder cannot be effectuated, the court must then determine whether the proceeding should be permitted to proceed in the absence of [a] necessary part[y]” (Matter of Smith v. New York State Off. of the Attorney Gen., 110 A.D.3d at 1204–1205, 973 N.Y.S.2d 404 [internal quotation marks, brackets and citation omitted];  see CPLR 1001[b];  1003;  Matter of Colavito v. New York State Comptroller, 130 A.D.3d 1221, 1222–1223, 13 N.Y.S.3d 674 [2015];  see also Windy Ridge Farm v. Assessor of Town of Shandaken, 11 N.Y.3d 725, 726–727, 864 N.Y.S.2d 794, 894 N.E.2d 1183 [2008] ).

ORDERED that the judgment is reversed, on the law, without costs, and matter remitted to the Supreme Court for further proceedings not inconsistent with this Court's decision.

FOOTNOTES

1.   Previously, in 1993, NYCDOC had issued a certificate crediting petitioner with 570 days of jail time credit, and respondent had calculated his parole eligibility date to be December 19, 2016.

2.   While petitioner asserts that he challenged NYCDOC's 2011 jail time certificate in a separate action/proceeding in Supreme Court, Queens County in 2016, which was reportedly dismissed, neither the pleadings nor the court's order/judgment are included in the record on appeal.

Lynch, J.P., Devine, Clark, Mulvey and Aarons, JJ., concur.