New York State Court of Claims

New York State Court of Claims

EVANS v. THE STATE OF NEW YORK, #2001-005-515, Claim No. 101195, Motion No. M-62119


The Defendant breached no duty of care and was not negligent when it notified a pre-designated individual of the decedent inmate's death. There is no liability in the failure to have gone beyond such notification to locate decedent's mother. Since Claimant was not the pre-designated individual or next of kin, the failure to obtain her consent for the cremation of the decedent is not actionable.

Case Information

VIRGINIA EVANS By so-ordered stipulation filed on February 17, 2000, the claim of Charles Evans has been discontinued with prejudice. The caption has been amended sua sponte to show the only proper defendant herein.
Claimant short name:
Footnote (claimant name) :
By so-ordered stipulation filed on February 17, 2000, the claim of Charles Evans has been discontinued with prejudice.
Footnote (defendant name) :
The caption has been amended sua sponte to show the only proper defendant herein.
Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
Cross-motion number(s):

Donald J. Corbett, Jr.
Claimant's attorney:
Salzman & SalzmanBy: Robert M. Salzman, Esq.
Defendant's attorney:
Eliot Spitzer, Attorney GeneralBy: James L. Gelormini, Assistant Attorney General
Third-party defendant's attorney:

Signature date:
May 10, 2001

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers, numbered 1 to 7, were read on motion by Defendant for summary judgment dismissing the claim:

1, 2 Notice of Motion, Affirmation and Exhibits Annexed

3, 4 Opposing Affidavits and Exhibits Annexed
  1. Reply Affirmation
6, 7 Filed Papers: Claim, Answer

Upon the foregoing papers, this motion is granted.

The claim herein alleges the negligence of the State of New York in the failure to have notified Claimant Virginia Evans, the mother of Reese Jones, of the death of her son on December 16, 1998, while he was incarcerated at Attica Correctional Facility. It is further alleged that the State wrongfully and negligently arranged for the cremation of the decedent, purportedly depriving Claimant of the right to conduct a proper funeral and burial for her son in accordance with her beliefs.

The Defendant seeks summary judgment dismissing the claim on numerous grounds. Primarily, the Defendant asserts that the decedent never listed his mother, but noted another person, irrespective of the purported assertion in Paragraph 4 of Claimant's Bill of Particulars that "Plaintiff (sic) is on file with Attica State Prison (sic) as decedent's mother to be notified in such cases."[1]

Certain facts are undisputed. First, the decedent committed suicide on December 16, 1998, while confined at Attica Correctional Facility (Attica). Second, a Chaplain at Attica, after being apprised of the death, thereupon went to the Attica Guidance Unit and reviewed the decedent's files wherein it was noted that the decedent himself had listed one Jessie Wingate, a friend, with her address and telephone number, as the person he wished to be notified in the event of an emergency (the pre-designated individual). It must also be noted that the records maintained on the form for the Reception/Classification System Family and Residence for the inmate, using information supplied by the decedent, contained the name of Jessie Wingate, identified as "Surrogate", with an address and the telephone number 718-776-6167, as the nearest relative (Exhibit 2 to the moving papers). It also appears that decedent telephoned one Thomas Wingate at 718-776-6168 (just one digit off from the number utilized for Jessie Wingate) with his notification call upon his arrival at Attica (Exhibit 3). Third, utilizing that information, the Chaplain completed a form entitled "Notification of Next of Kin in the Event of Death" (Exhibit 1 to the moving papers). The Chaplain arranged for Jessie Wingate to be so notified by the New York City Chaplain's Office of the Department of Correctional Services (DOCS), and it was reported back on or about 2:30 p.m. on that day, that Jessie Wingate was duly notified and would contact the immediate family of the decedent (Exhibit 1). Thereafter, Ms. Wingate called Attica to advise that the telephone numbers that she had for decedent's mother and grandmother were disconnected, and that she had no way to contact either relative.

Exhibit 1 purports to reflect that an attempt was made, using the internet, to locate Claimant, and that a Virginia Evans in Brooklyn was contacted, but that she was not the decedent's mother. Affidavit testimony indicates that a deputy superintendent at Attica became aware that the parents could not be located, and informally offered to look up the name and address on the internet, albeit locating another Virginia Evans, not the Claimant, and the Defendant was otherwise unsuccessful in locating Claimant. In fact, the record does not reveal any further efforts by the Defendant.

Thereafter, on December 23, 1998, in the absence of any contact from the family, decedent's body was released from the Monroe County Medical Examiner's office to a funeral director for cremation.

It is undisputed that the Claimant was unaware of her son's death until on or about February 13, 1999, when a letter she had written to her son was returned from Attica with the notation "deceased." She thereafter learned of the disposition of her son's remains, and filed this claim alleging the State's negligence as recited above.

Defendant correctly points out that a coroner is obligated "to take charge of" any dead person's body within his or her county and that the State must turn over the body of a deceased inmate to the coroner to perform an autopsy (County Law §§ 674[1] and [5]). Since a coroner is an elected county official, and not a State officer or employee (County Law Section §400[1]), the Defendant urges that it should not be held responsible for any alleged tortious or wrongful actions once the body has been delivered in accordance with the statute (Liddell v State of New York, 182 Misc 2d 133, 135, aff'd, 278 AD2d 928).

Claimant opposes dismissal of the claim, observing that her claim is based on "mental trauma", in that DOCS failed to notify her and they therefore deprived her of her "basic human right" to bury her child according to her religious beliefs. She describes the "cruel and insensitive way" she ultimately learned of her son's death.

Claimant, observing that DOCS had been informed by the predesignated individual selected by her son that she could not be located, specifies numerous references in decedent's records to her name, address and phone number, or leads that would have led to her. It is instructive to examine each reference separately.

First, Claimant observes that DOCS correctly informed the Department of Health in Defendant's Exhibit 6, the Certificate of Death, that decedent's last place of employment was a specific trucking company in Brooklyn. Claimant notes that at the time in question her brother was a full-time employee at the company, and that her husband was on a list of temporary workers regularly utilized by the company. She observes that a simple phone call to the company would have resulted in her notification. This argument, while interesting, is speculative and far-fetched. Indeed, while a phone call might, in retrospect, have produced a timely notification, no duty to have done so is alleged, and no act of negligence may be presumed from the failure to have broadened the parameters of notification, particularly given the successful initial contact with the decedent's named and identified designee.

Claimant's next arguments relate to the decedent's clinical and psychiatric records from the Attica Mental Health Unit, where it is averred that DOCS made no effort to examine decedent's ‘extensive' file or have it examined by an authorized individual. This becomes somewhat significant because Claimant alleges that at the time of decedant's death an address therein (which is the same as the address listed as the decedent's at the time of his arrest in Defendant's Exhibit 1) was a two-family residence where the widow of Claimant's late brother and another of her brothers separately resided. Claimant observes that if DOCS' officials or police officers had merely gone to that address, she would have been easily contacted. Regardless of the purported ease with which Claimant might have been located using this information (but see the discussion below on the question of access to mental health records), a flaw in this argument is the absence of the breach of any duty, or any act of negligence, in the failure to have so acted.

In any event it appears that DOCS was not entitled to access to these records. Claimant focuses upon references in decedent's clinical and psychiatric records, to wit, his mental health records, that allegedly could have and should have led DOCS officials to the Claimant so that she could have been advised of the decedent's death and made funeral arrangements. Specifically, Claimant refers to:

(1) Exhibit B: a page from what is characterized as an admission record (as it appears to be part of a document that is "To be completed within 8 hours of admission"), dated April 30, 1998, in which Claimant is listed as the person to contact in the event of an emergency, with her then current address and telephone number. Interestingly, it also lists as an alternative, Jesse (sic), labeled as decedent's surrogate mother, with her telephone number;

(2) Exhibit C: a page from decedent's mental health records, dated August 5, 1998, which reveals an address and a telephone number at which the Claimant could be reached. Interestingly, Jessie Wingate is listed first, as a "correspondent friend" with her telephone number;

(3) Exhibit D: an undated page, with certain typewritten notations, noting that reports indicate that decedent had contact with his mother, with her phone number;

(4) Exhibit E: yet another undated page where it is reported that decedent does maintain regular contact with his family, and that he maintained regular contact with his mother, with her name and telephone number given. It also says that "This patient's family was not directly involved in his course of care", and

(5) Exhibit F: in a progress note dated November 28, 1998, decedent asked to make a phone call to his mother, and was told that his mother would be notified of a then-impending transfer.

Claimant's counsel opposes the motion, and recites that there is a factual question of whether DOCS "was negligent in failing to contact" Claimant at the address and phone number available in the mental health records. Claimant provides the deposition testimony of the Inmate Records Coordinator (IRC) who acknowledged that the mental health records were housed within the physical confines of Attica, and that she had made no attempt to gain access to the mental health records.

Defendant avers, in its reply affirmation, that the decedent's mental health file was maintained by the New York State Office of Mental Health, not DOCS, and that the Attica IRC so testified, and thus while such records were physically within the walls of Attica, they were not available to DOCS employees or staff. Pursuant to Mental Hygiene Law (MHL) §§33.13(a) and (c), each patient's clinical records could not be released to anyone outside of the Office of Mental Health (OMH), including DOCS. Each of the references numbered 1 through 5 above are derived from OMH records, and remained confidential and unaccessible to the IRC or DOCS. The exceptions are contained in MHL §§ 33.13(c) (1) through(13), and specifically subdivision (c)(10) which addresses the release to correctional facilities, inter alia, for imminent parole or for participation in certain types of programs. In sum, the statute contains no exception permitting the release of the information from OMH to DOCS for the purposes sought by Claimant, and thus it may be said that the records containing putatively identifiable information with respect to Claimant herein were not available to DOCS officials. Claimant has failed to demonstrate that she was otherwise identifiable in the file maintained and available to DOCS.

Claimant posits a theory that negligently caused psychic harm is a compensable loss, but her reliance upon Johnson v State of New York, 37 NY2d 378, is misplaced. In Johnson, there was emotional harm in the negligent misinformation provided to a daughter that her mother had died. The Court of Appeals noted there however, that the key to liability was the hospital's duty, borne or assumed, to advise the proper next of kin of the death of a patient. In the claim at bar the duty extended to the predesignated individual, not the Claimant, and in any event, there was no misinformation and no false message provided to Claimant. To the extent that the claim herein can be read as asserting a cause of action sounding in the negligent or intentional infliction of emotional harm, it cannot survive this motion. As a matter of public policy, the Defendant may not be held answerable for the intentional infliction of emotional harm (Wheeler v State of New York, 104 AD2d 496, 498). Stonecipher v Bossuot-Lundy Funeral Home, 238 AD2d 946, is comparable to the claim at bar, as the Fourth Department reversed and dismissed a complaint which alleged the negligent infliction of emotional distress arising out of the failure to inform plaintiff when her father was buried. In Stonecipher, there was no promise or duty to inform the plaintiff of the date of the burial or that plaintiff requested that defendant do so. With no duty, there can be no breach and hence no liability.

The most troubling aspect of these proceedings deals with the seeming limitation on the cremation of the decedent's remains. First, the operative document in question, DOCS Directive 4013, recites that upon an inmate's death the Community Chaplain shall "Notify the next of kin or other pre-designated individual of the inmate's death" (Exhibit G to Claimant's papers). Here, the decedent himself made an election upon his arrival at Attica in which he selected Jessie Wingate as the pre-designated individual to be contacted in the event of an emergency. That choice was reiterated by the "notification" telephone call decedent made upon his arrival at Attica to Thomas Wingate (Exhibit 3). Therefore, the decedent, by making that choice, did not select "an identifiable next of kin." Claimant herein is obviously a next of kin, being decedent's mother, but for purposes of application of Directive 4013, Claimant is not an ‘identifiable' next of kin, inasmuch as the decedent, for whatever reason(s), designated Jessie Wingate.

Directive 4013, entitled Inmate Deaths-Administrative Responsibility, in Section V. Disposal of Remains, B. Facility Burial/Cremation, states: "The facility shall not, absent approval of identifiable next of kin, dispose of inmate remains by cremation." While the term "next of kin" contemplates persons entitled to share in the decedent's property under the law of intestate descent (EPTL 2-1.1, 1-2.5), Claimant was not, in the context of this directive, an identifiable next of kin, and thus has no standing to allege negligence with respect to the cremation of the decedent. Therefore, as to Claimant's assertions with respect to the cremation of her son's remains, the Defendant's motion is granted and the claim is dismissed.

I intentionally do not address the right of Jessie Wingate, putatively the identifiable next of kin as the decedent's pre-designated individual, to have brought a claim alleging damages with respect to her approval/rejection of the cremation of the decedent. I similarly do not address the question of whether an alleged violation of such a directive, in and of itself, supports a cause of action sounding in negligence.

What is clear to me is that the Defendant followed this directive and discharged its duties thereunder by timely notifying the pre-designated individual. It has violated no duty that it owed to Claimant. When the pre-designated individual notified the Defendant that the telephone numbers for the decedent's mother and grandmother were disconnected, no further or additional duty was imposed upon the Defendant. In short, the Defendant did what it was supposed to do with respect to proper notification of the decedent's death, and, regardless of whether the pre-designated individual or the next of kin sues, the conduct here does not support a claim for negligent infliction of emotional distress.

It is possible that a full-scale search might have located the Claimant prior to her son's cremation, and might have afforded her the opportunity to conduct funeral services of her choice. However, in the absence of any statutory or common-law duty, and given the Defendant's proper and timely contact with the decedent's personal choice for such notifications, the Defendant cannot and will not be held answerable in damages. Accordingly, the motion is granted and the claim is dismissed.

Having so ruled, it would be insensitive for me to ignore Claimant's pain in the loss of her son or fail to note the unfortunate manner in which she learned the news of his death. Nonetheless, sympathy and empathy cannot be transformed into liability, and I have determined, given the undisputed facts, the standing and duties of the parties, and the absence of the breach of any duty owed or any negligence, that no pertinent questions of fact remain, and that, as a matter of law, the claim must be dismissed.

May 10, 2001
Rochester, New York

Judge of the Court of Claims

[1] Claimant has not filed her Bill of Particulars with the Clerk of the Court as required (22 NYCRR 206.5[c]). Nonetheless, this assertion is not disputed by Claimant.