New York State Court of Claims

New York State Court of Claims

DIAZ v. THE STATE OF NEW YORK, #2001-016-018, Claim No. 102510, Motion No. M-62865


Summary judgment motion of pro se inmate was denied. He had alleged that because of an error by prison officials, his daughter and granddaughter, who had traveled to the prison were not permitted to visit him.

Case Information

ANGEL DIAZ The caption has been amended to reflect that only the State of New York is a proper defendant in the Court of Claims for a suit involving the Department of Corrections ("DOCS").
Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :
The caption has been amended to reflect that only the State of New York is a proper defendant in the Court of Claims for a suit involving the Department of Corrections ("DOCS").
Third-party claimant(s):

Third-party defendant(s):

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

Alan C. Marin
Claimant's attorney:
Angel Diaz
Defendant's attorney:
Eliot Spitzer, Attorney GeneralBy: Carol A. Cocchiola, AAG
Third-party defendant's attorney:

Signature date:
March 19, 2001
New York

Official citation:

Appellate results:

See also (multicaptioned case)


The underlying claim of Angel Diaz arises from an incident in which his minor daughter and granddaughter were refused entry to visit him at Woodbourne Correctional Facility. This is claimant's motion for summary judgment. Claimant asserts that on July 12, 1999, his wife called the facility to ask "what type of identification and/or permission was needed" for a visit to claimant by his daughter and her child, who were seventeen years old and ten months old, respectively. According to claimant, his wife was initially told that the visit would require an adult escort as both the daughter and granddaughter were minors.

Diaz alleges that he then spoke to a number of Woodbourne personnel to facilitate the visit by obtaining a "clarification memo" which would permit his visitors entry, apparently without an adult escort. After claimant and his wife were assured on July 30, 1999 that the memo would be placed in the lobby where his visitors would arrive, claimant's wife made arrangements for his daughter and grandchild to travel the next day.

Claimant states that when his visitors arrived, he was informed that they were waiting outside the lobby and "not being processed" because there was no written documentation approving the visit. Claimant appealed to a variety of sources, but was told that the watch commander's decision was final and his visitors would not be permitted. According to claimant, his daughter and granddaughter then left after "remain[ing] outside the facility in 95 degree weather for approximately 5 and ½ hours without anything to eat or drink." Diaz asserts that this visit "was to be the cornerstone in repairing the Father-Daughter relationship," as he had apparently not seen his daughter for a number of years. He further asserts that his daughter was traumatized by the experience and refuses to visit him, fearing mistreatment. Because of this, claimant asserts, he has been participating in psychotherapy for anxiety, depression, stress and insomnia, and his "C-Irritable" bowel condition has been exacerbated.

Submitted with defendant's opposition papers is the affidavit of the watch commander who disallowed the visit. He states that on July 31, 1999, a 17-year old female named Adriana Herrera arrived with an infant. There was no paperwork concerning the visit in the lobby, and the administrative offices were closed as it was a Saturday. He states that "I checked the previous visitor logs and noted that Ms. Herrera's last name did not match either the inmate's last name, his wife's last name, or the last name of the baby. In reviewing New York State Department of Correctional Services Directive Number 4403, I felt that as an unmarried 17-year old, Ms. Herrera could not visit inmate Diaz unchaperoned . . . At that time, I was unaware that Mr. Diaz had worked with the counselors to see that the proper paperwork was prepared to admit Ms. Herrera and her child for a visit with Mr. Diaz. In reviewing the directives, I felt that I was following the proper policies and procedures. . ."

Section IV.A of DOCS Directive Number 4403, entitled "Visitors Under 18 Years of Age" provides in relevant part as follows:
  1. All minors must be escorted by an adult approved to visit or an adult in an official capacity with proper identification and the approval of the Superintendent or his designee. The adult escort will be responsible for the behavior and conduct of the minor while on facility property as well as for identification of the minor.
  1. Unmarried minors under 18 years of age, who are not accompanied by their parent or guardian, must have written permission from the parent or guardian to visit an inmate. Written permission may be mailed to the facility in advance or presented by the accompanying adult at the time of the visit.
  1. Children of inmates will be allowed to visit without written permission. . . . Children of inmates who are 16 years of age and older will be admitted without adult escort. . . .

Section III.C, entitled "Local Control," provides in relevant part that "a Superintendent may deny, limit, suspend, or revoke visitation privileges of any inmate or visitor if the Superintendent has reasonable cause to believe that such action is necessary to maintain the safety, security, and good order of the facility."

Following the incident, claimant filed a grievance. In an August 11, 1999 response from the acting deputy superintendent for security (see Exhibit A to claimant's "Reply to the Defendant's Affirmation in Opposition") it was stated, among other things, that:
I spoke with Mr. Briggs who explained to me that he had spoken to you already and that it was his responsibility to write the permission slip. Mr. Briggs stated that he forgot to prepare the notification and he explained that to you.

The Lieutenant and the Lobby Officer were correct in not allowing your daughter to enter the Facility with another minor without having the permission notification from Mr. Briggs. I found that your daughter did not visit within the last two (2) years. The last time she visited, she was escorted by an adult. Therefore, the Lobby Officer was correct in not allowing the two (2) minors in and contacting the Watch Commander.

However, in a later September 3, 1999 memorandum from the Superintendent (see Exhibit E to claimant's "Reply to the Defendant's Affirmation in Opposition"), it is stated in relevant part that:
[T]wo administrative errors were made. One was that the Senior Counselor "forgot" to do a memorandum to the Front Gate Officer clearing this visitor and her child for a visit on July 31, 1999. Secondly, as we reviewed Directive #4403, it reads that a 17 year old can visit her father unchaperoned, which was clear to the Watch Commander the day of the visit, but he was not sure that the directive would allow the child by a name other than the mother. After discussions I determined that if the adult accepted responsibility for the child after stating it was theirs, the child could have been allowed to visit.

As a result of my investigation, I instructed [a sergeant] to advise the Grievance Resolution Committee that I would consider reimbursing your visitor for the bus, related phone charges, and damaged perishable package items, when receipts were sent directly to me by Ms. Herrera.

Also, I directed [a deputy superintendent] to prepare a memorandum to appropriate staff, including the Front Gate, to assure that Ms. Herrera and her child would not encounter this problem again. This memo was done on August 23, 1999 and the grievant was copied.
I addressed this situation with all involved staff, and I certainly apologize to Ms. Herrera for any inconvenience. . . .

In his reply papers, Diaz states that with regard to his granddaughter having a different name from his daughter, both the mother and father's name would have appeared on the birth certificate, so that it would have been apparent that his granddaughter was the child of his daughter (although no birth certificate is annexed to his papers).[1] Diaz also takes issue with the watch commander's statement that his actions were not based on malice or deliberately designed to disregard claimant's rights.
* * *
As set forth above, there are issues of fact which remain to be resolved in this case. For instance, defendant has suggested that because claimant's daughter had a last name different from her father and the infant had a last name different from her mother, they could not be verified as claimant's daughter and granddaughter and thus were not permitted to enter, as minors ordinarily require an adult escort. Claimant takes issue with this assertion, suggesting that defendant knew or should have known they were in fact his daughter and granddaughter, and should have been granted entry.

In any event, even assuming the facts as alleged by Diaz, on the papers submitted, he has failed to show that as a matter of law he is entitled to summary judgment.

First, to the extent that Diaz couches his claim in terms of a constitutional violation, it must fail as "[i]nmate visitation is not an interest protected by either the State or Federal Constitutions inasmuch as ‘denial of prison access to a particular visitor ‘is well within the terms of confinement ordinarily contemplated by a prison sentence.''" Vasquez v Philip Coombe, as Commissioner of the New York State Department of Correctional Services, 238 AD2d 631, 655NYS2d 694, 695 (3d Dept 1997).

To the extent his claim is one lying in negligence, he must prove that defendant owed him a duty, which was breached, and that such breach proximately caused injury to him. See La Fountain v County of Clinton, 237 AD2d 808, 654 NYS2d 870 (3d Dept 1997. At this point, for example regarding his injuries, claimant has failed to prove by competent evidence that he suffers from anxiety, depression, stress, insomnia, and the exacerbation of his "C-Irritable" bowel condition, or that these conditions were proximately caused by defendant's activities. It should also be noted that claimant's daughter is not a party to this action and thus any damages she might have suffered, be they emotional or pecuniary, are not the subject of this lawsuit.

To the extent that Diaz' claim lies in intentional infliction of emotional distress, where official conduct is alleged, public policy prohibits the maintenance of a suit against the State for intentional infliction of emotional distress. Augat v State of New York, 244 AD2d 835, 666 NYS2d 249 (3d Dept 1997), lv denied, 91 NY2d 814, 676 NYS2d 127 (1998). At this stage, Diaz has identified no other cognizable theory of intentional tort to support a recovery.

For the foregoing reasons, having reviewed the parties' submissions[2], IT IS ORDERED that motion no. M-62865 is denied.

March 19, 2001
New York, New York

Judge of the Court of Claims

  1. [1]Claimant also takes issue with defendant's assertion, made on information and belief, that Adriana Herrera is his stepdaughter, as opposed to his biological daughter, and submits documentation showing that he is the biological father. First, it should be noted that Directive #4403 does not appear to distinguish between stepchildren and biological children. In any event, for the purposes of this motion, it will be assumed that Adriana Herrera is claimant's biological daughter.
  2. [2]Along with the pleadings, the following were reviewed: claimant's notice of motion with affidavit in support and memorandum of law; defendant's affirmation in opposition with Exhibit A (the affidavit of Anthony J. DiBartolo) and undesignated exhibits; and claimant's Reply to the Defendant's Affirmation in Opposition with Exhibits A-F. It should be noted that claimant's reply papers were not timely served under CPLR 2214(b), but defendant has not been prejudiced by the Court's consideration of such papers in view of the Court's order denying this motion.