New York State Court of Claims

New York State Court of Claims

DIAZ v. THE STATE OF NEW YORK, #2002-016-021, Claim No. 102510


Claim was dismissed where prisoner's daughter and granddaughter were denied access for a visit on a single occasion because of facility error.

Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

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: Joseph F. Romani, AAG
Third-party defendant's attorney:

Signature date:
March 4, 2002
New York

Official citation:

Appellate results:

See also (multicaptioned case)

This is the claim of Angel Diaz, which was tried at Sullivan Correctional Facility. Claimant testified on his own behalf, and for its part, defendant called correction officer Lawrence Jones. The claim arises from an incident in which Mr. Diaz's minor daughter and granddaughter were refused entry to visit him at Woodbourne Correctional Facility.

Diaz testified that in July of 1999, his daughter returned from outside the United States with her own daughter. He explained that he and his daughter had been estranged for two years. In order to set up a visit, claimant's wife called the facility to ask what type of identification was necessary for the daughter and granddaughter. She was initially told that a visit could not be arranged because they were both minors, claimant's daughter being two months shy of her 18
th birthday. According to Diaz, he thereafter saw the superintendent, who told him that a visit was in fact possible and that claimant should speak with a Mr. Frieling, a counselor in charge of visitation issues. Claimant saw Frieling and asked him to prepare a "clarification memo" to the visiting room staff so that his daughter would not run into any problems. It is undisputed that on July 12, 1999, claimant's daughter and granddaughter, who had traveled by bus to visit him, were denied entry into the facility. According to Diaz, they waited outside for five-and-a-half hours.
As to what happened that day, correction officer Jones, who investigated the incident, conceded that "[t]here were a lot of conflicting reports and information about the incident."
According to the affidavit of Anthony J. DiBartolo, the watch commander who disallowed the visit (see claimant's ex. 3), 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" (defendant's exhibit A) 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. . . .

Following the incident, claimant filed a grievance. In an August 11, 1999 response from the acting deputy superintendent for security (see claimant's Exhibit 2), 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 subsequent memorandum (see claimant's Exhibit 2, dated September 3, 1999), the superintendent conceded 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 . . .

Diaz asserts that the relationship between his daughter and granddaughter would have been readily apparent from the granddaughter's birth certificate and that the policy was clear that his visitors should have been permitted.
He further asserts that DiBartolo's denial was malicious, arbitrary and capricious, although he provided no rationale.
As to his damages, Diaz testified that after the incident, a staff member asked that he be psychologically evaluated because he was angry and hostile. Claimant also contends that the incident exacerbated his irritable bowel syndrome condition. He further asserts that since the incident, his daughter has refused to come visit him because she is afraid and this has negatively impacted his relationship with her. Claimant maintained that an apology should have been rendered to his daughter. The superintendent's August 30, 1999 response to claimant's grievance which states "I certainly apologize to Ms. Herrera for any inconvenience," indicates that a copy was sent to claimant's daughter. Claimant questioned that it was actually sent, although he offered no direct evidence on the point and Jones testified that it had in fact been sent. Claimant also took issue with the format, asserting that this was not an "apology," since it was in the format of a grievance response. According to Jones, claimant's family was reimbursed for the bus fare and telephone calls made in connection with the travel arrangements, which claimant did not dispute.
* * *
It should be noted that Diaz's daughter is not a party to this action and thus any alleged damages she might have suffered, direct or indirect, are not the subject of this lawsuit.

Diaz asserts in his claim that the family visit was to be the cornerstone in repairing his relationship with his daughter and that defendants "grossly hindered" the fragile relationship. There is no evidence that Diaz conveyed to defendant the potential importance of the impending visit or that defendant otherwise knew or should have known. Defendant thus could not reasonably foresee any resulting damages to the relationship between claimant and his daughter or to claimant's psychological condition. Even if claimant could show foreseeability, he presented no competent medical evidence that defendant's actions caused any of the alleged medical conditions such as irritable bowel syndrome. See, e.g.,
Lyons v McCauley, 252 AD2d 516, 675 NYS2d 375 (2d Dept 1998), lv denied 92 NY2d 814, 681 NYS2d 475 (1998). Finally, no credible evidence was otherwise offered by claimant to show any other damages in this case.
For the foregoing reasons, claim no.102510 is dismissed.


March 4, 2002
New York, New York

Judge of the Court of Claims