Derrick Cain, the Claimant herein, alleges in Claim Number 101685 that the
Defendant's agents negligently failed to escort him in a timely fashion to his
mother's funeral, while he was incarcerated at Sing Sing Correctional Facility
(hereafter Sing Sing). Trial of the matter was held at Sing Sing on January 15,
As an initial matter, Defendant made a motion to dismiss the claim based upon
its third affirmative defense, a failure to properly serve the claim, pursuant
to §§10 and 11 Court of Claims Act. The claim was not only served
untimely on the Attorney General, but it was also served by certified mail,
without a return receipt requested, a fact admitted to by Claimant. He
indicated that he "subsequently went to have the notice of claim resubmitted,
but unfortunately" it wasn't
From a review of the file, the claim accrued on July 20, 1999 when the Claimant
was allegedly denied a funeral visit. Attempts to serve a Notice of Claim upon
the Attorney General appear to have been made on August 26, 1999, perhaps, as
well as December 10, 1999, but the purported Affidavits of Service attesting to
those dates do not contain proper verification complete with a notary's
signature. The Chief Clerk's Offices letter acknowledging receipt of the Claim
indicates that the Claim was filed on December 27, 1999, well past the ninety
(90) day filing and service requirement. Court of Claims Act §10 .
Additionally, the Attorney General's Office was not served until April 21,
The Court was also made aware of a prior decision wherein Claimant's
application to file a late claim was denied. ( M-62490, Ruderman, J., filed
January 24, 2001). In reaching that determination, the Court wrote that Claimant
had "...failed to establish the appearance of merit of any cognizable claim."
Further, "...while claimant was granted permission, two emergencies arose that
day which prevented claimant from being transported...."
The filing and service requirements contained in §§10 and 11 Court of
Claims Act are jurisdictional in nature and must be strictly construed.
Finnerty v New York State Thruway Auth.
, 75 NY2d 721, 722-723 (1989).
Service upon the Attorney General by any means other than certified mail, return
receipt requested, is generally insufficient to acquire jurisdiction over the
State, unless the State has failed to properly plead jurisdictional defenses or
raise them by motion. Court of Claims Act §11(c); Edens v State of New
, 259 AD2d 729 (2d Dept. 1999); Philippe v State of New York
248 AD2d 827 (3d Dept 1998). Additionally, the Claimant has the burden of
establishing proper service. Boudreau v Ivanov
, 154 AD2d 638, 639 (2d
Here, the State's Verified Answer pleaded this defense with particularity,
preserving the issue for review. Thus, its motion to dismiss is granted on this
ground alone. The Court also notes that on untimeliness grounds, too, the claim
should be dismissed. The Claim accrued on July 20, 1999. Six months later the
Claim was filed. Indeed, a prior court Order has determined that Claimant's
application to file a late claim is without merit as well.
Finally, the Court has reviewed the evidence presented and determined that the
Claim should be dismissed on substantive grounds as well. Claimant was denied
transport for a funeral visit to his mother's funeral service in Brooklyn by
Sing Sing personnel on July 20, 1999. One day earlier, he had been mistakenly
transported in a van to Brooklyn for the funeral. When the error was
discovered, he remained in a local police precinct to await transport back to
Sing Sing for "seven hours."
The next day, Sing Sing personnel denied his request to go on the funeral visit
as originally scheduled. As noted above, two emergencies had arisen precluding
his transport. As confirmed in the Inmate Grievance Resolution Committee
decision, accepting Claimant's grievance, "the initial paperwork ...clearly
stated the place & time of service was ‘viewing 9-11 AM at F. Home,
and service at 11 AM at F. Home.' Both were for Tuesday 7-20-99. However, the
attempted trip was conducted on 7/19/99. The van broke down, and the grievant
wound up spending five hours in a police station. When he requested to go on
his funeral visit on the next (the proper) day, he was refused. As his mother
was moved from New Jersey to New York for the one day specifically for this
courtesy, there is nothing than can be done now but offer an apology for the
mistake. However, the committee recommends that future trips be carefully
screened for accuracy prior to sending inmates out on such emotionally charged
trips." [Claimant's Exhibit "1"].
When and if an inmate is to be afforded temporary release from incarceration is
governed by statute [
§ 113 Correction Law], and regulation [See,
, 7 NYCRR §1900.1 et. seq
.], and is one of those
discretionary functions of defendant's employees for which defendant possesses a
qualified immunity. Arteaga v State of New York
, 72 NY2d 212, 216
(1988); Cain v State of New York
The statute provides in pertinent part that "[t]he commissioner of correctional
services may permit any inmate confined by the department... to attend the
funeral of his... father, mother, guardian or former guardian, child, brother,
sister, husband, wife, grandparent, grandchild, ancestral uncle or ancestral
aunt within the state...subject to such rules and regulations as the
commissioner of correctional services shall prescribe, respecting the granting
of such permission, duration of absence from the institution, custody,
transportation and care of the inmate, and guarding against escape." § 113
Correction Law. Participation in visitation programs - and those granting
temporary release - is a privilege, not a right.
Matter of Doe v Coughlin
, 71 NY2d 48, rearg.
70 NY2d 1002, cert. denied
488 US 879
(1988); Rivera v State of New York
, 169 AD2d 885, lv
, 77 NY2d 807 (1991). A viable cause of action does not arise
from a refusal to grant permission. Rivera v The State of New York
Here, the Claimant was granted his visit, but circumstances beyond the control
of correctional services personnel apparently prevented his being transported to
Brooklyn on the correct date. Unfortunate as the failure to transport Claimant
to his mother's funeral may have been, it has simply not been established that
the discretionary refusal to halt Claimant's funeral visit was an action taken
in bad faith or without a reasonable basis. While the Court appreciates the
Claimant's distress at his mother's death, and his frustration at being unable
to attend her funeral, such attendance is "...not a mandated constitutional,
statutory or other legal right....[giving] rise to a cognizable cause of
Ford v State of New York
, Claim No. 101971, Bell, J., November 15, 2001.
Claimant has failed to establish a
case of bad faith or lack of a basis for any policy decisions
and, therefore, Claim Number 101685 is dismissed on the merits as
Let Judgment be entered accordingly.