New York State Court of Claims

New York State Court of Claims

LOVE v. STATE OF NEW YORK, #2002-031-065, Claim No. 106559, Motion No. M-65874


Synopsis


Defendant's decision not to permit Claimant to attend his stepfather's funeral was a discretionary decision and is not actionable. Defendant's motion to dismiss the claim is granted.

Case Information

UID:
2002-031-065
Claimant(s):
CHRISTOPHER LOVE
Claimant short name:
LOVE
Footnote (claimant name) :

Defendant(s):
STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
106559
Motion number(s):
M-65874
Cross-motion number(s):

Judge:
RENÉE FORGENSI MINARIK
Claimant's attorney:
CHRISTOPHER LOVE, PRO SE
Defendant's attorney:
HON. ELIOT SPITZER
New York State Attorney General
BY: WILLIAM D. LONERGAN, ESQ.Assistant Attorney General
Third-party defendant's attorney:

Signature date:
December 12, 2002
City:
Rochester
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

The following papers, numbered 1 to 4, were read on motion by Defendant for an order dismissing the claim:
1. Defendant's Notice of Motion, filed October 3, 2002;
2. Affidavit of William D. Lonergan, Esq., sworn to October 2, 2002, with attached exhibit;
3. Defendant's memorandum of law, dated October 2, 2002;
4. Claimant's affidavit, sworn to October 17, 2002. Claimant Christopher Love commenced this action for damages relating to the Defendant's alleged failure to permit him to attend his stepfather's funeral. Claimant also alleges that the refusal to allow him to attend the funeral was motivated by race and was, therefore, an improper act of discrimination. He alleges further that minority inmates are often refused such privileges.

Defendant brings this motion, asserting that Claimant has failed to state a cause of action upon which relief can be granted. Defendant alleges that the decision to permit an inmate to attend the funeral of a family member is discretionary and that the State, therefore, enjoys immunity from liability resulting from such decisions.

The decision to permit an inmate to attend a funeral is indeed discretionary under Section 113 of the Corrections Law which states: "[t]he commissioner of correctional services may permit any inmate confined by the department . . . to attend the funeral of his . . . former guardian . . ." (emphasis added). Therefore, permission to attend the funeral of a family member is a privilege, not a right. Accordingly, Defendant's refusal to grant Claimant permission to attend his stepfather's funeral does not give rise to a viable cause of action (see Rivera v State of New York, 169 AD2d 885).

I also note that the damages alleged by Claimant are his "psychological and emotional stress and suffering" that resulted from the decision to refuse him permission to attend the funeral. To the extent that this constitutes an allegation of intentional infliction of emotional distress, public policy prohibits an action against the State for intentional infliction of emotional distress (Brown v State of New York, 125 AD2d 750, motion for lv to appeal dismissed 70 NY2d 747; Wheeler v State of New York, 104 AD2d 496; De Lesline v State of New York, 91 AD2d 785, lv denied 58 NY2d 610).

To the extent that Claimant's allegations of damages could be construed as the result of negligent infliction of emotional distress, Claimant's allegations are insufficient as a matter of law. As stated by the Appellate Division, Third Department in Dobisky v Rand (248 AD2d 903, 905):
A claim for negligent infliction of emotional distress requires a showing that defendants' conduct unreasonably endangered plaintiffs' physical safety or, as exceptions to this rule, that untruthful information regarding death was transmitted or that a corpse was negligently mishandled (see, Johnson v State of New York, 37 NY2d 378, 381-382).

Finally, though only vaguely alleged in his claim, Claimant more forcefully states, in his affidavit in opposition to this motion, that Defendant's refusal to permit him to attend his step-father's funeral was racially motivated in violation of his constitutional rights. I note first that such assertions are conclusory and Claimant has failed to come forward with factual support of any kind. Be that as it may, a cause of action under the Federal Constitution is not cognizable in this Court (see Ferrer v State of New York, 172 Misc 2d 1, 5; Gill v State of New York, Ct Cl, Jan. 10, 2001, Mignano, J., UID #2001-029-042).

For the reasons set forth above, I find that Claimant has failed to set forth a claim upon which relief can be granted. Defendant's motion to dismiss the claim is granted. The Clerk is directed to close the file

December 12, 2002
Rochester, New York

HON. RENÉE FORGENSI MINARIK
Judge of the Court of Claims