New York State Court of Claims

New York State Court of Claims

SLOANE v. THE STATE OF NEW YORK, #2003-030-510, Claim No. 106734, Motion No. M-66189


Motion to dismiss pro se inmate's claim for failure to state cause of action granted. Claimant did not allege threshold requirement of familial relationship when denied a funeral visit. State has immunity for discretionary determination made in conformance with regulations

Case Information

DEREK SLOANE The caption has been amended to reflect the only proper defendant.
Claimant short name:
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Footnote (defendant name) :
The caption has been amended to reflect the only proper defendant.
Third-party claimant(s):

Third-party defendant(s):

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

Claimant's attorney:
Defendant's attorney:
Third-party defendant's attorney:

Signature date:
January 29, 2003
White Plains

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers, number 1 to 6, were read on Defendant's motion to dismiss Claim

Number 106734 for failure to state a cause of action:

1,2 Notice of Motion, Affirmation of Mary B. Kavaney, Assistant Attorney General, dated December 18, 2002, and accompanying exhibits

3 Notice of Motion in Opposition of Derek Sloane, Claimant, dated December 23, 2002 and accompanying exhibits

4 Letter from Mary B. Kavaney, Assistant Attorney General, dated January 6, 2003 enclosing omitted exhibit

5,6 Filed papers: Claim, Answer

After carefully considering the papers presented and the applicable law the motion is disposed of as follows:

Claimant alleges in Claim Number 106734 that Defendant's agents wrongfully denied him a funeral visit to his grandmother's funeral. More specifically, he states that "...on June 11 or 12, 2002....[at] downstate corr. Fac...around, or about 5:20 p.m. I was notify by the senior chaplain...that there was a (death) in my family, (my grandmother) has pass away, deacon tony asked me if I wanted to attend said funeral...I did request to attend my grandmother's funeral, on or about June 14, 2002...around or about 1:30 p.m. I was informed by, I believe to be G. Lord asst. deputy supt. (Cadre), or V. Jones, deputy supt. of security or his own words: thats not ‘my' ‘grandmother', no relationship. I then was told I cannot attend my (grandmother) funeral...." [Claim No. 106374,¶ 2]. Claimant further alleges that " york state, defendants, frank tracy, Jerome nicolato, Senior corr. counselor and g. lord asst. deputy supt. (Cadre), senior Chaplain/protestant all fouled up, failed to follow (directive) (4206) and their own rules and policy, management or procedure..." [Id]. (sic).

The Defendant has attached the Affidavit of William H. Many, Deputy Superintendent for Security Services at Downstate Correctional Facility (hereafter Downstate) in support of its motion. [Affirmation in Support of Mary B. Kavaney, Exhibit"2"]. Deputy Many indicates that he is the official designated at Downstate to "..make the determinations as to whether or not inmates received approval for funeral visits." [Id, ¶4]. He describes the general procedure the facility follows - pursuant to New York State Department of Correctional Services (hereafter DOCS) Directive 4206 - for determining funeral visits. Relative to this case, he writes: "...On June 11, 2002 at approximately 3:45 p.m. the facility Catholic Chaplain, Deacon Frank Gohl, was notified by an individual who identified herself as Deloras Hinson, Sister of Inmate Derek Sloane....,that their grandmother, Rose Knox, had passed away...Deacon Gohl notified Inmate Sloane on that same day at approximately 5:05 p.m...On June 12, 2002 at approximately 10:18 a.m. I received a memo from Senior Counselor Susan M. Kinney notifying me that there was no verification of the relationship between Inmate Sloane and the deceased in the Counseling Unit records and that a request has been made to pursue verification through the community chaplains...On June 13, 2002 at approximately 10:31 a.m. I received a telephone call from Reverend Ronald Perry of the Department of Correctional Services Ministerial and Family Services Community Chaplaincy Office. He explained to me that Inmate Sloane's sister had done everything she could to obtain verification of their grandmother's relationship but could not....On June 13, 2002 I denied authorization for Inmate Sloane to attend the funeral based on the fact that the relationship between Inmate Sloane and the deceased could not be verified. Inmate Sloane was notified of the denial, as was the Superintendent." [Ibid, ¶¶10-14].

When and if an inmate is to be afforded temporary release from incarceration is governed by statute [See § 113 Correction Law], and regulation [See generally 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, Claim No. NONE; M-62490, Ruderman, J., filed January 24, 2001. DOCS Directive 4206 - addressing notification of death of an inmate's family member and funeral attendance - requires that the familial relationship be "verified."

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 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 denied, 70 NY2d 1002, cert denied 488 US 879 (1988); Rivera v State of New York, 169 AD2d 885 (3d Dept 1991).

Here, pursuant to DOCS regulations, the Claimant was denied the requested funeral visit because one of the threshold requirements for being granted a visit was not met, namely, there was no verification of the familial relationship. Unfortunate as the failure to grant Claimant a funeral visit may have been, on its face, the Claim provides that a requirement for such a visit was not met. Indeed, the refusal of this visit does not invoke consideration of whether discretion was exercised in bad faith or without a reasonable basis, since the regulations require that the relationship be verified. Claimant has not presented any information in opposition to the Defendant's motion to show that the prerequisite was met. While the Court appreciates the Claimant's distress at his grandmother'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 action." Ford v State of New York, Claim No. 101971, Bell, J., filed November 15, 2001.

Accordingly, Motion Number M–66189 is hereby GRANTED and Claim Number 106734 is dismissed in its entirety for a failure to state a cause of action.

January 29, 2003
White Plains, New York

Judge of the Court of Claims