New York State Court of Claims

New York State Court of Claims

JORDAN v. THE STATE OF NEW YORK, #2005-019-593, Claim No. 111436, Motion No. M-70896


State's motion to dismiss is granted due to claimant's failure to state a cause of action relating to denial of visitation while incarcerated.

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):

Claimant's attorney:
Defendant's attorney:
HON. ELIOT SPITZER, ATTORNEY GENERALBY: Carol A. Cocchiola, Assistant Attorney General, of counsel
Third-party defendant's attorney:

Signature date:
December 23, 2005

Official citation:

Appellate results:

See also (multicaptioned case)


In lieu of an answer, the State of New York (hereinafter "State") moves to dismiss this claim pursuant to CPLR 3211 (a) (2), (7) and (8) and CCA 11 (b) and (c). The court has not received any papers in opposition to this motion from either claimant.[1]

Claimant Darren Jordan alleges that the State improperly denied him visitation with his mother, Tammy Jordan, on August 28, 2005 during his incarceration in Southport Correctional Facility. Claimant[2] acknowledges in his claim that he received a memorandum from Superintendent McGinnis dated August 25, 2005 which immediately revoked his visitation privileges due to his past behavior problems during visitation. The claim also alleges that prison officials improperly rejected claimant's requests for a transfer to a different correctional facility.

This claim was served on the Office of the Attorney General by certified mail, return receipt requested, on September 26, 2005 and filed with the Clerk of the Court on September 28, 2005. A second copy of the claim - in a slightly different version - was served on the Office of the Attorney General by certified mail, return receipt requested, on September 28, 2005. Claimant's mother, Tammy Jordan, is named as a claimant on the claim.

By way of this motion, the State contends that this claim should be dismissed because the claim fails to state a cause of action. The State asserts as a second ground for dismissal against claimant Tammy Jordan her failure to verify the notice of intention or either version of the claim. The court will address the State's primary argument that this claim fails to state a cause of action since it is dispositive of the claim in its entirety as against both claimants.

It is well-settled that the court's function on a motion to dismiss is to determine whether the claimant possesses a cause of action, not simply whether he has stated one. Toward that end, the court must "[a]ccept the facts as alleged in the complaint as true, accord [claimant] the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory [citations omitted]." (Leon v Martinez, 84 NY2d 83, 87-88). Even accepting claimant's assertions as true, it is undisputed that participation in visitation programs is a privilege, not a right and the refusal to grant visitation does not give rise to a cognizable claim against the State. (Matter of Doe v Coughlin, 71 NY2d 48, rearg denied, 70 NY2d 1002, cert denied 488 US 879; Rivera v State of New York, 169 AD2d 885). As such, claimant has failed to state a cause of action based upon improperly withheld visitation.

To the extent the claim attempts to assert violations of the United States Constitution and/or State Constitution based upon his denial of visitation, such theories 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 Coombe, 238 AD2d 631, quoting Kentucky Dept. of Corrections v Thompson, 490 US 454, 461).

Consequently, for the reasons stated above, it is ORDERED that the State's motion to dismiss, Motion No. M-70896, is GRANTED and Claim No. 111436 is DISMISSED.

December 23, 2005
Binghamton, New York

Judge of the Court of Claims

The court has considered the following papers in connection with this motion:
  1. Claim, filed September 28, 2005.
  2. Notice of Motion No. M-70896, dated October 31, 2005, and filed November 2, 2005.
  3. Affirmation of Carol A. Cocchiola, AAG, in support of motion, dated October 31, 2005, with attached Exhibits.

[1]The court granted claimant Darren Jordan's written request for an adjournment to allow time to submit opposition papers, but no such papers were ever received.
[2]The term claimant will refer to Darren Jordan.