New York State Court of Claims

New York State Court of Claims

CUNNINGHAM v. THE STATE OF NEW YORK, #2007-030-008, Claim No. 108851


Synopsis


Claimant has failed to establish by a preponderance of the credible evidence first that a funeral visit to attend grandmother’s wake was granted, and second that as a result of the asserted negligent failure to process his transport to his grandmother’s wake he suffered any cognizable damages. Participation in programs granting temporary release a privilege, not a right. Recovery for negligent infliction of emotional distress without alleging a contemporaneous or consequential physical injury may only be had if action premised upon a breach of duty owed directly to a claimant, which either endangered his physical safety or caused him to fear for his own physical safety. Assuming the visit was missed only because of Chaplain’s failure to follow proper channels to assure Claimant’s transport does not give rise to a claim for damages because Claimant has not alleged or shown that the failure unreasonably endangered or caused him to fear for his physical safety.

Case Information

UID:
2007-030-008
Claimant(s):
KENNETH CUNNINGHAM
Claimant short name:
CUNNINGHAM
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
108851
Motion number(s):

Cross-motion number(s):

Judge:
THOMAS H. SCUCCIMARRA
Claimant’s attorney:
KENNETH CUNNINGHAM, PRO SE
Defendant’s attorney:
HON. ANDREW M. CUOMO, NEW YORK STATE ATTORNEY GENERAL
BY: JEANE STRICKLAND SMITH, ASSISTANT ATTORNEY GENERAL
Third-party defendant’s attorney:

Signature date:
March 14, 2007
City:
White Plains
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)


Decision
Kenneth Cunningham alleges in his claim that defendant’s agents at Green Haven Correctional Facility negligently failed to allow him funeral leave on or about October 17, 2003. Trial of the matter was held at Sing Sing Correctional Facility on January 26, 2007.
Claimant testified that on October 14, 2003 he learned from the facility chaplain, Reverend Matos, that his grandmother had passed away the day before. Mr. Cunningham spoke by telephone with his family to learn of the arrangements, and discussed the required paperwork for his participation with Reverend Matos. Pursuant to Directive 4206, he said, certain procedures had to be followed. [Exhibit 1]. As far as claimant understood it, “Reverend Matos was taking care of the paperwork.”
[1]
When claimant spoke again with his family, he learned that the wake would be held on Friday, October 17, 2003. His counselor, Gloria Rosario, also told him that the wake would be held that Friday and he “was cleared to go.”
On Friday, he was told he was not on the trip list. He went to the counselor’s office and learned that there was “no trip for him.” Ms. Rosario checked with Reverend Matos’ office but “he was not there.” Ultimately it was “learned” - according to Claimant - that Reverend Matos “said he gave the paperwork to an officer who lost it.”
Claimant filed a grievance on October 31, 2003, appeared for his hearing on December 11, 2003 - which he said was “untimely” in accordance with “grievance procedures.” Using the guidance of a publication of the Prisoner’s Legal Services concerning the grievance program [see Exhibit 2], claimant testified that Directive 4040 requires that an inmate file a grievance within a prescribed time, but also requires that it be heard within a prescribed time. Thus, he argued, the Inmate Grievance did not proceed in accordance with regulations either. Additionally he argued that Correction Law §113 authorized funeral visits. [Exhibit 3]. He argued that the facility failed to follow its regulations by losing all the paperwork, despite the fact the multiple copies were made; and it could have been duplicated and he could have been “sent on his way.”
Although the claim does not indicate how he was damaged, at trial some limited testimony on the issue was elicited, to the effect that due to Reverend Matos’ failure to follow the “chain of command” and “deliver the papers to the right people”, claimant lost his opportunity to attend the wake, and has “damaged his mental health”. He said that based on the sentence he is serving, it will be ten (10) years until he can go pay his respects to his grandmother. He explained that for a temporary work release program he is in he had to be spoken to by a mental health professional: an interview he theorized was required only because of the prior problem getting to his grandmother’s wake.
On cross-examination, he conceded that he did not receive any written approval of the leave from the Superintendent or any representative of the temporary release unit. Claimant identified an inmate grievance complaint, filed October 31, 2003, as his own. [Exhibit A]. He confirmed that the relief he was requesting in the grievance at the time was to be transferred to a medium security facility - thus changing his classification - premised only upon the failure to be afforded the funeral visit. Reclassification would avoid problems of temporary release in the future. He testified that he received a grievance decision to the effect that he needed to go through his counselor to be reclassified in this fashion.
Appearing to misunderstand counsel’s question, Mr. Cunningham denied that his classification at a maximum security prison such as Green Haven had “something to do” with his being denied the funeral visit, saying “No, because my cousin was at a medium, and he made it.” He conceded that he had not filed an Article 78 proceeding concerning the denial of his grievance. He also said that “the only relief he could seek in a grievance procedure was a change in classification”, premised upon the denial of the visit, as opposed to money damages. Mr. Cunningham repeated, however, that the basis for the current claim was Reverend Matos “losing the paperwork.”
No other witnesses testified and no other evidence was submitted.
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, UID # 2001-010-005, Claim No. None; Motion No. M-62490 (Ruderman, J., signed January 4, 2001); see also Cain v State of New York, UID #2002-030-019, Claim No. 101685 (Scuccimarra, J., signed March 12, 2002); Sloane v State of New York, UID #2003-030-510, Claim No. 106734, Motion No. M-66189 (Scuccimarra, J., signed January 29, 2003). DOCS Directive 4206 - addressing notification of death of an inmate’s family member and funeral attendance - requires that the familial relationship be “verified” and that either the temporary release unit and/or the Superintendent approve of the trip. [See Exhibit 1]. From this record, it is unclear whether the trip was approved in the first instance.
The authorizing 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 . . . grandparent, . . . 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.” Correction Law § 113. Participation in visitation programs - and those granted 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), lv denied 77 NY2d 807 (1991).
Here, there has been no substantiation of the purported reason the Claimant was denied a requested funeral visit except Claimant’s testimony that the Chaplain failed to follow procedures and/or lost his paperwork. Even assuming that this was the case: that Claimant supplied the appropriate verification of the relationship, and was qualified to attend, and that administrative errors prevented the trip, this does not necessarily lead to a claim for money damages. Unfortunate as the failure to afford Claimant a funeral visit may have been, and while the Court appreciates the Claimant’s distress at his grandmother’s death, and his frustration at being unable to attend her wake, 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).
Viewed as a negligence claim, seeking recovery for negligent infliction of emotional distress without alleging a “. . . contemporaneous or consequential physical injury . . .” [see Johnson v State of New York, 37 NY2d 378, 381 (1975)], the cause of action must generally be premised upon a breach of duty owed directly to a claimant, which either endangered his physical safety or caused him to fear for his own physical safety. Doe v Archbishop Stepinac High School, 286 AD2d 478, 479 (2d Dept 2001); Dobisky v Rand, 248 AD2d 903, 905 (3d Dept 1998). Assuming the visit was missed only because of the inadvertence of the Chaplain in not following proper channels to assure Claimant’s transport will not, in this instance, give rise to a claim for damages because Claimant has not alleged or shown that the failure unreasonably endangered or caused him to fear for his physical safety.
Thus for example in a claim where the facts were more clearly established that the inmate had been granted the funeral visit yet was prevented from attending because of administrative errors, the Court would not impose liability on the State for the alleged negligent infliction of emotional distress, saying:
“[the] Court does not doubt that Claimant was genuinely distressed by the events giving rise to this claim because he had to miss his brother's wake and funeral and the solace of family that he would have received at those events and because, as he states in his post-trial brief (5th page), he was no longer ‘able to trust [prison officials] or count on them properly to do their job.’ It is not unusual and does not present a ‘special circumstance’ of the type and nature required for liability to be imposed, however, for an individual to feel sadness at being unable to attend a relative's funeral or for a prison inmate to question the accuracy and reliability of prison officials. The type and degree of emotional distress resulting from this administrative error does not rise to the level of compensable harm as a matter of law.”
Lanier v State of New York, #2006-028-001, Claim No. 106528 (Sise, P.J., signed January 11, 2006); see also Howard v State of New York, Claim No. None, Motion No. M-64431, UID #2002-015-231 (Collins, J., signed March 11, 2002).
Claimant has failed to establish by a preponderance of the credible evidence first that the visit was even granted, and second that as a result of the asserted negligent failure to process his transport to his grandmother’s wake he suffered any cognizable damages.
[2]

Accordingly, Claim Number 108851 is hereby dismissed in its entirety.
Let Judgment be entered accordingly.

March 14, 2007
White Plains, New York

HON. THOMAS H. SCUCCIMARRA
Judge of the Court of Claims




[1]. All quotations are to trial notes or audio recordings unless otherwise indicated.
[2]. The Court also notes that other than saying that the hearing on the grievance was untimely, there is no showing that claimant pursued matters further by administrative appeal or by judicial review of a final administrative determination. See generally Civil Practice Law and Rules §7801 et seq.