New York State Court of Claims

New York State Court of Claims

JAMES v. THE STATE OF NEW YORK, #2008-044-557, Claim No. 114613, Motion No. M-74437


Defendant’s motion to dismiss granted; defendant’s denial of inmate’s request to attend re-scheduled funeral services for his uncle (after granting initial request and transporting claimant on date services were initially to be held) was wholly within its discretion.

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. ANDREW M. CUOMO, ATTORNEY GENERALBY: James E. Shoemaker, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
June 23, 2008

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant, an inmate proceeding pro se, filed this claim alleging that defendant State of New York (defendant) was negligent by transporting him from Elmira Correctional Facility (Elmira) to funeral services on the wrong date, and thereafter denying his request to attend said services on the correct date. In lieu of answering, defendant moves to dismiss. Defendant argues that because the determination to allow an inmate to leave the facility to attend a funeral is discretionary, the Department of Correctional Services is immune from liability. Although claimant requested and received an adjournment, he has not responded.

Claimant alleges that on November 8, 2007, he was informed that his uncle had died a few days earlier (November 3, 2007). Claimant alleges that Chaplain Meiser obtained the necessary information from claimant’s aunt and submitted the paperwork for a temporary leave of absence application. Claimant alleges that he received no further information until November 20, 2007, when Correction Officer Hall informed him that he was going to the funeral that day. Claimant alleges that when he arrived at the funeral home, he discovered that the body was not that of his uncle. Claimant asserts that after speaking with the funeral director, he learned that the services for his uncle had been rescheduled for November 27, 2007. Claimant thereafter spent the night at Sing Sing Correctional Facility and returned to Elmira on November 21, 2007.

Claimant asserts that immediately upon his return to Elmira, he again requested to attend his uncle’s funeral services which were scheduled for November 27, 2007. Claimant asserts that he did not receive the denial of his request until November 28, 2007. Claimant alleges that he has suffered insomnia, mild depression and mental anguish “from being taken to the wrong funeral services then having [his] family denounced all while being dejected and rejected of attending the funeral services.”

Correction Law § 113 provides that the Commissioner of Correctional Services (or his or her designee) “may permit any inmate . . . to attend the funeral of his or her . . . ancestral uncle,” subject to certain rules and regulations (see 7 NYCRR 1901.1). However, an inmate’s ability to participate in this temporary release program is a privilege, not a right  (see e.g. Matter of Doe v Coughlin, 71 NY2d 48 [1987], cert. denied 488 US 879 [1988]; Rivera v State of New York, 169 AD2d 885 [1991], lv denied 77 NY2d 807 [1991]), and the determination of whether to allow such participation is one of those discretionary functions for which defendant possesses a qualified immunity (see Arteaga v State of New York, 72 NY2d 212, 216 [1988]; Goodale v State of New York, Ct Cl, Mar. 21, 2006, Sise, P.J., Claim No. None, Motion No. M-70851 [UID # 2006-028-532]). The refusal to grant permission does not provide a basis for a cause of action against the State (see Rivera v State of New York, supra; Goodale v State of New York, supra).

It is undisputed that claimant was initially given permission to attend the funeral services, and was admittedly transported on the originally scheduled date. Unbeknownst to either party, the date had been changed.[1] Claimant essentially presented defendant with a second request for a temporary release, and was denied permission to attend the rescheduled services. Although it was unfortunate that claimant did not attend his uncle’s funeral, particularly under these circumstances, defendant’s determination was wholly within its discretion, and there can be no liability (Goodale v State of New York, supra; Cain v State of New York, Ct Cl, Mar. 12, 2002, Scuccimarra, J., Claim No. 101685 [UID #2002-030-019]; Love v State of New York, Ct Cl, Dec. 12, 2002, Minarik, J., Claim No. 106559, Motion No. M-65874 [UID # 2002-031-065]).

If this was a claim where defendant had granted permission to attend the funeral, and thereafter through ministerial negligence the inmate was not released, liability may attach (Howard v State of New York, Ct Cl, Mar. 11, 2002, Collins, J., Claim No. None, Motion No.

M-64431 [UID # 2002-015-231]). However, even under those circumstances, a claimant must set forth damages which rise to the level of negligent infliction of emotional distress.[2] A cause of action for negligent infliction of emotional distress is sustainable in only a few circumstances, that is when defendant’s conduct unreasonably endangered the claimant’s physical safety, or defendant transmitted misinformation concerning a death to the claimant, or defendant negligently mishandled a corpse (see Dobisky v Rand, 248 AD2d 903 [1998]). Claimant’s allegations of insomnia, depression and mental anguish are clearly insufficient to support a cause of action for negligent infliction of emotional distress (see Lanier v State of New York, Ct Cl, Jan. 11, 2006, Sise, P.J., Claim No. 106528 [UID # 2006-028-001]).

Accordingly, defendant’s motion is granted and Claim No. 114613 is hereby dismissed.

June 23, 2008
Binghamton, New York

Judge of the Court of Claims

The following papers were read on defendant’s motion:

1) Notice of Motion filed on January 17, 2008; Affirmation of James E. Shoemaker, Assistant Attorney General, dated January 15, 2008, and attached Exhibits A through C.

Filed papers: Claim filed on December 17, 2007.

[1]. Claimant’s assertion that defendant failed to abide by its own regulations is without merit. Because claimant was initially given permission to attend the services, it is reasonable to infer that defendant complied with the regulations, particularly with 7 NYCRR 1901.1 (a) (1) (i) (b), which requires the temporary release committee chairperson to “contact the funeral home director to verify the death and to ascertain the dates, times and addresses of the wake, funeral and interment.” While it may be advantageous to make further contact with the funeral director to again verify the dates and times prior to the inmate’s departure, there clearly is no requirement for defendant to do so.
[2]. To the extent claimant may be alleging a cause of action for intentional infliction of emotional distress, public policy prohibits an action against the State on that basis (Brown v State of New York, 125 AD2d 750 [1986], lv dismissed 70 NY2d 747 [1987]; Love v State of New York, supra).