New York State Court of Claims

New York State Court of Claims
TORRES v. THE STATE OF NEW YORK, # 2009-044-563, Claim No. 116934, Motion No. M-76930


Court dismisses inmate's claim relating to denial of permission to attend grandfather's funeral for failure to state a cause of action.

Case information

UID: 2009-044-563
Claimant short name: TORRES
Footnote (claimant name) :
Footnote (defendant name) : The Court has sua sponte amended the caption to reflect the State of New York as the sole proper defendant.
Third-party claimant(s):
Third-party defendant(s):
Claim number(s): 116934
Motion number(s): M-76930
Cross-motion number(s):
Claimant's attorney: GUILLERMO TORRES, pro se
BY: James E. Shoemaker, Assistant Attorney General
Third-party defendant's attorney:
Signature date: November 18, 2009
City: Binghamton
Official citation:
Appellate results:
See also (multicaptioned case)


Claimant, while in the custody of the Department of Correctional Services (DOCS) at Elmira Correctional Facility (Elmira), filed this claim alleging that defendant State of New York (defendant) was negligent by failing to timely process the appropriate paperwork in order for him to attend funeral services for his grandfather. In lieu of answering, defendant moves to dismiss the claim for failure to state a cause of action. Claimant opposes the motion.

Defendant argues that because the determination to allow an inmate to leave a correctional facility to attend a funeral is discretionary, defendant is immune from liability in this matter. Conversely, claimant contends that by not identifying his paperwork for "high priority handling," defendant was negligent in failing to comply with its own rules and regulations.

Claimant alleges that on May 8, 2008, Deacon McGuire informed him that his grandfather had passed away and the funeral would be held out of state. He was not allowed a telephone call to his family at that time. On May 12, 2008, claimant met with Chaplain Al Pacete who allowed him to place a call to his family. Claimant's family apparently made arrangements for his grandfather's body to be taken to a funeral home in Rochester, New York. Pacete allegedly stated that he would begin to process the necessary paperwork so that claimant would be able to attend the services. Claimant alleges that he met with Chaplain Dewberry later that same day, and again called his family. He was informed that the services would be held on May 14, 2008, and that his family had faxed the paperwork to the facility. Although he does not indicate which employee actually advised him, claimant states that he was told that "he would be going to review his [g]randfather's body on May 14, 2008."(2) Claimant asserts that he was never taken to the funeral home to pay his respects.

Claimant alleges causes of action based upon the negligence of DOCS employees in performance of their job duties by failing to timely process the paperwork provided by his family, as well as defendant's negligent hiring, training and supervision of those employees. Claimant also alleges causes of action for constitutional and civil rights violations, and for punitive damages. Claimant asserts that he suffered emotional distress and anguish because he was not allowed to attend his grandfather's wake or funeral and grieve with his family.

It is well settled that the Court of Claims does not have jurisdiction to consider Federal Constitutional claims, including civil rights violations brought under 42 USC 1983. Accordingly, those causes of action are hereby dismissed (see e.g. Brown v State of New York, 89 NY2d 172, 184 [1996]). Further, because an adequate remedy may exist - in the form of a potential cause of action for negligent infliction of emotional distress - for claimant's failure to attend the wake or funeral (see infra, at 4-5), this Court need not recognize a tort cause of action under the State Constitution (see Martinez v City of Schenectady, 97 NY2d 78 [2001]; Brown v State of New York, supra). Accordingly, to the extent that claimant has alleged a violation of the State Constitution, it is dismissed. Lastly, claimant's cause of action for punitive damages is also dismissed, as such damages are not an available remedy in the Court of Claims (Sharapata v Town of Islip, 56 NY2d 332 [1982]).

With respect to the remaining allegations of the claim, 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 . . .grandparent," subject to certain rules and regulations (see 7 NYCRR 1901.1 [a] [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).

Notwithstanding claimant's allegation that he was told he could attend the wake or funeral, Elmira's Deputy Superintendent for Security Services denied claimant's request on May 15, 2008, indicating that he "recieved [sic] [the request] one day late to make any arrangements."(3) Claimant filed a grievance, which was accepted to the extent that "staff error [had] occurred in the processing of the paperwork [and] . . . corrective action [was] taken to prevent any similar situation" by informing staff "of the urgency of giving requests of this nature high priority."(4) Although it was unfortunate that claimant was not able to attend his grandfather's funeral, defendant's determination was wholly within its discretion, and no liability can attach (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 claimant permission to attend the funeral, and thereafter through ministerial negligence the inmate was not released, liability might have attached (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.(5) A cause of action for negligent infliction of emotional distress is sustainable in only a few circumstances, i.e. 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 generalized allegations of mental distress and 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]).

Defendant's motion is granted, and Claim No. 116934 is dismissed.

November 18, 2009

Binghamton, New York


Judge of the Court of Claims

The following papers were read on defendant's motion:

1) Notice of Motion filed on July 10, 2009; Affirmation of James E. Shoemaker, Assistant Attorney General, dated July 8, 2009, and attached Exhibits A through E.

2) Affidavit in Opposition of Guillermo Torres filed on August 10, 2009.

Filed papers: Claim filed on June 1, 2009.

2. Verified Claim, 12.

3. Defendant's Motion to Dismiss, Exhibit A. The Deputy Superintendent for Security Services also issued claimant a To - From memo expressing his condolences and explaining that he did not have time to "set up" claimant's attendance at the funeral (Defendant's Motion to Dismiss, Exhibit C).

4. Defendant's Motion to Dismiss, Exhibit E, at 4.

5. 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 such a basis (Brown v State of New York, 125 AD2d 750 [1986], lv dismissed 70 NY2d 747 [1987]; Love v State of New York, supra).