Denial of visitation to Claimant was neither unreasonable nor a violation of the rules and regulations governing visitation in a Special Housing Unit. Claim for damages relating to denial of visitation is dismissed.
|Claimant short name:||VAIL|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||RENÉE FORGENSI MINARIK|
|Claimant's attorney:||TIMOTHY VAIL, PRO SE|
|Defendant's attorney:||HON. ANDREW M. CUOMO
New York State Attorney General
BY: BONNIE GAIL LEVY, ESQ.
Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||February 2, 2010|
|See also (multicaptioned case)|
Claimant, Timothy Vail, filed claim number 111157 on July 18, 2005, alleging that the Department of Correctional Services ("DOCS") wrongfully denied him visitation with his wife between July of 2003 and January of 2005. I conducted the trial of this claim on September 22, 2009.
The factual background underlying this claim is not in dispute. Claimant was originally imprisoned in 1989 and sentenced to 49 years to life for second degree murder (two counts), first degree rape, first degree robbery, second degree burglary, and third degree burglary. On July 7, 2003, Claimant escaped from Elmira Correctional Facility (a maximum security facility). He was apprehended in the evening of the next day, July 8, 2003. On July 15, 2003, after a Tier III disciplinary hearing relating to the escape, Claimant was sentenced to 10 years of Special Housing Unit ("SHU") confinement. On August 27, 2003, Claimant was notified by Dale A. Artus, the Superintendent of Clinton Correctional Facility, that his visitation privileges had been suspended pending an investigation into his escape by the Inspector General's Office (Exhibit E). This suspension was modified on December 18, 2003 to permit Claimant to have non-contact visits with everyone but his wife, with whom Claimant was still not allowed to visit (Exhibit N).
The Inspector General's investigation into Claimant's escape was not the only reason for the denial of visitation with Claimant's wife, however. In late October 2003, Claimant wrote a letter to his wife in which he solicited her assistance in smuggling drugs into the facility so that he could commit suicide (Exhibit Z).
In June of 2004, Claimant commenced an Article 78 proceeding challenging Defendant's denial of visitation between him and his wife. That proceeding culminated in a written decision dated December 30, 2004, by the Honorable S. Peter Feldstein, Acting Supreme Court Justice. Justice Feldstein determined that Defendant had improperly denied Claimant visitation with his wife and directed that non-contact visitation be reinstated (Exhibit CC). Claimant does not dispute that, based on Justice Feldstein's decision, Defendant did reinstate non-contact visitation with Claimant's wife as of January 12, 2005.
The basis for Justice Feldstein's decision was simply that the regulations which require a hearing before the suspension or denial of visitation rights of a general population inmate also apply to an inmate confined to SHU. I disagree. 7 NYCRR § 200.5(a)(5) sets forth the procedures (including a hearing) that are to be followed to suspend or revoke the visitation privileges of a general population inmate. However, during the times in question, Claimant was not in general population, he was in SHU. I find that visitation privileges for inmates in SHU are governed by 7 NYCRR § 302.2(i)(1) which does not require a hearing prior to the imposition of "any special precautions deemed necessary or appropriate by the superintendent of the facility." An inmate confined to SHU is not entitled to a hearing prior to the imposition of visitation restrictions, including revocation of visiting privileges (Matter of Mineo v Fischer, 57 AD3d 1033).
Moreover, while it is clear that an inmate may challenge, either administratively or judicially, restrictions placed on visitation privileges (Matter of Serrano v Goord, 266 AD2d 661), there is no Federal or State Constitutional right to visitation for prison inmates (Matter of Encarnacion v Goord, 8 AD3d 850; Matter of Mineo v Fischer, 57 AD3d 1033, supra), and Claimant has no standing to challenge the denial of visitation privileges to his wife (id.; Matter of Grigger v Goord, 27 AD3d 803).
Finally, I note that, even if 7 NYCRR § 302.2(i)(1) did require a hearing prior to the revocation of Claimant's visiting privileges with his wife, Claimant has testified that his injuries are in the nature of emotional distress. In this regard, I note that, to the extent that Claimant's allegations of damages could be construed as the result of negligent infliction of emotional distress, Claimant's allegations are insufficient as a matter of law. As stated by the Appellate Division, Third Department, in Dobisky v Rand (248 AD2d 903, 905):
A claim for negligent infliction of emotional distress requires a showing that defendants' conduct unreasonably endangered plaintiffs' physical safety or, as exceptions to this rule, that untruthful information regarding death was transmitted or that a corpse was negligently mishandled (see, Johnson v State of New York, 37 NY2d 378, 381-382).
Further, public policy prohibits an action against the State for intentional infliction of emotional distress and, therefore, such a claim is not cognizable in this Court (Brown v State of New York, 125 AD2d 750, lv dismissed 70 NY2d 747; Wheeler v State of New York, 104 AD2d 496; De Lesline v State of New York, 91 AD2d 785, lv denied 58 NY2d 610).
Accordingly, for the reasons stated above, the claim is dismissed in its entirety.
LET JUDGMENT BE ENTERED ACCORDINGLY.
February 2, 2010
Rochester, New York
RENÉE FORGENSI MINARIK
Judge of the Court of Claims