Opinion
# 2016-016-060 Claim No. 124441 Motion No. M-89263 Cross-Motion No. CM-89329
11-21-2016
PETER LOPEZ v. THE STATE OF NEW YORK
Peter Lopez, Pro se Eric T. Schneiderman, Attorney General By: Mark Sweeney, AAG
Synopsis
Case information
| UID: | 2016-016-060 |
| Claimant(s): | PETER LOPEZ |
| Claimant short name: | LOPEZ |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 124441 |
| Motion number(s): | M-89263 |
| Cross-motion number(s): | CM-89329 |
| Judge: | Alan C. Marin |
| Claimant's attorney: | Peter Lopez, Pro se |
| Defendant's attorney: | Eric T. Schneiderman, Attorney General By: Mark Sweeney, AAG |
| Third-party defendant's attorney: | |
| Signature date: | November 21, 2016 |
| City: | New York |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Peter Lopez has a claim asserting that his visitation rights were violated while assigned to the special housing unit (SHU) of Sullivan Correctional Facility. Mr. Lopez moves here for summary judgment. The defendant State of New York opposes claimant's motion and cross moves for summary judgment.
Mr. Lopez was placed in SHU on July 25, 2013 following the commencement of a disciplinary hearing five days earlier. The results of the hearing, which concluded on August 8, 2013, was that Peter Lopez was found guilty of the stabbing assault of an inmate, creating a disturbance and possession of a weapon.
Lopez's claim does not challenge the procedural handling of his disciplinary hearing, nor its substantive result. Claimant, after noting that the charges and punishment therefor did not touch on visitation rights, maintains that the setting for visits was inadequate.
Lopez explains that during visits, he was "locked into a non-contact visiting booth . . . a small cubicle that allows one large person or two average size visitors at a time to enter." (Paragraph 2 of the claim, exhibit A of defendant's Affirmation). Claimant maintains that Sullivan Correctional's policy allowed for six visitors at a time during the week and three at a time on Saturdays and Sundays.
Claimant's conditions of visitation lasted "until the claimant was finally transferred to Eastern Correctional Facility after the last visit . . . on March 27, 2014" (id., paragraph 4). Unlike SHU at Sullivan CF, Eastern Correctional's visiting rooms for SHU inmates allowed the inmate and the visitor to sit on opposite sides of a table, without a glass partition between them, an arrangement which allowed holding hands and brief embraces (claimant's Sworn Affidavit, part of exhibit D, which is an affidavit from Eastern's deputy superintendent for security).
Claimant argues that an inmate has a constitutional right to contact visitation (Cooper v Morin, 49 NY2d 69 [1979], which was brought by pretrial detainees), and that "visitation sanctions may not be employed to punish or discipline. Consequently, only misconduct between an inmate and a specific visitor can result in deprivation of visitation rights" (Kozlowski v Coughlin, 871 F 2d 241, 242 [2d Cir 1989]).
Parts 200 and 302 of title 7 of the State's Codes, Rules and Regulations govern inmate visitation rights. Part 200 applies to the general population, and 7 NYCRR § 201.4 (e) thereof lists these visiting-related penalties: cutting short a visit, denying a specific visit or suspending an inmate's right to visitation for a period of time or indefinitely.
Section 302.2 (i) covers special housing visitation:
"(1) Visiting. Except as otherwise provided by this Part, no inmate shall be deprived of the visiting privileges available to inmates in general population. (i) One nonlegal visit per week will be permitted during visiting hours scheduled by the facility . . . (ii) Visits for persons in special housing units shall be in accordance with any precautions deemed necessary or appropriate by the superintendent of the facility."
Claimant points to no rule, statute, or case that would afford a precedential basis for his claim. See for example, Bethune v State of New York, 50 Misc 3d 1216 (A)(2015). The Article 78 decision, dated December 10, 2009, by Justice Eugene P. Devine (Lopez v Fischer) is distinguishable on the facts and was not dispositive on the merits (exhibit B to claimant's Reply to Defendant's Cross-Motion).
In view of the foregoing, and having considered the parties' submissions, IT IS ORDERED that motion No. M-89263 is denied, cross motion No. CM-89329 is granted and claim No. 124441 is dismissed.
The Court reviewed the following: From claimant - - a Notice of Motion for Summary Judgment Claim No. 124441; a Sworn Affidavit (with exhibits A through F); Verified Reply to defendant's Cross-Motion for Summary Judgment; and Claimant's Memorandum of Law In Support of Claimant's Motion for Summary Judgment. From defendant - - a Notice of Cross-Motion and an Affirmation in Opposition to Claimant's Motion for Summary Judgment and in Support of Defendant's Cross-Motion for Summary Judgment (with exhibits A through E). --------
November 21, 2016
New York, New York
Alan C. Marin
Judge of the Court of Claims