Jose Saldaña, an inmate at Sullivan Correctional Facility, alleges that he was wrongfully denied permission to attend his mother's wake in Manhattan. Mr. Saldaña's brother called the facility on April 2, 2012, and claimant was informed of his mother's death by a prison chaplain. See claimant's exhibit 4, which is a form entitled, "Report of Grave Illness/Death in Inmate's Family."

Exhibit 4 indicates that "calling hours" were scheduled for April 4, 2012, and that the funeral was scheduled for April 5, 2012. Inasmuch as claimant complains of being denied attendance on April 5, 2012, he may be referring to the funeral, and the exhibit contains an entry that "[i]nmate's family and offender want to attend funeral." With that said, claimant referred to a "wake" in both his claim and trial testimony, and that term will also be used herein.

Saldaña testified that he had been granted such permission in 1992 when his brother died and in 2002 following his sister's death. However, claimant's exhibit 1, the comparable document to exhibit 4 for his brother, does not directly indicate whether permission was granted. Saldaña does appear to have been allowed to attend the services for his sister (exhibit 2).

Here, claimant points to the fact that permission was initially granted by Deputy Superintendent D. Giglio, who checked off "Trip Approved" (exhibit 4). But Saldaña testified that a day or two later, he was advised that permission to attend the wake had been denied by the [*2]facility superintendent, Patrick J. Griffin, and he was not told why. Claimant filed a grievance on April 10; Superintendent Griffin responded as follows on May 4, 2012:

"In accordance with Directive No.4901,^[FN1] and after careful consideration, this trip was cancelled.

The Superintendent does have the ultimate authority to approve or disapprove any trip.

The grievance is denied"

The authority for an inmate to be taken to a funeral of a family member (or when such a relative is so ill that "death [is] imminent") is found in § 113 of the Correction Law, which provides that the exercise of such power "shall be 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." See also 7 NYCRR 1900, entitled "Temporary Release Program Rules and Regulations" and, specifically, § 1900.3 (a).

This Court has found no precedent to sustain a suit in the Court of Claims for denying an inmate's request to attend the funeral of a family member (see, for example, Rivera v State of New York, 169 AD2d 885 [3d Dept 1991], lv denied 77 NY2d 807 [1991]; Torres v State of New York, UID No. 2009-044-563 [Ct Cl, Schaewe, J., Nov. 18, 2009]; Hughes v State of New York, UID No. 2012-049-053 [Ct Cl, Weinstein, J., Oct. 12, 2012]; Williams v State of New York, UID No. 2013-010-022 [Ct Cl, Ruderman, J., May 23, 2013]; and Holmes v State of New York, UID No. 2011-015-528 [Ct Cl, Collins, J., June 8, 2011]).

In Rivera v State of New York, the Third Department stated that an inmate leave of absence for a funeral or deathbed visit is a "privilege and not a right" (169 AD2d at 886). In any event, as was developed at Mr. Saldaña's trial, an inmate should, as a general proposition, be informed of the reason when it is denied. By letter dated March 7, 2014, subsequent to trial, counsel for the State of New York wrote to claimant and the Court, stating that Mr. Saldaña's request was "Denied due to security concerns after consultation with CIU [Crisis Intervention Unit]."

Moreover, given that the superintendent's determination is a discretionary act (albeit within a statutory and regulatory framework), such is insulated by qualified immunity (Arteaga v State of New York, 72 NY2d 212 [1988]; Torres, supra; and Goodale v State of New York, UID No. 2006-028-532 [Ct Cl, Sise, P.J., March 21, 2006]).

In view of the foregoing, claim no. 121387 is dismissed. LET JUDGMENT BE ENTERED ACCORDINGLY.[*3]New York, New YorkALAN C. MARIN