HICKS v. GIBSON (2003)

Supreme Court, Appellate Division, Fourth Department, New York.

Rogers HICKS and Jerry Moore, Plaintiffs-Appellants, v. H. Mc Carthy GIBSON, Superintendent, Erie County Holding Center, Defendant-Respondent.

Decided: March 21, 2003

Present: HURLBUTT, J.P., KEHOE, GORSKI, LAWTON, and HAYES, JJ.

Eric P. Doherty, Lake View, for Plaintiffs-Appellants. Frederick A. Wolf, County Attorney, Buffalo (Frederick G. Attea of Counsel), for Defendant-Respondent.

Supreme Court properly granted defendant's motion to dismiss the complaint. We agree with defendant that the complaint fails to state a cause of action (see CPLR 3211[7] ). Contrary to plaintiffs' contention, the Erie County Holding Center (ECHC) has no duty to file its policies with the Department of State. Article IV(§ 8) of the N.Y. Constitution provides that “[n]o rule or regulation made by any state department, board, bureau, officer, authority or commission * * * shall be effective until it is filed in the office of the Department of State.” That section applies to state agencies or departments and thus does not apply to ECHC (see Matter of Long Is. Jewish-Hillside Med. Ctr. v. McBarnette, 216 A.D.2d 731, 732, 628 N.Y.S.2d 418). We reject plaintiffs' further contention that 9 NYCRR 7031.1(a) grants them a right to visit prisoners. Section 7031.1(a) provides that “[e]ach prisoner confined in a local correctional facility is entitled to legal services.” The right afforded by that section is that of prisoners, not of providers of legal services.

It is hereby ORDERED that the order so appealed from be and the same hereby is unanimously affirmed without costs.

MEMORANDUM:

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