McNulty v. Chinlund

• Decision Date: 18 March 1982
• Citation: 448 N.Y.S.2d 895,87 A.D.2d 707
• Parties: John J. McNULTY, Jr., as Sheriff of Albany County, et al., Appellants, v. Stephen CHINLUND et al., Constituting the New York State Commission of Correction, Respondents.
• Court: New York Supreme Court — Appellate Division

Page 895

448 N.Y.S.2d 895

87 A.D.2d 707

John J. McNULTY, Jr., as Sheriff of Albany County, et al., Appellants, v. Stephen CHINLUND et al., Constituting the New York State Commission of Correction, Respondents.

Supreme Court, Appellate Division Third Department.

March 18, 1982.

Peter R. Kehoe, Troy (Thomas Mitchell, Troy, of counsel), for appellants.

Robert Abrams, Atty. Gen. (Lew A. Millenbach, Albany, of counsel), for respondents.

Monroe County Legal Assistance Corp., amicus curiae, Ian C. DeWaal, Rochester, of counsel.

Before MAHONEY, P. J., and SWEENEY, KANE, CASEY and LEVINE, JJ.

MEMORANDUM DECISION.

Appeal from a judgment of the Supreme Court, 108 Misc.2d 707, 438 N.Y.S.2d 734, at Special Term entered June 2, 1981 in Albany County, which granted defendants' motion for partial summary judgment.

In June, 1976, defendants promulgated, pursuant to subdivision 6 of section 45 of the Correction Law, certain rules and regulations covering six different subject areas concerning county jails, one of which involved contact visitation (9 NYCRR Part 7008). Plaintiffs, 51 county sheriffs in New York State, commenced this action on November 19, 1976 seeking declaratory and injunctive relief with respect to those regulations. A preliminary injunction against the enforcement of the regulations was in effect, having been granted by order of Special Term as to some of the regulations and extended by this court as to the other regulations (McNulty v. Chinlund, 62 A.D.2d 682, 406 N.Y.S.2d 588). After defendants served an answer on April 6, 1979, they made the instant motion for partial summary judgment on the issue of defendants' regulations governing contact visitation for all prisoners in facilities under plaintiffs' jurisdiction.

Special Term granted the motion on the ground that the Court of Appeals decision in Cooper v. Morin, 49 N.Y.2d 69, 424 N.Y.S.2d 168, 399 N.E.2d 1188, cert. den. 446 U.S. 984, 100 S.Ct. 2965, 64 L.Ed.2d 840 resolved any triable issue of fact which may exist. Special Term's judgment also dissolved the preliminary injunction. However, plaintiffs took the instant appeal and obtained an automatic stay (CPLR 5519, subd. par. 1), which this court refused to vacate.

The sole issue upon appeal is whether the decision in Cooper v. Morin (supra ) resolved all issues of fact which this court found to exist in the present case with respect to contact visitation regulations (see McNulty v. Chinlund, supra ). We find, contrary to defendants' position, that Cooper is not controlling. Briefly, in Cooper, female detainees in the Monroe County jail challenged that jail's rule which limited them to noncontact visits. The Court of Appeals rejected this local rule, holding that pretrial detainees are entitled to contact visits of reasonable duration as a matter of State constitutional right. Further, the Court of Appeals dismissed Monroe County's argument that financial considerations justified the rule ( Cooper v. Morin, supra, pp....