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Hicks v. Gibson

303 A.D.2d 1021 Court N.Y. App. Div. Decision date 2003-03-21 English

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p. 1021
Rogers Hicks et al., Appellants, v H. McCarthy Gibson, as Superintendent of Erie County Holding Center, Respondent.
[758 NYS2d 441]

—Appeal from an order of Supreme Court, Erie County (Whelan, J.), entered September 21, 2001, which granted defendant’s motion to dismiss the complaint.

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

Memorandum: 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 NY Constitution provides that “[n]o rule or regulation made by any state department, board, bureau, officer, authority or commission * * * shall be

p. 1022
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 ECHO (see Matter of Long Is. Jewish-Hillside Med. Ctr. v McBarnette, 216 AD2d 731 , 732 [1995]). 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. Present— Hurlbutt, J.P., Kehoe, Gorski, Lawton and Hayes, JJ.

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