New York State Court of Claims

New York State Court of Claims

SHEPHERD v. THE STATE OF NEW YORK, #2000-005-523, Claim No. 97504, Motion No. M-60869


Defendant's motion to dismiss claim for failure to state a cause of action is granted.

Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
Cross-motion number(s):

Donald J. Corbett, Jr.
Claimant's attorney:
Eon Shepherd, Pro Se
Defendant's attorney:
Eliot Spitzer, Attorney GeneralBy: Timothy P. Mulvey, Assistant Attorney General
Third-party defendant's attorney:

Signature date:
July 19, 2000

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers, numbered 1 to 5, were read on motion by Defendant for dismissal of the claim:

1, 2 Notice of Motion, Affirmation and Exhibits Annexed

3 Claimant's letter of December 12, 1999

4, 5 Filed Papers: Claim, Answer

Upon the foregoing papers, this motion is granted.

Defendant moves to dismiss the instant claim for the failure to state a cause of action, to wit, the alleged negligence of the State for placing Claimant inside a double-bunk cell with a cigarette smoker.

The Defendant alleges, without dispute, that under the Public Health Law §1399-w, the only recourse an inmate has to challenge smoking policy enforcement in prisons is administrative, unless an injury is alleged. Here Claimant alleges an injury while housed in a double-cell with another inmate who smoked at Auburn Correctional Facility.

Claimant does allege in his claim, at paragraph 2, that this ... "claim is for negligence of the State for placing Claimant inside a double-bunk cell with a cigarette smoker for a period exceeding (25) twenty-five days." As argued by the Defendant, relying upon Alamin v New York State Dept. Of Correctional Servs., 241 AD2d 586," ... In any event, respondents' noncompliance with the smoking ban does not subject them to legal proceedings or liability (see, Public Health Law §1399-w). Additionally, to the extent permissible, petitioner's causes of action based on tort and contract theories could be pursued only in the Court of Claims."

The Claimant, despite having sought an extension of time, after many months, has not opposed the relief sought, nor distinguished the decisions cited by Defendant in its Memorandum of Law or more particularly, the decision of the Hon. Thomas J. McNamara in Richardson v State of New York, Claim No. 96567, in a decision dated March 31, 1999, appended as Exhibit C to the moving papers. The claimant there alleged that he was an asthmatic and could not tolerate cigarette smoke, yet remained double-bunked with a smoker more than seven days after he had sought a move pursuant to 7 NYCRR 1701.5(d)(10). The court found that while "regulations ... may establish a standard of care and violation of the standard may lead to liability if a common law or statutory duty is breached (citations omitted), regulations, unlike statutes, cannot impliedly create a cause of action (see, Matter of Saladino v Perales, 172 AD2d 841; cf. Ruotolo v State of New York, 141 Misc 2d 111, affd 157 AD2d 452)," and concluded that no liability may be imposed even for a clear violation of the regulation. And, as similarly concluded in Rawlings v State of New York, Claim No. 96967, "[I]nasmuch as there is no duty to provide inmates with smoke free living environment, the claim must be dismissed."

The Defendant's motion seeking dismissal for the failure to state a cause of action (CPLR 3211 [a][7]), preserved in the answer as an affirmative defense, argues that there is no recognized cause of action sounding in negligence based upon the Defendant's alleged failure to properly screen non-smoking inmates, pursuant to double-cell housing regulations. Defendant argues persuasively, and of course without dispute, that the Claimant's rights regarding limitations on smoking in prisons are limited under Article 13-E of the Public Health Law ("The Indoor Clean Air Act"), and that his rights regarding housing are governed by regulation (7 NYCRR § 1701.1, et seq). The Defendant observes that, while not available in this court (Brown v State of New York, 89 NY2d 172), an aggrieved prisoner may bring an action in federal court alleging cruel and unusual punishment from exposure to second-hand smoke, noting that the decisions there rely upon findings of deliberate indifference to serious medical conditions, obvious in contrast to the mere negligence cited here.

Thus, upon review of the claim, and after considering the Defendant's unopposed arguments made before me, I find that the claim fails to state a cause of action. Accordingly, the motion is granted and the claim is dismissed.

July 19, 2000
Rochester, New York

Judge of the Court of Claims