New York State Court of Claims

New York State Court of Claims

GILL v. THE STATE OF NEW YORK, #2000-005-573, Claim No. 101108, Motion No. M-60868


Defendant's motion for dismissal of claim regarding no-smoking policy 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:
Anthony G. GillPro Se
Defendant's attorney:
Eliot Spitzer, Attorney GeneralBy: Timothy P. Mulvey, Assistant Attorney General
Third-party defendant's attorney:

Signature date:
November 6, 2000

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers, numbered 1 to 6, were read on motion by Defendant for dismissal of the claim:

1, 2 Notice of Motion, Affirmation and Exhibits Annexed

3, 4 Claimant's reply and proposed supplemental cause of action

5, 6 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 failing to enforce a no-smoking policy at the Mental Health Unit at Auburn Correctional Facility.

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 seated in the waiting area at the Mental Health Unit (MHU) between November 1998 and at least August 25, 1999.

Interestingly, Claimant filed an earlier claim for exposure to second-hand smoke while he was incarcerated at the Otisville Correctional Facility, from October 1995 to April 1996 (Claim No. 93402). In a decision filed on December 22, 1999, the Hon. Alan C. Marin dismissed the claim which alleged such exposure while Claimant was adjacent to a station for correction officers. Judge Marin ruled, and Defendant reiterates here, that smoking in a restricted area can be challenged in a proceeding under CPLR article 78, referencing Matter of Alamin v New York State Dept. Of Correctional Servs., 241 AD2d 586.

Claimant, albeit without a notice of motion, seeks to add a Supplemental Cause of Action alleging a violation of Claimant's State Constitutional Rights prohibiting cruel and unusual punishment (Article I, Section 5). This argument was visited by Judge Marin in the earlier claim by Claimant and rejected, as the facts in Claim No. 93402, and the facts herein, even assuming the applicability of Brown v State of New York, 89 NY2d 172, do not satisfy the standards articulated in Helling v McKinney, 509 US 25, 113 S Ct 2475.

Moreover, it has been held that there is no general duty for the State of New York to provide inmates of a correctional facility with a smoke-free environment (see, Rawling v State of New York, April 26, 1999, Claim No. 96967, McNamara, J., and Gerard v State of New York, March 17, 2000, Claim No.100949, Midey, J.). Claimant has offered no arguments to the contrary.

The Defendant's motion seeking dismissal of the claim for the failure to state a cause of action (CPLR 3211 [a][7]), preserved in the answer as an affirmative defense, arguing that there is no recognized cause of action sounding in negligence based upon the Defendant's alleged failure to provide a smoke-free living environment, must be granted.

Accordingly, upon review of the claim, and after considering the 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.

November 6, 2000
Rochester, New York

Judge of the Court of Claims