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
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]), 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.