New York State Court of Claims

New York State Court of Claims

PRYCE v. THE STATE OF NEW YORK, #2001-005-519, Claim No. 103350, Motion No. M-62853


Defendant's motion for dismissal of the claim pursuant to CPLR 3211 is granted and the claim is denied.

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):

Claimant's attorney:
Rudolph Pryce,Pro Se
Defendant's attorney:
Eliot Spitzer, Attorney GeneralBy: Carla T. Rutigliano, Assistant Attorney General
Third-party defendant's attorney:

Signature date:
July 9, 2001

Official citation:

Appellate results:

See also (multicaptioned case)


On January 24, 2001, the following papers, numbered 1 to 4, were read on motion by the Defendant for an order pursuant to CPLR 3211 granting dismissal of the claim:

1, 2 Motion to Dimiss Claim, Affirmation in Support and Exhibit Annexed
  1. Reply Affidavit in Opposition
  2. Filed Paper: Claim
Upon the foregoing papers, this motion is granted and the claim is dismissed.

Defendant, in lieu of an answer, moves for dismissal on the ground that Claimant asserts no cause of action for which relief may be granted. On or about September 14, 2000, Claimant, a self-reported nonsmoker, was incarcerated in a double-bunk cell with a smoking inmate at Auburn Correctional Facility. Claimant asserts that the State is liable for abridging its duty to conduct a physical assessment of Claimant before or within 48 hours of assigning him to that cell and that incarceration in that cell constituted a cruel and unusual punishment, putatively violating New York State Constitution article I, §5. Consequently, Claimant alleges that he sustained pain, suffering, and mental distress. Claimant's allegations, however, are insufficient to create a cause of action for compensatory damages and must be dismissed.

Claimant fails to state a cause of action for which relief may be granted under CPLR 3211. The State of New York does not have a duty to provide inmates of a correctional facility with a smoke-free environment (see Rawlings v State of New York, McNamara, J., April 13, 1999, Claim No. 96967). As an inmate, Claimant's rights with respect to restrictions on smoking in prisons are limited under article 13-E of the Public Health Law ("The Indoor Clean Air Act"). In addition, in Shepherd v State of New York (July 19, 2000, Claim No. 97504, Motion No. M-60869), I held that Defendant's alleged failure to properly screen non-smoking inmates, pursuant to double-cell housing regulations, did not necessarily create a cause of action sounding in negligence. 7 NYCRR § 1701, et seq., sets forth protocols for the management of double-cell housing. Indeed, §1701.5(c)(6)(ii) recites that:

[E]ither prior to or within 48 hours after an inmate's placement in a double-cell, a physical assessment will be conducted. If facility health staff determine that a change in the inmate's current housing is required, that information shall be conveyed to the deputy superintendent of security or designee and the appropriate change in housing shall be made.

In addition, § 1701.5(d)(10) provides, in part, that:

[A] nonsmoking inmate that facility health staff determines should only be housed in a cell with a nonsmoker in accordance with paragraph (c)(6) of this section shall not be housed in a cell with a smoker...Upon assignment of a nonsmoker to a double-cell with a smoker or upon the reverse scenario, the nonsmoker may submit a written request to the deputy superintendent of security to be housed in a cell with another nonsmoker. Upon receipt of such request, the deputy superintendent of security will cause the move of either the smoking inmate or the nonsmoking inmate to an alternative double-cell within seven days.

These, however, are strictly regulations that have not been codified as law. That is to say that regulations may serve as guideposts for establishing a standard of care and "violation of the standard may lead to liability [only] if a common law or statutory duty is breached" (Richardson v State of New York, McNamara, J., March 31, 1999, Claim No.96567). Hence, even with proof that Defendant may have disregarded the regulations provided by 7 NYCRR § 1701 et seq., a corresponding cause of action for compensatory damages is not implied. Moreover, Public Health Law §1399-w limits liability and causes of action for noncompliance with a smoking ban.

Also, Claimant does not allege a medical condition that would preclude him from double-bunking or any physical harm that resulted from the unspecified period of time he spent with the smoking cell-mate. Nor does Claimant allege that he requested either a medical exam or a transfer to a cell with a nonsmoking inmate. Such sparse and insubstantial pleadings coupled only with allegations of insignificant regulatory violations (as opposed to violations of statute or common law) are insufficient to create a cause of action upon which compensatory relief may be granted.

Likewise, Claimant's allegation of a cruel and unusual punishment under New York State Constitution article I, § 5, is inadequate. Again, violation of "regulations, unlike statutes, cannot impliedly create a cause of action" (Rawlings, supra, at 2). Claimant's cause of action sounding in cruel and usual punishment further fails, as it is distinguishable from De La Rosa v State of New York (173 Misc 2d 1007). De La Rosa applies the benchmarks established by Brown v State of New York (89 NY2d 172) and postulates that a person could bring a constitutional tort cause of action in the Court of Claims if Claimant's allegations assert a violation of article I, § 5 of the New York State Constitution so long as, among other factors:

...a money damage remedy . . . further[s] the purpose of the underlying constitutional provision and [is] necessary to assure its effectiveness; the provision [is] such as to impose a clearly defined duty on State officers and employees [, and] declaratory and injunctive relief [is] inadequate and money damages necessary to deter governmental misconduct and to make the claimant whole (De La Rosa, supra, at 1009).

There is no established statutory or common law duty upon which Claimant may rely, and his allegations, accordingly, fail to state a valid cause of action for compensatory damages.

Thus, absent a statutory or common law duty to provide inmates with a smoke-free environment, Defendant's motion is granted, and the claim is dismissed.

July 9, 2001
Rochester, New York

Judge of the Court of Claims