New York State Court of Claims

New York State Court of Claims

KROEMER v. THE STATE OF NEW YORK, #2002-031-034, Claim No. 99532, Motion Nos. M-64825, CM-64992


Claim alleging exposure to second hand smoke fails to set forth a valid cause of action. Defendant's cross-motion for summary judgment is granted. Claimant's motion to compel discovery is denied as moot.

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:
Defendant's attorney:
HON. ELIOT SPITZER, Attorney General of New York
BY: GREGORY P. MILLER, ESQ.Assistant Attorney General
Third-party defendant's attorney:

Signature date:
September 9, 2002

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers, numbered 1 to 6, were read on motion by Claimant for an order compelling production of certain documents and Defendant's cross-motion for summary judgment:
1) Notice of Motion, filed March 8, 2002;
2) Claimant's affidavit, sworn to February 8, 2002, with attached exhibits;
3) Defendant's notice of cross-motion, filed March 25, 2002;

4) Affidavit of Gregory Miller, Esq., sworn to March 22, 2002;
5) Letter from Claimant, dated April 15, 2002;
6) Filed Papers: Claim and Answer Upon the foregoing papers, Defendant's cross-motion for summary judgment is granted and Claimant's motion is denied as moot.

Claimant Kent Kroemer seeks to compel more complete responses to his discovery demands dated April 24, 2001 and June 18, 2001. Defendant seeks summary judgment. Mr. Kroemer, in his underlying claim, asserts that from July of 1989 to the time of filing his claim, while an inmate in the care of the Department of Corrections, he has suffered negative health affects, including damage to his lungs, from being exposed to secondhand smoke. He seeks to recover damages in the amount of $5,000,000.00. The exposures allegedly occurred at both Wende and Groveland Correctional Facilities.

In the course of discovery, Claimant has requested documents relating to, inter alia, "the entire Attorney General's file relating to litigation against tobacco companies." Not surprisingly, Defendant objected to these demands asserting that they requested attorney work product, and that they were overly broad, overly burdensome, and irrelevant. Claimant therefore brings his motion to compel responses to his demands. In response to Claimant's motion, Defendant, in addition to proffering its reasons for refusing Claimant's demands, has moved for summary judgment, asserting that Claimant has failed to set forth a valid cause of action against the State of New York. Claimant opposes Defendant's cross-motion, arguing that summary judgment should not be granted until the parties have had a chance to complete discovery.

Lawsuits relating to exposure to secondhand smoke are not novel. The nature of the prison and correctional system itself, housing hundreds or thousands of adults together in relatively confined spaces, creates a conflict between those that choose to smoke and those that desire a smoke-free environment. However, Courts that have addressed this issue have uniformly determined that there is no private right of action by a prisoner for exposure to second- hand smoke. The State of New York does not have a duty 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.).

Defendant's motion, although denominated as one for summary judgment, actually requests dismissal of the claim for the failure to state a cause of action (CPLR 3211 [a][7]) and will be treated as such. Defendant asserted, as an affirmative defense in its answer, 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. In opposing the Defendant's motion relating to this defense, Claimant has offered no arguments to the contrary. Accordingly, upon review of this matter, I find that the claim fails to state a valid cause of action against the State of New York.

Based upon the foregoing it is hereby:

ORDERED, that Defendant's cross-motion seeking dismissal of the claim is granted. Claimant's motion to compel disclosure is denied as moot. The Chief Clerk is directed to close the file.

September 9, 2002
Rochester, New York

Judge of the Court of Claims