Filed Papers: Claim
In his claim, claimant seeks damages based upon negligence and the
constitutional tort of cruel and unusual punishment, alleging that the State
failed to prevent or minimize his exposure to second-hand smoke, and that such
exposure was the proximate cause of a sinus disease that he contracted.
With regard to his claim of negligence, courts have uniformly held that the
State does not have a duty to provide inmates in a correctional facility with a
smoke-free environment (see, Rawlings v State of New York, Ct Cl, April
26, 1999 [Claim No. 96967], McNamara, J.; Gerard v State of New York
Department of Correctional Services, Ct Cl, March 17, 2000 [Claim
No. 100949, Motion No. M-60867], Midey, J.). As an inmate, a claimant's
rights with respect to restrictions on smoking in correctional facilities are
limited under article 13-E of the Public Health Law ("The Indoor Clean Air
Act"), and noncompliance does not give rise to a cause of action in tort (see,
Public Health Law, § 1399-w; Alamin v New York State Department of
Correctional Services, 241 AD2d 586).
With regard to claimant's constitutional claims, the Court first notes that it
does not have jurisdiction over federal Constitutional tort claims (Zagarella
v State of New York, 149 AD2d 503; Ferrick v State of New York, 198
AD2d 822). Accordingly, any cause of action based upon alleged violations of
the protections against cruel and unusual punishment provided by the 8th
Amendment to the United States Constitution cannot be brought in this Court and
must be dismissed.
Claimant also asserts a constitutional tort claim under Article I, § 5 of
the State Constitution. Constitutional tort claims have been recognized in this
Court under limited circumstances, in situations when the substantive right is
firmly established, the tort remedy is necessary to assure the effectiveness of
the underlying constitutional provision, and the claimant has no common law or
statutory remedy available to him (see, Brown v State of New York, 89
However, since there is no established statutory or common law duty to provide
inmates with a smoke-free environment, claimant has failed to state a valid
cause of action based upon an alleged constitutional violation (see, Zulu v
State of New York
, Ct Cl, May 21, 2001, Patti, J., Claim No. 96973 and Claim
No. 96974, Motion No. M-63183 and Motion No. M-63184 [UID No. 2001-013-006];
Shepherd v State of New York
, Ct Cl, July 19, 2000, Corbett, J., Claim
No. 97504, Motion No. M-60869 [UID No.
Accordingly, after careful review, I must find that this claim fails to state a
valid cause of action against the State of New York.
Therefore, it is
ORDERED, that Motion No. M-66590 is hereby GRANTED; and it is further
ORDERED, that Claim No. 107337 is hereby DISMISSED.