New York State Court of Claims

New York State Court of Claims

DENIS v. THE STATE OF NEW YORK, #2003-009-23, Claim No. 107337, Motion No. M-66590


Synopsis


Defendant's motion to dismiss this claim, based upon allegations of damages caused by second-hand smoke, was granted for failure to state a cause of action.

Case Information

UID:
2003-009-23
Claimant(s):
JEAN DENIS
Claimant short name:
DENIS
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
107337
Motion number(s):
M-66590
Cross-motion number(s):

Judge:
NICHOLAS V. MIDEY JR.
Claimant's attorney:
JEAN DENIS, Pro Se
Defendant's attorney:
HON. ELIOT SPITZER
Attorney General
BY: G. Lawrence Dillon, Esq.,
Assistant Attorney GeneralOf Counsel.
Third-party defendant's attorney:

Signature date:
June 19, 2003
City:
Syracuse
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)


Decision

Defendant, by this pre-answer motion, seeks an order pursuant to CPLR 3211 dismissing the claim.

The following papers were considered by the Court in connection with this motion:
Pre-Answer Motion To Dismiss Claim, Affirmation, with Exhibits 1,2


"Reply and Amendment To Defendant's Motion To Dismiss" 3

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 NY2d 172).

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. 2000-005-523]).[1]

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.


June 19, 2003
Syracuse, New York

HON. NICHOLAS V. MIDEY JR.
Judge of the Court of Claims




[1] Unpublished decisions and selected orders of the Court of Claims are available via the Internet at http://.