The State of New York (hereinafter "State") moves for dismissal of this claim
pursuant to CPLR 3211 (2) and (7). The court has not received any papers by or
on behalf of claimant in opposition to this motion.
Claimant is an inmate at Southport Correctional Facility (hereinafter
"Southport"). This claim contains one stated cause of action which includes a
recitation of various actions allegedly taken by correction officer Vanness
against claimant at Southport in June 2003. Claimant lists various theories of
liability in connection with said officer's alleged behavior including negligent
supervision, harassment, and violations of the New York State Constitution.
Additionally, the claim includes the statement that "[t]he guards actions is
considered as strictly retaliation for prior lawsuits." (Claim, ¶ 2).
The State moves for dismissal alleging this claim fails to state a cause of
action and this court lacks subject matter jurisdiction.
All of claimant's allegations relate to the so-called retaliatory conduct by
correction officer Vanness. The proper venue for so-called retaliation claims
are inmate grievance procedures and then Article 78 proceedings, not the Court
of Claims. (Zulu v State of New York,
Ct Cl, May 21, 2001, Patti, J.,
Claim Nos. 96973 & 96974, Motion Nos. M-63183 & M-63184 [UID No.
To the extent that this claim relies upon alleged violations of the State
Constitution, the court finds that it fails to state a cause of action on this
basis as well. Although the Court of Appeals has recognized a cause of action
for constitutional torts (Brown v State of New York, 89 NY2d 172), it is
well-settled that a constitutional tort remedy will not be implied when adequate
alternative remedies exist. (Augat v State of New York, 244 AD2d 835,
837, lv denied 91 NY2d 814; Remley v State of New York, 174 Misc
2d 523). Here, as noted above, claimant could have pursued inmate grievances
and if dissatisfied with the results of the grievance process, then he could
have commenced an Article 78 proceeding. (Matter of Hakeem v Wong, 223
AD2d 765, lv denied 88 NY2d 802; 7 NYCRR 701.1 et seq.; see
also, Moates v State of New York, Ct Cl, September 25, 2000,
Fitzpatrick, J. Claim No. 99875, Motion Nos. M-61714 & M-61565 [UID No.
2000-018-044]). In sum, there is no need to imply a cause of action for a
constitutional tort in this case.
Finally, to the extent that claimant couches some of his allegations in terms
of negligence, in light of the allegations that the State's acts were
intentionally done in retaliation for claimant's lawsuits, the court finds these
allegations sound in the nature of a claim for intentional infliction of
emotional distress. However, it is well settled that "[p]ublic policy prohibits
the maintenance of a suit against the State for intentional infliction of
emotional distress [citations omitted]." (Brown v State of New York, 125
AD2d 750, 752, appeal dismissed 70 NY2d 747). Consequently, claimant has
failed to state any viable negligence claim or one for intentional infliction of
In view of the foregoing, it is ORDERED, that the State's motion for dismissal,
Motion No. M-67821, is GRANTED and Claim No. 107926 is DISMISSED.