New York State Court of Claims

New York State Court of Claims

JOHNSON v. THE STATE OF NEW YORK, #2004-019-509, Claim No. 107926, Motion No. M-67821


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 GENERALBY: Joseph F. Romani, Assistant Attorney General, of counsel
Third-party defendant's attorney:

Signature date:
January 28, 2004

Official citation:

Appellate results:

See also (multicaptioned case)


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. 2001-013-006]).[1]

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 emotional distress.

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.

January 28, 2004
Binghamton, New York

Judge of the Court of Claims

The Court has considered the following papers in connection with this motion:

  1. Claim, filed June 25, 2003.
  2. Notice of Motion No. M-67821, dated December 22, 2003, and filed December 24, 2003.
  3. Affirmation of Joseph F. Romani, AAG, in support of motion, dated December 22, 2003, with attached exhibits.

[1]Unreported decisions from the Court of Claims are available via the Internet at