On May 17, 2006, the following papers were read on Defendant’s motion for
summary judgment dismissing the claim.
Notice of Motion and Supporting Affirmation of Paul Volcy, with Exhibits
Opposing Papers: None
Filed Papers: Claim; Answer
The claim in this action alleges that while in the custody of the Department of
Correctional Services (DOCS) and housed at the Wende Correctional Facility,
Claimant Alex Torres learned from his wife, Elizabeth Figueroa, that she was
informed on December 10, 2002, that Claimant was receiving visits from another
woman to whom he was not related. Thereafter, Claimant’s wife received a
copy of her husband’s computer visitation record. The wife identified
DOCS employee Olga Ortiz as the person disseminating such information and
Claimant filed a grievance in this regard. As a result of these disclosures,
Claimant’s wife ceased conjugal and non-conjugal visits and is now seeking
The instant claim alleges that these disclosures of his visitation record
constituted violations of his federal and state constitutional rights,
constituted one or more statutory violations, and were also in violations of
Claimant’s right of privacy. As a result, Claimant is seeking $160,000.00
in damages for the intentional infliction of emotional distress.
Defendant now moves for summary judgment dismissing the claim on the grounds
that (1) the causes of action are not cognizable, and (2) the claim is
The first issue before the Court is whether or not the claims are cognizable.
The Court of Claims is a court of limited jurisdiction. To the extent that the
claim alleges violations of the United States Constitution, it must be
dismissed. The Court of Claims does not have jurisdiction over federal
constitutional tort claims (Will v Michigan Dept, of State Police, 491 US
58; Monell v Department of Social Services of City of New York, 436 US
658). To the extent that Claimant alleges a state constitutional tort, such
only exists where a claimant has no common law or statutory remedy available to
him (Brown v State of New York, 89 NY2d 172; Remley v State of New
York, 174 Misc 2d 523). Since alternative remedies are available here, any
implied state constitutional claims must be dismissed.
The disclosure of visitation records by DOCS employees is subject to the
provisions of 7 NYCRR 51.1. However, a violation of these provisions does not
necessarily provide Claimant with a private right of action. Claimant’s
allegations “do not support an action for breach of privacy under Article
5 of the Civil Rights Law, which provides the exclusive basis for a breach of
privacy action” (Crandall v Personal Mtge. Corp., 210 AD2d 981).
The same holds true for the unauthorized dissemination of computer information.
The conduct of Olga Ortiz did violate a rule and accordingly, disciplinary
action was taken against her. However, not every wrong gives rise to a private
civil remedy. The unauthorized dissemination of computer information in the
instant claim does not give rise to a private cause of action (see
Lawrence v State of New York,180 Misc 2d 337). Therefore, as to these
causes of action, Defendant’s motion is granted.
To the extent that the claim can be read as alleging the intentional infliction
of emotional harm, such cause of action is against public policy (Wheeler v
State of New York, 104 AD2d 496; De Lesline v State of New York, 91
AD2d 785, lv denied 58 NY2d 610). To the extent that the claim can be
read as alleging the negligent infliction of emotional harm, no act of
negligence is alleged. Accordingly, Defendant’s motion as to these causes
of action is also granted.
I have already determined that the Claimant’s causes of action are not
cognizable and should thus be dismissed; it therefore is unnecessary to address
Defendant’s allegations that the claim is untimely.
Claimant has not opposed Defendant’s motion for summary judgment to
dismiss or provided the Court with assertions of the existence of material
issues of fact which require a trial. By defaulting on this motion, Claimant
does not oppose dismissal of his claim.
For the reasons stated above, Defendant’s motion for summary judgment is
granted and the claim is dismissed.