New York State Court of Claims

New York State Court of Claims

GILL v. THE STATE OF NEW YORK, #2007-034-539, Claim No. 111561, Motion No. M-73805


A potential cause of action exists for exposure to second-hand smoke in the prison setting. Title II of the Americans with Disabilities Act (ADA) authorizes suit by private citizens for money damages against states.

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:
New York State Attorney General
BY: THOMAS G. RAMSAY, ESQ.Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
October 1, 2007

Official citation:

Appellate results:

See also (multicaptioned case)


Defendant has moved to dismiss the claim for failure to state a cause of action. The Court will grant the motion, in part.

The Court has reviewed the following documents:

1. “Verified Claim for Negligence,” verified October 12, 2005, filed October 28, 2005;

2. Verified Answer, verified December 7, 2005, filed November 30, 2005, received December 8, 2005;[1]

3. Notice of Motion, dated August 1, 2007, filed August 2, 2007;

4 Affirmation of Thomas G. Ramsay, dated August 1, 2007, with attached exhibits;

5. “Notice of Motion in Opposition to Defendant’s Motion to Dismiss” of Anthony G. Gill, sworn to August 8, 2007, unfiled, with attachments;

6. Responding Affirmation of Thomas G. Ramsay, dated August 14, 2007, filed August 14, 2007.

Claimant, an inmate, has sought to recover damages for exposure to second-hand smoke in the course of three double-bunk assignments at Attica Correctional Facility between July 8 and 11, 2005, and July 29 and August 2, 2005. Defendant now moves to dismiss under CPLR 3211 (a) (2), (5) and (7), together with Court of Claims Act § 10 (3), urging that the claim fails to state a cause of action. On review the Court will now grant Defendant’s motion, in part.

Claimant has alleged that he suffers from several chronic medical conditions, including asthma and hypertension, and that exposure to second-hand cigarette smoke within the prison environment causes an aggravation of his breathing problems and other symptoms. He notes that an entry within his prison health record dated March 31, 2005, made specific reference to his asthma, and recommended that he not be housed with another inmate who smokes. According to Claimant, notwithstanding that recommendation by the medical staff, on three occasions during July and August of 2005 he was double-bunked in cells in Attica with inmates who smoked in his presence, thereby aggravating his condition. Mr. Gill contends that the State was negligent in housing him with inmates who smoked notwithstanding his known asthmatic condition, and in failing to enforce its prohibitions against indoor smoking. He also urges that his manner of confinement over those periods, amounting to some nine days in total, violated the Americans with Disabilities Act (“ADA”) (42 USC § 12101 et seq.), as well as New York Constitution article 1, §§ 5 and 11.

In seeking dismissal Defendant has cited a number of decisions that have rejected efforts at recovery by inmates exposed to second-hand smoke within prison facilities, based upon various theories of action. In that regard the Court agrees that any noncompliance by the prison facility with the prohibitions against smoking set forth within Public Health Law article 13-E, which regulates smoking in public areas, cannot support a private right of action for damages under that statute (see Public Health Law § 1399-w; Matter of Alamin v New York State Dept. of Correctional Servs., 241 AD2d 586, 587 [1997]). Nor does a common law duty exist to protect an inmate from second-hand smoke (see Denis v State of New York, Ct Cl, June 19, 2003, Midey, J., Claim No. 107337, Motion No. M-66590 [UID No. 2003-009-23][2]; Rawlings v State of New York, Ct Cl, April 26, 1999 [Claim No. 96967, McNamara, J.]).

With respect to the claimed violation of Claimant’s State constitutional rights, this case does not fit into the “narrow remedy” envisioned by the Court of Appeals in Brown v State of New York, 89 NY2d 172, 192 (1996). A tort claim will only be recognized where it is necessary to effectuate the purpose of the underlying State constitutional protection that the claimant invokes, and there is no other remedy available (Martinez v City of Schenectady, 97 NY2d 78 [2001]). The Court notes that Claimant may well be able to pursue administrative remedies under Public Health Law article 13-E (see Alamin, 241 AD2d 586), and would have grievance procedures available under 7 NYCRR Part 701. In limited circumstances he might also seek damages for Federal civil rights violations against prison officials (see Helling v McKinney, 509 US 25 [1993]), as well as for violations of the ADA, to be discussed below. For those reasons it is not necessary to recognize a State constitutional remedy addressed to environmental tobacco smoke.

Subject to further motion the Court will deny dismissal to the extent recovery is premised upon an alleged violation of Title II of the Americans with Disabilities Act (42 USC § 12131 et seq.). In urging dismissal of Claimant’s requests for relief under the ADA Defendant has advanced the limited argument that the statute does not afford a private right of action for money damages. However, in the context of a Title II claim, the Court disagrees. Title II of the ADA authorizes suits by private citizens for money damages against states and other defined public entities for violations of the disability-related discrimination provisions of 42 USC § 12132 (see 42 USC § 12133, and by express reference 29 USC § 794a; United States v Georgia, 546 US 151, 154 [2006]). Title II’s abrogation of state sovereign immunity under the Eleventh Amendment to the Constitution of the United States has been recognized as valid, at least to the extent that the alleged violation of the ADA would independently violate the Fourteenth Amendment to United States Constitution (United States v Georgia, 546 US at 157-159). Accepting that there is no constitutional right to be free from environmental tobacco smoke, there are circumstances where the disregard of an inmate’s exposure to unreasonably high levels of second-hand smoke in a state prison can support a cause of action for a violation of the Eighth Amendment to the United States Constitution’s guarantee against cruel and unusual punishment (see Helling v McKinney, 509 US 25 [state prison inmate housed with another inmate who smoked five packs of cigarettes per day could assert cause of action under Eighth Amendment where deliberate indifference and unreasonable risk of serious future health problems alleged]). Such conduct could similarly support a violation of the Fourteenth Amendment (see United States v Georgia, 546 US at 157-158).

In view of the limited basis upon which Defendant has sought dismissal the Court will refrain at present from any sua sponte assessment of the merits of the Title II cause of action.

Based upon the above it is hereby

ORDERED, that Defendant’s motion to dismiss the claim is hereby granted in part, and the claim is dismissed, except to the extent that a cause of action under Title II of the ADA has been alleged, and to that extent the motion to dismiss is denied, without prejudice.

October 1, 2007
Buffalo, New York

Judge of the Court of Claims

[1]. As in original.

[2]. Unpublished decision and orders are available on the Court of Claims web site at