New York State Court of Claims

New York State Court of Claims

GRAYSON v. THE STATE OF NEW YORK, #2008-016-022, Claim No. 114611, Motion No. M-74418


Synopsis


Claim by inmate alleging exposure to second hand smoke was dismissed.

Case Information

UID:
2008-016-022
Claimant(s):
ANTHONY GRAYSON
Claimant short name:
GRAYSON
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
114611
Motion number(s):
M-74418
Cross-motion number(s):

Judge:
Alan C. Marin
Claimant’s attorney:
Anthony Grayson, Pro SeNo Appearance
Defendant’s attorney:
Andrew M. Cuomo, Attorney GeneralBy: James E. Shoemaker, Esq., AAG
Third-party defendant’s attorney:

Signature date:
May 12, 2008
City:
New York
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Defendant moves pursuant to CPLR 3211 to dismiss the claim of Anthony Grayson, in which it is alleged that Mr. Grayson “is required to [breathe] second-hand tobacco smoke from other inmate prisoners as well as staff . . . at Sullivan [Correctional Facility] . . . in direct violation of New York state law and statute. DOCS Departmental Directives and Local Sullivan Policy & Procedure state that it is willful violation of NYS law to smoke cigarettes or cigars inside of the prison complex.” Claim, ¶3.

The failure to comply with the New York State Clean Indoor Air Act (Public Health Law, Article 13-E), or the smoking regulations of correctional facilities, does not give rise to a cause of action in tort. See, e.g., Matter of Alamin v New York State Dept. of Correctional Servs., 241 AD2d 586, 660 NYS2d 746 (3d Dept 1997); Zulu v State of New York, 2001 WL 880833 (Ct Cl May 21, 2001); Gill v State of New York, Ct Cl October 1, 2007 (unreported, claim no. 111561, motion no. M-73805, Hudson, J.).[1]

In view of the foregoing, having reviewed the submissions[2], IT IS ORDERED that motion no. M-74418 be granted and claim no. 114611 be dismissed.



May 12, 2008
New York, New York

HON. ALAN C. MARIN
Judge of the Court of Claims




  1. [1]Citing Alamin, Judge Hudson stated that noncompliance with Public Health Law, Article 13-E “cannot support a private right of action for damages . . . Nor does a common law duty exist to protect an inmate from second-hand smoke . . .” However, he refused to dismiss the inmate’s second-hand smoke claim to the extent it alleged violations of the Americans with Disabilities Act. Such is not at issue in the instant case.
  2. [2]The court reviewed defendant’s notice of motion with affirmation in support. Claimant did not oppose this motion.