DELEON v. STATE (2009)

Appeal from an order of the Court of Claims (Mignano, J.), entered September 16, 2008, which denied claimant's application pursuant to Court of Claims Act § 10(6) for permission to file a late claim.

In May 2007, claimant, an inmate at Shawangunk Correctional Facility in Ulster County, filed a notice of intention to file a claim alleging that, through both negligent and intentional acts, his placement by correction officers in a double-bunk cell from February 6, 2007 to May 15, 2007 violated his constitutional rights.   Claimant did not take any further action on this matter until June 2008, when he filed a motion for permission to file a late claim pursuant to Court of Claims Act § 10(6), asserting, for the first time, that his placement in the double-bunk cell comprised a constitutional tort.   The Court of Claims denied the motion because, among other things, claimant had an alternative legal remedy, and claimant now appeals.

We affirm.   A constitutional tort claim is barred when a claimant has an alternative legal remedy to protect his or her constitutional rights (see Martinez v. City of Schenectady, 97 N.Y.2d 78, 83-84, 735 N.Y.S.2d 868, 761 N.E.2d 560 [2001];  Bullard v. State of New York, 307 A.D.2d 676, 678-679, 763 N.Y.S.2d 371 [2003] ).   Claimant, in fact, filed an administrative grievance alleging the violation of his constitutional rights by being placed in the double-bunk cells.   Here, claimant had an alternative legal remedy in the form of a CPLR article 78 proceeding challenging the administrative denial of his grievance (see Watson v. State of New York, 35 A.D.3d 985, 986, 827 N.Y.S.2d 305 [2007], lv. denied 8 N.Y.3d 816, 839 N.Y.S.2d 455, 870 N.E.2d 696 [2007] ).   Therefore, we conclude that claimant's constitutional tort claim is barred.

ORDERED that the order is affirmed, without costs.

KANE, J.

SPAIN, J.P., MALONE JR., KAVANAGH and McCARTHY, JJ., concur.