BLAKE v. STATE (2018)

MEMORANDUM AND ORDER

Appeal from an order of the Court of Claims (McCarthy, J.), entered October 18, 2016, which granted defendant's motion to dismiss the claim.

Claimant, an inmate in the custody of the Department of Corrections and Community Supervision (hereinafter DOCCS), filed a pro se claim seeking damages for violations of Public Health Law article 13–E, DOCCS's smoke-free policy and the N.Y. Constitution, after he was allegedly exposed to a correction officer using an electronic cigarette on two occasions and correction officers telling inmates that they could smoke in the facility's bathroom on other occasions.  Defendant moved to dismiss the claim for failing to state a cause of action.  The Court of Claims granted the motion, prompting claimant's appeal.

We affirm.  Claimant argues that defendant violated Public Health Law article 13–E by permitting indoor smoking in public areas.  Noncompliance with that article triggers civil penalties (see Public Health Law § 1399–v), but a statute explicitly provides that noncompliance does not give rise to any other legal liability or a private cause of action (see Public Health Law § 1399–w;  Matter of Alamin v. New York State Dept. of Correctional Servs., 241 A.D.2d 586, 587, 660 N.Y.S.2d 746 [1997] ).  Similarly, an agency's failure to follow its own internal policy, such as DOCCS's smoke-free policy, does not give rise to a private cause of action (see Torres v. State of New York, 13 Misc.3d 574, 575–576, 820 N.Y.S.2d 874 [Ct. Claims 2006] ).  Thus, the portions of the claim based on these grounds were properly dismissed.

Finally, although claimant generally asserted that defendant violated his constitutional rights, the claim failed to specify any particular provision of the N.Y. Constitution that was allegedly violated (see CPLR 3013).  In any event, a constitutional tort claim will be available only in narrow circumstances, and “no such claim will lie where the claimant has an adequate remedy in an alternate forum” (Shelton v. New York State Liq. Auth., 61 A.D.3d 1145, 1150, 878 N.Y.S.2d 212 [2009];  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, 763 N.Y.S.2d 371 [2003] ).  Here, claimant could have pursued an administrative grievance (see 7 NYCRR part 701) or a federal action pursuant to 42 USC § 1983.  As no constitutional tort was permissible in these circumstances, the Court of Claims properly dismissed the claim in its entirety.

ORDERED that the order is affirmed, without costs.

McCarthy, J.P.

Lynch, Devine, Mulvey and Aarons, JJ., concur.