Opinion
# 2015-032-006 Claim No. 121830
12-07-2015
DAVID ZAIRE v. THE STATE OF NEW YORK
David Zaire, Pro Se Hon. Eric T. Schneiderman, NYS Attorney General By: Douglas R. Kemp, Assistant Attorney General, Of Counsel
Synopsis
Case information
| UID: | 2015-032-006 |
| Claimant(s): | DAVID ZAIRE |
| Claimant short name: | ZAIRE |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 121830 |
| Motion number(s): | |
| Cross-motion number(s): | |
| Judge: | JUDITH A. HARD |
| Claimant's attorney: | David Zaire, Pro Se |
| Defendant's attorney: | Hon. Eric T. Schneiderman, NYS Attorney General By: Douglas R. Kemp, Assistant Attorney General, Of Counsel |
| Third-party defendant's attorney: | |
| Signature date: | December 7, 2015 |
| City: | Albany |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
FACTS
Claimant filed this claim alleging that defendant was negligent in failing to protect claimant from exposure to tobacco smoke for at least the last eighteen years prior to filing his claim (Claim, ¶ 2). Claimant avers that the exposure to tobacco smoke was a deliberate indifference on behalf of the prison officials and therefore, in violation of the Eighth Amendment to the United States Constitution (Claim, ¶ 40). Claimant further alleges in the "wherefore" paragraph of his claim that his claim is also premised upon New York Constitution Article 1, §§ 5, 9, but without any explanation.
Although the claim only states the "Eighth Amendment", the Court presumes this is in reference to the Eighth Amendment to the United States Constitution.
It is indeterminable how New York Constitution Article I, § 9 is relevant to this action.
Claimant served thirty years in prison during which he filed numerous grievances against various prison facilities for violations of New York Public Health Law, Article 13-E, the Clean Indoor Air Act, which regulates smoking in certain places (see Exhibit 1). It appears that he was asked to come forward with names of violators in some of those grievances but he never wanted to be tagged as the whistle-blower or a snitch. At trial, he produced exhibits that indicate that the Clinton County Health Department visited Clinton Correctional Facility in May 2008 and found substantial violations of the no smoking policy there (see Exhibits 3 and 4). Clinton Correctional Facility Superintendent Dale Artus advised staff to issue misbehavior reports to inmates who violate such policy. At trial, he claimed that he brought the instant action in this Court for monetary damages, although he testified that he survived his imprisonment relatively "unscathed" by the alleged impure air.
Defendant offered the testimony of Captain Craig Goodman, an employee of DOCCS, who testified that prior to 2001, smoking was allowed in DOCCS' facilities subject to limitation by each Superintendent. In 2001, DOCCS prohibited smoking by inmates or staff inside all buildings. Defendant produced at trial a copy of defendant's Smoke-Free Policy (Exhibit A); a copy of the Standards of Inmate Behavior which includes a provision that allows smoking outside in designated areas (Exhibit B); and various departmental responses to claimant's grievances during his years of imprisonment (Exhibits C-G).
LAW AND DISCUSSION
"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." (Grayson v State of New York, UID No. 2008-016-022 [Ct Cl, Marin, J., May 12, 2008, citing Matter of Alamin v New York State Dept. of Correctional Servs., 241 AD2d 586 [3d Dept 1997]; Zulu v State of New York, 2001 WL 880833 [Ct Cl May 21, 2001]; Gill v State of New York, UID No. 2007-034-539 [Ct Cl, Hudson, J., Oct. 1, 2007]). Hence, claimant's cause of action for negligence must be, and hereby is, dismissed. However, even if there was a viable negligence cause of action, the Court concludes that claimant failed to prove a breach of duty by defendant and further failed to prove any physical damage from the alleged impure air.
To the extent claimant alleges that defendant violated his federal constitutional rights, the Court notes that it lacks subject matter jurisdiction to hear the same. A claim premised upon a violation of claimant's rights under the Federal Constitution may not be brought against the State in the Court of Claims (see Shelton v New York State Liq. Auth., 61 AD3d 1145 [3d Dept 2009]; Lyles v State of New York, 2 AD3d 694 [2003], affd 3 NY3d 396 [2004]). Therefore, the cause of action for cruel and unusual punishment alleged pursuant to the Eighth Amendment to the United States Constitution is hereby dismissed.
As for the alleged state constitutional tort sounding in cruel and unusual punishment (NY Const art I, § 5), "no appellate authority [has recognized] a constitutional tort sounding in cruel and unusual punishment (compare Brown v State of New York, 89 NY2d 172 [1996] [constitutional tort may be stated under state constitutional search and seizure provision]). Several decisions of the Court of Claims have discussed the potential viability of such a cause of action, although none has expressly concluded that it is maintainable (see e.g. Zulu v State of New York, 2001 WL 880833 [Ct Cl 2001]; Ramos v State of New York, UID No. 2000-016-106 [Ct Cl, Marin, J., Dec. 18, 2000]; De La Rosa v State of New York, 173 Misc 2d 1007 [Ct Cl 1997])" (Brown v State of New York, UID No. 2013-038-108 [Ct Cl, DeBow, J., Sept. 27, 2013]). Accordingly, to the extent claimant has alleged a state constitutional tort sounding in cruel and unusual punishment, his claim is without merit and must be dismissed.
In sum, upon review of the testimony and exhibits, and assessing the demeanor of the witnesses, the Court finds that claimant has failed to prove his claim by a preponderance of the credible evidence. Therefore, the claim is dismissed in its entirety.
All objections or motions not heretofore ruled upon are denied.
The Court admits Exhibit 6 to the extent it does not contain hearsay within.
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Let judgment be entered accordingly.
December 7, 2015
Albany, New York
JUDITH A. HARD
Judge of the Court of Claims