Deleon v State of New York

Deleon v State of New York 2009 NY Slip Op 05664 [64 AD3d 840] July 2, 2009 Appellate Division, Third Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, September 2, 2009

Isidoro Deleon, Appellant, v State of New York, Respondent.

—[*1] Isidoro Deleon, Wallkill, appellant pro se.

Andrew M. Cuomo, Attorney General, Albany (Robert M. Goldfarb of counsel), for respondent.

Kane, J. 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 NY2d 78, 83-84 [2001]; Bullard v State of New York, 307 AD2d 676, 678-679 [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 [*2]State of New York, 35 AD3d 985, 986 [2006], lv denied 8 NY3d 816 [2007]). Therefore, we conclude that claimant's constitutional tort claim is barred.

Spain, J.P., Malone Jr., Kavanagh and McCarthy, JJ., concur. Ordered that the order is affirmed, without costs.