State of New York
Supreme Court, Appellate Division
Third Judicial Department
Decided and Entered: December 22, 2016 522566
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ARTHUR BLAKE,
Appellant,
v MEMORANDUM AND ORDER
STATE OF NEW YORK,
Respondent.
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Calendar Date: November 15, 2016
Before: Garry, J.P., Egan Jr., Clark and Mulvey, JJ.
__________
Arthur Blake, Coxsackie, appellant pro se.
Eric T. Schneiderman, Attorney General, Albany (Martin A.
Hotvet of counsel), for respondent.
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Egan Jr., J.
Appeal from an order of the Court of Claims (Collins, J.),
entered November 13, 2015, which granted defendant's motion to
dismiss the claim.
Claimant, a prison inmate, commenced this action alleging
that prison staff prohibited the availability of legal material
that impeded his access to the courts, denied him due process in
challenging his improper removal from his program assignment,
threatened him for filing grievances and retaliated against him
by compromising his ability to file grievances through the
facility mail system. Defendant answered and then moved to
dismiss the claim for lack of jurisdiction and failure to state a
cause of action. The Court of Claims granted defendant's motion,
and this appeal ensued.
-2- 522566
We affirm. Although the claim was characterized as one for
money damages, a review of the claim discloses that claimant was
essentially seeking judicial review of actions by prison
officials regarding the conditions of his confinement, including
the denial of access to legal material, the breach of
confidentiality rules regarding grievance matters and
interference with the filing of grievances. As alternative
remedies are available to address these issues – including the
grievance process, a CPLR article 78 proceeding or an action in
the nature of mandamus – such claims were properly dismissed (see
Flemming v State of New York, 120 AD3d 848, 849 [2014]; Deleon v
State of New York, 64 AD3d 840, 840-841 [2009], lv denied 13 NY3d
712 [2009]; Matter of Salahuddin v Connell, 53 AD3d 898, 900
[2008]). Furthermore, recognition of the state constitutional
tort claims are unnecessary given the additional avenues of
redress that are available (see Martinez v City of Schenectady,
97 NY2d 78, 83 [2001]; Shelton v New York State Liq. Auth., 61
AD3d 1145, 1150-1151 [2009]). To the extent that claimant
asserts claims pursuant to 42 USC § 1983, the state is not a
"person" in that regard and the Court of Claims lacks
jurisdiction over such claims (see Brown v State of New York, 89
NY2d 172, 184-185 [1996]; Flemming v State of New York, 120 AD3d
at 849).
We also find no error in the Court of Claims' dismissal for
failure to state a cause of action of the claims alleging
improper removal of claimant from his prison job and assault. An
inmate has "no statutory or constitutional right to a prison job"
(Evans v State of New York, 57 AD3d 1123, 1123-1124 [2008]
[internal quotation marks and citation omitted], lv denied 12
NY3d 704 [2009]), and "[w]hether [claimant] ultimately will be
entitled to the incidental monetary relief he seeks cannot be
ascertained without reviewing the underlying administrative
determination, which is a quintessential example of a dispute
governed under CPLR article 78" (Matter of Salahuddin v Connell,
53 AD3d at 900 [internal quotation marks and citations omitted]).
Lastly, with regard to the claim of assault, claimant's
allegations did not sufficiently set forth "physical conduct
placing [him] in imminent apprehension of harmful contact" (Gould
v Rempel, 99 AD3d 759, 760 [2012] [internal quotation marks and
citation omitted]; see generally Guntlow v Barbera, 76 AD3d 760,
-3- 522566
766 [2010], appeal dismissed 15 NY3d 906 [2010]).
Garry, J.P., Clark and Mulvey, JJ., concur.
ORDERED that the order is affirmed, without costs.
ENTER:
Robert D. Mayberger
Clerk of the Court