| Deleon v State of New York |
| 2009 NY Slip Op 05664 [64 AD3d 840] |
| July 2, 2009 |
| Appellate Division, Third Department |
| Isidoro Deleon, Appellant, v State of New York,Respondent. |
—[*1] Andrew M. Cuomo, Attorney General, Albany (Robert M. Goldfarb of counsel), forrespondent.
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) forpermission 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 intentionalacts, his placement by correction officers in a double-bunk cell from February 6, 2007 to May15, 2007 violated his constitutional rights. Claimant did not take any further action on this matteruntil June 2008, when he filed a motion for permission to file a late claim pursuant to Court ofClaims Act § 10 (6), asserting, for the first time, that his placement in the double-bunk cellcomprised a constitutional tort. The Court of Claims denied the motion because, among otherthings, claimant had an alternative legal remedy, and claimant now appeals.
We affirm. A constitutional tort claim is barred when a claimant has an alternative legalremedy to protect his or her constitutional rights (see Martinez v City of Schenectady, 97NY2d 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 constitutionalrights by being placed in the double-bunk cells. Here, claimant had an alternative legal remedyin the form of a CPLR article 78 proceeding challenging the administrative denial of hisgrievance (see Watson v [*2]State of New York, 35 AD3d 985, 986 [2006], lvdenied 8 NY3d 816 [2007]). Therefore, we conclude that claimant's constitutional tort claimis barred.
Spain, J.P., Malone Jr., Kavanagh and McCarthy, JJ., concur. Ordered that the order isaffirmed, without costs.