Alamin v. New York State Department of Correctional Services , 660 N.Y.S.2d 746 ( 1997 )

Appeal from a judgment of the Supreme Court (Hughes, J.), entered April 1, 1996 in Albany County, which, in a proceeding pursuant to CPLR article 78, dismissed the petition, inter alia, for failure to exhaust administrative remedies.

Petitioner commenced this CPLR article 78 proceeding seeking, inter alia, an order compelling respondents to comply with the smoking ban guidelines at Green Haven Correctional Facility in Dutchess County. Inasmuch as petitioner failed to avail himself of the procedures set forth in Public Health Law article 13-E before commencing this proceeding, thereby failing to exhaust his administrative remedies, we find that Supreme Court properly dismissed the petition. In any event, respondents’ noncompliance with the smoking ban does not subject them to legal proceedings or liability (see, Public Health Law § 1399-w). Additionally, to the extent permissible, petitioner’s causes of action based on tort and contract theories could be pursued only in the Court of Claims (see, Correction Law § 24).

Cardona, P. J., Mikoll, Crew III, Casey and Yesawich Jr., JJ., concur. Ordered that the judgment is affirmed, without costs.