Claimant, an inmate in a State correctional facility who professes to be a "catholic traditionalist" and allergic to fish, claims that defendant's correctional facilities failed to provide claimant with non-meat, non-fish meals on five of the seven Fridays during the Lenten season in 2006. The claim alleges that the State failed to provide him with adequate food to meet his dietary and religious needs, and contends that defendant's actions violated his Federal and State constitutional rights (see US Const First Amend; NY Const, art I, § 11 ^[FN1]), Correction Law § 610, and Department of Correctional Services Directive No.4202. Claimant moves for summary judgment. Defendant cross-moves for summary judgment dismissing the claim. Defendant argues that the Court lacks subject matter jurisdiction over the constitutional and statutory claims, and that the claim fails to state a cause of action upon which relief may be granted. Claimant opposes the cross motion.

As a preliminary matter, each party asserts that the other party's submission on the motions suffer from procedural and/or substantive flaws which should result in the rejection of the submissions. Specifically, defendant contends that claimant's failure to support his motion [*2]with a copy of the pleading is a fatal flaw (see Deer Park Assoc. v Robbins Store, 243 AD2d 443 [2d Dept 1997]), an argument that is not compelling where, as here, copies of the pleadings are both filed with the Clerk of the Court of Claims and submitted in support of defendant's cross motion, and are therefore available for the Court's consideration. Defendant's contention that claimant's self-serving affidavit is insufficient to support to his motion for summary judgment (see Denkensohn v Davenport, 130 AD2d 860 [3d Dept 1987]) is also unpersuasive inasmuch as defendant concedes the absence of material issues of fact for the purposes of the cross motion. Moreover, claimant has submitted an affidavit in which he asserts that defendant failed to provide him with meals that complied with his religious and dietary needs, and the affidavits submitted in support of defendant's cross-motion do not dispute those material facts (see Sun Yau Ko v Lincoln Sav. Bank, 99 AD2d 943, 943-944 [1st Dept 1984], affd 62 NY2d 938 [1984]). Claimant's contention that the affirmation of the Assistant Attorney General should be rejected because it contains false statements is without merit because the comment of which claimant complains is nothing more than the Assistant Attorney General's reflection of the substance of a documentary exhibit. Further, claimant's contention that defendant's cross motion should be rejected because service of the cross motion upon claimant was allegedly untimely is unavailing in light of the fact that this Court has fully accepted the reply filed by claimant after the return date of the motion and thus, claimant has suffered no prejudice due to the allegedly untimely service.

Turning to the merits of the motions, there appears to be no genuine dispute that claimant was not served with meals that satisfied his dietary and religious needs on the days in question. Nevertheless, the claim cannot succeed because it is permeated with fatal subject matter jurisdiction flaws. Foremost among them is that the only remedies sought by claimant fall outside the power of this Court. Claimant seeks injunctive relief directing defendant to refrain from similar omissions in the future. Further, claimant makes plain that the $50,000 recited in the claim's ad damnum clause is sought as punitive damages intended to motivate defendant to comply with any injunctive relief that may be granted. Claimant does not demand compensatory damages for physical or emotional personal injury flowing from defendant's alleged omissions (see Court of Claims Act § 9 [2]).

This Court lacks jurisdiction to grant strictly equitable relief (see Madura v State of New York, 12 AD3d 759, 760 [3d Dept 2004], lv denied 4 NY3d 704 [2005]; Johnson v State of New York, UID # 2005-019-510, Claim Nos. 109372, 109864, 110055, Motion # M-69522, Lebous, J., Feb. 8, 2005). Given claimant's clear statement that the monetary relief sought is intended only to enforce defendant's compliance with the requested injunctive relief, the Court is compelled to conclude that money damages sought in his claim are merely incidental to claimant's primary claim for injunctive relief, which is available by way of a proceeding pursuant to Article 78 of the CPLR (see CPLR 7803; 7806). Accordingly, this Court lacks subject matter jurisdiction over the claim (see Guy v State of New York, 18 AD3d 936, 937 [3d Dept 2005]; Frasier v State of New York, 11 Misc 3d 497, 501-502 [Ct Cl 2005]). Moreover, punitive damages are not assessable against the State in the Court of Claims (see Sharapata v Town of Islip, 56 NY2d 332 [1982]; Harvey v State of New York, 281 AD2d 846, 849 [3d Dept 2001]; Firth v State of New York, 184 Misc 2d 105, 108 [Ct Cl 2000, affd 287 AD2d 771 [3d Dept 2001], affd 98 NY2d 365 [2002]). Thus, even if claimant were to prevail on the issue of liability [*3]under any of the theories he asserts, this Court is without power to grant the relief he seeks and accordingly, the claim must be dismissed.

Even if claimant were seeking a monetary remedy that is available in the Court of Claims, none of the legal theories advanced to support the claim can withstand defendant's cross motion for summary judgment. This Court lacks subject matter jurisdiction over that part of the claim alleging violations of claimant's rights under the United States Constitution, because such a claim must be brought pursuant to 42 USC § 1983 and may not be maintained in the Court of Claims (see Brown v State of New York, 89 NY2d 172, 185 [1996]; Zagarella v State of New York, 149 AD2d 503, 504 [2d Dept 1989]; Ferrari v State of New York, UID #2002-028-011, Claim # 104107, Motion # M-64278, Sise, J., March 1, 2002; Campolito v State of New York, UID # 2000-015-507, Claim # 94670, Collins, J., April 27, 2000). Moreover, the alleged violation of the New York Constitution predicated on the failure to provide meals consistent with claimant's exercise of his religious beliefs does not support an implied constitutional tort. One of the elements of such a tort is that the only remedy available to enforce the claimed constitutional right is monetary damages (see Brown v State of New York, supra at 189, 192; Martinez v City of Schenectady, 97 NY2d 78, 83-84 [2001]; Waxter v State of New York, 33 AD3d 1180 [3d Dept 2006]; Bullard v State of New York, 307 AD2d 676, 678 [3d Dept 2003]). An inmate seeking enforcement of the claimed right to a diet that complies with his or her religious beliefs may pursue remedies in the nature of injunctive relief by way of a CPLR article 78 proceeding (see e.g. Matter of Abdul-Matiyn v New York State Dept. of Correctional Servs., 251 AD2d 769 [3d Dept 1998], appeal dismissed 92 NY2d 1025 [1998]; Matter of Bunny v Coughlin, 187 AD2d 119 [3d Dept 1993], appeal dismissed 82 NY2d 679 [1993]). Therefore, claimant's argument that such relief would be ineffective cannot be credited in light of his failure to pursue such remedies. To the extent that the claim sounds in a violation of Correction Law § 610 (1), this Court lacks subject matter jurisdiction because State Supreme Court is specifically authorized as the venue for proceedings seeking to enforce the statute's provisions (see Correction Law § 610 [3]; Gill v State of New York, 13 Misc 3d 1223(A) [Ct Cl 2006]; Van Duyne v State of New York, UID # 2003-032-518, Claim # 103802, Hard, J., Aug. 4, 2003). Claimant's allegation that defendant violated its own Directive # 4202 does not give rise to an implied cause of action (see Ruotolo v State of New York, 141 Misc 2d 111, 114-115 [Ct Cl 1988], affd 157 AD2d 452 [1990], lv denied 75 NY2d 710 [1990]; Vega v State of New York, UID # 202-011-566, Motion # M-65075, McNamara, J., July 29, 2002). Lastly, since a generous reading of the claim fails to reveal that claimant asserted a cause of action sounding in common-law negligence, it is not necessary for the Court to address defendant's arguments in opposition on that point.

Accordingly, claimant's motion for summary judgment is denied, and defendant's cross motion for summary judgment dismissing the claim is granted.

Papers Considered:

1. Claim, filed May 11, 2006;

2. Notice of Motion for Summary Judgment, dated September 15, 2006;

3. Affidavit of David Ohnmacht, sworn to September 14, 2006, with exhibits;

4. Notice of Cross Motion for Summary Judgment, dated October 24, 2006; [*4]

5. Affirmation of Kathleen M. Arnold, Esq., AAG, dated October 24, 2006, with exhibits A-C;

6. Affidavit of Donald Haug, sworn to October 19, 2006;

7. Affidavit of Angelo DePasquale, sworn to October 20, 2006;

8. Defendant's Memorandum of Law, dated October 24, 2006;

9. Claimant's Reply to Defendant's Opposition and Cross Motion, dated October 31, 2006.