New York State Court of Claims

New York State Court of Claims
CROSS v. STATE OF NEW YORK, # 2018-018-978, Claim No. 125484


The State cannot be held liable for correction officer's intentional, unprovoked assault which was outside the scope of his employment duties. Claim is dismissed.

Case information

UID: 2018-018-978
Claimant(s): RYAN M. CROSS
Claimant short name: CROSS
Footnote (claimant name) :
Defendant(s): STATE OF NEW YORK
Footnote (defendant name) :
Third-party claimant(s):
Third-party defendant(s):
Claim number(s): 125484
Motion number(s):
Cross-motion number(s):
Claimant's attorney: RYAN M. CROSS
Pro Se
Defendant's attorney: BARBARA D. UNDERWOOD
Attorney General of the State of New York
By: Ray A. Kyles, Esquire
Assistant Attorney General
Third-party defendant's attorney:
Signature date: November 7, 2018
City: Syracuse
Official citation:
Appellate results:
See also (multicaptioned case)


Claimant brought this claim seeking damages for an assault he alleges was committed by Correction Officer (CO) Payton at the Willard Drug Treatment Campus (Willard) on November 12, 2014. A trial on the matter was held in the Syracuse District on October 10, 2018. Claimant proceeded pro se.

Claimant was the sole witness during the trial and testified that after a parole violation he was sent to Willard in October 2014. He had been there previously from late 2013 into the spring of 2014, and had successfully completed the program. During the first stay, Claimant had no trouble with any of the correction officers, had no misbehavior issues, and worked in the draft area. On Tuesdays and Thursdays new inmates would arrive, and his job was to unload their belongings, supply them with toiletries, offer haircuts, etc. Claimant testified it was the best job for an inmate at Willard and, upon his return, he was again assigned to the draft position.

Shortly after his arrival, some correction officers saw a photograph of him with his African-American girlfriend and some of them began to harass him, calling him such things as a "N - lover." Claimant complained to higher ranking officers about the harassment. At one point, a sergeant took him into an office and asked what was going on. Claimant told him about the harassment and Claimant was told to put his hands on the wall. The sergeant said he could accuse Claimant of hitting him and Claimant asked him not to do so. He had seen other inmates accused of hitting a correction officer taken to the Special Housing Unit (SHU) and their time with Department of Corrections and Community Supervision (DOCCS) extended. All Claimant wanted to do was finish his time at Willard and go home to his family by Christmas. The sergeant agreed not to accuse him provided he stop complaining about harassment. He was told to carry all of his belongings around campus for days as a learning experience. The harassment continued.

On November 7, 2014, Claimant recalled CO Payton punched him in the stomach and he was denied medical treatment. On November 9, 2014, Claimant heard CO Payton indicate he would take care of things himself and not let the appropriate department reassign Claimant. Claimant spoke to a counselor about his concerns and the effect of the harassment on November 12, 2014, and she talked to the Department Superintendent. Sergeant Cole was also looking into the problem. That same day Claimant was near the draft building, and his drill instructor came out and told him to report inside. The only person there was CO Payton who asked if Claimant was going to continue to snitch on him. CO Payton then punched Claimant in the jaw, slammed his head against the wall repeatedly and threw him to the ground. Claimant ran out of the building. He told his drill instructor what happened, and his drill instructor said he could not believe CO Payton could do that, but his drill instructor made some telephone calls. Sergeant Cole was notified. Claimant was so upset he threatened suicide so he was sent to the infirmary on a 24-hour watch. He later chose to leave the program at Willard and was sent to Five Points Correctional Facility where he filed grievances and made complaints about his treatment.

After he was released, he checked with DOCCS about the investigation of the incident and was told it was unfounded.

On cross-examination, Claimant admitted to his extensive legal trouble from his teen years. He has not had any further legal involvement since his release.

As a result of the assault, Claimant has a fear of authority figures, has nightmares, and is continuing with regular counseling services. He has no permanent physical injuries.

At the end of the trial, Defendant moved to dismiss the claim for failure to establish a prima facie case. Claimant opposed the motion, and the Court reserved on the motion. At this time, the motion is GRANTED.

To establish a cause of action for assault, it is Claimant's burden to establish that Defendant engaged in physical conduct which placed Claimant in " 'imminent apprehension of harmful contact.' " (Gould v Rempel, 99 AD3d 759, 760 [2d Dept 2012]; Blake v State of New York, 145 AD3d 1336 [3d Dept 2016]). With proof of offensive bodily contact without consent, a battery is established (Robert M.D. v Sterling, 129 AD3d 1489 [4th Dept 2015]; Goff v Clarke, 302 AD2d 725 [3d Dept 2003]). The State can be found liable for the intentional torts of its employees under a theory of respondeat superior (Jones v State of New York, 33 NY2d 275 [1973]). The State as the employer can be found liable if the tortious employee was acting within the scope of his employment or in advance of his employer's interest (Riviello v Waldron, 47 NY2d 297 [1979]; Smith v Limited, 237 AD2d 345 [2d Dept 1997] [assault of customer by security guard, found to be acting to advance employer's interest]; Santamarina v Citrynell, 203 AD2d 57 [1st Dept 1994] [assault by hospital security guard not outside scope of employment as a matter of law]). If, however, the correction officer committed an unprovoked assault and battery upon Claimant, the officer then deviated from his employment duties (see Matter of Sharrow v State of New York, 216 AD2d 844, 846 [3d Dept 1995]; Valentin v State of New York, UID No. 2018-038-108 [Ct Cl, DeBow, J., June 13, 2018] [claim dismissed, unprovoked battery by correction officer, no facts supported finding claimant's behavior led to authorized use of force]; Rivera v State of New York, UID No. 2017-032-046 [Ct Cl, Hard, J., Sept. 12, 2017] [correction officer assault outside of scope of employment, defendant's summary judgment motion granted]; compare Cepeda v Coughlin, 128 AD2d 995 [3d Dept 1987] [inmates initiated disturbance during transfer to outdoor area officers assault occurred within performance of duties]).

Here, Defendant did not dispute Claimant's testimony that he was assaulted by CO Payton on November 7, 2014 and again on November 12, 2014. Claimant, in his claim, alleges and his testimony supports that CO Payton punched Claimant in the stomach without provocation on November 7, 2014, and then waited for Claimant to come into the draft building on November 12, 2014, and again committed an unprovoked assault and battery upon the Claimant. Since there are no facts to support a finding that CO Payton's actions were in any way part of his duties to maintain order in the prison but, rather, in retaliation for Claimant's complaints against him, the Court is, unfortunately, forced to deny Claimant's claim. Despite Claimant's credible - and, in fact, undisputed - testimony, the State cannot be held liable for CO Payton's intentional, unprovoked, assault, which was outside the scope of his employment duties.

Accordingly, the claim is DISMISSED.


November 7, 2018

Syracuse, New York


Judge of the Court of Claims