New York State Court of Claims

New York State Court of Claims
THURBER v. THE STATE OF NEW YORK, # 2018-032-19, Claim No. 126126, Motion No. M-90176

Synopsis

Defendant's motion to dismiss the claim is granted insofar as the causes of action for intentional infliction of emotional distress; prima facie tort; and res ipsa loquitur are dismissed for failure to state a cause of action under CPLR 3211 (a) (7). Defendant's motion is denied insofar as it seeks dismissal of the causes of action sounding in assault, battery and negligent hiring and/or supervision for failure to state a cause of action under CPLR 3211 (a) (7) and Court of Claims Act 11 (b).

Case information

UID: 2018-032-19
Claimant(s): CHRISTINE THURBER
Claimant short name: THURBER
Footnote (claimant name) :
Defendant(s): THE STATE OF NEW YORK
Footnote (defendant name) :
Third-party claimant(s):
Third-party defendant(s):
Claim number(s): 126126
Motion number(s): M-90176
Cross-motion number(s):
Judge: JUDITH A. HARD
Claimant's attorney: Law Offices of Elmer Robert Keach, III, Esq.
By: Elmer Robert Keach, III, Esq.
Defendant's attorney: Hon. Eric T. Schneiderman, NYS Attorney General
By: Christina Calabrese, Assistant Attorney General,
Of Counsel
Third-party defendant's attorney:
Signature date: March 14, 2018
City: Albany
Comments:
Official citation:
Appellate results:
See also (multicaptioned case)

Decision

Claimant filed the instant claim on May 11, 2015, asserting causes of action for assault, battery, intentional infliction of emotional distress, negligent infliction of emotional distress, negligence, negligent supervision and/or retention of employees, res ipsa loquitor, prima facie tort, and violations under Federal civil rights statutes and the United States Constitution stemming from an allegedly improper search of claimant's person conducted by a New York State Police investigator. Defendant now seeks to dismiss the claim pursuant to CPLR 3211 (a) (7) and Court of Claims Act 11 (b). Claimant opposes the motion.

FACTS

On April 15, 2015, claimant was with her friend, Sarah Miller, in Miller's car. Miller suspected that claimant had stolen pills from her son's prescription bottle in the car after noticing that some pills were missing from the bottle. Thereafter, Miller drove herself and claimant to the New York State Troopers' barracks located in Keeseville, New York where her acquaintance, New York State Police Investigator Daniel Lahue worked. Miller and Lahue had a relationship that predated the search of claimant on April 15, 2015.

Upon arriving at the barracks, Lahue commenced a search of claimant's property and person. First, Lahue searched claimant's purse. After the search of the purse did not reveal the missing pills, Lahue demanded that claimant consent to a search of her person. At this point, claimant pulled out the front pockets of her pants, which only revealed lip gloss. Lahue then placed his hands in the back pockets of claimant's pants. Next, Lahue pulled down the waistband of claimant's pants, partially revealing her buttocks. He then pulled her pants and underwear away from the front of her body and looked down the front of her, swiping his hands across her pubic area and across her buttocks and hips underneath her underwear. Next, he swiped his hand underneath her breasts, and placed two fingers inside her shirt, between her breasts. Lastly, he patted claimant's breasts on top of her clothing.

After the search of claimant's person and property did not reveal the missing pills, Lahue relayed this information to Miller, who decided not to pursue charges against claimant. Claimant, thereafter, commenced this action.

LAW AND ANALYSIS

"In determining a motion to dismiss, the Court of Claims must afford a liberal construction to the claimant's pleadings, accept the allegations as true, and accord the benefit of every possible favorable inference to the claimant" (Garofolo v State of New York, 80 AD3d 858, 860 [3d Dept. 2011]; see Leon v Martinez, 84 NY2d 83, 87-88 [1994]). Defendant moves to dismiss the causes of action for intentional infliction of emotional distress, prima facie tort, res ipsa loquitur, assault, battery, and negligent hiring and/or supervision. Initially, the Court notes that claimant has voluntarily discontinued the causes of action for intentional infliction of emotional distress and prime facie tort (Affirmation in Opposition to Motion to Dismiss, p. 2). Thus, the Court dismisses these causes of action. The remaining causes of action for assault, battery, negligent hiring and/or supervision, res ipsa loquitur are addressed below.

Court of Claims Act 11

Initially, defendant argues that the claim should be dismissed for its failure to comply with Court of Claims Act 11. "Court of Claims Act 11 (b) 'places five specific substantive conditions upon [defendant's] waiver of sovereign immunity by requiring the claim to specify (1) the nature of the claim; (2) the time when it arose; (3) the place where it arose; (4) the items of damage or injuries claimed to have been sustained; and (5) the total sum claimed'" (Davila v State of New York, 140 AD3d 1415, 1416 [3d Dept. 2016], quoting Lepkowski v State of New York, 1 NY3d 201, 206 [2003] [internal quotation marks omitted]). "Absolute exactness is not required, but the claim must enable prompt investigation and be sufficiently specific to enable [a] defendant to reasonably infer the basis for its alleged liability" (Davila v State of New York, 140 AD3d at 1416 [internal quotation marks and citations omitted]; see Morra v State of New York, 107 AD3d 1115, 1115 [3d Dept. 2013]; Deep v State of New York, 56 AD3d 1260, 1261 [4th Dept. 2008]). It is well settled that "[t]he State's waiver of immunity from suits for money damages is not absolute, but rather is contingent upon a claimant's compliance with specific conditions placed on the waiver by the Legislature" (Lepkowski v State of New York, 1 NY3d at 206; see Court of Claims Act 8; Alston v State of New York, 97 NY2d 159, 163 [2001]). Accordingly, "[f]ailure to strictly comply with these substantive pleading requirements is a jurisdictional defect warranting dismissal for lack of subject matter jurisdiction" (Signature Health Ctr., LLC v State of New York, 42 AD3d 678, 679 [3d Dept. 2007]; see Kolnacki v State of New York, 8 NY3d 277, 280 [2007]; Lepkowski v State of New York, 1 NY3d at 207-208; Alston v State of New York, 97 NY2d at 164).

Defendant argues that the claim fails to state the legal basis for the causes of actions set forth in the claim. The Court disagrees. The claim sets forth in detail the events that took place before Lahue searched claimant on April 15, 2015, as well as the nature and extent of the search that Lahue conducted (Verified Claim 4). The Court finds that the claim adequately allows defendant to investigate the allegations of the claim, as well as infer a basis for its liability. Accordingly, the Court finds that the claim complies with Court of Claims Act 11.

Assault and Battery

Defendant argues that it is not liable for a sexual assault or a sexually-motivated strip search committed by one if its employees because such acts are outside the scope of employment.

Intentional torts, like assault and battery, are not covered by governmental immunity, which only applies to torts arising from the negligent performance of a governmental function (Greaves v State of New York, 35 Misc 3d 290, 294 [Ct Cl 2011]). The State may be liable for an assault and battery committed by an employee in carrying out their duties under the theory of respondeat superior (Jones v State of New York, 33 NY2d 275, 280 [1973]). It is normally required that the act complained of be in furtherance of the employer's business and within the scope of employment (id.). Intentional torts can fall within the scope of employment (Riviello v Waldron, 47 NY2d 297, 304 [1979]), but if an employee "departs from the line of his duty so that for the time being his acts constitute an abandonment of his service, the master is not liable" (Judith M. v Sisters of Charity Hosp., 93 NY2d 932 [1999], citing Jones v Weigand, 134 AD 644, 645 [1909]). In determining whether an act is within the scope of employment, one factor to be weighed is the extent of departure from normal methods of performance.

The cases cited in support of defendant's argument are clearly distinguishable from the claim here because they exhibit intentional torts committed with wholly personal motives. For example, in J.A.B. v State of New York, UID No. 2016-015-135 [Ct Cl, Collins, J., May 17, 2016], a correction officer sexually assaulted an inmate in the utility closet of the correctional facility's infirmary. In N.X. v Cabrini Med. Ctr., 97 NY2d 247, 251 [2002], a resident physician committed a sexual assault on a patient who was recovering from surgery. Here, it cannot be said yet that Lahue committed an inappropriate search of claimant for wholly personal motives. The claim alleges that claimant was searched for prescription pills after her friend informed Lahue that she suspected that claimant stole the pills (Verified Claim 4). Further, defendant's affidavit states that Lahue "conducted a consent search of claimant's property and her person with regard to the larceny complaint made my [sic] Miller" (Affidavit in Support of Motion to Dismiss 5). A claim for assault or battery based on an unlawful search may lie where the search of claimant's person is unreasonable in scope and manner (Baez v City of Amsterdam, 245 AD2d 705, 707 [3d Dept. 1997]; Russell v State of New York, UID No. 2017-041-201 [Ct Cl, Milano, J., Mar. 2, 2017], citing People v Hall, 10 NY3d 303, 312 [2008]). Some allegations in the claim infer that the search was unreasonable in scope. The claim alleges that Lahue's search of claimant was "humiliating and unnecessary"; that claimant was taken to a "faculty room" in the barracks that did not have cameras; and that Lahue placed his hands on claimant's breasts, pubic area and buttocks (Verified Claim 4). Accordingly, defendant's motion to dismiss the causes of action for assault and battery is denied.

Negligent Hiring and/or Supervision

Defendant argues that the cause of action alleging negligent hiring and/or supervision must be dismissed because: (1) the claim fails to allege that defendant knew or should have known of Lahue's propensity to engage in the conduct that caused claimant's injuries; and (2) the claim fails to allege that Lahue was acting outside the scope of his employment. Defendant maintains that the claim alleges that Lahue was performing his duties during his interactions with claimant. Although claimant admits that "[o]bviously, Lahue was acting within the scope of his duties" (Affirmation in Opposition to Motion to Dismiss, p. 7), she urges the Court to find that the negligent hiring/supervision cause of action is sufficiently pled because "upon information and belief, Lahue has been subject to prior complaints of sexual misconduct" (Verified Claim 4).

Under a theory of negligent hiring and/or supervision, a claimant must establish that the employer knew or should have known of the employee's propensity for the type of conduct which injured the claimant (Johnson v State of New York, UID No. 2008-030-025 [Ct Cl, Scuccimarra, J., Nov. 25, 2008], citing Prentice v State of New York, UID No. 2004-009-01 [Ct Cl, Midey, J., Mar. 30, 2004]; Jablonski v State of New York, UID No. 2001-028-0010 [Ct Cl, Sise J., Apr. 10, 2001]). In order to prevail on a claim of negligent hiring and/or supervision, a claimant must also show that the employee acted outside their scope of employment (Johnson v State of New York, UID No. 2016-038-117 [Ct Cl, DeBow, J., Dec. 22, 2016], citing Passucci v Home Depot, Inc., 67 AD3d 1470, 1472 [4th Dept. 2009], lv denied 72 AD3d 1658 [2010] [additional citation omitted]). A cause of action for negligent hiring and/or supervision cannot lie where "the employee is acting within the scope of his or her employment, thereby rendering the employer liable for damages caused by the employee's negligence under the [alternative] theory of respondeat superior" (Passucci v Home Depot, Inc., 67 AD3d at 1472, quoting Drisdom v Niagara Falls Mem. Med. Ctr., 53 AD3d 1142, 1143 [4th Dept. 2008] [internal quotation marks omitted]). Here, claimant has adequately pled a cause of action for respondeat superior, as explained supra. Ultimately, claimant will not be able to prevail on both the causes of action for respondeat superior and the cause of action for negligent hiring and/or supervision, as recovery under either theory precludes recovery under the other (see Passucci v Home Depot, Inc., 67 AD3d at 1472).

To determine whether the proponent of a pleading has a cause of action, "[g]enerally, such a determination can be made from the factual allegations in the four corners of the [claim]" (Kenneth R. v Roman Catholic Diocese of Brooklyn, 229 AD2d 159, 161 [2d Dept. 1997], lv dismissed 91 NY2d 848 [1997], cert denied 522 US 697 [1997]). The claim states that Lahue has been the subject of prior accusations of sexual misconduct and that claimant's injuries were caused by defendant's negligence (Verified Claim 4). Thus, accepting the facts in the claim as true, and according claimant "the benefit of every possible favorable inference[,]" the Court finds that claimant's allegations supporting her cause of action for negligent hiring and/or supervision are sufficient to withstand defendant's motion for dismissal (Leon v Martinez, 84 NY2d at 87; see also Guggenheimer v Ginzburg, 43 NY2d at 275 [finding that when a court decides a motion to dismiss under CPLR 3211 (a) (7), "the criterion is whether the proponent of the pleading has a cause of action, not whether he has stated one"]).(1) Accordingly, the Court denies defendant's motion to dismiss the negligent hiring and/or supervision cause of action at this juncture, as defendant has failed to show that no significant dispute exists regarding it.

Res ipsa Loquitur

Defendant argues that the cause of action for res ipsa loquitur should be dismissed because defendant acted with the consent of the claimant, and because Lahue's actions were intentional. Res ipsa loquitur is characterized as "a brand of circumstantial evidence" (Morejon v Rais Constr. Co., 7 NY3d 203, 211 [2006]). To establish a claim of res ipsa loquitur, claimant must prove that: (1) the event must be of a kind which ordinarily does not occur in the absence of someone's negligence; (2) it must be caused by an agency or instrumentality within the exclusive control of the defendant; and (3) it must not have been due to any voluntary action or contribution on the part of the claimant (Dermatossian v New York City Tr. Auth., 67 NY2d 219 [1986]).

Here, it is undisputed that Lahue conducted a search of claimant. The doctrine of res ipsa loquitur is invoked only in situations "[w]here the actual or specific cause of an accident is unknown" (Kambat v St. Francis Hosp., 89 NY2d 489, 494 [1997]). The specific cause of claimant's injuries is the search conducted by Lahue. Defendant does not dispute that the search occurred--rather, defendant argues that the search was reasonable under the circumstances. Accordingly, because the parties do not dispute the cause of claimant's alleged injuries, application of the doctrine of res ipsa loquitur is unnecessary (see Brumberg v Cipriani USA, Inc., 110 AD3d 1198, 1200 [3d Dept. 2013]).CONCLUSION

Based upon the foregoing, it is hereby ordered that defendant's motion (M-90176) is granted in part, insofar as the causes of action for intentional infliction of emotional distress; prima facie tort; and res ipsa loquitur are dismissed. The motion is denied as to the remaining causes of action.

March 14, 2018

Albany, New York

JUDITH A. HARD

Judge of the Court of Claims

Papers Considered:

1. Notice of Motion, dated April 3, 2017; and Affirmation in Support of Motion, sworn to by Christina Calabrese, AAG on April 3, 2017, with Exhibits A through C annexed thereto.

2. Affirmation in Opposition to Defendant's Motion to Dismiss, sworn to by Elmer Robert Keach, III, Esq. on May 12, 2017, with Exhibits A through D annexed thereto; Memorandum of Law in Opposition to Defendant's Motion to Dismiss, dated May 12, 2017.


1. Defendant attached claimant's medical records to its motion to dismiss, but failed to show the relevancy of these records to establish entitlement to dismissal of the claim.