Defendant's motion to dismiss the claim granted. Claim failed to comply with the substantive pleading requirements of Court of Claims Act § 11 (b) with respect to the causes of action for denial of medical treatment and unlawful confinement, and it failed to state a cause of action for assault and battery.
|Claimant short name:||N.B.|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||W. BROOKS DeBOW|
|Claimant's attorney:||No Appearance|
|Defendant's attorney:||LETITIA JAMES, Attorney General
of the State of New York
By: Heather R. Rubinstein, Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||December 3, 2020|
|See also (multicaptioned case)|
Claimant, an individual currently incarcerated in a State correctional facility, filed this claim seeking compensation for an alleged assault by correction officers and medical malpractice at Green Haven Correctional Facility (CF) on June 22, 2020. Defendant now moves to dismiss the claim for failure to state a cause of action and lack of jurisdiction. Claimant has not responded to the motion.
The claim alleges that on June 22, 2020, " 'Claimant' was *(Sadistically & Maliciously)* attacked by [four correction officers] for [their] own 'Cruel & Unusual Punishment' " in the "Housing Area 'E-Block' " at Green Haven CF (Claim No. 134996, ¶¶ 2-3). The claim alleges that claimant was sexually assaulted and "Illegally Handcuff[ed]," that the correction officers stepped on his neck and kicked him, and that claimant was then denied medical treatment (id. at ¶ 2). The claim seeks $25 million in damages (see id., Damages Clause).
Defendant moves to dismiss the claim on the ground that the claim fails to comply with the substantive pleading requirements of Court of Claims Act § 11 (b), arguing merely that "[i]n the absence of any detailed allegations that would allow the State to investigate this claim, it must be dismissed for failure to plead the nature of the claim" (Rubinstein Affirmation, ¶ 4). Defendant further argues that "notwithstanding that the claim demands $25 million dollars in damages, the claim fails to include any allegations of the injuries claimant sustained as a result of the" alleged assault and medical malpractice (id. at ¶ 5). Defendant argues that the claim also fails to state a cause of action inasmuch as "[a]n alleged sadistic and malicious attack by an officer, if true, would be wholly attributable to the officers' own personal motives and . . . clearly not an action within the normal and customary duties regularly performed by" correction officers (id. at ¶ 9). Defendant further argues that the Department of Corrections and Community Supervision (DOCCS) "could not reasonably anticipate that employees would act in such a heinous way" and that "[i]f an employee acts for purely personal reasons unrelated to the employer's interests, . . . the acts are considered a substantial departure from the normal methods of performing [the employee's] duties" (id.). As noted above, claimant has not responded to the motion.
Court of Claims Act § 11 (b) requires, among other things, that "[t]he claim shall state the time when and place where such claim arose, the nature of same, the items of damage or injuries claimed to have been sustained and . . . the total sum claimed." The pleading must set forth sufficient facts to satisfy each of the pleading requirements set forth in Court of Claims Act § 11 (b) (see Kolnacki v State of New York, 8 NY3d 277, 280-281 , rearg denied 8 NY3d 994 ), and the failure to do so is a fatal defect in subject matter jurisdiction requiring dismissal of the claim (see Lepkowski v State of New York, 1 NY3d 201, 209 ; see also Kolnacki, 8 NY3d at 281). The purpose of the pleading requirements of Court of Claims Act § 11 (b) is "to enable the State . . . to investigate the claim[s] promptly and to ascertain its liability under the circumstances" (Lepkowski, 1 NY3d at 207 [internal quotation marks omitted]). "Although absolute exactness is not required, the claim must provide a sufficiently detailed description of the particulars of the claim . . . [and] defendant is not required to ferret out or assemble information that section 11 (b) obligates the claimant to allege" (Morra v State of New York, 107 AD3d 1115, 1115-1116 [3d Dept 2013] [internal quotations and citations omitted]).
To be sure, the allegations contained in the claim are unquestionably brief, asserting merely that claimant was physically and sexually assaulted by several correction officers at Green Haven CF on June 22, 2020, and that he thereafter was denied medical treatment (see Claim No. 134996, ¶ 2). The assault allegations, although limited, clearly describe the incident that forms the basis of this claim and identify the correction officers that were allegedly involved and thus, in the Court's view, the claim provides the State with sufficient information to investigate the claim and ascertain its liability, and the claim will not be dismissed for failure to allege the nature of the claim as required by Court of Claims Act § 11 (b). Moreover, the Court disagrees with defendant that the assault allegations in the claim fail to comply with Court of Claims Act § 11 (b) insofar as it does not allege "the items of damage or injuries claimed to have been sustained" (Court of Claims Act § 11 [b]). Notwithstanding that the assault allegations are brief, the claim clearly alleges that claimant was the subject of a sexual assault whereby an object was "forcefully" placed into his rectum, and that claimant was assaulted by correction officers who stepped on claimant's neck and kicked him in his genitals (Claim No. 134996, ¶ 2), and thus the claim patently alleges personal injuries related to the assault. Thus, those assault allegations will not be dismissed for failure to comply with Court of Claims Act § 11 (b). However, defendant is correct that the claim fails to comply with Court of Claims Act § 11 (b) as it pertains to the allegations that claimant was denied medical care, as the claim is bereft of any allegations as to the date or dates, location or locations, and particulars of any such denial(s). Moreover, to the extent that the claim could be construed as alleging a cause of action sounding in unlawful confinement insofar as it alleges that claimant was illegally handcuffed, it contains no factual allegations concerning the period of any unlawful confinement, nor does it allege why the confinement was illegal or unlawful, and thus fails to comply with Court of Claims Act § 11 (b). Accordingly, any causes of action alleging denial of medical treatment and unlawful confinement will be dismissed as jurisdictionally defective.
Turning to defendant's argument that the claim must be dismissed for failure to state a cause of action with respect to the allegations of physical and sexual assault, it is well settled that under the doctrine of respondeat superior, the State may be held liable for an assault and battery committed by its employees "only if those acts were committed in furtherance of the employer's business and within the scope of employment" (N.X. v Cabrini Med. Ctr., 97 NY2d 247, 251 ; see also Jones v State of New York, 33 NY2d 275, 279-280 , rearg dismissed 55 NY2d 878 ). As the Appellate Division, Third Department has recognized,
"[i]t is well settled that conduct which occurs during the course of employment will not be considered to have occurred within the scope of employment if, for purely personal reasons unrelated to the employer's interests, the employee engages in conduct which is a substantial departure from the normal methods of performing his duties"
(Gore v Kuhlman, 217 AD2d 890, 891 [3d Dept 1995]). The State cannot be held liable under the doctrine of respondeat superior when the conduct of its employees so departs from the scope of their duties so as to "constitute an abandonment of [their] service" (Judith M. v Sisters of Charity Hosp., 93 NY2d 932, 933 ). In the Court's view, the allegation in the claim that claimant was "Sadistically & Maliciously" assaulted by several correction officers clearly describes an unprovoked assault and battery, particularly where there are no allegations in the claim that would tend to show that the correction officers were engaged in their official duty to maintain order or that claimant had engaged in any behavior that would have led to an authorized use of force. The correction officers' actions thus fell outside the scope of their employment, and defendant cannot be held liable under the doctrine of respondeat superior with respect to the allegations of physical assault (see Matter of Sharrow v State of New York, 216 AD2d 844, 846 [3d Dept 1995], lv denied 87 NY2d 801  [correction officers acted outside the scope of their employment in use of force where the assault was unprovoked and the inmate did not resist]; Cross v State of New York, UID No. 2018-018-978 [Ct Cl, Fitzpatrick, J., Nov. 7, 2018] [dismissing claim on the ground that it alleged an unprovoked assault and battery by correction officer for which State could not be held responsible under doctrine of respondeat superior]).
Moreover, with respect to the allegations of sexual assault in the claim, it is well settled that "[a]n act of sexual assault by an employee is a clear departure from the scope of employment, committed solely for personal reasons, and unrelated to the furtherance of the employer's business" (Dia CC. v Ithaca City School Dist., 304 AD2d 955, 956 [3d Dept 2003], lv denied 100 NY2d 506 ; Shantelle S. v State of New York, 11 Misc 3d 1088[A], 2006 NY Slip Op 50768[U], *3 [Ct Cl 2006] ["sexual assaults are not the kind of intentional torts that may render the employer liable under the doctrine (of respondeat superior) because they are clearly perpetrated for the employee's own purposes, and are a departure from service to the employer"]). In the context of a claim for sexual assault against a correction officer, "[w]ithout proof that there was fault on the part of any State officer other than [the correction officer], . . . there can be no liability on the State, whether for a constitutional tort or common law tort" (Waxter v State of New York, 6 Misc 3d 1035[A], 2005 NY Slip Op 50305[U], *3 [Ct Cl 2005], affd 33 AD3d 1180 [3d Dept 2006]; see J.A.B. v State of New York, UID No. 2016-015-135 [Ct Cl, Collins, J., May 17, 2016] ["the State may be liable for its own negligence in hiring, supervising or retaining an employee which it knew or should have known had a propensity for the conduct allegedly causing the injury"]). Here, the claim alleges, without elaboration, that claimant was subjected to a sexual assault at the hands of several correction officers, but it does not allege fault on the part of any other State employee in connection with the alleged sexual assault. Accordingly, the claim fails to state a cause of action for which the State can be held liable under the doctrine of respondeat superior, and it must be dismissed on that basis (see B.K. v State of New York, UID No. 2018-045-027 [Ct Cl, Lopez-Summa, J., July 16, 2018] [dismissing cause of action alleging sexual assault by correction officer inasmuch as the "alleged conduct was personally motivated and constituted a clear departure from the scope of (the correction officer's) employment, thereby negating any potential vicarious liability on the part of (the State) for her tortious acts"]).
In sum, the Court concludes that the causes of action alleging denial of medical care and unlawful confinement must be dismissed for failure to comply with the substantive pleading requirements of Court of Claims Act § 11 (b). Furthermore, the causes of action sounding in assault and battery must be dismissed for failure to state a cause of action.
Accordingly, it is
ORDERED, that defendant's motion number M-95913 is GRANTED, and claim number 134996 is hereby DISMISSED.
December 3, 2020
Saratoga Springs, New York
W. BROOKS DeBOW
Judge of the Court of Claims
1. Claim number 134996, filed July 2, 2020;
2. Notice of Motion, dated September 21, 2020;
3. Affirmation of Heather R. Rubinstein, AAG, in Support of Motion, dated September 21, 2020;
4. Affidavit of Service of Dawn McNamara, sworn to September 21, 2020.
1. The caption has been amended pursuant to Civil Rights Law § 50-b to grant claimant anonymity inasmuch as the claim alleges that claimant is the victim of a sexual offense as defined in Article 130 of the Penal Law.