New York State Court of Claims

New York State Court of Claims

MOSELY v. THE STATE OF NEW YORK, #2002-013-031, Claim No. 104862, Motion Nos. M-65056, M-65057, M-65103, M-65304, CM-65354


Motions to compel a variety of discovery responses are denied, and motion to dismiss the claim is granted. The claim is based only on allegations that a State prison employee performed wrongful acts that were entirely outside the scope of his State employment. Even if it were determined that he was acting within the scope of his employment, there can be no recovery against the state for the tort of intentional infliction of emotion distress.

Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
M-65056, M-65057, M-65103, M-65304
Cross-motion number(s):
Claimant's attorney:
Defendant's attorney:
Attorney General of the State of New York
BY: REYNOLDS E. HAHN, ESQ.Assistant Attorney General
Third-party defendant's attorney:

Signature date:
September 19, 2002

Official citation:

Appellate results:

See also (multicaptioned case)


On June 19, 2002, the following papers were read on the following motions:
1. Claimant's Notice of Motion and Attachments (M-65056)

2. Claimant's Notice of Motion and Attachments (M-65057)

3. Claimant's Notice of Motion and Attachments; Claimant's "Response" (M-65103)

4. Defendant's Combined Affirmation in Opposition of Reynolds E. Hahn, Esq. (M-65056, M-65057, M-65103)

5. Claimant's Reply (M-65056, M-65057, M-65103)

6. Claimant's Notice of Motion and Attachments (M-65304)

7. Defendant's Notice of Cross Motion and Supporting Affirmation (CM-65354)

8. Filed Papers: Claim; Answer; Decision and Order Filed March 12, 2002 (M-64397)

In the claim in this action, Claimant alleges that for a period of time concluding in July 2001, he was repeatedly and continually harassed, insulted and humiliated by an Orleans Correctional Facility Counselor, Dave Waiter. By these several motions, Claimant seeks documents relating to complaints made against Waiter and Waiter's personnel files (Motion No. M-64397); copies of written statements Waiter may have made about Claimant (Motion No. M-65056); subpoenas to obtain the testimony of certain individuals ( Department of Correctional Services [DOCS] employees and inmates) who allegedly witnessed certain incidents between Claimant and Waiter (Motion No. M-65057); a "response" from the Attorney General to Claimant's account of a certain incident that occurred in July 2001 (Motion No. M-65103); and removal of the Attorney General as Defendant's legal representative (Motion No. M-65304). The issue raised in this last motion also forms the basis for Defendant's cross-motion for an order of dismissal (Cross-Motion No. CM-65354).

Claimant seeks to have the Attorney General removed as defense counsel in this action because "there is no vicarious liability on part of employer for torts committed by employee solely for personal motives unrelated to furtherance of employers business" (document #6 , ¶1). He relies on Spitz v Coughlin (161 AD2d 1088) to maintain that the State cannot be liable when a correction officer "undertook acts contrary to known operating procedures and the essential correctional facility goal of maintaining order, discipline and control" or "acts undertaken knowingly which indicate an intentional course of conduct contrary to institutional rules, training and common sense." Waiter, Claimant contends, was "not even doing anything that had to do with his job requrements [sic] of being a state payed [sic] counselor, or not even doing the job of his employer at the time of these harassments and humiliations, but only personal motives unrelated to his employer or his employment of being a state paid counselor" (document #6, ¶ 2). Because of this, in Claimant's view, Waiter should be forced to represent himself.

This Court, of course, does not have authority to "remove" an attorney who is lawfully and properly representing a client in this Court. With certain exceptions not applicable here, the only Defendant over whom this Court has jurisdiction is the State of New York, and the Attorney General is its proper representative. In addition, the Court of Appeals has ruled that an employee who seeks to enforce his right to a defense under Public Officers Law §17 must first apply to the Attorney General and, if denied, may challenge that denial only by way of an Article 78 proceeding in Supreme Court (Frontier Ins. Co. v State of New York, 87 NY2d 864), so this Court would never have the authority to determine the precise issue raised by Claimant.

On the other hand, the issue of whether Waiter was acting within the scope of his employment when committing the acts on which this claim is based is highly relevant, because if he was not, we must inquire whether those acts can support a lawsuit against the only possible defendant in this action - the State of New York. "In the absence of any negligent behavior by an employer, liability for acts of an employee may generally be imposed upon the employer pursuant to the doctrine of respondeat superior if the employee was acting within the scope of his employment" (Cornell v State of New York, 46 NY2d 1032, rearg denied 47 NY2d 951 ). While recognizing an exception to this rule where the employer has a contractual or other obligation to care for the welfare of the injured party, the Court of Appeals has expressly rejected the argument that the State can be held liable for "any injuries suffered by patients at State institutions at the hands of State employees, even if those employees are not acting in the scope of their employment and the State is free from any fault" (id., at 1033-1034).

Riviello v Waldron (47 NY2d 297) sets forth five factors that can be used to determine whether the acts of an employee are within the scope of employment: (1) the connection between the time, place and occasion for the act; (2) the history of the relationship between employer and employee as spelled out in actual practice; (3) whether the act is one commonly done by such an employee; (4) the extent of departure from normal methods of performance; and (5) whether the specific act was one that the employer could reasonably have anticipated (id., at 303). Of these, only the first two factors could support a finding that Waiter was acting within the scope of his employment when carrying out the actions complained of.

A close reading of the rather densely-worded claim confirms Claimant's description of the alleged wrongful conduct as consisting of "an intentional course of conduct contrary to institutional rules, training and common sense" and being in no way related to the job requirements of Waiter's State employment (document #6, ¶ 1). The specific acts alleged in the claim include exhibiting a prejudicial hatred for inmates of a certain race, making fun of Claimant because he was not paroled, predicting in a hateful way that Claimant would not be placed on work release, making fun of Claimant's wife, and carrying out a concerted course of verbal and emotional abuse and humiliation. Claimant expressly alleges that the counselor's wrongful actions are totally unconnected to, and go well beyond, his job duties for the State, and at no point does Claimant allege that the State was negligent in hiring, training, or retaining Waiter as an employee (see e.g., Mercer v State of New York, 125 AD2d 376).

An employee acts within the scope of his employment "when he is doing something in furtherance of the duties he owes to his employer and where the employer is, or could be, exercising some control, directly or indirectly, over the employee's activities" Lundberg v State of New York, 25 NY2d 467, 470), and liability may lie as long as the employee is performing his employer's work,"no matter how irregularly, or with what disregard of instructions" (Riviello v Waldron, 47 NY2d 297, supra at 302). Thus, a correction officer accused of using excessive force against an inmate will be considered, still, to have been acting within the scope of his employment because use of "appropriate" force is contemplated as being part of his duties (Cornell v State of New York, 46 NY2d 1032, supra). In this instance however, Claimant's own characterization of the nature of Waiter's conduct has been adopted by defense counsel, who has cross-moved to dismiss the claim on the ground that this Court does not have jurisdiction to hear the claim against Mr. Waiter for his own, independent actions.

Even if I were willing to construe Claimant's pleading far more liberally than he is requesting, close consideration of the claim reveals another defect that is equally fatal to the action. The injuries he alleges are those that, in the absence of any physical trauma, are associated exclusively with emotional distress: headaches, change in eating habits, lack of motivation, depression, poor performance in school and the like. The alleged wrongful acts of Waiter cannot in any fashion be considered negligent, for which recovery might be had (see, Lando v State of New York, 39 NY2d 803; Johnson v State of New York, 37 NY2d 378; Perry-Rogers v Obasaju, 282 AD2d 231). With respect to the tort of intentional infliction of emotional distress, it is well-settled that public policy prohibits recovery against the State (Wheeler v State of New York, 104 AD2d 496; DeLesline v State of New York, 91 AD2d 785, lv denied 58 NY2d 610). Thus, there could be no recovery even if it were established that Waiter's actions were carried out within, rather than outside, the scope of his State employment.

It goes without saying that if Claimant's allegations are true, he certainly should have redress. There are avenues open to him and which he can pursue should he be so inclined. The allegations on which this claim is based, however, do not set forth a cause of action for which Claimant would be entitled to monetary compensation from the State. Consequently, the claim lies outside the jurisdiction of the Court. Thus, whether the claim alleges culpable conduct by a "named" individual defendant[1], or the State of New York as the employer, the cross-motion to dismiss must be granted. Accordingly, Claimant's motions are denied; Defendant's cross-motion is granted and the claim is dismissed.

September 19, 2002
Rochester, New York

Judge of the Court of Claims

  1. [1]The caption has already been amended to reflect the only proper defendant here (see, Decision and Order filed March 12, 2002 - Motion No. M- 64397).