New York State Court of Claims

New York State Court of Claims

PERRIELLO v. THE STATE OF NEW YORK, #2008-029-044, Claim No. 114495, Motion Nos. M-75110, CM-75348


Claim alleges assault and battery arising from excessive force used by State Police investigator. Since defendant conceded that the alleged acts were committed in the course of the investigator’s employment, the court dismisses the cause of action alleging negligent hiring and supervision since such an action against an employer can only proceed when the employee is acting outside of the course of his employment.

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):
Cross-motion number(s):
Claimant’s attorney:
RICHARD B. HERMAN, LLCBy: Richard B. Herman, Esq.
Defendant’s attorney:
Third-party defendant’s attorney:

Signature date:
November 3, 2008
White Plains

Official citation:

Appellate results:

See also (multicaptioned case)


This is claimant’s motion for an order directing an in camera inspection of personnel records pursuant to Civil Rights Law §50-a and defendant’s cross-motion [1] for partial summary judgment dismissing some, but not all, of the alleged causes of action.

The claim arises out of a September 12, 2007 incident in which claimant was allegedly assaulted by an undercover New York State police officer, resulting in serious personal injuries including multiple fractures to claimant’s left foot and ankle. The incident resulted from the escalation of an altercation between claimant and a waiter at the Empire Terrace Restaurant at Yonkers Raceway which eventually resulted in State Police Investigator Vigne being summoned. It allegedly ended with Vigne slamming claimant to the floor several times resulting in the injuries described in the claim.

The motion papers contain statements from two non-party witnesses that were given to the State Police at the time of the incident. The first witness, Sharon Arnold, did not arrive at the scene until claimant was handcuffed and her statement contains nothing of probative value with respect to any issue herein. The second statement is the report of a Yonkers Raceway police officer describing his interview with a waiter, Jose Santiago, who purportedly witnessed the entire incident. Mr. Santiago describes the encounter between claimant and Vigne in some detail, yet notes that “the subject was complaining of a broken leg but the witness stated that he did not observe N.Y.S.P. use any force which he believed would cause that type of injury” (Exhibit 2 in support of cross-motion).

Interestingly, the entire incident was recorded by a security camera and the tape (video only) has been provided to the court. The tape clearly shows claimant being slammed to the ground more than once, force of the type and degree that could clearly cause the type of injuries alleged in the claim. The events shown on the tape clearly escaped Mr. Santiago’s attention.

Claimant gave a contemporaneous written statement to the State Police in which he described a dispute over a tip with a waiter, after which he alleges the waiter called him an ethnic slur. Claimant wrote: “I walked away and then was questioned by the State Police. I did not have any ID on me so I could not provide it to him. He told me he was a State Police Investigator. We argued and he told me I was under arrest. He jumped on me and brought me to the ground. I pushed the cuffs away and we struggled more. I felt a sharp pain in my left ankle when we struggled.”

On this motion, claimant seeks production of Vigne’s complete personnel file, all medical records for the prior three years and the names and addresses of all doctors with whom Vigne consulted within the prior three years. Claimant justifies this request as being relevant to the causes of action for negligent hiring, retention and training alleged in the claim. In opposition to claimant’s request, defendant submits that these three causes of action are untenable as a matter of law and that not only must the disclosure request be denied, but defendant is additionally entitled to an order granting partial summary judgment dismissing these three causes of actions.
“Generally, where an employee is acting within the scope of his or her employment, the employer is liable for the employee’s negligence under a theory of respondent superior and the plaintiff may not proceed with a cause of action to recover damages for negligent hiring and retention.”
Ashley v City of New York
(7 AD3d 742, 743 [2d Dept 2004]).

Considerations relevant to the determination whether an employee was acting within the scope of his or her employment include whether the employee acted under the express or implied authority of the employer, whether the employee’s actions were undertaken in furtherance of the employer’s interests, whether the employee was discharging a duty to the employer and whether the employee’s acts were so closely connected with what the employee was hired to do and “so fairly and reasonable incidental to it, that they may be regarded as methods, even though quite improper ones, of carrying out the objectives of the employment” (Rausman v Baugh, 248 AD2d 8, 10-11 [2d Dept 1998], quoting Prosser and Keaton, Torts, § 70 at 502 [5th ed.], emphasis supplied).

Here, claimant does not deny that defendant’s employee was attempting to arrest him when he allegedly used excessive force. Indeed, he concedes that Vigne told him he was under arrest before there was physical contact between the men. Accepting that claimant’s allegation of excessive force is accurate, as the court must for the purpose of these motions, it is nevertheless clear that Vigne was acting within the scope of his employment, that he was attempting to effectuate an arrest when he used allegedly excessive force and that defendant would be liable for his actions to the extent that they are determined to be tortious.

It is basic that “[a] claim for negligent hiring or supervision can only proceed against an employer for an employee acting outside the scope of her employment” (Colodney v Continuum Health Partners, Inc. [No. 03 CV 7276, 2004 U.S. Dist. LEXIS 6606, 2004 WL 829158 (S.D.N.Y. 2004)]; see also Rowley v City of New York [No. 00 CV 1793 (DAB, 2005 U.S. Dist Lexis 22241, 2005 WL 2429514 (S.D.N.Y. 2005)] and cases cited).

The decision in Kenneth R. v Roman Catholic Diocese of Brooklyn (229 AD2d 159 [2d Dept 1997]), relied on by claimant for the proposition that “the employer can still be liable under the theories of negligent hiring, negligent retention and negligent supervision . . . [if] the employer knew or should have known of the employee’s propensity for the conduct which caused the injury” (id., at 161) is inapposite. Claimant omitted the first clause of the quoted paragraph, which limits liability under such theories to “instances where an employer cannot be held vicariously liable for its employee’s torts,” (id.) in complete contrast to the alleged facts herein.

In addition to the manifest applicability of respondeat superior to the alleged facts, defendant’s answer does not raise the defense that Vigne was acting beyond the scope of his employment. Further, defendant has explicitly conceded, both in correspondence to claimant’s counsel and in the within motion papers, that Vigne was in fact acting within the scope of his employment during the events which form the basis of the claim. As the Second Department wrote in reversing the denial of a motion for partial summary judgment in a similar case, “[s]ince the City defendants conceded that the police officers were acting within the scope of their employment when the accident occurred, the Supreme Court should have granted partial summary judgment dismissing so much of the complaint as sought to recover damages for negligent hiring and retention asserted against them” (Ashley v City of New York, 7 AD3d 742, 743 [2d Dept 2004]; compare Pickering v State of New York, 30 AD3d 393, 394 [2d Dept 2006], sustaining disclosure under Civil Rights Law § 50-a and causes of action for negligent hiring and negligent training “at this early stage of the proceedings and in the absence of a clear concession by the defendant that the officer acted completely within the scope of his employment”).

Here, we have such a clear concession by defendant, as well as a factual scenario that would allow for no other conclusion.

Accordingly, defendant’s cross-motion for partial summary judgment is granted and claimant’s motion to compel disclosure is denied.

November 3, 2008
White Plains, New York

Judge of the Court of Claims

Papers considered:

Notice of Motion, Affidavit and Exhibits

Notice of Cross-motion, Affirmation, Exhibits and Memorandum of Law

Reply Affirmation

[1].Although claimant challenges whether the cross-motion was properly or timely made, the court’s file contains a Notice of Cross-Motion and an Affidavit of Service, and the papers were clearly served in accordance with CPLR 2214(b); i.e., “at least seven days before” the return date. The statute does not require that the papers be received seven days before the return date, and there is no authority for claimant to attempt to require the same in his notice of motion; i.e., the statute allows a party to demand service of responding papers seven days in advance, while claimant’s notice of motion purports to require that papers “must be served so as to be received” at least seven days in advance.