Where a Youth Division Aide (YDA) employed by the Office of Children and Family Services (OCFS) was convicted of attempted strangulation arising from an altercation with the claimant, who was then a minor in the custody of OCFS, defendant's motion for summary judgment dismissing the claim was denied. A question of fact existed as to whether or not the YDA was acting in the scope of his employment when he employed the use of force. Defendant acknowledged that the use of force was necessary and foreseeable in certain circumstances and the YDA involved in this case had been disciplined for the use of excessive force several times in the past.
Defendant's motion was also denied to the extent it sought to collaterally estop the claimant from relitigating the issue of damages, which were determined in a federal court action following the default of the defendant-YDA in that case. Defendant did not raise collateral estoppel as an affirmative defense, resulting in waiver of this defense. Moreover, in the federal court action against the individually-named defaulting defendant, there was little incentive to vigorously litigate the damages issue.Other issues raised by defense counsel involving injury to a tooth arising from a screw in the mess hall food did not warrant summary judgment. Defendant's assertion of a lack of notice regarding the presence of a screw in claimant's food did not warrant summary judgment where it failed to support its motion with any evidence that the meat slicer from which the screw became dislodged was inspected or maintained before the incident and, in opposition to the motion, the claimant properly invoked the doctrine of res ipsa locquitor. In addition, while the defendant argued that the screw claimant bit down on did not cause his dental injury, defendant failed to demonstrate its entitlement to summary judgment through the proffer expert opinion evidence.
|Claimant short name:||NAPOLEONI|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||FRANCIS T. COLLINS|
|Claimant's attorney:||Sussman & Associates
By: Michael H. Sussman, Esq.
|Defendant's attorney:||Honorable Barbara D. Underwood, Attorney General
By: Thomas R. Monjeau, Esq., Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||December 24, 2018|
|See also (multicaptioned case)|
Defendant moves for summary judgment dismissing the claim pursuant to both CPLR § 3211 and § 3212.
Claimant seeks damages for injuries sustained when he was assaulted by William Spencer, a Youth Division Aide (YDA) employed by the State of New York at Highland Residential Center (HRC), a limited-secure juvenile detention facility operated by the Office of Children and Family Services (OCFS). Claimant alleges that he was adjudicated a Juvenile Delinquent and sentenced to two years probation for a fight he was involved in at the age of 15. Claimant thereafter violated his probationary term, and was committed to the custody of the New York State Office of Child and Family Services (OCFS) for a term of six to twelve months. While a resident of HRC, claimant alleges that he was assaulted by YDA Spencer as follows:
"17. On January 7, 2014, then seventeen years old, claimant was in his housing unit when another resident with whom he was friendly got into a fight.
18. Claimant attempted to pull his friend off and break the fight up.
19. When HRC staff arrived to break up the fight, claimant removed himself from the scuffle and remained to the side.
20. After the incident, YDA Spencer started yelling at claimant and tried to provoke him.
21. Claimant remained stationary and made no threatening remarks or gestures.
22. Unprovoked and without warning, YDA Spencer then charged at claimant, grabbed him by the neck, strangling him, and pushed him into the wall.
23. At the time, YDA Spencer was forty years old and physically larger and stronger than the adolescent claimant.
24. At the time of this attack, the fight had already been resolved and the participants therein had been removed from the scene.
25. At the time of this attack, claimant was doing nothing to threaten YDA Spencer or to cause him to fear physical harm.
26. At the time of this attack, claimant was doing nothing to threaten any other resident, staff or other person or to cause YDA Spencer to believe that claimant might physically harm any other resident, staff or other person" (defendant's Exhibit 1, Claim, ¶¶ 17-26).
Mr. Spencer was allegedly indicted on several charges, including strangulation in the second degree and attempted strangulation in the second degree. On February 27, 2015, Spencer pled guilty to attempted strangulation in the second degree in violation of Penal Law §110 and §121 and agreed to resign from his position as a YDA with OCFS in resolution of all pending charges (see claimant's Exhibit 17).
Based on these facts, claimant commenced an action in federal court against Mr. Spencer and a default judgment on the issue of liability was entered in favor of the plaintiff and against Mr. Spencer.(1) A hearing was held to determine the amount of damages, at which time testimony was taken from the claimant and his mother. The Court also received into evidence a DVD of the incident, a transcript of Mr. Spencer's guilty plea, pictures of the claimant's neck and head following the assault, and medical progress notes. Following the hearing, compensatory damages were awarded in the amount of $10,000 and punitive damages were awarded in the amount of $20,000 (see defendant's Exhibit 3). In reaching its compensatory damages award, the Court found the claimant initially suffered pain and discomfort "while Defendant was pushing him into the walls and squeezing his neck; red marks, bruising, and soreness to his neck as well as a headache lasting approximately one week; and a cut on the back of his head that turned into a raised bump that [claimant] claims is still present" (defendant's Exhibit 3, p. 1). However, the Court made no award for claimant's claim of ongoing headaches and emotional/psychiatric injuries, finding the claimant's testimony was exaggerated and unsupported by expert testimony causally connecting the incident to an emotional/psychological impairment. Punitive damages were awarded "to punish Defendant for his outrageous conduct and to deter him and others like him from engaging in similar conduct in the future" (id. at p. 2).
The instant claim alleges causes of action for assault and battery (first two causes of action in the claim) and negligent training, monitoring and supervision of staff (third cause of action). Claimant also alleges a cause of action for negligence (fourth cause of action) arising from a dental injury which allegedly occurred in August or September of 2013 when claimant bit down on a screw he found in his food while dining in the HRC mess hall. With respect to the dental injury, claimant alleges a root canal and subsequent extraction of tooth number 31 was necessary.
In support of its motion for summary judgment dismissing the assault and battery causes of action, defendant contends that Mr. Spencer was not acting within the scope of his employment at the time of the incident and, with respect to claimant's cause of action for negligent training and supervision, that "this cause of action must also be dismissed due to claimant's failure to provide adequate particularization of the nature of the cause of action and defendant[']s conduct in regard to it" (Monjeau affirmation, ¶ 11). Alternatively, defendant argues that claimant is collaterally estopped from relitigating the amount of damages arising from the alleged assault and battery by virtue of the federal court's damage award arising from the same incident. Lastly, with respect to claimant's fourth cause of action for negligence arising from the screw found in his food, defendant contends that although it was able to determine that the screw fell off the slicer machine that was used to carve a turkey that day, it had no notice of the defect or an opportunity to prevent its occurrence. Defendant also contends, based upon the testimony of the dentist who examined the claimant after the incident, that the tooth was not fractured or broken and the pain claimant felt when he bit down on the screw was due to a recent deep filling in tooth #31.
As succinctly stated by the Court of Appeals in Judith M. v Sisters of Charity Hosp. (93 NY2d 932, 933 ) "[t]he doctrine of respondeat superior renders an employer vicariously liable for torts committed by an employee acting within the scope of the employment. Pursuant to this doctrine, the employer may be liable when the employee acts negligently or intentionally, so long as the tortious conduct is generally foreseeable and a natural incident of the employment." The test is not whether the employee was acting in an authorized manner but "whether the act was done while the servant was doing his master's work, no matter how irregularly, or with what disregard of instructions" (Riviello v Waldron, 47 NY2d 297, 302  [inner quotation marks and citation omitted]; see also McMindes v Jones, 41 AD3d 1196 [4th Dept 2007]; Cepeda v Coughlin, 128 AD2d 995 [3d Dept 1987], appeal denied 70 NY2d 602 ). Thus, an employer who places an employee in a position of trust or responsibility is responsible when the employee "through lack of judgment or discretion, or from infirmity of temper, or under the influence of passion aroused by the circumstances and the occasion, goes beyond the strict line of his duty or authority, and inflicts an unjustifiable injury upon another" (Sims v Bergamo, 3 NY2d 531, 535  [inner quotation marks and citation omitted]). The employer need not foresee the precise manner in which an injury occurs "so long as 'the general type of conduct may have been reasonably expected' " (Stewart v Westchester Inst. for Human Dev., 136 AD3d 1014, 1018 [2d Dept 2016], quoting Riviello, 47 NY2d at 304]; see e.g. Fauntleroy v EMM Group Holdings LLC, 133 AD3d 452 [1st Dept 2015] [use of force by security guards hired to maintain order may be within scope of employment ]). Conversely, where an employee's actions are taken for wholly personal reasons unrelated to his or her job, they fall outside the scope of employment (see e.g., Judith M., supra; N.X. v Cabrini Med. Ctr., 97 NY2d 247 ; Stevens v Kellar, 11 AD3d 1206 [3d Dept 2013]; Burlarley v Wal-Mart Stores, Inc., 75 AD3d 955 [3d Dept 2010]; Curtis v City of Utica, 209 AD2d 1024 [4th Dept 1994]; Stavitz v City of New York, 98 AD2d 529 ). The determination whether a particular act was within the scope of employment is "heavily dependent on factual considerations" not ordinarily suitable for summary disposition (Riviello, 47 NY2d at 303; Holland v City of Poughkeepsie, 90 AD3d 841, 844 [2d Dept 2011]; Graham v City of New York, 2 AD3d 678, 679-80 [2d Dept 2003]). The factors to be considered include "the connection between the time, place and occasion for the act; the history of the relationship between employer and employee as spelled out in actual practice; whether the act is one commonly done by such an employee; the extent of departure from normal methods of performance; and whether the specific act was one that the employer could reasonably have anticipated" (Riviello, 47 NY2d at 303).
Here, the incident allegedly occurred in a housing unit of the HRC shortly after an altercation had occurred between two other residents in which claimant had apparently interceded. Whether or not Spencer's assault on the claimant occurred during the heat of the commotion in pursuit of his employer's objectives or afterward for solely personal motives, unrelated to the furtherance of the HRC's objectives, cannot be determined as a matter of law. Moreover, the examination before trial testimony of Farooq Mallick, HRC's facility Director at the time (now an Associate Commissioner), indicates that YDA's were permitted to use force to quell a disturbance (claimant's Exhibit 2, p. 28-29, 36) and that the degree of force used is a matter of judgment (id. at 37-38). As a result, Mr. Mallick agreed that the use of force is foreseeable, and that there have been instances in which the application of excessive force has resulted in discipline (id. at 52-53). In fact, Mr. Spencer had been disciplined for excessive use of force in the past. In July 2011, Mr. Spencer's use of force resulted in a youth sustaining a broken arm (claimant's Exhibits 18, 20). Although the OCFS initially proposed termination of Mr. Spencer's employment (claimant's Exhibit 19), the matter proceeded to arbitration, which resulted in a four-month suspension without pay, and a six-month suspension without pay to be held in abeyance for two years to be implemented in the event of any repeat incidents (claimant's Exhibit 21). Mr. Spencer was involved in another use-of-force incident on February 13, 2012 (claimant's Exhibits 22, 23). Following an investigation, it was determined that Mr. Spencer had exposed a child to a substantial risk of harm and a report of child abuse was found to be "indicated" (claimant's Exhibit 24, p. 5). Although the OCFS again recommended termination of claimant's employment (claimant's Exhibit 22), and an arbitrator determined that the proposed penalty "is deemed appropriate", the OCFS subsequently agreed that the penalty of termination "shall be held in abeyance for six (6) months, to begin when Mr. Spencer returns to work on January 3, 2013, and the abeyance period shall continue through July 2, 2013" (claimant's Exhibit 25, p. 3). In addition, Mr. Spencer was suspended without pay from May 24, 2012 through January 2, 2013.
The subject incident, which occurred on January 7, 2014, resulted in criminal charges and Mr. Spencer's plea agreement, which included his agreement to resign. Mr. Mallick testified that as of September 2011 Mr. Spencer's personnel file contained some 15 complaints involving similar allegations which resulted in investigations (claimant's Exhibit 2, pp. 80-81) and as of April 4, 2014, eight YDAs, including Mr. Spencer, were on administrative leave because of allegations of child abuse (claimant's Exhibit 2, p. 146-147; claimant's Exhibit 26). Considering this history, questions of fact exist regarding the extent of Mr. Spencer's departure, if any, from the normal methods of his job performance, and whether the specific act was one that the employer could reasonably have anticipated. Summary judgment on the issue of whether claimant was acting within the scope of his employment when the assault and battery occurred is, therefore, denied.
"In order to succeed on a claim of negligent training and supervision of an employee, it must be demonstrated that the employer knew or should have known of the employee's propensity for the conduct which caused the injury' . . . and that the allegedly deficient supervision or training was a proximate cause of such injury" (Hicks v Berkshire Farm Ctr. & Servs. for Youth, 123 AD3d 1319, 1320 [3d Dept 2014]; Kelly G. v Board of Educ. of City of Yonkers, 99 AD3d 756 [2d Dept 2012]). Here, defendant does not contend that it lacked notice of Mr. Spencer's propensity for violence, but that the claim fails to contain an adequate particularization of the "nature of the cause of action and defendant[']s conduct in regard to it" (Monjeau affirmation, ¶ 11). While defendant does not expressly contend that this cause of action fails to comport with the pleading requirements of Court of Claims Act § 11 (b), it is only by virtue of this section that the "nature" of the claim must be specifically alleged. In reviewing this cause of action, however, the claim clearly complies with the jurisdictional pleading requirements of Court of Claims Act § 11 (b). The nature of the claim is negligent training and supervision and the claimant is not expected to be in a position, before the initiation of discovery, to allege each and every act forming the basis for the contention that defendant should have known of Mr. Spencer's propensity for violence. Inasmuch as the claim provides sufficient particulars to enable the defendant to promptly investigate the claim and determine its liability, it meets the substantive pleading requirements of Court of Claims Act § 11 (b) (see Lepkowski v State of New York, 1 NY3d 201, 207 ). Moreover, the claim quite plainly states a cause of action for negligent training and supervision based on the allegation of publicized news accounts of pervasive violence over the last several years.
Next, defendant contends the claimant is collaterally estopped from re-litigating the damages awarded in the federal court action against Mr. Spencer individually. However, when asserted defensively, the doctrine of collateral estoppel is a defense that is waived by a party's failure to plead it as an affirmative defense or to timely move for dismissal on that ground (see CPLR 3211 [a] , [e]; Browne v Board of Educ., 122 AD3d 563 [2d Dept 2014]; Braunsdorf v Haywood, 295 AD2d 731 [3d Dept 2002]; Ouyang v Jeng, 260 AD2d 618 [2d Dept 1999]). Here, defendant failed to raise collateral estoppel as a defense in either a pre-answer dismissal motion or as an affirmative defense in its answer. As a result, the defense is waived. Even if this were not the case, however, given the circumstances of the federal court's damage award, claimant would not be estopped from relitigating the issue of damages here. Application of the doctrine of collateral estoppel requires that the party invoking the doctrine first demonstrate that the identical issue was necessarily decided in the prior action and is decisive of the present action (D'Arata v New York Cent. Mut. Fire Ins. Co., 76 NY2d 659, 664 ). If that burden is met, the party to be precluded has the burden of establishing the absence of a full and fair opportunity to litigate the issue (id.; see also Kaufman v Eli Lilly & Co., 65 NY2d 449, 455 ). While defendant demonstrated that the identical issue relating to the injuries inflicted by Spencer was necessarily decided in the federal court action, claimant met his burden of establishing the absence of a full and fair opportunity to litigate the issue. Here, like the facts in Baxter v Fulton Ice & Cube Co. (106 AD2d 82 [2d Dept 1985]), claimant had little incentive to strenuously litigate a claim against a defaulting defendant with few resources who failed to appear at the inquest. Moreover, application of the doctrine would not avert a trial on the issue of damages related to the injuries allegedly sustained when claimant bit down on a screw in his food. Thus, conservation of judicial resources, one of the underlying policy considerations supporting application of the the doctrine, does not apply. Accordingly, the doctrine of collateral estoppel may not be invoked with respect to the amount of claimant's damages (see also Sepulveda v Dayal, 70 AD3d 420 [1st Dept 2010]).
Lastly, defendant contends that it did not have notice of the fact that a screw may fall off the meat slicer into the claimant's food and, in any event, the loss of claimant's tooth is unrelated to this incident. First, defendant failed to meet its threshold burden of demonstrating lack of notice (Zuckerman v City of New York, 49 NY2d 557 ). While defendant relies on the testimony of Theresa Kamm, a Cook at the HRC, to establish that nothing like this incident had happened before (defendant's Exhibit 4, pp. 40-41), it failed to demonstrate that it neither created the defective condition nor lacked constructive notice of the defect. No proof was submitted in support of defendant's motion that it complied with the manufacturer's instructions for the maintenance and use of the equipment or that it was inspected before each use and found to be safe. Defendant cannot satisfy its burden on a motion for summary judgment merely by pointing to the fact that no similar incident had occurred in the past (see Anderson v Skidmore Coll., 94 AD3d 1203 [3d Dept 2012]; Totten v Cumberland Farms, Inc., 57 AD3d 653 [2d Dept 2008]). In addition, as claimant points out in opposition to the motion, the instructions for the slicer direct the user not to "wash any slicer components in a dishwasher" as they did here (claimant's Exhibit 13, p.7).
Moreover, claimant may rely on the doctrine of res ipsa loquitor to defeat defendant's motion. The doctrine of res ipsa loquitor permits, but does not require, the finder of fact to infer from the circumstantial evidence that the defendant was negligent based upon the following criteria:
" '(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; (3) it must not have been due to any voluntary action or contribution on the part of the plaintiff.' " (Morejon v Rais Constr. Co., 7 NY3d 203, 209 , quoting Corcoran v Banner Super Mkt. 19 NY2d 425, 430 ; see also Elsawi v Saratoga Springs City Sch. Dist., 141 AD3d 921 [3d Dept 2016]).
As applied to the facts of the subject claim, food does not ordinarily contain screws or metal objects in the absence of someone's negligence (cf. Amiano v Greenwich Vil. Fish Co., Inc., 151 AD3d 484 [1st Dept 2017], lv denied 30 NY3d 909 ; Vitiello v Captain Bill's Rest., 191 AD2d 429 [2d Dept 1993]); the equipment was in the exclusive possession of the defendant; and no voluntary action on the part of the claimant contributed to the occurrence (see Brumberg v Cipriani USA, Inc., 110 AD3d 1198 [3d Dept 2013]). Accordingly, in opposing the motion, claimant raised issues of fact requiring a trial.
Lastly, defendant contends that the injury to claimant's tooth number 31 was not caused by biting down on the screw. In support of this contention, defendant cites the deposition testimony of Dr. Mark Ciovacco who testified that he examined the claimant one day after the incident and found no evidence of a fractured tooth (defendant's Exhibit 6, pp. 25-26). A deep filling on that same tooth had been performed five days before the incident (id. at p. 44), there were no complaints after the filling was performed but before the incident (id. at p. 45), and X-rays performed after the incident showed a deep filling close to the "pulp horn" which may need a root canal treatment at some point (id. at pp. 46, 50). Significantly, however, Dr. Ciovacco testified he did not reach a conclusion regarding the cause of claimant's continued discomfort (id. at 50). Based on this testimony, no conclusions may be drawn regarding the cause of claimant's injury to tooth number 31 and no expert affidavit or affirmation was submitted in support of defendant's motion. Absent expert opinion evidence regarding the cause of claimant's injury to tooth number 31, defendant failed to meet its burden of demonstrating its entitlement to summary judgment as a matter of law (DeMaille v State of New York, ___AD3d ___ 2018 NY Slip Op 08209 [3d Dept 2018]).
Based on the foregoing, defendant's motion is denied.
December 24, 2018
Saratoga Springs, New York
FRANCIS T. COLLINS
Judge of the Court of Claims
1. It is unclear from the motion papers why defendant in the federal court action was not defended by the State pursuant to Public Officers Law § 17 (2) (a).