Defendant's motion to dismiss the claim for lack of jurisdiction granted. Claim failed to comply with pleading requirements of Court of Claims Act § 11 (b) inasmuch as it did not allege any damage or injury sustained as a result of the alleged offenses. Claim also failed to state a cause of action for assault and battery as it alleged actions outside the scope of the correction officer's employment. Claimant's motion for assignment of counsel and reduction of the filing fee are denied as moot.
|Claimant short name:||N.B.|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Motion number(s):||M-96080, M-96200|
|Judge:||W. BROOKS DeBOW|
|Claimant's attorney:||N.B., Pro se|
|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:||January 14, 2021|
|See also (multicaptioned case)|
Claimant, an individual currently incarcerated in a State correctional facility, filed this claim alleging assault and harassment by correction officers at Green Haven Correctional Facility (CF) on July 31, 2020. Claimant moves for assignment of counsel and reduction of the filing fee (M-96080). Defendant has not responded to claimant's motion, but separately makes a pre-answer motion to dismiss the claim for lack of jurisdiction for failure to comply with the jurisdictional pleading requirements of Court of Claims Act § 11 (b) and failure to state a cause of action (M-96200). Claimant has not responded to defendant's motion to dismiss.
The claim alleges that on the morning of July 31, 2020, Correction Officers (COs) Lambody and Chase assaulted claimant, denied him access to the facility law library, harassed him, and made racist remarks toward him "in E-Block on the 1st floor" at Green Haven CF, and that claimant was denied access to mental health services "for Hours after the (Assault) and never taken to (Medical-Dept!)" (Claim No. 135209, ¶ 2; see id. at ¶ 4). The claim alleges that the assault was in retaliation for a Department of Corrections and Community Supervision Office of Special Investigations (DOCCS-OSI) investigation into COs Papadapolis and Lawton, "who are close friends with" COs Lambody and Chase (id.), and seeks $10 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 $10 million dollars in damages, the claim fails to include any allegations of the injuries claimant sustained as a result of the alleged assault and delay of mental health treatment" (id. at ¶ 5). Defendant also argues that the claim fails to state a cause of action for assault or denial of medical treatment because those "actions were retaliatory in nature [and] . . . , if true are clearly outside the scope of the officers' employment" (id. at ¶ 9). Defendant further argues that "[a]n alleged attack by an officer and any retaliatory actions, if true, would be wholly attributable to the officers' own personal motives and are clearly not actions within the normal and customary duties regularly performed by [COs]," that 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, which is unquestionably the case here, the acts are considered a substantial departure from the normal methods of performing his duties" (id.). As noted above, claimant has not responded to defendant's motion to dismiss.
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, [and] the items of damage or injuries claimed to have been sustained." The claim 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]).
With respect to the causes of action alleged in the claim sounding in assault and delay in access to mental health treatment, although the allegations in the claim are brief, the claim clearly alleges that claimant was assaulted by the two COs on July 31, 2020 at approximately 8:00 in the morning at a specific location in Green Haven CF, and that he was denied access to mental health treatment for a period of hours following the assault. Moreover, the claim is appended with a handwritten grievance authored by claimant on the date of the alleged assault, which contains further detail regarding the incident (see Claim No. 135209, attachments [Grievance, dated July 31, 2020]). In the grievance, claimant alleges that he was assaulted when CO Chase directed him "to get on the wall and pushe[d him] in [his] back with his left hand," and that claimant "yell[ed] at [CO Chase] for putting his hands on [claimant]" because claimant "did nothing wrong" and CO Chase "had No-Right to touch [claimant's] Body [in] such a Disrespectful way" (Claim No. 135209, attachments [Grievance, dated July 31, 2020, pg. 2). Claimant further states in the grievance that his request to be taken to the mental health unit was "denied multiple-times," but that he was ultimately escorted to the facility's mental health unit, where he reported the alleged assault to his mental health counselor (id. at pg. 3). In the Court's view, the allegations in the claim, which are supported by the attached grievance, provide 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).
The Court agrees with defendant, however, that the claim fails 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" as a result of the alleged assault and delay in providing claimant with access to mental health treatment (Court of Claims Act § 11 [b]). The claim itself is completely bereft of any allegations of injuries sustained by claimant as a result of the alleged assault, denial of library access, harassment, and delay in obtaining mental health treatment. In the absence of any allegation with respect to any injuries or damages sustained, the claim manifestly fails to comply with Court of Claims Act § 11 (b) and must be dismissed for lack of jurisdiction
Moreover, even assuming that the cause of action for assault and battery complied with the pleading requirements of Court of Claims Act § 11 (b), as defendant correctly argues, it would be dismissed for failure to state a cause of action, for the reasons that follow. 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, although the sparse allegations in the claim itself do not indicate the nature of the assault, the allegations in the accompanying grievance clearly describe an unprovoked assault and battery motivated by the COs' animus toward claimant as a result of his complaints regarding other COs, particularly inasmuch as 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 assault and battery (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]), and the claim fails to state a cause of action for assault and battery.
Inasmuch as the claim must be dismissed for lack of subject matter jurisdiction, claimant's motion (M-96080) for assignment of counsel and reduction of the filing fee is denied as moot.
Accordingly, it is
ORDERED, that defendant's motion number M-96200 is GRANTED, and claim number 135209 is hereby DISMISSED; and it is further
ORDERED, that claimant's motion number M-96080 is DENIED as moot.
January 14, 2021
Saratoga Springs, New York
W. BROOKS DeBOW
Judge of the Court of Claims
1. Claim No. 135209, filed Aug. 14, 2020, with attachments;
2. Notice of Motion (M-96080), dated July 31, 2020;
3. Notice of Motion (M-96200), dated September 21, 2020;
4. Affirmation of Heather R. Rubinstein, AAG, in Support of Motion (M-96200), dated September 21, 2020;
5. Affidavit of Service of Dawn McNamara, sworn to September 21, 2020.
1. Although the claim itself does not allege any sexual offenses, documents attached to the claim allege that claimant was the victim of a sexual offense as defined in Article 130 of the Penal Law. Accordingly, the caption has been amended pursuant to Civil Rights Law § 50-b to grant claimant anonymity.