The following papers numbered 1-3 were read and considered by the Court on the State's motion to dismiss the claim:

Notice of Motion, Attorney's Affirmation in Support and Exhibits 1

Attorney's Affirmation in Opposition and Exhibit 2

Attorney's Affirmation in Further Support of Motion to Dismiss 3

The State moves to dismiss the claim on several grounds. First, the State argues that the Notice of Intention to File a Claim failed to set forth the State's alleged negligence with particularity and did not meet the jurisdictional requirements of Court of Claims Act § 11 (b) and was therefore jurisdictionally defective and did not extend the time within which to serve and file a claim under Court of Claims Act § 10 (3). Thus, the State argues that the claim was not timely served and filed and warrants dismissal.

The State also argues that the Notice of Intention to File a Claim and the claim fail to allege the necessary elements of the cause of action of the State's vicarious liability for the conduct of the correction officers as it is not alleged that the correction officers were acting within the scope of their employment or in furtherance of the State's interests when committing the alleged attacks and battery upon claimant. To the contrary, the State argues that the Notice of Intention to File a Claim and the claim allege that the State employees were engaged in an illegal scheme to further their own interests and not the interests of the State. Accordingly, the State maintains that the cause of action for battery alleged in the claim warrants dismissal because the claim fails to allege the necessary elements to assert a cause of action for the State's vicarious liability for the battery committed by the correction officers in the three alleged attacks [*2]upon claimant.

The State also argues that the causes of action alleging that the State is liable for its negligent hiring, training, supervision and retention of the correction officers also warrant dismissal because a necessary element of said causes of action is that the correction officers were not acting within the scope of their employment with the State and, in the instant case, the "[c]laimant asserts none of the elements necessary to show negligent hiring, training or retention of employees" (Attorney's Affirmation in Support, ¶ 15).

Finally, the State argues that the cause of action alleging that the State failed to intervene is a federal constitutional tort claim which is not within the jurisdiction of the Court of Claims.

As set forth below in the analysis, claimant opposes the State's motion on numerous grounds.

The following is a summary of the papers before the Court as they relate to the issues raised by the parties.

A Notice of Intention to File a Claim was served upon the State on December 5, 2023 alleging that the claim arises out of the acts or omission of the State on September 5, 8 and 9, 2023, during claimant's incarceration at Sing Sing Correctional Facility (Sing Sing), when claimant was physically attacked by several correction officers while they were on duty at Sing Sing (Attorney's Affirmation in Support, Ex. A, ¶¶ 3, 49). In addition to the State, the Notice of Intention to File a Claim names several individuals as defendants.^[FN1]

By way of background leading up to the alleged attacks upon claimant, the Notice of Intention to File a Claim alleges that in 2021, while housed in the K gallery, Sergeant Joseph and Correction Officer John believed that claimant was involved with a sports gambling pool (id. at 5-7). Therefore, Sergeant Joseph and Correction Officer John sought a weekly monetary payment from claimant, which claimant reluctantly provided to them (id.). Claimant was also aware of a scheme involving an organized group of correction officers who used coolers to smuggle contraband, such as iPhones, drugs, and weapons, into Sing Sing (id. at 8-11). The group of correction officers used incarcerated individuals, who served as water porters, to distribute the contraband to other incarcerated individuals who had made payments to the correction officers in exchange for the contraband (id.). Claimant did not seek the position of water porter; however he served as a water porter for several months and was told that it was a condition of his position to engage in the smuggling scheme (id. at 11). Claimant did not receive any compensation for his participation in the scheme and he eventually sought removal from his position as a water porter (id. at 11-12). Claimant was permitted to leave his position and, in May 2023, he was transferred from housing in the K gallery to housing in the H gallery (id. at 12).

While housed in the H gallery, Sergeant Joseph and Correction Officer John continued to collect "extortion payments" from claimant (id. at 13). In August 2023, claimant stopped making payments (id. at 14). Sergeant Joseph and Correction Officer John confronted claimant [*3](id.). They told claimant that he would regret it if he did not resume making payments (id.). Claimant refused to make any more payments until the fall (id.).

On Tuesday, September 5, 2023, at approximately 6:00 p.m., claimant's cell was searched by Correction Officers J. Franco and Z. Torres (id. at 15). After the search, the two correction officers asked claimant to identify incarcerated individuals at Sing Sing that the correction officers could extort money from and, when claimant indicated that he did not have such knowledge, the two correction officers brutally assaulted claimant, without provocation, inside claimant's cell (id. at 16-18).

The Notice of Intention to File a Claim provides the following details at paragraphs 19-20:

"19. One officer grabbed [claimant] by the neck and forced [claimant] to his knees. One of the officers elbowed [claimant] in his back. While [claimant] was kneeling, one of the officers slammed [claimant's] head against the locker in the cell and Officer Franco struck [claimant's] head with what appeared to [claimant] to be a baton. [Claimant] heard one of the officers remark, 'You Black motherfucker.' Upon information and belief, [claimant] then lost consciousness.

20. When he regained consciousness, [claimant] realized that additional officers had responded to his cell and his hands had been restrained. Notwithstanding the restraints and the absence of any resistance by [claimant], the brutal attack on [claimant] continued. Officer Santiago had [claimant] in a chokehold [sic], and other officers stomped on [claimant's] arms and legs. One officer yelled, 'Break his hands.' [Claimant] also saw Officer John inside of [claimant's] cell."

The Notice of Intention to File a Claim further alleges that the assault ended only after Sergeant Alvarado "and others" responded to claimant's cell and Sergeant Alvarado commanded the correction officers to stop and directed that another correction officer make a video recording of the correction officers transporting claimant from his cell to the Special Housing Unit (SHU) (id. at 21-22). Upon claimant's arrival at SHU, another correction officer took photographs of claimant and Nurse Glukham treated claimant with ice and a head bandage (id. at 23).

While at SHU, claimant was questioned by a correction officer and a sergeant about corruption within the facility involving correction officers, incarcerated individuals, sexual encounters with certain female correction officers, and the exchange of money (id. at 24). Claimant provided minimal answers because he feared further assault and denial of medical treatment (id. at 25).

Claimant was transported to Mt. Vernon Hospital for medical treatment, arriving at 8:51 p.m. (id. at 26). Claimant's medical records indicate that claimant reported that he had been jumped and that he complained of pain to his head, neck, back, and right-sided chest wall (id.). Claimant was diagnosed with a hematoma to his head and a right rib contusion (id. at 27). He was x-rayed and had CT scans which revealed multiple abnormalities (id.). Claimant was discharged that same night and returned to SHU, where he was confined within the infirmary in room A202 for one month (id. at 28).

On Thursday, September 7, 2023, claimant's wife visited him at the infirmary (id. at 29). Correction Officer Vasquez slipped claimant's wife a piece of paper bearing a handwritten telephone number (id.). Vasquez told claimant's wife to call the number and threatened her not to say anything otherwise claimant would not leave Sing Sing (id.). It was subsequently learned [*4]that the telephone number was linked to Correction Officer John (id. at 30).

On Friday, September 8, 2023, claimant was sleeping in room A202 with a blanket covering his face because the light was kept on continuously in the room. Claimant was awakened by a vicious beating by correction officers who forcefully held the blanket over claimant's face as they hit him with closed fists and told him to stay quiet (id. at 31, 33).

The following day, on September 9, 2023, claimant was again awakened by a beating by correction officers who forcefully held the blanket over claimant's face as they hit him with closed fists and told him to stay quiet (id. at 32-33). Claimant believed that the correction officers' command for him to stay quiet was in reference to the beatings and his knowledge of the on-going corruption at Sing Sing (id. at 33). As a result of the assaults, claimant's clothing and sheets were noticeably bloody (id. at 34). During the assault on September 9, 2023, one of the correction officers commented, " 'He's bleeding. Let's go' " (id.).

On Monday, September 11, 2023, Sergeant Alvarado conveyed to claimant that the beatings would cease and Alvarado directed that claimant be provided with clean sheets and clothing (id. at 35). Claimant's medical records indicate that in the early afternoon of September 11, 2023, Nurse Stewart observed a trail of dried blood on the floor and on claimant's clothing and sheets (id. at 39). In the subsequent days, claimant continued to bleed from his nose and ears (id. at 36).

In October 2023, claimant was issued two misbehavior reports. The first misbehavior report charged claimant with violent conduct, assault on staff, interference with an employee, refusing a direct order, and refusing a search or frisk on September 5, 2023 (id. at 42). The second misbehavior report charged claimant with possession of contraband in his cell on September 5, 2023 (id. at 43). After a disciplinary hearing, claimant was found guilty of all charges (id. at 46). As of the date of the Notice of Intention to File a Claim, claimant's appeal of the determination was pending.^[FN2]

The State moves to dismiss the claim pursuant to CPLR 3211 (a) on the basis that the Notice of Intention to File a Claim, that was timely served upon the State on December 5, 2023, does not meet the jurisdictional requirements of Court of Claims Act § 11 (b) because it fails to set forth the State's alleged negligence with particularity.^[FN3] Thus, the State argues that the Notice [*5]of Intention to File a Claim did not extend the time within which to serve and file a claim under Court of Claims Act § 10 (3) and, as a result, the service and filing of the claim on September 5, 2024 was untimely and therefore the claim warrants dismissal (Attorney's Affirmation in Support, Ex. A).

Claimant opposes the motion and argues that the Notice of Intention to File a Claim is sufficiently specific to meet the jurisdictional requirements of Court of Claims Act § 11 (b). Claimant further argues that the claim, which was served and filed on September 5, 2024, within two years after the accrual of the claim on September 5, 2023, was timely served and filed under Court of Claims Act § 10 (3). Thus, claimant argues that the claim does not warrant dismissal based upon untimeliness.

The service requirements set forth in Court of Claims Act §§ 10 and 11 are jurisdictional in nature and require strict compliance as a precondition of suit against the State (see Dreger v New York State Thruway Auth., 81 NY2d 721, 724 [1992]). A failure to comply with any of the service provisions of the Court of Claims Act is a jurisdictional defect compelling the dismissal of the claim (see Kolnacki v State of New York, 8 NY3d 277, 281 [2007]; Welch v State of New York, 286 AD2d 496, 497-498 [2d Dept 2001]). Court of Claims Act § 10 (3) provides that a claim of negligence against the State must be served and filed within 90 days after the accrual of the claim, unless within such time a Notice of Intention to File a Claim is served upon the State, in which event the claim shall be served and filed within two years after the accrual of the claim. Thus, a critical issue in this matter is whether the Notice of Intention to File a Claim met the jurisdictional requirements set forth in Court of Claims Act § 11 (b) so as to extend the time within which to serve and file the claim under Court of Claims Act § 10 (3).

Court of Claims Act § 11 (b) provides that the Notice of Intention to File a 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 State is not required to ferret out or assemble information that section 11 (b) obligates claimant to allege (see Lepkowski v State of New York, 1 NY3d 201, 208 [2003]).

Recently, in Johnson v State of New York (231 AD3d 793 [2d Dept 2024]), the Second Department addressed the issues of whether a Notice of Intention to File a Claim was sufficiently detailed to meet the requirements of Court of Claims Act § 11 (b) and could be treated as a claim under Court of Claims Act § 10 (8) (a). The Second Department determined both issues in favor of the claimant. In its reasoning, the Second Department noted that Court of Claims Act § 11 (b) does not require " 'absolute exactness' " and that the " 'guiding principle' " of Court of Claims Act § 11 (b) is whether the State is " 'able to investigate the claim promptly and to ascertain its liability under the circumstances' "(id. at 794 [citations omitted]). The Second Department further noted that, as was held in Martinez v State of New York (215 AD3d 815, 817 [2d Dept 2023]) and Rodriguez v State of New York (8 AD3d 647, 647 [2d Dept 2004]), the Notice of Intention to File a Claim should provide " 'an indication of the manner in which the claimant was injured and how the State was negligent, or enough information so that how the State was negligent can be reasonably inferred' " (Johnson, 231 AD3d at 794 [citations omitted]).

In the instant case, the Court has carefully reviewed the 11-page Notice of Intention to File a Claim and finds that it is sufficiently detailed to meet the jurisdictional requirements of Court of Claims Act § 11 (b). In that regard, the Court finds that the Notice of Intention to File a Claim sets forth the time when and the place where the claim arose, the nature of same, the injuries claimed to have been sustained, the details of the manner in which claimant was injured and how the State was negligent, or enough information so that how the State was negligent can be reasonably inferred (see Johnson, 231 AD3d at 794).

Specifically, the Notice of Intention to File a Claim sets forth that on September 5, 2023, at approximately 6:00 p.m., Correction Officers J. Franco and Z. Torres searched claimant's cell on H gallery at Sing Sing and, after confronting claimant inside his cell, they brutally assaulted claimant without provocation. Additional correction officers, including Correction Officer Santiago, joined in the attack upon claimant inside his cell. The attack did not stop until Sergeant Alvarado and others on duty responded to the scene and the correction officers were directed to stop (Attorney's Affirmation in Support, Ex. A, ¶¶ 15-22). A video recording was made of the correction officers transporting claimant from his cell to SHU and photographs of claimant were taken of claimant when he arrived at SHU (id. at 21-22). Claimant was treated by Nurse Glukham at Sing Sing and then transported to Mt. Vernon Hospital for X-rays, CT scans, and further medical treatment (id. at 23, 26-28).

The Court finds that the Notice of Intention to File a Claim, which sets forth the details of the attack upon claimant, the manner in which claimant was injured, the names of the correction officers, the response by Sergeant Alvarado, and the subsequent medical treatment rendered to claimant at Sing Sing and Mt. Vernon Hospital, provided enough information for the State to promptly investigate the claim to ascertain its liability under the circumstances and to reasonably infer the State's vicarious liability for the attack upon claimant, the State's negligence in its failure to intervene to prevent or to mitigate the attack, and/or the State's negligent hiring, training, supervision and retention of the State employees involved in the incident.

The Court reaches a similar conclusion with regard to the allegations of the Notice of Intention to File a Claim regarding the incidents that allegedly occurred on September 8 and 9, 2023. In that regard, the Court notes that the Notice of Intention to File a Claim alleges that on the aforenoted dates, as claimant was sleeping in room A202 with a blanket covering his face, he was awakened by a vicious beating by correction officers who forcefully held the blanket over claimant's face as they hit claimant with closed fists and told him to stay quiet (id. at 31, 33). As a result of the alleged beatings, claimant's clothing and sheets were noticeably bloody and on September 11, 2023, Sergeant Alvarado allegedly conveyed to claimant that the beatings would cease and Alvarado directed that claimant be provided with clean sheets and clothing (id. at 35). It is further alleged that claimant's medical records indicate that in the early afternoon of September 11, 2023, Nurse Stewart observed a trail of dried blood on the floor and on claimant's clothing and sheets (id. at 39).

The Court finds that the Notice of Intention to File a Claim, which sets forth the details of the two incidents, the manner in which claimant was injured, claimant's noticeably bloody clothing and sheets, and the response by Sergeant Alvarado, provided enough information for the State to promptly investigate the claim to ascertain its liability under the circumstances and to reasonably infer the State's vicarious liability for the attacks upon claimant, the State's negligence in its failure to intervene to prevent or to mitigate the attacks, and/or the State's negligent hiring, training, supervision, and retention of the State employees involved in the two [*6]incidents.

Thus, contrary to the arguments advanced by the State, the Court finds that the Notice of Intention to File a Claim met the jurisdictional requirements of Court of Claims Act § 11 (b) and thus operated to extend the time within which to serve and file the claim under Court of Claims Act § 10 (3). Accordingly, the claim served and filed on September 5, 2024 was timely served and filed within two years after the accrual of the claim on September 5, 2023 and therefore does not warrant dismissal based upon untimeliness (Court of Claims Act § 10 [3]).

A claim was served and filed on September 5, 2024 alleging essentially the same facts as set forth in the Notice of Intention to File a Claim (Attorney's Affirmation in Support, Ex. B). Additionally, the claim alleges the following causes of action: (1) battery; (2) negligent failure to intervene to prevent or to mitigate the attacks upon claimant; and (3) negligent supervision, hiring, training, and retention of the correction officers (id. ¶¶ 68-100).

The State moves to dismiss the claim pursuant to CPLR 3211 (a) (7). Specifically, the State argues that the battery cause of action fails to allege that the correction officers were acting within the scope of their employment or in furtherance of the State's interests, which is a necessary element of a cause of action alleging that the State is liable for any battery committed by its correction officers. Rather, the State argues that the claim alleges that the correction officers were engaged in an illegal scheme to further their own interests and not the interests of the State and therefore the State argues that the cause of action alleging battery warrants dismissal as a matter of law.

As to the causes of action alleging negligent hiring, training, supervision, and retention of the correction officers, the State argues that the claim warrants dismissal because it fails to allege that the correction officers were not acting within the scope of their employment, which is a necessary element of said causes of action.

Finally, the State argues that the cause of action alleging that the State failed to intervene is a federal constitutional tort claim which is not within the jurisdiction of the Court of Claims.

Claimant opposes the State's motion and argues that the claim is sufficiently plead as to all the causes of action asserted. Claimant further argues that it is permissible to plead alternative causes of action, such as the State's vicarious liability for the battery committed by the correction officers while on duty and acting within the scope of their employment and to also plead, "[i]n the alternative to the allegations in the prior causes of action[,]" that the correction officers were "acting outside the scope of their employments" and as a consequence of the State's negligent hiring, training, and retention of the correction officers (id. at 98). Claimant further argues that whether he will ultimately prevail on the causes of action alleged is not to be considered on the State's pre-discovery motion to dismiss the claim pursuant to CPLR 3211. Finally, claimant argues that the cause of action alleging that the State was negligent in its failure to intervene to prevent or to mitigate the attacks upon claimant does not warrant dismissal as a federal constitutional tort claim because claimant is not alleging a federal constitutional tort claim. Rather, claimant is alleging that the State was negligent in its failure to intervene to prevent or to mitigate the attacks upon claimant.

As previously noted, the purpose of the pleading requirements of Court of Claims Act § 11 (b) is to provide a sufficiently detailed description of the particulars to enable the State to investigate and promptly ascertain the existence and extent of its liability (see Kimball Brooklands Corp. v State of New York, 180 AD3d 1031, 1032 [2d Dept 2020]; Sinski v State of [*7]New York, 265 AD2d 319, 319 [2d Dept 1999]). The Court of Appeals has instructed that on a motion to dismiss brought pursuant to CPLR 3211, the pleading is to be afforded a "liberal construction" (Leon v Martinez, 84 NY2d 83, 87 [1994]). A court must "accept the facts as alleged in the [claim] as true, accord [claimants] the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory" and " 'the criterion is whether the proponent of the pleading has a cause of action, not whether he has stated one' " (id. at 87-88 [citations omitted]). Whether the claim will later survive a motion for summary judgment or whether claimant will be ultimately able to prove the allegations of the claim " 'plays no part in the [Court's] determination of a prediscovery CPLR 3211 motion to dismiss' " the claim (Pergament v Government Empls. Ins. Co. ["GEICO"], 225 AD3d 799, 800 [2d Dept 2024]).

Accordingly, contrary to the State's arguments, the Court finds that, upon a liberal reading of the allegations of the facts alleged in the claim and accepting them as true, the claim is sufficiently detailed to state a cause of action alleging that the State is vicariously liable for the battery committed by the correction officers on duty at Sing Sing on September 5, 8 and 9, 2023 when they were allegedly acting within the scope of their employment and to also plead, in the "alternative" and based upon the same alleged facts, that the correction officers were acting outside the scope of their employment and as a consequence of the State's negligent hiring, training, supervision, and retention of the correction officers (Attorney's Affirmation in Support, Ex. B, ¶ 98; see CPLR 3014; McCarthy v Mario Enters., Inc., 163 AD3d 1135, 1137 [3d Dept 2018] [Claim did not directly allege that employee was acting within the scope of employment when he punched the plaintiff; however even if such allegation was included in the allegations of vicarious liability, the claim for negligent hiring and supervision did not warrant dismissal because the plaintiff may plead inconsistent theories in the alternative]; Kerzhner v G4S Govt. Solutions, Inc., 138 AD3d 564, 565 [1st Dept 2016] [While the allegation that the employee was acting within the scope of his employment and other allegations of vicarious liability are incompatible with the allegations of negligent hiring, supervision, and training, dismissal was not required because a plaintiff may plead alternative, inconsistent theories]; Pickering v State of New York, 30 AD3d 393, 394 [2d Dept 2006] [The allegations of the claim, as amplified by the bill of particulars, were sufficiently broad to include causes of action for negligent hiring and/or negligent training, and, in this early stage of the proceeding, without a clear concession by the defendant that the officer acted within the scope of his employment, claimants were entitled to plead incompatible theories of recovery in the alternative]).

Additionally, the Court finds that the allegations of the claim are sufficiently detailed to enable the State to investigate and promptly ascertain the existence and extent of its liability and whether claimant will ultimately be able to prove the allegations of the claim is not a factor to be considered on the State's CPLR 3211 motion before the Court (see Brown v State of New York, 220 AD3d 703 [2d Dept 2023][The Court of Claims erred in dismissing a claim pursuant to CPLR 3211 (a) where it was held by the Appellate Division that the failure to provide a detailed explanation in the claim as to how the State received notice of the alleged abuse is not necessary to enable the State to investigate the claim]; Martinez, 215 AD3d at 819 [Causes of action alleging negligent hiring, retention or supervision are not statutorily required to be plead with specificity and the manner in which the State acquired actual or constructive notice of the alleged abuse is an evidentiary fact to be established at trial and not a pleading requirement]; Galloway v State of New York, 194 AD3d 1151, [3d Dept 2021][Court of Claims erred in [*8]dismissing claim, as a matter of law, where it was alleged that the correction officers on duty at a correctional facility had intentionally and maliciously beat an incarcerated individual during a pat-frisk after the incarcerated individual had lodged a complaint against one of the correction officers]; J.R. v State of New York, 82 Misc 3d 1236 [A] [Ct Cl 2024] [The State's arguments that the proposed amendment to the claim was patently devoid of merit, where the cause of action alleged the State's vicarious liability for the sexual abuse of an incarcerated individual by correction officers on duty at a correctional facility, was held to be more appropriately raised in a summary judgment motion after discovery had been completed and not at the pleading stage of the litigation]). Thus, the Court does not find the State's arguments advanced to be persuasive regarding its motion to dismiss the aforenoted causes of action pursuant to CPLR 3211 (a) (7).

As to the cause of action alleging a failure to intervene, the State correctly argues that the Court of Claims does not have subject matter jurisdiction over a cause of action alleging that claimant's federal constitutional rights were violated by a failure to intervene (see Lyles v State of New York, 2 AD3d 694 [2d Dept 2003], affd 3 NY3d 396 [2004]). In the instant case, however, the Court finds that, based upon a liberal reading of the claim, the claim is not alleging a federal constitutional tort. Rather, the Court finds that the claim alleges that the State was negligent in its failure to intervene to prevent or to mitigate the attacks upon claimant. Thus, the Court finds that the cause of action does not warrant dismissal as it alleges common law negligence and not a federal constitutional tort (see Bowden v State of New York, 82 Misc 3d 1232 [A] [Ct Cl 2024] [In a correctional facility assault case, the State's motion to dismiss the cause of action alleging the State's failure to intervene, on the basis that the cause of action alleged a federal constitutional tort over which the Court of Claims does not have jurisdiction, was denied and the cause of action was found to be a state common law claim of negligence in the State's failure to intervene and not a federal constitutional tort claim]). In sum, the Court does not find the State's arguments advanced to be persuasive regarding its motion to dismiss the aforenoted cause of action pursuant to CPLR 3211 (a).

Accordingly, the State's motion to dismiss the claim is DENIED in its entirety.