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 Exhibits 2

Attorney's Reply Affirmation 3

Preliminarily, claimant does not oppose that branch of the State's motion to dismiss, brought pursuant to CPLR 3211 (a) (2), seeking dismissal based upon the Court of Claims lack of subject matter jurisdiction over the causes of action alleging the State's deliberate indifference to claimant's federal constitutional rights, intentional infliction of emotional distress, and the claim for punitive damages based upon the State's alleged gross negligence ground (NYSCEF Doc. No. 17, ¶¶ 9-11).

Accordingly, the State's motion to dismiss the aforenoted causes of action is GRANTED.

As to the state constitutional tort claim, the State argues that said cause of action warrants dismissal because it is neither necessary nor appropriate for this Court to imply a state constitutional tort claim because claimant has available alternative remedies. Claimant argues that, in the event that his other causes of action survive the State's motion to dismiss, he does not oppose the dismissal of the state constitutional tort claim (id. at 31).

It is well-established that a state constitutional tort claim is only available in narrow circumstances and will not be implied where claimant may have an adequate alternative remedy (see Martinez v City of Schenectady, 97 NY2d 78, 83-84 [2001]; Brown v State of New York, 89 NY2d 172, 188 [1996]). It is also noted that the adequacy of an alternative remedy does not depend upon the ability to collect upon that remedy (see Waxter v State of New York, 33 AD3d 1180, 1182 [2006]). In the case at bar, claimant has available adequate alternative remedies and therefore it is neither necessary nor appropriate for this Court to imply a state constitutional tort claim (see Blake v State of New York, 157 AD3d 1019 [3d Dept 2018]; Lyles v State of New York, 2 AD3d 694, 696 [2d Dept 2003]).

Accordingly, the State's motion to dismiss the state constitutional tort claim is GRANTED.

As to the remaining causes of action alleged in the claim, the State argues that they warrant dismissal pursuant to CPLR 3211 (a) (7) for failure to state a cause of action alleging negligence, negligent hiring, negligent retention, negligent training and supervision, assault, battery, excessive force, negligent infliction of emotional distress, and the failure to intervene.

In opposition, claimant argues that the aforenoted causes of action do not warrant dismissal because they are sufficiently pled and are not patently groundless, frivolous or legally deficient.

Court of Claims Act § 11 (b) provides that 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]). 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 New York, 265 AD2d 319, 319 [2d Dept 1999]).

Court of Claims Act § 11 (b) does not require " 'absolute exactness' " and 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' "(Johnson v State of New York, 231 AD3d 793 [2d Dept 2024] [citations omitted]). Additionally, the Court of Appeals has [*2]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] [citations omitted]).

In the instant case, the Court has carefully reviewed the 25-page claim and finds that, accepting the facts alleged as true, the claim is sufficiently detailed to meet the jurisdictional pleading requirements of Court of Claims Act § 11 (b) with regard to the causes of action alleging negligence, negligent hiring, negligent retention, negligent training and supervision, assault, battery, excessive force, negligent infliction of emotional distress, and the failure to intervene (NYSCEF Doc. No. 1).

In that regard, the Court finds that the 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 may be liable for negligence, negligent hiring, negligent retention, negligent training and supervision, assault, battery, excessive force, negligent infliction of emotional distress and the failure to intervene, or enough information so that how the State may be liable, based upon the aforenoted causes of actions, can be reasonably inferred (see Johnson, 231 AD3d at 794-795).

Specifically, the claim alleges that on December 5, 2022, at approximately 10:45 p.m., in the vicinity of 5 Building B-2 cell (also referred to as a "makeshift box" or "#2 cell makeshift box") at Sing Sing Correctional Facility, claimant was lawfully in his locked cell, the #2 makeshift box restrictive area, speaking to other incarcerated individuals through the cell bars, when claimant observed a female correction officer, Z. Philbert or Filbert, walking and holding a bucket for coffee and another bucket-type object (NYSCEF Doc. No. 1, ¶¶ 6-7, 28-29).^[FN1] Correction Officer Philbert then walked towards the correction officers' "bubble" where other correction officers were stationed and/or posted and then Correction Officer Philbert proceeded to walk towards claimant's cell (id. at 30). Without warning or provocation, Correction Officer Philbert approached claimant's locked cell and violently assaulted claimant by jerking a bucket of coffee towards claimant, through the cell bars, projecting coffee onto claimant and then immediately doing the same to claimant with a bucket of bleach and/or other harmful liquids, substances and/or chemicals, while yelling at claimant, "[D]ie in hell!" (id. at 6, 31-32). The liquids drenched claimant's face and went down his entire body to his feet and he allegedly suffered serious physical injuries, including burns to his face, body and eyes causing him severe pain and permanent injuries, permanent vision impairment, scarring and disfigurement, emotional distress, humiliation, anxiety and fear for his life and safety and other damages (id. at 6, 33, 55).

The claim further alleges that, "[a]t no time during this entire incident did other [c]orrection [o]fficers intervene to prevent Officer Filibert from putting these liquids in buckets, from having access to these dangerous liquids, from going to the emergency exit and certainly at no time did the other officers intervene to prevent or mitigate this specific attack on Claimant" (id. at 36). "Specifically, DOCCS [New York State Department of Corrections and Community Supervision] Correction Officers were in close proximity to the incident and/or witnessed the entire incident when it occurred but did nothing to prevent its occurrence nor stop it once it had begun" (id. at 37). It is further alleged that claimant was injured due to the negligence and deliberate indifference of the correction officers in the vicinity who failed to intervene in the attack upon claimant despite claimant's cries and screams for help (id. at 39-40).

Additionally, the claim alleges that, at the time of the incident, the State failed to adequately supervise and monitor claimant, thereby allowing claimant to be targeted by Correction Officer Philbert, who was allegedly negligently hired, retained and supervised by the State (id. at 12, 21). It is also alleged that the State was deliberately indifferent to claimant's safety and was negligent in safeguarding claimant and in failing to prevent or stop the assault upon claimant (id. at 21-22, 38). The State allegedly failed in its duty to "not enable, allow, condone, and/or authorize the commission of acts of violence against its [incarcerated individuals], including Claimant" (id. at 25). The alleged damages and injuries allegedly arose out of the alleged affirmative acts, omissions and failures of the corrections officers, including Correction Officer Philbert, who were under the direction, supervision, employment, authority, and control of the State and who failed to perform acts within the scope of their employment with the State (id. at 23-24). Assault, battery, excessive force, and negligent infliction of emotional distress are specifically plead and assert that Correction Officer Philbert used malicious and sadistic force with the intent to cause harm to claimant (id. at 139-142, 111, 113-114). It is further alleged, upon information and belief, that Correction Officer Philbert was involved in a prior incident wherein she attempted to set a fire in, near or around another incarcerated individual's cell/area and the State failed to conduct adequate screening, training and supervision of its correction officers and staff and failed to protect claimant from a reasonably foreseeable risk of harm (id. at 33-34, 66, 73, 87-99). The claim also alleges in the alternative that, in the event the State employees involved in the instant action were not acting within the scope of their employment, then they were negligently hired, retained, trained, and supervised (id. at 83).

The Court finds that the aforenoted 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 v State of New York, 215 AD3d 815, 819 [2d Dept 2023] [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 [*3]of Claims erred in 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 finds that the State's arguments advanced in support of its motion to dismiss to the aforenoted causes of action, pursuant to CPLR 3211 (a) (7), are not persuasive.

In sum, the Court finds that the claim, which sets forth the date, time, location and the details of the attack upon claimant, along with the manner in which claimant was injured, the name of Correction Officer Philbert who allegedly committed the attack upon claimant, the lack of any response by any of the correction officers who were proximity to the incident and may have witnessed the incident and may have heard claimant's cries and screams for help, is sufficiently specific to state a cause of action alleging negligence, negligent hiring, negligent retention, negligent training and supervision, assault, battery, excessive force, negligent infliction of emotional distress, and the failure to intervene (see 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, 395 [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]). 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]).

Accordingly, the State's motion to dismiss the causes of action alleging negligence, negligent hiring, negligent retention, negligent training and supervision, assault, battery, excessive force, negligent infliction of emotional distress, and the failure to intervene, for failure to state a cause of action, is DENIED.

Additionally, the Court finds that the allegations of the claim are sufficiently specific to [*4]allege a cause of action for negligent medical treatment. In that regard, the claim alleges that none of the correction officers in the vicinity responded to claimant's cries and screams for help to offer claimant aid and that it was not until the following day that Sergeant Mitchell approached claimant and brought him to the infirmary (NYSCEF Doc. No. 1, ¶ 40). The claim further alleges that claimant was not given an eye rinse "until the following day" (id.). According to the claim, the eye rinse was insufficient and inadequate treatment to decontaminate the liquid from claimant's eyes and claimant had to return to the infirmary four times before he received an eye solution that somewhat lessened the burning (id.). "Despite Claimant's stomach being completely burned, there was no proper medical attention to his stomach" (id.). Claimant was sent to the Special Housing Unit "despite the fact that he clearly needed urgent medical care" (id. at 41). "Upon information and belief, Dr. Alam put in a slip for Claimant to see an eye specialist but he was never sent" (id. at 49). "Upon information and belief, following being transferred to Cayuga Corr. Facility in early January of 2023, the prescription and directive to see an eye specialist was not honored" (id. at 50). "Upon information and belief, Dr. Perez in Cayuga medical prescribed Claimant to see an eye specialist but to date, that has not been honored" (id. at 51). "To date, Claimant continues to be in pain and in need of treatment, which included the need for treatment for his headaches, blurry vision, scarring, burns on his face, burns on his eyes, burns on his stomach, impaired vision, and other pain and disfigurement" (id. at 52). "Claimant has suffered permanent vision impairment, blurriness and trouble adjusting as a result of this incident as well as emotional and psychological damage and may require future surgeries and/or medical treatments for the scarring and other issues" (id. at 53). As a result, claimant has allegedly suffered "severe burns on his face and/or body as well as his eyes, causing him severe pain, permanent injuries and/or scarring . . . and possible need for surgery, permanent vision impairment and disfigurement, anxiety, fear for his life and safety, and mental and emotional distress" (id. at 55).

Accordingly, the State's motion to dismiss the cause of action alleging medical negligence is DENIED.