The following papers numbered 1-3 were read and considered by the Court on the State's pre-answer motion to dismiss those allegations of the fifth cause of action which assert a state constitutional tort claim:

Notice of Motion, Attorney's Supporting Affirmation and Exhibit 1

Attorney's Affirmation in Opposition 2

Attorney's Reply Affirmation 3

This claim arises out of an incident that occurred on March 12, 2023, during claimant's incarceration at Bedford Hills Correctional Facility (Bedford) when an incarcerated individual allegedly directed an attack upon claimant by another incarcerated individual who had multiple infectious diseases and then that individual allegedly assaulted, battered and bit claimant without provocation (Ex. A). A number of correction officers attempted to intervene during the alleged attack. Those correction officers were allegedly negligent, reckless and careless in their efforts and assaulted, battered and sprayed claimant with pepper spray.

The claim asserts five causes of action and the State moves to dismiss portions of the fifth cause of action as set forth below.

The first cause of action alleges negligence and negligence per se by the State for the actions of New York State Department of Corrections and Community Supervision (DOCCS) employees involved in the incident. Specifically, it is alleged, inter alia, that the State should have known that said employees would engage in such conduct and the State failed to properly train, supervise, remove, discipline, or terminate them (id., ¶¶ 39-55). It is also alleged that the State was negligent in failing to design a facility that could properly monitor any misconduct by video, to ensure that the video equipment was operational, and to preserve the video recording (id. at 46-48).

The second cause of action alleges that the correction officers who acted to separate claimant from her attacker, battered claimant and inflicted bodily contact to her in a negligent, careless and reckless manner (id. at 56-62).

The third cause of action alleges negligent infliction of emotional distress by DOCCS staff (id. at 63-71).

The fourth cause of action alleges that the State was negligent in its hiring, training, supervision, and retention of its staff, despite numerous prior incidents of violence and misconduct at the facility (id. at 72-76).

The fifth cause of action provides in pertinent part:

"[t]he acts and omissions identified herein violated Claimant's rights pursuant to New York State Constitution Article I, Sections Five (punishments), Six (protection of certain enumerated rights), Eight (freedom of speech), Nine (right to assemble and petition), Eleven (equal protection of laws; discrimination in civil rights prohibited), Twelve (security against unreasonable searches, seizures and interceptions), et seq."

(id. at 78). The fifth cause of action further alleges that Bedford is the only maximum security correctional facility provided by the State for females and there is no alternative maximum security housing similar to what the State provides for male incarcerated individuals. This has led to the inability of claimant to transfer out of Bedford and into another maximum security correctional facility after reporting the incident and has subjected claimant to repeated retaliatory conduct while housed at Bedford. The retaliation has been manifested in repeated, unwarranted searches of claimant's cell, the denial of appropriate medical care and treatment to claimant, and claimant's transfer out of the honor housing block, unlawfully and without due process, and into housing near claimant's attackers who taunted claimant and spit into her cell.

The State moves to dismiss that portion of the fifth cause of action which alleges a state constitutional tort. The State argues that a state constitutional tort remedy will not be implied where claimant has an adequate remedy at law. In that regard, the State notes that paragraphs 88 through 96 of the fifth cause of action allege a cause of action in medical malpractice and the State does not seek dismissal of the medical malpractice cause of action (Supporting Affirmation ¶ 12). Additionally, the State argues that claimant's allegations in paragraph 105, that claimant was unlawfully and without due process removed from her honor block housing, may be addressed in a CPLR article 78 proceeding in New York State Supreme Court and that claimant's allegations in paragraphs 81 through 84, that claimant suffered retaliation at Bedford due to her inability to transfer to another maximum security facility available to female incarcerated individuals, may be addressed in a federal court action alleging a violation of claimant's federal constitutional rights (id.).

Claimant opposes the motion and argues that, notwithstanding the State's arguments regarding other remedies available to claimant, the alleged state constitutional torts are viable and do not warrant dismissal prior to discovery.

In Brown v State of New York (89 NY2d 172, 189 [1996]), the Court of Appeals held that it was "necessary and appropriate" on the facts presented to recognize an implied state constitutional tort remedy to recover damages against the State in the Court of Claims for violations of the equal protection and search and seizure clauses of the state constitution to ensure the full realization of those constitutional rights. The Court of Appeals made clear that the "narrow remedy" established in Brown (89 NY2d) "is not boundless" and "cannot be stretched to fit the facts" of every case (Martinez v City of Schenectady, 97 NY2d 78, 83 [2001], citing Brown, 89 NY2d at 192).

In the case at bar, the Court finds that the recognition of a constitutional tort remedy is neither necessary nor appropriate on the facts alleged because claimant has adequate remedies at law to address the alleged wrongs set forth in her fifth cause of action, such as a cause of action for medical malpractice, which is alleged within the fifth cause of action, a CPLR article 78 proceeding in New York State Supreme Court and a federal court action alleging a violation of claimant's federal constitutional rights (see Martinez, 97 NY2d; Brown, 89 NY2d; Cumberland v State of New York, 217 AD3d 1029, 1031 [3d Dept 2023] [State's motion to dismiss state constitutional tort claim was properly granted where the recognition of a constitutional tort remedy was neither necessary nor appropriate because the alleged wrongs could have been addressed in another forum in a CPLR article 78 proceeding or a federal civil rights action]; Jones v State of New York, 171 AD3d 1362 [3d Dept 2019] [State constitutional tort claims [*2]were properly dismissed where claimant had other available remedies in federal court and pursuant to a CPLR article 78 proceeding challenging DOCCS' administrative determinations and that the misbehavior reports were retaliatory]).

Accordingly, the State's motion to dismiss so much of the fifth cause of action as alleges a state constitutional tort claim is GRANTED and the State shall serve and file a Verified Answer to the claim within 45 days of the file-stamped date of this Decision and Order.