Claimant, an inmate in the custody of the Department of Corrections and Community Supervision (DOCCS), seeks damages for personal injuries allegedly inflicted by correction officers at Mid-State Correctional Facility (Mid-State) on September 18, 2016. The trial of this matter was bifurcated and this decision pertains solely to liability.

Claimant testified at trial that he was brutally assaulted by Correction Officers Frank and Showa in cell 10-1-11 of the small Special Housing Unit (SHU) at Mid-State. At approximately 2:00 p.m. on September 18, 2016, claimant was talking to other SHU inmates. Correction Officer Frank walked by his cell, informed claimant there was no talking in the SHU and to "shut the F up" (Tr. 25).^[FN1] Claimant responded that there was no such rule, and that the officer's order violated his rights under the First Amendment. Officer Frank, now visibly upset, responded "well, you want to be a F'ing tough guy," and told claimant he would be back (Tr. 26). Two to three minutes later, Officer Frank returned with Correction Officer Showa. Both wore leather [*2]gloves which, according to the claimant, indicated to him that they intended to assault him in his cell. When claimant saw them approach, he quickly tied a sheet from the cell-door window grate to the bed frame in an attempt to prevent their entry into his cell. According to the claimant, the two correction officers entered his cell, Correction Officer Frank grabbed his right arm, punched him in the ribs two to three times and cut his shoulder with a metal object, which claimant speculated may have been the cell key. Correction Officer Showa then grabbed his left arm, which was in a sling, claimant fell onto the bed, and the assault by Correction Officers Frank and Showa continued with punches and kicks to his body. Claimant, who had recently undergone shoulder surgery, testified he was screaming "at the top of my lungs" when they yanked, pulled and twisted his arms behind his back in order to place him in handcuffs and then proceeded to drag him 35-40 feet to the "cage," which claimant described as a holding pen (Tr. 30-31).^[FN2] Once in the holding pen, Officer Frank informed claimant that he would issue him a Misbehavior Report for assault on staff unless he agreed to say he injured himself by "running myself into my cell door" (Tr. 32). Claimant testified that, because he was scared and to avoid a Tier III infraction, he agreed to Officer Frank's proposal and, when a nurse came to the holding pen, claimant told her that he was injured when he ran into his cell door. Indeed, an Inmate Injury Report reflects the cause of injury as "I/M was running into cell door [with] both shoulders & head" (Exhibit 7). A notation also appears on the report that the inmate agrees with the above and that the reporting employee was V. Santos. At trial, claimant agreed that this is what he told Sergeant Santos.

Claimant testified that he came to conclude that the officers who assaulted him should be held accountable and, so, on September 23, 2016 he gave a lieutenant a note addressed to DOCCS' Acting Commissioner Anthony Annucci (Exhibit 13) in which he revealed that he had been assaulted by correction officers for "talking on the gate" (id.). He concluded the note with a statement that "I could not tell any high authority while I am still in this cell in fear of my life. H.E.L.P." (id.). Claimant testified that he was immediately taken to the medical department where an Inmate Injury Report was again completed (Exhibit 8). This time, the report reflects claimant's statement that he was "beaten" by Correction Officer Frank and another correction officer for "talking on the gate" (id.). The report notes multiple areas of bruising on his body. On September 28, 2016, claimant was approached by Correction Officer Warner who offered him a transfer out of the small SHU in exchange for a letter stating he was not assaulted as he had alleged. Claimant wrote such a letter on September 29, 2016 in which he stated he was not assaulted by Correction Officer Frank or any other officer (Exhibit C). A "note" at the bottom states "I did run myself into my cell door" (id.). Claimant testified that he was transferred out of the SHU approximately 30 minutes later. After his transfer, claimant wrote a second letter, this one to Superintendent Ward, informing him that he wrote the letter he authored on September 29th in order to obtain a transfer out of the SHU.

Correction Officer Showa testified, contrary to the claimant, that he and Officer Frank entered claimant's cell because claimant was threatening self-harm and had the window covered [*3]and a sheet tied from the cell-door window to the bed frame.^[FN3] According to Officer Showa, he and Correction Officer Frank entered claimant's cell, claimant complied with his directive to place his hands on the back wall of his cell, was handcuffed behind his back and brought to the holding pen in the kitchen without incident. After claimant was secured in the holding pen, Sergeant Santos was notified and arrived sometime later.

Defendant called Correction Officer Kurt Frank to testify on its behalf. Officer Frank testified that although he had only a vague recollection of the incident, he remembered being called by Officer Showa to bring the keys to open claimant's cell. He retrieved the keys from the office and proceeded to the gallery where Officer Showa was located outside claimant's cell. Officer Showa relayed that the claimant had made threats of self-harm and he observed a towel or green cloth on the cell door window. He and Officer Showa ordered the claimant to remove the obstruction and, having failed to receive a response, proceeded to unlock the cell and force the door open. Upon entering the cell, Officer Frank ordered the claimant to lay on the floor and applied handcuffs behind his back. The officers then assisted the claimant to his feet and brought him to a holding pen. Officer Frank testified that the claimant was not aggressive and there was no indication once they entered the cell that claimant was trying to hurt himself. After he was placed in the holding pen, however, claimant became verbally abusive and thrashed about, butting his head against the holding pen walls and kicking the door. Officer Frank directed the claimant to stop, but he failed to comply.

Sergeant Vincent Santos testified that on the date in question he received a call and responded to Building 10 where he observed sheets tied to the claimant's cell door and interviewed claimant in the holding pen. Claimant told him that his mental health had not been good, that he wanted to hurt himself and ran into his cell door with his arm and shoulder in an effort to prevent correction officers from entering. Sergeant Santos testified that he spoke to Officers Frank and Showa after interviewing the claimant and that they also stated that the claimant charged his cell door, running into the door with his arm and shoulder in an attempt to prevent their entry. Neither officer related any information concerning the claimant running into the walls of the holding pen or that he did anything unusual while confined in the pen.

Sergeant Santos also testified that while it is not proper for a correction officer to enter an inmate's cell for the purpose of disciplining the inmate, it is proper when an inmate is threatening self-harm. He agreed that an inmate's conduct in blocking the window of a cell is a rule violation for which a Misbehavior Report could have been written and he confirmed that correction officers are issued both leather gloves and latex gloves for daily use. Sergeant Santos stated it would be proper for correction officers to wear leather gloves for protection during the course of a cell frisk or in the event of an emergency.

Claimant seeks recovery on his causes of action for assault and battery, DOCCS' negligent failure to intervene, and negligent hiring, training and supervision of its employees.

"Battery is the unjustified touching of another person, without that person's consent, with the intent to cause a bodily contact that a reasonable person would find offensive; '[a]ssault [*4]involves putting a person in fear of a battery' " (Rivera v State of New York, 34 NY3d 383, 389 [2019], quoting Jeffreys v Griffin, 1 NY3d 34, 41 n 2 [2003]; see also Silipo v Wiley, 138 AD3d 1178, 1182 [3d Dept 2016]; Bastein v Sotto, 299 AD2d 432, 433 [2d Dept 2002]). There is no requirement, however, that the contact be intended to cause harm (Relf v City of Troy, 169 AD3d 1223, 1226 [3d Dept 2019]). In the prison environment, the use of force is specifically permitted "in self defense, or to suppress a revolt or insurrection [and] . . . to maintain order, to enforce observation of discipline, to secure the persons of the offenders and to prevent any such attempt or escape" (Correction Law § 137 [5]). As set forth in 7 NYCRR § 251-1.2 (b), "[w]here it is necessary to use physical force, only such degree of force as is reasonably required shall be used." Assessment of the degree of necessary force requires consideration of the particular circumstances confronting officers at the time the force was applied (Diaz v State of New York, 144 AD3d 1220, 1222 [3d Dept 2016]; Shirvanion v State of New York, 64 AD3d 1113 [3d Dept 2009]; Bush v State of New York, 57 AD3d 1066 [3d Dept 2008]; Koeiman v City of New York, 36 AD3d 451 [1st Dept 2007], lv denied 8 NY3d 814 [2007]; Lewis v State of New York, 223 AD2d 800 [3d Dept 1996]; Bazil v State of New York, 63 Misc 3d 1216 [A], *3 [Ct Cl, 2019]). The State is not immune from liability for an assault and battery when an officer uses more force than is necessary to perform his or her duty (Arteaga v State of New York, 72 NY2d 212, 220-221 [1988]; Jones v State of New York, 33 NY2d 275 [1973], rearg dismissed 55 NY2d 878 [1982]; Barnes v State of New York, 89 AD3d 1382 [4th Dept 2011], lv denied 92 AD3d 1267 [4th Dept 2012], lv dismissed 19 NY3d 949 [2012]).

The testimony and other proof at trial presented a classic case of conflicting narratives. Claimant testified he was assaulted by Officers Frank and Showa in his cell after being reprimanded by Frank. Then, despite wearing a sling and screaming in pain when his arms were placed behind his back to be handcuffed, claimant, who had shoulder surgery one month earlier, was dragged from his cell suspended by both arms and placed in the holding pen. He was then approached by Officer Frank who offered not to charge him if he stated his injuries were self-inflicted, which he did. When he later recanted he was approached by Correction Officer Warner who offered claimant a transfer from the SHU if he wrote a letter again stating that his injuries were self-inflicted. Claimant authored such a letter and was transferred out of the SHU.

Correction Officers Showa and Frank testified that claimant covered the window of his cell and was heard threatening self-harm. In response the officers forced open the cell door, handcuffed the claimant's hands behind his back and placed him in the holding pen. Although claimant had to that point been compliant, once in the holding pen he became agitated and verbally abusive, thrashing about and butting his head and shoulders against the pen bars.

The divergent proof presented at trial requires close examination of issues pertaining to the credibility of the testimony provided. First, both Officer Frank and Officer Showa testified claimant injured himself by running into the walls of the holding pen following his confinement there. Claimant testified he agreed with Correction Officer Frank that he would state that he injured himself by running into his cell door in return for Frank not filing assault on staff charges against him. Sergeant Santos interviewed Officers Frank and Showa following the incident involving the claimant and testified that both officers, as well as the claimant, informed him the [*5]claimant injured himself by running into the door of his cell.^[FN4] When asked on direct examination whether either officer stated that they observed the claimant repeatedly running into the walls of the holding pen he responded "[n]ot in the holding pen, no" (Tr. 143).

Second, despite their testimony that the claimant's injuries were incurred when he repeatedly and violently threw himself against the holding pen bars, none of the three memoranda individually prepared by Officers Showa and Frank recount this event. Neither the original To-From memoranda of Officers Frank (Exhibit 4) and Showa (Exhibit 3) dated September 18, 2016 nor the two memoranda each officer authored thereafter mentioned claimant's alleged self-injurious behavior. While both officers denied assaulting the claimant in their subsequent memoranda, none of the memos reported that the claimant's injuries arose when he slammed his head and shoulders into the holding pen bars as they testified at trial; this despite the testimony of both that they personally observed the claimant's actions.

Finally, the claimant, who had shoulder surgery to repair his left rotator cuff on August 17, 2016, one month prior to the alleged assault, testified that he screamed "at the top of my lungs" when his arms were pulled behind his back to be handcuffed and while being taken to the holding pen (Tr. 30). In his To-From memorandum, dated September 18, 2016, Correction Officer Frank reported:

"I then forced the door open and directed the inmate to lay on the floor he complied I then placed mechanical restraints on him and escorted the inmate to the 10-1 holding pen without incident" (Exhibit 4).

While no substantive medical testimony was received at trial, in the Court's view such proof is unnecessary to conclude that it is much more likely that an individual who underwent shoulder surgery one month prior would scream at the top of his lungs while being handcuffed with his hands behind his back than he would be to withstand such treatment without apparent effect or comment as testified to by Officers Frank and Showa, both of whom acknowledged at trial that the claimant's hands were secured behind his back. Moreover, the question whether an individual who had recently undergone such a procedure would purposefully run into metal bars with his head and shoulders raises additional credibility issues. The Court notes in this regard that the Inmate Injury Report prepared following the incident (Exhibit 7) notes bruising on both claimant's right shoulder and his surgically repaired left shoulder. In addition, Officer Showa testified at his deposition that the claimant "was backing up and repeatedly running into the cage," pivoting to the side, while handcuffed, and using both shoulders to strike the metal holding pen door (Exhibit 25, pp. 55-59).

The Court determines the issue of credibility against the defendant and concludes that, upon the proof presented, claimant established the use of excessive force by a preponderance of the credible evidence. The Court is not dissuaded in its conclusion by either the claimant's statements to Sergeant Santos that he injured himself or his correspondence recanting his accusations against Correction Officers Frank and others (Exhibit C). Claimant testified that his actions were taken in the first instance at the behest of Officer Frank who offered, as an incentive, to withhold issuance of a charge of assaulting staff. The Court notes that no [*6]misbehavior report was issued and no charges were filed against the claimant; whether for assaulting staff, failing to comply with the officers' direct orders to open his cell door, creating a disturbance, obstructing the window of his cell or any other infraction. In the second instance, claimant asserted Officer Warner offered him a transfer out of the SHU in return for correspondence denying he was assaulted by Frank and Showa. Claimant testified without contradiction that he was removed from the SHU within thirty minutes of authoring the correspondence. Crediting the claimant's version of the events, the Court concludes he was the victim of assault and battery by Officers Frank and Showa.

The Court will next address the defendant's contention that the State may not be held vicariously liable for the assault and battery alleged in this claim. The doctrine of respondeat superior renders employers vicariously liable for the torts of their employees committed within the scope of their 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" (Judith M. v Sisters of Charity Hosp., 93 NY2d 932, 933 [1999]). The test is not whether or not 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 [1979] [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 [1987]). 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 [1957] [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 Rivera v State of New York, 34 NY3d 383, supra; N.X. v Cabrini Med. Ctr., 97 NY2d 247 [2002]; Judith M. v Sisters of Charity Hosp., 93 NY2d 932 [1999]; Stevens v Kellar, 112 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 [1st Dept 1984]). The determination of 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, 679-680 [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 Court has no trouble concluding that the intentional conduct of the correction officers was performed in the ordinary course of their employer's business.^[FN5] The incident arose, according to the claimant whose testimony is credited, after claimant disputed the propriety of Officer Frank's order directing him to stop talking. The response of Officers Frank and Showa in assaulting the claimant, though inappropriate, was in furtherance of their employer's interest in maintaining peace and order within the prison. Although the assault and battery may have gone beyond the strict line of duty and violated the applicable statute and regulation, such lack of judgment was a misguided attempt to fulfill DOCCS' mission of maintaining order within the prison (see Rivera v State of New York, 34 NY3d at 391 [abusive conduct "will not fall outside the scope of employment merely because it violates department rules or policies or crosses the line of sanctioned conduct"]; see also Sims v Bergamo, 3 NY2d at 535). The fact that the assault and battery was unsanctioned and not the most effective means of accomplishing this purpose does not exclude it from the scope of the correction officers' employment.

The Court of Appeals' recent decision in Rivera v State of New York (34 NY3d 383) does not require a different result. There, the correction officers' attack on an inmate consisted of mocking his medically-issued protective helmet and ultimately removing his helmet and assaulting him. The beating was not in furtherance of their employer's interest but "was a malicious attack completely divorced from the employer's interests" (id. at 391). Here, by contrast, the attack followed what correction staff perceived to be a violation of the no talking policy and the claimant's failure to comply with a direct Order. Inasmuch as the "[c]ustody and control of inmates and the maintenance of prison safety and security are the primary duties and responsibilities of correction officers" it cannot be said that their conduct in this case was outside the scope of their employment (Cepeda v Coughlin, 128 AD2d 995, 997 [3d Dept 1987], appeal denied 70 NY2d 602 [1987]). Unlike the facts in Rivera, the attack at issue herein was not undertaken in satisfaction of a purely personal motive nor did it otherwise constitute an abandonment service.

Defendant's motion for dismissal of claimant's causes of action for negligent failure to intervene, and negligent hiring, training and supervision is granted as no evidence was adduced in support of these causes of action.

Based on the foregoing, the Court finds that claimant established, by a preponderance of the credible evidence, the use of excessive force and defendant's vicarious liability for same. The Court further finds defendant is 100% liable for claimant's injuries.

All motions on which the Court may have previously reserved decision or which were not previously determined are hereby denied.

Let Interlocutory Judgment be entered accordingly.