Defendant moves by Notice of Motion dated and filed on April 12, 2023, seeking an order: 1) dismissing the causes of action for intentional infliction of emotional distress, negligent failure to intervene, negligent hiring, retention and training, as well as Claimants' request for punitive damages; and 2) severing the remaining claims. The motion has been fully briefed.

Claimants have not opposed that portion of Defendant's motion seeking dismissal of the cause of action for intentional infliction of emotional distress or the request for punitive damages. Accordingly, the cause of action for intentional infliction of emotional distress, and the request for punitive relief are dismissed.

The Verified Claim in this action, filed on January 31, 2023, and duly served upon the Office of the Attorney General on February 1, 2023, alleges that between November 7, 2022 and November 10, 2022, at Sing Sing Correctional Facility (hereinafter, "Sing Sing"), the 26 Claimants were subjected to excessive use of force, and battery by corrections officers (hereinafter, the "Claim"). The Claim sets forth the following causes of action for each claimant: battery; intentional infliction of emotional distress; negligent failure to intervene; negligent hiring, discipline, retention, and training; and further seeks compensatory damages in the amount of $500,000.00 for each claimant, and punitive damages in the amount of $500,000.00 for each claimant. By stipulation dated March 7, 2023, Defendant's time to serve and file its answer was extended to April 12, 2023. Defendant filed this motion to dismiss in lieu of an answer.

POINTS OF COUNSEL

With respect to the motion to dismiss the cause of action for negligent failure to intervene, Defendant's counsel argues that Claimants have failed to provide any factual information that would support such cause of action. Specifically, none of the Claimants have identified who failed to intervene or set forth any information that would show that such persons had the opportunity and proximity to intervene and prevent harm.

In opposition thereto, Counsel for Mr. Wager argues that Defendant's arguments are without merit, or at a minimum premature. Counsel argues that at the pleading stage, the Court is required to not only accept the facts alleged in the Claim as true, but to accord the Claimants the benefit of every favorable inference and determine whether the facts alleged fit within any cognizable legal theory. The standard for the Court in deciding a motion to dismiss is whether a claimant has a cause of action not whether he has stated one. It is counsel's contention that Mr. Wager's allegations satisfy the elements of failure to intervene. Counsel further argues the Court may deny such a motion, allowing the moving party to assert its objection in a responsive pleading, and order, among other things, disclosure to be had. Counsel contends that where facts necessary to oppose a motion are exclusively within the knowledge of the Defendant, it is appropriate for the Court to deny dismissal pending the completion of discovery.

Counsel for the other 25 claimants argues that allegations are sufficient to satisfy the pleading burden for failure to intervene, to wit: "that corrections officers acting in the line of duty had the opportunity to thwart the attacks that were spread across several days in November [*2]2022; or that the 'dangerous propensities' of the assailants were apparent."

In reply, Defendant's counsel now argues that "[t]he causes of action for failure to intervene based on 42 U.S.C. § 1983 must be dismissed because the court lacks jurisdiction over federal constitutional claims", but "[n]otwithstanding the lack of jurisdiction, the claim fails to allege sufficient facts to plead this federal constitutional claim."

By letter dated August 29, 2023, Claimants' counsel for all but Claimant Wager, sought leave to file a sur-reply to address "a new 'jurisdictional' argument in the reply brief submitted" by the Attorney General Office. According to counsel, "[t]he State's new argument appears to be that the negligent-failure-to-intervene claim is a federal rather that state claim, and that New York Court of Claims lacks jurisdiction to adjudicate a cause of action." The Court granted the Claimants leave to file a sur-reply addressing the "new jurisdictional" arguments.

First, Claimants' counsel argues that Defendant's new argument in reply is improper and warrants that the argument be disregarded. Counsel, nevertheless, argues that if the Court does consider the Defendant's new argument, it should be deemed meritless as it does not cite to federal law, but rather sounds squarely in negligence, which is a creature of New York State common law. Counsel for Mr. Wager joined and adopted any and all arguments made by his fellow Claimants in the September 19, 2023 Memorandum of Law in Sur-Reply to Motion for Severance and Partial Dismissal.

It is Defendant's position that because the Claimants have asserted that corrections staff were acting within the scope of employment when the alleged incidents occurred, the causes of action alleging negligent hiring, retention and training should be dismissed. Counsel argues that generally, where an employee is acting within the scope of employment, the employer is liable for the employee's negligence under a theory of respondeat superior and no claim may proceed against the employer for negligent hiring, retention, supervision, or training. Therefore, because Claimants in this action have alleged that the assaults were committed by agents of New York State acting as officers or employees of the State, the causes of action for negligent hiring, training, supervision and retention are not proper.

In response to the Defendant's argument, both counsel for the Claimants contend that the alternate pleading rule applies, i.e., pleading inconsistent theories in the alternative is permissible and does not require dismissal of one of such inconsistent causes of action.

In reply, Defendant's counsel argues the Claimants have "directly and forcefully argued that the COs were acting within the scope of employment during the incidents, making a negligent hiring/retention/supervision claim unavailable." Counsel points out that under Claimants' "conspiracy theory", the CO's not only would have been acting within the scope of employment, but they were directed by supervisors to engage in the conduct described in the Claim thereby "advancing a very clear theory of liability based on the CO's acting within the scope of employment."

Defendant argues that because the "individual issues unique to each Claimant are fundamental to the Claim, this court should sever the individual claims." Counsel acknowledges that while all of the Claimants in this action allege a similar theory of liability, individual issues predominate. For example, the alleged assaults occurred on different days between November 7, 2022 and November 10, 2022, in different locations in the facility, and such assaults were committed by different corrections officers — some of whom were members of a specialized task [*3]force —involved different types and levels of use of force, Claimants each suffered varying injuries and received medical treatment commensurate to their injury. Counsel vehemently argues that the State will be greatly prejudiced if the claims are not severed, e.g., because Claimants have alleged negligent hiring, training and retention of the individuals who allegedly committed the assaults, an examination of such individuals work disciplinary history, if any, would be required, but such information related to individual officers not involved in a Claimant's particular incident would be neither discoverable nor admissible at trial, and therefore, combining the very distinct cases into a single claim could result in Claimants obtaining information that would not be available otherwise.

In opposition, Counsel for Mr. Wager argues that he is properly joined with his fellow Claimants pursuant to CPLR 1002 (a), because "[h]is claim arises out of the same 'series of transactions or occurrences' as those of his fellow claimants, namely, the series of assaults committed by the CERT team when it arrived at Sing Sing and proceeded to go hog-wild against dozens of compliant and unresisting [incarcerated persons]." Counsel further argues that common questions of law also exist, to wit: "that all the [C]laimants are victims of the same cert team and that all of them suffered gang assaults giving rise to tort claims for battery"; and, therefore the claims are properly filed together. Counsel further distinguishes the cases cited by Defendant in support of severance. Counsel for the remaining Claimants argues, in sum and substance, that the claims in this action arise from a common nucleus of facts, and that the standard applied for parties seeking to sever such claims requires that severance of actions be ordered only "to prevent prejudice or substantial delay to one of the parties" (Sichel v. Cmty. Synagogue, 256 AD2d 276 [1st Dept 1988]). Counsel for the Claimants other than Mr. Wager, argues that because these "trials would raise the same basic theory of wrongdoing, and would rely upon the same reservoir of evidence and witnesses, the [S]tate['s] proposed severance would welcome the specter of certain witnesses needing to testify about the same subject matter literally dozens of times, experts getting paid more than 20 times for the same general testimony, and judicial resources being spread across many fronts when they could be coordinated into just one."

In reply, Defendant argues that severance in this action is appropriate as each Claimant has a separate and independent claim and that their decision to "aggregate the discrete actions as a single Claim prejudices Defendant." Counsel argues that "the discrete nature of each Claimant's action is demonstrated by the Claimants actions in this case because one of the Claimants — Claimant Wager — has already removed himself from the instant Claim and obtained separate counsel." Counsel contends that having two separate law firms filing papers under the same claim number, and with possibly conflicting arguments, would cause significant confusion. Counsel further argues that because the alleged misconduct was perpetrated by multiple, different COs, there is no commonality of even identity, and that liability in an excessive use of force claim is inherently fact-specific and, again, no commonality can be established.

"On a motion to dismiss pursuant to CPLR 3211, the pleading is to be afforded a liberal construction [see, CPLR 3026] ... [and the Court must] accept the facts as alleged in the complaint as true, accord plaintiffs the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory (Morone v [*4]Morone, 50 NY2d 481, 484 [1980]; Rovello v Orofino Realty Co., 40 NY2d 633, 634 [1976]; Guggenheimer v Ginzburg, 43 NY2d 268, 275 [1977] [where no evidentiary material is evaluated, the sole criterion is whether the pleading states a cause of action, and if from its four corners factual allegations are discerned which taken together manifest any cause of action cognizable at law a motion for dismissal will fail] );" (Leon v Martinez, 84 NY2d 83, 87—88 [1994]). When deciding a motion under CPLR 3211 (a) (7), the court may freely consider affidavits submitted by the claimant to remedy any defects in the complaint (see, Rovello v Orofino Realty Co., supra, at 635). "When evidentiary material is considered, the criterion is whether the proponent of the pleading has a cause of action, not whether he has stated one, and, unless it has been shown that a material fact as claimed by the pleader to be one is not a fact at all and unless it can be said that no significant dispute exists regarding it, again dismissal should not eventuate" (Guggenheimer v Ginzburg, supra, at 275). Dismissal is warranted, under CPLR 3211 (a) (1), only where the documentary evidence submitted conclusively establishes a defense to the asserted claims as a matter of law (see, e.g., Heaney v Purdy, 29 NY2d 157 [1971]).

As for that portion of Defendant's motion seeking dismissal^[FN1] of the causes of action for failure to intervene, negligent hiring, training and supervision, the Court notes that such causes of action depend upon the theory of respondeat superior, and "[u]nder the common-law doctrine of respondeat superior, an employer—including the State—may be held vicariously liable for torts, including intentional torts, committed by employees acting within the scope of their employment" so long as "those acts were committed in furtherance of the employer's business and within the scope of employment" (Rivera v State of New York. 34 NY3d 383, 389 [2019] [internal quotation marks omitted]), but "liability will not attach for torts committed by an employee who is acting solely for personal motives unrelated to the furtherance of the employer's business (Fernandez v. Rustic Inn, Inc., 60 AD3d 893, 896 [2009]).

"Correction[s] officers are tasked with the formidable and critical responsibility of protecting the safety of [incarcerated persons] and coworkers while maintaining order in correctional facilities" (Rivera v State, supra 34 NY3d at 385 [2019]) [internal citations omitted]. When that duty is breached, the State may be directly liable for injuries suffered by an incarcerated person if the State acted negligently by failing to properly hire, train or supervise its employees, or it may be vicariously liable if a culpable employee intentionally or negligently caused the injuries while acting in the scope of employment (id.).

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, supra 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]).

However, at this stage of the proceedings, "[c]laimant only has to establish the appearance of merit and need not prove a prima facie case" (see Allen v State of New York, 2002 [*5]WL 31940720, 2002 NY Slip Op 50505[U] [Ct Cl 2002]), affd Matter of Allen v State of New York, 4 AD3d 835 [4th Dept 2004]).

Here, the Claim alleges certain unidentified corrections officers assaulted, battered and injured the Claimants at Sing Sing as part of an organized, days-long campaign of violence and harassment, and that these behaviors were led by CERT members, who were assembled and deployed by officials from the Department of Corrections and Community Supervision. The factual inquiry as to whether the alleged corrections officers and CERT members were acting within or outside of the scope of their employment as asserted in the Claim will be determined during the course of discovery and litigation of this Claim^[FN2] (see generally, Deltoro v Arva, 44 AD3d 896, 896 [2d Dept 2007]). At this stage, the Court finds that the Claim is sufficiently plead to permit Defendant to investigate and assess its potential liability. Therefore, the causes of action for negligent failure to intervene, and negligent hiring, training and supervision will not be dismissed at this juncture.

In accordance with the foregoing, branch "1" of Defendant's motion seeking dismissal of the causes of action for negligent failure to intervene, negligent hiring, as well as retention and training is DENIED.

CPLR 603 provides that "[i]n furtherance of convenience or to avoid prejudice the court may order a severance of claims, or may order a separate trial of any claim, or of any separate issue."

"Although it is within a trial court's discretion to grant a severance, this discretion should be exercised sparingly. Where complex issues are intertwined, albeit in technically different actions, it would be better not to fragment trials, but to facilitate one complete and comprehensive hearing and determine all the issues involved between the parties at the same time" (Shanley v Callanan Indus., Inc., 54 NY2d 52, 57 [1981]). Here, the allegations are such that it appears that there is a common nexus of facts. At this time, until discovery has been completed in this action, it would be premature to sever the claims. Indeed, to separate the claims into 26 separate actions, each requiring supervision by the Court of discovery for material which overlaps and is identical would result in redundancies, and burden upon the Court, countering the interests of judicial economy.

Defendant's argument that confusion will result from two separate firms filing documents under one claim is disingenuous and an overstatement. The Court can well decipher the filings, as it does in cases involving multiple defendants represented by multiple firms. Further, as to the possibility that Claimants will offer conflicting arguments, which as of now they have not, will be addressed at the appropriate time.

With respect to Defendant's argument that individual Claimants would obtain information, i.e., disciplinary records, of individual officers not involved in their particular incident, which would not otherwise be discoverable, the Court does not find this argument persuasive at this time as there are several mechanisms which can be employed to address [*6]Defendant's concerns. Further, Defendant has not sufficiently argued that it would prejudice a substantial right if the individual claims are not severed.

In light of the foregoing, branch "2" of Defendant's motion seeking to sever the claims is DENIED without prejudice to renew upon the completion of discovery.

Accordingly, it is hereby

ORDERED, that the portion of branch "1" seeking dismissal of the cause of action for intentional infliction of emotional distress and punitive damages is GRANTED; and it is further

ORDERED, all other relief sought is DENIED; and it is further

ORDERED, that Defendant shall, within 45 days of this filed-stamped Decision and Order, serve and file a Verified Answer, in accordance with the Court of Claims Act, in accordance with this Decision and Order.

1. Notice of Motion, dated April 12, 2023, Memorandum of Law in Support of Defendant's Motion to Dismiss

2. Memorandum of Law in Opposition to Motion for Severance and Partial Dismissal

3. Affirmation in Partial Opposition to the State's Motion to Dismiss and Sever, Exhibits Annexed

4. Reply to Memorandum of Law in Support of Defendant's Motion to Dismiss

5. Memorandum of Law in Sur-Reply to Motion for Severance and Partial Dismissal

6. Sur-Reply