Stone v. State of New York

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 DECISION AND ORDER Background 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.,