Bigica v. State of New York

Opinion

Bigica v State of New York

2026 NY Slip Op 05073

August 26, 2026

Appellate Division, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This decision is uncorrected and subject to revision before publication in the Official Reports.

Joseph Bigica, appellant,

v

State of New York, respondent. (Claim No. 136927)

Supreme Court of the State of New York, Appellate Division, Second Judicial Department

Decided on August 26, 2026

2024-02466

Francesca E. Connolly, J.P.

Cheryl E. Chambers

William G. Ford

James P. McCormack, JJ.

Jocelyne S. Kristal, White Plains, NY, for appellant.

Letitita James, Attorney General, New York, NY (Matthew W. Grieco and Andrea W. Trento of counsel), for respondent.

[*1]

DECISION & ORDER

In a claim to recover damages for personal injuries, the claimant appeals from an order of the Court of Claims (Javier E. Vargas, J.), dated December 19, 2023. The order, insofar as appealed from, granted that branch of the defendant's motion which was for summary judgment dismissing the claim.

ORDERED that the order is affirmed insofar as appealed from, with costs.

The claimant commenced this claim to recover damages for personal injuries he allegedly sustained when he was assaulted by a correction officer. The defendant moved, inter alia, for summary judgment dismissing the claim, arguing that it could not be held liable for the assault under the doctrine of respondeat superior. In an order dated December 19, 2023, the Court of Claims, among other things, granted that branch of the motion. The claimant appeals.

"Under 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" (Rivera v State of New York, 34 NY3d 383, 389; see Wood v State of New York, 119 AD3d 672, 672), provided that the tortious conduct is "'generally foreseeable and a natural incident of the employment'" (Rivera v State of New York, 34 NY3d at 389, quoting Judith M. v Sisters of Charity Hosp., 93 NY2d 932, 933; see Riviello v Waldron, 47 NY2d 297, 304). In determining whether an employee was acting within the scope of his or her employment for purposes of vicarious liability, courts look to several factors, including "'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' (i.e., whether it was foreseeable)" (Rivera v State of New York, 34 NY3d at 390, quoting Riviello v Waldron, 47 NY2d at 303). Furthermore, "in cases involving a use of force, whether an employee is acting within the scope of employment requires consideration of whether the employee was authorized to use force to effectuate the goals and duties of the employment" (Rivera v State of New York, 34 NY3d at 390).

Here, the defendant established, prima facie, that the correction officer was not acting [*2]within the scope of his employment when he assaulted the claimant (see id. at 389-390; Bracero v State of New York, 247 AD3d 974, 976. In opposition, the claimant failed to raise a triable issue of fact.

Accordingly, the Court of Claims properly granted that branch of the defendant's motion which was for summary judgment dismissing the claim.

CONNOLLY, J.P., CHAMBERS, FORD and MCCORMACK, JJ., concur.

ENTER:

Darrell M. Joseph

Clerk of the Court