FILED: BRONX COUNTY CLERK 08/04/2017 02:39 PM INDEX NO.

27239/2017E
NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 08/04/2017

SUPREME COURT OF THE STATE OF NEW YORK

COUNTY OF BRONX

MATTHEW WHITTINGTON,

Plaintiff, Index No.

-against- SUMMONS

THE CITY OF NEW YORK, THE NEW The basis for venue is
YORK CITY DEPARTMENT OF place of occurrence
CORRECTIONS, C.O. CORY HUGHES
Plaintiff designates Bronx
(shield #18576), and C.O. MALIK MEDINA County as the place of trial
(shield #17550),

Defendants.

To the above-named defendants:

YOU ARE HEREBY SUMMONED and required to serve upon plaintiffs attorneys an

answer to the complaint in this action within twenty days after the service of this summons,

exclusive of the day of service, or within thirty days after service is complete if this summons is

not personally delivered to you within the State of New York. In case of your failure to answer,

judgment will be taken against you by default for the relief demanded in the complaint.

Dated: August 4, 2017

MOORE KUEHN, PLLC

/s/ Justin A. Kuehn

Justin A. Kuehn
Fletcher W. Moore
30 Wall Street, 8th floor
New York, New York 10005
Tel: (212) 709-8245
jkuehn@moorekuehn.com
fmoore@moorekuehn.com
Attorneys for Plaintiff
To:

- SERVICE LIST ON NEXT PAGE-

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THE CITY OF NEW YORK

c/o Corporation Counsel
100 Church Street
New York, New York 10007

THE NEW YORK CITY DEPARTMENT OF CORRECTIONS

c/o Corporation Counsel
100 Church Street
New York, New York 10007

C.O. CORY HUGHES (shield #18576)

c/o New York City Department of Correction
75-20 Astoria Boulevard
East Elmhurst, New York 11370

C.O. MALIK MEDINA (shield #17550)

c/o New York City Department of Correction
75-20 Astoria Boulevard
East Elmhurst, New York 11370

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SUPREME COURT OF THE STATE OF NEW YORK

COUNTY OF BRONX

MATTHEW WHITTINGTON,

Plaintiff, Index No.

-against- VERIFIED COMPLAINT

THE CITY OF NEW YORK, THE NEW

YORK CITY DEPARTMENT OF
CORRECTIONS, C.O. CORY HUGHES
(shield #18576), and C.O. MALIK MEDINA
(shield #17550),

Defendants.

Plaintiff Matthew Whittington (Mr. Whittington or Plaintiff), by his attorneys,

Moore Kuehn, PLLC, complaining of defendants the City of New York (NYC), the New York

City Department of Corrections (NYC DOC), C.O. Cory Hughes (shield #18576) (C.O.

Hughes), and C.O. Malik Medina (shield #17550) (C.O. Medina) (NYC, NYC DOC, C.O.

Hughes, and C.O. Medina are referred to collectively as Defendants), alleges upon information

and belief as follows:

PARTIES

1. Plaintiff is an individual who was, at the time of the Attack (defined below),

incarcerated at the Rikers Island Correctional Facility (Rikers Island), located in the County of

Bronx, City and State of New York. Mr. Whittington is currently in federal custody.

2. Defendant NYC is a municipal corporation duly existing under the laws of the

State of New York. NYC owns and, through its servants, agents and/or employees namely

NYC DOC, operates, maintains, manages, and otherwise controls Rikers Island.

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3. Defendant NYC DOC is a police force maintained by NYC to, among other

things, operate, maintain, manage, and otherwise control Rikers Island.

4. Defendant C.O. Hughes is, and was at all relevant times, a Corrections Officer at

Rikers Island employed by NYC DOC.

5. Defendant C.O. Medina is, and was at all relevant times, a Corrections Officer at

Rikers Island employed by NYC DOC.

6. C.O. Hughes and C.O. Medina are sued in their individual and official capacities as

both acted within the scope of their employment and under color of state law, i.e., under color of

statues, ordinances, regulations, policies, customs, and usages of the State of New York and/or NYC.

JURISDICTION AND VENUE

7. This Court has jurisdiction pursuant to Article 6, Section 7, of the New York State

Constitution and because the acts and omissions giving rise to the cause of action occurred

within the State of New York.

8. Pursuant to CPLR 504(3), venue is proper in the County of Bronx because it is

the county where the causes of action asserted herein arose.

9. Plaintiff has suffered damages in excess of $25,000.00.

BACKGROUND

10. At all relevant times, Plaintiff resided in the West Facility of Rikers Island (West

Facility).

11. At or around 6:40 a.m. on August 7, 2016, Plaintiff was violently attacked by

C.O. Hughes and/or C.O. Medina (the Attack). During the Attack, C.O. Medina and/or C.O.

Hughes struck Plaintiff multiple times, without cause or justification, and continued to strike

Plaintiff even after he had been beaten to the point of being physically unable to defend himself.

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12. As shown in the following photographs taken of Mr. Whittington following the

Attack, Plaintiff was severely injured by the actions of C.O. Medina and/or C.O. Hughes:

13. All of the causes pleaded herein fall within one or more of the exceptions to

CPLR 1601 set forth in CPLR 1602, pertaining to joint and several liability. 1

14. Shortly after the Attack, Plaintiff, who was not represented by civil counsel at the

time, drafted and attempted to, or did, serve, within the time prescribed by law, a General

1
On or around August 16, 2016, Plaintiff was indicted for his alleged role in the Attack and another incident with a
corrections officer at Rikers Island (the Indictment). On or around, May 11, 2017, the Indictment was dismissed.

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Municipal Law 50-e notice of claim concerning the attack (the Notice) upon NYC and/or

NYC DOC.

15. Plaintiff, who at the time was coping with his injuries sustained in the Attack and

incarcerated, is unsure if service of the Notice was completed.

FIRST CAUSE OF ACTION

Application Under General Municipal Law 50-e(5)

for Leave to Serve a Late Notice of Claim

16. Plaintiff repeats and realleges all preceding paragraphs as if set forth fully herein.

17. Plaintiff attempted to, or did, serve the Notice, within the time prescribed by law,

upon NYC and/or NYC DOC.

18. Defendants had immediate actual notice of the essential facts giving rise to the

claims asserted herein.

19. Defendants will not be prejudiced by a late notice of claim.

20. By reason of the foregoing, should Defendants deny that the Notice was served on

NYC and/or NYC DOC, or dispute the Notice in any manner, Plaintiff is entitled to an order

granting him leave to file a late notice of claim, a copy of which is attached as Exhibit A, and

deeming that notice of claim to be timely served on NYC and NYC DOC.

SECOND CAUSE OF ACTION

Assault and Battery

21. Plaintiff repeats and realleges all preceding paragraphs as if set forth fully herein.

22. On August 7, 2016, Plaintiff was lawfully at or about Rikers Island, more

specifically, the facility known as West Facility, located at 16-06 Hazen Street, County of Bronx,

City and State of New York.

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23. The Attack by C.O. Hughes and/or C.O. Medina occurred while both were acting

as agents, servants, and/or employees of NYC and NYC DOC.

24. The Attack was performed knowingly, intentionally, and willfully.

25. That Attack was without probable cause.

26. By reason of the Attack, Plaintiff was caused to suffer severe and serious injuries

in and about diverse parts of his person and suffered great pain, distress, mental shock, mental

anguish, and psychological trauma, and was otherwise injured.

27. NYC and NYC DOC are responsible for the actions of the individual court

officers by and through respondeat superior and vicarious liability.

28. C.O. Hughes and C.O. Medina were acting within the scope of their employment

when they committed the above-mentioned assault and battery.

29. By the reason of the foregoing, Plaintiff has been damaged in an amount that

exceeds the monetary jurisdictional limits of any and all lower Courts that would otherwise have

jurisdiction herein, in an amount to be determined at trial.

THIRD CAUSE OF ACTION

Negligence

30. Plaintiff repeats and realleges all preceding paragraphs as if set forth fully herein.

31. Defendants were negligent, reckless, and careless in assaulting, battering, and

violating the civil rights of Plaintiff.

32. As the result of Defendants negligence, Plaintiff became sick, sore, lame, and

disabled, received severe and serious injuries in and about diverse parts of his person, and

suffered great physical pain, distress, mental shock, mental anguish, and psychological trauma,

and was otherwise injured.

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33. As a result of the negligent actions of their agents, servants, and/or employees,

NYC and NYC DOC are responsible via the legal principles of a vicarious liability and

respondeat superior.

34. By reason of the foregoing, Plaintiff has been damaged in an amount that exceeds

the monetary jurisdictional limits of any and all lower Courts that would otherwise have

jurisdiction herein, in an amount to be determined at trial.

FOURTH CAUSE OF ACTION

Intentional and Negligent Infliction of Emotional Distress

35. Plaintiff repeats and realleges all preceding paragraphs as if set forth fully herein.

36. Defendants acted intentionally, recklessly, and with utter disregard to the

consequences of their actions and caused severe emotional distress to Plaintiff through their

actions.

37. Defendants actions exceeded all reasonable bounds of decency, were outrageous

and shocking, and resulted in severe emotional distress to Plaintiff.

38. As a result of said intentional and negligent acts, Plaintiff became sick, sore,

lame, and disabled, received severe and serious injuries in and about diverse parts of his person,

and suffered great physical pain, distress, mental shock, mental anguish, and psychological

trauma, and was otherwise injured.

39. By reason of the foregoing, Plaintiff has been damaged in an amount that exceeds

the monetary jurisdictional limits of any and all lower Courts that would otherwise have

jurisdiction herein, in an amount to be determined upon the trial.

FIFTH CAUSE OF ACTION

42 U.S.C. 1983 Violation of Civil Rights

40. Plaintiff repeats and realleges all preceding paragraphs as if set forth fully herein.

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41. Defendants were acting under the color of law and within the scope of their

authority when they perpetrated the Attack.

42. Defendants exercised extreme and deliberate indifference to Plaintiffs health and

physical wellbeing in perpetrating the Attack, for a period of several minutes, by among other

things, repeatedly striking Plaintiff with closed fists to his head, without cause or justification,

and continuing to strike Plaintiff after he was rendered unable to defend himself.

43. The Attacked has harmed, continues to harm, and poses a serious and substantial

risk of harm to Plaintiffs health and wellbeing.

44. As a direct and proximate result of the Attack, Defendants have violated

Plaintiffs constitutionally-protected right under the Eighth Amendment to be free from cruel and

unusual punishment as such right is incorporated into the Fourteenth Amendment.

45. As a direct and proximate result of the Attack, Defendants have also violated

Plaintiffs constitutionally-protected substantive due process rights under the Fourteenth

Amendment.

46. By reason of the foregoing, Plaintiff has been damaged in an amount that exceeds

the monetary jurisdictional limits of any and all lower Courts that would otherwise have

jurisdiction herein, in an amount to be determined upon the trial.

47. Plaintiff also seeks an award of attorneys fees and costs pursuant to 42 U.S.C.

1988.

SIXTH CAUSE OF ACTION

Punitive Damages

48. Plaintiff repeats and realleges all preceding paragraphs as if set forth fully herein.

49. The actions of Defendants as alleged above , were malicious, willful, and grossly

negligent.

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50. NYC and NYC DOC authorized, permitted, and ratified the unlawful and grossly

negligent acts of their agents, servants and/or employees C.O. Hughes and C.O. Medina.

51. The actions of C.O. Hughes and C.O. Medina were intentional, reckless, and

grossly negligent and warrant an assessment of punitive damages.

52. By the reason of the foregoing, Plaintiff has been damaged in an amount that

exceeds the monetary jurisdictional limits of any and all lower Courts that would otherwise have

jurisdiction herein, in an amount to be determined upon the trial.

Request for Relief

Wherefore, based on the foregoing, the Plaintiff requests judgment against Defendants:

a. If Defendants deny that the Notice was served on NYC and/or NYC DOC

or dispute the Notice in any manner, an order granting him leave to file a late notice of

claim, and deeming the notice of claim to be timely served on NYC and NYC DOC.

b. For compensatory damages in an amount to be judicially determined at

trial, and with interest from the date of the Attack.

c. For punitive and exemplary damages in an amount to be judicially

determined, and with interest from the date of the Attack.

d. For an award of attorneys fees and litigation expenses and costs to the

maximum extent allowed by law.

e. For such other and further relief as the court deems just and proper.

Dated: August 4, 2017

New York, New York
Respectfully Submitted,
MOORE KUEHN, PLLC

/s/ Justin A. Kuehn

Justin A. Kuehn
Fletcher W. Moore
30 Wall Street, 8th floor
8

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New York, New York 10005

Tel: (212) 709-8245
jkuehn@moorekuehn.com
fmoore@moorekuehn.com
Attorneys for Plaintiff

Of Counsel

Jesse Hoberman-Kelly
THE LAW OFFICES OF JESSE HOBERMAN-KELLY
928 Broadway, Suite 1005
New York, New York 10010

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ATTORNEY VERIFICATION

JUSTIN A. KUEHN, an attorney duly admitted to practice law in the Courts of the State
of New York, affirms:

I am an attorney for plaintiff in the within action and have read the foregoing Summons
& Verified Complaint and know the contents thereof; the same is true upon information and
belief, and I believe the contents to be true.

This verification is made by me and not by plaintiff because plaintiff is not within the
county where I maintain my office.

The grounds of my belief are as follows: investigation, documents, notes, reports, and
other information contained in my file.

The undersigned affirms that the foregoing statements are true under the penalties of
perjury.

Dated: August 4, 2017

Justin A. Kuehn

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EXHIBIT A

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In the matter of the Claim of

MATTHEW WHITTINGTON, NOTICE OF CLAIM

Claimant,

-against-

THE CITY OF NEW YORK, and THE NEW

YORK CITY DEPARTMENT OF
CORRECTIONS,

Defendants.

TO: THE CITY OF NEW YORK and THE NEW YORK CITY DEPARTMENT OF
CORRECTIONS:

PLEASE TAKE NOTICE that the undersigned Claimant hereby makes claim and
demand against defendants THE CITY OF NEW YORK and THE NEW YORK CITY
DEPARTMENT OF CORRECTIONS as follows:

1. Name and post office address of each claimant and claimants attorneys is:

Claimant Attorney
Mathew Whittington Moore Kuehn, PLLC
c/o Moore Kuehn, PLLC 30 Wall Street, 8th Floor
30 Wall Street, 8th Floor New York, NY 10005
New York, NY 10005

2. Nature of Claim:

To recover compensatory and punitive damages for personal injuries, mental anguish, past
pain and suffering, and future pain and suffering sustained by claimant MATTHEW
WHITTINGTON, all as a result of the misconduct by THE CITY OF NEW YORK and/or THE
NEW YORK CITY DEPARTMENT OF CORRECTIONS, and/or their agents, servants, and/or
employees, in the negligence, assault and battery, infliction of emotional distress, and
deprivation of civil rights under the Constitution of the State of New York and the Constitution
of the United States, as well as other State ordinances, statutes, codes, and rules, including,
without limitation, 42 U.S.C. 1983 and 1988.

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3. The time when, the place where, and the manner in which the claim arose:

Claimant MATTHEW WHITTINGTON is an individual who was, at the time of the Attack
(defined below), incarcerated at the Rikers Island Correctional Facility (Rikers Island), located
in the County of Bronx, City and State of New York. At all relevant times, Plaintiff resided in
the West Facility of Rikers Island (West Facility). At or around 6:40 a.m. on August 7, 2016,
in West Facility, MATTHEW WHITTINGTON claims he was attacked by C.O. Cory Hughes,
(shield #18576) (C.O. Hughes) and/or C.O. Malik Medina (shield #17550) (C.O. Medina)
(the Attack). During the Attack, C.O. Medina and/or C.O. Hughes struck Plaintiff multiple
times. As shown in the following photographs taken of Mr. Whittington following the Attack,
Plaintiff was severely injured:

4. The items of damage are:

Claimant MATTHEW WHITTINGTON seeks monetary damages in the amount of TWO

MILLION FIVE HUNDRED THOUSAND DOLLARS ($2,500,000.00) for serious physical

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injuries and emotional distress. Claimant MATTHEW WHITTINGTON further seeks punitive
damages in the amount of TWO MILLION FIVE HUNDRED THOUSAND DOLLARS
($2,500,000.00).

TOTAL AMOUNT CLAIMED: FIVE MILLION DOLLARS ($5,000,000.00)

Claimant MATTHEW WHITTINGTON therefore presents this claim for adjustment and
payment, and notifies you that unless the same is adjusted and paid within the time provided by
law from the date of its presentation to you, it is the intention of the undersigned to prosecute an
action thereon.

Dated: August 4, 2017

Respectfully Submitted,
MOORE KUEHN, PLLC
___________________________
Justin A. Kuehn
30 Wall Street, 8th floor
New York, New York 10005
Tel: (212) 709-8245
jkuehn@moorekuehn.com
Attorneys for Claimant

ATTORNEY VERIFICATION

JUSTIN A. KUEHN, an attorney duly admitted to practice law before the Courts of the
State of New York, hereby affirms under penalty of perjury: Affirmant is partner of Moore
Kuehn, PLLC, attorneys of record for MATTHEW WHITTINGTON, the named Claimant in
the within action; Affirmant has read the foregoing NOTICE OF CLAIM and knows the
contents thereof is true to affirmants own knowledge except as to the matters therein alleged
on information and belief, and as to those matters alleged on information and belief, affirmant
believes them to be true. Affirmant further says that the reason this verification is made by
affirmant and not by the Claimants is because the said Claimant does not reside in the county
wherein counsel has his office. The grounds of affirmants belief as to all matters not stated
upon affirmants knowledge are as follows: Based upon the contents of my file.

Dated: August 4, 2017

___________________________
Justin A. Kuehn

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