Ordered that the order is affirmed insofar as appealed from, with costs. Contrary to the defendant's contentions, evidence indicating that it specifically instructed its security guards to refrain from physical contact with customers does not compel the conclusion that, as a matter of law, the security guard in question was acting beyond the scope of his employment when he allegedly assaulted the plaintiff (see, Riviello v. Waldron, 47 N.Y.2d 297, 302; see also, Sims v. Bergamo, 3 N.Y.2d 531; Smith v. The Limited, 237 A.D.2d 345; Young Bai Choi v. D D Novelties, 157 A.D.2d 777). As stated by the Supreme Court, the circumstances surrounding the altercation are in sharp dispute such that summary judgment on the plaintiffs assault claim is inappropriate (see, Zuckerman v. City of New York, 49 N.Y.2d 557). Rosenblatt, J. P., Ritter, Copertino and Florio, JJ., concur.
The State can be found liable for the intentional torts of its employees under a theory of respondeat superior (Jones v State of New York, 33 NY2d 275 [1973]). The State as the employer can be found liable if the tortious employee was acting within the scope of his employment or in advance of his employer's interest (Riviello v Waldron, 47 NY2d 297 [1979]; Smith v Limited, 237 AD2d 345 [2d Dept 1997] [assault of customer by security guard, found to be acting to advance employer's interest]; Santamarina v Citrynell, 203 AD2d 57 [1st Dept 1994] [assault by hospital security guard not outside scope of employment as a matter of law]). If, however, the correction officer committed an unprovoked assault and battery upon Claimant, the officer then deviated from his employment duties (see Matter of Sharrow v State of New York, 216 AD2d 844, 846 [3d Dept 1995]; Valentin v State of New York, UID No. 2018-038-108 [Ct Cl, DeBow, J., June 13, 2018] [claim dismissed, unprovoked battery by correction officer, no facts supported finding claimant's behavior led to authorized use of force]; Rivera v State of New York, UID No. 2017-032-046 [Ct Cl, Hard, J., Sept. 12, 2017] [correction officer assault outside of scope of employment, defendant's summary judgment motion granted]; compare Cepeda v Coughlin, 128 AD2d 995 [3d Dept 1987] [inmates initiated disturbance during transfer to outd