| Rew v County of Niagara |
| 2010 NY Slip Op 04009 [73 AD3d 1463] |
| May 7, 2010 |
| Appellate Division, Fourth Department |
| Michael J. Rew, Respondent, v County of Niagara et al.,Appellants. (Appeal No. 1.) |
—[*1] Lipsitz Green Scime Cambria LLP, Buffalo (John A. Collins of counsel), forplaintiff-respondent.
Appeal from an order of the Supreme Court, Niagara County (Ralph A. Boniello, III, J.),entered December 8, 2008 in a personal injury action. The order denied the motion of defendantJohn Doe to dismiss the complaint against him.
It is hereby ordered that the appeal insofar as taken by defendants County of Niagara,County of Niagara Sheriff's Department, and Niagara County Sheriff Thomas A. Beilein isunanimously dismissed (see Town of Massena v Niagara Mohawk Power Corp., 45NY2d 482, 488 [1978]; Matter of Brown v Starkweather, 197 AD2d 840, 841 [1993],lv denied 82 NY2d 653 [1993]; see also CPLR 5511) and the order is otherwiseaffirmed without costs.
Memorandum: Plaintiff commenced this action seeking damages for injuries he sustainedwhen he was shot by defendant John Doe (defendant deputy), a sheriff's deputy employed bydefendant County of Niagara Sheriff's Department (defendant County). Contrary to thecontention of defendant deputy, Supreme Court properly denied his motion to dismiss thecomplaint against him based on plaintiff's failure to name him in the notice of claim. GeneralMunicipal Law § 50-e bars an action against an individual who has not been named in anotice of claim only where such notice is required by law (see Cropsey v County of Orleans Indus. Dev. Agency, 66 AD3d1361, 1362 [2009]). The naming of a county employee in the notice of claim, and thus theservice of the notice of claim upon the employee, "is not a condition precedent to thecommencement of an action against such person unless the county is required to indemnify suchperson" (Bardi v Warren County Sheriff's Dept., 194 AD2d 21, 23-24 [1993], citingGeneral Municipal Law § 50-e [1] [b]). A county's duty to indemnify an employee "turnson whether [the employee was] acting within the scope of [his or her] employment (seePublic Officers Law § 18 [1] [a], [b]; [4] [a])," and whether the obligation toindemnify the employee was formally adopted by a local governing body (Grasso v Schenectady County Pub.Lib., 30 AD3d 814, 818 [2006]; see Public [*2]Officers Law § 18 [2] [a]; Matter of Coker v City ofSchenectady, 200 AD2d 250, 252-253 [1994], appeal dismissed 84 NY2d 1027[1995]). Here, even assuming, arguendo, that defendant County was required to indemnifydefendant deputy, which is not clear from the record before us, we note that plaintiff alleged thatdefendant deputy "did willfully, maliciously, and intentionally discharge his weapon and shootwithout provocation." Thus, "the conduct of [defendant deputy] as alleged in the complaintamounts to [an] intentional tort[ ]" that falls outside the scope of his employment and thus is notencompassed within the duty to indemnify (Grasso, 30 AD3d at 818; see PublicOfficers Law § 18 [4] [b]). Present—Centra, J.P., Peradotto, Lindley, Sconiers andGorski, JJ.