| Mosey v County of Erie |
| 2014 NY Slip Op 03041 [117 AD3d 1381] |
| May 2, 2014 |
| Appellate Division, Fourth Department |
[*1] (May 2, 2014)
| Acea Mosey, as Administrator of the Estate of LauraCummings, Deceased, Appellant, v County of Erie, Respondent. (Appeal No.1.) |
Connors & Vilardo, LLP, Buffalo (John T. Loss of counsel), forplaintiff-appellant.
Michael A. Siragusa, County Attorney, Buffalo (Jeremy C. Toth of counsel), fordefendant-respondent.
Appeal from an order of the Supreme Court, Erie County (Diane Y. Devlin, J.),entered July 10, 2012. The order denied the motion of plaintiff to strike defendant'sanswer, granted the motion of defendant to dismiss the complaint and dismissed thecomplaint.
It is hereby ordered that the order so appealed from is unanimously modified on thelaw by denying defendant's motion in part and reinstating the first, second, fifth, andsixth causes of action and as modified the order is affirmed without costs.
Memorandum: Following the death of plaintiff's decedent, who was tortured andkilled at the hands of her mother and half-brother, plaintiff filed two notices of claimwith the County of Erie (County), for wrongful death and tort, respectively. Thereafter,plaintiff commenced action No. 1 against the County and commenced action No. 2against Timothy B. Howard, Erie County Sheriff (Sheriff). The complaint in action No. 1asserts six causes of action to recover damages for the pain and suffering of decedent,and for her wrongful death, and also seeks punitive damages. The first cause of actionalleges that the County, through its child protective services (CPS) and adult protectiveservices (APS), was negligent in repeatedly failing to investigate adequately reports ofabuse concerning decedent and thereby breached a duty to protect her from further abuse.The first cause of action further alleges, inter alia, that the County failed to take certainactions to protect decedent, to provide proper training and supervision for employees,and to meet standards regarding caseloads. The second cause of action alleges that theCounty is vicariously liable for the negligent omissions of employees of CPS and APS,and is premised upon the County's breach of the special duty it assumed to protectdecedent when reports of alleged abuse were received, and decedent's justifiable relianceupon that duty. The third cause of action alleges in part that the County is vicariouslyliable for the actions of a Sheriff's deputy who returned decedent to her home withoutentering the home or investigating why decedent ran away from home. The third cause ofaction also alleges that the County failed to take certain actions to protect decedent,failed to provide proper training and supervision for its employees and those of theSheriff's Office, and failed to maintain proper standards for caseloads, and by reason ofthese failures decedent was caused to suffer sexual, physical and [*2]emotional abuse and ultimately death from scalding andsuffocation. The fourth cause of action alleges that the County is vicariously liable forthe negligence of the deputy who returned decedent to her home after she ran away andbreached a mandatory duty to report suspected abuse concerning decedent pursuant to theSocial Services Law. The fourth cause of action further alleges that the County isvicariously liable for the negligence of employees of the Sheriff's Office and otheremployees who inadequately investigated reports, failed to remove decedent from herhome and returned her to her home after she ran away. The fifth cause of action allegesthat the County negligently hired, trained, supervised and retained employees in CPS,APS and the Sheriff's Office. Lastly, the sixth cause of action asserts a claim forwrongful death based upon the foregoing allegations.
The complaint in action No. 2 asserts four causes of action against the Sheriff torecover for the pain and suffering of decedent, and for her wrongful death. The firstcause of action alleges that the Sheriff is vicariously liable for the negligence of thedeputy and the employees of the Sheriff's Office who knew or should have known thatdecedent was being abused at her home, failed to remove her from her home andreturned her there after she ran away. The second cause of action alleges that the Sheriffis vicariously liable for the negligence of the deputy who returned decedent to her homeand failed to report suspected abuse concerning decedent in violation of a mandatoryduty to report pursuant to the Social Services Law. The third cause of action alleges thatthe Sheriff is liable for negligently hiring, training, supervising and retaining the deputyand others who were involved in returning decedent to her home and in not removingdecedent from her home. The fourth cause of action alleges that the Sheriff is liable fordecedent's wrongful death based upon the conduct underlying the first three causes ofaction.
In action No. 1, following joinder of issue, plaintiff moved to compel the County todisclose certain records, and the County cross-moved for a protective order. SupremeCourt granted plaintiff's motion, and the County disclosed some records to plaintiff.Plaintiff subsequently sought to depose various County employees, and the Countycanceled the first deposition the day before it was to occur and informed plaintiff of itsintention to move to dismiss the complaint in each action.
Plaintiff thereafter moved to strike the County's answer in action No. 1 pursuant toCPLR 3126, based on the County's failure to respond to discovery demands and tocomply with the court's discovery order. The County and the Sheriff moved to dismissthe respective complaints against them. The County asserted that the complaint in actionNo. 1 was subject to dismissal because "[p]laintiff's negligence claims . . .are based upon discretionary acts . . . and barred by governmentalimmunity"; "[p]laintiff cannot maintain . . . claims for negligent hiring,training, and supervision" inasmuch as she failed to include them in her notices of claim;the County is not vicariously liable for the acts or omissions of the Sheriff or hisdeputies; and the County cannot be held liable for punitive damages.
In moving to dismiss the complaint in action No. 2, the Sheriff contended that the"common-law claims" are barred by the plaintiff's failure to file a notice of claim namingthe Sheriff; he is not vicariously liable for the acts or omissions of his deputy, as assertedin the "negligence claims and [the] alleged violation of Social Services Law"; andgovernmental immunity bars the "negligence claims based upon discretionarydeterminations and actions."
By the order in appeal No. 1, the court denied plaintiff's motion and granted theCounty's motion in action No. 1 for reasons asserted by the County and, by the order inappeal No. 2, the court likewise granted the Sheriff's motion. We note with respect toappeal No. 2, however, that the court did not specifically address the Sheriff's assertionthat the complaint against him was subject to dismissal because he was not named in anotice of claim, but addressed only the other [*3]twogrounds for dismissal asserted by the Sheriff.
We reject plaintiff's contention in appeal No. 1 that the court erred in denying hermotion to strike the County's answer. The nature and degree of a sanction to be imposedon a motion pursuant to CPLR 3126 is within the discretion of the court, and the strikingof a pleading is appropriate only upon a clear showing that a party's failure to complywith a discovery demand or order is willful, contumacious, or in bad faith (see Legarreta v Neal, 108AD3d 1067, 1070-1071 [2013]; Kimmel v State of New York, 286 AD2d881, 882-883 [2001]). Under the circumstances here, we perceive no abuse of discretion(see CPLR 3126; Sayomi v Rolls Kohn & Assoc., LLP, 16 AD3d 1069,1070 [2005]).
We agree with plaintiff in each appeal, however, that the court erred in grantingdefendants' respective motions dismissing the complaints in their entirety based ondefendants' assertions that they were entitled to governmental immunity for their acts.Whether the acts in question were discretionary and thus immune from liability "is afactual question which cannot be determined at the pleading stage" (CPC Intl. vMcKesson Corp., 70 NY2d 268, 286 [1987]; see Valdez v City of New York, 18 NY3d 69, 78-80[2011]; Bawa v City of NewYork, 94 AD3d 926, 928 [2012], lv denied 19 NY3d 809 [2012]; Arias v City of New York, 22AD3d 436, 437 [2005]; seealso Newsome v County of Suffolk, 109 AD3d 802, 802-803 [2013]; Delanoy v City of WhitePlains, 83 AD3d 773, 774 [2011], lv dismissed 17 NY3d 881 [2011]; see generally Johnson v City ofNew York, 15 NY3d 676, 680-681 [2010], rearg denied 16 NY3d 807[2011]).
The court, however, properly granted defendants' respective motions insofar asdefendants asserted that they were not vicariously liable for the conduct of the deputysheriff. " '[A] county may not be held responsible for the negligent acts of theSheriff and his deputies on the theory of respondeat superior in the absence of a local lawassuming such responsibility' " (Trisvan v County of Monroe, 26 AD3d 875, 876 [2006],lv dismissed 6 NY3d 891 [2006]). Here, inasmuch as the County did not assumesuch responsibility by local law, the court properly dismissed the fourth cause of actionin its entirety and those claims based on such vicarious liability in the third cause ofaction in action No. 1. "[I]t is also well established that 'a Sheriff cannot be heldpersonally liable for the acts or omissions of his deputies while performing criminaljustice functions, and that . . . principle precludes vicarious liability for thetorts of a deputy' " (id.). Thus, the court properly dismissed the first andsecond causes of action in action No. 2, which are based on the Sheriff's vicariousliability for the alleged tortious conduct of the deputy sheriff.
We further conclude that the court erred in granting the County's motion in appealNo. 1 insofar as the County asserted that it was not liable for claims of negligent hiring,training, and supervision based upon alleged insufficiencies in her notices of claim. Weagree with plaintiff that the notices of claim in that action were sufficient to notify theCounty "that the qualifications, knowledge, training, experience, abilities and supervisionof its employees involved with [decedent] were at issue" and to apprise the County of aneed to examine the personnel records of the relevant employees (see Rodriguez v New York City Tr.Auth., 90 AD3d 552, 552 [2011]; Blanco v County of Suffolk, 51 AD3d 700, 701 [2008];see also Jones v City of Buffalo, 267 AD2d 1101, 1101 [1999]; see generallyMatter of Trader v State of New York, 259 AD2d 951, 951 [1999]). Contrary to thecourt's conclusion, we conclude that the claims for negligent hiring, training, andsupervision as asserted in the first, third and fifth causes of action in action No. 1 werenot beyond the scope of plaintiff's notices of claim in that action (see generally Wahl v County ofWayne, 78 AD3d 1608, 1609 [2010]). We nevertheless further conclude that theclaims of negligent training and supervision as alleged in the third cause of action inaction No. 1 are duplicative of claims in the first cause of action, and thus the remainderof the third cause of action in action No. 1 was properly dismissed (see Dischiavi v Calli, 68 AD3d1691, 1693 [2009]).
[*4] In appeal No.2, we agree with plaintiff that, under the circumstances herein, she was not required tofile a notice of claim naming the Sheriff in his official capacity prior to commencingaction No. 2 (see Bardi v Warren County Sheriff's Dept., 194 AD2d 21, 23-24[1993]; Bowman v Campbell, 193 AD2d 921, 923 [1993], lv dismissed inpart and denied in part 82 NY2d 740 [1993]).
We also agree with plaintiff's contention in appeal No. 2 that the court erred indismissing the third cause of action in action No. 2. Accepting the facts as alleged in thatcause of action as true, we conclude that plaintiff has adequately stated a cause of actionagainst the Sheriff for negligent hiring, training, supervision and retention (see generally J.P. Morgan Sec. Inc.v Vigilant Ins. Co., 21 NY3d 324, 334 [2013]). The court likewise erred indismissing the fourth cause of action, for wrongful death, to the extent that it is basedupon the claims for alleged negligent hiring, training, supervision and retention assertedin the third cause of action (cf. Sanchez v United Rental Equip. Co., 246 AD2d524, 525-526 [1998]).
We therefore modify the order in each appeal accordingly. Present—Smith,J.P., Peradotto, Lindley, Sconiers and Valentino, JJ.