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This opinion is uncorrected and subject to revision before
publication in the New York Reports.
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No. 153
Adam Villar,
            Respondent,
        v.
Timothy B. Howard, Erie County
Sheriff,
            Appellant.




             Kenneth R. Kirby, for appellant.
             John T. Loss, for respondent.




STEIN, J.:
             General Municipal Law § 50-e (1) (b) provides that
service of a notice of claim upon a public corporation is not a
condition precedent to the commencement of an action against "an
officer, appointee, or employee of [the] public corporation"
unless "the corporation has a statutory obligation to indemnify

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such person" under the General Municipal Law "or any other
provision of law."   On this appeal, we are asked to determine
whether Erie County had a statutory obligation within the meaning
of section 50-e (1) (b) to indemnify defendant, the Erie County
Sheriff, such that a notice of claim was required.   Because we
agree with the Appellate Division that no such statutory
obligation exists and we conclude that the complaint was
otherwise sufficient to withstand a motion to dismiss, we affirm.
          Plaintiff alleges that, while being held for five days
at the Erie County Correctional Facility in January 2010, he was
sexually assaulted twice in a shower stall by an inmate.    He
commenced several actions following these incidents; the
complaint in this action alleged that defendant Sheriff breached
a duty to protect plaintiff from a reasonably foreseeable hazard
of sexual assault, disregarded known risks of harm to inmates
vulnerable to sexual abuse by other inmates at the facility, and
had actual knowledge of the dangerous propensities of the inmate
who assaulted plaintiff.   Defendant moved to dismiss the
complaint pursuant to CPLR 3211, arguing that plaintiff failed to
serve a notice of claim naming defendant and that the complaint
did not state a cognizable cause of action.
          Supreme Court granted defendant's motion, dismissing
the complaint because "[n]o notice of claim was served nor was
permission sought of the court to serve a late notice, prior to
the expiration of the statute of limitations applicable to a


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sheriff."   The court reasoned that plaintiff was required to
serve a notice of claim pursuant to General Municipal Law § 50-e
because the County is statutorily obligated to indemnify
defendant under "the County legislature's resolution of May 16,
1985."   As relevant here, the court also concluded that the
allegedly negligent acts were "inherently discretionary" and
that, in any event, plaintiff failed to establish that defendant
owed him a duty of care in the first instance.
            Upon plaintiff's appeal, the Appellate Division
modified by reinstating the complaint except to the extent it
alleged that defendant is vicariously liable for the negligence
of his employees (126 AD3d 1297 [4th Dept 2015]).   The court held
that plaintiff was not required to serve a notice of claim prior
to commencing this action because Erie County has no statutory
obligation to indemnify defendant (see id. at 1298-1299).      The
court further concluded that, pursuant to Correction Law § 500-c,
defendant has a duty to safely "keep" the prisoners in the county
jail, and rejected defendant's argument that the complaint must
be dismissed because his alleged negligence arises from
discretionary acts for which he is entitled to governmental
immunity, explaining that defendant's argument presents a factual
question that cannot be determined at the pleading stage (see id.
at 1299).
            Addressing first whether a notice of claim was
required, we conclude that the Appellate Division properly


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rejected defendant's argument that a May 16, 1985 Erie County
Resolution entitled "Liability Insurance for the Sheriff's
Department" statutorily obligates the county to indemnify
defendant Sheriff for purposes of General Municipal Law § 50-e
(1) (b).   In the "Whereas" clauses of the resolution, the County
noted that the law enforcement liability insurance that it
traditionally purchased for the Sheriff's Department had become
prohibitively expensive, and that it was obligated to defend and
indemnify the Sheriff's Department employees pursuant to a
collective bargaining agreement and Public Officers Law § 18,
"but the County cannot, under the New York State Constitution, be
made responsible for the acts of the Sheriff."   Thus, the County
resolved to act as insurer for the Sheriff, in exchange for an
annual payment of $1, provided that the County's obligation did
not extend to punitive or exemplary damages and that the County
would not be made responsible for the acts of the Sheriff or
become a party in actions arising out of the acts of the Sheriff.
           The resolution, when read as a whole, makes clear that
the County agreed to provide "Liability Insurance" for the
Sheriff in exchange for consideration because "policies of law
enforcement liability insurance paid for by the County" had
become prohibitively expensive.   In resolving to act as an
insurer, the County recognized -- as was commonly understood at
the time -- that it could not statutorily obligate itself to
defend and indemnify the Sheriff, as it had agreed to do for the


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Sheriff's employees, under the New York State Constitution (see
Rep of Law Rev Commn, 1981 McKinney's Session Laws of NY at 2321
and n 47).1   Absent the existence of any statutory obligation on
the County to indemnify the Sheriff -- as opposed to an agreement
to act as his insurer -- the Appellate Division correctly ruled
that service of a notice of claim was not required under General
Municipal Law § 50-e.
           Defendant Sheriff further argues that, to survive a
motion to dismiss, the complaint would have to allege that he was
present and failed to prevent the attacks on plaintiff, or had
specific prior knowledge that plaintiff was particularly
vulnerable to assault.   This Court rejected similar arguments
with respect to state prison inmates in Sanchez v State of New
York on the ground that the defendant sought to "improperly
modif[y] the test for foreseeability from what is reasonably to
be perceived, to what is actually foreseen, and thus unduly
circumscribe[] the standard of care normally due any party:
reasonable care under the circumstances" (99 NY2d 247, 254
[2002]).   While the State is by no means an insurer of inmate
safety or required to provide unremitting surveillance in all
circumstances (see id. at 253, 256), we explained in Sanchez
that, "[h]aving assumed physical custody of inmates, who cannot


     1
        Although the constitutional bar has since been removed
(see Bardi v Warren County Sheriff's Dept., 194 AD2d 21, 23 [3d
Dept 1993]), Erie County has not adopted an obligation to
indemnify the Sheriff or otherwise altered its 1985 resolution.

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protect and defend themselves in the same way as those at liberty
can, the State owes a duty of care to safeguard inmates, even
from attacks by fellow inmates" (id. at 252).    Inasmuch as "the
Sheriff is [similarly] prescribed, by law, to safely keep inmates
of the County Jail" (Adams v County of Rensselaer, 66 NY2d 725,
727 [1985]; see Correction Law § 500-c; Kemp v Waldron, 115 AD2d
869, 870 [3d Dept 1985]), the rule set forth in Sanchez applies
equally here.   "[A]ccept[ing] the facts as alleged in the
complaint as true, accord[ing] plaintiff[] the benefit of every
possible favorable inference . . . [and] consider[ing] [the]
affidavit[] submitted by . . . plaintiff to remedy any defects in
the complaint" (Leon v Martinez, 84 NY3d 83, 87-88 [1994]), we
conclude that the complaint adequately set forth a negligence
claim to survive a CPLR 3211 (a) (7) motion to dismiss.2
          Finally, we agree with the Appellate Division that
resolution of defendant's argument that he is entitled to
governmental immunity -- an affirmative defense on which he bears
the burden of proof (see Valdez v City of New York, 18 NY3d 69,
79-80 [2011]) -- is not appropriate at this stage of the
proceedings.    Defendant's remaining arguments have been rendered
academic by our decision.   Accordingly, the order of the
Appellate Division, insofar as appealed from, should be affirmed,
with costs, and the certified question answered in the

     2
       Defendant's argument that plaintiff was required to allege
a special duty lacks merit (see Sanchez, 99 NY2d 247, 253 n 3
[2002]; Kemp, 115 AD2d 869, 870 [3d Dept 1985]).

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affirmative.
*   *   *   *   *   *   *   *    *      *   *   *   *   *   *    *   *
Order, insofar as appealed from, affirmed, with costs, and
certified question answered in the affirmative. Opinion by Judge
Stein. Chief Judge DiFiore and Judges Rivera, Abdus-Salaam and
Garcia concur. Judges Pigott and Fahey took no part.

Decided October 25, 2016




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