        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

21
CA 13-00979
PRESENT: SCUDDER, P.J., CENTRA, LINDLEY, SCONIERS, AND DEJOSEPH, JJ.


ADAM VILLAR, PLAINTIFF-APPELLANT,

                    V                             MEMORANDUM AND ORDER

TIMOTHY B. HOWARD, ERIE COUNTY SHERIFF,
DEFENDANT-RESPONDENT.
(APPEAL NO. 1.)


CONNORS & VILARDO, LLP, BUFFALO (PAUL A. WOODARD OF COUNSEL), FOR
PLAINTIFF-APPELLANT.

MICHAEL A. SIRAGUSA, COUNTY ATTORNEY, BUFFALO (KENNETH R. KIRBY OF
COUNSEL), FOR DEFENDANT-RESPONDENT.


     Appeal from an order of the Supreme Court, Erie County (Shirley
Troutman, J.), entered April 3, 2013. The order granted the motion of
defendant to dismiss the complaint.

     It is hereby ORDERED that the order so appealed from is
unanimously modified on the law by denying defendant’s motion in part
and reinstating the complaint except to the extent that it alleges
that defendant is vicariously liable for the negligence of his deputy
sheriffs, and as modified the order is affirmed without costs.

     Memorandum: Plaintiff commenced this action seeking damages for
injuries he sustained as a result of having been sexually assaulted
twice by another inmate at the Erie County Correctional Facility,
which is operated by defendant. The assaults occurred on consecutive
days in the same shower stall, while plaintiff was being held in
custody on a pending criminal charge. In the first cause of action,
plaintiff alleged that defendant breached his duty to protect him from
foreseeable harm resulting from assaults committed by other inmates,
and that defendant had actual knowledge of the dangerous propensities
of the person who assaulted him. Plaintiff further alleged in the
first cause of action that defendant is vicariously liable for the
negligence of deputy sheriffs and other employees who worked in the
jail. In the second cause of action, plaintiff alleged that defendant
negligently trained and supervised the deputy sheriffs who worked in
the jail.

     By the order in appeal No. 1, Supreme Court granted defendant’s
motion to dismiss the complaint for failure to state a cause of action
(see CPLR 3211 [a] [7]). The court agreed with defendant that
plaintiff failed to serve a timely notice of claim, as required by
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                                                         CA 13-00979

General Municipal Law § 50-e. In addition, the court agreed with
defendant that, in any event, he owed no duty of care to plaintiff,
any negligence that could be attributed to him involved discretionary
acts for which he had governmental immunity, and he cannot be held
vicariously liable for the negligence of his deputies. By the order
in appeal No. 2, the court denied plaintiff’s subsequent motion for
leave to amend the complaint to assert a cause of action pursuant to
42 USC § 1983 and, by the order in appeal No. 3, the court denied
plaintiff’s motion for leave, inter alia, to renew both defendant’s
motion to dismiss and his motion for leave to amend the complaint.
These appeals ensued.

     We agree with plaintiff in appeal No. 1 that the court erred in
granting defendant’s motion based on plaintiff’s failure to serve a
timely notice of claim. Service of a notice of claim upon a public
corporation is not required for an action against a county officer,
appointee, or employee unless the county “has a statutory obligation
to indemnify such person under [the General Municipal Law] or any
other provision of law” (General Municipal Law § 50-e [1] [b]) and,
here, Erie County has no statutory obligation to indemnify defendant.
Plaintiff “was not required to file a notice of claim naming
[defendant] in his official capacity prior to commencing” an action
against defendant (Mosey v County of Erie, 117 AD3d 1381, 1386).

     We further conclude that the court erred in determining that
defendant owed no duty of care to plaintiff. Pursuant to Correction
Law § 500-c, a sheriff has a “duty to ‘receive and safely keep’
prisoners in the jail over which he has custody” (Freeland v Erie
County, 122 AD3d 1348, 1350; see Kemp v Waldron, 115 AD2d 869, 870-
871), and plaintiff’s first cause of action is based on an alleged
violation of that duty to him. A sheriff may also be held liable for
negligent training and supervision of the deputy sheriffs who worked
in the jail (see Mosey, 117 AD3d at 1386; Bardi v Warren County
Sheriff’s Dept., 194 AD2d 21, 24), which forms the basis of
plaintiff’s second cause of action.

     We reject defendant’s contention that the court properly
determined that he is immune from liability because his alleged
negligence arises from discretionary acts for which he is entitled to
governmental immunity. In the context of this CPLR 3211 motion, the
issue whether defendant’s alleged acts of negligence “were
discretionary and thus immune from liability ‘is a factual question
which cannot be determined at the pleading stage’ ” (Mosey, 117 AD3d
at 1384, quoting CPC Intl. v McKesson Corp., 70 NY2d 268, 286). We
further conclude, however, that the court properly granted defendant’s
motion to the extent that plaintiff alleges that defendant is
vicariously liable for the negligence of his deputies (see Barr v
County of Erie, 50 NY2d 247, 257; Trisvan v County of Monroe, 26 AD3d
875, 876). We therefore modify the order in appeal No. 1 by denying
defendant’s motion in part and reinstating the complaint except to the
extent that it alleges that defendant is vicariously liable for the
negligence of his deputies.

     We conclude with respect to the order in appeal No. 2 that the
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                                                         CA 13-00979

court did not abuse its discretion in denying plaintiff’s motion for
leave to amend the complaint to assert a cause of action under 42 USC
§ 1983, inasmuch as plaintiff has asserted such a claim against
defendant in an action pending in federal court (see generally
Edenwald Contr. Co. v City of New York, 60 NY2d 957, 959; Davis v
Wyeth Pharms., Inc., 86 AD3d 907, 908). Finally, we dismiss as
abandoned the appeal from the order in appeal No. 3 because plaintiff
has not raised any contentions on appeal with respect thereto (see
Abasciano v Dandrea, 83 AD3d 1542, 1545).




Entered:   March 20, 2015                       Frances E. Cafarell
                                                Clerk of the Court
