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

36
CA 13-00808
PRESENT: SMITH, J.P., PERADOTTO, LINDLEY, SCONIERS, AND VALENTINO, JJ.


ACEA MOSEY, AS ADMINISTRATOR OF THE ESTATE OF
LAURA CUMMINGS, DECEASED, PLAINTIFF-APPELLANT,

                    V                             MEMORANDUM AND ORDER

COUNTY OF ERIE, DEFENDANT-RESPONDENT.
(APPEAL NO. 1.)


CONNORS & VILARDO, LLP, BUFFALO (JOHN T. LOSS OF COUNSEL), FOR
PLAINTIFF-APPELLANT.

MICHAEL A. SIRAGUSA, COUNTY ATTORNEY, BUFFALO (JEREMY C. TOTH OF
COUNSEL), FOR DEFENDANT-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’s answer, granted the motion of
defendant to dismiss the complaint and dismissed 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 first, second, fifth, and sixth causes of action
and as modified the order is affirmed without costs.

     Memorandum: Following the death of plaintiff’s decedent, who was
tortured and killed at the hands of her mother and half-brother,
plaintiff filed two notices of claim with the County of Erie (County),
for wrongful death and tort, respectively. Thereafter, plaintiff
commenced action No. 1 against the County and commenced action No. 2
against Timothy B. Howard, Erie County Sheriff (Sheriff). The
complaint in action No. 1 asserts 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 action
alleges that the County, through its child protective services (CPS)
and adult protective services (APS), was negligent in repeatedly
failing to investigate adequately reports of abuse 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 certain actions to protect decedent, to provide proper
training and supervision for employees, and to meet standards
regarding caseloads. The second cause of action alleges that the
County 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 protect decedent when reports of alleged
                                 -2-                            36
                                                         CA 13-00808

abuse were received, and decedent’s justifiable reliance upon that
duty. The third cause of action alleges in part that the County is
vicariously liable for the actions of a Sheriff’s deputy who returned
decedent to her home without entering the home or investigating why
decedent ran away from home. The third cause of action 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 the Sheriff’s Office, and failed to maintain proper
standards for caseloads, and by reason of these failures decedent was
caused to suffer sexual, physical and emotional abuse and ultimately
death from scalding and suffocation. The fourth cause of action
alleges that the County is vicariously liable for the negligence of
the deputy who returned decedent to her home after she ran away and
breached a mandatory duty to report suspected abuse concerning
decedent pursuant to the Social Services Law. The fourth cause of
action further alleges that the County is vicariously liable for the
negligence of employees of the Sheriff’s Office and other employees
who inadequately investigated reports, failed to remove decedent from
her home and returned her to her home after she ran away. The fifth
cause of action alleges that 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 for
wrongful death based upon the foregoing allegations.

     The complaint in action No. 2 asserts four causes of action
against the Sheriff to recover for the pain and suffering of decedent,
and for her wrongful death. The first cause of action alleges that
the Sheriff is vicariously liable for the negligence of the deputy and
the employees of the Sheriff’s Office who knew or should have known
that decedent was being abused at her home, failed to remove her from
her home and returned her there after she ran away. The second cause
of action alleges that the Sheriff is vicariously liable for the
negligence of the deputy who returned decedent to her home and failed
to report suspected abuse concerning decedent in violation of a
mandatory duty to report pursuant to the Social Services Law. The
third cause of action alleges that the Sheriff is liable for
negligently hiring, training, supervising and retaining the deputy and
others who were involved in returning decedent to her home and in not
removing decedent from her home. The fourth cause of action alleges
that the Sheriff is liable for decedent’s wrongful death based upon
the conduct underlying the first three causes of action.

     In action No. 1, following joinder of issue, plaintiff moved to
compel the County to disclose certain records, and the County cross-
moved for a protective order. Supreme Court granted plaintiff’s
motion, and the County disclosed some records to plaintiff. Plaintiff
subsequently sought to depose various County employees, and the County
canceled the first deposition the day before it was to occur and
informed plaintiff of its intention to move to dismiss the complaint
in each action.

     Plaintiff thereafter moved to strike the County’s answer in
action No. 1 pursuant to CPLR 3126, based on the County’s failure to
respond to discovery demands and to comply with the court’s discovery
                                 -3-                            36
                                                         CA 13-00808

order. The County and the Sheriff moved to dismiss the respective
complaints against them. The County asserted that the complaint in
action No. 1 was subject to dismissal because “[p]laintiff’s
negligence claims . . . are based upon discretionary acts . . . and
barred by governmental immunity”; “[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 his
deputies; 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 naming the Sheriff; he is not
vicariously liable for the acts or omissions of his deputy, as
asserted in the “negligence claims and [the] alleged violation of
Social Services Law”; and governmental immunity bars the “negligence
claims based upon discretionary determinations and actions.”

     By the order in appeal No. 1, the court denied plaintiff’s motion
and granted the County’s motion in action No. 1 for reasons asserted
by the County and, by the order in appeal No. 2, the court likewise
granted the Sheriff’s motion. We note with respect to appeal No. 2,
however, that the court did not specifically address the Sheriff’s
assertion that the complaint against him was subject to dismissal
because he was not named in a notice of claim, but addressed only the
other two grounds for dismissal asserted by the Sheriff.

     We reject plaintiff’s contention in appeal No. 1 that the court
erred in denying her motion to strike the County’s answer. The nature
and degree of a sanction to be imposed on a motion pursuant to CPLR
3126 is within the discretion of the court, and the striking of a
pleading is appropriate only upon a clear showing that a party’s
failure to comply with a discovery demand or order is willful,
contumacious, or in bad faith (see Legarreta v Neal, 108 AD3d 1067,
1070-1071; Kimmel v State of New York, 286 AD2d 881, 882-883). Under
the circumstances here, we perceive no abuse of discretion (see CPLR
3126; Sayomi v Rolls Kohn & Assoc., LLP, 16 AD3d 1069, 1070).

     We agree with plaintiff in each appeal, however, that the court
erred in granting defendants’ respective motions dismissing the
complaints in their entirety based on defendants’ assertions that they
were entitled to governmental immunity for their acts. Whether the
acts in question were discretionary and thus immune from liability “is
a factual question which cannot be determined at the pleading stage”
(CPC, Intl. v McKesson Corp., 70 NY2d 268, 286; see Valdez v City of
New York, 18 NY3d 69, 78-80; Bawa v City of New York, 94 AD3d 926,
928, lv denied 19 NY3d 809; Arias v City of New York, 22 AD3d 436,
437; see also Newsome v County of Suffolk, 109 AD3d 802, 802-803;
Delanoy v City of White Plains, 83 AD3d 773, 774, lv dismissed 17 NY3d
881; see generally Johnson v City of New York, 15 NY3d 676, 680-681,
rearg denied 16 NY3d 807).

     The court, however, properly granted defendants’ respective
                                 -4-                            36
                                                         CA 13-00808

motions insofar as defendants asserted that they were not vicariously
liable for the conduct of the deputy sheriff. “ ‘[A] county may not
be held responsible for the negligent acts of the Sheriff and his
deputies on the theory of respondeat superior in the absence of a
local law assuming such responsibility’ ” (Trisvan v County of Monroe,
26 AD3d 875, 876, lv dismissed 6 NY3d 891). Here, inasmuch as the
County did not assume such responsibility by local law, the court
properly dismissed the fourth cause of action in its entirety and
those claims based on such vicarious liability in the third cause of
action in action No. 1. “[I]t is also well established that ‘a
Sheriff cannot be held personally liable for the acts or omissions of
his deputies while performing criminal justice functions, and that . .
. principle precludes vicarious liability for the torts of a deputy’ ”
(id.). Thus, the court properly dismissed the first and second causes
of action in action No. 2, which are based on the Sheriff’s vicarious
liability for the alleged tortious conduct of the deputy sheriff.

     We further conclude that the court erred in granting the County’s
motion in appeal No. 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. We agree with
plaintiff that the notices of claim in that action were sufficient to
notify the County “that the qualifications, knowledge, training,
experience, abilities and supervision of its employees involved with
[decedent] were at issue” and to apprise the County of a need to
examine the personnel records of the relevant employees (see Rodriguez
v New York City Tr. Auth., 90 AD3d 552, 552; Blanco v County of
Suffolk, 51 AD3d 700, 701; see also Jones v City of Buffalo, 267 AD2d
1101, 1101; see generally Trader v State of New York, 259 AD2d 951,
951). Contrary to the court’s conclusion, we conclude that the claims
for negligent hiring, training, and supervision as asserted in the
first, third and fifth causes of action in action No. 1 were not
beyond the scope of plaintiff’s notices of claim in that action (see
generally Wahl v County of Wayne, 78 AD3d 1608, 1609). We
nevertheless further conclude that the claims of negligent training
and supervision as alleged in the third cause of action in action No.
1 are duplicative of claims in the first cause of action, and thus the
remainder of the third cause of action in action No. 1 was properly
dismissed (see Dischiavi v Calli, 68 AD3d 1691, 1693).

     In appeal No. 2, we agree with plaintiff that, under the
circumstances herein, she was not required to file a notice of claim
naming the Sheriff in his official capacity prior to commencing action
No. 2 (see Bardi v Warren County Sheriff’s Dept., 194 AD2d 21, 23-24;
Bowman v Campbell, 193 AD2d 921, 923, lv dismissed in part and denied
in part 82 NY2d 740).

     We also agree with plaintiff’s contention in appeal No. 2 that
the court erred in dismissing the third cause of action in action No.
2. Accepting the facts as alleged in that cause of action as true, we
conclude that plaintiff has adequately stated a cause of action
against the Sheriff for negligent hiring, training, supervision and
retention (see generally J.P. Morgan Sec. Inc. v Vigilant Ins. Co., 21
                                 -5-                            36
                                                         CA 13-00808

NY3d 324, 334). The court likewise erred in dismissing the fourth
cause of action, for wrongful death, to the extent that it is based
upon the claims for alleged negligent hiring, training, supervision
and retention asserted in the third cause of action (cf. Sanchez v
United Rental Equip. Co., 246 AD2d 524, 525-526).

     We therefore modify the order in each appeal accordingly.




Entered:   May 2, 2014                          Frances E. Cafarell
                                                Clerk of the Court
