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

923
CA 13-01411
PRESENT: CENTRA, J.P., CARNI, VALENTINO, AND WHALEN, JJ.


GLENN FREELAND AND SUSAN FREELAND, AS LEGAL
GUARDIANS FOR JALEN WALKER, INFANT AND SOLE
ISSUE OF THE ESTATE OF TREVELL WALKER, DECEASED,
PLAINTIFFS-APPELLANTS,

                    V                              MEMORANDUM AND ORDER

ERIE COUNTY, TIMOTHY B. HOWARD, ERIE COUNTY
SHERIFF, MARK WIPPERMAN, ERIE COUNTY
UNDERSHERIFF, DEFENDANTS-RESPONDENTS,
ET AL., DEFENDANT.
(APPEAL NO. 1.)


KEVIN T. STOCKER, TONAWANDA, FOR PLAINTIFFS-APPELLANTS.

MICHAEL A. SIRAGUSA, COUNTY ATTORNEY, BUFFALO (ANTHONY B. TARGIA OF
COUNSEL), FOR DEFENDANTS-RESPONDENTS.


     Appeal from an order of the Supreme Court, Erie County (Diane Y.
Devlin, J.), entered April 2, 2013. The order granted the motion of
defendants Erie County, Timothy B. Howard, Erie County Sheriff, and
Mark Wipperman, Erie County Undersheriff, to dismiss the complaint and
dismissed the complaint.

     It is hereby ORDERED that the order so appealed from is
unanimously affirmed without costs.

     Memorandum: These actions arose from the suicide of Trevell
Walker (Trevell) on October 12, 2011, while he was incarcerated at the
Erie County Holding Center. On January 5, 2012, plaintiffs filed a
notice of claim with defendant Erie County (County). The notice of
claim included the name and address of claimant Jalen Walker (Jalen),
Trevell’s infant son and sole distributee; the nature of the claims
alleged; the “[t]ime, [p]lace [and] [m]anner” of the subject claim;
and the injuries and items of damage claimed. Plaintiff Glenn
Freeland executed the notice of claim in his capacity as “legal
Guardian” to Jalen.

     On December 7, 2012, plaintiffs commenced action No. 1 in their
capacity as guardians of Jalen’s person, alleging causes of action in
appeal No. 1 for wrongful death, negligence, federal and state civil
rights violations, and loss of consortium. Supreme Court granted the
pre-answer motion of defendants-respondents (hereafter, defendants)
pursuant to CPLR 3211 (a) (7) and dismissed the complaint in action
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                                                         CA 13-01411

No. 1, determining, inter alia, that plaintiffs lacked standing to
bring the lawsuit in the absence of a duly appointed representative of
Trevell’s estate. On July 1, 2013, plaintiffs commenced the action in
appeal No. 2 both in their capacity as guardians of Jalen’s person and
as administrators of Trevell’s estate, alleging causes of action for
wrongful death, negligence, and federal and state civil rights
violations. The court granted defendants’ pre-answer motion pursuant
to CPLR 3211 (a) (7) and dismissed the complaint in action No. 2,
determining, inter alia, that plaintiffs had failed to serve a timely
notice of claim and that the cause of action for wrongful death was
time-barred.

     The court properly granted defendants’ motion and dismissed the
complaint in appeal No. 1. A cause of action for wrongful death may
be brought only by the personal representative of the decedent (see
EPTL 1-2.13; 5-4.1; Hernandez v New York City Health & Hosps. Corp.,
78 NY2d 687, 692-693), and causes of action for negligence and civil
rights violations likewise were personal to Trevell and were therefore
assumed by his estate (see Heslin v County of Greene, 14 NY3d 67, 76).
Plaintiffs commenced the action in appeal No. 1 in their capacity as
guardians of Jalen’s person, and had not been appointed as
representatives of Trevell’s estate. Plaintiffs thus lacked standing
to allege causes of action for wrongful death, negligence, and civil
rights violations. In addition, there can be no recovery for loss of
consortium in a wrongful death action, and thus the court properly
dismissed the cause of action alleging loss of consortium based upon
Trevell’s death (see Liff v Schildkrout, 49 NY2d 622, 634; Hinckley v
CSX Transp., Inc., 59 AD3d 969, 970).

     In appeal No. 2, we initially conclude that, contrary to
defendants’ contention, plaintiffs’ notice of claim was sufficient to
alert defendants to the allegations supporting those causes of action,
regardless of the purported capacity in which Freeland executed the
notice of claim. Given the lack of any showing of bad faith by
plaintiffs or prejudice to defendants (see General Municipal Law § 50-
e [6]; D’Allesandro v New York City Tr. Auth., 83 NY2d 891, 893), we
exercise our discretion to treat the notice of claim as one filed on
behalf of Trevell’s estate (see Smith v Scott, 294 AD2d 11, 19-20;
Neal v Amityville Union Free Sch. Dist., 288 AD2d 450, 450-451;
Przestrzelski v Board of Educ. of Fort Plain Sch. Dist., 71 AD2d 743,
743-744; see generally Sweeney v City of New York, 225 NY 271, 273).

     With respect to defendant Mark Poloncarz, Erie County Executive,
the court properly dismissed the complaint in appeal No. 2 against him
inasmuch as he, in his individual or official capacity, is not the
subject of any allegations in that action (see Paull v First UNUM Life
Ins. Co., 295 AD2d 982, 984).

     With respect to the County, we agree with plaintiffs in appeal
No. 2 that the court erred in granting that part of defendants’ motion
dismissing the first cause of action, for wrongful death, insofar as
it is asserted by plaintiffs as administrators of Trevell’s estate,
and we therefore modify the order accordingly. Plaintiffs alleged in
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                                                         CA 13-01411

that cause of action that substandard housing at the Erie County
Holding Center was a proximate cause of Trevell’s wrongful death. The
County’s duty to provide and maintain the jail building is
distinguishable from defendant Sheriff’s duty to “receive and safely
keep” prisoners in the jail over which he has custody (Correction Law
§ 500-c; see County Law § 217; see also Matter of New York State
Commn. of Correction v Ruffo, 157 AD2d 987, 988; Burke v Warren County
Sheriff’s Dept., 916 F Supp 181, 184-187; see generally Matter of
County of Cayuga v McHugh, 4 NY2d 609, 613, 615-616). We disagree
with the court that the wrongful death cause of action was time-barred
against the County. Because the wrongful death action could not be
commenced until the appointment of an administrator of Trevell’s
estate to serve as guardian of Jalen’s property (see SCPA 707 [1] [a];
1001 [2], [6]; 1723 [1]), the statute of limitations was tolled until
that appointment occurred on March 7, 2013 (see Hernandez, 78 NY2d at
693-695; Baker v Bronx Lebanon Hosp. Ctr., 53 AD3d 21, 24-27; cf. Baez
v New York City Health & Hosps. Corp., 80 NY2d 571, 576-577; see
generally CPLR 208; EPTL 5-4.1 [1]). Contrary to plaintiffs’
contention, the court properly dismissed the remaining causes of
action against the County in appeal No. 2 because it cannot be held
vicariously liable for the negligent acts of the Sheriff or his
deputies (see Mosey v County of Erie, 117 AD3d 1381, 1385; Marashian v
City of Utica, 214 AD2d 1034, 1034; see also Trisvan v County of
Monroe, 26 AD3d 875, 876, lv dismissed 6 NY3d 891).

     With respect to defendants Sheriff and Undersheriff, we agree
with plaintiffs in appeal No. 2 that the court erred in granting that
part of defendants’ motion dismissing as time-barred the first cause
of action, for wrongful death, insofar as it is asserted by plaintiffs
as administrators of Trevell’s estate, and we therefore further modify
the order accordingly. As explained above, that cause of action was
timely commenced. The toll for wrongful death is inapplicable,
however, to the second cause of action, for negligence (see Heslin, 14
NY3d at 76-78; Baker, 53 AD3d at 23), and thus the relevant statute of
limitations is the one-year period of CPLR 215 (1). Consequently,
when the complaint in appeal No. 2 was filed in July 2013, the
negligence cause of action against the Sheriff and Undersheriff was
time-barred.

     We agree with plaintiffs in appeal No. 2, however, that the court
erred in granting that part of defendants’ motion seeking dismissal of
the third cause of action, for federal civil rights violations,
insofar as it is asserted by plaintiffs as administrators of Trevell’s
estate, against the Sheriff and Undersheriff, and we therefore further
modify the order accordingly. The statute of limitations for that
cause of action is three years and, thus, that cause of action was not
time-barred (see CPLR 205, 214 [5]; Owens v Okure, 488 US 235, 237-
239, 251). Finally, we agree with defendants in appeal No. 2 that the
court properly granted their motion insofar as it sought dismissal of
the fourth cause of action, for state civil rights violations, against
the Sheriff and Undersheriff because the identified regulation, i.e.,
9 NYCRR 7010.1, does not confer a private right of action (see
generally Powlowski v Wullich, 102 AD2d 575, 582-583), and plaintiffs
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                                                         CA 13-01411

did not make any state constitutional claims.




Entered:   November 21, 2014                    Frances E. Cafarell
                                                Clerk of the Court
