Summary
dismissing state law claims against district attorney "since claims premised on vicarious liability do not lie against the head of a county agency"
Summary of this case from Rodriguez v. City of New YorkOpinion
1487
June 27, 2002.
Order, Supreme Court, New York County (Joan Madden, J.), entered on or about January 18, 2001, which granted defendant District Attorney Robert M. Morgenthau's motion to dismiss the complaint as against him, for failure to state a cause of action, unanimously affirmed, without costs.
ANDREW M. MOSKOWITZ, for plaintiff-appellant.
MICHAEL S. MORGAN, for defendant-respondent.
Before: Williams, P.J., Nardelli, Saxe, Sullivan, Friedman, JJ.
Plaintiff's State law claim against District Attorney Morgenthau for negligent hiring, supervision and training was properly dismissed, since plaintiff's General Municipal Law § 50-e notice failed to assert such a claim or allege any facts from which defendant could have gleaned plaintiff's intention to raise such a claim (see, Urena v. City of New York, 221 A.D.2d 429; Brown v. New York City Tr. Auth., 172 A.D.2d 178, 180; St. John v. Town of Marlborough, 163 A.D.2d 761, 763).
Plaintiff's remaining State law claims against District Attorney Morgenthau, seeking to hold him vicariously accountable for the acts or omissions of his subordinates, were also properly dismissed, since claims premised on vicarious liability do not lie against the head of a county agency (see, County Law §§ 54, 941; Barr v. County of Albany, 50 N.Y.2d 247, 257).
Plaintiff's claim against District Attorney Morgenthau predicated on 42 U.S.C. § 1983 was also properly dismissed, since plaintiff has failed to allege direct participation by him in the alleged wrongful acts, a failure by him to remedy a wrong after discovering it, a policy or custom in the District Attorney's Office which encouraged or permitted the alleged wrongful acts, or gross negligence in District Attorney Morgenthau's supervision of his subordinates (see, McKeon v. Daley, 101 F. Supp.2d 79, 91, affd 2001 U.S. App. LEXIS 10503 [2d Cir]).
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.