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Glowinski v. Braun

Appellate Division of the Supreme Court of New York, Fourth Department
Nov 7, 1984
105 A.D.2d 1153 (N.Y. App. Div. 1984)

Opinion

November 7, 1984

Appeal from the Supreme Court, Erie County, Stiller, J.

Present — Hancock, Jr., J.P., Callahan, Denman, Boomer and Moule, JJ.


Order unanimously reversed, with costs, and motions denied. Memorandum: In this action for false arrest, the court erred in dismissing the complaint against Sheriff Braun. Although a Sheriff is not liable for the torts of his deputies while performing criminal functions, he is liable for their torts while performing civil functions ( Barr v County of Albany, 50 N.Y.2d 247, 257; Isereau v Stone, 3 A.D.2d 243). In executing the warrant of arrest issued pursuant to section 153 FCT of the Family Court Act, the Sheriff's deputies were performing a civil function, since the Family Court proceeding in which the warrant was issued is a civil proceeding (Family Ct Act, § 812, subd 2, par [b]; Sheridan v Major, 15 A.D.2d 870; see, also, Matter of Flaherty v Milliken, 193 N.Y. 564, 570; Marshon v City of New York, 88 A.D.2d 811, 812).

The court also erred in dismissing the complaint against Frank Boccio, Erie County Family Court Clerk. A public officer may be subject to liability for a wrongful act if that act is deemed ministerial rather than discretionary or quasijudicial in nature (see Tango v Tulevech, 61 N.Y.2d 34, 41; Santangelo v State of New York, 101 A.D.2d 20). Here, the act alleged to have been negligently performed, failing to properly retire a warrant, does not involve the "exercise of reasoned judgment which could typically produce different acceptable results" ( Tango v Tulevech, supra, p. 41). Thus, the act in question must be considered ministerial (see Waterman v State of New York, 35 Misc.2d 954, 957, mod 19 A.D.2d 264, aff'd. sub nom. Williams v State of New York, 14 N.Y.2d 793). We find no support in the law for the statement by the court in Marshon v City of New York ( 88 A.D.2d 811, 812, supra) that a court clerk enjoys immunity for "negligent effectuation of judicial instructions." We note that the Court of Appeals in Cox v City of New York ( 40 N.Y.2d 966) expressly declined to rule on the question.


Summaries of

Glowinski v. Braun

Appellate Division of the Supreme Court of New York, Fourth Department
Nov 7, 1984
105 A.D.2d 1153 (N.Y. App. Div. 1984)
Case details for

Glowinski v. Braun

Case Details

Full title:RICHARD GLOWINSKI, Appellant, v. KENNETH BRAUN, as Sheriff of Erie County…

Court:Appellate Division of the Supreme Court of New York, Fourth Department

Date published: Nov 7, 1984

Citations

105 A.D.2d 1153 (N.Y. App. Div. 1984)

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