MEMORANDUM: As noted in a prior appeal, plaintiff commenced this action seeking damages resulting from the wrongful death of Laura Cummings (decedent) in 2010 (Mosey v. County of Erie, 117 A.D.3d 1381, 984 N.Y.S.2d 706 ). After Supreme Court denied plaintiff's CPLR 3126 motion seeking to strike the answer of defendant, County of Erie (County), and granted the County's motion to dismiss the complaint, we modified the order by reinstating four causes of action (id. at 1382, 984 N.Y.S.2d 706 ).
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 A.D.3d 1381, 1386, 984 N.Y.S.2d 706).
(same) (collecting cases); Mosey v. County of Erie, 117 A.D.3d 1381, 1385 (4th Dep't 2014) (same). Plaintiff does not dispute the Moving Defendants' contention that Erie County has never passed a local law assuming responsibility for the negligent actions of the Sheriff and his deputies.
The Fourth Department, in Marashian v. City of Utica, 214 A.D.2d 1034, 1034, 626 N.Y.S.2d 646, 647 (1995), held that this 1989 amendment "merely allows a county to accept responsibility for the negligent acts of the Sheriff; it does not impose liability upon the county for the acts of the Sheriff or his deputies on a theory of respondeat superior." See also Morey v. County of Erie, 117 A.D.3d 1381, 1385, 984 N.Y.S.2d 706, 709 (4th Dep't 2014) (denying county had vicarious liability for the conduct of deputy when that liability was not assumed by local law). Thus, counties can enact local laws to be responsible for the acts of its sheriffs, but that obligation does not arise on a theory of respondeat superior, e.g., Jones v. Seneca County, 154 A.D.3d 1349, 1349-50, 63 N.Y.S.3d 620, 622 (4th Dep't 2017) (citing cases); Saleh, supra, 2015 U.S. Dist. LEXIS 47166, at *19.
Under New York law, "[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." Marashian v. City of Utica, 214 A.D.2d 1034, 1034 (4th Dep't 1995); see Saleh v. Savage, No. 12-CV-0468S, 2015 WL 1608839, at *7 (W.D.N.Y. Apr. 10, 2015) (same) (collecting cases); Mosey v. County of Erie, 117 A.D.3d 1381, 1385 (4th Dep't 2014) (same). The parties do not dispute that Erie County has never passed a local law assuming responsibility for the actions of the Sheriff and his deputies.
Although the County defendants are not aggrieved parties on appeal ( seeCPLR 5511), we may consider their contentions as alternative grounds for affirmance inasmuch as they raised the issue of vicarious liability in Supreme Court ( see Town of Massena v. Niagara Mohawk Power Corp., 45 N.Y.2d 482, 488, 410 N.Y.S.2d 276, 382 N.E.2d 1139). It is well settled that “[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” (Mosey v. County of Erie, 117 A.D.3d 1381, 1385, 984 N.Y.S.2d 706 [internal quotation marks omitted]; see Trisvan v. County of Monroe, 26 A.D.3d 875, 876, 809 N.Y.S.2d 369, lv. dismissed6 N.Y.3d 891, 817 N.Y.S.2d 625, 850 N.E.2d 672). Section 39–10(B) of the Monroe County Code, of which we take judicial notice ( see St. David's Anglican Catholic Church, Inc. v. Town of Halfmoon, 11 A.D.3d 874, 876, 783 N.Y.S.2d 695, citing CPLR 4511[a] ), provides that Sheriff's deputies are “included under the term ‘employee’ for convenience of reference within this chapter only,” and that section further provides that “[t]he provisions of this chapter shall not be construed as establishing an employment or respondeat superior relationship between the County of Monroe and the Sheriff of the County of Monroe, the Undersheriff of the County of Monroe or any person appointed by the Sheriff of the County of Monroe, including but not limited to Sheriff's deputies.
Docket Item 46-1 at 11; see, e.g., Wierzbic, 2018 WL 550521, at *10; Mosey v. County of Erie, 117 A.D.3d 1381, 1385, 984 N.Y.S.2d 706, 709 (4th Dep't 2014).
"The County's duty to provide and maintain the jail building is distinguishable from defendant Sheriffs duty to 'receive and, safely keep' prisoners in the jail over which he has custody[]" Freeland v. Erie Cnty., 997 N.Y.S.2d 860, 862 (N.Y. App. Div. 2014) (quoting N.Y. Correct. Law § 500-c); Mosey v. Cnty. of Erie, 984 N.Y.S.2d 706, 709 (N.Y, App. Div. 2014) ("The court. . . properly granted defendants' respective motions insofar as defendants asserted that they were not vicariously liable for the conduct of the deputy sheriff.")
New York's Constitution “allows a county to accept responsibility for the negligent acts of the Sheriff[, ]” Marashian v. City of Utica, 626 N.Y, S.2d 646, 647 (N.Y.App.Div. 1995), however, it does not “impose liability upon the county for the acts of the Sheriff or his deputies on a theory of respondeat superior [.]” Id. For this reason, 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[.]” Villar v. Cnty. of Erie, 5 N.Y, S.3d 747, 748 (N.Y, App. Div. 2015) (internal quotation marks omitted) (quoting Marashian, 626 N.Y.S.2d at 646); accord Mosey v. Cnty. of Erie, 984 N.Y.S.2d 706, 709 (N.Y.App.Div. 2014).
For this reason, 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[.]" Villar v. Cnty. of Erie, 5 N.Y.S.3d 747, 748 (N.Y. App. Div. 2015) (internal quotation marks omitted) (quoting Marashian, 626 N.Y.S.2d at 647); accord Mosey v. Cnty. of Erie, 984 N.Y.S.2d 706, 709 (N.Y. App. Div. 2014). Plaintiffs cite no local law that plausibly supports a conclusion that the County has "assum[ed] such responsibility."