Abate v. Cnty. of Erie

• Decision Date: 17 June 2021
• Docket Number: CA 20-00127,222
• Citation: 151 N.Y.S.3d 291,195 A.D.3d 1531
• Parties: Jacqueline ABATE, Individually and as Administratrix of the Estate of Donald Abate, Deceased, Plaintiff-Respondent-Appellant, v. COUNTY OF ERIE, Erie County Sheriff's Office, Defendants-Appellants-Respondents, et al., Defendant.
• Court: New York Supreme Court — Appellate Division

195 A.D.3d 1531

151 N.Y.S.3d 291

Jacqueline ABATE, Individually and as Administratrix of the Estate of Donald Abate, Deceased, Plaintiff-Respondent-Appellant,

v.COUNTY OF ERIE, Erie County Sheriff's Office, Defendants-Appellants-Respondents, et al., Defendant.

222

CA 20-00127

Supreme Court, Appellate Division, Fourth Department, New York.

Entered: June 17, 2021

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

THE FITZGERALD FIRM, BUFFALO (BRIAN P. FITZGERALD OF COUNSEL), FOR PLAINTIFF-RESPONDENT-APPELLANT.

PRESENT: SMITH, J.P., NEMOYER, CURRAN, BANNISTER, AND DEJOSEPH, JJ.

MEMORANDUM AND ORDER

It is hereby ORDERED that the order so appealed from is unanimously modified on the law by granting the motion of defendants County of Erie and Erie County Sheriff's Office in part, dismissing the amended complaint against defendant Erie County Sheriff's Office and dismissing the fourth cause of action against defendant County of Erie, and as modified the order is affirmed without costs.

Memorandum: The decedent, plaintiff's late husband, died while trapped in his car during a significant snowstorm, and plaintiff commenced this action to recover damages upon allegations that the decedent's death was caused by the alleged negligence of, among others, the County of Erie (County) and the Erie County Sheriff's Office (ECSO) in failing to rescue the decedent. The County and ECSO (defendants) moved for summary judgment dismissing the amended complaint against them, and plaintiff cross-moved for, inter alia, summary judgment on the issue of liability. Supreme Court denied both defendants’ motion and plaintiff's cross motion. Defendants appeal, and plaintiff cross-appeals.

A sheriff's office has no legal identity separate from its corresponding county, "and thus an ‘action against the Sheriff's [Office] is, in effect, an action against the [corresponding] County itself’ " ( Johanson v. County of Erie , 134 A.D.3d 1530, 1532, 22 N.Y.S.3d 763 [4th Dept. 2015] ; see Maio v. Kralik , 70 A.D.3d 1, 10, 888 N.Y.S.2d 582 [2d Dept. 2009] ). We therefore agree with defendants, on their appeal, that the court erred in denying their motion insofar as it sought summary judgment dismissing the amended complaint against ECSO. Moreover, because "[t]here is no recovery for loss of consortium in a wrongful death action" ( Kaplan v. Sparks , 192 A.D.2d 1119, 1120, 596 N.Y.S.2d 279 [4th Dept. 1993] ), we further agree with defendants that the County is entitled to summary judgment dismissing plaintiff's cause of action against it for loss of consortium. We modify the order accordingly.

We reject defendants’ further contention, however, that the court also erred in denying their motion insofar as it sought summary judgment dismissing any vicarious liability claim against the County for the alleged negligence of ECSO's civilian employees. Although a "county may not be held responsible for the negligent acts of the Sheriff and his [or her] deputies on the theory of respondeat superior" ( Mosey v. County of Erie , 117 A.D.3d 1381, 1385, 984 N.Y.S.2d 706 [4th Dept. 2014] [internal quotation marks omitted]; see Wilson v. Sponable , 81 A.D.2d 1, 9-12, 439 N.Y.S.2d 549 [4th Dept. 1981], appeal dismissed 54 N.Y.2d 834 [1981] ), we conclude that a county may be vicariously liable for the negligent acts of the sheriff's civilian employees given the general rule that a sheriff's office does not exist separately from its corresponding county (see Johanson , 134 A.D.3d at 1531-1532, 22 N.Y.S.3d 763 ; Maio , 70 A.D.3d at 10, 888...