Ball v. Monroe County

• Decision Date: 10 April 1979
• Parties: Harry E. BALL, Individually and as father and natural guardian of Brian Ball, an infant over the age of 14 years, Plaintiff, v. COUNTY OF MONROE, Defendant. Harry E. BALL, Individually and as father and natural guardian of Brian Ball, an infant over the age of 14, Plaintiff, v. Donald L. LUCAS, Defendant. Harry E. BALL, Plaintiff, v. COUNTY OF MONROE, Defendant. Harry E. BALL, Plaintiff, v. Donald L. LUCAS, Defendant. Estella C. BALL, Plaintiff, v. COUNTY OF MONROE, Defendant. Estella C. BALL, Plaintiff, v. Donald L. LUCAS, Defendant.
• Court: New York Supreme Court

Page 609

415 N.Y.S.2d 609

99 Misc.2d 97

Harry E. BALL, Individually and as father and natural

guardian of Brian Ball, an infant over the age of

14 years, Plaintiff, v. COUNTY OF MONROE, Defendant.

Harry E. BALL, Individually and as father and natural

guardian of Brian Ball, an infant over the age of

14, Plaintiff,

v.

Donald L. LUCAS, Defendant.

Harry E. BALL, Plaintiff, v. COUNTY OF MONROE, Defendant.

Harry E. BALL, Plaintiff, v. Donald L. LUCAS, Defendant.

Estella C. BALL, Plaintiff, v. COUNTY OF MONROE, Defendant.

Estella C. BALL, Plaintiff, v. Donald L. LUCAS, Defendant.

Supreme Court, Monroe County.

April 10, 1979.

Whitbeck, Holloran & Keigher, Rochester (John J. Keigher, Rochester, of counsel), for plaintiffs.

Bayer, Dupee & Smith, Rochester (Jon Charles Dupee, Rochester, of counsel), for defendant County of Monroe.

DECISION

EDWARD O. PROVENZANO, Justice.

This is a personal injury action arising from a May 1977 vehicular accident at the intersection of a state highway and a county road (Colby Street) in the Town of Ogden. At Special Term, counsel advised the court that plaintiffs are also pursuing a parallel action, in the Court of Claims, against the State.

Pretrial proceedings thus far have established that, pursuant to § 1621 of the Vehicle and Traffic Law, the State is responsible for the erection and maintenance of signs and traffic control devices at the aforesaid intersection and on the aforesaid county road up to 100 feet (in both directions) from the intersection. Plaintiffs have also sought to establish the County's liability with respect to portions of Colby Street beyond the said 100-foot distances. In that regard, they have already deposed Douglas C. Zefting, a senior engineer in the county Traffic Engineering Department. On the present motion, plaintiffs seek leave to further examine the defendant County by deposing five named individuals. As to each of the five, the application is made pursuant to the "special circumstances" provision of CPLR 3101(a)(4).

Article 31 of the CPLR retains the distinction of prior law (CPA 288, 289) between "parties" and non-party "witnesses". See 3A Weinstein-Korn-Miller, § 3101.22. See also Professor Siegel's Practice Commentary (C3101:19) to CPLR 3101 in McKinney's Cons.Laws of New York. For disclosure purposes, a " party" is anyone listed in CPLR 3101(a)(1) who is under the Control of a named party to the action. See Siegel, New York Practice, § 345. See also Della Valle v. City of Niagara Falls, 54 A.D.2d 143, 388 N.Y.S.2d 395. The distinction assumes importance here because, although CPLR 3101(a)(4) purportedly authorizes the examination of Any person where adequate "special circumstances" are shown, that provision is in fact intended to apply only to non-party "witnesses". See Matter of Keljikian, 44 Misc.2d 176, 253 N.Y.S.2d 238; CPLR 3101 Practice Commentary (Siegel), §§ C3101:19, C3101:21, C3101:22. See also Della Valle v. City of Niagara Falls, 54 A.D.2d 143, 147, 388 N.Y.S.2d 395, 398; 3 A Weinstein-Korn-Miller, § 3101.22. The rare cases where the "special circumstances" rule has been applied to "parties" are readily distinguishable from the present case. See Matter of Reis, 48 Misc.2d 330, 264 N.Y.S.2d 731; Glens Falls Ins. Co. v. Weiss, 6 Misc.2d 729, 150 N.Y.S.2d 685. Thus the construction of the "any person" language of CPLR 3101(a)(4) accords with that of the "any Other person" language of its predecessor provision (CPA 288).

Because it does not appear that plaintiffs have served subpoenas on any of the aforesaid five individuals, their motion is denied insofar as disclosure pursuant to CPLR 3101(a)(4) is concerned. Where one is sought to be deposed under the "special circumstances" rule, he must first be served with a subpoena, pursuant to CPLR 3106(b), and each party to the action must be given notice, pursuant to CPLR 3107, of the intended examination. See Spector v. Antenna and Radome Research Associates Corp., 25 A.D.2d 569, 267 N.Y.S.2d 843; Bush Homes, Inc. v. Franklin National Bank, 61 Misc.2d 495, 305 N.Y.S.2d 646; CPLR 3101 Practice Commentary (Siegel), § C3101:23; 3A Weinstein-Korn-Miller, § 3101.33. The court agrees with Justice Liff (see Muss v. Utilities & Industries Corp., 61 Misc.2d 642, 305 N.Y.S.2d 540; Bush Homes, Inc., v. Franklin National Bank, supra) that CPLR 3101 is a statute of description rather than of implementation and that it was never intended to authorize a motion Pursuant to subdivision (a)(4). The court has carefully examined and considered, but does not concur with, the contrary reasoning and holding of Kurzman v. Burger, Misc., 413 N.Y.S.2d 609.

Plaintiffs have, however, requested such other relief as may seem just and proper. The court will therefore consider which of the five said individuals are "parties" (as previously defined) through whom the corporate defendant County may be further deposed under the rationale of Amos Parrish & Co., Inc. v. Applestein, 28 A.D.2d 979, 283 N.Y.S.2d 439.

William M. Lombard, the Monroe County Sheriff, may not be so considered. Although the sheriff is paid by the county and, for certain purposes, has been held to be a "county officer" (see Burke v. Kern, 287 N.Y. 203, 38 N.E.2d 500), he is nevertheless, like the district attorney, a constitutional officer elected by the people. N.Y.Const., Art. XIII, § 13. Traditionally, the sheriff has not been an officer of the county but rather an officer of the court (Reck v. County of Onondaga, 51 Misc.2d 259, 273 N.Y.S.2d 146) and he has historically been treated as an independent agent (Enstrom v. City of New York, 258 A.D. 672, 17 N.Y.S.2d 964; Connelly v. Amico, 72 Misc.2d 644, 340 N.Y.S.2d 156, affd. 43 A.D.2d 1016, 353 N.Y.S.2d 1021). The state constitution provides that the county shall not be liable for his acts, and no case has been found which holds that the county may exercise control over the sheriff with respect to the duties of his office. For disclosure purposes, he must be considered as a non-party "witness" whose examination cannot be compelled without prior service of a subpoena.

A similar finding must be made as to Mr. Lombard's deputy, Lieutenant (formerly Sgt.) Garry L. Coles. Like the sheriff, Lt. Coles is paid by the county and, for collective bargaining purposes, it appears that he is considered a joint employee of the sheriff and the county. See Reese v. Lombard, 47 A.D.2d 327, 330, 366 N.Y.S.2d 493, 495. Nevertheless, there is nothing before the court to demonstrate that the defendant County possesses any such control over him as to bring him within the purview of CPLR 3101(a)(1). As the Fourth Department noted, in Amico v. Erie County Legislature, 36 A.D.2d 415, 423, 321 N.Y.S.2d 134, 143, affd. 30 N.Y.2d 729, 332 N.Y.S.2d 898, 283 N.E.2d 769:

"It is crucial to note that employees of the sheriff performing civil functions or both civil and criminal functions . . . are his personal agents, and are therefore not in the service of the county or the people."

Moreover, there is nothing to show that the matters as to which plaintiffs seek to examine Lt. Coles involve information acquired at the request of the defendant County or in furtherance of a duty owed to said defendant.

Sam F. La Franco is a county employee, but plaintiffs' motion to depose him must be denied for the same reasons stated in this court's prior decision of January 15, 1979. Although Mr. La Franco is the head of the county ...