Barr v. Albany County

• Decision Date: 25 April 1978
• Citation: 404 N.Y.S.2d 299,94 Misc.2d 236
• Court: New York Supreme Court
• Parties: Gerilyn BARR et al., Plaintiffs, v. The COUNTY OF ALBANY et al., Defendants.

Page 299

404 N.Y.S.2d 299

94 Misc.2d 236

Gerilyn BARR et al., Plaintiffs, v. The COUNTY OF ALBANY et al., Defendants.

Supreme Court, Special Term, Albany County, Part I.

April 25, 1978.

DeGraff, Foy, Conway & Holt-Harris, Albany, for plaintiffs Gerilyn Barr, Stephen W. Baier, David Bryan, David E. Bebb and Rita C. Bebb, Donald Beckley, Suellen Buerle, Thomas J. O'Halloran and Stephen D. Williams (Michael J. Cunningham, Albany, of counsel).

Heslin, Irwin & Nieman, for plaintiffs Philip J. Pearson and Laura Lee Pearson (Dennis F. Irwin, Latham, of counsel).

Powers & Ghandi, Albany, for plaintiffs Bruce Benson, Harry M. Carter, Gregory Hostash, William Murray, Richard A. Patton, John Pitfido and George J. Soldner (Margrethe R. Powers, Albany, of counsel).

Dugan, Lyons, Pentak, Brown & Tobin, Albany, for defendants County of Albany and John J. McNulty (Kenneth L. Golden, Albany, of counsel).

HAROLD J. HUGHES, Jr., Justice:

Defendants County of Albany and John J. McNulty, Sheriff of Albany County, have moved to dismiss the complaints upon the ground that they fail to state a cause of action and for summary judgment dismissing the complaints against them.

In the summer of 1974 the plaintiffs in this consolidated action were attending a private party at a residence in the Town of Rensselaerville. At about 11:00 p. m. on August 14, 1977 several deputies of the Albany County Sheriff and some members of the State Police converged upon the house, searched the premises, and arrested most of the approximately fifty people attending the party, including the plaintiffs, for criminal possession of marijuana in the fifth degree, a felony. The arrested persons were transported to a police substation in Voorheesville where they were booked and fingerprinted. Upon arraignment before a Town Justice, who had issued a search warrant, all charges against the plaintiffs were dismissed either upon the motion of the District Attorney or upon the court's own motion. Thereafter, plaintiffs instituted the present action to recover damages for their alleged unlawful arrest.

The County of Albany has moved to dismiss the complaints as to it upon the ground that it is immune from liability under article XIII ( § 13, subd. (a)) of the New York State Constitution. Insofar as pertinent here, that provision of the Constitution provides that a county shall never be made responsible for the acts of the sheriff. Although the language of the constitutional provision states that immunity applies when liability is asserted against the county based on the sheriff's acts, there is a long line of cases which have held that the constitutional immunity also exists when liability is asserted based on the acts of a deputy sheriff (see Commisso v. Meeker, 8 N.Y.2d 109, 121, 202 N.Y.S.2d 287, 292, 168 N.E.2d 365, 369, Perry v. Custodi, 52 A.D.2d 1063, 384 N.Y.S.2d 323; Snow v. Harder, 43 A.D.2d 1003, 352 N.Y.S.2d 523; Isereau v. Stone, 3 A.D.2d 243, 160 N.Y.S.2d 336; Paolucci v. County of Dutchess, 67 Misc.2d 479, 324 N.Y.S.2d 452).

Plaintiffs argue, however, that the above cases are not dispositive because of the enactment by the Albany County Legislature of Local Law No. 5-1973, which provides as follows:

"Section 1. Any act or omission of any employee of the county in the office of the Sheriff, done or made in the performance of an official duty or for the performance of which the county is paid or receives compensation or a fee, shall be the act or omission of the county and the damages, if any, resulting therefrom shall be deemed the liability of the county.

"Section 2. Nothing contained in this section shall be deemed to render the county responsible or liable for the acts of the sheriff thereof where such responsibility or liability did not exist prior to the enactment hereof, nor relieve said sheriff from any liability to which he is lawfully subject.

"Section 3. Nothing contained herein shall be deemed or construed to increase or alter the County's liability beyond what is otherwise imposed upon the Sheriff, his deputies or employees.

"Section 4. This act shall take effect immediately."

This provision is identical to one which is contained in the Westchester County Administrative Code and which has been construed in McMahon v. Michaelian, 38 A.D.2d 60, 326 N.Y.S.2d 845, affd. 30 N.Y.2d 507, 329 N.Y.S.2d 821, 280 N.E.2d 651. In that case the sheriff had instituted an action challenging the constitutionality of a local law placing all deputy sheriffs into the classified civil service. In support of his position, the sheriff argued that, since article XIII ( § 13, subd. (a)) of the State Constitution made the county immune from liability for the acts of the sheriff, he alone was liable for the acts of his deputies and, therefore, should have exclusive authority to appoint personnel in his office. The Court of Appeals, which adopted the opinion of the Appellate Division, held that the local law was valid. Although the issues in McMahon (supra) were obviously different from the issue in the case at bar, the Court's analysis is, in this court's view, applicable in the present case:

"Section 345 of the code strictly complies with section 13 of article XIII of the Constitution. Its first paragraph imposes liability upon the county for acts of the Sheriff's appointees committed in the discharge of their official duties and its second paragraph merely restates the constitutional direction that the county not be made responsible for the acts of the Sheriff. The assumption by Westchester County of liability for the acts of the employees of the Sheriff is not prohibited by the Constitution, which merely mandates that a county 'shall never be made responsible for the acts of the sheriff,' for under the...