Barr v. Albany County

• Decision Date: 05 April 1979
• Citation: Barr v. Albany County, 415 N.Y.S.2d 471, 69 A.D.2d 914 (N.Y. App. Div. 1979)
• Parties: Gerilyn BARR et al., Respondents, v. COUNTY OF ALBANY et al., Appellants, Henry Bayer et al., Defendants.
• Court: New York Supreme Court — Appellate Division

Page 471

415 N.Y.S.2d 471

69 A.D.2d 914

Gerilyn BARR et al., Respondents, v. COUNTY OF ALBANY et al., Appellants Henry Bayer et al., Defendants.

Supreme Court, Appellate Division, Third Department.

April 5, 1979.

Dugan, Lyons, Pentak, Brown & Tobin, Albany (Kenneth L. Golden, Albany, of counsel), for appellants.

DeGraff, Foy, Conway & Holt-Harris, Albany (Michael J. Cunningham, Albany, of counsel), for respondents Gerilyn Barr et al.

Before MAHONEY, P. J., and GREENBLOTT, STALEY, MIKOLL and HERLIHY, JJ.

MEMORANDUM DECISION.

Appeal from an order of the Supreme Court at Special Term, entered May 8, 1978 in Albany County, which denied the motion of defendants', County of Albany and Sheriff of Albany County, to dismiss plaintiffs' complaint, or for an order granting summary judgment.

On August 14, 1977, plaintiffs were attending a private party at premises known as the "Ordway House" in the Town of Rensselaerville, Albany County. At about 11:00 P.M., several deputies of the Albany County Sheriff's office, acting in conjunction with the New York State Police, participated in a "drug raid" at the premises pursuant to a search warrant.

The search warrant was obtained from Town Justice Kellam upon information supplied by an identified informant that certain quantities of controlled substances were located within the house on the premises. The record indicates that the deputy sheriffs arrived in several vehicles, converged on the premises, and all entered on a pre-arranged signal, and conducted a search of the premises. Almost everyone in attendance was arrested and charged with criminal possession of marijuana in the fifth degree, a felony.

Upon arraignment before the Town Justice, who had issued the 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 unlawful arrest and false imprisonment against the County of Albany, the Sheriff of Albany County, and the deputy sheriffs who participated in the raid and the arrests. Defendants, County of Albany and the Sheriff of Albany County, moved to dismiss the complaint against them on the ground that the complaint failed to state a cause of action, and for summary judgment on the merits as a matter of law which Special Term denied.

Defendants contend that the New York State Constitution provides that a county shall never be liable for the acts of a Sheriff, that a Sheriff is not liable for the acts of a deputy sheriff acting in the performance of his duty, and that negligence is not an element of a cause of action for false arrest and imprisonment.

The New York State Constitution provides that "the county shall never be made responsible for the acts of the sheriff" (N.Y.Const., art. XIII, § 13, subd. (a)). It has been held that the compelling mandate of the constitutional provision is crystal clear, stating in the plainest language that the county shall never be made responsible for the acts of the Sheriff (Commisso v. Meeker, 8 N.Y.2d 109, 202 N.Y.S.2d 287, 168 N.E.2d 365). The courts have also extended the immunity from liability of the county to acts committed by deputy sheriffs in the course of their official duties (Perry v. Custodi, 52 A.D.2d 1063, 384 N.Y.S.2d 323).

Special Term held that Local Law No. 5 for the year 1973, of the County of Albany, makes the county liable for the acts of deputy sheriffs. Section 1 of that law provides that "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 * * * shall be the act or omission of the county * * * ", and the county shall be liable in damages.

In the case of Perry v. Custodi...