Berardi v. Niagara Cnty.

• Decision Date: 03 February 2017
• Citation: 47 N.Y.S.3d 544,147 A.D.3d 1400
• Parties: Angela BERARDI, Plaintiff–Respondent, v. NIAGARA COUNTY, et al., Defendants, and Niagara County Sheriff James R. Voutour, Defendant–Appellant.
• Court: New York Supreme Court — Appellate Division

147 A.D.3d 1400

47 N.Y.S.3d 544

Angela BERARDI, Plaintiff–Respondent,

v. NIAGARA COUNTY, et al., Defendants,andNiagara County Sheriff James R. Voutour, Defendant–Appellant.

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

Feb. 3, 2017.

Gibson, Mcaskill & Crosby, LLP, Buffalo (Elizabeth M. Bergen of Counsel), for Defendant–Appellant.

Andrews, Bernstein, Maranto & Nicotra, LLP, Buffalo (Andrew Connelly of Counsel), for Plaintiff–Respondent.

PRESENT: CARNI, J.P., LINDLEY, DeJOSEPH, CURRAN, AND TROUTMAN, JJ.

MEMORANDUM:

Plaintiff commenced this action seeking damages for injuries she allegedly sustained after being sexually assaulted and subjected to verbal sexual harassment by defendant Brian M. Meacham (Meacham) while plaintiff was incarcerated in the Niagara County Jail. Meacham was employed by defendant Eastern Niagara Hospital, Inc. (ENH) and, on the date of the incident, he was providing radiology services to inmates at the jail, including plaintiff. Defendant Niagara County contracted with defendant Armor Correctional Health Services of New York, Inc. (Armor) to provide medical services at the jail, and Armor subcontracted with ENH to provide radiology services.

Supreme Court previously granted the pre-answer motion of, inter alia, defendant Niagara County Sheriff James R. Voutour (Sheriff) to dismiss the amended complaint against him and thereafter, upon granting plaintiff's motion for leave to reargue pursuant to CPLR 2221(d)(2), reinstated the amended complaint against him. We agree with the Sheriff that the amended complaint was properly dismissed against him, and we therefore reverse the order insofar as appealed from.

Plaintiff was not required to file a notice of claim or comply with General Municipal Law §§ 50–h and 50–i prior to the commencement of the action against the Sheriff (see generally Mosey v. County of Erie, 117 A.D.3d 1381, 1386, 984 N.Y.S.2d 706 ), and we thus agree with plaintiff that the Sheriff was not entitled to dismissal on that ground. We conclude, however, that the amended complaint failed to state a cause of action against the Sheriff, which was asserted as an alternative basis for dismissal. The allegations against him were based only on respondeat superior and, even assuming, arguendo, that Meacham was the Sheriff's agent, servant or employee, we conclude that the Sheriff is not liable for Meacham's alleged sexual assault of plaintiff (see generally D'Amico v. Correctional Med. Care, Inc., 120 A.D.3d 956, 959, 991 N.Y.S.2d 687 ; Hooper v. Meloni, 123 A.D.2d 511, 512, 507 N.Y.S.2d 103 ). It is well settled that a principal or employer may be vicariously liable for the tortious acts of its employees only if those acts were "committed in furtherance of the employer's business and within the scope of employment" (N.X. v. Cabrini Med. Ctr., 97 N.Y.2d 247, 251, 739 N.Y.S.2d 348, 765 N.E.2d 844 ; see Riviello v. Waldron, 47...