George v. Erie County

• Decision Date: 24 June 1971
• Citation: 322 N.Y.S.2d 278,66 Misc.2d 871
• Parties: Samuel GEORGE, individually and as administrator of the goods, chattels and credits which were of Rosetta George, Deceased, Plaintiff, v. COUNTY OF ERIE and Sheriff of Eric County, Defendants.
• Court: New York Supreme Court

Page 278

322 N.Y.S.2d 278

66 Misc.2d 871

Samuel GEORGE, individually and as administrator of the goods, chattels and credits which were of Rosetta George, Deceased, Plaintiff, v. COUNTY OF ERIE and Sheriff of Eric County, Defendants.

Supreme Court, Erie County.

June 24, 1971.

[66 Misc.2d 872] Miserendino, Krull & Foley, Buffalo (Samuel R. Miserendino, Buffalo, of counsel), for plaintiff.

Kennedy & Smith, Buffalo (J. Leo Kennedy, Buffalo, of counsel), for defendant County of Erie.

Adams, Brown, Starrett & Maloney, Buffalo (John Y. Gallup, Buffalo, of counsel), for defendant Sheriff of Erie County.

MEMORANDUM

JOSEPH P. KUSZYNSKI, Justice.

In a heavy snow storm at about 3:20 a.m. on December 7, 1964, a Sheriff's vehicle patroling a County road struck two pedestrians, plaintiff and his wife, resulting in serious injury to plaintiff and the death of his wife.

The vehicle was being driven at a speed of 35 miles per hour with visibility between 25 to 30 feet. The pedestrians, both residents of the Cattaraugus Reservation, were drinking before the accident; the testimony concerning the extent of their drinking is in dispute. The car was heading south as were the pedestrians. Uncontroverted was plaintiff's testimony that prior to the accident both he and his wife were walking in the left lane facing oncoming traffic. The deputies directly involved conducted the investigation although other deputies were at the scene. Both deputies involved testified they did not know where or how the decedent was struck. They said they first became aware of her when they saw her body lying in a ditch along the left side of their vehicle some 140 feet away from the point of impact with her husband.

The questions of negligence of the deputy operating the patrol car and of contributory negligence on the part of the pedestrians were submitted to the jury. The jury thereupon unanimously returned general verdicts in the sum of $150,000 for Samuel George, Sr. for personal injuries and a further sum of $100,000 for the wrongful death of his wife.

In submitting the liability issues to the jury, the Court reserved to itself the question concerning which defendant the verdicts, if any, would be entered against.

The issue of which defendant shoulders the responsibility for the actions of the deputy sheriff in his negligent operation of the patrol car is enmeshed in the complex constitutional difficulties surrounding the responsibilities of the Sheriff stemming from Article 13, § 13 of the New York State Constitution which states 'but the county shall never be made responsible for the acts of the sheriff.' This question is all important with respect to the plaintiff's right to recover.

It appears that plaintiff's attorney in serving the summons shortly After the first anniversary of the accident was in full compliance with Section 50--e of the General Municipal Law. Earlier he had served a notice of claim within 90 days of the accident. However, he ran afoul of the one-year statute of limitations (Section 215, subd. 1, CPLR) pertaining to actions brought against a sheriff. The Erie County Special Term decision, affirmed on appeal, struck down the plaintiff's suit for personal injuries as against the Sheriff but allowed it as against the County of Erie under Section 214, subd. 5, providing for a three-year limitation. In the wrongful death action, the priority of the two-year limitation of the death action statute (Section 5--4.1 Estate, Powers and Trusts) over the sheriff's special statute of limitations was upheld. Therefore, the death action is against both defendants. This is the posture in which these two actions came on for trial before this Court.

There is no conflict as to the manner in which the 1964 Chevrolet used by the deputies was registered; who purchased it, repaired it not is there any question as to who would receive the funds paid upon its sale. Nor was the manner of its use questioned. The conflict among the parties concerns the legal conclusions which may be drawn from the uncontroverted facts.

The deputies were assigned to the Sheriff's Criminal Division and were on a customary patrol checking for burglaries, break-ins, etc. The vehicle was purchased by the County with its funds, maintained by it and would have recovered any monies received from its sale. Further, in 1964 the vehicle was registered as being owned by 'County of Erie Sheriff Department.' There was testimony that all County of Erie vehicles are registered in the County's name followed by the name of the department to which they are assigned. Three County officials, namely, the present County Executive who was Sheriff when the accident happened, the Budget Director and the Deputy County Executive, testified that the vehicle is owned by the County.

A sheriff personally may not be held responsible for acts of his deputies while discharging a criminal function. (Isereau v. Stone, 3 A.D.2d 243, 160 N.Y.S.2d 336.) In such cases, the deputy is not an agent of the sheriff because he is then in the service of the public. However, where a deputy is driving a county-owned vehicle, his negligence, if any, is attributable to the county as owner of the vehicle under Section 388 of the Vehicle & Traffic Law which makes an owner responsible for the manner in which vehicles are driven, if driven with the owner's permission. See also, General Municipal Law, Section 50--a, whereby liability attaches to a municipality for the negligent operation of a municipally owned vehicle. Liability is imposed upon the county statutorily rather than by 'conduit of employment extending from the Deputy through the Sheriff to the County.' (Reck v. County of Onondaga, 51 Misc.2d 259, 273 N.Y.S.2d 146.) The constitutional provision that the county shall never be made responsible for the acts of the sheriff does not immunize the county from liability for negligence of a deputy sheriff who when acting pursuant to his employment and within the scope of his duties is involved in an accident while operating a countyowned vehicle.

This Court concludes that the automobile was owned by the County and assigned to the Sheriff's Department for its use. The motion for non-suit on behalf of the defendant Sheriff in the wrongful death action is granted.

On an issue collateral to the ownership question, the motion, made by counsel for the County, to strike from its answer any admission that it is the owner must fall of its own weight....