Jones v. Herkimer County
| Citation | 272 N.Y.S.2d 925,51 Misc.2d 130 |
| Parties | Flora D. JONES, as Administratrix of the Goods, Chattels and Credits of Noreen Jones, Deceased, Plaintiff, v. The COUNTY OF HERKIMER, New York, Michael Bush, as Herkimer County Probation Officer, the Village of Frankfort, Herkimer County, New York, and the Village of Ilion, Herkimer County, New York, Defendants. |
| Decision Date | 22 July 1966 |
| Court | New York Supreme Court |
The defendant, Village of Ilion, has moved for summary judgment pursuant to CPLR § 3212; the defendant, Village of Frankfort, has moved pursuant to CPLR § 3211(a)(7), on the grounds that the plaintiff's complaint fails to state a cause of action against it.
This Court rendered its written decision in this matter on June 10, 1966. An order was entered thereon on June 23, 1966. Subsequently, a motion was granted for reargument which was held on July 15, 1966. The decision of the Court follows.
This action is brought by Flora A. Jones, as Administratrix of the Estate of Noreen Jones, deceased, to recover money damages for wrongful death, pain and suffering and funeral expenses. In addition to the Villages of Frankfort and Ilion, the County of Herkimer and Michael Bush, as Herkimer County Probation Officer, are named defendants, although the latter two are not parties to these motions.
The Village of Frankfort is located in the Town of Frankfort, and the Village of Ilion is located in the Town of German Flatts. Both municipalities are in Herkimer County and are adjacent to one another.
On August 27, 1964, Noreen Jones, a resident of the Village of Ilion, New York, was shot and killed by one Benedict DiPiazza, a resident of the Village of Frankfort, in the office of the Frankfort Village Clerk on Main Street in Frankfort, New York. The events leading to the decedent's death commenced in March 1961 when DiPiazza began making threatening phone calls to the decedent's house. There followed incidents wherein DiPiazza, in his automobile, followed the decedent, assaulted her on the road, annoyed her on a bus (1962), prowled around her residence at night and attempted to enter, and made more threatening and abusive phone calls (1963). In January 1964, DiPiazza entered the decedent's home, uninvited, and annoyed decedent until ejected by decedent's father. On February 3, 1964, he assaulted her on the street. As a result of this, a meeting was held on February 4, 1964 in the private law office of the Herkimer County District Attorney. DiPiazza, his father (who is the Police Judge of the Village of Frankfort), the decedent, and her father were present. During the course of the meeting DiPiazza punched the decedent, knocking her to the floor, and also struck the decedent's father. This resulted in DiPiazza's conviction by Samuel Lahey, Acting Police Judge, in the Police Court of Ilion, of assault in the third degree, on two counts. Sentence was suspended and DiPiazza was placed on probation for two years. Despite this, however, DiPiazza continued to threaten, harass and annoy the decedent until he shot and killed her on August 27, 1964.
The plaintiff's complaint alleges that Noreen Jones' death was occasioned wholly through the negligence of the defendants and/or their agents and employees. It is alleged that the Villages of Frankfort and Ilion had knowledge of the fact that DiPiazza was placed on probation on March 13, 1964, after having been convicted of assaulting the decedent and her father in February 1964; that while on probation and prior to August 27, 1964, they knew that, despite this probation he continued to threaten the decedent and menace her life. It is alleged that this conduct was communicated on a number of occasions to the defendant Villages and that they refused to take any affirmative steps to revoke DiPiazza's probation.
The defendant Village of Frankfort in its Demand for a Bill of Particulars requested (Item 2) a specification of the acts and omissions as they relate to the Village of Frankfort, its servants, agents and/or employees, which the plaintiff claims constituted negligence, misconduct, misfeasance and nonfeasance. The Demand also asked for a detailed statement (Item 4) setting forth times, dates, and methods by which the decedent was threatened or annoyed by DiPiazza and the times, methods and dates such were communicated to the officials, servants, agents, and/or employees of the Village of Frankfort. In response to these requests, the plaintiff in her Bill of Particulars sets forth (para. 2) in substance, merely conclusory statements that the Village of Frankfort through its agents, servants and/or employees knew that DiPiazza was violating his probation and that he continued to threaten and annoy the decedent and that this knowledge was communicated to the officials of the Village of Frankfort but that the Village of Frankfort officials did nothing. No specific facts are set forth. Item 4 of the Demand was answered by setting forth in 4a of the plaintiff's Bill of Particulars a number of incidents involving harassment of decedent by DiPiazza commencing in March 1961, and ending on February 4, 1964, the date of the assault in the Herkimer County District Attorney's private law office in Ilion. It is also claimed that on August 27, 1964, sometime before the fatal shooting, DiPiazza threatened the decedent. In response to the Demand (Item 4) as to how this information was communicated to the Village Officials of the Village of Frankfort, the plaintiff sets forth in 4(b) of the Bill of Particulars, a number of incidents which were directly communicated by the decedent's family to the father of Benedict DiPiazza. sometimes referred to in the Bill of Particulars as Police Judge of the Village of Frankfort, and other times referred to as the father of DiPiazza. It is claimed that these communications were made either by phone or by personal visit. The threat to the deceased on the date of her death, prior to her fatal shooting, was communicated to George Grates, the Acting Chief of Police of the Village of Frankfort, by the decedent's father, Mr. Jones. In addition, the facts reveal that the decedent sought sanctuary, immediately prior to her death, in the Village Offices of the Village of Frankfort.
Upon the oral argument, the plaintiff's attorney claimed that the violation of probation, the threats, and the annoyances to the decedent during the period from March 13, 1964, when DiPiazza was placed on probation to August 27, 1964, when the decedent was fatally shot, were all known to the municipality of Frankfort because of the knowledge of DiPiazza's father. The attorney for the Village of Frankfort asserted that the information obtained by Mr. DiPiazza was not obtained by him in his capacity as a public official, but was learned by him as DiPiazza's father and that, therefore, such knowledge was not imputable to the Village of Frankfort.
As to the defendant Village of Ilion, plaintiff asserts that it had knowledge of all of the above facts. The moving papers state that in 1961, decedent's mother talked with three Village of Ilion Police Officers about the threatening phone calls. She also called the Village Police Station in the spring and late summer of 1962 to complain and was advised by the Ilion Police to call the phone company. Plaintiff claims that the same pattern of communication, by phone and personal visits, to the Ilion Police Department was followed in 1963 and 1964. It is alleged that Police Judge Curtis of Ilion was present at the assault incident in the District Attorney's private office and was the person who summoned the police. It is claimed that the Ilion Police knew that as a part of the agreement to place him on probation, DiPiazza agreed never to bother the decedent again. Plaintiff alleges that the Police Judge of Ilion and the Ilion Police Department knew of DiPiazza's violation of his probation. Plaintiff calims that a specific call was made on August 17, 1964, to the Ilion Police Department to report that DiPiazza was prowling around the decedent's house and looking in the windows, but that no action was taken.
The defendant Village of Ilion contends that none of the actions complained of and alleged in the complaint and supporting papers were committed in the presence of the Village Police of the Village of Ilion and that none of these alleged acts were a felony. It further contends that no Information was ever filed with the Village Police Department by the Jones family. It claims that the telephone call made on August 17, 1964, was acted upon by the Village because a patrol car was dispatched on two separate occasions that evening to the Jones house in response to the calls but that DiPiazza could not be found in the area. In an affidavit filed by Maurice Goldin, Chief of Police for the Village of Ilion, he sets forth the entries which appear on the Village of Ilion Police Docket. His affidavit reveals the altercation which occurred on February 4, 1964, in the private office of the District Attorney of Ilion. The next entry was on February 27, 1964, as follows: . The next entry is as follows: ...
To continue reading
Request your trial
-
Randall v. Fairmont City Police Dept.
...complaint must be taken as true." Syl. pt. 1, Wiggins v. Eastern Associated Coal A very similar case is Jones v. County of Herkimer, 51 Misc.2d 130, 272 N.Y.S.2d 925 (Sup.Ct.1966). In that case an individual had physically and emotionally harassed and threatened the decedent for about three......
-
Poysa v. State
...39 N.Y.2d 1056, 387 N.Y.S.2d 428, 355 N.E.2d 388; Baker v. City of New York, 25 A.D.2d 770, 269 N.Y.S.2d 515; Jones v. County of Herkimer, 51 Misc.2d 130, 272 N.Y.S.2d 925), or if an act or decision violates a pre-existing right of a person or definable class of persons, which right is reco......
-
Busweiler v. MCB P'Ship
...debatable,” summary judgment must be denied. Bayesian v. HF Horn, 21 A.D.2d 714 (1st Dept.1964); Jones v. County of Herkimer, 51 Misc.2d 130, 135 (Sup.Ct., Herkimer County, 1966); Town of Preble v. Song Mountain, Inc., 62 Misc.2d 353, 355 (Sup.Ct., Courtland County, 1970); See also, Sillman......
-
Barber v. Cornell Univ. Coop. Extension of Orange Cnty.
...debatable,” summary judgment must be denied. Bayesian v. HF Horn, 21 A.D.2d 714 (1st Dept.1964); Jones v. County of Herkimer, 51 Misc.2d 130, 135 (Sup.Ct., Herkimer County, 1966); Town of Preble v. Song Mountain, Inc., 62 Misc.2d 353, 355 (Sup.Ct., Courtland County, 1970); See also, Sillman......