Mosey v. Cnty. of Erie

• Decision Date: 02 May 2014
• Citation: 2014 N.Y. Slip Op. 03041,984 N.Y.S.2d 706,117 A.D.3d 1381
• Parties: Acea MOSEY, as Administrator of the Estate of Laura Cummings, Deceased, Plaintiff–Appellant, v. COUNTY OF ERIE, Defendant–Respondent. (Appeal No. 1.).
• Court: New York Supreme Court — Appellate Division

117 A.D.3d 1381

984 N.Y.S.2d 706

2014 N.Y. Slip Op. 03041

Acea MOSEY, as Administrator of the Estate of Laura Cummings, Deceased, Plaintiff–Appellant,

v.COUNTY OF ERIE, Defendant–Respondent. (Appeal No. 1.).

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

May 2, 2014.

Connors & Vilardo, LLP, Buffalo (John T. Loss Of Counsel), for Plaintiff–Appellant.

Michael A. Siragusa, County Attorney, Buffalo (Jeremy C. Toth of Counsel), for Defendant–Respondent.

PRESENT: SMITH, J.P., PERADOTTO, LINDLEY, SCONIERS, and VALENTINO, JJ.

MEMORANDUM:

Following the death of plaintiff's decedent, who was tortured and killed at the hands of her mother and half-brother, plaintiff filed two notices of claim with the County of Erie (County), for wrongful death and tort, respectively. Thereafter, plaintiff commenced action No. 1 against the County and commenced action No. 2 against Timothy B. Howard, Erie County Sheriff (Sheriff). The complaint in action No. 1 asserts six causes of action to recover damages for the pain and suffering of decedent, and for her wrongful death, and also seeks punitive damages. The first cause of action alleges that the County, through its child protective services (CPS) and adult protective services (APS), was negligent in repeatedly failing to investigate adequately reports of abuse concerning decedent and thereby breached a duty to protect her from further abuse. The first cause of action further alleges, inter alia, that the County failed to take certain actions to protect decedent, to provide proper training and supervision for employees, and to meet standards regarding caseloads. The second cause of action alleges that the County is vicariously liable for the negligent omissions of employees of CPS and APS, and is premised upon the County's breach of the special duty it assumed to protect decedent when reports of alleged abuse were received, and decedent's justifiable reliance upon that duty. The third cause of action alleges in part that the County is vicariously liable for the actions of a Sheriff's deputy who returned decedent to her home without entering the home or investigating why decedent ran away from home. The third cause of action also alleges that the County failed to take certain actions to protect decedent, failed to provide proper training and supervision for its employees and those of the Sheriff's Office, and failed to maintain proper standards for caseloads, and by reason of these failures decedent was caused to suffer sexual, physical and emotional abuse and ultimately death from scalding and suffocation. The fourth cause of action alleges that the County is vicariously liable for the negligence of the deputy who returned decedent to her home after she ran away and breached a mandatory duty to report suspected abuse concerning decedent pursuant to the Social Services Law. The fourth cause of action further alleges that the County is vicariously liable for the negligence of employees of the Sheriff's Office and other employees who inadequately investigated reports, failed to remove decedent from her home and returned her to her home after she ran away. The fifth cause of action alleges that the County negligently hired, trained, supervised and retained employees in CPS, APS and the Sheriff's Office. Lastly, the sixth cause of action asserts a claim for wrongful death based upon the foregoing allegations.

The complaint in action No. 2 asserts four causes of action against the Sheriff to recover for the pain and suffering of decedent, and for her wrongful death. The first cause of action alleges that the Sheriff is vicariously liable for the negligence of the deputy and the employees of the Sheriff's Office who knew or should have known that decedent was being abused at her home, failed to remove her from her home and returned her there after she ran away. The second cause of action alleges that the Sheriff is vicariously liable for the negligence of the deputy who returned decedent to her home and failed to report suspected abuse concerning decedent in violation of a mandatory duty to report pursuant to the Social Services Law. The third cause of action alleges that the Sheriff is liable for negligently hiring, training, supervising and retaining the deputy and others who were involved in returning decedent to her home and in not removing decedent from her home. The fourth cause of action alleges that the Sheriff is liable for decedent's wrongful death based upon the conduct underlying the first three causes of action.

In action No. 1, following joinder of issue, plaintiff moved to compel the County to disclose certain records, and the County cross-moved for a protective order. Supreme Court granted plaintiff's motion, and the County disclosed some records to plaintiff. Plaintiff subsequently sought to depose various County employees, and the County canceled the first deposition the day before it was to occur and informed plaintiff of its intention to move to dismiss the complaint in each action.

Plaintiff thereafter moved to strike the County's answer in action No. 1 pursuant to CPLR 3126, based on the County's failure to respond to discovery demands and to comply with the court's discovery order. The County and the Sheriff moved to dismiss the respective complaints against them. The County asserted that the complaint in action No. 1 was subject to dismissal because “[p]laintiff's negligence claims ... are based upon discretionary acts ... and barred by governmental immunity”; “[p]laintiff cannot maintain ... claims for negligent hiring, training, and supervision” inasmuch as she failed to include them in her notices of claim; the County is not vicariously liable for the acts or omissions of the Sheriff or his deputies; and the County cannot be held liable for punitive damages.

In moving to dismiss the complaint in action No. 2, the Sheriff contended that the “common-law claims” are barred by the plaintiff's failure to file a notice of claim naming the Sheriff; he is not vicariously liable for the acts or omissions of his deputy, as asserted in the “negligence claims and [the] alleged violation of Social Services Law”; and governmental immunity bars the “negligence claims based upon discretionary determinations and actions.”

By the order in appeal No. 1, the court denied plaintiff's motion and granted the County's motion in action No. 1 for reasonsasserted by the County and, by the order in appeal No. 2, the court likewise granted the Sheriff's motion. We note with respect to appeal No. 2, however, that the court did not specifically address the Sheriff's assertion that the complaint against him was subject to dismissal because he was not named in a notice of claim, but addressed only the other two grounds for dismissal asserted by the Sheriff.

We reject plaintiff's contention in appeal No. 1 that the court erred in denying her motion to strike the County's answer. The nature and degree of a sanction to be imposed on a motion pursuant to CPLR 3126 is within the discretion of the court, and the striking of a pleading is appropriate only upon a clear showing that a party's failure to comply with a discovery demand or order is willful, contumacious, or in bad faith ( see Legarreta v. Neal, 108 A.D.3d 1067, 1070–1071, 969 N.Y.S.2d 305;Kimmel v. State of New York, 286 A.D.2d 881, 882–883, 730 N.Y.S.2d 648). Under the circumstances here, we perceive no abuse of discretion ( seeCPLR 3126...