Rew v. County of Niagara

• Decision Date: 07 May 2010
• Citation: 73 A.D.3d 1463,901 N.Y.S.2d 442,2010 N.Y. Slip Op. 04009
• Parties: Michael J. REW, Plaintiff–Respondent,v.COUNTY OF NIAGARA, County of Niagara Sheriff's Department, Niagara County Sheriff Thomas A. Beilein, and John Doe (Said Defendant Being Deputy on Duty and Involved in Shooting Incident on November 11, 2007), Defendants–Appellants. (Appeal No. 1.).
• Court: New York Supreme Court — Appellate Division

73 A.D.3d 1463
901 N.Y.S.2d 442
2010 N.Y. Slip Op. 04009

Michael J. REW, Plaintiff–Respondent,
v.
COUNTY OF NIAGARA, County of Niagara Sheriff's Department, Niagara County Sheriff Thomas A. Beilein, and John Doe (Said Defendant Being Deputy on Duty and Involved in Shooting Incident on November 11, 2007), Defendants–Appellants. (Appeal No. 1.).

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

May 7, 2010.

[901 N.Y.S.2d 443]

Gibson, McAskill & Crosby, LLP, Buffalo (Elizabeth M. Bergen of Counsel), for Defendants–Appellants.Lipsitz Green Scime Cambria LLP, Buffalo (John A. Collins of Counsel), for Plaintiff–Respondent.PRESENT: CENTRA, J.P., PERADOTTO, LINDLEY, SCONIERS, AND GORSKI, JJ.MEMORANDUM:

[73 A.D.3d 1464] Plaintiff commenced this action seeking damages for injuries he sustained when he was shot by defendant John Doe (defendant deputy), a Sheriff's Deputy employed by defendant County of Niagara Sheriff's Department (defendant County). Contrary to the contention of defendant deputy, Supreme Court properly denied his motion to dismiss the complaint against him based on plaintiff's failure to name him in the notice of claim. General Municipal Law § 50–e bars an action against an individual who has not been named in a notice of claim only where such notice is required by law ( see Cropsey v. County of Orleans Indus. Dev. Agency, 66 A.D.3d 1361, 1362, 886 N.Y.S.2d 290). The naming of a county employee in the notice of claim, and thus the service of the notice of claim upon the employee, “is not a condition precedent to the commencement of an action against such person unless the county is required to indemnify such person” ( Bardi v. Warren County Sheriff's Dept., 194 A.D.2d 21, 23–24, 603 N.Y.S.2d 90, citing General Municipal Law § 50–e[1][b] ). A county's duty to indemnify an employee “turns on whether [the employee was] acting within the scope of [his or her] employment ( see Public Officers Law § 18[1][a], [b]; [4][a] ),” and whether the obligation to indemnify the employee was formally adopted by a local governing body ( Grasso v. Schenectady County Pub. Lib., 30 A.D.3d 814, 818, 817 N.Y.S.2d 186; see Public Officers Law § [2] [a]; Matter of Coker v. City of Schenectady, 200 A.D.2d 250, 252–253, 613 N.Y.S.2d 746, appeal dismissed 84 N.Y.2d 1027, 623 N.Y.S.2d 183, 647 N.E.2d 455). Here, even assuming, arguendo, that defendant County was required to indemnify defendant deputy, which is not clear from the record before us, we note...