Sorge v. City of New York

• Decision Date: 19 March 1968
• Citation: 288 N.Y.S.2d 787,56 Misc.2d 414
• Parties: Santo SORGE, Plaintiff, v. The CITY OF NEW YORK, Ralph Salerno and John F. Shanley, Defendants.
• Court: New York Supreme Court

Page 787

288 N.Y.S.2d 787

56 Misc.2d 414

Santo SORGE, Plaintiff, v. The CITY OF NEW YORK, Ralph Salerno and John F. Shanley, Defendants.

Supreme Court, Special Term, New York County, Part I.

March 19, 1968.

Gottlieb & Schiff, New York City, for plaintiff.

J. Lee Rankin, Corporation Counsel, New York City, for defendants.

SAMUEL A. SPIEGEL, Justice.

The City of New York, Ralph Salerno and John F. Shanley, defendants herein, move for summary judgment dismissing the complaint.

This is an action in slander and libel which, it is alleged, was occasioned by the defendant Salerno on December 20, 1965 and by the defendant Shanley on December 23, 1965.

At the time the cause of action accrued, Salerno was a Sergeant and Shanley was a Chief Inspector of the Police Department of the City of New York. Salerno was supervisor of detectives of the Criminal Investigation Bureau of the Police Department. Shanley was the highest ranking uniformed police officer in the Police Department. Salerno and Shanley appeared as witnesses to give testimony concerning the plaintiff before a Judge from Italy at a hearing conducted at the Italian Consulate.

The event of slander and libel is alleged to have occurred when the individual defendants testified before said Italian Judge in the Italian Consulate in connection with criminal proceedings pending in Italy. The individual defendants testified upon the request of the State Department of the United States which came through diplomatic channels and upon the direction of the then New York City Police Commissioner, Vincent L. Broderick, and in pursuance of their duties.

It is alleged that certain statements by the defendant Salerno were intended to mean, and were understood by the persons who heard the statements or translations thereof into the Italian language to mean, that plaintiff, Santo Sorge, had been and still is engaged in criminal activities with members of criminal organizations based in the United States and Sicily, Italy, and respectively known as 'Cosa Nostra' and 'the Mafia'.

It is further alleged that certain statements by the defendant Shanley were understood to mean that the plaintiff has a criminal relationship with the chiefs of 'Cosa Nostra' in the United States and Italy.

Notice of claim against the City of New York was filed on June 20, 1966. Action was commenced by delivery to the Sheriff of the summons for service on January 18, 1967. The defenses asserted are the untimely filing of a notice of claim, Statute of Limitation, absolute privilege, qualified privilege, truth, and testimony given in a judicial proceeding without malice toward plaintiff.

Plaintiff commenced his suit one year and two months after his cause of action arose. A one-year limitation, under CPLR Section 215, has been pleaded as a defense in behalf of each of the individual defendants only, and failure of compliance with the 90-day filing requirement under section 50--e has been pleaded on behalf of the defendant the City of New York. Notice of claim was filed after the 90-day period. The City does not plead failure to sue within the one-year limitation as part of its defense.

Many interesting subjects present themselves herein which are most worthy of exploration and discussion.

Let us first consider the necessity to file a notice of claim. Service of a notice of claim against a public corporation founded upon tort is required within 90 days after the claim arises (General Municipal Law, Section 50--e). The City's liability for all torts is predicated upon the wrongful acts of its agents, servants or employees.

Express responsibility in tort of public corporations for the negligent acts of employees involving vehicles and facilities for transportation was provided by statute before its transfer to the General Municipal Law. Stripping a public corporation of its immunity from suits in tort, common law and decisional law applies to public corporations as well as to private corporations. From the broad common law and decisional law base has been culled the public corporation's responsibility for vehicles and facilities used for transportation, now enacted in the General Municipal Law, 50--b and 50--c. However, that responsibility as thus culled from the full range and coverage of tort responsibility, is still subject to the full range of common-law doctrine of respondeat superior and pari delicto.

In Bernardine v. City of New York, 294 N.Y. 361, on pages 365 and 366, 62 N.E.2d 604, on page 605, the Court, in considering public corporation liability, stated:

'Section 8 of the Court of Claims Act says: 'The state hereby waives its immunity from liability and action and hereby assumes liability and consents to have the same determined in accordance with the same rules of law as applied to actions in the supreme court against individuals or corporations'. * * * None of the civil divisions of the State--its counties, cities, towns and villages--has any independent sovereignty. See N.Y.Const., art. IX, § 9; City of Chicago v. Sturges, 222 U.S. 313, 323, 32 S.Ct. 92, 56 L.Ed. 215, Ann.Cas.1913B, 1349; Keifer & Keifer v. Reconstruction Finance Corporation, 306 U.S. 381, 59 S.Ct. 516, 83 L.Ed. 784; Cf. Gaglio v. City of New York, 2 Cir., 143 F.2d 904. The legal irresponsibility heretofore enjoyed by these governmental units was nothing more than an extension of the exemption from liability which the State possessed. Murtha v. N.Y. Homeopathic Medical College & Flower Hospital, 228 N.Y. 183, 185, 126 N.E. 722. On the waiver by the State of its own sovereign dispensation, that extension naturally was at an end and thus we were brought all the way round to a point where the civil divisions of the State are answerable equally with individuals and private corporations for wrongs of officers and employees,-- even if no separate statute sanctions that enlarged liability in a given instance. Holmes v. Erie County, 291 N.Y. 798, 53 N.E.2d 369. Of course, the plaintiff in such a case must satisfy all applicable general statutory or charter requirements in the way of presentation of claims, notice of injury, notice of intent to sue and the like.'

The consequence of the foregoing is that if, in a particular case involving a non-vehicular tort, it is found and determined that there is public corporate responsibility to indemnify, the public corporation becomes the real party in interest and in any such case there must be compliance with 50--e and 50--i.

Commencement of an action in tort, whether under 50--b or 50--c or otherwise, where the responsibility to indemnify is obvious, requires that plaintiff must allege and prove due filing of notice of claim with the public corporation.

The time for commencement of action is controlled as against all defendants by 50--e and 50--i. The individual defendants are in the same category as the City for this purpose if this is a true case of indemnification.

To sum up, where employees are sued alone in their capacity as agents, servants or employees of the City, then, if they are entitled to indemnity from the City, a claim must be filed with the City within 90 days in accordance with Section 50--e and suit must be instituted within one year and three months pursuant to the requirements of Section 50--i.

Where employees and the City of New York are both sued as defendants, and the employees are entitled to indemnity, then a claim against all defendants must be filed with the City of New York in accordance with Section 50--e and suit must be instituted pursuant to Section 50--i.

In any event compliance with Sections 50--e and 50--i is required in all tort cases wherever the right to indemnity exists.

Exploration of the subject of indemnity logically follows at this point. By General Municipal Law, indemnification is absolute in the limited area described in Sections 50--b and 50--c. That is not to be taken to mean that responsibility and indemnity are strictly limited solely to the subject matter thereof. Where Sections 50--b and 50--c are involved, however, those statutes are to be strictly construed.

In Hahin v. City of Buffalo, 41 Misc.2d 1018, 1020, 246 N.Y.S.2d 917, 919, Section 50--e was applied to a truck driver employed by defendant, and the Court stated:

'Since the city must indemnify its employee, the city is the real party in interest and therefore the provisions of the General Municipal Law apply even though the action is against the employee alone.'

The individual defendants urge that the one year Statute of Limitations applies since any expressly stated right to be indemnified is limited by General Municipal Law, Sections 50--b and 50--c, only to claims of negligence arising from the use of a vehicle or facility of transportation. Section 50--b of the General Municipal Law states in essence that a municipality is liable for negligent operation of vehicles or other facility of transportation by its employees. Section 50--c of the General Municipal Law makes a municipality liable for the negligent operation of certain vehicles in the performance of duty by policemen and paid firemen.

In Bernardine v. City of New York, 294 N.Y. 361, 62 N.E.2d 604, a runaway police horse was involved. Plaintiff invoked Section 50--b and the City claimed the horse was not a facility for transportation and therefore, the City enjoyed common law immunity from responsibility. This issue was decided against the City.

The Court on page 365, page 605 of 62 N.E.2d said 'a conclusion which we have the more readily reached by the light of the wholesome statutory purpose to do justice to persons who are damaged by the wrongs of public servants functioning as such. Cf. Sheehan v. North Country Community Hospital, 273 N.Y. 163, 7 N.E.2d 28.'

The case of O'Hara v. Sears, Roebuck & Co., 286 App.Div. 104, 142 N.Y.S.2d 465, involved claims for false arrest and imprisonment against two police officers of the City of Buffalo individually. The City was not sued. Had the...