ABATE v. COUNTY OF ERIE (2021)

MEMORANDUM AND ORDER

It is hereby ORDERED that the order so appealed from is unanimously modified on the law by granting the motion of defendants County of Erie and Erie County Sheriff's Office in part, dismissing the amended complaint against defendant Erie County Sheriff's Office and dismissing the fourth cause of action against defendant County of Erie, and as modified the order is affirmed without costs.

Memorandum: The decedent, plaintiff's late husband, died while trapped in his car during a significant snowstorm, and plaintiff commenced this action to recover damages upon allegations that the decedent's death was caused by the alleged negligence of, among others, the County of Erie (County) and the Erie County Sheriff's Office (ECSO) in failing to rescue the decedent. The County and ECSO (defendants) moved for summary judgment dismissing the amended complaint against them, and plaintiff cross-moved for, inter alia, summary judgment on the issue of liability. Supreme Court denied both defendants’ motion and plaintiff's cross motion. Defendants appeal, and plaintiff cross-appeals.

A sheriff's office has no legal identity separate from its corresponding county, “and thus an ‘action against the Sheriff's [Office] is, in effect, an action against the [corresponding] County itself’ ” (Johanson v. County of Erie, 134 A.D.3d 1530, 1532, 22 N.Y.S.3d 763 [4th Dept. 2015]; see Maio v. Kralik, 70 A.D.3d 1, 10, 888 N.Y.S.2d 582 [2d Dept. 2009]). We therefore agree with defendants, on their appeal, that the court erred in denying their motion insofar as it sought summary judgment dismissing the amended complaint against ECSO. Moreover, because “[t]here is no recovery for loss of consortium in a wrongful death action” (Kaplan v. Sparks, 192 A.D.2d 1119, 1120, 596 N.Y.S.2d 279 [4th Dept. 1993]), we further agree with defendants that the County is entitled to summary judgment dismissing plaintiff's cause of action against it for loss of consortium. We modify the order accordingly.

We reject defendants’ further contention, however, that the court also erred in denying their motion insofar as it sought summary judgment dismissing any vicarious liability claim against the County for the alleged negligence of ECSO's civilian employees. Although a “county may not be held responsible for the negligent acts of the Sheriff and his [or her] deputies on the theory of respondeat superior” (Mosey v. County of Erie, 117 A.D.3d 1381, 1385, 984 N.Y.S.2d 706 [4th Dept. 2014] [internal quotation marks omitted]; see Wilson v. Sponable, 81 A.D.2d 1, 9-12, 439 N.Y.S.2d 549 [4th Dept. 1981], appeal dismissed 54 N.Y.2d 834 [1981]), we conclude that a county may be vicariously liable for the negligent acts of the sheriff's civilian employees given the general rule that a sheriff's office does not exist separately from its corresponding county (see Johanson, 134 A.D.3d at 1531-1532, 22 N.Y.S.3d 763; Maio, 70 A.D.3d at 10, 888 N.Y.S.2d 582; see generally Riss v. City of New York, 22 N.Y.2d 579, 581, 293 N.Y.S.2d 897, 240 N.E.2d 860 [1968]). Moreover, and contrary to defendants’ further contention, the County is not entitled to immunity under Executive Law § 25 because that statute was not pleaded as an affirmative defense in the answer (see CPLR 3018 [b]; see generally Pitts v. State of New York, 166 A.D.3d 1505, 1506, 88 N.Y.S.3d 323 [4th Dept. 2018]).

Finally, contrary to the contentions of both defendants on their appeal and plaintiff on her cross appeal, there are triable issues of fact regarding the element of special duty and the affirmative defense of governmental function immunity. The court thus properly denied both defendants’ motion and plaintiff's cross motion insofar as they sought summary judgment on the issue of liability with respect to the County (see generally Coleson v. City of New York, 24 N.Y.3d 476, 482-483, 999 N.Y.S.2d 810, 24 N.E.3d 1074 [2014]; Xenias v. City of New York, 191 A.D.3d 453, 453-454, 142 N.Y.S.3d 148 [1st Dept. 2021]; Williams v. City of New York, 188 A.D.3d 442, 442, 131 N.Y.S.3d 863 [1st Dept. 2020]).