LK v. SARATOGA COUNTY SHERIFF OFFICE SARATOGA COUNTY CORRECTIONAL FACILITY (2026)

In November 2023, the plaintiff commenced this action pursuant to the Adult Survivors Act under CPLR 214-j. The plaintiff alleges that he was sexually abused by a correction officer (a sergeant) on several occasions while he was an inmate at the county jail in the 1980s. Following the completion of discovery, the defendants have filed a motion for summary judgment seeking to dismiss the complaint pursuant to CPLR 3212. The plaintiff has opposed the motion and filed a cross motion seeking permission to amend the summons and complaint to add the former sheriff as a defendant.

I.

Background

The plaintiff brought this action against the County of Saratoga, the Saratoga County Sheriff's Office, and the Saratoga County Correctional Facility. His first cause of action sounds in general negligence against the defendants. The plaintiff also alleges causes of action sounding in negligent hiring, supervision, and retention in addition to a claim of gross negligence and willful misconduct. The plaintiff also claims that he was subjected to cruel and unusual punishment in violation of the state constitution. The complaint does not assert any claims against the alleged abuser (now deceased), his estate, the former sheriff in charge of the jail at the time of the alleged abuse, or any members of his staff.

The defendants contend that they are immune from liability for any alleged negligence or willful misconduct of those responsible for overseeing the inmates at the jail. They rely on a former state constitutional provision and the case law construing it. In addition, the defendants contend that they lacked prior notice of the alleged abuse and the alleged abuser's propensity to commit it. In response, the plaintiff contends that the constitutional provision and case law relied upon by the defendants are no longer applicable and that a question of fact exists as to whether the defendants assumed the duties of the former sheriff. The plaintiff also contends that the defendants knew about the alleged abuse because he complained about it to the former undersheriff.

The immunity provision relied on by the defendants provides that "the county shall never be made responsible for the acts of the sheriff" (NY Const art XIII, § 13 [former (a)]). This section of the constitution has since been amended, resulting in the removal of this language, effective January 1, 1990 (see Thoubboron v New York State Dep't of Civil Service, 175 AD2d 443, 443 [3d Dept 1991], affd 79 NY2d 982 [1992]).

Prior to its removal, the courts applied the immunity provision in a variety of situations to summarily dispose of claims against counties based on the alleged torts of a sheriff and his staff, including in cases involving inmate safety at a county jail (see e.g. Commisso v Meeker, 8 NY2d 109 [1960]; Snow v Harder, 43 AD2d 1003 [3d Dept 1974] [explaining that the courts have "repeatedly held that the county is not responsible for the acts of the Sheriff or his deputy" and that "this conclusion is both logically and practically sound"]). Warren's Negligence has referred to this rule as the "Prior Rule of Non-Liability" (2 Warren's Negligence in the New York Courts § 39.04 [Bender 2026]).

In Commisso v Meeker, 8 NY2d 109 (1960), for example, the plaintiff sought to hold a county vicariously liable in connection with an automobile accident caused by a sheriff's deputy. The Court of Appeals recognized that "ordinarily a governmental subdivision of the State would be liable upon the finding that its employee negligently caused injury to another in the course of performing his official duties" (8 NY2d at 118, citing County Law § 53 [1]). The court nevertheless held that the constitution immunized the county from liability, and that neither a statute (County Law § 53) nor a court's desire for equity could override the constitutional mandate. The court held that the immunity provision in the state constitution (then contained in article IX, § 5) was "crystal clear," "stating in the plainest language that 'the county shall never be made responsible for the acts of the sheriff" (id. at 121 [emphasis in original]).

Where a plaintiff's claim was based on the acts of the sheriff himself, the immunity provision was applied unconditionally, without regard to contrary rules contained in statutes, local laws, or the common law (see id.; Wilson v Sponable, 81 AD2d 1 [4th Dept 1981]; Perry v Custodi, 52 AD2d 1063 [4th Dept 1976]; see also Barr v County of Albany, 50 NY2d 247 [1980]; Isereau v Stone, 3 AD2d 243 [4th Dept 1957]). This immunity was also applied to the conduct of the sheriff's deputies and others appointed by the sheriff pursuant to County Law § 652 (see Commisso, 8 NY2d at 109 [deputy sheriff]; Wilson, 81 AD2d at 1 [jailers]; Snow, 43 AD2d at 1003 [explaining that a sheriff, with his multitude of duties, can function only with the aid of deputies and that the immunity provision was not intended to apply only when the sheriff personally performed an act]; Douglas v County of Oswego, 151 Misc 2d 239, 240 [Sup Ct, Oswego County 1991] [explaining that the county's immunity extends to the negligent acts of the sheriff's "employees and jail personnel"]; Paolucci v County of Dutchess, 67 Misc 2d 479 [Sup Ct, Dutchess County 1971] [personnel]). A county was permitted, however, to voluntarily assume responsibility by legislative enactment for the tortious acts of a sheriff's staff as distinguished from the acts of the sheriff himself (see Barr, 50 NY2d at 256-257).

II.

The Immunity Provision Applies to the Plaintiff's Claims

As explained above, the language in the state constitution relied upon by the defendants was removed, effective January 1, 1990. That same year, the Fourth Department explained the impact of this amendment on cases involving an alleged act committed by a sheriff or his staff before the removal of the immunity provision (see Brooks v County of Onondaga, 167 AD2d 862 [4th Dept 1990]). There, the court held that the amendment "should not be given retroactive effect" (id. at 862). In considering "the general rule of construction that constitutional provisions are to be construed as prospective only, unless a clear intent to the contrary is found," the court held that there was "no indication in the legislative history of the amendment or in the amendment itself indicating that the amendment should be retroactively applied" (id. [internal quotation marks and citation omitted]).

Similarly, in Bowman v Campbell, 193 AD2d 921 (3d Dept 1993), the decedent died in August 1989 while an inmate in the county jail, and the plaintiff commenced an action to recover against the county after the constitutional amendment had removed the immunity language. There, the Third Department agreed with the Fourth Department that "the amendment [did] not apply retroactively" (Bowman, 193 AD2d at 923 n, citing Brooks, 167 AD2d at 862). In its decision, the Third Department reiterated the general rule of immunity and cited a prior decision applying this rule (see id. at 923, citing Green v County of Fulton, 123 AD2d 88, 89 [3d Dept 1987]).

Also, in Burke v Warren County Sheriff's Dep't, 890 F Supp 133 (NDNY 1995), the court granted summary judgment in favor of the county and its sheriff's department in a case seeking to hold them liable for an inmate's suicide in June 1989. There, the court held that the county and its sheriff's department were immune from liability and that they could not be held liable for actions undertaken prior to the constitutional amendment (id. at 139; see also McCann v Phillips, 864 F Supp 330, 342 n 28 [SDNY 1994] [finding that the immunity provision and Bowman were applicable in its discussion of the law regarding an incident from 1986]).

Here, the alleged abuse occurred in 1986 or 1987, several years prior to the removal of the immunity provision from the state constitution. The defendants are therefore entitled to rely on the immunity provision and the case law interpreting it.

III.

The Immunity Provision Bars All the Claims Asserted in This Action

In applying the immunity provision, the courts have consistently dismissed claims against counties in cases involving the alleged failure to protect an inmate from violence or self-inflicted harm. In these cases, the sheriff, by statute, had "custody of the county jail" and the duty to "receive and safely keep in the county jail of his county each person lawfully committed to his custody" (Correction Law § 500-c). As the statutory duty to oversee the jail and safeguard inmates fell on the sheriff, and not the county, the immunity provision shielded the counties from being held liable for the willful or negligent acts of the sheriff and his staff in their performance of these duties (see e.g. Wilson, 81 AD2d at 1; Kemp v Waldron, 125 Misc 2d 197 [Sup Ct, Schenectady County 1984], affd on other grounds 115 AD2d 869 [3d Dept 1985]; Edwards v County of Onondaga, 39 Misc 2d 443 [Sup Ct, Cayuga County 1963]; see also Maurice v Stoddard, 127 Misc 2d 272, 274 [Sup Ct, Schoharie County 1985] ["only a Sheriff could confine plaintiff's intestate and only a Sheriff was charged with his safekeeping"], affd 115 AD2d 925 [3d Dept 1986]).

In Schnitzer v County of Erie, 8 Misc 2d 989 (Sup Ct, Erie County 1957), for example, the injured plaintiff suffered personal injuries while a prisoner in a county jail pursuant to a commitment in a criminal proceeding. The complaint alleged that the injured plaintiff suffered injuries as a result of unlawful conduct by other inmates and that such conduct occurred because the sheriff carelessly permitted the county jail to be negligently maintained, supervised, and controlled; that this created a dangerous condition; and that the defendants had actual or constructive notice of the unsafe condition. There, the county sought judgment dismissing the complaint upon the ground that the complaint did not state a cause of action. Without discussion, the court granted the county's motion based on the immunity provision.

Again, in Edwards v County of Onondaga, 39 Misc 2d 443 (Sup Ct, Cayuga County 1963) the injured plaintiff claimed that he was repeatedly threatened, assaulted, and battered by other inmates while committed to the Cayuga County Jail. The complaint alleged, among other things, that the injuries were caused due to "the negligence of the agents, servants or employees of . . . the County of Cayuga" in placing the injured plaintiff in a known danger, in failing to protect him, and in failing to supervise the inmates (39 Misc 2d at 443-444). In dismissing the complaint against the County of Cayuga, the court recognized that Correction Law § 500-c gave the sheriff "custody" of the county jail and imposed a duty on the sheriff to "receive and safely keep . . . every person lawfully committed to his custody for safekeeping . . . ." (id. at 444). The court also recognized that the sheriff was authorized under County Law § 652 to appoint "keepers, guards, clerks and employees . . . [to] serve during his pleasure" (id.). The court concluded that "the custody, treatment, care and control of all prisoners [were] in the Sheriff and no other person or persons in the county government," and that the county could not be held liable for the acts of the sheriff or his staff in the performance of their duties at the county jail (id. at 444-445).

Also, in Wilson v Sponable, 81 AD2d 1 (4th Dept 1981), the injured plaintiff sought to hold the county responsible for the alleged negligent conduct of jailers in connection with his attempted suicide at a county jail. In dismissing the vicarious claims against the county based on negligent supervision, the court reiterated that Correction Law § 500-c imposed on the sheriff the responsibility of keeping prisoners safe, and that the county could not be held liable for the acts of the sheriff or his staff, even if a contrary rule exited for facilities and jails operated by a different municipality or the State (see 81 AD2d at 1-15 [majority and dissenting opinions]; see also Davis v City of Rochester, 138 AD2d 945 [4th Dept 1988] [holding that the county was not liable for the acts of the sheriff or his deputies in operating the county jail]).

Further, in Kemp v Waldron, 125 Misc 2d 197 (Sup Ct, Schenectady County 1984), affd on other grounds 115 AD2d 869 (3d Dept 1985), the plaintiff was allegedly attacked, beaten, and sodomized by two inmates while he was a prisoner at a county jail. There, the county sought summary judgment dismissing the claim against it on the ground that it owed no duty of protection to the plaintiff. In dismissing the claim against the county, the court held that it was "clearly not the duty of the county to inspect the jail and in fact the responsibility for overseeing the conditions in the jail [fell] on the New York State Commission of Correction as well as the Sheriff of the county" (id. at 200).

Also, in Burke v Warren County Sheriff's Dep't, 890 F Supp 133 (NDNY 1995), the plaintiff sought to recover for the alleged negligence of a county and its sheriff's department in failing to prevent an inmate from committing suicide in 1989 while incarcerated at the county jail. Again, the court granted summary judgment in favor of the county and its sheriff's department based on the immunity provision.

Acts of the Sheriff

As in the cases cited above, the plaintiff's claims in this case arise from the alleged negligent operation of the county jail; the alleged failure to protect the plaintiff from physical abuse; the alleged failure to supervise; and the alleged failure to properly hire and train jail personnel. As in the cases cited above, these claims concern the duties imposed on the former sheriff, not the County. These claims are similarly vicarious in nature, concern the "acts" of the former sheriff, and cannot be asserted against the County based on the immunity provision.

Contrary to the plaintiff's contention, no issues of fact exist regarding whether the County "assumed" the duties of the former sheriff. The plaintiff does not cite any case law holding that a county could "assume" the duties of a sheriff prior to January 1, 1990, nor has the plaintiff provided any evidence that they were assumed. Further, the law on this issue is applied narrowly. Under Barr, a county could, by legislative enactment, assume liability for the acts of the sheriff's employees for their own negligent acts (see Barr, 50 NY2d at 256-257). A county could not however assume liability for the acts of the sheriff himself or for the sheriff's performance of his statutory duties (see id.; Nichols v County of Rensselaer, 132 Misc 2d 489, 492 [Sup Ct, Rensselaer County 1986], affd 129 AD2d 167 [3d Dept 1987] [explaining that Barr "reaffirmed the principle that such a legislative abridgment of the constitutional immunity would never extend to the acts of the Sheriff himself, only to his deputies"]).

Notwithstanding, even assuming for the sake of argument that counties could have assumed responsibility for the acts and duties of the sheriff himself without violating the constitution, the assumption permitted under Barr required a legislative enactment and had to be unequivocal. Here, the plaintiff has not pleaded any such voluntary assumption by legislative enactment, nor provided any evidence of any permissible assumption. In contrast, the County has submitted an affidavit from its counsel denying that any such assumption exists.

The County's Own Acts

While the plaintiff further alleges in his memorandum of law that "counties may be liable for their own acts and duties," the plaintiff has failed to identify any acts or duties upon which the County could be held liable [NYSCEF Document No. 46, Plaintiff's Memorandum of Law in Opposition, at p. 5]. In fact, the only acts and duties mentioned by the plaintiff in this conclusory sentence concerns "hiring, training, [and] supervision." Again, these "acts" and "duties" are the acts and duties of the former sheriff, not the County. As in the cases cited above, the immunity provision shields the County from being held liable for these "acts" and "duties" of the former sheriff and therefore requires dismissal of the claims against the County (compare Avery v County of Broome, 23 AD2d 515 [3d Dept 1965]; Douglas v County of Oswego, 151 Misc 2d 239, 239 [Sup Ct, Oswego County 1991] [explaining that immunity did not extend to the acts of a jail physician because he was not appointed by the sheriff under County Law § 652 , but by the county legislative body under County Law § 501]).

Further, the plaintiff mistakenly contends that the County owed a duty of care to protect him from physical abuse at the county jail. Again, this duty was expressly delegated to the former sheriff (and not the County), and the immunity provision shields the County from liability for the acts of the former sheriff and his staff (compare Flaherty v State, 296 NY 342, 346 [1947] [explaining that the State, based on its waiver of immunity through the Court of Claims Act, may be held responsible for the negligent operation and management of its schools, hospitals and other institutions]; Kemp v Waldron, 115 AD2d 869, 870-871 [3d Dept 1985] [explaining that correction officials had a duty to provide inmates with reasonable protection against foreseeable risks of attack by other prisoners, and that the sheriff had a duty to keep the prisoners in the jail safe]).

Nor did the County violate some other duty of care. In Wilson, for example, the court declined to hold the county vicariously liable for any alleged negligence in connection with the operation of the county jail (see 81 AD2d at 5-12). The court also considered whether the county could be held liable for the breach of its own duties relating to the county jail, where the plaintiffs alleged that the county (1) understaffed the jail; (2) failed to provide special housing for prisoners with mental problems; and (3) failed to contract with any hospital or clinic to care for prisoners in need of psychiatric care and/or constant supervision (see id. at 6). While acknowledging that a county had a duty to maintain the jail (see County Law § 217) and to provide a jail physician (see Correction Law § 501), the court granted summary judgment in favor of the county on all these issues, concluding that no basis existed for extending the county's duty to include the obligation to provide separate facilities, extra staff, and psychiatric care (81 AD2d at 8).

In addition, in Davis v City of Rochester, 138 AD2d 945 (4th Dept 1988), the court again held that the county could not be held liable for the acts of the sheriff or his deputies in operating the county jail, and that the plaintiff "failed to demonstrate any issue of fact concerning a breach of duty by the county." Similarly, in Kemp, the plaintiff asserted that he was attempting to hold the county liable for its own direct negligence in not closing the jail when it knew or should have known of dangerous conditions there and for failing to appropriate proper funds to the sheriff's department for hiring personnel (see 125 Misc 2d at 200). The court held that no such duties existed and dismissed the claim against the county (see id. at 200-201).

Also, in Burke v Warren County Sheriff's Dep't, 916 F Supp. 181 (NDNY 1996), the plaintiff sought to hold the county liable based on the failure to maintain security cameras. There, the court concluded that "under New York law, a county [did not have an] initial duty to install security cameras in its jail in order to protect prisoners from self-inflicted harm" (916 F Supp at 186). The court also concluded that even though security cameras had been installed approximately twenty years ago, the county could not be subjected to liability for failing to maintain them because such actions did not reasonably induce inaction or some other reliance on the part of the sheriff and his deputies (see id. at 186-187).

Further, the plaintiff in this action has not asserted any claims based on the actual duty of the County, which was to simply "maintain [the] county jail as prescribed by law" (County Law § 217). Nor has the plaintiff cited this statute (County Law § 217) in his opposition papers. Notwithstanding, this case concerns alleged criminal conduct by a prison guard against an inmate. These are not matters that are caused by the maintenance of a building; rather, they concern the duty to supervise and safeguard prisoners, which rested on the former sheriff at the time of the abuse, and not the County (see Correction Law § 500-c; County Law §§ 650 & 652; Davis, 138 AD2d at 945; Wilson, 81 AD2d at 1; Kemp, 125 Misc 2d at 197; Edwards, 39 Misc 2d at 443; Burke, 890 F Supp at 133; compare Dugan v County of Rensselaer, 67 NY2d 979 [1986] [triable issues of fact existed where the plaintiff allegedly slipped and fell on a wet corridor and a section of the county's budget entitled "Jail" provided for such maintenance and for a "Building Maintenance Mechanic"]; Aubrey v County of Schenectady, 46 AD2d 714 [3d Dept 1974] [motion to dismiss denied where inmate slipped on water on cell floor allegedly caused by negligent plumbing and cell maintenance]).

The Court recognizes that the substantive law has since changed. In Bardi v Warren County Sheriff's Dept., 194 AD2d 21 (3d Dept 1993), subsequent proceedings at 260 AD2d 763 (3d Dept 1999), for example, the plaintiff sought damages for his arrest in August 1990 by a deputy sheriff, which occurred after the immunity provision had been deleted from the constitution (see 260 AD2d at 763). There, the Third Department proclaimed that "a county is now liable for the tortious acts of its Sheriff when sued therefor" (194 AD2d at 24). Similarly, a decade later in Smith v County of Albany, 12 AD3d 912, 912-914 (3d Dept 2004), the Third Department held that a county owes a duty of care to protect inmates from physical harm while in custody at a county jail.

In fact, the law is now well-settled that counties owe this duty of care to protect inmates, just as with any other municipality (see e.g. Wade v County of Monroe, 244 AD3d 1751 [4th Dept 2025]; Dickson v Putnam, 171 AD3d 1131 [2d Dept 2019]; Gilhooly v County of Suffolk, 164 AD3d 659 [2d Dept 2018]; Wassmann v County of Ulster, 144 AD3d 1470 [3d Dept 2016]; Villar v County of Erie, 126 AD3d 1295 [4th Dept 2015]). In Wade, for example, the Fourth Department explained that this duty of care requires a county "to provide reasonable care to protect prisoners from risks of harm that are reasonably foreseeable, i.e., those that the county knew or should have known" (Wade, 244 AD3d at 1754 [internal quotation marks, brackets, and citations omitted]).

Similarly, the Fourth Department has since interpreted County Law § 217 well-beyond its prior application during the reign of immunity, albeit in the procedural context of CPLR 3211(a)(7) motions, by holding that a plaintiff can state a claim against a county for negligent maintenance in cases involving sex abuse and suicide (see Wade, 244 AD3d at 1754 [alleged sex abuse in 2010 by a correction officer who worked as a doctor/optometrist at the jail]; Freeland v Erie County, 122 AD3d 1348, 1350—1351 [4th Dept 2014] [suicide in 2011 allegedly caused by substandard housing at the holding center]; see also EF2023012536, Document Number 1 [complaint filed in Wade]).

Nevertheless, the expansion of these rules of liability against a county by way of judicial construction occurred only after the immunity provision was deleted from the state constitution. It was only then that the judiciary was unshackled from the constitutional restriction on its judicial power, which once stated "in the plainest language that 'the county shall never be made responsible for the acts of the sheriff" (Commisso, 8 NY2d at 121 [emphasis in original]). It was only after the deletion of this language in the state constitution, which applies prospectively, that a county could be made responsible for such conduct by statute or judicial interpretation.

The Acts of the Sheriff's Deputies

As explained above, the immunity provision also shields a county from being held vicariously liable for the negligent acts of a sheriff's deputies and other appointees at the jail. Again, a county may, by legislative enactment, expressly assume responsibility for the tortious acts of a sheriff's staff (see Barr, 50 NY2d at 256-257; see Green, 123 AD2d at 89; see also Bowman, 193 AD2d at 922-923 & n). In Barr, for example, the local law contained such a waiver. Specifically, the local law in Barr provided that "[any] act or omission of any employee of the county in the office of the sheriff, done or made in the performance of an official duty . . . shall be the act or omission of the county and the damages, if any, resulting therefrom shall be deemed the liability of the county" (Barr, 50 NY2d at 256 [emphasis added]).

Here, the plaintiff has neither alleged nor provided any evidence that any such enactment exists (see Nichols v County of Rensselaer, 129 AD2d 167 [3d Dept 1987]; Green, 123 AD2d at 89; Passonno v County of Rensselaer, 87 AD2d 693 [3d Dept 1982]; see also Jones v Seneca County, 154 AD3d 1349 [4th Dept 2017]). The County has also submitted an affidavit from its counsel, who has asserted that the County has not voluntarily assumed such responsibility, and that no such enactment exists.

Further, the County did not waive its immunity when it adopted a local law (in 1984) providing for indemnification for county employees (see NYSCEF Document No. 36; see also Public Officers Law § 18). In Nichols v County of Rensselaer, 129 AD2d 167 (3d Dept 1987), the Third Department explained that the key factor in determining whether a county waived its immunity for tortious acts of the sheriff's staff was "the county's express willingness to assume responsibility for those acts" (129 AD2d at 169). There, the court held that the county's adoption of a local law simply providing for indemnification did not result in a waiver of its immunity, explaining, as follows:

"Nowhere in [the local law] does the county mention waiver of immunity with respect to Deputy Sheriffs. In fact, paragraph 11 of [the local law] provides that: 'Except as otherwise specifically provided in this local law, the provisions of this local law shall not be construed in any way to impair, alter, limit, modify, abrogate or restrict any immunity to liability available to or conferred upon any unit, entity, officer or employee of the County by, in accordance with, or by reason of, any other provision of state or federal statutory or common law' " (Nichols, 129 AD2d at 169-170, citing Local Laws, 1983, No. 5 of County of Rensselaer, par. 11).

As in Nichols, the local law in this case simply provides for indemnification. It does not mention any waiver of immunity, and it further contains the same non-impairment provision as in Nichols (NYSCEF Document No 36, Section 24-11 [providing that that nothing in its provisions shall "impair, alter, limit, modify, abrogate or restrict any immunity to liability" available by New York State law]). In addition, the local law in this case further limits those persons entitled to its benefits and provides that its provisions "shall not enlarge . . . the rights of any other party" (NYSCEF, Document No. 36, Section 24-6).¹

Moreover, since the removal of the immunity provision from the constitution, numerous cases from the Second and Fourth Departments have continued to hold that a county may not be held liable for the acts of sheriffs and deputies in the absence of a local law assuming such liability (see e.g. Wade, 244 AD3d at 1753; Flannery v Cnty. of Niagara, 763 F Supp 3d 364, 428-429 [WDNY 2024] [citing cases]; Santiamagro v County of Orange, 226 AD2d 359, 359-360 [2d Dept 1996]; Marashian v City of Utica, 214 AD2d 1034, 1034 [4th Dept 1995] [holding that the removal of the immunity provision "merely allows a county to accept responsibility" for the acts of the sheriff and his staff]). Despite the passage of nearly a half a century since Barr, as well as the extensive body of case law developed since then, the plaintiff has not cited any cases holding that a local law simply providing for indemnification is sufficient for a county to assume liability for the acts of a sheriff or his staff.

Cruel and Unusual Punishment

Turning to the plaintiff's remaining claim, the defendants contend that a private right of action for a violation of the state constitution is unavailable where, as here, an alternative remedy exists (see Waxter v State of New York, 33 AD3d 1180, 1181 [3d Dept 2006]; Lyles v State, 2 AD3d 694, 695-696 [2d Dept 2003], affd 3 NY3d 396 [2004]; see also Martinez v City of Schenectady, 97 NY2d 78, 83-84 [2001]). In opposition, the plaintiff contends that he should be permitted to pursue this state constitutional claim against the County if the immunity provision applies because he would not have any alternative remedies. The plaintiff further relies on Brown v State of New York, 89 NY2d 172 (1996), where the plaintiff in that case was permitted to assert a private cause of action to recover damages for an alleged violation of the equal protection clause and the search and seizure clause of the state constitution.

The plaintiff's logic is faulty. If the immunity provision applies, then the plaintiff is not supposed to have any remedies against the County. This is by constitutional design. In addition, the immunity provision did not deprive the plaintiff of an available remedy. On the contrary, the plaintiff could have, but elected not to, pursue his available remedies, including a claim of sexual assault against the sergeant or his estate; a negligence claim against the sheriff himself or the individual members of his staff; or a claim under 42 USC § 1983 (if there had been a factual basis for any such claims) (see e.g. Rivera v State of New York, 34 NY3d 383, 392 [2019] [explaining that "inmates who are unlawfully assaulted by correction officers are not without legal recourse"]; Monell v Dep't of Soc. Servs., 436 US 658 [1978]). The Brown case is therefore readily distinguishable from the facts of this case (see Waxter, 33 AD3d at 1181-1182 [distinguishing Brown in a case where the plaintiff was allegedly sexually assaulted by a correction officer while at a correctional facility]; see also Martinez, 97 NY2d at 83 [holding that the "narrow remedy" established in Brown could not be stretched to fit the facts before the court]; Lyles, 2 AD3d at 695-696).

Further, even if a state constitutional claim was available, the plaintiff's claim against the County for cruel and unusual punishment lacks any factual support. As explained above, the County itself did not exercise any custody or control over the plaintiff (as he was in the former sheriff's custody), nor did it punish the plaintiff in any manner (as the State punished him). In addition, as discussed below, there is no evidence that the County acted deliberately indifferent, willful, or even negligent (see Schulik v County of Monroe, 202 AD2d 960, 961-962 [4th Dept 1994]; see also Farmer v Brennan, 511 US 825, 834 [1994]). There is also no evidence that the alleged abuse was being used to punish the plaintiff, or that any employee hired or appointed by the County knew or should have known about the alleged abuse or the risk of harm.

The Sheriff's Office and the Correctional Facility

The plaintiff similarly seeks to hold the sheriff's office and the correctional facility liable for the same reasons as the County. These defendants, however, are simply divisions of the County (see e.g. Abate v County of Erie, 195 AD3d 1531, 1531-1532 [4th Dept 2021] [sheriff's office]; Bardi, 194 AD2d at 23 [sheriff's department]; Busch v Howard, 20-CV-1515, 2021 US Dist LEXIS 131385, 2021 WL 2946532 [WDNY July 14, 2021] [holding center and correctional facility]). They therefore may not be held responsible for the alleged torts any more than the County itself (see Metcalf v County of Erie, 173 AD3d 1799, 1801 [4th Dept 2019]; Johanson v County of Erie, 134 AD3d 1530, 1531-1532 [4th Dept 2015]; Maio v Kralik, 70 AD3d 1, 10 [2d Dept 2009]; Burke, 890 F Supp at 139). Moreover, as government units of the County, the sheriff's office and correctional facility are entitled to enjoy the same immunity and protections afforded to the County itself (see e.g. Burke, 890 F Supp at 139; Bardi, 194 AD2d at 23 [holding that a sheriff's department was a division of the county and therefore entitled to rely on the same notice of claim provisions as the county]; Pope v Memorial Hospital of Greene County, 387 F Supp 331, 332 [SDNY 1974]).

IV.

The Record Does Not Contain Any Evidence of Negligence by the Defendants

Further, the record does not contain any evidence of negligence by the defendants. A claim based on negligent hiring, supervision, or retention requires a showing that the defendant knew of the employee's propensity to commit the alleged acts or that defendant should have known of such propensity (see Nellenback v Madison County, 44 NY3d 329, 336 [2025] [holding that a party cannot prove negligent supervision "by stating the employer 'should have known' an employee was likely to engage in dangerous conduct without evidence showing any prior conduct, warnings, or signs of risk to that effect"]; Moore Charitable Found. v PJT Partners, Inc., 40 NY3d 150, 157 [2023]; Steinborn v Himmel, 9 AD3d 531, 533 [3d Dept 2004]). Moreover, the duty to safeguard an inmate from physical harm does not render a defendant "an insurer of inmate safety, and negligence cannot be inferred merely because an incident occurred" (Wassmann, 144 AD3d at 1471 [internal quotation marks, brackets, and citations omitted]). Rather, the duty owed is limited to providing reasonable care to protect inmates from risks of harm that are reasonably foreseeable, i.e., those that were known or should have been known (see id.).

Here, in support of the motion, the defendants have submitted, among other things, three deposition transcripts, two affidavits from their representatives, an attorney affidavit, and a copy of the sergeant's personnel file. This evidence demonstrates that the sergeant was hired by the former sheriff as a correction officer in 1981 and that he retired as chief deputy in 1998. The former sheriff knew the sergeant prior to hiring him based on his personal interactions with him at a local fire department. The former sheriff testified that the sergeant was a good man and had a good background. He believed that a background check was conducted and that the sergeant did not have a criminal history. The former sheriff further did not recall any allegations of sexual abuse or other misconduct against the sergeant over the course of his career.

The sergeant's widow testified that the sergeant passed away in 2018. She explained that he was a very well-known individual in the community. The sergeant volunteered at his local church. When asked at her deposition whether the sergeant ever had a sexual relationship with an inmate and whether she believed that he had sexual contact with a male inmate, she answered forcefully "absolutely not" and characterized the allegations as "made up." In addition, the sergeant's personnel file does not contain any reports of misconduct or poor employment evaluations. The sergeant's records also do not contain any red flags, concerns, or criminal history.

The corrections administrator for the sheriff's office testified that, aside from this litigation, he was unaware of any allegations of sexual misconduct by the sergeant against an inmate. The corrections administrator further avers that the records of the correctional facility do not contain any reports of sexual abuse by the sergeant. He further avers that there are no records of complaints of sexual abuse committed by an employee of the county jail or correctional facility that relate to the time-period involved in this action.

Based on the motion papers, the Court finds that the defendants have satisfied their initial burden on the motion (see CPLR 3212[b]; see e.g. Nellenback, 44 NY3d at 332-335; Dickson v Putnam, 171 AD3d 1131, 1131-1132 [2d Dept 2019]; Schulik v County of Monroe, 202 AD2d 960, 960-961 [4th Dept 1994]). The motion papers demonstrate that the former sheriff conducted a background check and that it came back negative. In addition, the sergeant worked for the former sheriff for years without any prior incidents of bad behavior. Nothing in the testimony of the former sheriff or the sergeant's widow (who was also his former co-worker) indicates that the former sheriff or anyone else had any actual or constructive knowledge of the sergeant's alleged propensity to sexually abuse or otherwise harm inmates. Again, the former sheriff and the sergeant's widow did not know of the alleged abuse or any other similar acts of abuse by the sergeant. Neither believed that the sergeant could have committed the abuse alleged by the plaintiff. The sergeant's personnel file also did not contain any evidence of any prior bad acts.

The burden therefore shifted to the plaintiff to show that a genuine issue of material fact exists requiring a trial (see Nellenback, 44 NY3d at 335; see also Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]). In his opposition papers, the plaintiff has relied on selected portions of his own deposition testimony. He testified that he was sexually abused by the sergeant on several occasions while at the county jail. He further testified that he reported the abuse to the former undersheriff and that the undersheriff told him that he would look into it and talk to the sergeant. The plaintiff testified that the sergeant abused him maybe two more times after he reported the abuse to the former undersheriff, and that he never heard back from the former undersheriff.

The plaintiff has also submitted a logbook entry which reflects that the sergeant worked at the facility and that the plaintiff may have had some issue with another inmate. The plaintiff also relies on the deposition transcripts submitted by the defendants. The plaintiff contends that this evidence shows that the position of undersheriff was an appointed position and exempt from civil service requirements; and that the former undersheriff was responsible for the daily operations of the jail and reported to the former sheriff. The plaintiff also contends that the jail had an unwritten policy that required the former undersheriff to inform the former sheriff about every "serious issue" reported to him.

Even when viewing the evidence in the light most favorable to the plaintiff, as the nonmoving party, the plaintiff has failed to create a triable issue of fact (see e.g. Nellenback, 44 NY3d at 334-336; Dickson, 171 AD3d at 1131-1132; Schulik, 202 AD2d at 960-961). Regarding the negligent hiring, supervision, and retention claims, the record reflects that the former sheriff supervised the jail and appointed the sergeant and his staff at the county jail. In addition, the former sheriff testified that the sergeant did not have any criminal background and that he had personally interacted with the sergeant prior to appointing him as a correction officer. The plaintiff, in contrast, has not submitted any evidence about how the background check was inadequate or what an adequate procedure would have revealed. In fact, despite the plaintiff's prior access to discovery under CPLR Article 31, there is no evidence that the sergeant had any criminal history or any background involving bad behavior or physical abuse. Similarly, there is nothing in the record that indicates that the sergeant's supervision or training were negligent in any manner, or that such proximately caused the alleged abuse to occur.

Further, the sole "evidence" of prior notice of the sergeant's alleged propensity to engage in such bad behavior concerns the plaintiff's deposition testimony that two instances of abuse occurred after he reported the abuse to the former undersheriff. This testimony, however, is directly contrary to the allegations in the verified complaint, in which the plaintiff detailed every allegation of alleged abuse in paragraphs 17-24 and then alleged in the following paragraph (number 25) that he subsequently reported this abuse to the undersheriff and that the abuse ended. Specifically, the verified complaint alleges in paragraph 25, as follows:

"Following such abuse, Plaintiff reported it to an undersheriff at SCCF [the facility], who told Plaintiff he would 'check into it.' Plaintiff then told [the sergeant] that he would 'report [him] to a newspaper if he didn't stop.' In response, [the sergeant] told Plaintiff 'don't open your mouth, don't bring this up. I'll make you go to the big jail for assaulting an officer.' After this interaction, Plaintiff was no longer sexually abused by [the sergeant]" (NYSCEF Document No. 1, Verified Complaint, at p. 7, par. 25 [emphasis added]).

These allegations in the verified complaint constitute a judicial admission to which the plaintiff is bound in the absence of a contrary explanation (see Cadlerock Joint Venture, L.P. v Remillard, 56 AD3d 1095, 1096-1097 [3d Dept 2008]; see also Weinstock v Handler, 254 AD2d 165, 170 [1st Dept 1998] [holding that the allegations of the complaint constituted " 'formal judicial admissions [that were] binding on the parties throughout the entire litigation, unless modified or relieved in the discretion of the court' " and citing to Richardson, Evidence § 216 (Prince 10th ed) and Fisch, New York Evidence § 803 (2d ed 1977)]). Here, neither the plaintiff nor the attorney who verified the complaint have explained the inconsistency. Moreover, the explanation provided in a supplemental memorandum of law is not persuasive and does not adequately address this inconsistency between the plaintiff's deposition testimony and his verified pleading.

In any event, even assuming the truth of the plaintiff's testimony that he informed the former undersheriff about the alleged abuse before it ended, such evidence would not be sufficient to impose liability on the defendants. As explained above, the immunity provision prevents the defendants from being held liable for the "acts" of the former sheriff and his appointees, including for the former undersheriff's alleged failure to report the information to the former sheriff or otherwise prevent the abuse from continuing. The defendants therefore cannot be held responsible for this alleged negligence.

Moreover, the plaintiff contends that an issue of fact exists based on the corrections administrator's response to a question at his deposition. Specifically, when asked, "Do you have any reason to believe that [the] sergeant . . . was terminated for any reason other than his own volition and decision to retire," the response in the transcript reads, "I believe I've been told he was terminated for cause" (NYSCEF Doc. No. 35, Emery Deposition Transcript, at p. 26).² Even assuming the truth of this response (as opposed to it being a simple error in speech or transcription, as stated on the errata sheet), this statement is inadmissible hearsay and cannot be offered for the truth of the matter. In addition, the sergeant ceased working for the correctional facility in 1998, more than 10 years after the alleged abuse occurred, and there is no evidence that the reason for the sergeant's retirement in 1998 had anything to do with any abuse or any other misconduct relevant to the issue of actual or constrictive notice in this action.

Further, the plaintiff has not alleged that there were any witnesses to the alleged abuse. The alleged abuser (the sergeant) passed away prior to this action. The only person the plaintiff reported the abuse to (the former undersheriff) is now apparently living beyond this Court's jurisdiction. In addition, the only document that allegedly corroborates the plaintiff's testimony is the logbook entry from 1987, which does not even mention the alleged abuse. Based on the facts presented, the Court finds that the record is devoid of any evidence of negligence by the defendants.

V.

The Cross Motion to Add the Former Sheriff as a Defendant Is Denied

The plaintiff's cross motion seeks permission to amend the summons and complaint to add the former sheriff as a defendant in this action (see CPLR 305[c]; 1003 & 3025[b]). Although the motion was made after the statute of limitations period for asserting these claims against the former sheriff had already expired (see CPLR 215[1] [requiring actions against a sheriff to be commenced within one year]; Adams v County of Rensselaer, 66 NY2d 725, 726-727 [1985]; Freeland v Erie County, 122 AD3d 1348 [4th Dept 2014]; Green v County of Fulton, 123 AD2d 88 [3d Dept 1986]), and well beyond the revival period authorized under CPLR 214-j, the plaintiff contends that the relation back doctrine renders the claims timely and permits the Court to add the former sheriff as a defendant. The Court disagrees.

For a claim asserted against a new party in an amended filing to relate back to a claim previously asserted against an original defendant, the new party must be "united in interest" with the original defendant (see CPLR 203[c]; Buran v Coupal, 87 NY2d 173, 177-178 [1995]). Parties are united in interest when "the interest of the parties in the subject-matter is such that they stand or fall together and that judgment against one will similarly affect the other" (Quine v Burkhard Bros., 167 AD2d 683, 684 [3d Dept 1990], quoting Prudential Ins. Co. v Stone, 270 NY 154, 159 [1936]; see Fasce v Smithem, 188 AD3d 1542, 1543 [3d Dept 2020]). "Defendants charged with separate acts of negligence have been found not united in interest, since one might be found liable but not the other" (1 New York Civil Practice: CPLR P 203.06 [Bender 2026]; see e.g. Brady v 5644 Ave. U Assocs., L.P., 291 AD2d 523, 524 [2d Dept 2002]; Bari v Wamskau Realty, Inc., 99 AD2d 710, 710-711 [1st Dept 1984], affd 64 NY2d 684 [1984]). On the other hand, defendants in negligence actions will generally be "considered united in interest, rather than joint tort-feasors, when one is vicariously liable for the acts of the other" (Raschel v Rish, 69 NY2d 694, 697 [1986]).

The issue presented on the plaintiff's cross motion was decided in Johanson v County of Erie, 134 AD3d 1530 (4th Dept 2015). There, the plaintiff commenced an action against the county and its sheriff's department for negligence based on an inmate's suicide at a county holding center. After the expiration of the statute of limitations for an action against the sheriff, the plaintiff sought leave to amend the complaint to add the sheriff as a defendant. The court held that the sheriff was not united in interest with the defendants, and that the Supreme Court erred in granting the motion. The court explained that the county could not be held vicariously liable for the acts of the sheriff; that the sheriff could not be held vicariously liable for the alleged negligent acts of deputies at the holding center; and that the sheriff's department did not have a legal identity separate from the county.

Similarly, in Santiamagro v County of Orange, 226 AD2d 359 (2d Dept 1996), the plaintiff was allegedly injured outside his cell while incarcerated at the county jail. He brought a negligence action against the county and its sheriff's department. After the applicable statute of limitations period had expired, the plaintiff cross-moved to amend the complaint to add the sheriff and deputy sheriff "John Doe" as defendants. The court held that the sheriff and deputy were not united in interest with the defendants, and that the motion should have been denied. The court explained that the county could not be held responsible for the acts of the sheriff or his deputies because the county had not adopted a local law expressly assuming such responsibility; that no unity of interest existed in the absence of such an assumption of responsibility; and that the proposed claim against the sheriff and the deputy sheriff "John Doe" did not relate back to the date when the action was commenced against the original defendants.

Similar results were reached in Jones v Seneca County, 154 AD3d 1349 (4th Dept 2017) and Trisvan v County of Monroe, 26 AD3d 875 (4th Dept 2006), where the Fourth Department affirmed the denial of the motions seeking to add deputies as defendants. In these cases, the court held that the deputies and the defendant counties were not united in interest inasmuch as the counties could not be held vicariously liable for the acts of the sheriff's deputies. In Trisvan, the plaintiff also failed to establish that the deputies were united in interest with the defendant sheriff. The same result was reached in the reverse situation in Brady v Woodworth, 117 AD2d 995, 995-996 (4th Dept 1986), which held that the complaint against a deputy sheriff could not be amended to add the county and its sheriff's department as defendants after the statute of limitations period had expired for claims against them.

Also, in Pickett v County of Orange, 62 AD3d 848 (2d Dept 2009), the plaintiff commenced an action against, among others, the sheriff, a correction officer named as "John Doe," and Correctional Medical Services, Inc. The plaintiff alleged that he suffered injuries from a delay in medical treatment while he was an inmate at the county jail. There, the Second Department held that the Supreme Court improperly granted the plaintiff leave to amend the complaint to substitute Luis Moreno (a correction officer) for John Doe since the statute of limitations had expired and the plaintiff failed to demonstrate that the relation back doctrine applied (see also Green, 123 AD2d at 90 [holding that "Sheriffs and their Deputy Sheriffs may not be deemed 'united in interest' within the meaning of this tolling provision"]).

Here, as in the cases cited above, the former sheriff cannot be deemed united in interest with the defendants for purposes of the relation-back doctrine. Again, the immunity provision prevents the defendants from being held responsible for the acts of the former sheriff. In addition, as discussed above, the defendants cannot be held liable for the acts of the former sheriff's appointees (including the undersheriff) in the absence of a local law expressly assuming such responsibility, which does not exist in this case.

Further, the former sheriff "cannot be held responsible for the tortious conduct of the correction officers, deputies and employees arising from their performance of a criminal function" (Bowman, 193 AD2d at 923, citing Barr, 50 NY2d at 257). This precludes the former sheriff from being held vicariously liable for the alleged torts of others committed while guarding prisoners accused of a crime (Bowman, 193 AD2d at 923 [death of inmate at a county jail]; Wilson, 81 AD2d at 4 [attempted suicide at county jail]; Kemp, 125 Misc 2d at 199-200 [inmate was beaten and sodomized by two other inmates at county jail]; see also Trisvan, 26 AD3d at 876 [holding that guarding prisoners in a county jail is a criminal justice function]; Isereau, 3 AD2d at 246-247; Kawar v Martin, 25 Misc 2d 3, 4 [Sup Ct, Onondaga County 1959], affd 12 AD2d 876 [4th Dept 1961]).

Although this rule would not preclude the former sheriff from being held personally liable for the acts of his deputies in the performance of their civil functions (e.g. serving legal process), there is no evidence that any members of the former sheriff's staff committed any tort while performing any civil functions (see Flaherty v Milliken, 193 NY 564, 570 [1908] [explaining that the sheriff was personally liable for his own acts, as well as the acts of his deputies performing civil functions]; Isereau v Stone, 3 AD2d 243, 246 [1957]; see also Thoubboron, 175 AD2d at 443 [explaining that the purpose of the amendment was to relieve sheriffs of personal liability for their acts, as well as for the acts of their appointees in discharging their duties relating to civil process]). In addition, no members of the former sheriff's staff are parties to this action, so there are no claims against them for which the proposed claims against the former sheriff could relate back.

Further, neither the defendants nor the sheriff may be held vicariously liable as an employer for the alleged torts of the sergeant. Again, the immunity provision precludes any vicarious liability against the defendants in the absence of a local law assuming responsibility. Notwithstanding, the common-law doctrine of respondeat superior is inapplicable "if an employee for purposes of their own departs from the line of duty so that for the time being their acts constitute an abandonment of service" (Rivera v State of New York, 34 NY3d 383, 389 [2019] [internal quotation marks, citations, and brackets omitted]; see Judith M. v Sisters of Charity Hosp., 93 NY2d 932 [1999]; Berardi v Niagara County, 147 AD3d 1400 [4th Dept 2017]). In Rivera, for example, the Court of Appeals held that the employer (the State), as a matter of law, could not be held liable under this doctrine because no evidence existed that the correction officers' brutal and unprovoked attack on an inmate constituted conduct within the scope of their employment.

A similar result was reached in Judith, where the plaintiff alleged that she had been sexually abused by an employee of a hospital while she was an inpatient. There, the Court of Appeals concluded that the hospital could not be held vicariously liable based on the employer-employee relationship because (if the allegations were true) it was "clear that the employee here departed from his duties for solely personal motives unrelated to the furtherance of the Hospital's business" (93 NY2d at 933). Also, in Berardi, the Fourth Department held that the sheriff could not be held liable for a hospital employee's alleged sexual assault of the plaintiff while she was incarcerated at the county jail. There, the Fourth Department held that, even assuming, arguendo, that the alleged abuser was the sheriff's agent, servant, or employee, "the sexual assault allegedly perpetrated . . . was not an act committed in furtherance of the [sheriff's] business and was 'a clear departure from the scope of employment' " (147 AD3d at 1401 [citations omitted]).

The lack of unity between the former sheriff and the defendants is further evidenced by the different defenses available to them (see e.g. Montalvo v Madjek, Inc., 131 AD3d 678, 680 [2d Dept 2015] [explaining that defendants "are not united in interest if there is a possibility that the new party could have a different defense than the original party"]). The County, for example, contends that the immunity provision shields it from liability and that it did not voluntarily assume responsibility for any acts of the former sheriff. Whereas the former sheriff may not defend himself on these grounds, he could allege that he did not act negligently or otherwise breach any of the duties imposed on him. Again, the duties imposed on the former sheriff are distinct and, although no evidence exists of any negligence, the alleged liability of the former sheriff would not be dependent on any alleged negligence committed by the County.

Further, the plaintiff misplaces reliance on Eriksen v County of Suffolk, 154 AD3d 721 (2d Dept 2017) and Bruns v Catskill, 169 AD2d 963 (3d Dept 1991). In Eriksen, the court permitted the plaintiff to amend the complaint to substitute deputies in the place of John Does. There, the county had expressly assumed liability for the acts of the deputies pursuant to its administrative code (Section A17-1 [A]) and was therefore legally responsible for their acts. In addition, the deputies were parties to a separate federal action, and discovery was conducted in the two actions in a coordinated manner.

In addition, in Bruns, the court permitted the plaintiff to amend his complaint against the village to add the village's police chief as a party. There, the court held that "an employer's defense that its employee exceeded the scope of his employment does not defeat a finding of unity of interest" (169 AD2d at 963). While that case also involves a municipality (village) and the head of its police department (the village police chief), these alleged similarities are illusory. Unlike in that case, the immunity provision in this case shields the defendants from vicarious liability for the acts of the former sheriff and his staff (see 3 Warren's Negligence in the New York Courts §§ 69.01-69.03 [Bender 2026]).

The Court also has serious concerns over the constitutionality of permitting the proposed claims against the former sheriff to proceed to trial where the alleged abuse occurred in the 1980s; the statute of limitations period for the claims against the former sheriff was supposed to have been only a year; the alleged abuser has since passed away; there were no witnesses to the alleged abuse; there is nothing in the record to suggest that any reports were made to any doctors, psychologists, family members, or friends; the only alleged reporting was verbal and made to a person (the former undersheriff) who is now living in a different state; the only alleged evidence of any prior notice of the alleged abuse concerns the plaintiff's own deposition testimony, which is contradicted by the allegations in his verified complaint; and no evidence exists that the former sheriff had any notice of the allegations of the alleged abuse or an opportunity to meaningfully investigate them.

Nevertheless, the Court declines to reach the merits of this issue, as well as the alternative grounds provided in support of the defendants' motion, as these issues have been rendered academic in light of this decision.

It is therefore,

ORDERED that the defendants' motion seeking summary judgment dismissing the complaint is GRANTED and the complaint is DISMISSED with prejudice and on the merits; and IT IS FURTHER ORDERED that the plaintiff's cross motion seeking to amend the complaint to add the former sheriff as a defendant is DENIED.

This shall constitute the Decision & Order of the Court. The Court is hereby uploading the original into the NYSCEF system for filing and entry by the County Clerk. The Court further directs the parties to serve notice of entry in accordance with the Local Protocols for Electronic Filing for Saratoga County.

So-Ordered.

Dated: May 11, 2026

at Ballston Spa, New York

HON. RICHARD A. KUPFERMAN

Justice Supreme Court

Enter.

Papers Considered:

NYSCEF Document Nos. 1-65

FOOTNOTES

1.   Notably, the local law further provides that the duty to indemnify "shall not arise where the injury or damage resulted from intentional wrongdoing or recklessness on the part of the employee" (NYSCEF Document No. 36, Section 24-4[B]).

2.   Notably, this is not what is reflected in the personnel file or any of the other testimony in the record. Nor was this witness asked any further questions on the issue.

Richard A. Kupferman, J.