ADAM VILLAR, Respondent, v TIMOTHY B. HOWARD, Erie County Sheriff, Appellant
Court of Appeals of the State of New York
October 25, 2016
Argued September 13, 2016
[64 NE3d 280, 41 NYS3d 460]
POINTS OF
Michael A. Siragusa, County Attorney, Buffalo (Kenneth R. Kirby of counsel), for appellant.
OPINION OF THE COURT
STEIN, J.
Plaintiff alleges that, while being held for five days at the Erie County Correctional Facility in January 2010, he was sexually assaulted twice in a shower stall by an inmate. He commenced several actions following these incidents; the complaint in this action alleged that defendant Sheriff breached a duty to protect plaintiff from a reasonably foreseeable hazard of sexual assault, disregarded known risks of harm to inmates vulnerable to sexual abuse by other inmates at the facility, and had actual knowledge of the dangerous propensities of the inmate who assaulted plaintiff. Defendant moved to dismiss the complaint pursuant to CPLR 3211, arguing that plaintiff failed to serve a notice of claim naming defendant and that the complaint did not
Supreme Court granted defendant‘s motion, dismissing the complaint because “[n]o notice of claim was served nor was permission sought of the court to serve a late notice, prior to the expiration of the statute of limitations applicable to a sheriff.” The court reasoned that plaintiff was required to serve a notice of claim pursuant to
Upon plaintiff‘s appeal, the Appellate Division modified by reinstating the complaint except to the extent it alleged that
Addressing first whether a notice of claim was required, we conclude that the Appellate Division properly rejected defendant‘s argument that a May 16, 1985 Erie County resolution entitled “Liability Insurance for the Sheriff‘s Department” statutorily obligates the county to indemnify defendant Sheriff for purposes of
The resolution, when read as a whole, makes clear that the County agreed to provide “Liability Insurance” for the Sheriff in exchange for consideration because “policies of law enforcement liability insurance paid for by the County” had become prohibitively expensive. In resolving to act as an insurer, the County recognized—as was commonly understood at the time—that it could not statutorily obligate itself to defend and indemnify the Sheriff, as it had agreed to do for the Sheriff‘s employees, under the New York State Constitution (see Rep of Law Rev Commn, 1981 McKinney‘s Session Laws of NY at
Defendant Sheriff further argues that, to survive a motion to dismiss, the complaint would have to allege that he was present and failed to prevent the attacks on plaintiff, or had specific prior knowledge that plaintiff was particularly vulnerable to assault. This Court rejected similar arguments with respect to state prison inmates in Sanchez v State of New York on the ground that the defendant sought to “improperly modif[y] the test for foreseeability from what is reasonably to be perceived, to what is actually foreseen, and thus unduly circumscribe[] the standard of care normally due any party: reasonable care under the circumstances” (99 NY2d 247, 254 [2002]). While the State is by no means an insurer of inmate safety or required to provide unremitting surveillance in all circumstances (see id. at 253, 256), we explained in Sanchez that, “[h]aving assumed physical custody of inmates, who cannot protect and defend themselves in the same way as those at liberty can, the State owes a duty of care to safeguard inmates, even from attacks by fellow inmates” (id. at 252). Inasmuch as “the Sheriff is [similarly] prescribed, by law, to safely keep inmates of the County Jail” (Adams v County of Rensselaer, 66 NY2d 725, 727 [1985]; see
Finally, we agree with the Appellate Division that resolution of defendant‘s argument that he is entitled to governmental
Chief Judge DIFIORE and Judges RIVERA, ABDUS-SALAAM and GARCIA concur; Judges PIGOTT and FAHEY taking no part.
Order, insofar as appealed from, affirmed, with costs, and certified question answered in the affirmative.