Aubrey v. County or Schenectady

46 A.D.2d 714, 360 N.Y.S.2d 307, 1974 N.Y. App. Div. LEXIS 3772

Opinion

Appeal from an order of the Supreme Court, Special Term, entered in Schenectady County on February 11, 1974, which denied a motion for summary judgment dismissing the complaint. The infant plaintiff brings this action for personal injuries against the County of Schenectady alleging that on September 2, 1969 while he was confined to the Schenectady County Jail he slipped on water on the floor of his cell and sustained certain injuries. The defendant county moved to dismiss the complaint on the ground that the county is not responsible for the negligent acts of the Sheriff who is charged with the custody of the County Jail and with the safety of its inmates. The complaint alleges that plaintiff’s injuries were caused by the negligence of the county, its agents, servants and employees in the maintenance of the penitentiary, and, more specifically, with the maintenance of the plumbing and the cell wherein the plaintiff was confined. Special Term, in our view, properly denied the motion to dismiss the complaint. While as a general proposition the county is not responsible for the negligent acts of the Sheriff (N. Y. Const., art. XIII, § 13), we are here concerned with the dismissal of a complaint which alleges liability on the part of the county, its agents and employees for the negligent maintenance of the physical plant of the county penitentiary. It is further alleged that said facility was owned, operated, managed and controlled by the county. There is no allegation of negligence on the part of the Sheriff, his agents or employees. We, therefore, conclude that it properly states a cause of action against the county. {Awry v. County of Broome, 23 A D 2d 515; Edwards v. County of Onondaga, 39 Mise 2d 443, 444.) Order affirmed, with costs. Herlihy, P. J., Cooke, Sweeney, Kane and Reynolds, JJ., concur.