Eidman v. County of Monroe

177 A.D.2d 996, 578 N.Y.S.2d 17, 1991 N.Y. App. Div. LEXIS 15752

Opinion

Order unanimously affirmed with costs. Memorandum: Supreme Court properly concluded that plaintiff’s action against defendant Thorpe was not governed by a one year Statute of Limitations (CPLR 215 [1]). Since the duty imposed upon a Deputy Sheriff to use reasonable care in the operation of his motor vehicle is not a duty imposed upon him by his office, but instead is a duty imposed upon everyone who operates a motor vehicle, the shortened one year Statute of Limitations does not apply (Brady v Woodworth, 117 AD2d 995; Dixon v Seymour, 62 AD2d 444).

We also reject defendant Thorpe’s argument that plaintiff’s civil rights action (42 USC § 1983) must be dismissed. The record presents conflicting versions of the facts surrounding the accident sufficient to raise a factual issue regarding Thorpe’s state of mind at the time his patrol car struck plaintiff. Whether Thorpe acted intentionally is a factual question which precludes summary judgment (see, Slavin v Curry, 574 F2d 1256, reh denied 583 F2d 779; see generally, Trustees of Hamilton Coll, v Cunningham, 70 AD2d 1048, 1049). (Appeal from Order of Supreme Court, Monroe County, Affronti, J.—Summary Judgment.) Present—Callahan,. A. P. J., Denman, Pine, Balio and Lawton, JJ.