Foyster v. Tutuska

Appellate Division of the Supreme Court of New York

Foyster v. Tutuska

25 A.D.2d 940, 270 N.Y.S.2d 535, 1966 N.Y. App. Div. LEXIS 4200

CourtAppellate Division of the Supreme Court of the State of New York

DecidedMay 19, 1966

StatusPublished

Cited by11 cases

This text of 25 A.D.2d 940 (Foyster v. Tutuska) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Foyster v. Tutuska, 25 A.D.2d 940, 270 N.Y.S.2d 535, 1966 N.Y. App. Div. LEXIS 4200 (N.Y. Ct. App. 1966).

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Opinion

Order of Appellate Term of Erie County Court entered November 30, 1964 and order of Buffalo City Court entered July 22, 1963 unanimously modified by reversing so much thereof as denied motion of defendant, John Tütuska, to dismiss complaint and motion of said defendant granted and, as modified, orders affirmed, without costs to any party. Memorandum: The injuries claimed to have been sustained by plaintiff wife, while serving as a juror in a criminal ease, might be found by the triers of the fact to have been caused by defendant Gelia, while serving as a Deputy of the codefendant Tutuska, the Sheriff of Erie County. We have no difficulty in concluding that the Deputy (Gelia) is not immune from suit. (Cf. Isereau v. Stone, 3 A D 2d 243.) In the same decision we further held that a Sheriff was not liable for the acts of his deputies while discharging criminal duties of the [Sheriff. Therein we recognized the diverse views on the subject and quoted (p. 246) with approval the language of a text writer that “‘Just what the status of the relationship between officer (sheriff) and his deputy is, in one of conflicts’”. (See, also, Sheridan v. Major, 15 A D 2d 870.) In reaching a contrary conclusion herein the Erie County Court based its decision in part upon the view that the State’s waiver of immunity (Court of Claims Act, § 8) made applicable the rule of respondeat superior to Sheriffs. (Cf. McCrossen v. State of New York, 277 App. Div. 1160; see, also, Domino v. Mercurio, 17 A D 2d 342.) It is recognized that the liability of a Sheriff or county for the negligent acts of a Deputy iSheriff has presented troublesome legal issues. (Cf. Commisso v. Meeker, 8 N Y 2d 109.) Until our highest [941]*941c-ourt has ruled on the specific issue before us we are constrained to follow our decisions in Isereau v. Stone (supra) and Sheridan v. Major (supra). (Appeal from order of Erie County Court which affirmed an Order of' Buffalo City Court denying a motion to dismiss the complaint.)

Present — Williams, P. J., Bastow, Goldman, Del Veechio and Marsh, JJ. [44 Misc 2d 303.]

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Order of Appellate Term of Erie County Court entered November 30, 1964 and order of Buffalo City Court entered July 22, 1963 unanimously modified by reversing so much thereof as denied motion of defendant, John Tütuska, to dismiss complaint and motion of said defendant granted and, as modified, orders affirmed, without costs to any party. Memorandum: The injuries claimed to have been sustained by plaintiff wife, while serving as a juror in a criminal ease, might be found by the triers of the fact to have been caused by defendant Gelia, while serving as a Deputy of the codefendant Tutuska, the Sheriff of Erie County. We have no difficulty in concluding that the Deputy (Gelia) is not immune from suit. (Cf. Isereau v. Stone, 3 A D 2d 243.) In the same decision we further held that a Sheriff was not liable for the acts of his deputies while discharging criminal duties of the [Sheriff. Therein we recognized the diverse views on the subject and quoted (p. 246) with approval the language of a text writer that “‘Just what the status of the relationship between officer (sheriff) and his deputy is, in one of conflicts’”. (See, also, Sheridan v. Major, 15 A D 2d 870.) In reaching a contrary conclusion herein the Erie County Court based its decision in part upon the view that the State’s waiver of immunity (Court of Claims Act, § 8) made applicable the rule of respondeat superior to Sheriffs. (Cf. McCrossen v. State of New York, 277 App. Div. 1160; see, also, Domino v. Mercurio, 17 A D 2d 342.) It is recognized that the liability of a Sheriff or county for the negligent acts of a Deputy iSheriff has presented troublesome legal issues. (Cf. Commisso v. Meeker, 8 N Y 2d 109.) Until our highest [941]*941c-ourt has ruled on the specific issue before us we are constrained to follow our decisions in Isereau v. Stone (supra) and Sheridan v. Major (supra). (Appeal from order of Erie County Court which affirmed an Order of' Buffalo City Court denying a motion to dismiss the complaint.)

Present — Williams, P. J., Bastow, Goldman, Del Veechio and Marsh, JJ. [44 Misc 2d 303.]

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25 A.D.2d 940, 270 N.Y.S.2d 535, 1966 N.Y. App. Div. LEXIS 4200, Counsel Stack Legal Research, https://law.counselstack.com/opinion/foyster-v-tutuska-nyappdiv-1966.

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