Glowinski v. Braun

105 A.D.2d 1153, 482 N.Y.S.2d 395, 1984 N.Y. App. Div. LEXIS 21279

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 7, 1984
• Status: Published

Opinion

Order unanimously reversed, with costs, and motions denied. Memorandum: In this action for false arrest, the court erred in dismissing the complaint against Sheriff Braun. Although a Sheriff is not liable for the torts of his deputies while performing criminal functions, he is liable for their torts while performing civil functions (Barr v County of Albany, 50 NY2d 247, 257; Isereau v Stone, 3 AD2d 243). In executing the warrant of arrest issued pursuant to section 153 of the Family Court Act, the Sheriff’s deputies were performing a civil function, since the Family Court proceeding in which the warrant was issued is a civil proceeding (Family Ct Act, § 812, subd 2, par [b]; Sheridan v Major, 15 AD2d 870; see, also, Matter of Flaherty v Milliken, 193 NY 564, 570; Marshon v City of New York, 88 AD2d 811, 812).

The court also erred in dismissing the complaint against Frank Boecio, Erie County Family Court Clerk. A public officer may be subject to liability for a wrongful act if that act is deemed ministerial rather than discretionary or quasijudicial in nature (see Tango v Tulevech, 61 NY2d 34, 41; Santangelo v State of New York, 101 AD2d 20). Here, the act alleged to have been negligently performed, failing to properly retire a warrant, does not involve the “exercise of reasoned judgment which could typically produce different acceptable results” (Tango v Tulevech, supra, p 41). Thus, the act in question must be considered ministerial (see Waterman v State of New York, 35 Misc 2d 954, 957, mod 19 AD2d 264, affd sub nom. Williams v State of New York, 14 NY2d 793). We find no support in the law for the statement by the court in Marshon v City of New York (88 AD2d 811, 812, supra) that a court clerk enjoys immunity for “negligent effectuation of judicial instructions.” We note that the Court of Appeals in Cox v City of New York (40 NY2d 966) expressly declined to rule on the question. (Appeal from order of Supreme Court, Erie County, Stiller, J. — dismiss complaint.) Present — Hancock, Jr., J. P., Callahan, Denman, Boomer and Moule, JJ.