Curtiss v. County of Livingston

Order unanimously reversed on the law with costs, motion denied in part and complaint against defendants County of Livingston and John M. York reinstated. Memorandum: Supreme Court erred in granting summary judgment dismissing the complaint against defendants County of Livingston (County) and John M. York. "[T]he proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact (Winegrad v New York Univ. Med. Center, 64 NY2d 851 ; Zuckerman v City of New York, 49 NY2d 557 , 562; Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395 , 404). Failure to make such prima facie showing requires a denial of the motion, regardless of the sufficiency of the opposing papers” (Alvarez v Prospect Hosp., 68 NY2d 320 , 324). The County did not meet its burden of establishing that it had no local law whereby it assumed liability for the acts of the Sheriff and his deputies (see, Marashian v City of Utica, 214 AD2d 1034 ). Contrary to the court’s determination, the allegations of the complaint are sufficient to state a cause of action against Sheriff York for negligence in hiring, supervising and retaining one of his deputies (see, Wyatt v State of New York, 176 AD2d 574 , 576; Hooper v Meloni, 123 AD2d 511 , 512). Further, no evidence was presented to show that the cause of action against Sheriff York has no merit {see, CPLR 3212 [b]). (Appeal from Order of Supreme Court, Livingston County, Calvaruso, J.—Summary Judgment.) Present—Green, J. P., Lawton, Fallon, Callahan and Doerr, JJ.