Papers Considered:1. Notice of Motion for Summary Judgment dated February 9, 2018; Affidavit of Stephen M. Groudine, Esq., sworn to on February 9, 2018, with Exhibit “A” through “L”;2. Affirmation in Opposition of Karen A. Murphy, Esq., dated February 23, 2018; Affidavit of Robert Pulver, sworn to February 23, 2018, with Exhibit;3. Reply Affidavit of Stephen M. Groudine, Esq., sworn to on March 1, 2018. Defendants Columbia County Sheriff David P. Bartlett and Columbia County have moved for an order pursuant to CPLR 3212 for summary judgment dismissing the plaintiff Robert Pulver’s Second Amended Verified Complaint. In the alternative, the defendants seek an order dismissing the Third Cause of Action for gross negligence and striking the plaintiff’s claim for punitive damages, together with an order compelling the plaintiff to comply with their discovery demands and Demand for a Bill of Particulars. Plaintiff opposes the motion. For the reasons that follow the Court grants the defendants’ motion for summary judgment and dismisses the plaintiff’s Second Amended Verified Complaint.Plaintiff commenced this action on August 17, 2017, with the filing of a summons and verified complaint asserting two causes of action: wrongful taking pursuant to CPLR 5205; gross negligence. Plaintiff’s First Amended Complaint dated September 19, 2017 asserted an additional cause of action: negligence. By stipulation of the parties, the plaintiff was permitted to file a Second Amended Complaint — identical to the First Amended Complaint, except for the addition of a new paragraph 21 which concerns only the plaintiff’s Notice of Claim and Amended Notice of Claim. In sum, the plaintiff alleges that on June 22, 2017 the defendant Sheriff wrongfully executed a warrant of seizure on his 2003 Chevy Silverado (“Silverado”) knowing that it was exempt from such seizure under CPLR 5205[a][8]. The Execution was for enforcement of a August 16, 2016 Judgment.1 Forty-two days after the Silverado was seized, the defendant Sheriff released it to the plaintiff after no one bid on it at auction. Plaintiff alleges, due to the defendants’ unlawful and negligent actions, that he suffered economic losses as he was unable to carry out his farm operations without the seized Silverado, and that he needed the vehicle to ensure that his (adult) son received medical care.Defendants now seek dismissal of the Second Amended Complaint, asserting that the exemption under CPLR 5205(a)(8) is inapplicable, and that the defendants were in no way negligent when carrying out the seizure of the Silverado based upon a facially sufficient Execution. Further, the defendants assert that the defenses of governmental immunity and lack of a special duty owed to the plaintiff are applicable.Summary judgment is a drastic remedy which should not be granted unless it is clear that there are no triable issues of fact (Andre v. Pomeroy, 35 NY2d 361, 364[1974], and the court’s focus should be on issue identification rather than issue determination (Sternbach v. Cornell University, 162 AD2d 923 [3d Dept 1990]). [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”(Alvarez v. Prospect Hosp., 68 NY2d 320, 324 [1986]; Ayotte v. Gervasio, 81 NY2d 1062 [1993]; Zuckerman v. City of New York, 49 NY2d 557 [1980]. Only once the movant has satisfied its entitlement to judgment as a matter of law — by affirmatively demonstrating the merits of its claim (Velasquez v. Gomez, 44 AD3d 649, 650-651 [3d Dept 2007]) — does the burden then shift to the opponent of the motion to establish, by admissible proof, the existence of a triable issue of fact (Lockwood v. Layton, 79 AD2d 1342, 1342-1343 [3d Dept 2010]).The Court must view the evidence in the light most favorable to the non-moving party, giving that party the benefit of every reasonable doubt, and determine whether there is any triable issue of fact outstanding (Matter of Suffolk DSS v. James M., 83 NY2d 178; Boyce v. Vasquez, 249 AD2d 724 [3rd Dept1998]). Simply stated, the Court must deny summary judgment, “without making any credibility determinations…if there is any doubt as to whether a material factual issue exists or if such an issue is even arguable” (Black v. Kohl’s Dept. Stores, Inc., 80 AD3d 958, 959 [3d Dept 2011]).On this record, the defendants have established as a matter of law entitlement to summary judgment dismissing the Second Amended Complaint. The law is clear that a sheriff is not liable for negligence committed in the execution of a document which ordered seizure, and which was authorized by statute — “(e)ven if the order was void as between the parties, but was valid on its face” (Iovinella v. Sheriff of Schenectady County, 67 AD2d 1037, 1038 [3d Dept 1979]. Simply stated, if the subject Execution is valid on its face, the Sheriff is protected (Day v. Bach, 42 Sickels 56 [1881]; Gaines v. Gaines, 109 AD2d 866 [2d Dept 1985].2Turning to the May 19, 2017 Execution, it specifically directed the defendant Sheriff to seize the plaintiff’s Silverado. CPLR 5205[a][8] — the exemption plaintiff asserts that the defendant Sheriff failed to afford him — shields “one motor vehicle not exceeding four thousand dollars in value above liens…” from the enforcement of a money judgment. The issue is not whether the Silverado was worth more or less than $4,000. Rather, what strips away any merit to the plaintiff’s claim that the Sheriff violated the statute is that the plaintiff owned and had available for his use (farming or otherwise) more than one motor vehicle at the time the Silverado was seized. At his 50-h hearing, when asked if he could use his silage truck on the highway, plaintiff testified “yes.” As to his son’s medical care, plaintiff clearly testified at his 50-h that his son’s mother took him to his medical appointments.Here, it was incumbent on the plaintiff to produce documentation, in evidentiary form, that the defendant Sheriff violated CPLR 5205[a][8]. However viewed, the plaintiff’s affidavit in opposition contradicts his 50-h testimony (that he could use the silage truck). The affidavit was obviously prepared to oppose summary judgment, and towards raising for the first time a question of fact — which is clearly contradicted by his prior testimony. On this issue the law is clear: “a nonmovant cannot avoid summary judgment by alleging issues of fact created by selfserving affidavits contradicting prior sworn deposition testimony” (Valenti v. Exxon Mobil Corp., 50 AD3d 1382, 1384 [3d Dept 2008]).Mindful that a Sheriff is entitled to “complete protection from liability…for any proper act done” in the execution of an order valid on its face (Iovinella at 10138), the Court turns to the plaintiff’s allegations of negligence and gross negligence. Where, as here, a claim is made that a municipality has negligently exercised a governmental function, liability turns upon the existence of a special duty to the injured person, in contrast to the a general duty owed to the public. Further, governmental actors are immune from negligence claims where a plaintiff has failed to establish a special relationship with the sheriff which created a duty (Feeney v. County of Delaware, 150 AD3d 1355 [3d Dept 2017]).Although the plaintiff argues that the defendants cannot avail themselves of “governmental immunity” because they were performing a ministerial act, there must also be a corresponding special duty owed to plaintiff (Lauer v. City of New York, 95 NY2d 95 [2000]). On this issue, the plaintiff argues that judgment debtors are a “protected class” by virtue of the exemptions set forth in CPLR 5205, in his case, CPLR 5205[a][8]. Even if the Court were to accept the plaintiff’s argument that negligence per se happens when a statute is designed to protect a class of persons is violated, and that the plaintiff actually suffered harm, liability only inures if a violation of the statute is actually proven. Simply stated, in order to establish negligence as a result of the breach of the duty owed by virtue of CPLR 5205 (a)(8), the plaintiff must prove the statute was violated, which he simply failed to do.New York also has a doctrine called “avoidable consequences” which requires a plaintiff to minimize damages caused by defendants’ tortuous conduct. The Second Amended Complaint is devoid of any attempts taken by the plaintiff to mitigate the injury he alleges he suffered in his complaint — he did not repair another owned vehicle that could not pass inspection; he did not drive his silage truck; he did not order and have delivered his necessary planting supplies; he did not immediately act when his Silverado was taken — although he certainly had legal options available to him (Sackin v. TransPerfect Global, Inc., 278 F. Supp3d 739 [S.D.NY 2017]).The Second Amended Complaint, when read in the light most favorable to plaintiff, fails to set out a claim for gross negligence. In order to be grossly negligent in carrying out this facially sufficient warrant of Execution, defendants’ conduct must “smack of intentional wrongdoing or evince a reckless indifference to the rights of others” (Skywest, Inc. v. Ground Handling, Inc., 150 AD3d 922 [2nd Dept 2017]). A party is “grossly negligent when it fails to exercise even slight care…or slight diligence,” and the complaint must allege some intentional and /or reckless acts on the part of the defendants (Gallagher v. Ruzzine, 147 AD3d 156 [4th Dept 2017]).All said, plaintiff has simply failed to raise any question of fact in opposition to the instant application. The defendants were clearly obligated, by the face of the Execution, to carry out its terms (Liggett v. Pichler, 142 AD2d 206, 210 [1st Dept 1988]). It was not within their authority or discretion to determine whether the vehicle satisfied the exemption, or, given that it specified the property to be seized, that another vehicle could be substituted. Their only duty was to carry out the statutorily authorized Execution and seize the designated Silverado. Plaintiff misinterprets the law when he claims that the defendant Sheriff was negligent in his supervision and training because the deputy should have known, by virtue of his training, that what he was doing wrong. In order to state a cause of action for negligent supervision and training, it must be alleged that the Sheriff “knew or should have known of the employee’s propensity for the conduct which caused the injury, and the allegedly deficient supervision or training was the proximate cause of the injury” (Hicks. Ex rel Nolette v. Berkshire Farm Center and Services for Youth, 123 AD3d 1319 [3d Dept 2014]). No such allegations appear in the Second Verified Complaint.Accordingly, it isORDERED, that Defendants’ motion to dismiss the Second Amended Verified Complaint is granted.This constitutes the Decision and Order of the Court. This original Decision and Order is returned to the attorneys for the Defendants. All other papers are delivered to the Supreme Court Clerk for transmission to the County Clerk. The signing of this Decision and Order shall not constitute entry or filing under CPLR 2220. Counsel is not relieved from the applicable provisions of this rule with regard to filing, entry and Notice of Entry.Dated: April 19, 2018Troy, New York
