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Notice of Claim not Required in this Instance - Sexaully Assaulted Prisoner can sue Sheriff for Sexu

The case is Villar v Howard, where the Court of Appeals was asked to determine "whether Erie County had a statutory obligation within the meaning of section 50-e (1) (b) to indemnify defendant, the Erie County Sheriff, such that a notice of claim was required." The Court of Appeals agreed with the "Appellate Division that no such statutory obligation exists and...conclude[d] that the complaint was otherwise sufficient to withstand a motion to dismiss"

The Plaintiff here is a gentlemen who was incarcerated for a short period of time. Often the long running joke but unfortunate reality, while being held at the Erie County Correctional facility, he was sexually assaulted twice in a shower stall by another inmate. The Plaintiff alleged that "defendant Sheriff breached a duty to protect plaintiff from a reasonably foreseeable hazard of sexual assault, disregarded known risks of harm to inmates vulnerable to sexual abuse by other inmates at the facility, and had actual knowledge of the dangerous propensities of the inmate who assaulted plaintiff." The Defendants, Sheriff here, moves to dismiss the Plaintiff's lawsuit on a legal technicality, based on the fact that the Plaintiff failed to serve a notice of claim.

Those who wish to sue the state, a New York State municipality or a municipal agent or entity, must, at times, comply with the provisions of the General Municipal Law. For instance, if one were to be falsely arrested by the New York City Police Department, a notice of claim alleging false arrest must be created in accordance with the General Municipal Law and must be properly served. The gist of the issue here is that these legal requirements were not followed. While there are certain provisions to file a late notice of claim, it is unfortunate that such a short deadline follows such a traumatic set of events for which there may not be an attorney readily available. A failure to comply with the general municipal law requirements can result in the dismissal of a Plaintiff's lawsuit as occurred here:

Supreme Court granted defendant's motion, dismissing the complaint because "[n]o notice of claim was served nor was permission sought of the court to serve a late notice, prior to the expiration of the statute of limitations applicable to a sheriff." The court reasoned that plaintiff was required to serve a notice of claim pursuant to General Municipal Law § 50-e because the County is statutorily obligated to indemnify defendant under "the County legislature's resolution of May 16, 1985." As relevant here, the court also concluded that the allegedly negligent acts were "inherently discretionary" and that, in any event, plaintiff failed to establish that defendant owed him a duty of care in the first instance

Plaintiff appealed. The Fourth Department reversed, finding, inter alia, that the "plaintiff was not required to serve a notice of claim prior to commencing this action because Erie County has no statutory obligation to indemnify defendant." The Court of Appeals affirmed. While discussing other issues on appeal, it is important to note that this requirement if often raised as a defense and both pro se litigants and attorneys would be wise to consult the New York General Municipal Law prior to the commencement of a lawsuit.

Should you wish to sue a state actor, in any capacity, for civil damages for causes of action including but not limited to violations of free speech, excessive force, personal injury, false arrest and/or malicious prosecution, call the Law Offices of Cory H. Morris. Personal injury should not be limited to a car accident and you may be entitled to compensation: 631-450-2515.

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