Curtiss v. County of Livingston , 648 N.Y.S.2d 387 ( 1996 )

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.