Opinion
June 4, 1959
O'Brien Kelly for defendants.
David L. Glickman for plaintiff.
On this motion the defendants seek an order dismissing the action upon the ground that it was not commenced within the time limited by statute for the commencement thereof. Subsequent to the making of the motion and prior to a hearing thereof plaintiff, pursuant to rule 301 of the Rules of Civil Practice, discontinued the action against the municipal defendant. This motion will be considered only as affecting the complaint against the defendant Sheriff. The complaint alleges that plaintiff was injured on April 29, 1957, while working on a garage erected upon county-owned land and adjacent to the county jail. Plaintiff commenced his action by the service of a summons and complaint on November 17, 1958, more than 18 months after the occurrence in which plaintiff's alleged injuries were sustained. Section 51 of the Civil Practice Act provides in pertinent part "The following actions must be commenced within one year after the cause of action has accrued: 1. An action against a sheriff or coroner upon a liability incurred by him by doing an act in his official capacity or by omission of an official duty". Section 500-d Correct. of the Correction Law provides in pertinent part "Such keeper shall cause each prisoner committed to his jail for imprisonment under sentence, to be constantly employed at hard labor when practicable, during every day except Sunday". Section 500-c Correct. of the Correction Law designates each Sheriff, except the Sheriff of the City of New York, as the keeper, in the county jail, of every person sentenced to imprisonment therein. These sections of the Correction Law fix the status of the Sheriff of Suffolk County as the keeper of persons confined in the county jail of that county and imposes a duty upon him to keep those persons, confined as a result of a sentence of imprisonment, at hard labor during their imprisonment. It is the finding of this court that the liability claimed in this action to have been incurred by the defendant Sheriff was incurred by him in doing an act in his official capacity and that commencement of an action thereon was subject to the one-year Statute of Limitations prescribed in section 51 of the Civil Practice Act. The motion is granted and the complaint insofar as it purports to state a cause of action against the defendant Charles R. Dominy, individually and as Sheriff of the County of Suffolk, is dismissed.