Opinion
May 13, 1971
Appeals (1) from an order of the Supreme Court at Special Term, entered April 28, 1970 in St. Lawrence County, which denied a motion pursuant to CPLR 3012 (subd. [b]) and 3216 to dismiss the action, and (2) from an order, entered June 26, 1970 in St. Lawrence County, which denied a motion pursuant to CPLR 3211 (subd. [a], par. 7) to dismiss the action against the Sheriff of St. Lawrence County. The present controversy arises out of an action brought against the Sheriff of St. Lawrence County and the County of St. Lawrence for wrongful death. The action against the county has been dismissed and is not a part of this appeal. The facts are uncontroverted. One Albert Dumas had been indicted for the crime of murder first degree and confined to the Matteawan State Hospital. On October 18, 1967 he was transferred to the custody of the defendant for confinement in the county jail for arraignment. During this confinement he hung himself. On November 6, 1968 the present action was commenced by the service of a summons and defendant put in a general appearance on November 20, 1968. After several requests for a complaint to no avail, a motion for dismissal pursuant to CPLR 3012 (subd. [b]) and 3126 was made on March 2, 1970. Prior to the return date the complaint was served. Special Term denied the motion. Subsequently a motion was brought to dismiss the complaint for failure to state a cause of action pursuant to 3211 (subd. [a], par. 7), which was also denied. We will consider the motions in the order in which they were brought. Concededly, issue had not been joined at the time of bringing the first motion. Consequently, defendant is not entitled to relief pursuant to CPLR 3216 since subdivision 2 of that rule requires issue to be joined. On the other hand, the motion brought pursuant to CPLR 3012 (subd. [b]) is directed to the discretion of the court. While no reasonable excuse was given for the delay, the complaint was served before the return date, accepted and retained by the defendant. We find that defendant has waived his objection to the delay. ( Lucenti v. City of Buffalo, 29 A.D.2d 833.) Under the circumstances we cannot say that Special Term abused its discretion in denying the motion. On the motion to dismiss for failure to state a cause of action the complaint must be liberally construed. We must also assume the truth of the allegations and give the pleader the benefit of every favorable inference. ( Hart v. City of Glens Falls, 8 A.D.2d 654, 655.) If from an examination of the complaint we conclude plaintiff has a cause of action, even though improperly stated, we must sustain the complaint. ( Herman Holding Corp. v. City of Albany, 33 A.D.2d 1086.) It is alleged in the complaint that decedent was mentally ill; that he had been transferred from Matteawan State Hospital to the St. Lawrence County jail; that he died by hanging himself as the result of defendant's negligence; that defendant was negligent in that, knowing or being in a position where he should have known of the mental condition of decedent, he failed to properly supervise decedent; he failed to provide an appropriate place in which to maintain him and he failed to provide for his necessary care and protection. Viewing the complaint in the light of the present day liberal rules of construction and particularly the rule that gives the pleader the benefit of every reasonable inference, we conclude that the complaint states a cause of action. Finally, there is no merit in defendant's contention that section 500-c Correct. of the Correction Law provides the defendant Sheriff with statutory immunity under the existing facts. A reading of the statute compels us to conclude that it was intended to absolve a Sheriff from liability for false imprisonment, and not for his negligence. (See Douglas v. State of New York, 269 App. Div. 521, affd. 296 N.Y. 530.) Orders affirmed, with costs.
I dissent and vote to reverse. It is my feeling that the motion to dismiss under CPLR 3012 (subd. [b]) should have been granted since a reasonable excuse for delaying the service of the complaint after numerous demands therefor, was not given ( Wemple v. Cadoret, 29 A.D.2d 1033). Respondent concedes "that the preparation of and serving of said complaint has been delayed for various and sundry reasons, none of which have a great deal of merit". Furthermore, respondent failed to submit an affidavit of merits to justify the 14-month delay. (See Dolendi v. Maksiks, 30 A.D.2d 687.) Nor do I agree that appellant waived his objection to the delay. Retention of a complaint while a motion is awaiting argument at Special Term, should not constitute a waiver. A further ground for dismissal is that the complaint failed to allege actual or constructive knowledge by the Sheriff of suicidal tendencies on the part of the deceased. (See Dalton v. State of New York, 34 A.D.2d 605.) Under the circumstances, Special Term abused its discretion in denying the motion.