Court of Appeals Decides Narrow Notice of Claim Issue
Jan 10, 2017
On October 25, the Court of Appeals issued an interesting decision in Villar v. Howard regarding the when a Notice of Claim is required. Villar turns on a portion of GML § 50-e(1)(b) that states a Notice of Claim is not a condition precedent to a lawsuit against an employee of a municipality unless the municipality has a statutory obligation to indemnify that employee.
In Villar, the employee at issue was the Erie County Sheriff, who was sued by a former inmate who claims the Sheriff failed to protect him from a known danger while he was held in the Erie County Correctional Facility. The Sheriff moved to dismiss the complaint because no Notice of Claim was served specifically naming the Sheriff. The Supreme Court granted the motion to dismiss, finding that a 1985 County resolution required the County to indemnify the Sheriff. The Appellate Division reversed, holding that the County was not required to indemnify the Sheriff.
The Court of Appeals upheld the Appellate Division’s conclusion that the County was not required to indemnify the Sheriff and, therefore, no Notice of Claim was required. According to the Court, the resolution relied upon by the Supreme Court was merely an agreement and did not create an obligation to indemnify the Sheriff. Rather, the County agreed to act as the liability insurer for the Sheriff due to the expense of law enforcement liability insurance policies the County previously obtained. Further, the County resolution explicitly recognized that the County could not, under the State Constitution at that time, create for itself a statutory obligation to indemnify the Sheriff. Since the resolution did not contain a statutory obligation to indemnify the Sheriff, no Notice of Claim was required.
Villar provides two critical lessons for municipalities. First, Villar highlights the fact that, just because a named defendant is a municipal employee does not mean a Notice of Claim will be required as a condition precedent for a lawsuit. Second, as noted by the Court in a footnote, the State Constitutional prohibition that prevented the County from obligating itself to indemnify the Sheriff has since been removed. However, Erie County did not adopt a resolution after that date that would have created an obligation to indemnify the Sheriff which would have triggered an obligation to name the Sherriff in any Notice of Claim. Given the outcome of Villar, it might be prudent to review similar resolutions and to ensure that all municipal employees who should benefit from the requirement that they be named in Notices of Claim can assert this protection.