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MOTIONS TO SET ASIDE THE DEFENSE VERDICT AS AGAINST THE WEIGHT OF THE EVIDENCE SHOULD NOT HAVE BEEN GRANTED, CRITERIA EXPLAINED.

The Fourth Department, reversing Supreme Court, determined plaintiffs’ motions to set aside the verdict as against the weight of the evidence should not have been granted. The issue was whether plaintiffs established “serious injury” in a car accident. The Fourth Department explained the criteria for setting aside a jury verdict:

 

It is well established that ” [a] verdict rendered in favor of a defendant may be successfully challenged as against the weight of the evidence only when the evidence so preponderated in favor of the plaintiff that it could not have been reached on any fair interpretation of the evidence’ ” … . “Although [t]hat determination is addressed to the sound discretion of the trial court, . . . if the verdict is one that reasonable persons could have rendered after receiving conflicting evidence, the court should not substitute its judgment for that of the jury” … . Furthermore, “it is within the province of the jury to determine issues of credibility, and great deference is accorded to the jury given its opportunity to see and hear the witnesses” … .

Here, we conclude that the court erred in setting aside the jury’s verdict inasmuch as the jury was entitled to credit the testimony of defendant’s witnesses and reject the testimony of plaintiffs’ witnesses … . Even assuming, arguendo, that plaintiffs established a prima facie case of serious injury, we nevertheless conclude that the jury was entitled to reject the opinions of plaintiffs’ physicians … . The jury’s interpretation of the evidence was not ” palpably irrational’ ” … , or ” palpably wrong’ ” … , and the court therefore erred in granting plaintiffs’ motions. McMillian v Burden, 2016 NY Slip Op 00851, 4th Dept 2-5-16

 

CIVIL PROCEDURE (MOTION TO SET ASIDE VERDICT SHOULD NOT HAVE BEEN GRANTED, CRITERIA EXPLAINED)/EVIDENCE (CIVIL, MOTION TO SET ASIDE VERDICT SHOULD NOT HAVE BEEN GRANTED, CRITERIA EXPLAINED)/VERDICT (CIVIL, MOTION TO SET ASIDE SHOULD NOT HAVE BEEN GRANTED, CRITERIA EXPLAINED)

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LAW FIRM’S SUMMARY JUDGMENT MOTION SHOULD HAVE BEEN GRANTED, CRITERIA FOR LEGAL MALPRACTICE WHERE AN ACTION HAS BEEN SETTLED EXPLAINED.

The Fourth Department, reversing Supreme Court, determined defendant’s counterclaim alleging legal malpractice in a divorce proceeding which was settled should have been dismissed. The court explained the malpractice criteria in an action which was settled:

 

Defendant contends, inter alia, that but for plaintiff’s alleged negligence she would have received a more favorable result had she proceeded to trial. Generally, “to recover damages for legal malpractice, a [client] must prove (1) that the [law firm] failed to exercise that degree of care, skill, and diligence commonly possessed by a member of the legal community, (2) proximate cause, (3) damages, and (4) that the [client] would have been successful in the underlying action had the [law firm] exercised due care” … . In a legal malpractice action in which there was no settlement of the underlying action, it is well settled that, “[t]o obtain summary judgment dismissing [the] complaint . . . , a [law firm] must demonstrate that the [client] is unable to prove at least one of the essential elements of its legal malpractice cause of action” … . A settlement of the underlying action does not, per se, preclude a legal malpractice action … . Where, as here, however, the underlying action has been settled, the focus becomes whether “settlement of the action was effectively compelled by the mistakes of counsel” … . Where the law firm meets its burden under this test, the client must then provide proof raising triable issues of fact whether the settlement was compelled by mistakes of counsel, and “[m]ere speculation about a loss resulting from an attorney’s [alleged] poor performance is insufficient” … . Conclusory allegations that merely reflect a subsequent dissatisfaction with the settlement, or that the client would be in a better position but for the settlement, without more, do not make out a claim of legal malpractice … . Chamberlain, D’Amanda, Oppenheimer & Greenfield, LLP v Wilson, 2016 NY Slip Op 00841, 4th Dept 2-5-16

 

ATTORNEYS (LEGAL MALPRACTICE, CRITERIA WHERE UNDERLYING ACTION IS SETTLED EXPLAINED)/LEGAL MALPRACTICE (CRITERIA WHERE UNDERLYING ACTION IS SETTLED EXPLAINED)/NEGLIGENCE (LEGAL MALPRACTICE, CRITERIA WHERE UNDERLYING ACTION IS SETTLED EXPLAINED)

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POLICE HAD NO REASON TO DETAIN DEFENDANT-PASSENGER AFTER TRAFFIC TICKET ISSUED TO DRIVER, STATEMENTS SHOULD HAVE BEEN SUPPRESSED; PROSECUTORIAL MISCONDUCT REQUIRED A NEW TRIAL AS WELL.

In reversing defendant’s conviction for criminal possession of a weapon, the Fourth Department determined a new trial was required because defendant’s statements should have been suppressed, and because of prosecutorial misconduct. Defendant was a passenger in a car which was stopped for having a suspended registration. After the driver was given a ticket, defendant asked if he could leave. He was told by the police he could not leave until an inventory search of the car was completed. Defendant’s statements were made subsequently. The Fourth Department held that, once the ticket was given to the driver, the police had no reason to detain defendant further. The Fourth Department addressed the prosecutorial misconduct in the interest of justice (despite the lack of preservation). With respect to prosecutorial misconduct, the court wrote:

 

During cross-examination, the prosecutor questioned the driver of the vehicle regarding an out-of-court conversation between them, asking her whether she came to his office and admitted that the defendant “[tried] to get [her] to come and take the blame for the gun.” After the witness denied for the second time that such a conversation had taken place, the prosecutor rhetorically asked, “[b]ut you were the one who was convicted of Scheme to Defraud, correct?” By challenging the witness with respect to the out-of-court conversation, the prosecutor both improperly interjected his personal opinion as to the truthfulness of the testimony and suggested to the jury that his own, unsworn version of events should be credited … .

In addition, instances of prosecutorial misconduct on summation deprived defendant of his right to a fair trial. The prosecutor improperly denigrated defendant’s case by referring to certain contentions as “[a]ll this nonsense,” made repeated non sequiturs distinguishing the case from the John F. Kennedy assassination, and asserted that the defense was “twisting things” and employing “tricks” … . The prosecutor compounded those statements by consistently commenting on witness credibility, calling the defense witnesses “a cast of characters,” “people com[ing] out of the woodwork,” and specifically referring to one witness as “a piece of work.” The prosecutor accused the defense witnesses of lying, and also argued that one could not believe a certain witness who had a lawyer advising her while testifying, stating that he “couldn’t tell if those were her words or her lawyer’s words when she was talking.” Not only did the prosecutor state his belief that witnesses had lied, he also alleged that the witnesses must have met secretly in order to plan and collude regarding their testimony. That was patently improper … .

In addition to criticizing defendant’s case and witnesses, the prosecutor also engaged in misconduct on summation by suggesting that an acquittal would require the jury to find a conspiracy by law enforcement … , by improperly suggesting that defendant bore a burden of proof … , and by misstating a key point of law regarding detention incident to a traffic stop… , People v Porter, 2016 NY Slip Op 00852, 4th Dept 2-5-16

CRIMINAL LAW (SUPPRESSION MOTION SHOULD HAVE BEEN GRANTED, NO REASON TO DETAIN)/CRIMINAL LAW (PROSECUTORIAL MISCONDUCT REQUIRED NEW TRIAL)/EVIDENCE (SUPPRESSION MOTION SHOULD HAVE BEEN GRANTED, NO REASON TO DETAIN)/SUPPRESSION (MOTION TO SUPPRESS SHOULD HAVE BEEN GRANTED, NO REASON TO DETAIN)/ATTORNEYS (PROSECUTORIAL MISCONDUCT REQUIRED NEW TRIAL)/PROSECUTORIAL MISCONDUCT (NEW TRIAL ORDERED)

ANONYMOUS 911 CALL COUPLED WITH POLICE OFFICER’S OBSERVATIONS PROVIDED REASONABLE SUSPICION JUSTIFYING DETENTION OF THE DEFENDANT.

The Fourth Department determined an anonymous 911 call combined with the police officer’s observations provided the officer with reasonable suspicion defendant had a weapon, justifying detention of the defendant:

 

Although “a radioed tip may have almost no legal significance when it stands alone, . . . when considered in conjunction with other supportive facts, it may thus collectively, although not independently, support a reasonable suspicion justifying intrusive police action” … . Here … that “additional support can … be provided by factors rapidly developing or observed at the scene” … . The evidence at the hearing established that ” the report of the 911 caller was based on the contemporaneous observation of conduct that was not concealed’ ” … . Upon the officer’s arrival, defendant was positioned at a bladed angle toward the officer with his hand in his waistband or sweatshirt pocket, ” common sanctuar[ies] for weapons’ ” … . …

“A police officer directed to a location by a general radio call cannot reasonably be instructed to close his eyes to reality—neither the officer nor justice should be that blind. The officer was rightfully and dutifully on the scene and could not ignore possible indications of criminality, nor is there any logical reason for him to reject the natural mental connection between newly encountered facts and the substance of the radio message. More importantly, there certainly is no justification for holding that an officer in such a situation cannot take note of a significant occurrence indicating a possible threat to his life, merely because the call which directed him to the scene was in and of itself an insufficient predicate for intrusive action against a particular person” … . In accordance with Court of Appeals’ precedent, we conclude that “it would be unrealistic to require [the responding officer], who had been told that [a] gunm[a]n might be present, to assume the risk that the defendant’s conduct was in fact innocuous or innocent. Such an assumption would be at odds with his reasonably acquired belief that he was in danger and his constitutionally authorized action . . . It would, indeed, be absurd to suggest that a police officer has to await the glint of steel before he can act to preserve his safety” … . People v Williams, 2016 NY Slip Op 00789, 4th Dept 2-5-16

 

CRIMINAL LAW (STATEMENTS AFTER ILLEGAL ARREST NOT SUPPRESSIBLE IF SUFFICIENTLY ATTENUATED)/EVIDENCE (STATEMENTS AFTER ILLEGAL ARREST NOT SUPPRESSIBLE IF SUFFICIENTLY ATTENUATED)/SUPPRESSION (STATEMENTS AFTER ILLEGAL ARREST NOT SUPPRESSIBLE IF SUFFICIENTLY ATTENUATED)

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PETITIONER’S MOTION FOR A DIRECTED VERDICT IN AN ARTICLE 10 TRIAL SHOULD NOT HAVE BEEN GRANTED; A TRIABLE ISSUE HAD BEEN RAISED CONCERNING PETITIONER’S ABILITY TO CONTROL HIS SEXUAL CONDUCT.

The Fourth Department, over a two-justice dissent, reversing Supreme Court, determined that petitioner-sex-offender’s motion for a directed verdict in an Article 10 trial should not have been granted. Petitioner had been deemed a dangerous sex offender and was committed to a secure facility. In the instant proceeding, petitioner sought release under a regimen of strict and intensive supervision and treatment. The state presented evidence petitioner had been diagnosed with antisocial personality disorder, paraphila otherwise specified, and cannabis dependence.  The majority concluded that the state’s expert, Dr. Prince, had presented sufficient additional evidence, including a history of defendant’s sexual behavior, his response to treatment, and the results of psychological tests, to raise a triable issue of fact whether defendant had serious difficulty in controlling difficulty controlling his sexual conduct:

When coupled with the evidence of petitioner’s clear, well-defined cycle of offending that begins with becoming frustrated, the deficits in his recent treatment plan on that specific area, and his stagnating course of treatment, we conclude that Dr. Prince’s opinion and the supporting evidence, ” when viewed in light of such features of the case as the nature of the psychiatric diagnosis, and the severity of the mental abnormality itself, [establish that petitioner is a] . . . dangerous sexual offender whose serious mental illness, abnormality, or disorder subjects him to civil commitment[, rather than a] dangerous but typical recidivist convicted in an ordinary criminal case’ ” … . Thus, respondents submitted sufficient evidence that, if it is credited by the factfinder, would establish that petitioner has a condition, disease or disorder “that predisposes him . . . to the commission of conduct constituting a sex offense and that results in [petitioner] having serious difficulty in controlling such conduct” (§ 10.03 [i] …). Consequently, we conclude that, if the factfinder accepts that evidence, there is a “rational process by which the [factfinder] could find for [respondents] as against” petitioner … . Matter of Wright v State of New York, 2015 NY Slip Op 09711, 4th Dept 12-31-15

MENTAL HYGIENE LAW (TRIABLE QUESTION OF FACT WHETHER PETITIONER HAD SERIOUS DIFFICULTY CONTROLLING SEXUAL CONDUCT)/SEX OFFENDERS (MENTAL HYGIENE LAW, TRIABLE QUESTION OF FACT WHETHER PETITIONER HAD SERIOUS DIFFICULTY CONTROLLING SEXUAL CONDUCT)

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VILLAGE’S AGREEMENT TO SELL ONE MILLION GALLONS OF WATER PER DAY FOR TRANSPORT TO PENNSYLVANIA WAS A TYPE I ACTION REQUIRING SEQRA REVIEW.

Upon remittitur after reversal by the Court of Appeals, the Fourth Department affirmed Supreme Court’s rulings re: the Water Agreement and Lease Agreement entered into by the Village of Painted Post. The Lease Agreement concerned the construction of a railroad transloading facility and the Water Agreement concerned the sale of one million gallons of water per day (gpd) to be transported (by rail) to Pennsylvania. The Fourth Department determined the Water Agreement was a Type I, not Type II, action which required review under the State Environmental Quality Review Act (SEQRA). Because the Village of Painted Post did not conduct a SEQRA review of the Water Agreement, the relevant village resolutions were annulled and a consolidated SEQRA review of both the Water Agreement and Lease Agreement was ordered:

Although the Water Agreement does not call for the use of “ground or surface water in excess of [two million gpd]” (6 NYCRR 617.4 [b] [6] [ii]) and thus is not a Type I action under that subsection, Type I actions also include “any Unlisted action[] that exceeds 25 percent of any threshold in this section, occurring wholly or partially within or substantially contiguous to any publicly owned or operated parkland, recreation area or designated open space” (6 NYCRR 617.4 [b] [10]). Where, as here, the Department of Environmental Conservation (DEC) has set a threshold clarifying that the use of a certain amount of a natural resource, e.g., land or water, constitutes a Type I action, it is reasonable to assume that the DEC has “implicitly determined that an annexation of less than [that threshold] is an [U]nlisted action’ ” … . We thus conclude therefrom that the Water Agreement is implicitly an Unlisted action. Inasmuch as there is also evidence in the record that the transloading facility may be substantially contiguous to a publicly owned park and the Water Agreement calls for the use of surface water in the amount of one million gpd, i.e., 50% of the threshold in section 617.4 (b) (6) (ii), the Water Agreement could also be deemed a Type I action under 6 NYCRR 617.4 (b) (10).

Consequently, SEQRA review was required for the Water Agreement. Although the Village conducted a SEQRA review of the Lease Agreement, segmentation, i.e., the division of environmental review for different sections or stages of a project (see 6 NYCRR 617.2 [ag]), is generally disfavored … . We thus conclude that the court properly determined, on the merits of the first cause of action, that all of respondent Village’s resolutions should be annulled and that a consolidated SEQRA review of both agreements was required. Matter of Sierra Club v Village of Painted Post, 2015 NY Slip Op 09707, 4th Dept 12-31-15

ENVIRONMENTAL LAW (SALE OF WATER BY VILLAGE REQUIRED SEQRA REVIEW)/STATE ENVIRONMENTAL QUALITY REVIEW ACT [SEQRA] (SALE OF WATER BY VILLAGE REQUIRED SEQRA REVIEW)/WATER (SALE OF WATER BY VILLAGE REQUIRED SEQRA REVIEW)/MUNICIPAL LAW (SALE OF WATER BY VILLAGE REQUIRED SEQRA REVIEW)

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JUDGE’S RESPONSE TO JURY NOTE ALLOWED JURY TO CONSIDER EVIDENCE OF ACTIONS NOT CHARGED IN THE INDICTMENT, CONVICTION REVERSED AND INDICTMENT DISMISSED.

The Fourth Department determined the trial judge’s response to a jury note allowed the jury to consider evidence of actions not charged in the indictment. Defendant’s conviction for endangering the welfare of a child was therefore reversed and the indictment was dismissed:

As set forth in the indictment and bill of particulars, as well as pursuant to the People’s theory at trial, the endangerment charge was based on the conduct alleged in the preceding six counts of rape in the second degree and incest in the second degree, of which defendant was acquitted. After receiving a jury note during deliberations, the court instructed the jurors that they were not precluded from considering conduct other than the alleged rape and incest when considering the endangerment charge. That instruction allowed the jury to consider conduct not charged in the indictment. ” Because the jury may have convicted defendant of . . . act[s] . . . for which he was not indicted, defendant’s right to have charges preferred by the [g]rand [j]ury rather than the prosecutor at trial was violated’ ” … . Additionally, based on the vague nature of the court’s instruction, “[i]t is impossible to ascertain what alleged act of [endangerment] was found by the jury to have occurred, whether it was one . . . for which he was indicted, or indeed whether different jurors convicted defendant based on different acts” … . People v Utley, 2015 NY Slip Op 09749, 4th Dept 12-31-15

CRIMINAL LAW (JURY ALLOWED TO CONSIDER EVIDENCE OF ACTIONS NOT CHARGED IN INDICTMENT, CONVICTION REVERSED, INDICTMENT DISMISSED)/EVIDENCE (JURY ALLOWED TO CONSIDER EVIDENCE OF ACTIONS NOT CHARGED IN INDICTMENT, CONVICTION REVERSED, INDICTMENT DISMISSED)

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EXPERT EVIDENCE OF A RECALL AND EVIDENCE OF CUSTOMER COMPLAINTS ABOUT DEFENDANTS’ MOTORCYCLE RELEVANT TO DEFENDANTS’ DUTY TO WARN.

The Fourth Department, eliminating restrictions on the evidence imposed by Supreme Court, determined evidence from plaintiffs’ electrical expert and evidence of customer complaints were relevant to defendants’ duty to warn. Plaintiffs alleged an electrical defect in their motorcycle (manufactured by defendants) caused the accident. Plaintiffs sought to introduce evidence of a recall made prior to the accident and evidence of customer complaints:

… [W]e conclude that the court erred in granting that part of defendants’ motion seeking to preclude the testimony of plaintiffs’ electrical engineer expert and the customer complaints to the extent that such evidence is relevant to defendants’ continuing duty to warn. We therefore modify the order accordingly. “A manufacturer or retailer may . . . incur liability for failing to warn concerning dangers in the use of a product which come to his attention after manufacture or sale . . . through being made aware of later accidents involving dangers in the product of which warning should be given to users . . . Although a product [may] be reasonably safe when manufactured and sold and involve no then known risks of which warning need be given, risks thereafter revealed by user operation and brought to the attention of the manufacturer or vendor may impose upon one or both a duty to warn” … . “What notice . . . will trigger [this] postdelivery duty to warn appears to be a function of the degree of danger which the problem involves and the number of instances reported . . . [Whether] a prima facie case on that issue has been made will, of course, depend on the facts of each case” … .

Defendant’s recall was first issued in March 2004, prior to plaintiffs’ accident on April 30, 2004. A determination that plaintiffs’ motorcycle should have been included in the recall would be relevant to defendants’ duty to warn plaintiffs of the defect that, plaintiffs allege, caused a “quit while riding” event in their motorcycle and thereby caused or contributed to their accident. Plaintiffs’ expert, an electrical engineer, expects to testify in part that plaintiffs’ motorcycle does not differ in any material respect from those included in the 2004 recall, despite the fact that plaintiffs’ motorcycle did not have the same stator as the motorcycles affected by the recall. In our view, the expert’s qualifications as an electrical engineer qualify him to opine whether the motorcycles “were the same in all significant respects” … , and the fact that the expert has done no testing goes to the weight to be given to his testimony, not its admissibility … . Smalley v Harley-Davidson Motor Co. Group LLC, 2015 NY Slip Op 09712, 4th Dept 12-31-15

NEGLIGENCE (PRODUCTS LIABILITY, EVIDENDE OF RECALL AND CUSTOMER COMPLAINTS RE: DEFENDANT’S MOTORCYCLE RELEVANT TO DEFENDANTS’ DUTY TO WARN)/PRODUCTS LIABILITY (EVIDENCE OF RECALL AND CUSTOMER COMPLAINTS RE: DEFENDANT’S MOTORCYCLE RELEVANT TO DEFENDANTS’ DUTY TO WARN)/DUTY TO WARN (PRODUCTS LIABILITY, EVIDENCE OF RECALL AND CUSTOMER COMPLAINTS RE: DEFENDANT’S MOTORCYCLE RELEVANT TO DEFENDANTS’ DUTY TO WARN)

VICTIM’S DEATH FIVE MONTHS AFTER THE ASSAULT WAS SUFFICIENTLY LINKED TO DEFENDANT’S ACTIONS.

In affirming defendant’s murder conviction, the Fourth Department concluded the victim’s death five months after the assault was sufficiently linked to defendant’s actions:

… [I]t has long been the rule in New York that ” [i]f a person inflicts a wound . . . in such manner as to put life in jeopardy, and death follows as a consequence of this felonious and wicked act, it does not alter its nature or diminish its criminality to prove that other causes cooperated in producing the fatal result. Indeed, it may be said that neglect of the wound or its unskillful and improper treatment, which were of themselves consequences of the criminal act, which might naturally follow in any case, must in law be deemed to have been among those which were in contemplation of the guilty party, and for which he is to be held responsible’ ” … . Thus, “[f]or criminal liability to attach, a defendant’s actions must have been an actual contributory cause of death, in the sense that they forged a link in the chain of causes which actually brought about the death’ ” … . Additionally, the “defendant’s acts need not be the sole cause of death; where the necessary causative link is established, other causes, such as a victim’s preexisting condition, will not relieve the defendant of responsibility for homicide . . . By the same token, death need not follow on the heels of injury” … . People v Pratcher, 2015 NY Slip Op 09730, 4th Dept 12-31-15

CRIMINAL LAW (VICTIM’S DEATH FIVE MONTHS AFTER ASSAULT SUFFICIENTLY LINKED TO DEFENDANT’S ACTIONS)/MURDER (VICTIM’S DEATH FIVE MONTHS AFTER ASSAULT SUFFICIENTLY LINKED TO DEFENDANT’S ACTIONS)

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SHERIFF IS NOT VICARIOUSLY LIABLE FOR EMPLOYEES OF THE SHERIFF’S DEPARTMENT; SHERIFF, THEREFORE, IS NOT UNITED IN INTEREST WITH THE SHERIFF’S DEPARTMENT OR THE COUNTY; RELATION-BACK DOCTRINE DOES NOT APPLY; SHERIFF CANNOT BE ADDED TO THE COMPLAINT AFTER THE STATUTE OF LIMITATIONS HAS RUN.

Plaintiff sued the county alleging plaintiff’s decedent was not properly screened and supervised when placed in the Erie County Holding Center where plaintiff’s decedent committed suicide. After the statute of limitations had run, plaintiff was allowed to add the Erie County Sheriff as a defendant. The Fourth Department reversed, explaining that the Sheriff is not vicariously liable for the actions of the Sheriff’s Department and is therefore not “united in interest” with the County/Sheriff’s Department:

In order for the relation back doctrine to apply, a plaintiff must establish that “(1) both claims arose out of [the] same conduct, transaction or occurrence, (2) the new party is united in interest with the original defendant[s], and by reason of that relationship can be charged with such notice of the institution of the action that he will not be prejudiced in maintaining his defense on the merits and (3) the new party knew or should have known that, but for an excusable mistake by plaintiff as to the identity of the proper parties, the action would have been brought against him as well” … .

…. [Plaintiff did not satisfy the second prong, i.e., unity of interest. “In [the] context [of this case], unity of interest means that the interest of the parties in the [subject matter] is such that they stand or fall together and that judgment against one will similarly affect the other . . . Although the parties might share a multitude of commonalities, . . . the unity of interest test will not be satisfied unless the parties share precisely the same jural relationship in the action at hand . . . Indeed, unless the original defendant[s] and new [defendant] are vicariously liable for the acts of the other[,] . . . there is no unity of interest between them” … .

Here, defendant County of Erie (County) is not united in interest with the Sheriff inasmuch as the County cannot be held vicariously liable for the alleged negligent acts of the Sheriff or his deputies … . Nor is defendant Erie County Sheriff’s Department (Sheriff’s Department) united in interest with the Sheriff for purposes of the relation back doctrine. The Sheriff is not vicariously liable for the alleged negligent acts of the deputies employed at the Holding Center … . In addition, the Sheriff’s Department does not have a legal identity separate from the County … , and thus an “action against the Sheriff’s Department is, in effect, an action against the County itself” … . Given that the Sheriff and the County are not united in interest, it follows that the Sheriff and the Sheriff’s Department are not united in interest, and the court therefore erred in granting plaintiff’s motion for leave to amend the complaint to add the Sheriff as a party. Johanson v County of Erie, 2015 NY Slip Op 09736, 4th Dept 12-31-15

CIVIL PROCEDURE (SHERIFF NOT VICARIOUSLY LIABLE FOR ACTIONS OF EMPLOYEES OF SHERIFF’S DEPARTMENT AND THEREFORE IS NOT UNITED IN INTEREST WITH THE COUNTY OR SHERIFF’S DEPARTMENT)/RELATION-BACK DOCTRINE (SHERIFF NOT VICARIOUSLY LIABLE FOR ACTIONS OF EMPLOYEES OF SHERIFF’S DEPARTMENT AND THEREFORE IS NOT UNITED IN INTEREST WITH THE COUNTY OR SHERIFF’S DEPARTMENT)/MUNICIPAL LAW  (SHERIFF NOT VICARIOUSLY LIABLE FOR ACTIONS OF EMPLOYEES OF SHERIFF’S DEPARTMENT AND THEREFORE IS NOT UNITED IN INTEREST WITH THE COUNTY OR SHERIFF’S DEPARTMENT)/SHERIFF  (SHERIFF NOT VICARIOUSLY LIABLE FOR ACTIONS OF EMPLOYEES OF SHERIFF’S DEPARTMENT AND THEREFORE IS NOT UNITED IN INTEREST WITH THE COUNTY OR SHERIFF’S DEPARTMENT)

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