Urbanski v. County of Monroe

— Order unanimously modified on the law and as modified affirmed without costs, in accordance with the following memorandum: Plaintiff brought this action against the County of Monroe, the Sheriff of the County of Monroe, a number of Deputy Sheriffs and a jail nurse for assault, malicious prosecution, conspiracy, negligence and violation of civil rights arising out of an incident that occurred while he was an inmate of the Monroe County Jail. Defendants moved for summary judgment in their favor and the motions of all but three defendants were denied. We modify the order appealed from by granting summary judgment to other defendants. Summary judgment is granted to the Monroe County Sheriff on the first three causes of action because a Sheriff is not vicariously liable for the acts of his deputies while performing their criminal justice duties (Barr v County of Albany, 50 NY2d 247, 257; Hooper v Meloni, 123 AD2d 511, 512; Wilson v Sponable, 81 AD2d 1, 4). Summary judgment is granted dismissing the fourth cause of action alleging conspiracy. There is no substantive tort of civil conspiracy in New York (McCarthy v Weaver, 99 AD2d 652). [926] Summary judgment is granted in favor of the Sheriff and the County of Monroe on the fifth and sixth causes of action for negligence and violation of civil rights. Those defendants submitted evidence showing that they were not negligent or guilty of any misconduct toward plaintiff; and plaintiff failed to present any evidence on these causes of action sufficient to raise a question of fact for the jury. Further, summary judgment is granted in favor of defendants Wren, Castelli, Garland, Calitri, Frattare and DiNardo, dismissing the complaint as to them because they have submitted evidence showing that they did not participate in any wrongful acts against plaintiff and plaintiff has not submitted any evidence to the contrary. (Appeal from order of Supreme Court, Monroe County, Cicoria, J. — summary judgment.) Present — Callahan, J. P., Denman, Boomer, Green and Balio, JJ.