Opinion
December 16, 1977
Appeal from the Monroe Supreme Court.
Present — Cardamone, J.P., Simons, Dillon, Denman and Witmer, JJ.
Judgment unanimously reversed, without costs, and petition dismissed. Memorandum: This case was previously remitted for proof respecting the nature of petitioner's duties in the Monroe County Sheriff's Department (Matter of Reese v Lombard, 57 A.D.2d 705). A hearing was held at which, among others, Monroe County Sheriff Lombard, petitioner Albert Detandt, and the Personnel Manager of the Monroe County Civil Service Commission appeared and testified. After hearing the testimony of these witnesses, the Supreme Court Justice presiding found that "all petitioners are required to perform both civil and criminal duties". We adopt that finding of fact. Since none of the petitioners perform exclusively criminal duties (Matter of Flaherty v Milliken, 193 N.Y. 564; Amico v Erie County Legislature, 36 A.D.2d 415, affd 30 N.Y.2d 729), they must be considered to be in the personal service of the Sheriff who may be held personally liable for their negligence or misconduct in the execution of civil duties (NY Const, art XIII, § 13). Therefore, respondent Sheriff is not bound by the collective bargaining agreement executed by his predecessor in office (Matter of Sirles v Cordary, 40 N.Y.2d 950, affg 49 A.D.2d 330).