The Town of Niagara man who was shot on his front porch by a Niagara County sheriff’s deputy in 2007 will have his day in court after all.
Michael J. Rew’s case was incorrectly dismissed in 2012, the Appellate Division of State Supreme Court ruled unanimously Friday.
The five-judge panel revived the case that had been thrown out by State Supreme Court Justice Ralph A. Boniello III and sent it back to his court for further proceedings.
Not only was the unreasonable shooting claim against Deputy Cory Diez reinstated, so, too, was a claim against then-Sheriff Thomas A. Beilein for negligent supervision and training of Diez. The appeals court ruled the county failed to present any evidence that Beilein was not negligent; thus, there were no grounds for throwing out that allegation.
County Attorney Claude A. Joerg said that because the county itself is no longer a defendant as a result of Friday’s ruling, Diez and Beilein could be on their own to pay any damages Rew might eventually win.
“The county has never passed a local law saying we have to reimburse them,” Joerg said.
“Generally speaking, a county isn’t liable for a sheriff’s tortious conduct,” said John A. Collins of the Lipsitz Green law firm, who is representing Rew.
Rew, who previously asserted that he incurred $100,000 worth of medical bills, sued the county for a sum that was not stated in the legal papers.
Rew, now 45, was shot Nov. 11, 2007, by Diez, who was responding to a complaint from a newspaper delivery boy and his mother that a man with a shotgun at his side was sitting on the front porch of a mobile home on West Creek Drive in the Cayuga Village mobile home park.
At 5:25 a.m., Diez reported at the time, he saw the porch lights were on and he could see Rew. Diez, who already had his gun drawn, said Rew was standing and bent down to pick up the shotgun.
Diez, now sergeant of the civil division of the Sheriff’s Office, said he yelled, “Police!” He said Rew stood up with the shotgun in his hands, so he shot Rew at a range of three to five feet, striking him in the lower abdomen.
“I had no time to do anything else. When I fired, I thought I was going to be shot,” Diez wrote in his report. He also reported that after he shot Rew, he discovered that the shotgun was missing a barrel.
Collins said the missing barrel made Rew’s shotgun inoperable.
“He always has said he was asleep in his chair,” Collins said, a version that he said was backed up by the paper boy and his mother.
“They called the cops because they weren’t sure what was going on,” Collins said.
The appeals court said the difference between Diez’s and Rew’s stories made for a factual issue that could be submitted to a jury.
The panel criticized Boniello for implicitly deciding Rew’s story wasn’t credible, saying that wasn’t the judge’s proper role on a motion for summary judgment.
Diez charged Rew with a felony count of menacing a police officer. However, Niagara County Judge Sara Sheldon Farkas dismissed the indictment in 2008 because Rew wasn’t informed of his right to testify before the grand jury. The second grand jury that heard the case refused to indict Rew.
The county’s attorney in the appeal, Elizabeth M. Bergen of the Gibson, McAskill & Crosby law firm, could not be reached to comment.