
    Teddy’s Drive In, Inc., Respondent, v Alexander E. Cohen, Appellant, et al., Defendants.
    Argued March 22, 1979;
    decided May 3, 1979
    
      POINTS OF COUNSEL
    
      Robert Abrams, Attorney-General (Robert S. Hammer and » Samuel A. Hirshowitz of counsel), for appellant.
    I. Appellant is immune from suit for his official acts which gave rise to this case; which, in reality is against the State. Respondent should pursue its presently pending action in the Court of Claims. (Psaty v Duryea, 306 NY 413; Glassman v Glassman, 309 NY 436; Matter of Dormitory Auth. of State of N. Y. [Span Elec. Corp.], 18 NY2d 114; Belscher v New York State Teachers’ Retirement System, 45 AD2d 206; Matter of Matysiak, 22 AD2d 976; Gross v New York State Liq. Auth., 60 Misc 2d 413, 33 AD2d 894; Matter of Ross v Barbaro, 61 Misc 2d 147; Rottkamp v Young, 21 AD2d 373; New York State Thruway Auth. v Hurd, 29 AD2d 157; Freedom Discount Corp. v McMahon, 38 AD2d 947.) II. Issues of fact remain as to the adequacy of notice of respondent’s interest in the property. III. Defendant was legally entitled to sell any of the taxpayer’s right, title and interest regardless of plaintiff’s claim. (Universal C. I. T. Credit Corp. v Schlossman’s, Inc., 37 Misc 2d 1097; Matter of Intermediate Credit Corp. v Overseas Nat. Airways, 41 Misc 2d 522; Matter of General Motors Acceptance Corp. v Maloney, 46 Misc 2d 251.)
    
      Wilbur G. Silverman for respondent.
    I. Appellant has no immunity from liability in a suit based upon his tortious conduct, as his employee, the State of New York, has waived its immunity under the provisions of the Court of Claims Act. (Rhynders v Greene, 255 App Div 401; Columbia Mach. Works v Long Is. R. R. Co., 267 App Div 582; Rufo v Orlando, 286 App Div 88, 309 NY 345; Berg v Hoffman, 275 NY 132; Jones v Archibald, 45 AD2d 532; Spraights v Hawley, 39 NY 441; Suzuki v Small, 214 App Div 541, 243 NY 590; United States v Savage & Son, 343 F Supp 123, 475 F2d 305.) II. The powers of a Sheriff do not include the power wrongfully to seize property of those other than the person against whom a judgment or warrant was outstanding, so that the seizure of plaintiff’s property was not authorized to satisfy the tax obligation of another. (Freedom Discount Corp. v McMahon, 38 AD2d 947; Eckstein v Massachusetts Bonding & Ins. Co., 281 NY 435; People ex rel. Kellogg v Schuyler, 4 NY 173.) III. There were no issues of fact raised by appellant sufficient to deny summary judgment to respondent herein. (Kirschbaum v Eschmann, 205 NY 127; Royal Bank of Canada v Williams, 220 App Div 603; Rochkind v Perlman, 123 App Div 808; Dahlstrom v Gemunder, 198 NY 449.) IV. Respondent had no right to sell plaintiff’s property on the pretext of selling the rights of another in said property.
   OPINION OF THE COURT

Wachtler, J.

To recover taxes, interest and penalties owed, the New York State Tax Commission issued warrants on February 7, 1975 authorizing the seizure of property owned by Eloise Restaurant Associates. Defendant, Alexander Cohen, a tax compliance agent, executed these warrants on certain personal property believed to be owned by Eloise Restaurant. A notice of sale was posted on the restaurant premises on March 24, 1975.

Plaintiff, Teddy’s Drive In had perfected a security interest in the subject property on June 9, 1972 pursuant to which it had acquired title. Plaintiff contends that it informed Cohen of this fact before the day of the auction, an assertion denied by Cohen. It is conceded, however, that plaintiff’s president, Theodore Coffman, immediately before the auction began, stood on a table and announced that all items on the premises were subject to a $70,000 chattel mortgage which he held. Without making any inquiry Cohen conducted the sale.

The issue is whether Cohen may be held personally liable in conversion for having conducted the sale. Cohen argues that as a tax compliance agent, acting in the capacity of a Sheriff (Tax Law, §§ 380, 1141, subd [b]) he is immune from personal liability. Teddy’s Drive In contends that Cohen, in wholly ignoring Coffman’s announcement, so abused his official powers that he divested himself of any immunity which otherwise might have shielded him.

The threat of legal action against public officials for their official acts carries the risk of deterred performance of important civic functions. It is for this reason that they are clothed with a limited immunity, while discharging their public responsibility (see Rottkamp v Young, 21 AD2d 373, affd 15 NY2d 831). Accordingly, a Sheriff authorized to seize property under a writ of attachment or execution is protected by this limited immunity. As long as the writ is facially valid, the officer will not be held liable for executing it even if it was erroneously issued (cf. Vittorio v St. Regis Paper Co., 239 NY 148). But the immunity is not absolute and will not shield a Sheriff who, because of his misfeasance, has stepped outside the scope of his authority (Prosser, Torts [4th ed], § 25, pp 127-129; cf. Sirles v Cordary, 49 AD2d 330, affd 40 NY2d 950).

In the present case, Cohen, acting in the capacity of a Sheriff had property auctioned with notice that the true owner of the property was someone other than the delinquent taxpayer. Having received this notice, he should have delayed the sale to inquire into the validity of plaintiff’s claim of ownership. Instead, completely ignoring the claim, he chose to proceed with the sale. These actions amount to misfeasance, and since plaintiff’s claim has proven valid, defendant is personally liable to it in conversion (People ex rel. Kellogg v Schuyler, 4 NY 173).

Accordingly the judgment appealed from should be affirmed, with costs.

Chief Judge Cooke and Judges Jasen, Gabrielli, Jones and Fuchsberg concur with Judge Wachtler.

Judgment affirmed.  