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Erie County must defend against high-profile lawsuits in 2020

Erie County government expects to defend some major lawsuits in 2020 that could cost millions to resolve or defend.

So County Executive Mark Poloncarz asked lawmakers to include $4 million in the budget to cover potentially expensive verdicts or settlements as well as litigation costs like outside legal fees and expert testimony.

Several cases involve Holding Center deaths and injuries.

In past years, the County Legislature typically reduced the requested amount to cover lawmakers' other legislative priorities but then added money back into the risk retention fund from year-end surplus money. For this year, the Democratic majority opted to take less money out of the fund than usual, but the county executive still plans to add more money.

The following are some of the high-profile cases the county expects to defend in 2020, based on information from County Attorney Michael Siragusa and Buffalo News coverage.

Death in snow-covered car

Donald Abate, 46, was found dead in his car during the November 2014 storm that killed 13 people. His family sued the county and the Erie County Sheriff's Office for failing to come to his aid nearly 22 hours after he placed his first emergency call to police dispatchers.

Abate became stuck in the snow on his drive home to Blasdell from work at the federal detention facility in Batavia. He planned to pull off at the Tops Market in Alden, according to a lawsuit filed by his wife, but he made it only as far as a car wash parking lot on Broadway, 2 miles west of the supermarket.

Abate made several cellphone calls for help, and he was assured by 911 operators that rescuers were on the way and he should stay in his vehicle, according to records. The 911 call logs indicate misdirection and delays by the Erie County Sheriff's Office and State Police to find him. Abate died of carbon monoxide poisoning.

The wrongful death trial is scheduled for January.

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Brutalized daughter

Laura Lynn Cummings, the 23-year-old North Collins woman with developmental disabilities who was tortured at the hands of her mother and a brother, was killed in 2010. But it's only now, 10 years later, that county attorneys are expecting her case will soon move to trial.

Eva Cummings was sentenced in 2010 to 52 years in prison for brutalizing and killing her daughter. Her son, Luke J. Wright, was sentenced in 2011 to 40 years in prison after a jury found Wright guilty of rape, sodomy and assault in connection with the attacks on his half sister.

Laura Cummings’ estate sued Erie County in December 2010, alleging that the county was negligent for failing to protect her from mental, physical and sexual abuse by her mother and her half brother as far back as 1995. Siblings and other relatives said they had contacted both Erie County's Child Protective Services and Adult Protective Services about the abuse.

The case has been repeatedly postponed, but the County Attorney's Office anticipates a six- to eight-week trial in 2020. The County Attorney's Office had defended the case since its inception, but has now brought in outside counsel due to the anticipated length of trial.

The trial is scheduled for June.

Inmate dies in spit mask

The case involving the death of Holding Center inmate Richard Metcalf Jr. has cost Erie County hundreds of thousands of dollars in outside legal fees.

The New York State Commission of Correction found that missteps by jail deputies caused his death in 2012. To control the mentally troubled Metcalf during his self-injuring outburst, a team of deputies shackled him and put a spit mask around his face to prevent him from spitting blood on them and around the jail infirmary. The report stated the deputies knotted the mask strings too tightly around his neck. When Metcalf chewed through the mask, they pulled a pillowcase over his head and placed him face down on a stretcher as they wheeled him to an ambulance.

He went into cardiac arrest and was pronounced dead at Buffalo General Medical Center. The county has contended Metcalf died of a heart attack, not suffocation at the hands of poorly trained deputies.

Because of a five-year statute of limitations, two potential criminal counts of manslaughter and criminally negligent homicide can no longer be prosecuted. Erie County and seven jail deputies, but not the Erie County Sheriff's Office, remain defendants in the wrongful death case.

Another jailhouse death

The death of Holding Center inmate India Cummings in 2016 has resulted in two suits against Erie County and a host of other defendants.

The family of India Cummings filed a second lawsuit in February, one alleging 72 deputies at the Erie County Holding Center were "criminalizing Cummings' mental illness" by filing additional charges against her in jail instead of providing her with proper medical care. The county has submitted a motion to dismiss the complaint, and it remains pending. The original case includes another broad range of defendants, including Erie County and the Sheriff's Office.

Cummings was arrested and jailed by Lackawanna police after allegedly carjacking a vehicle in an attempt to return to Rochester, where she had lived for many years. The Commission of Correction's Medical Review Board said Cummings' death should be called a homicide – a death at the hands of others – because of medical neglect. The scathing report said her care in jail was "so grossly incompetent and inadequate as to shock the conscience."

The judge dismissed many claims against the sheriff and county in the case, but civil rights and wrongful death claims remain.

Jailhouse suicide attempt

Buffalo resident David Glenn was an inmate in the Erie County Holding Center in 2012, but not under suicide watch, when he attempted to kill himself after his representatives said he repeatedly asked for medication and treatment but was denied. Glenn hanged himself but was discovered before he died.

In the negligence claim, representatives said Glenn suffered "severe permanent and painful injuries" as a result of the suicide attempt and his fall after being cut down.

The injuries Glenn sustained require full-time care, which could make a settlement or verdict against the county a costly one. The county anticipates a 2020 trial date and has contracted with outside lawyers to defend the case.

Commissioner rape case

Former Social Services Commissioner Al Dirschberger was sentenced in April to five years in prison for raping a 28-year-old subordinate while the two attended an Albany conference in 2017. The woman sued the county for leaving her unprotected from him.

In March, a jury found Dirschberger guilty after a weeklong trial, during which the woman accused Dirschberger of raping her in her hotel room while she was intoxicated. Dirschberger testified the two engaged in consensual sex and that she invited him into her room.

The woman filed a civil suit against Dirschberger and against Erie County. She said the county should not have hired Dirschberger and did not take proper action to protect her from harassment and a hostile work environment while Dirschberger was commissioner. Dirschberger was forced to resign by Poloncarz in December 2017 after Poloncarz learned of the police investigation.

An independent investigator also released a detailed report regarding county officials' knowledge of improper conduct by Dirschberger, which showed a history of troubling behavior by Dirschberger but no smoking-gun evidence of county culpability.

The case is in the discovery process. Dirschberger is representing himself in the civil case while incarcerated.

Trauma on a county road

Erie County is being sued over a June 2017 hit-and-run accident on Grand Island that left Dana Papaj with severe brain injuries. She was walking her dog at about 8 p.m. when she was struck by a vehicle driven by Edward J. Kuebler III.

Papaj, 54, was on the west shoulder of East River Road, a county road, when Kuebler veered from his lane. Video footage showed the correction officer at Wende Correctional Facility briefly braked before driving away. His vehicle's passenger-side mirror struck Papaj in the head. He pleaded guilty in October 2017 to a felony count of leaving the scene of a serious personal injury accident.

Papaj remained in a coma for a month but has been working to slowly recover.

The county is being sued over the condition of East River Road, which the lawsuit contends was in "hazardous, defective and dangerous condition."

Exonerated man sues 

Buffalo resident Valentino Dixon sued the county after spending more than 27 years in prison for a murder he didn't commit. He was exonerated last year after someone else, convicted felon Lamarr Scott, confessed to the fatal shooting of 17-year-old Torriano Jackson in 1991.

Dixon has filed a lawsuit in federal court involving his wrongful conviction against the Buffalo Police Department and Erie County District Attorney's Office.

Students from the Georgetown University Prisons and Justice Initiative investigated Dixon's case and made a documentary about it. Dixon also became known for colored pencil drawings of golf courses he created as a prisoner at Wende Correctional Facility.

District Attorney John Flynn, after his office investigated the case, agreed to an order to vacate the murder and assault convictions against Dixon. Dixon remains convicted on one count of criminal possession of a weapon in the second degree.

Mark Poloncarz charts a progressive course for his third term

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