In the Matter of Nicholas Lemma, Appellant,v.Nassau County Police Officer Indemnification Board, et al., Respondents.BriefN.Y.May 2, 2018To be Argued by Mitchell Garber Time Requested: 20 minutes Court of Sppeate State of New York APL-2017-00092 In the Matter of the Application of NICHOLAS LEMMA, Petitioner-Appellant, For a Judgment under Article 78 of the Civil Practice Law and Rules, -against- NASSAU COUNTY POLICE OFFICER INDEMNIFICATION BOARD, LAWRENCE MULVEY, as Commissioner, NASSAU COUNTY POLICE DEPARTMENT and NASSAU COUNTY, Respondents-Respondents. BRIEF OF PETITIONER-APPELLANT NICHOLAS LEMMA WORTH, LONGWORTH & LONDON, LLP Attorneys for Nicholas Lemma 111 John Street, Suite 640 New York, New York 10038 (212) 964-8038 Fax (212) 964-8164 Brief Completed September 3, 2017 APPELLATE MANAGEMENT SERVICES (646) 522-3834 (Reproduced on Recycled Paper) COURT OF APPEALS STATE OF NEW YORK --------------------------------------------------------------------X In the Matter of the Application of APL-2017-00092 NICHOLAS LEMMA, Petitioner-Appellant, for a Judgment under Article 78 of the Civil Practice Law and Rules, -against- NASSAU COUNTY POLICE OFFICER INDEMNIFICATION BOARD, LAWRENCE MULVEY, as Commissioner, NASSAU COUNTY POLICE DEPARTMENT and NASSAU COUNTY, Respondents-Respondents. -------------------------------------------------------------------------------X STATEMENT PURSUANT TO CPLR 5531 1. The index number of the case in the Appellate Division Second Department, the court below, is 2014-1467. 2. The full names of the original parties are the same; there has been no change. 3. The action was commenced in the Supreme Court of the State of New York, Nassau County. 4. The action was commenced by the filing of a Petition pursuant to CPLR Article 78. 5. The nature of the action: Petitioner/appellant challenged the Nassau County Police Officer Indemnification Board’s (“Board’”) denial of defense and indemnification in a lawsuit presently pending against him in the United States District Court for the Eastern District of New York. (Crews v. Nassau County, et al, CV06-2610 (JFB)(WDW) (“the Crews action”). 6. This Court has jurisdiction to hear this appeal because the action originated in Supreme Court, Nassau County, and the appeal is from an Order of the Appellate Division, Second Department that finally determined the action within the meaning of CPLR § 5611. 7. By Order dated May 9th, 2017, this Court granted Petitioner leave to appeal. 8. This appeal is on the Record from the Appellate Division Second Department case below. TABLE OF CONTENTS PRELIMINARY STATEMENT .................................................................. 1 QUESTIONS PRESENTED ......................................................................... 3 SUMMARY OF THE ARGUMENT ........................................................... 4 THE FACTS ................................................................................................. 4 1. Background Leading to the Article 78 Trial in Supreme Court Nassau County. ........................................................... 4 a. Appellant is assigned to investigate a robbery complaint. ........................................................................ 4 b. Appellant is named as a defendant in a Federal Lawsuit. ..................................................................... 4 c. Appellant is represented and indemnified by Respondents. ............................................................................ 5 d. Appellant gives testimony in a deposition .................................... 6 e. Respondents revoke representation and Indemnification form Appellant .................................................... 6 2. The Article 78 Petition ....................................................................... 7 3. The Article 78 Trial in Supreme Court, Nassau County .................................................................................... 8 4. The Order and Judgment of the Supreme Court, Nassau County ....................................................................... 13 5. The Appellate Division Second Department’s Decision ...................................................................... 14 ARGUMENT .............................................................................................. 16 THE APPELLATE DIVISION’S DECISION IN THIS CASE MUST BE REVERSED BECAUSE IT IS DIRECTLY AT ODDS WITH BOTH PRECEDENT FROM THIS COURT AND THE LEGISLATIVE HISTORY OF G.M.L. § 50-l ...................................................................... 16 1. The law applicable to the case. ......................................................... 16 2. This Court’s decision in Sagal-Cotter is directly applicable ............................................................................. 19 3. The Appellate Division’s definition of “proper discharge or duties” is inconsistent with the legislative intent of G.M.L. § 50-l ................................................... 21 4. Appellant has met the burden of proving that Respondents determination was arbitrary and capricious mandating the relief requested .................................................................................. 25 CONCLUSION THE APPELLATE DIVISION’S DECISION DENYING APPELLANT REPRESENTAITON AND INDEMNIFICATION SHOULD BE REVERSED ......................................................................... 27 TABLE OF AUTHORITIES Cases Page(s) Crews v. County of Nassau et, al., 06-CV-2610 [E.D.N.Y]. .................................................................. passim James v. Powell, 19 N.Y.2d 249 [1967]. ........................................................................... 22 Joseph v. City of Buffalo, 83 N.Y.2d 141 [1994]. ........................................................................... 15 Laurie Marie M. v. Jeffrey T.M., 159 A.D.2d 52 [3d Dept.1991]. ....................................................... 22, 23 Matter of Sagal-Cotter v. Board of Educ of the City Sch. Dist. of the City of N.Y., 20 N.Y.3d 671 [2013]. .................................................................... passim Matter of Williams v. City of New York, 64 N.Y.2d 800 [1985]. ........................................................................... 18 Prozeralik v. Capital Cities Communications, Inc., 82 N.Y.2d 466 [1993]. ........................................................................... 22 Salino v Cimino, 1 N.Y.3d 166 [2003]. ............................................................................. 25 Williams v City of New York, 64 NY2d 800 [1985]. ............................................................................. 25 Statutes Page(s) 42 U.S.C. § 1983 ........................................................................................... 5 CPLR Article 78 ................................................................................... passim CPLR 5611 .................................................................................................... 1 CPLR 7804(h) ............................................................................................... 8 General Municipal Law § 50-k ................................................................... 19 General Municipal Law § 50-l ............................................................. passim New York Education Law § 3028 ........................................................ 18, 19 1 PRELIMINARY STATEMENT By permission of this Court, granted May 9, 2017 (R. 714),1 Petitioner- Appellant Nicholas Lemma (“Appellant”) appeals from an Order of the Appellate Division, Second Department, entered February 1, 2017, which affirmed the decision of the Supreme Court, Nassau County, dismissing Appellant’s Article 78 petition challenging the determination by the Nassau County Police Officer Indemnification Board (“Board”) that he was not entitled to defense or indemnification in a civil action, Crews v. County of Nassau, pending against him in the United States District Court for the Eastern District of New York, under Case No. CV-06-2610. This Court has jurisdiction to hear this appeal because the action originated in Supreme Court, Nassau County, and the appeal is from an Order of the Appellate Division, Second Department that finally determined the action within the meaning of CPLR § 5611. This appeal involves review of the Appellate Division’s decision affirming the determination of the Board which revoked Appellant’s representation and indemnification in a civil lawsuit for acts taking place while he was employed by Respondents as a police detective. The issue of the propriety of the Board’s determination was raised in the Article 78 petition filed by Appellant (R. 27-44) The 1 Page notations prefixed by “R.” refer to the Record on Review. 2 issue regarding the interpretation of the law statutorily obligating Respondents to represent and indemnify Appellant, General Municipal Law section 50-l (G.M.L. §50-l”), was litigated below and ruled upon by the Appellate Division, Second Department. (R. 715-718) The issue is therefore fully preserved for review. 3 QUESTIONS PRESENTED 1. Whether the Appellate Division erred when it determined that the terms “proper discharge of duties” and “scope of employment” in General Municipal Law § 50-l were not interchangeable for purposes of determining representation and indemnification in a civil lawsuit arising out of Appellant’s duties as a Nassau County police officer. 2. Whether the Appellate Division erred when it found that Appellant was not acting in the “proper discharge of [his] duties” and therefore was not entitled to representation and indemnification under General Municipal Law § 50-l. 3. Whether the Board’s determination revoking Appellant’s representation and indemnification was supported by a rational basis in the record and so it was not arbitrary and capricious, meaning that the Appellate Division had no power to disturb that determination. 4 SUMMARY OF ARGUMENT THE FACTS 1. Background Leading to the Article 78 Trial in Supreme Court, Nassau County a. Appellant is assigned to investigate a robbery complaint. Appellant was appointed a Nassau County police officer in 1987 and served over twenty-two years before he retired from police service as a detective in 2009. Appellant was assigned to investigate a robbery occurring on March 26, 2005 involving three suspects. Raheem Crews (“Crews”) was arrested on May 27, 2005 and charged with participating in the robbery. On June 1, 2005, Appellant learned that Crews was incarcerated on March 26, 2005 and could not have been involved in the robbery. Appellant did not advise anyone of this information. The arrest paperwork, prepared by another detective, mistakenly reported the date of the robbery as April 26, 2005. This typographical error delayed the discovery of Crews’ alibi that he was in jail on the date in question until September 2005 when he was released from jail and the indictment dismissed. b. Appellant is named as a defendant in a Federal lawsuit. Crews commenced a lawsuit in United States District Court, Eastern District of New York, against the County of Nassau, the Nassau County Police Department, 5 the Nassau County Sheriff’s Department, the Nassau County District Attorney’s Office and numerous individually named persons, including Appellant, alleging inter alia false arrest, unlawful imprisonment, malicious prosecution, and abuse of process under 42 U.S.C. § 1983, as well as various state law tort claims, all arising from Crews' alleged unlawful arrest, confinement and prosecution. (Crews v. County of Nassau et al., 06-CV-2610 [E.D.N.Y.]) c. Appellant is represented and indemnified by Respondents. Appellant was sued in his official and individual capacities and it was alleged that, at all times, he was acting pursuant to his official duties and within the scope of his employment as a Nassau County police detective. On July 21, 2006, Respondent Nassau County offered to represent Appellant and he accepted representation. In the letter dated July 21, 2006, offering representation, Appellant was advised that assuming the Nassau County Police Indemnification Board (“the Board”) made a determination pursuant to New York General Municipal Law §50-l (“G.M.L. §50-l”) that the act or omission complained of was within the scope of his public employment or duties, the County will indemnify him for any award of damages. In this letter, the County Attorney conflates the terms “proper discharge of duties” and “within scope of employment,” an interpretation of G.M.L. §50-l that 6 is consistent with its legislative history, court precedent and prior decisions of the Board. d. Appellant gives testimony in a deposition. On February 24, 2009, some three years and nine months after Crews’ arrest, Appellant was deposed in the Crews case and testified, among other things, that on June 1, 2005, he accessed a computer program that tracks inmate confinement, and learned that Crews was in jail on the reported date of the robbery. Specifically, when asked what he did with the information, he stated "I kept it to myself and said, let the chips fall where they may.” e. Respondents revoke representation and indemnification from Appellant. By letter dated April 8, 2009, the County Attorney advised Appellant that the Board would convene on April 17, 2009 to reopen its decision to indemnify him and afforded him an opportunity to appear. On April 17, 2009, Appellant appeared, with counsel, before the Board and the Board voted to revoke defense and indemnification because "[t]he acts alleged were not committed while in the proper discharge of said officer(s) duties and were not within the scope of his/her 7 employment." It is not disputed that the Board's April 17, 2009 determination failed to state the reason for its determination. Appellant appealed and appeared, with counsel, before the Board on May 22, 2009, arguing specifically that the County was obligated to represent and indemnify him pursuant to G.M.L. §50-l and prior decisions of the Board. The Board voted to deny the appeal and declined to represent and indemnify Appellant because "[t]he acts alleged were not committed while in the proper discharge of said officer(s) duties and were not within the scope of his/her employment." It is not disputed that the Board's May 22, 2009 determination failed to state the reason for its determination. 2. The Article 78 Petition On September 21, 2009, Appellant commenced an Article 78 proceeding in Supreme Court, Nassau County, for a judgment annulling the Board's determination; ordering Respondents to immediately commence representation of Appellant; and requiring Respondents to reimburse Appellant for all legal fees incurred in his representation in Crews and in the instant proceeding. On October 23, 2009, Respondents filed an Answer with Objections opposing the relief sought. By decision dated December 10, 2009, Justice Edward W. McCarty III, determined that on the basis of the record presented to the Court, the Court was 8 unable to determine whether the Board's determination was arbitrary and capricious or an abuse of discretion. Accordingly, the Court ordered a trial pursuant to CPLR 7804(h). 3. The Article 78 Trial in Supreme Court, Nassau County. A trial of this matter was conducted before Justice Steven M. Jaeger in Supreme Court, Nassau County on February 5, 2013, February 6, 2013, and February 7, 2013. Appellant called five witnesses: Lawrence Mulvey, Susan Tokarski, Francis X. Ryan, Stanley Kreitman, and Appellant himself. Respondents declined to call any witnesses. Lawrence W. Mulvey (“Mulvey”), former Nassau County Police Commissioner, testified that as part of his duties he was a member of the Indemnification Board and heard “more than 50, perhaps more than 100” cases. (R. 477) He stated that during his tenure, Appellant’s “is only case … where the Indemnification Board declined to represent and indemnify a member of [the Nassau County Police] Department.” (R. 15-16) Mulvey testified that he did not recall receiving any instruction from the Nassau County Attorney, the legal advisor to the Board, about the definition of “proper discharge of duties.” (R. 479, 484) and that the written rules and regulations of the Board do not define the term "proper discharge of duties" but, rather, pertain more to the procedures to be followed at 9 Board meetings. (R. 480-481) He further testified that in the absence of a formal definition, he defined the term subjectively as not only performing the duty of police officers but performing those duties properly, consistent with their sworn oath of office. (R. 481) Mulvey testified that the Board voted to withdraw representation and indemnification of Appellant and while its written determination indicated that the alleged acts were not committed while in the proper discharge of [Appellant’s] duties and were not within the scope of [Appellant’s] duties, it did not separate the terms “proper discharge of duties” from “scope of employment.” (R. 497, 499). Moreover, he testified that the written determination of the Board did not state the grounds or reasons for its determination revoking representation and indemnification and that the Board’s grounds or reasons are not recorded anywhere. (R. 500-501) Mulvey further testified that Appellant appealed the Board’s revocation, arguing that the Board had improperly interpreted General Municipal Law §50-l. Specifically, Appellant claimed that the Board's interpretation of General Municipal Law §50-l was too restrictive because it was not the act that was required to be in the proper discharge but that the act occurred or took place in the proper discharge. (R. 503-504) Notwithstanding Appellant’s assertion, he did not request direction or legal advice from the legal advisor to the Board regarding the definition of the term, "proper discharge of duties." (R. 504) Mulvey testified that the Board voted to deny 10 Appellant's appeal and prepared a written determination. (R. 510) Again, the determination did not separate the terms “proper discharge of duties” from “scope of employment,” did not state the grounds or reasons for its determination and is not recorded anywhere. (R. 511) Susan Tokarski, a Deputy Nassau County Attorney, testified at trial that she was the legal adviser to the Board from January 2003 until April 2012. (R. 529) She testified that the terms “scope of employment,” and “proper discharge of duties,” are not defined in G.M.L. §50-l and that while she may have “familiarized [her]self with the legislative history of section 50L,” she was could not state the legislative purpose of G.M.L. §50-l, notwithstanding her almost 10 years of service as legal adviser to the board. (R. 530-531,533) Tokarski conceded, however, that the fact that an act was intentional did not exclude coverage under General Municipal Law§50-l and that the statute does provide indemnification for punitive damages. (R. 537) Tokarski testified that the rules and regulations of the Board do not define the term “proper discharge of duties” and she had no specific recollection whether the Board requested a definition of the term “proper discharge of duties” during either of Appellant’s two indemnification proceedings. (R. 541-543) Francis X. Ryan (“Ryan”), former Deputy County Executive, testified at trial that he was a member of the Board for “approximately six” meetings and, besides 11 Appellant’s, could not recall any other matter wherein the Board chose not to defend and indemnify. (R. 578) He testified that during his time on the Board he was not familiar with nor had he ever read General Municipal Law § 50-l and did not recall ever receiving any instructions from anyone regarding that statute. (R. 579) Further, Ryan did not recall the criteria by which Nassau County was required to assume the representation of a police officer and was not familiar with the term “proper discharge of duties” as it related to the County’s obligation to defend a police officer sued in federal or state court. (R. 580) Stanley Kreitman (“Kreitman”), former Legislative appointee to the Board, testified that although he had heard approximately 100 matters during his tenure as a Board member, he had never actually read the statute governing the criteria for indemnification and “wouldn’t know 50L from 200L.” (R. 609-611) He testified that he did not recall ever receiving instruction from anyone regarding the definition of the terms “proper discharge of duties” or “scope of employment” and that he did not have a specific understanding of the definition of these terms but, rather, “everyone used their common sense and general background and knowledge.” (R. 611, 613) Appellant testified that on March 26, 2005 he was assigned to investigate a robbery allegedly involving three individuals and on May 26, 2005, arrested Naquarn Hughlett (“Hughlett”). (R. 622-62) After Hughlett read and waived his 12 rights, he gave Appellant a written statement that implicated him and two other individuals by their street names in the robbery. Thereafter, Appellant obtained their real names, obtained pictures and Raheem Crews (“Crews”) and Lorenzo Miller (“Miller”) were positively identified by the complainant as the two other perpetrators of the robbery. (R. 623-625) Appellant testified that the day Crews was arrested, he was not working and played no role in the arrest or arrest processing. (R. 624-625) Five days later, Miller was arrested as the third participant in the robbery and during arrest processing told Appellant that Crews was not present during the robbery. (R. 625-626) Appellant further testified that although he checked a computer system and determined that Crews was in jail on the date that the complainant alleged the robbery took place, he was concerned with finishing the processing of Miller’s arrest, made a mental note to “come back to this and reinvestigate [and] let my supervisor know that there might be a problem” but “unintentionally forgot.” (R. 626-627) Moreover, Appellant testified that he was unaware that Crews’ arrest paperwork contained the wrong date of the robbery and did not become aware of this until the lawsuit was filed by Crews. (R. 628) Appellant testified that on February 24th, 2009, approximately three and a half years after Crews was arrested, he gave testimony in a deposition that was part of a federal lawsuit filed by Crews. (R. 628-629) When asked at the deposition about 13 what he did with regard to the information received that Crews was in jail on the date of the alleged robbery, he answered, “I kept it to myself and said let the chips fall where they may.” (R. 629) Appellant testified that he intended his answer to refer to his state of mind at that moment, the date of the deposition, referring to the fact that he was aware that he had mistakenly failed to “notify the supervisor about it … and admitted that I made a mistake and that I’m willing to accept the consequences of my actions.” (R. 630) He further testified specifically that his answer to the question did not refer to “what [he] was thinking at the time that [he] got the information” from the computer. (R. 630) After the deposition, Appellant attempted to obtain the transcript of the deposition for review, so he could “explain what [he] meant by that answer” but was unable to do so. (R. 630-631) During the Board hearing on April 2009, Appellant testified that he explained to the Board “what he meant by [the] answer to the question.” (R. 631) 4. The Order and Judgment of the Supreme Court, Nassau County In a decision and order after trial, dated May 3, 2013, Steven M. Jaeger, A.J.S.C., dismissed Appellant’s petition, finding that there was a factual basis for Respondents denial of representation and indemnification. (R. 14-23) Thereafter, on 14 December 18, 2013, as a matter of procedure, Justice Jaeger converted the decision and order after trial to a judgment dismissing the petition. (R. 10-11) In rejecting Appellant’s arguments, the court defined “proper discharge of duties” as “performing one’s duties correctly or appropriately,” concluding that the “mere fact that an act was committed by an ‘on duty’ police officer does not mean it was committed in the proper discharge of his duties.” Concluding that Respondents denial of representation and indemnification had a factual basis, the court dismissed Appellant’s petition. 5. The Appellate Division, Second Department’s Decision Following Appellant’s timely appeal, on February 1, 2017, the Appellate Division, Second Department affirmed the decision of the Supreme Court, Nassau County, holding that Respondents rationally interpreted § 50-l to limit representation and indemnification “to those situations where it determines that the officer acted both within the scope of his or her employment and in the proper discharge of his or her duties.” (R. 715-719)(emphasis in original) While opining that Appellant correctly identified an ambiguity in § 50-l, the Appellate Division rejected his argument that the terms should be applied interchangeably since indemnification for punitive damages is inconsistent with a requirement for proper conduct. Other than a cf. citation without accompanying parenthetical, the Appellate Division failed to 15 explain why this Court’s 2013 decision in Sagal-Cotler, which analyzed the language of comparable representation statutes, was not controlling. Left standing, the Appellate Division’s decision will effectively repeal § 50-l because no act that is so outrageous to justify punitive damages could ever be determined to be proper. 16 ARGUMENT THE APPELLATE DIVISION’S DECISION IN THIS CASE MUST BE REVERSED BECAUSE IT IS DIRECTLY AT ODDS WITH BOTH PRECEDENT FROM THIS COURT AND THE LEGISLATIVE HISTORY OF G.M.L. § 50-l 1. The law applicable to the case General Municipal Law §50-l provides, Notwithstanding the provisions of any other law, code or charter, the county of Nassau shall provide for the defense of any civil action or proceeding brought against a duly appointed police officer of the Nassau county police department and shall indemnify and save harmless such police officer from any judgment of a court of competent jurisdiction whenever such action, proceeding or judgment is for damages, including punitive or exemplary damages, arising out of a negligent act or other tort of such police officer committed while in the proper discharge of his duties and within the scope of his employment. Such proper discharge and scope shall be determined by a majority vote of a panel consisting of one member appointed by the Nassau county board of supervisors, one member appointed by the Nassau county executive, and the third member being the Nassau county police commissioner or a deputy police commissioner. Given the legislative intent of General Municipal Law §50-l to "provide for the defense" and to "indemnify and save harmless" Nassau County police officers in lawsuits arising out of the exercise of their duties, the Boards’ determination declining to represent and indemnify Appellant is wrong. The Board irrationally interpreted the statute to limit representation and indemnification to those situations where it finds that the officer acted both within the scope of his or her employment 17 and in the proper discharge of his or her duties. In defining proper discharge of duties as “performing one’s duties correctly or appropriately, the trial court improperly rejected Appellant’s argument that the terms must be applied interchangeably for the legislative intent to have effect. The Appellate Division’s restrictive interpretation of § 50-l limiting representation and indemnification to those situations where Respondents determine that a police officer acted both within the scope of his or her employment and in the proper discharge of his or her duties ignored precedent from this Court and the legislative history of the statute. In adopting the Article 78 court’s definition of “proper discharge of duties” as “performing one’s duties correctly or appropriately,” the Appellate Division, despite the ambiguity it recognized in the statute, disregarded the legislative intent to include imperfect conduct. Moreover, upholding this restrictive interpretation would serve to effectively repeal General Municipal Law §50-l because any act so malicious that it gives rise to punitive damages or a judgment for false arrest or excessive force could never be “correct” or “appropriate.” As Appellant argued to the Article 78 court and Appellate Division, the interpretation that the legislative intent in enacting § 50-l was to benefit only police officers whose conduct was within the rules has been explicitly rejected by this Court in its analysis of a comparable employee representation and indemnification statute, 18 Education Law § 3028. In Matter of Sagal-Cotter v. Board of Educ. of the City Sch. Dist. of the City of N.Y., 20 N.Y.3d 671 [2013], Appellants, Board of Education employees, were denied defense and indemnification in civil actions by their employer, the City of New York, because they admittedly engaged in corporeal punishment of a student, a violation of the City’s rules. The City argued that the intent of the statute was to benefit only those employees whose conduct was within the rules. This Court specifically rejected this argument, holding that the statutory words “discharge of duties” do not restrict the right to a defense to cases where an employee acted in the “proper and lawful discharge of his or her duties.” See Sagal- Cotter, 20 N.Y.3d at 676. In reaching its decision, this Court analyzed comparable employee representation and indemnification statutes and determined that the words “scope of employment,” discharge of duties” and similar phrases “have long been regarded as interchangeable.” Id. at 675-676. In Joseph v. City of Buffalo, 83 N.Y.2d 141, 145 [1994], this Court considered whether a police officer was “acting in the performance of his duties” and within the scope of his employment” within the meaning of General Municipal Law § 50-j and made no distinction between the two phrases. Id. at 676. In Matter of Williams v. City of New York, 64 N.Y.2d 800, 802 [1985], this Court stated it was a single “issue” whether the petitioner’s (correction officer’s) acts were committed within the scope of his public employment and the 19 discharge of his duties.” Id. Based on this reasoning, this Court in Sagal-Cotter concluded that the statutory words “discharge of duties” did not restrict the right to a defense to cases where an employee acted “in the proper and lawful discharge of his or her duties” because the legislative intent was to provide a defense even where an employee’s acts violated regulations. The Court reasoned had the legislature meant to exclude these cases, it could have specifically stated that there is no duty to provide coverage to an employee who has acted “in violation of any rule or regulation of his agency,” as in General Municipal Law §50-k (the representation and indemnification statute involving New York City employees including police officers). Since the statute in question contained no such language, the Court reversed the lower court decision limiting representation. Id. 2. This Court’s decision in Sagal-Cotter is directly applicable Although this Court’s analysis in Sagal-Cotter involved a comparable representation statute, Education Law § 3028, it is directly applicable to the analysis of Respondents actions pursuant to §50-l. Appellant has consistently maintained, in accord with Sagal-Cotter, that the phrases “proper discharge of duties” and “scope of employment” in §50-l are to be read interchangeably. In other words, it is not the act that is required to be “proper” or “appropriate,” but that the act itself took place 20 while the police officer was properly discharging or conducting his duties.2 This is the only interpretation that gives meaning to the legislative intent of §50-l, which is to protect Nassau County police officers in civil actions, even for acts or omissions deemed intentional or giving rise to punitive damages. Here, the acts giving rise to the allegations in the civil action took place while Appellant was investigating a robbery, which undisputedly is a required responsibility of a police detective and, accordingly, was in the “proper discharge” of his duties. Applying this Court’s reasoning in Sagal-Cotter, the decision of the Appellate Division cannot be reconciled with the language of General Municipal Law §50-l. Under the statute, Respondents are required, without limitation, to “indemnify and hold harmless” its police officers from any judgment, including “punitive damages or exemplary damages,” for “negligent acts or other torts” committed while in the 2 Two examples are illustrative of this interpretation: 1) A police officer on patrol in uniform and in a marked car continues to chase a fleeing vehicle, intentionally disregarding a supervisor’s radio call to terminate the pursuit. While driving in excess of the speed limit, he enters an intersection against a red light during rush hour and broadsides a vehicle, causing injury to its occupants. The officer arguably engaged in textbook reckless conduct because he consciously disregarded the risk that his actions could cause the accident. Under §50-l, he would be entitled to representation and indemnification because the act, although in violation of the Vehicle & Traffic Law and Department rules, took place while in the proper performance of his duties – namely uniform patrol in a police vehicle. 2) A police officer on patrol in uniform and in a marked car uses his authority as a police officer to pull over a female motorist for a traffic infraction and engages in improper sexual contact. Although the officer engaged in intentional conduct which is not excluded under §50-l, he would not be entitled to representation and indemnification because the act, pulling over the motorist under the guise of a traffic infraction for the purpose of a personal pursuit, can never be considered in the proper performance of his duties. 21 “proper discharge of his duties.” Given the extensive coverage provided, had the Legislature intended to restrict the benefits of §50-l to employees performing their duties “correctly” or “appropriately,” it certainly would have included the limiting language contained in the comparable representation and indemnification statute involving New York City employees, General Municipal Law § 50-k.3 The failure to so limit evinces the legislative intent, as in Sagal-Cotter, to include imperfect conduct. 3. The Appellate Division’s definition of “proper discharge of duties” is inconsistent with the legislative intent of G.M.L. § 50-l. Appellant argued in the courts below that §50-l specifically mandates indemnification for all acts, even malicious or wanton acts justifying punitive damages, without regard to whether the officer violated any rule or regulation of the Nassau County Police Department or whether the officer was disciplined. That the statute covers even conduct giving rise to punitive damages evinces the legislative intent not to restrict the benefits of the statute to employees performing their duties 3 Under §50-k, the City is obligated to indemnify and hold harmless provided “that the act or omission from which such judgment or settlement arose occurred while the employee was acting within the scope of his public employment and in the discharge of his duties” and “was not in violation of any rule or regulation of his agency at the time the alleged damages were sustained.” (emphasis added) Moreover, the duty to indemnify and hold harmless “shall not arise where the injury or damage resulted from intentional wrongdoing or recklessness on the part of the employee” and if a disciplinary proceeding was brought, “representation …. and indemnification …. may be withheld (a) until such disciplinary proceeding has been resolved and (b) unless the resolution of the disciplinary proceeding exonerated the employee as to such act or omission.” (emphasis added) 22 “correctly” or “appropriately.” By its definition, the type of conduct justifying punitive damages transcends acts that are “intentional” or “reckless.” Under New York State law, punitive or exemplary damages may be awarded in actions “where the negligence is so gross and culpable as to evince utter recklessness ... committed recklessly or wantonly, i.e., without regard to the rights of plaintiff ...” James v. Powell, 19 N.Y.2d 249 [1967]. See also Prozeralik v. Capital Cities Communications, Inc., 82 N.Y.2d 466 [1993](In New York, punitive damages are available when a plaintiff shows that the defendant committed a tort under “circumstances of aggravation or outrage, such as spite or ‘malice,’ or a fraudulent or evil motive on the part of the defendant, or such a conscious and deliberate disregard of the interests of others that the conduct may be called willful or wanton.”) By specifically including “punitive damages” and “other torts” (which includes intentional conduct) within the scope of its coverage, the legislature manifested its intent to cover acts committed by police officers, irrespective of whether the act violates department rules. Should this Court let the Appellate Division’s decision stand, Respondents could almost never represent and indemnify any police officer for any civil rights (i.e. §1983) judgment. For example, any officer liable for assault and battery acts, by definition, with “intentional wrongdoing,” which, of course, would be against Department rules. (See Laurie Marie M. v. Jeffrey 23 T.M., 159 A.D.2d 52, 55 [3d Dept.1991][The elements of a battery claim are offensive bodily contact made with the intent to make contact.]). Any officer found liable for false arrest or using unreasonable or excessive force would also not be entitled to the benefits of General Municipal Law §50-l because clearly making an arrest without probable cause or using unnecessary force is not “performing one’s duties correctly or appropriately.” Should this Court let this restrictive interpretation of §50-l stand, Respondents would almost never be required to represent and indemnify its police officers, a result obviously inconsistent with the legislative intent. The Appellate Division’s discussion of the legislative history of G.M.L. § 50- l in its decision provides no clarity or support for its determination that Respondents interpretation is consistent with the legislative intent. (R. 715-719) There is nothing in the legislative history of the statute, enacted in 1983, that equated “proper discharge” with “proper conduct” of the officer’s acts. To the contrary, during the bills’ debate in the Senate, the bill’s sponsor explained that the law “provides that where a police officer is sued for damages arising out of the course of his employment as a police officer, the county of Nassau will not only commit to represent and defend the officer but also to indemnify him against any award that will be made as a result of those proceedings.” Most significantly, as demonstrated in the questioning during the debate 24 below, Senator Dunne stated that the intent of the bill was to indemnify officers for punitive damages, even if there was a finding that the officer was wrong: SENATOR JENKINS: Is it your statement, or is it a fact also that his bill indemnifies Nassau County police officers for punitive damages? SENATOR DUNNE: It includes punitive damages, yes, sir. SENATOR JENKINS: It would indemnify them if their actions were indeed wrong? SENATOR DUNNE: Well, there would have to be a finding of being wrong if there would be a basis for awarding exemplary or punitive damages. Moreover, the following question and answer, also part of the Senate debate of the bill, evinces the legislative intent to cover acts or omissions of an officer, even if “willful misconduct.” SENATOR HALPERIN: Is there any other example, any other public employees being indemnified for damages that arise out of willful misconduct or gross negligence? SENATOR DUNNE: I’m not so sure gross negligence applies to this situation. SENATOR HALPERIN: Certainly then willful misconduct. SENATOR DUNNE: I don’t know of any precedent. By the legislature specifically intending to cover even acts determined to be 25 “willful misconduct,” it is clear that it intended such coverage to include acts or omissions that are inconsistent with or in violation of Respondents rules or regulations. As demonstrated, the decision of the Appellate Division is inconsistent with the legislative history of § 50-l and must be rejected. Should this Court leave the decision intact by adopting the lower courts’ reasoning § 50-l would be effectively repealed because no act that is determined to be “willful misconduct” justifying punitive damages could ever be considered “correct” or “appropriate” under Respondents rules. 4. Appellant has met the burden of proving that Respondents determination was arbitrary and capricious mandating the relief requested The reconciling principle between the provision for a public defense protecting employees and the provision for review is that Respondents actions must not be arbitrary or capricious, or it will be set aside. See, Salino v Cimino, 1 N.Y.3d 166 [2003] citing Williams v City of New York, 64 NY2d 800, 802 [1985]. Here, as set forth above, the Respondents cannot be reconciled with precedent of this Court and the legislative intent in enacting the enabling statute. Respondent’s obligation to defend its employees from liability for alleged acts or omissions occurring during their work is not limited to those employees who are considered wholly free from fault. To the contrary, as evidenced by the decisions of this Court, the statutory language and legislative intent, even acts or omissions determined to 26 be willful causing punitive or exemplary damages are encompassed. Applying these principles to the instant case, this Court must reverse the Order and Judgment of the Supreme Court, Nassau County, ordering Respondents to provide Appellant legal representation and indemnification in the civil action. 27 CONCLUSION THE APPELLATE DIVISION’S DECISION DENYING APPELLANT REPRESENTATION AND INDEMNIFICATION SHOULD BE REVERSED Respectfully submitted, WORTH, LONGWORTH & LONDON, LLP Attorneys for Appellant Nicholas Lemma __________________________ Mitchell Garber Of Counsel New York, New York August 29, 2017 WORD COUNT CERTIFICATION The foregoing brief was prepared on a computer. A proportionally spaced typeface was used as follows: Name of typeface: Times New Roman Point Size: 14 Line Spacing: Double space. The total number of words in the brief inclusive of point headings and footnotes and excluding pages containing, table of contents, table of authorities, proof of service and questions presented is 5358. Respectfully Submitted, WORTH, LONGWORTH & LONDON LLP Attorneys for Petitioner/Appellant Nicholas Lemma By: ______________________ Mitchell Garber, Esq. 111 John Street, Suite 640 New York, NY 10038 (212) 964-8038 Dated: New York, New York September 3, 2017