In the Matter of Deborah Sagal-Cotler, Appellant,v.Board of Education of the City School District of The City of New York, et al., Respondents.BriefN.Y.March 20, 2013To Be Argued By: Ariana A. Gambella Time Requested: 20 Minutes New York County Clerk's Index No. 104406110 COURT OF APPEALS STATE OF NEW YORK In the Matter of the Application of DEBORAH SAGAL-COTLER, Petitioner-Appellant, -against- BOARD OF EDUCATION OF THE CITY SCHOOL DISTRICT OF THE CITY OF NEW YORK, and JOEL I. KLEIN, in his official capacity as CHANCELLOR of the CITY SCHOOL DISTRICT OF THE CITY OF NEW YORK, and the CITY OF NEW YORK, Respondents-Respondents, For a Judgment Pursuant to Article 78 ofthe New York Civil Practice Law and Rules. BRIEF FOR PETITIONER-APPELLANT DEBORAH SAGAL-COTLER RICHARD E. CASAGRANDE, ESQ. Ariana A. Gambella, Of Counsel New York State United Teachers 52 Broadway, Ninth Floor New York, New York 10004 Telephone: (212) 533-6300, ext. 121 Facsimile: (212) 995-2347 Attorney for Petitioner-Appellant Deborah Sagal-Cotler Date Completed: August 22, 2012 STATUS OF RELATED LITIGATION Dawn Watson v. City o/New York, New York City Department o/Education, and Debra Cotler, Index No. 17534/09 (Sup. Ct., Kings Cty.), is presently in discovery. The parties participated in a compliance conference on August 9,2012. TABLE OF CONTENTS PRELIMINARY STATEMENT ....................................... 1 JlTRISDICTION ................................................... 4 QUESTIONS PRESENTED .......................................... 4 STATEMENT OF FACTS ........................................... 5 ARGUMENT ..................................................... 12 EDUCATION LAW § 3028 CONTROLS RESPONDENTS' DUTY TO PROVIDE SAGAL-COTLER LEGAL REPRESENTATION IN THE CIVIL ACTION BECAUSE THIS STATUTE SPECIFICALL Y GOVERNS LEGAL ACTIONS ARISING OUT OF DISCIPLINARY ACTION TAKEN AGAINST A PUPIL ........................... 12 A. The Legislature Intended School Employees In New York City To Be Provided With Legal Representation in Civil Actions Arising Out Of The Discipline Of Students Pursuant To Education Law § 3028 ......................... 13 B. This State's Courts Have Upheld School Employees' Right To Legal Representation In Legal Actions Arising Out Of The Discipline Of Students Under Education Law §3028 ................................................ 18 C. Ms. Sagal-Cotler Is Entitled To Legal Representation Under Education Law § 3028 Because The Civil Action Arose From Her Contact With A Student That Constituted Disciplinary Action Taken While In The Discharge OfHer Duties Within The Scope Of Her Employment ................ 27 CONCLUSION ................................................... 38 -1 TABLE OF AUTHORITIES Cases Alweis v. Evans, 69 N.Y.2d 199 (1987) ............................................. 24 Bd. ofMgrs. ofPark Place Condo. v. Town ofRamapo, 247 A.D. 2d 537 (2d Dep't 1998) ..................................... 22 BloodvBd. ofEd. ofthe City ofNew York, 121 A.D.2d 128 (1st Dep't 1986) ................................. passim Consoi. Edison Co. ofNew York, Inc. v. Dep 't ofEnvtl. Conservation, 71 N.Y.2d 186 (1988) ............................................. 24 Cotter v. Bd. ofEduc. ofGarden City Union Free Sch. Dist., 63 A.D. 3d (2d Dep't 2009) ....................................... 21, 35 Cromer v. City Sch. Dist. ofAlbany, 2002 WESTLAW 1174683 (Sup. Ct., Alb. Cty. Apr. 5,2002) ........... 21,35 De Wald v. Seidenberg, 297 N.Y. 335 (1948) ............................................... 29 Iazzetti v. City ofNew York, 94 N.Y.2d 183 (1999) .............................................. 24 Inglis v. Dundee Cent. Sch. Dist., 180 Misc.2d 156 (Sup. Ct., Yates Cty. March 1, 1999) .......... 21,23,34,35 Martin v. Bd. ofEduc. ofthe City Sch. Dist. ofthe City ofNew York, et ai., 2011 WESTLAW 1527190 (Sup. Ct., N.Y. Cty., Apr. 12,2011) ........ 22,22 Morel v. City ofNew York, 2010 WESTLAW 3207006 (Sup. Ct., N.Y. Cty. Aug. 3, 2010) .... 19,2023,33 -ll Post v. 120 E. End Ave. Corp., 62 N.Y.2d 19, 24 (1984) ............................................ 26 TABLE OF AUTHORITIES (Continued) Cases Ricca v. Bd. ofEduc., City Sch. Dist. ofCity ofNew York, 47 N.Y.2d 385, 397 (1979) ......................................... 26 Riviello v. Waldron, 47 N.Y.2d 297 (1979) .......................... 20,28 Sagal-Cotler v. Bd. ofEduc. ofCity Sch. Dist. ofNew York, et aI., 946 N.Y.S.2d 121 (1st Dep't 2012) ............................... passim Scanlon v. Buffalo Pub. Sch. Sys., 90 N.Y.2d 662 (1997) ............................................. 26 Stewartson v. Gristede's Supermarket, Inc., 271 A.D.2d 324 (1st Dep't 2000) ..................................... 29 Thomas v. New York City Dep 't ofEducation, et al., 946 N.Y.S.2d 114 (1st Dep't 2012) ................................ 18,22 Timmerman v. Bd. ofEduc. ofthe City Sch. Dist. ofthe City ofNew York, 856 N.Y.S.2d 103 (Ist Dep't 2008) ........................... 18, 19, 35, 37 Zampieron v. Bd. ofEduc. ofthe City Sch. Dist. ofthe City ofNew York, et aI., 2010 WESTLAW 5576190 (Sup. Ct., N.Y. Cty., Dec. 10,2010) ......... 21,22 Statutes Education Law § 2560 .......................................... passim Education Law § 3028 .......................................... passim General Municipal Law § 50-k ................................... passim -111 New York County Clerk's Index No. 104406110 COURT OF APPEALS STATE OF NEW YORK In the Matter of the Application of DEBORAH SAGAL-COTLER, Petitioner-Appellant, -against- BOARD OF EDUCATION OF THE CITY SCHOOL DISTRICT OF THE CITY OF NEW YORK, and JOEL I. KLEIN, in his official capacity as CHANCELLOR of the CITY SCHOOL DISTRICT OF THE CITY OF NEW YORK, and the CITY OF NEW YORK, Respondents-Respondents, For a Judgment Pursuant to Article 78 of the New York Civil Practice Law and Rules. BRIEF FOR PETITIONER-APPELLANT DEBORAH SAGAL-COTLER PRELIMINARY STATEMENT Petitioner-appellant, Deborah Sagal-Cotler ("appellant" or "Ms. Sagal-Cotler") appeals from the order and judgment of the Appellate Division, First Department, entered June 5, 2012, which reversed an order and judgment of the Supreme Court, New York County, dated September 22, 2012. The Supreme Court granted appellant's petition, which sought a judgment declaring that respondents-respondents' denial oflegal representation and indemnification ofexpenses she incurred in defense 1 of the civil action entitled Dawn Watson et al. v. City o/New York, New York City Department o/Education and Debra Cotler, 17534/09, Supreme Court, Kings County ("the civil action") was arbitrary and capricious and contrary to law. The Supreme Court directed respondents-respondents Board of Education of the City School District of the City of New York ("Board ofEducation"), Joel I. Klein, and the City of New York (collectively, "respondents") to provide Ms. Sagal-Cotler with legal representation and reimbursement for all reasonable legal fees incurred in the defense ofthe civil action. The civil action names Ms. Sagal-Cotler as a defendant and arose out ofher discipline ofa former pupil in the discharge ofher duties within the scope of her employment. In reversing the order and judgment below, the Appellate Division held that respondents' denial of legal representation had a rational basis because Ms. Sagal Cotler's act ofdisciplining a former pupil was intentional and respondents disciplined her for engaging in conduct which violated regulations concerning the corporal punishment of students. The Appellate Division's holding ignores the fact that, for at least 50 years, respondents have been providing their employees with legal representation as well as the benefit of indemnification in cases arising out of employees' discipline of pupils pursuant to Education Law § 3028. 2 The Appellate Division's order and judgment adversely impacts school employees throughout the State. Specifically, in finding that appellant's act of disciplining a student fell outside of the discharge of her duties, the court ignored case law suggesting that the corporal punishment of a student falls within a pedagogue's discharge of duties and scope of employment. Contrary to established judicial precedent, the court essentially determined that an employee who violates an employer's rules and regulations does not act in the discharge ofher duties within the scope of her employment. Moreover, in upholding respondents' denial of legal representation, the Appellate Division effectively repealed the terms and provisions of Education Law § 3028 with respect to all pedagogical employees in New York City ("City"). This effective repeal conflicts with the legislative history underlying Education Law § 3028, which states that the purpose of this statute is to enable civil servants, with moderate salaries, such as school employees, to be adequately represented in legal actions initiated against them without being unduly burdened by the cost of counsel. Accordingly, and as set forth in more detail below, the order and judgment of the Appellate Division, First Department, should be reversed and respondents directed to provide appellant with legal representation and indemnification in the civil action pursuant to the mandatory terms and provisions ofEducation Law § 3028. 3 JURISDICTION This Court has jurisdiction over this appeal from the order and judgment ofthe Appellate Division pursuant to Section 5601(a) of the Civil Practice Law and Rules because the order and judgment finally determined this action and two (2) justices of the Appellate Division, First Department dissented on a question of law in favor of appellant. QUESTIONS PRESENTED 1. Did the Appellate Division err when it in effectively repealed Education Law § 3028, which requires respondents to represent school employees in actions arising out of their discipline of students, with respect to school employees in New York City? The Court should answer this question in the affirmative. 2. Did the Appellate Division err when it found that a paraprofessional was not acting in the discharge ofher duties when she slapped a student in the face while escorting that student to the cafeteria in a school building? The Court should answer this question in the affirmative. 4 STATEMENT OF FACTS This proceeding arises from an incident on December 22, 2008 at a public school in Brooklyn that services special needs students. At all times relevant to this matter, Ms. Sagal-Cotler was a paraprofessional assigned to the Roy Campanella Occupational Training Center,i also referred to as P.S. 721 and/or P 721K ("P.S. 721"). (R. 8, 30, 65).2 P.S. 721 falls within District 75 of the respondent Board of Education's administrative structure. (R. 30-31). District 75 is responsible for providing many of the respondent Board of Education's services to special education students. On or about December 22, 2008, Ms. Sagal-Cotler was assigned to supervise and escort a class at P .S. 721 to the school cafeteria. (R. 8, 31, 65). While carrying out this duty, Ms. Sagal-Cotler accompanied Kendall Walbey, one ofthe students in this class, onto an elevator in the school building. (R. 31). In the elevator, Kendall Walbey began singing aloud. (R. 8, 31). Once the elevator reached the first floor, where the cafeteria is located, Ms. Sagal-Cotler requested at least three times that the student accompany her to the cafeteria. (R. 8-9, 31). The student refused to heed I Ms. Sagal-Cotler retired effective July 27,2011. 2 Parenthetical references preceded by "R." identifY the pages in the record on appeal where the facts asserted are located. 5 these requests. CR. 8-9, 31). As a disciplinary measure, Ms. Sagal-Cotler yelled the student's name and slapped him in the face. CR. 9, 31). Following this incident, the administration ofP.S. 721 informed Ms. Sagal Cotler that an allegation ofcorporal punishment had been lodged against her. (R.66). On January 7, 2009, Wendy Weiss, Principal ofP.S. 721, met with Ms. Sagal-Cotler and her union representative to review the allegation ofcorporal punishment. (R.72). Sagal-Cotler submitted a written statement in response to this allegation. She also admitted that, on the day in question, after the student ignored her, she "lost it" and "slapped [Kendall Walbey's] face." (R.73). In addition, Ms. Sagal-Cotler submitted a written statement that she was "truly sorry" and that "it will never happen again." (R. 73-74). As a result, Principal Weiss suspended Ms. Sagal-Cotler without pay for ten (10) days and reassigned her to work as an accommodation paraprofessional, assisting another teacher. Id. She also ordered Ms. Sagal-Cotler to attend "Therapeutic Crisis Intervention" classes as well as an Anger Management Workshop. Id. On or about July 13, 2009, Dawn Watson, mother and natural guardian of student Kendall Wal bey, commenced a civil action against Ms. Sagal-Cotler, the City 6 of New York, and the New York City Department of Education.3 CR. 9, 31). The Verified Complaint filed in connection with the civil action sets forth allegations specifically and solely pertaining to the events in question on or about December 22, 2008. CR. 42-48). Upon receiving notice of the civil action, Ms. Sagal-Cotler demanded that respondents defend and indemnifY her in connection with the same, consistent with the respondents' obligations under the law. CR. 50). By letter dated December 3,2009, Ms. Sagal-Cotler learned that respondents would not represent her in the civil action. CR. 52). This letter does not provide any basis for denying representation to Ms. Sagal-Cotler, other than referencing General Municipal Law § 50-k.4 ld. After receiving the December 3, 2009 letter, Ms. Sagal- Cotler retained private legal counsel, at her own expense, to represent and defend her in the civil action. CR. 32). 3 The Board ofEducation ofthe City ofNew York is commonly referred to as the "New York City Department of Education." The Department of Education is not a municipality or city agency. 4 Two statutes, Education Law § 3028 and General J.\1.unicipal Law § 50-k, provide for the legal representation and indemnification of New York City Board of Education employees named as defendants in a lawsuit. These two statutes, however, set forth differing circumstances under which respondents are required to provide employees with representation and indemnification. Education Law § 3028 requires a board of education to provide legal representation to an employee of a school district in a civil proceeding which arises out of disciplinary action taken against any pupil of the school district while in the discharge of said employee's duties within the scope of said employee's employment. On the other hand, General Municipal Law § 50-k states that the City of New York ("City") shall provide for the legal defense and indemnification ofCity employees where the act on which the lawsuit or criminal action is based occurred while the employee was acting in the scope of his public employment and was not in violation of any rule or regulation. 7 On April 1, 2010, Ms. Sagal-Cotler commenced this proceeding pursuant to Article 78 of the Civil Practice Law and Rules, requesting the court to direct respondents to provide her with legal representation in connection with the civil action and to indemnify and reimburse her for attorneys' fees and other expenses associated with the defense of the same. Order and Judgment ofthe Supreme Court In an order and judgment, dated September 22, 2010, Justice Carol E. Huff granted Ms. Sagal-Cotler's petition and found that Education Law § 3028 obligated respondents to provide her with legal representation, because the conduct at issue arose out of disciplinary action taken by Ms. Sagal-Cotler -- conduct for which Education Law § 3028 specifically mandates representation and indemnification. In reaching this conclusion, Justice Huff analyzed Education Law § 3028 and General Municipal § 50-k. (R. 9-11). She began her analysis by setting forth the following well settled rule of statutory construction and interpretation: "[I]n a conflict between a statute ofgeneral applicability and one of specific applicability, the specific statute controls." (R. 10). She applied this rule to the statutory provisions in question and correctly concluded that "Education Law § 3028 is the more specific statute, because it provides specifically for situations involving disciplinary action in an education context." Id. 8 Justice Huffthen addressed the issue ofwhether Ms. Sagal-Cotler acted within the scope of her employment or duties during the incident. (R. 10). In applying the holding of the Appellate Division, First Department in Blood v. Bd. ofEduc. ofthe City ofNew York, 121 A.D.2d 128 (1st Dep't 1986) to the uncontested facts of this matter, Justice Huff determined the conduct at issue fell within the scope of Ms. Sagal-Cotler's employment. (R. 10-11). Therefore, Justice Huffgranted the portion ofthe petition seeking legal representation and reimbursement for attorneys' fees in the civil action and ordered that, "pursuant to Education Law § 3028, Corporation Counsel is directed to file a notice of appearance for [Sagal-Cotler] in the [civil action], or make other arrangements for her representation in that action ...."5 (R. 11). Additionally, Justice Huff ordered respondents to reimburse Ms. Sagal-Cotler for all reasonable legal fees incurred in her defense of the civil action. (R. 11). Order and Judgment ofthe Appellate Division On appeal, the Appellate Division, First Department, reversed on the grounds that respondents' determination had a rational basis in the record and was not arbitrary and capricious or contrary to law. Sagal-Cotler v. Ed. ofEduc. ofCity Sch. Dist. of New York, et aI., 946 N.Y.S.2d 121 (Ist Dep't 2012). In reaching this 5 Sagal-Cotler's claims for indemnification and to be held harmless were deemed premature and, thus, denied, without prejudice, pending the outcome in the civil action. 9 conclusion, the First Department found that the three (3) statutes at issue (i.e. Education Law § 3028, Education Law § 2560, and General Municipal Law § 50-k) were not in conflict and, rather, could be harmonized or read together. Id. at 123. The court also concluded that respondents' denial of legal representation had a rational basis because Ms. Sagal-Cotler was not acting "in the discharge of her duties" when she slapped a student in the face, whether this was "an act ofdiscipline or otherwise." Id. (citing to Blood, 121 A.D.2d 128, as a comparative case). Nonetheless, two dissenting justices determined that the "Supreme Court properly found that sections 3028 and 2560 ofthe Education Law are in conflict, and that section 3028 controls pursuant to the principle that 'in a conflict between a statute of general applicability and one of special applicability, the special statute controls.'" Sagal-Cotler, 946 N.Y.S.2d at 126 (citations omitted). In agreeing with the Supreme Court's conclusions, the dissent took note of decisions in which courts have considered the two Education Law provisions at issue in similar circumstances and have also found them in conflict and concluded that section 3028, the special or more specific statute, controls. The dissent determined that Education Law § 3028 is more specific "because substantively it applies only to claims arising from disciplinary action taken against students, whereas Education Law § 2560 and General Municipal Law § 50-k ... apply generally to all claims against New York 10 City Board of Education employees that arise from acts within the scope of their employment." ld. at 126. The dissent further determined that the majority's finding that Ms. Sagal-Cotler had not acted in the discharge of her duties "defies common sense." The dissenting justices reasoned that Ms. Sagal-Cotler's "loss oftemper and impulsive action, when faced with a persistently disobedient student in an otherwise stressful situation, clearly occurred in the scope of her work" because the incident at issue "arose from a momentary display of anger arising from [Ms. Sagal-Cotler],s discharge of her duty" of escorting a student to the cafeteria "where he was supposed to be." Sagal Cotler, 946 N.Y.S.2d at 126-27 (Freedman, J., dissenting). This appeal followed. 11 ARGUMENT EDUCATION LAW § 3028 CONTROLS RESPONDENTS' DUTY TO PROVIDE APPELLANT LEGAL REPRESENTATION IN THE CIVIL ACTION BECAUSE THIS STATUTE SPECIFICALLY GOVERNS LEGAL ACTIONS ARISING OUT OF DISCIPLINARY ACTION TAKEN AGAINST A PUPIL F or several years, the Board ofEducation never disputed the defense ofschool employees under circumstances similar to those at bar. In 1960, Corporation Counsel of the City ofNew York wrote the following: "At present the Corporation Counsel's Office provides legal representation for such persons [Board ofEducation employees] without incurring any additional expense to the City. This procedure has proved satisfactory over the years and without complaint from either the persons represented or the Board ofEducation." Governor's Bill Jacket, 1960 Ch. 800, at 6, Letter from Mayor R. Wagner to Gov. N. Rockefeller, dated Apr. 18, 1960, at 2. That same year, it was "noted in this connection that since the enactment of Section 2560 of the Education Law no teacher has had to pay one cent in damages." Governor's Bill Jacket, 1960 Ch. 800, at 7, Letter from Pres. C. Silver, Board of Ed. of the City of New York, to the Governor, dated Apr. 13, 1960. It is not clear what, if anything, precipitated the recent change in policy. 12 A. The Legislature Intended School Employees In New York City To Be Provided With Legal Representation In Civil Actions Arising Out Of The Discipline Of Students Pursuant to Education Law § 3028 General Municipal Law § 50-k and Education Law § 3028 provide for the legal representation and indemnification ofNew York City Board ofEducation employees named as defendants in lawsuits or criminal actions. Education Law § 3028 requires a board of education to provide legal representation to an employee of a school district in a civil proceeding that arises out of disciplinary action taken against any pupil ofthe school district while in the discharge ofthe employee's duties within the scope ofthe employee's employment. Specifically, Education Law § 3028 provides, in pertinent part: ... each board ofeducation ... shall provide an attorney or attorneys for, and pay such attorneys' fees and expenses necessarily incurred in the defense ofa teacher, member of a supervisory or administrative staff or employee, or authorized participant in a school volunteer program in any civil or criminal action or proceeding arising out of disciplinary action taken against any pupil ofthe district while in the discharge ofhis duties within the scope ofhis employment .... (emphasis added). General Municipal Law § 50-k, which is incorporated by reference in Education Law § 2560, on the other hand, provides that the City shall provide for the legal defense and indemnification of City employees where the act on which the 13 lawsuit or criminal action is based occurred "while the employee was acting within the scope ofhis public employment and in the discharge ofhis duties and was not in violation of any rule or regulation of his agency at the time the alleged act or omission occurred." The two statutes coexist and provide for the legal defense and indemnification ofCity employees in differing circumstances, as demonstrated by the case law interpreting the statutes, as well as the Legislative history. In 1947, the Legislature enacted Education Law § 2560, which provided that the Board of Education: shall assume liability to the extent that it shall save harmless ... the teaching or supervising staff, officer, or employee ... for damages arising out of any act of the ... officer or employee, either within or without the school buildings, provided that ... such appointed member ofthe teaching or supervising staff, officer, [ or] employee ... at the time damages were sustained was acting in the discharge of his duties and within the scope of his employment .... Laws of New York, 1979 Ch. 673, at 1304-05. Thereafter, in 1960, the Legislature expanded this protection when it enacted Education Law § 3028, which, as set forth above, provides that: ... each board ofeducation ... shall provide an attorney or attorneys for, and pay such attorneys' fees and expenses necessarily incurred in the defense ofa teacher, member of a supervisory or administrative staff or employee, or authorized participant in a school volunteer program in any 14 civil or criminal action or proceeding ansmg out of disciplinary action taken against any pupil of the district while in the discharge of his duties within the scope of his employment .... Section 3028 was intended to "enable teachers, officials, and employees to be adequately represented in actions against them without being burdened by the cost of counsel and legal proceedings." Governor's Bill Jacket, 1960 Ch. 800, at 23, Report to the Governor from Compt. A. Levitt, dated Apr. 14, 1960. As the Appellate Division, First Department, noted in Blood v Bd. ofEd. ofthe City ofNew York, 121 A.D.2d 128 (1stDep't 1986), the legislative objective ofEducation Law §§ 2560 and 3028 is "saving imperfect and, therefore, fallible public employees from the potentially ruinous legal consequences following from unintentional lapses in the daily discharge of their duties." Blood, 121 A.D.2d at 132. The Legislature enacted Education Law § 3028 specifically to protect employees in Ms. Sagal-Cotler's predicament. "There are instances, ofcourse, where a parent may bring a proceeding against a teacher where force was used," and there "are also instances where civil actions are brought against the teacher on the theory of assault." Governor's Bill Jacket, 1960 Ch. 800, at 17. A teachers' organization noted, In some cases involving discipline, attorneys ... bring charges of assault and battery against the teacher, and 15 insurance companies escape responsibility ofdefending the teacher on the basis of certain exclusions (in fine print) contained in their contracts. This bill is an attempt to close this loophole in the protection of teachers. Governor's Bill Jacket, 1960 Ch. 800, at 24. Thus, the Legislature intended that Board of Education employees accused of corporal punishment be defended under this statute. In 1979, the Legislature amended Education Law § 2560. The principal purpose ofthe 1979 amendments was to widen the applicability ofrepresentation and indemnification requirements. As the sponsor of the bill explained: The purpose of the bill is to indemnify all New York City employees against civil liabilities incurred as a result of proper performance of their duties on the job. At the present time, City policemen, firemen, and teachers are so indemnified and there seems to be no justification to limit such indemnification to these professions. It is unfair to subject City employees to civil liability for duties performed within the legal scope of their employment and to expect them to perform their duties aggressively and zealously under such circumstances. Governor's Bill Jacket, 1979 Ch. 673, at 6, Letter of Assemb. V. Nicolosi to R. Brown, dated June 29,1979. (R.91). The memorandum accompanying the bill added that the law would remove "the specter of possible liability hanging over [all New York City public employees]." Governor's Bill Jacket, 1979 Ch. 673, at 7. (R.92). 16 In the 1979 amendment, the Legislature did not -- and has not since -- repealed or scaled back the protections of Education Law § 3028. Indeed, when it amended Education Law § 2560 to incorporate General Municipal Law § 50-k by reference, the Legislature consciously decided to preserve the protections afforded under Education Law § 3028. In a 1979 Report to the Governor, the New York State Law Revision Commission proposed amending Section 3028 "to delete reference to defense, indemnification, and save harmless provisions" in civil cases, leaving only an entitlement to representation in criminal cases arising from discipline. Governor's Bill Jacket, 1979 Ch. 673, at 47,53, Report of the Law Revision Commission to the Governor. CR. 132, 138). The recommendation was never adopted and Education Law § 3028 has continuously coexisted with Education Law § 2560, and General Municipal Law § 50-k. Therefore, in its ruling, the Appellate Division effectuated a result contrary to the Legislature's intent, which was clearly to preserve Education Law § 3028's protections for school employees in New York City and Statewide. The Legislature intended that school employees who carry out discipline, in New York City and across the State, should not be required to bear the considerable expense of hiring their own counsel to defend against disciplined students' claims. Unless respondents' determination here is annulled, all school employees who 17 supervise or monitor students will risk significant economic harm ofthe type that the Legislature intended to prevent Ms. Sagal-Cotler is one of the employees that the Legislature intended to protect in passing Education Law § 3028. The City is already a co-defendant in the civil action against Ms. Sagal-Cotler. Requiring the Assistant Corporation Counsel who represents the City to also represent Ms. Sagal-Cotler would not add any significant cost Only the annulment ofrespondents' determination would effectuate the Legislature's intent of saving public employees from "potentially ruinous" financial consequences. B. This State's Courts Have Upheld School Employees' Right To Legal Representation In Legal Actions Arising Out Of The Discipline Of Students Under Education Law § 3028 Prior to this case, and Thomas v. New York City Dep 't o/Education, et a!., 946 N.Y.S.2d 114 (lst Dep't 2012), decided on the same day, the Appellate Division, First Department, last visited the issue of the application of Education Law § 3028 almost four years ago. In Timmerman v. Bd. o/Educ. o/the City Sch. Dist. o/the City o/New York, 856 N.Y.S.2d 103 (1st Dep't 2008), a teacher sought reimbursement of attorney fees "incurred in defense of criminal charges leveled against him by two of his students." Id. at *1. The Timmerman Court applied Education Law § 3028, and 18 held that because the "proceeding against petitioner clearly arose out ofdisciplinary actions that he took against pupils, respondents should reimburse petitioner for the attorneys' fees and expenses he incurred in defending himself." Id. at *2 (citing Cutler v. Poughkeepsie City Sch Dist., 73 A.D. 2d 967 (2d Dep't 1980)). Subsequent to Timmerman, trial courts handling cases arising in the City of New York split on whether the Board of Education must defend pedagogical employees in civil suits initiated by students and their parents. In addition to the Supreme Court in the instant matter, the Supreme Court in Morel v. City o/New York, 2010 WESTLAW3207006 (Sup. Ct., N.Y. Cty. Aug. 3, 2010) determined that Board of Education employees in situations similar to that of Ms. Sagal-Cotler here are entitled to legal representation. In Morel, the court upheld a New York City teacher's right to legal representation pursuant to Education Law § 3028 in connection with a legal action initiated by a 14-year old female student who accused the petitioner teacher of punching her while he was ushering her out of the gym after a basketball game. Morel, 2010 WESTLA W 3207006, at * 1. The Morel court applied Education Law § 3028, noting that "the only ground upon which representation can be refused is scope ofemployment." Id. at *4. After finding that removing students from the gym 19 was within the scope ofhis duties as the school basketball coach and athletic director, the court held the petitioner was entitled to legal representation despite the fact that the allegation suggested that the petitioner lost his temper -- an action the court held was "foreseeable." Id. at *6. The Morel court concluded that Mr. Morel was entitled to legal representation.6 In the cases applying Education Law § 3028, the courts, including the lower court in the instant matter, relied on Blood v. Bd. ofEduc. ofthe City ofNew York, 509 N.Y.S.2d 530 (1st Dep't 1986). In Blood, the subject teacher, like Ms. Sagal- Cotler, was angered by a student, lost her temper and swung a book bag, injuring another student. Although the BloodCourt determined that the teacher's conduct was in violation ofNew York City Board ofEducation regulations, it held that this teacher acted in the scope of her duties because "[s]uch behavior, although undesirable, is a generally foreseeable eventuality ofteaching and, as such, must be deemed within the scope of a teacher's employment (Riviello v. Waldron. 47 NY2d 297 (1979»." In reaching this conclusion, the Blood Court reasoned: Surely, it is not so unusual an occurrence that a teacher loses her temper with the class. Indeed, displays of anger in the classroom cannot be regarded as other than natural and sometimes necessary incidents of a teacher's work. 6 Notably, respondents did not appeal the Supreme Court's decision in Morel. 20 Nor can it be reasonably expected that a teacher's anger will always be well-gauged to the occasion and unaccompanied by impulsive behavior. See Blood, 121 A.D.2d at 131; see also Cromer v. City Sch. Dist. ofAlbany, 2002 WESTLA W 1174683 (Sup. Ct., Alb. Cty. Apr. 5, 2002) (finding that a physical education teacher was entitled to representation and reimbursement in a criminal case alleging that he assaulted a student during class); Inglis v. Dundee Cent. Sch. Dist., 180 Misc.2d 156 (Sup. Ct., Yates Cty. March 1,1999) (holding that a music teacher who allegedly slapped a student while playing piano is entitled to reimbursement); see also, e.g., Cotter v. Bd. ofEduc. ofGarden City Union Free Sch. Dist.,63 A.D. 3d (2d Dep't 2009) (ordering school district to defend and indemnifY a teacher in an action arising out ofa physical altercation between two teachers). These cases each found that where an employee acted while in the discharge of her duties within the scope of her employment, and where the action against her arose out of discipline, Education Law § 3028 requires representation and reimbursement. Decisions in two lower court cases, Martin v. Bd. ofEduc. ofthe City Sch. Dis!. ofthe City ofNew York, eta!., 2011 WESTLAW 1527190 (Sup. Ct., N.Y. Cty., Apr. 12,2011) and Zampieron v. Bd. ofEduc. ofthe City Sch. Dist. ofthe City ofNew 21 York, etal., 2010 WESTLA W 5576190 (Sup. Ct., N.Y. Cty., Dec. 10,2010),7 adopted a different view, holding that General Municipal Law § 50-k and Education Law § 2560 overruled Education Law § 3028; therefore, to be successful, a petitioner must meet the requirement in General Municipal Law § 50-k that her actions were "not in violation ofany rule or regulation of [his or her] agency ...." Education Law § 3028 does not contain this language. Additionally, the lower court in Thomas v. New York City Dep't ofEducation, et al., 946 N.Y.S.2d 114 (lst Dep't 2012), adopted the MartinlZampieron analysis and applied the same to paraprofessional Josephine Thomas' request for legal representation in connection with a civil action initiated against her by a student arising out of her alleged disciplinary action against him. Thus, the issue arises as to whether Education Law § 2560 or Education Law § 3028 controls. In the cases applying Education Law § 3028, courts, including the lower court in the instant matter, have rightly determined that "Education Law § 3028 is the more specific statute, and therefore the applicable statute, because it provides specifically for situations involving disciplinary action in an education context." (R. 1 0) (quoting Bd. ofMgrs. ofPark Place Condo. v. Town ofRamapo, 247 A.D. 2d 537 (2d Dep't 7 The petitioners in Martin and Zampieron filed Notices of Appeal to the First Department challenging those decisions. The appeal in Martin has been held in abeyance pending the outcome of the instant matter. The appeal in Zampieron has been rendered moot and has been withdrawn. 22 1998); see Morel, 2010 WESTLAW 3207006, at *4 (finding that Education Law § 3028 "is a specific statute, and it cares out an exception to General Municipal Law § 50-k(2) for claims arising from a teacher's disciplinary actions"); see also Inglis, 180 Misc.2d 156. In determining that the "Supreme Court properly found that sections 3028 and 2560 of the Education Law are in conflict", the dissent also concluded that "Education Law § 3028 is more specific because substantively it applies only to claims arising from disciplinary action taken against students, whereas Education Law § 2560 and General Municipal Law § 50-k ... apply generally to all claims against New York City Board of Education employees that arise from acts within the scope of their employment." Sagal-Cotler, 946 N.Y.S.2d at 126 (Freedman, J. dissenting). Here, Education Law § 3028 specifically applies to Ms. Sagal-Cotler's because the civil action in which she seeks legal representation arises directly from the disciplinary action she took against a student. The legislative history ofboth Education Law § 3028 and General Municipal Law § 50-k make clear that the Court need not "select" one or the other statute as solely applicable, as the protections of Education Law § 3028 do not necessarily conflict with General Municipal Law § 50-k. Rather, the two statutes create two eligible, overlapping sets of employees. This reading is consistent with well established precedent that requires a court, when confronted with two legislative 23 enactments, "to adopt a construction that permits a reasonable field of operation for each statute." Iazzetti v. City ofNew York, 94 N.Y.2d 183, 189 (1999) (citations omitted); see also Consolo Edison Co. of New York, Inc. V. Dep't of Envtl. Conservation, 71 N.Y.2d 186, 195 (1988) (repeal or modification of legislation by implication is not favored in the law"). "These principles apply with particular force to statutes relating to the same subject matter, which must be read together and applied harmoniously and consistently." Alweis V. Evans, 69 N.Y.2d 199, 204-05 ( 1987) (citations omitted). The majority did not find sections 3028 and 2560 to be in conflict. However, instead of determining which statutory provision applied to Ms. Sagal-Cotler's circumstances, the court attempted to harmonize sections 3028 and 2560 by construing Education Law § 2560 as an exception to the general rule set forth in Education Law § 3028. Sagal-Cotler, 946 N.Y.S.2d at 124. In doing so, the court, in essence, amended section 3028 to include the tacit, additional requirement that an employee act in accordance with all rules and regulations ofthe employer in order to qualify for legal representation in a legal action arising out of that employee's discipline of a student. Id. at 123. The factual scenario surrounding Ms. Sagal-Cotler's request for legal representation in the civil action renders the plain language ofsections 3028 and 2560 24 in conflict. Specifically, Ms. Sagal-Cotler's admitted act ofslapping an "unruly and recalcitrant student in an effort to get him to the cafeteria where he was supposed to be obviously constituted disciplinary action taken within the scope of her employment. " Sagal-Cotler, 946 N.Y.S.2d at 126 (Freedman, J., dissenting). This act of discipline gave rise to the civil action against her. The civil action brings Ms. Sagal-Cotler's request for legal representation well within the ambit of Education Law § 3028 because the civil action arose directly from her act ofdisciplining student Kendall Walbey. Ms. Sagal-Cotler's disciplinary action, however, arguably violates the rules and regulations prohibiting corporal punishment, which disqualifies her from receiving legal representation pursuant to Education Law § 2560. The dissent properly determined that, "[s]ection 2560 cannot be read as an exception to section 3028 because both statutes apply '[n]otwithstanding any inconsistent provision oflaw. '" Sagal-Cotler, 946 N.Y.S.2d at 126. In this case, the applications ofsections 3028 and 2560 lead to inconsistent outcomes on the issue of whether Ms. Sagal-Cotler is entitled to legal representation in the civil action. Consequently, sections 3028 and 2560 cannot be reconciled and are in conflict. The broader protection expressly provided by section 3028 applies "notwithstanding" any inconsistent limitation in section 2560. Additionally, the protections of Education Law § 3028 should be broadly 25 construed in favor of the school employees that fall under its purview. See, e.g., Ricca v. Bd. ofEduc., City Sch. Dist. ofCity ofNew York, 47 N.Y.2d 385, 397 (1979) (finding that to effectuate the Legislature's intent behind the tenure system in the Education Law, "it is necessary to construe the tenure system broadly in favor ofthe teacher, and to strictly police procedures which might result in the corruption ofthat system ...."). Furthermore, Education Law § 3028 is a remedial statute enacted to protect the welfare of public sector school employees by affording them a remedy when forced to defend against civil and criminal actions arising out oftheir discipline ofstudents. It is well settled that remedial statutes are generally favored by the courts and are interpreted or construed liberally to embrace all cases fairly within their scope, so as to accomplish the greatest public good and to effectuate the purpose of the statute. See generally Scanlon v. Buffalo Pub. Sch. Sys., 90 N.Y.2d 662, 676 (1997) (citing Post v. 120 E. End Ave. Corp., 62 N.Y.2d 19,24 (1984). Therefore, the Court should broadly construed the terms ofEducation Law § 3028 in favor of Ms. Sagal-Cotler because she is one of the employees that the Legislature intended to protect in passing this statute. Accordingly, the Supreme Court properly analyzed Sagal-Cotler's claim for representation and indemnification under Education Law § 3028 and Ms. Sagal Cotler is entitled to representation under that statute. 26 C. Ms. Sagal-Cotler Is Entitled To Legal Representation Under Education Law § 3028 Because The Civil Action Arose From Her Contact With A Student That Constituted Disciplinary Action Taken While In The Discharge OfHer Duties Within The Scope Of Her Employment The court declined to decide the key issue in this matter -- that is, which statute is the more specific one and, thus, controlling given the particular circumstances at issue. Sagal-Cotler, 946 N.Y.S.2d at 124. Instead, it read the competing provisions together and found that by violating a rule and a regulation prohibiting corporal punishment, Ms. Sagal-Cotler was not acting in the discharge ofher duties. Sagal- Cotler, 946 N.Y.S.2d at 123. The court's conclusion "belies common sense" because Ms. Sagal-Cotler's contact with the student, in slapping him in the face in an effort to get him to the cafeteria where he was supposed to be, "obviously constituted disciplinary action taken within the scope of her employment." Sagal-Cotler, 946 N.Y.S.2d at 126 (Freedman, J., dissenting). Here, the crux ofthe complaint in the civil action is that Ms. Sagal-Cotler took disciplinary action against former student Kendall Walbey when she "struck plaintiff KENDALL WALBEY in the face." (R. 45). As set forth in the complaint, the disciplinary action is alleged to have taken place in the school building, P.S. 721, during regular school hours and in the scope ofMs. Sagal-Cotler's employment duties as a paraprofessional, which included working with and caring for then student 27 Kendall Walbey. (R. 45) (alleging that the incident occurred while Sagal-Cotler"was duly assigned the task ofsupervising Plaintiff Kendall Walbey at the Roy Campanella Occupational Training Center."). Accordingly, Ms. Sagal-Cotler is entitled to representation under the express terms ofEducation Law § 3028. Contrary to the Supreme Court's determination and the dissent's position, the First Department majority concluded that Ms. Sagal Cotler's single admitted act of slapping a student in the face when he refused to accompany her to the school cafeteria was not undertaken in the discharge of her duties, whether an act of discipline or otherwise. The court reasoned that Ms. Sagal-Cotler's action in this regard violated Chancellor's Regulation A -420 as well as a statewide rule prohibiting corporal punishment. In reaching this conclusion, the court incorrectly distinguished Blood v. Bd. of Educ. of City of New York, 121 A.D.2d 128 (1st Dep't 1986). Furthermore, the court also misapplied and overlooked the string ofcase law decided before and after Blood, which define the terms "discharge of duties" and "scope of employment." The term "scope ofemployment" has, generally, been very broadly construed by courts applying the defense and indemnity provisions of the Education Law. Notably, courts have interpreted the scope of employment to include many actions which violate an employer's rules. In Riviello v. Waldron, 47 N.Y.2d297 (1979), this 28 Court set forth the scope of employment test as " ... whether the act was done while the servant was doing his master's work, no matter how irregularly or with what disregard of instructions." Id. 47 N.Y.2d at 302-03 (citations omitted). This Court further stated: [i]ndeed, where the element ofgeneral foreseeability exists, even intentional tort situations have been found to fall within the scope of employment. (see, e.g., Sims v Bergamo,3 NY2d 531, 534-535 [assault of unruly patron by bartender to protect employer's property and to maintain order on premises]; De Wald v Seidenberg, 297 NY 335, 337-338 [(1948)].; [assault of tenant by building superintendent during attempted enforcement ofoccupancy rules].) 47 N.Y.2d at 304; see also Stewartson v. Gristede's Supermarket, Inc., 271 A.D.2d 324,325 (1st Dep't 2000) (explaining that "[m]ere ... deviation from the line of[] duty does not relieve [the] employer of responsibility" because "[w]rongful acts are usually in violation of orders or in deviation from the strict line of duty."). Furthermore, this Court has held that an employee acts within the scope ofhis employment, even though the "servant, through lack of judgment or discretion, or from infirmity of temper, or under the influence of passion aroused by the circumstances and the occasion, goes beyond the strict line of his duty or authority, and inflicts an unjustifiable injury upon another." See De Wald v. Seidenberg, 297 N.Y. 335, 338 (1948). 29 In Blood, the Appellate Division, First Department discussed the standard for determining whether a pedagogical employee is acting within the scope ofhis or her employment such that he or she is entitled to legal representation by the City. Specifically, the Blood court stated that "only classroom conduct maliciously motivated or so extreme as to remove itself from any natural connection with a teacher's occupational duties would constitute an adequate factual basis for a determination ... that the scope ofemployment had been exceeded." 121 A.D.2d at 131. In the instant matter, the First Department found that "[t]he facts here present a fair different situation from Blood' on two grounds: (1) the petitioner's conduct in Blood was "clearly accidental"; and (2) the petitioner was not disciplined for her conduct. Here, the First Department concluded that "the striking was intentional and petitioner was disciplined" thereby rendering Blood inapplicable. In reaching this conclusion, the First Department wholly misapplied the standard set forth by the Blood court. Ms. Sagal-Cotler did not exceed the scope of her employment under the standard enunciated in Blood because her conduct was not maliciously motivated or so extreme as to remove itself from any natural connection with her occupational duties. Like the conduct of the teacher in Blood, the conduct at issue here happened in an impulsive, "fit of rage" or loss of temper by Ms. Sagal Cotler. Her single act of slapping Kendall Walbey was not deliberate, maliciously 30 motivated, or pre-meditated in any way. (R. 73) (illustrating that Sagal-Cotler simply "lost it", presumably referring to her temper). The First Department exceeded its limited scope of review by concluding otherwise. As the Blood Court emphasized, it cannot be "reasonably expected that a teacher's anger will always be well gauged to the occasion and unaccompanied by impulsive behavior" as such behavior "is a generally foreseeable eventuality ofteaching and, as such, must be deemed within the scopeofateacher'semployment." Blood, 121 A.D.2dat 131. Morever, that Ms. Sagal-Cotler may have been disciplined for her conduct is irrelevant, as an employer's imposition of discipline on an employee is not a factor which disqualifies the subject employee from receiving representation pursuant to Education Law § 3028 and pursuant to the standard set forth in Blood. Blood, 121 A.D.2d at 130 (declining to address whether the conduct at issue was sufficient to support the unsatisfactory rating given petitioner Blood and stating that "we think it evident that an unsatisfactory rating does not necessarily indicate that an employee has acted beyond the scope of his or her employment and that the Corporation Counsel is not relieved of his obligation to provide legal representation ... simply because an unsatisfactory rating has been given."). As noted, in Blood, the court ordered the City to provide legal representation to a teacher in a civil action arising from an incident in which the teacher struck a 31 pupil in the eye with a bookbag that she swung after being angered by another student. The court reasoned that: [s]urely, it is not so unusual an occurrence that a teacher loses her temper with her class. Indeed, displays of anger in the classroom cannot be regarded as other than natural and sometimes necessary incidents ofa teachers work. Nor can it be reasonably expected that a teacher's anger will always be well gauged to the occasion and unaccompanied by impulsive behavior. Such behavior, although undesirable, is a generally foreseeable eventuality of teaching and, as such, must be deemed within the scope of a teacher's employment. ld. at 132. In Blood, the school's administration characterized the "sequence of events", including petitioner Blood's act of striking her student, as accidental. Blood, 121 A.D.2d at 130-31. Nonetheless, the administration issued petitioner Blood a reprimand and an unsatisfactory rating "based entirely upon her conduct during the Turner incident" in which Ms. Blood struck her student. ld. at 129,131. Although the school principal acknowledged that Ms. Blood had not struck the student intentionally, he issued her the adverse rating "due to [Ms. Blood's] inappropriate display ofanger." ld. at 131. The Court highlighted the following statements by the school principal: Dr. Orellanos: I know [petitioner] didn't intend to hit [student'. I understand. But what I'm saying here is that 32 this fit of rage by a teacher as Ms. Blood cannot be condoned, and especially when this is in the morning and 9 a.m., you know that temper." Id. at 131. Therefore, in light of petitioner Blood's receipt ofa letter of reprimand as well as an unsatisfactory performance rating on the basis ofher hitting a student with a bookbag, the First Department erroneously concluded that the petitioner in Blood was not disciplined. The Supreme Court, New York County, adopted the standard annunciated by the Blood court in Morel v. City o/New York, 2010 WESTLAW 3207006 (Sup. Ct., N.Y. Cty. Aug. 3, 2010). The Morel court found, in the context ofEducation Law § 3028, that where a teacher who was attempting to remove students following a school basketball game appeared to lose his temper with a recalcitrant student and pushed the student, the teacher was acting within the scope of his duties. There, the court noted that "[petitioner] appeared to lose his temper with a recalcitrant or disobeying student. Just as in Blood, the court held that this type of action, though not 'well gauged,' is foreseeable." Id. at 6. Accordingly, the court held that "there is no evidence that Corporation Counsel had a factual basis to determine that [petitioner] was acting outside the scope ofhis employment when he pushed [a student] ..." and 33 ordered the City was to provide legal representation to the teacher in a civil action arising from the incident. Id. Similarly, in Inglis v. Dundee Cent. Sch. Dist., 180 Misc.2d 156 (Sup. Ct., Yates Co. 1999), the court determined that a teacher who slapped a student across the face while disciplining that student acted within the scope ofemployment. The court found that the teacher was entitled to legal representation in the resulting criminal case pursuant to Education Law § 3028. The underlying incident involved a student playing piano loudly in the classroom, despite the teacher's instruction to stop. Thereafter, the teacher, "grazed" the side ofthe student's face. Notably, supporting affidavits from other students in the class indicate that the petitioner "slapped" the student across his face. Id. at 157. The school district denied the teacher legal representation in the resulting criminal action. In doing so, the school district claimed that Education Law § 3028 did not apply because the teacher had engaged in corporal punishment when she disciplined the student. The Inglis court acknowledged that the teacher's conduct could be construed as corporal punishment; nonetheless, the court held that Education Law § 3028 covered the teacher because her act was "one that the school district could reasonably anticipate." Id. at 159. Additionally, relying on the First Department's decision in Blood, the Inglis court found that the extent of the teacher's departure from 34 perfonning her job description was not a dramatic, considering that discipline of students is a nonnal and customary part of a teacher's employment. Id. The court added that "the extent of departure from performing that employment was not a dramatic one, even when adopting the facts as alleged by respondent, to wit: the petitioner "slapped" the child once across the face and the incident ended. Such an act is one that the School District could reasonably anticipate." Id. Here, as alleged in the civil action, Ms. Sagal-Cotler's actions were taken in the normal course of her duties as a paraprofessional and were, therefore, within the scope of her employment. (R. 44-45). Thus, the lower court properly applied Education Law § 3028 and held that Ms. Sagal-Cotler had acted within the scope of her duties when, angered by a misbehaving student, she slapped him in the face. See Timmerman, 856 N.Y.S.2d 103, Cromer, 2002 WESTLA W 1174683 (detennining that a teacher who assaulted a student during class was entitled to legal representation), Inglis, 687 N.Y.S.2d 866 (holding that teacher who slapped student during class was acting within the scope of employment and thus entitled to legal representation); see also, e.g., Cotter, 63 A.D. 3d (2d Dep't 2009) (ordering school district to defend and indemnify the petitioner teacher in connection with an action arising out of a physical altercation between petitioner and a fellow teacher which culminated in the petitioner placing his colleague in a headlock while they were 35 grading Regents examinations in the school). Even if Ms. Sagal-Cotler's conduct constitutes corporal punishment, such "is not so unusual an occurrence" as to remove Sagal-Cotler from the protections ofEducation Law §3028. See Blood, 121 A.D.2d at 131. The Appellate Division's finding that a school employee who intentionally violates an employer's rule or regulation does not act in the discharge of her duties also seems to eviscerate Education Law § 3028's express protection of school employees named as defendants in criminal actions. In New York State, most crimes require proof of intent to commit an act. Consequently, school employees who discipline students who are subsequently named as a criminal defendants could be denied legal representation on the basis ofa district attorney's determination that said employee acted intentionally in committing an alleged criminal act, such as assault or sexual abuse. Thus, in determining that an intentional act falls outside of the discharge of an employee's duties, the Appellate Division effectively eliminated Education Law § 3028's remedial protections with respect to school employees named as criminal defendants. As set forth more fully above, the Legislature mandated that Education Law § 3028 protect school employees in both civil and criminal actions arising out of the discipline of pupils. Indeed, the Appellate Division, First Department, has 36 acknowledged school employees' right to legal representation and indemnification in criminal actions arising out of the discipline of pupils. See Timmerman v. Ed. of Educ. ofthe City Sch. Dist. of the City ofNew York, 856 N.Y.S.2d 103 (lst Dep't 2008). Given that the Legislature has mandated representation in criminal cases, where the employee is accused of violating sections of the Penal Law, it makes no sense that it intended that representation could be denied in civil cases based on the violation of an employer rule. Accordingly, because the complaint in the civil action alleges that Ms. Sagal Cotler took disciplinary actions against former student Kendall Walbey while in the scope ofher duties as a paraprofessional, respondents' denial oflegal representation and indemnification to Ms. Sagal-Cotler in this matter was arbitrary, capricious, an abuse of discretion, and contrary to the express terms of Education Law § 3028. Therefore, this Court should reverse the order and judgment of the Appellate Division, First Department, and reinstate the Supreme Court's decision, ordering that respondents' provide Sagal-Cotler with legal representation in the civil action. 37 CONCLUSION Based upon the foregoing facts, arguments and authorities, the Order of the Appellate Division, First Department, should be reversed, the Order and Judgment of the Supreme Court reinstated, and respondents directed to immediately provide Sagal-Cotler with legal representation in the civil action, as well as reimbursement for all reasonable legal fees incurred in her defense of the civil action to date. Dated: August 22, 2012 New York, New York Respectfully Submitted, RICHARD E. CASAGRANDE 52 Broadway, 9th Floor New York, New York 10004 (212) 533-6300 By: ~aJ:l~ ARIANA A. GAMBELLA Of Counsel 38