A-0LENNOX A. CHUNKOO v. CITY OF NEWARK POLICE DEPARTMENT P.O. R. MACIERA and SGT. CELSO VELEZ and P.O. KYLE W. FERREIRA SGT THOMAS ROE, DET. JOSUE DURAN CAPT. YABLONSKY, SGT M MILTON, LT. J. ALBERTO LT. J MINTZ, SGT. HILL, DET M MUHAMMAD, DET HENDERS

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

LENNOX A. CHUNKOO,

Plaintiff-Respondent,

v.

CITY OF NEWARK POLICE DEPARTMENT,

P.O. R. MACIERA and SGT. CELSO

VELEZ,

Defendants-Appellants,

and

P.O. KYLE W. FERREIRA, SGT.

THOMAS ROE, DET. JOSUE DURAN,

CAPT. YABLONSKY, SGT. M.

MILTON, LT. J. ALBERTO, LT. J.

MINTZ, SGT. HILL, DET. M.

MUHAMMAD, DET. HENDERSON, HASSAN

TODD, STANZIALE CONSTRUCTION,

VICTOR STANZIALE, MARCIA GRIER,

ROBERT HICKS, JR.,

Defendants-Respondents.

___________________________________

MARCIA GRIER,

Plaintiff,

v.

CITY OF NEWARK POLICE

DEPARTMENT, P.O. KYLE W. FERREIRA,

P.O. R. MACIERA, SGT. THOMAS

ROE, SGT. CELSO VELEZ, DET.

JOSUE DURAN, CAPT. YABLONSKY,

SGT. M. MILTON, LT. J. ALBERTO,

LT. J. MINTZ, SGT. HILL, DET. M.

MUHAMMAD, DET. HENDERSON, HASSAN

TODD, STANZIALE CONSTRUCTION,

VICTOR STANZIALE, MARCIA GRIER,

ROBERT HICKS, JR.,

Defendants.

___________________________________

Submitted June 2, 2015 Decided July 8, 2015

Before Judges Messano and Ostrer.

On appeal from an interlocutory order of the Superior Court of New Jersey, Law Division, Essex County, Docket Nos. L-3751-12 and L-3912-12.

Willie Parker, Corporation Counsel, attorney for appellants (Avion M. Benjamin, Assistant Corporation Counsel, on the briefs).

Blume Donnelly Fried Forte Zerres & Molinari, attorneys for respondent Lennox A. Chunkoo (Mitchell J. Makowicz, Jr., on the brief).

Pezzano Mickey & Bornstein, LLP, attorneys for respondent Marcia Grier, joins in the brief of respondent Lennox A. Chunkoo.

PER CURIAM

This interlocutory appeal arises from an ongoing personal injury action against the City of Newark (the City), its police department, and two of its officers. Upon careful review of the record, and the arguments of counsel, we dismiss the appeal as premature.

Plaintiff Lennox A. Chunkoo alleged he suffered serious injuries when a vehicle in which he was a passenger was struck by another vehicle that was eluding Newark police officers. Plaintiff alleged that the involved officers engaged in an improper and unlawful chase, in willful violation or reckless disregard of applicable policies and procedures. He alleged that the City was vicariously liable for the officers' actions. Plaintiff also asserted claims against the City and its officers under 42 U.S.C.A. 1983.

The Newark Corporation Counsel undertook the defense of the City and several defendant-officers. After a period of discovery, defense counsel sought summary judgment on behalf of the City and two of the officers a supervising sergeant and the non-driver officer in the police vehicle that gave chase.1 Although counsel argued that dismissal was warranted as to all movants, counsel also argued that the City enjoyed absolute immunity, even if the individuals did not.

At oral argument on the motion, the judge questioned whether the Corporation Counsel's concurrent representation of the City and its officers presented a conflict of interest. Defense counsel asserted that the conflict was reviewed with the individual officers at the outset of the case. However, the judge responded that counsel would need to present signed waivers of the conflict, along with confirmations that the officers had received the advice of independent counsel regarding the conflict. The court adjourned the motion to permit defense counsel to comply.

On the new return date, defense counsel insisted there was no conflict, because the City had absolute immunity from liability. Plaintiff's counsel argued that absent unqualified agreements by the City to indemnify the officers, the City's motion was detrimental to the interests of the officers, as it would relieve the City of the duty to indemnify.

The judge responded to defense counsel, stating the issue of the City's immunity had not been decided and that independent counsel for the officers conceivably could raise facts that put in issue the City's claim of immunity. The judge reviewed certifications presented by defense counsel and noted that, contrary to the court's prior direction, the officers did not confirm that they had received independent advice. Rather, they only indicated they spoke with the City's counsel with respect to the conflict of interest.

There followed a discussion of the indemnification provisions of the operative collective negotiation agreements. Defense counsel conceded the agreements did not provide absolute indemnification, but if the City obtained dismissal and the officers did not, it would be unethical for the City to withhold indemnification. Pressed by the judge, counsel represented to the court that the City would indemnify the officers if they were found liable. The court questioned counsel's legal capacity to make that assurance, absent approval of the governing body.

The judge concluded: "I don't think I can decide this summary judgment motion without that ethical issue being resolved. And the certifications that you provided don't address that."

The court entered an order denying the motion for summary judgment without prejudice. The order did not expressly address the conflict issue, or disqualify corporation counsel. The court issued a comprehensive written opinion, wherein the court reviewed the oral argument regarding the conflict issue. The court noted again the City's argument that it was absolutely immune pursuant to N.J.S.A. 59:2-10, notwithstanding that the officers' "pursuit immunity" under N.J.S.A. 59:5-2 did not provide immunity in the case of "willful misconduct," as recognized in Fielder v. Stance, 141 N.J. 101, 123 (1995). The court concluded that it would be premature to decide the summary judgment motion. Citing RPC 1.8(k) and 1.7(a)(2), the court noted, "there remains unresolved conflict of interest issues regarding the representation of the City of Newark Police Department . . . ." The court held, "The paramount conflict of interest issue has not been addressed and the failure to address the issue . . . precludes Summary Judgment . . . ."

We granted in part and denied in part the City's motion for leave to appeal from the order. Leave was granted solely as to the "court's order disqualifying the Corporation Counsel of the City of Newark from jointly representing the City and other defendant officers."2

In supplemental briefing, the City argues the court erred in finding a conflict of interest.3 Plaintiffs argue that the court correctly found that a conflict barred consideration of the motion.

Upon careful review of the record, we are convinced that it would be premature to reach the conflict issue. The trial court did not enter an order disqualifying the Corporation Counsel. Apparently, the court withheld entering such an order because defense counsel had initially expressed the intent to obtain signed waivers from the officers, after they obtained independent legal counsel. Such certifications were not presented, and it is unclear whether the City has taken the position that such certifications are not required, and therefore, shall not be provided. Defense counsel also asserted that any conflict would be avoided by the City's commitment to indemnify the officers, but the court was not satisfied that counsel had the authority to convey such a commitment, absent governing body approval.

In short, absent the resolution of these subsidiary issues and a definitive order from the trial court disqualifying Corporation Counsel, it would be premature for this court to reach the conflict of interest issue.

Dismissed.

1 The City did not represent the officer who drove the vehicle in the chase because he was no longer employed by the City and did not request representation. He reportedly was served and was in default. Plaintiff consented to the dismissal of remaining defendants.

2 The court had also vacated an administrative dismissal of the separate complaint of Marcia Grier, the driver of the car in which Chunkoo was a passenger. We specified that leave to appeal did not pertain to the order.

3 Contrary to the explicit limitations of our grant of leave, the City proceeded to argue at length the merits of its summary judgment motion, asserting the court erred in denying it.