Larson v County of Seneca

[*1] Larson v County of Seneca 2009 NY Slip Op 50177(U) [22 Misc 3d 1118(A)] Decided on February 5, 2009 Supreme Court, Ontario County Doran, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on February 5, 2009
Supreme Court, Ontario County

James R. Larson, Petitioner,

against

The County of Seneca, New York, Respondent.



102145

Craig Doran, J.

The petitioner herein seeks an order and judgment pursuant to CPLR Article 78 requiring the respondent to defend, indemnify and hold harmless the petitioner with regard to two civil actions presently pending in the United States District Court for the Western District of New York: Lukowski, et al. v. James Larson, et al. (hereinafter referred to as the "Lukowski" action) and Van Cleef, et al. v. James Larson, et al. (hereinafter referred to as the "Van Cleef" action). In essence, the petitioner seeks a declaration that Seneca County is obligated, pursuant to Public Officers Law Section 18, to defend, indemnify and hold harmless petitioner with regard to these two civil actions pending in Federal court.

Petitioner was formerly the undersheriff of Seneca County, serving in that position until voluntarily stepping down in December, 2005. Thereafter, the petitioner resigned from his position as a deputy sheriff in March, 2006.The petitioner was indicted and ultimately convicted in February, 2008, of Official Misconduct in violation of Section 195.00 of the Penal Law. The two Federal civil actions at issue herein are the last of three actions that have been brought against petitioner, the County of Seneca, former sheriff Leo Connolly, and others relating to incidents allegedly occurring during the time period in which petitioner served as undersheriff. All three actions are unresolved at the present time.

The initial action, entitled Lahr and Deal vs. James R. Larson, et al., named the petitioner individually and in his official capacity as Undersheriff of Seneca County. Respondent agreed to indemnify and pay for petitioner's defense in that action. The Lukowski action was filed on March 4, 2008. Petitioner's counsel requested that the County of Seneca similarly defend and indemnify the petitioner in this second lawsuit. The County refused to do so. The third lawsuit, the Van Cleef action, was filed on September 5, 2008. The County refused the petitioner's request for defense and indemnification in this action as well.

The petitioner thereafter initiated the instant Article 78 proceeding seeking an order and judgment requiring the respondent to defend, indemnify and hold harmless the petitioner with regard to the Lukowski and Van Cleef actions.

The petitioner asserts that under Public Officers Law §18(3)(a), the respondent is required to provide for petitioner's defense in the two pending Federal actions. At oral argument of this [*2]matter, the respondent conceded that it must defend and indemnify the petitioner in the Van Cleef action. With respect to the Lukowski action, however, the respondent argues that because petitioner's actions as alleged in the Lukowski complaint mirror precisely those acts set forth in the Indictment filed against the petitioner, and because the petitioner thereafter plead guilty to several of the counts in the Indictment, the petitioner's conduct alleged in the Lukowski complaint falls outside the scope of his duties as undersheriff. Consequently, the respondent asserts that it has no duty to defend or indemnify the petitioner for this conduct.

Under Public Officers Law §18(3)(a), a municipality is required to provide for an employee's defense in any civil action, state or federal, "arising out of any alleged act or omission which occurred or allegedly occurred while the employee was acting within the scope of his public employment or duties." By contrast, the obligation to indemnify arises from Public Officers Law §18(4)(a). There, the duty of indemnification arises when "the act or omission from which such judgment or claim arose occurred while the employee was acting within the scope of his public employment or duties." The obligation to indemnify is further tempered by the qualification that the injury or damage sued upon did not result from intentional wrongdoing or recklessness by the employee (Public Officers Law §18[4][b]).

A public entity is required to defend an employee if the action in question "allegedly occurred" within the scope of the employee's employment. Therefore, the complaint must be reviewed to ascertain whether it charges that the employee was acting within the scope of his or her employment at the time of the alleged wrongdoing (see, Merrill v. County of Broome, 244 AD2d 590). And, regardless of the allegations of the complaint, a public entity must also defend if an objective investigation reveals that the alleged wrongful act was committed in the course of employment. "The determining factor is the conduct charged by the injured party, not what the actual conduct may in fact have been." (Dreyer v. City of Saratoga Springs, 43 AD3d 586, emphasis added). If the allegations of the complaint suggest that any of the conduct asserted falls reasonably within the scope of employment, the duty to provide a defense is triggered since the duty to defend is extremely broad and exists regardless of how baseless the complaint may be (see, Dreyer, supra). Only when the complaint fails to allege that the defendant acted within the scope of his employment is the municipality authorized to independently investigate the underlying facts and determine whether the charged conduct did, in fact, occur within the scope of the employee's duties (see, Dreyer, supra).

Thus, the statute imposes a two-part test to be applied in determining whether a defense is required. If the employee satisfies the first part of this two-part analysis, the municipality must provide a defense. The first part of the test requires a review of the complaint against the employee to determine if it is alleged that the public employee committed a wrongful act within the scope of his public employment (see, Merrill v. County of Broome, supra). The analysis begins by searching the civil complaint to determine if it is alleged therein that the employee's acts occurred within the scope of his/her employment. In the event that the civil complaint fails to so allege, the second part of the test requires the municipality to investigate the alleged acts to ascertain whether it did in fact occur while the employee was acting with the scope of his public employment or duties. Irrespective of the allegations of the complaint, if the municipality's investigation demonstrates that the wrongful act or omission actually occurred within the scope of the public employee's duties, the public entity must provide a defense (see, Polak v. City of Schenectady, 181 AD2d 233). [*3]

Accordingly, whether the respondent owes petitioner a legal defense hinges first on whether the Federal complaint in Lukowski alleges that the petitioner was acting within the scope of his employment at the time of the alleged wrongdoing (see, Dreyer, supra). If it does, then the duty to defend is triggered.

By applying these principles to the pleadings in the Lukowski complaint, a review of the Federal complaint reveals specific allegations that the petitioner was acting within the scope of his employment when he committed the charged conduct. Although some of the conduct charged in the Federal complaint may arguably be outside the scope of the petitioner's employment or intentional, some of the allegations fall clearly within the scope of his employment, thus entitling him to a defense.

The respondent's argument to the contrary rests solely upon the contention that the petitioner's actions as alleged in the Lukowski complaint mirror precisely those acts set forth in the criminal Indictment filed against the petitioner in Seneca County. The respondent asserts that because the petitioner was convicted of Official Misconduct, constituting intentional acts of wrongdoing, the petitioner's conduct is placed outside the scope of duties as undersheriff. In essence, the respondent argues that the criminal conduct for which the petitioner was convicted is essentially identical to that for which suit has been brought against the County and the petitioner in the Lukowski litigation. As such, the conduct lies outside the scope of the duties of the undersheriff. However, an examination of the allegations in the Lukowski complaint clearly does not support this contention. First, the Lukowski action lists seven plaintiffs, only two of which are even mentioned in the criminal Indictment. The respondent cannot rely on the acts set forth in the Indictment as a way in which to insulate itself from its obligation to defend because of a criminal Indictment that has nothing to do with the complaints raised by the five remaining plaintiffs.Additionally, the Lukowski complaint alleges in paragraphs 35, 37 and 38 actions taken by the petitioner herein against Plaintiff David Jensen and Plaintiff Thomas Castiglione while he was acting in his capacity as undersheriff. Clearly, these allegations demonstrate that it is the petitioner's conduct as undersheriff, as an employee of Seneca County, that gives rise to the claims for damages. Significantly, this Court can find no distinction between certain allegations made in the Deal and Lahr complaint, to which the respondent has agreed to defend and indemnify the petitioner, and certain similar allegations made in the Lukowski complaint. The Lukowski complaint is replete with references that petitioner was acting with the scope of his duties in the Seneca County Sheriff's Department.

The petition is granted insofar as it requests an order and judgment requiring the respondent to provide a defense and indemnification to the petitioner in the Van Cleef action. This is granted upon the consent of the parties.

With respect to the petition as it relates to the Lukowski action, this Court hereby grants the petition insofar as it requests that the respondent be compelled to provide a defense to the petitioner in that action in which he is a defendant. Because the duty to indemnify is conditioned upon the nature of the conduct giving rise to the plaintiff's damages in the Federal civil action, this Court must defer determination on this issue until after the trial in the Federal action, after which the nature of the petitioner's liability has been more particularly ascertained. The request that the respondent indemnify and hold harmless the petitioner in that action is deferred until the completion of the Federal action. [*4]

This constitutes the Decision of the Court. Submit Order in accordance herewith.

________________________________________

Craig J. Doran

Acting Supreme Court Justice

Dated at Canandaigua, New York

this __5___ day of February, 2009.