Shaw v Spitzer
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Shaw v Spitzer 2004 NY Slip Op 30351(U) September 2, 2004 Sup Ct, NY County Docket Number: 400845/2004 Judge: Walter B. Tolub Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication. [* 1] SUPREME COURT OF THE STATE OF NEW YORK - NEW YORK COUNTY PRESENT: PART Justice d MOTION DATE -vMOTION SEQ. NO. MOTION CAL. . The following papers, numbered 1 to ..+-- ,- -- . - . , were read on thls motion to/for Notice of Motion/ Order to Show Cause - Affidavits Answering Affidavits NO. - Exhibits ... - Exhibits Replying Affidavits Cross-Motion: 0 Yes 0 No .* Upon the foregoing papers, It is ordered that thla motlon / ' ' J. S. C. Check one: FINAL DISPOSITION 0 Check if appropriate: DONOTPOST [* 2] SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK: IAS PART 15 X _ - _ _ _ _ _ _ _ _ _ _ - _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ I _ _ _ _ _ _ _ _ _ _ JAMES SHAW, JR., Index No.400845/2004 Plaintiff, M t n Seq. -againstELIOT S P I T Z E R , Attorney General and O F F I C E OF THE ATTORNEY GENERAL OF THE STATE OF NEW YORK and JACQUELINE BLAND, Defendants. WALTER B. TOLUB, J.: The plaintiff, in an application that may be so frivilous as to justify sanctions pursuant to 22 NYCRR 130-1.1, h a s brought t h i s declaratory judgment action to require the State of N e w Y o r k to indemnify him for his alleged acts of sexual misconduct. Plaintiff, the defendant in an action in the F e d e r a l court, has sued the Attorney General of the State of New Y o r k and Jacqueline Bland, the complainant in the Federal action, s e e k i n g indemnification pursuant to Public Officers Law § 17. Plaintiff James Shaw, Jr. is a former Justice of t h e Supreme Court of the State of New York, Kings County, who r e t i r e d in 1999. In November, 1997, Ms. Bland, Justice Shaw's s e c r e t a r y , f i l e d a formal complaint with the Chief J u d g e and with the Equal Employment Opportunity O f f i c e o f the Office of Court Administration accusing J u s t i c e Shaw of sexual harassment. In May, 1998, Justice Shaw terminated Ms. Bland from h e r employment and Ms. Bland filed a complaint with the N e w Y o r k City Human [* 3] Rights Commission which sua sponte transferred the case to the United State Equal Employment Opportunity Commission ( EEOC ). Following her termination, Ms. Bland filed a supplemental Complaint with the EEOC alleging retaliatory dismissal. Ms. Bland was reinstated by the Office of Court Administration. In the interim, the New York State Commission on Judicial Conduct held a hearing at which Ms. Bland, a Ms. Rucker, and Justice Shaw testified. In November, 1999, the Commission on Judicial Conduct concluded that Justice Shaw h a d , over a period of twelve y e a r s , sexually harassed Ms. Bland. Because Judge Shaw faced mandatory retirement at the end of the year, the Commission on Judicial C o n d u c t determined that censure was the appropriate sanction. The EEOC found probable cause with respect to the complaint filed by M s . Bland and, after conciliation failed, issued a N o t i c e of Right to Sue. Ms. Bland filed suit in the Federal District Court for t h e Eastern District of New Y o r k , alleging s h e had been sexually harassed o v e r a twelve year period a n d retaliated against when she complained. She sued J u s t i c e Shaw and the New Y o r k State Office of Court Administration. T h e State of New Y o r k , recognizing that under Public Officers Law 5 17 the duty of the State to defend is broader than the duty to indemnify, (See L o R u s s o v. N e w York S t a t e Office of C o u r t Administration, 229 2 [* 4] A D 2 d 995 [4'" Dept. 19961)' provided Justice Shaw with independent counsel. United States District Court Judge Edward R. Korman, in a March 2 0 0 3 decision, dismissed all of the claims brought by Ms. Bland against the State of N e w York and the Office of C o u r t Administration, dismissed Ms. Bland's claims relating to retaliation and declined Ms. Bland's application to give preclusive effect to the findings of the Commission on Judicial Conduct and to award her judgment. Justice Shaw commenced the instant a c t i o n in Kings County in F e b r u a r y 2004 and the case was transferred to New Y o r k County in March. The plaintiff seeks a judgment that declares that the State of New Y o r k is obligated and required to indemnify Judge Shaw, pursuant to Public Officer's Law 5 17, as a result of settlement of or a n y verdict which might be rendered against him in the action brought by Ms. Bland in Federal court. The Attorney General moves to dismiss the complaint because it: 1) is premature and 2) fails to state a cause of action. The plaintiff cross-moves for summary judgment and the co-defendant Bland joins in that application. The court recognizes t h a t .. without indemnification from the State of New York, Ms. Bland's successful prosecution in the Federal action may result in a pyrrhic victory. Nonetheless, the Attorney General's motion to be dismissed must be granted. 3 [* 5] . T h e Action is Premature The Attorney General a r g u e s that a literal reading of Public Officer's L a w 5 17(3) ( a ) & ( d ) compels the conclusion that the acti.on is premature in that no right to indemnification exists prior to a judgment or settlement (Messinger v . Y a p , 203 AD2d 870 E3'" D e p t . 19941) and that the right to indemnification only arises after a settlement or judgment ( F r o n t i e r Ins. Co. v. S t a t e , 197 AD2d 177 [ 1 9 9 4 ] ) . This conclusion is in accordance with the principle that a right, unknown at common law, created by statute, must be strictly construed (McKinney's S t a t u t e s § 301; Bose v . U n i t e d Employment Agencies, 200 Misc. 176 [Mun. Ct., Kings County 19511). The defendant Bland, in an attempt to avoid dismissal, has presented to the court a letter of "settlement" of the Federal action. The letter in essence provides that the State of New Y o r k will pay, Justice Shaw a n d Ms. Bland w i l l settle t h e Federal action f o r $275,000 inclusive of costs a n d attorneys' fees. This, in the court's opinion, is not a "settlement" as envisioned by the statute because it is conditioned upon the Attorney General's willingness to pay, which the Attorney General h a s already declined. The court might be inclined to dismiss or to h o l d this proceeding in abeyance pending a settlement or verdict b u t for the fact that it is the warrants outright dismissal on court's opinion that this matter the merits. 4 [* 6] The Complaint F a i l s to State a Cause o f Action Public Officers Law 5 1 7 ( 3 ) ( a ) requires the State to indemnify an employee only where "the act or omission from which such judgment or settlement arose occurred while the employee was acting within the scope of his public employment or duties" and further provides that "the duty to indemnify . , . shall not arise where the injury or damage resulted from intentional wrongdoing on the part of the employee". The allegations with respect to Justice Shaw in the Federal Action (Atty Gen'l's Ex. A), were summarized b y Judge Korman in his decision o f March 7, 2004 ( B l a n d v. S t a t e of N e w Y o r k , 263 F.Supp.2d 526, 532 ( E D N Y 2003) as follows: The complaint alleges that shortly after Ms. Bland went to work as Justice Shawls secretary he began to physically touch her in an uninvited, unprofessional and inappropriate manner. His conduct included but was not limited to pulling her onto his lap, holding her hand, massaging her shoulders, cupping the side of her breast, intertwining his pinky f i n g e r in hers, and sitting uncomfortably close to her rather than on his own side of h i s desk. Defendant Shaw continued engaging in such inappropriate behavior throughout Ms. Bland's employment. [Complaint] ¶ ¶ 24-26. Plaintiff claims to have objected to this conduct, and to have repeatedly told him that it was unprofessional and unacceptable. Plaintiff claims not to have condoned this conduct in any manner. Id. Plaintiff also makes claims about verbal harassment, including comments that plaintiff's breasts or "tits" were "voluptuous"; that her husband "never gets thirsty"; that she was losing her "titties and ass" when she had begun to lose weight; that an "old man [the judge] needed a little excitement in h i s life"; that he did not like it when s h e wore loose clothing to the office; that her hips were "wide and sexy"; that she should be having sex, and that she should be having sex with him; and that her l i p s were "sexy, "big, "wide" and "voluptuous. Plaintiff alleges I' 'I 'I 5 [* 7] that Justice Shaw also told her about men's pleasure at s u c k i n g on breasts, and exhibited gestures depicting such acts, as well as indicating the size of her breasts with his hands. Id. '3 ¶ 27-28, 42, 48. Plaintiff also alleges that Justice Shawls requirement that she use the bathroom in chambers threatened her sense of safety and increased her anxiety. I d . ¶ ¶ 29-30. Plaintiff further claims that Justice Shaw described affairs he had while married, asked intimate questions, routinely tried to kiss her, pulling her tightly toward him. At least on one occasion he kissed her and p u t his tongue into her mouth. He is alleged to have asked her to "give an o l d man a hug" and to have asked her to have sex with him. Id. ¶ ¶ 41-44. H e is also alleged to have described medical procedures he underwent in an obscene way and referred to plaintiff's "big p i n k nipples." Id. ¶ ¶ 55, 56. Plaintiff alleges she felt disrespected and degraded and became depressed, anxious, emotionally distraught and suffered from migraine headaches. Id. ¶ 51. Justice Shaw is also claimed to have said a number of disparaging things to her about darkskinned African-American women, stating that he preferred women who were lighter-complected, such as Ms. Bland. ¶ ¶ 33-35. Shaw repeatedly asserted to plaintiff that he had the power to fire her, threatening her with the loss of her job if she did not acquiesce or if she complained. Justice Shaw asks this court to assume, arguendo, the accusations of Ms. Bland are t r u e and "since a l l of the plaintiff's [i.e. Bland's] grievances arise out of actions committed in the employment relation and in the course of regular working hours, it cannot be said t h a t such a c t s are not within the purview of those f o r which Justice Shaw would be entitled to indemnification. . . " (Plaintiff's Counsel Aff. at p . 5 ) . This court cannot emphasize how strongly it disagrees. Assuming the allegations to be true, it is clear that the a c t s complained of are outside the scope of employment and constitute an intentional tort for which indemnification will not lie. 6 Our [* 8] courts have h e l d that sexual assault or abuse perpetrated by an employee is n o t in furtherance of an employer's business a n d is a " c l e a r departure from the scope of employment, having been committed f o r wholly personal motives." C h a r i t y Hospital, 9 ( J u d i t h M. v. Sisters of 3 N Y 2 d 932, 933 [1999]; see also N.X. v. C a b r i n i Medical Ctr., 97 NY2d 247 [2002]); Bowman v. S t a t e of N e w York, - A D 3 d -, 2004 WL 1 9 0 0 3 8 2 [ l S Dept. 20041. t Moreover, Sexually motivated conduct uniformly has been characterized as "intentional". ( S e e A l l s t a t e Ins. C o . v. M u g a v e r o , 79 N Y 2 d 153 [1992]; A l l s t a t e Ins. C o . v. O l e s , 838 F.Supp. 46 [ E . D . N . Y . 19931). Thus in an analgous situation, the Appellate Division held that an insurance policy did not provide coverage against a claim of sexual harassment, where the policy limited coverage to acts within t h e scope of the employee's duties, because the intentional act of harassment was not within the scope of employment and did not advance the employer's interest. (Somers v. T i t a n Indem. Co., 289 A D 2 d 5 6 3 , 564 [ 2 n d Dept. 20011). Accordingly, and for the reasons set forth, plaintiff is not entitled t o indemnification under Public Officers Law 5 17. The motion of The A t t o r n e y General to dismiss t h e complaint is granted and the plaintiff's cross-motion for summary judgment is denied. Moreover, this court deems the instant action as without merit and contrary to existing law and believes that it cannot be 7 [* 9] supported by a reasonable argument for an extension, modification or reversal of existing law. The complaint and papers submitted by t h e plaintiff f a i l to elucidate, other than in conclusory terms, how sexually harassing a secretary might constitute acts within the scope of his public employment o r duties as a judge as opposed to an intentional wrongdoing for entirely personal motives. The absence of any rational explanation as to how sexual harassment m i g h t constitute acts within the scope of employment leads the c o u r t to consider imposing sanctions on the plaintiff, in accordance with the Rules of the C h i e f Administrator, 22 NYCRR § 130-1.1, and only the absence of case law specifically on point warrants restraint. Accordingly it is ORDERED that the complaint is h e r e b y dismissed and the Clerk of the C o u r t is directed to enter judgment accordingly. This memorandum opinion constitutes the decision and o r d e r of t h e C o u r t . Dated: 6 f 8
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