| Matter of Lemma v Nassau County Police Officer Indem. Bd. |
| 2017 NY Slip Op 00649 [147 AD3d 760] |
| February 1, 2017 |
| Appellate Division, Second Department |
[*1]
| In the Matter of Nicholas Lemma, Appellant, v NassauCounty Police Officer Indemnification Board et al., Respondents. |
Worth, Longworth & London, LLP, New York, NY (Mitchell Garber and HowardSterinbach of counsel), for appellant.
Carnell T. Foskey, County Attorney, Mineola, NY (Robert F. Van der Waag of counsel;James LaRusso on the brief), for respondents.
In a proceeding pursuant to CPLR article 78 to review a determination of the Nassau CountyPolice Officer Indemnification Board, dated May 22, 2009, determining that the petitioner wasnot entitled to defense or indemnification in an action entitled Crews v County of Nassau,pending in the United States District Court for the Eastern District of New York, under case No.CV-06-2610, the petitioner appeals from a judgment of the Supreme Court, Nassau County(Jaeger, J.), entered December 20, 2013, which, upon a decision of the same court dated May 3,2013, made after a nonjury trial pursuant to CPLR 7804 (h), denied the petition and dismissedthe proceeding.
Ordered that the judgment is affirmed, with costs.
The petitioner was a Nassau County Police Department (hereinafter NCPD) detectiveinvolved in the investigation of a robbery, for which Raheem Crews and two others werearrested. After the charges against Crews were dismissed, Crews commenced a federal actionagainst the NCPD and others, including the petitioner, alleging unlawful imprisonment and otherviolations of his civil rights (hereinafter the Crews action). The Deputy County Attorneysubmitted the matter to the Nassau County Police Indemnification Review Board (hereinafter theBoard) to determine whether the members of the police force named in the complaint would bedefended and indemnified in connection with the Crews action. On July 28, 2006, the Boarddetermined that defense and indemnification would be provided.
In 2009, the petitioner was deposed in the Crews action. The petitioner was the detectiveassigned to the robbery investigation. During his testimony, he revealed for the first time that hehad learned a few days after Crews was arrested that Crews was in jail on the date of the robberyand, therefore, could not have committed the robbery. Asked what he did with that information,he testified, "I kept it to myself and said 'Let the chips fall where they may.' " Althoughthe robbery occurred on March 26, 2005, due to a typographical error, the arrest report and felonycomplaint alleged that the robbery occurred on April 26, 2005. Crews, arrested on May 27, 2005,was in jail for four months before he was arraigned on an indictment, which alleged the correctrobbery date. The alibi was then discovered, Crews was released from jail, and the charges were[*2]thereafter dismissed.
Based on the petitioner's admission at his deposition, the Board reopened its originaldetermination to defend and indemnify him. After a hearing, the Board denied the petitionerdefense and indemnification, finding that his alleged acts were not committed while in the properdischarge of his duties and within the scope of his employment, as required by GeneralMunicipal Law § 50-l. The petitioner appealed the determination to the Board andanother hearing was held. In a determination dated May 22, 2009, the Board adhered to its denialof defense and indemnification.
The petitioner commenced this proceeding pursuant to CPLR article 78 to review the Board'sdetermination, arguing that the determination was arbitrary and capricious, lacked a factual basis,and was based on an interpretation of the statute which was contrary to law. The Supreme Courtdirected a nonjury trial pursuant to CPLR 7804 (h), after which the Supreme Court denied thepetition and dismissed the proceeding. The petitioner appeals.
Judicial review of administrative determinations not made after a quasi-judicial hearing islimited to whether the action taken by the agency was made in violation of lawful procedure, wasaffected by an error of law, or was arbitrary and capricious or an abuse of discretion (seeCPLR 7803 [3]; Matter of 9215 Realty,LLC v State of N.Y. Div. of Hous. & Community Renewal, 136 AD3d 925 [2016];Matter of Williamsburg &Greenpoint Parents: Our Pub. Schs.! v Board of Trustees, State Univ. of N.Y., 130 AD3d638, 639 [2015]). "When a statute is ambiguous and requires interpretation, the constructiongiven to the statute by an administrative agency responsible for its administration should beupheld by the courts, unless the agency's interpretation is irrational, unreasonable, or inconsistentwith the governing statute" (Matter ofBetter World Real Estate Group v New York City Dept. of Fin., 122 AD3d 27, 35[2014] [citations omitted]; see Matter of Toys "R" Us v Silva, 89 NY2d 411, 418-419[1996]; Matter of Robins v Blaney, 59 NY2d 393, 399 [1983]). "When presented with aquestion of statutory interpretation, [the] primary consideration 'is to ascertain and give effect tothe intention of the Legislature' " (Matter of DaimlerChrysler Corp. v Spitzer, 7 NY3d 653, 660[2006], quoting Riley v County of Broome, 95 NY2d 455, 463 [2000]). Where a statutedoes not define its terms, those terms must be given their ordinary meaning (see Matter of Better World Real EstateGroup v New York City Dept. of Fin., 122 AD3d 27, 35 [2014]).
General Municipal Law § 50-l provides: "Notwithstanding the provisions of anyother law, code or charter, the county of Nassau shall provide for the defense of any civil actionor proceeding brought against a duly appointed police officer of the Nassau county policedepartment and shall indemnify and save harmless such police officer from any judgment of acourt 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 suchpolice officer committed while in the proper discharge of his duties and within the scope of hisemployment. Such proper discharge and scope shall be determined by a majority vote of a panelconsisting of one member appointed by the Nassau county board of supervisors, one memberappointed by the Nassau county executive, and the third member being the Nassau county policecommissioner or a deputy police commissioner."
The petitioner contends that the Board irrationally interpreted the statute to limit defense andindemnification to those situations where it determines that the officer acted both withinthe scope of his or her employment and in the proper discharge of his or her duties. Hecontends that the terms should be applied interchangeably, since indemnification for punitivedamages would be inconsistent with a requirement for proper conduct. He argues that the Board'sinterpretation effectively repeals portions of the statute because no act that is so outrageous as tojustify punitive damages could ever be determined to be proper (see Marinaccio v Town of Clarence, 20NY3d 506, 511 [2013]).
The petitioner correctly identifies an ambiguity in the statute. However, the [*3]legislative history of General Municipal Law § 50-land the enactment or amendment of other public employee indemnification statutes around thesame time reveals that the Board's interpretation is consistent with the legislative intent. Thephrases "proper discharge of his duties" and "within the scope of his employment" were notintended to be interchangeable (cf.Matter of Sagal-Cotler v Board of Educ. of the City Sch. Dist. of the City of N.Y., 20 NY3d671, 675-676 [2013]). Rather, the word "proper" was intentionally added to this statute andlater statutes which provided for indemnification of punitive damages so as to excludeindemnification for intentional misconduct (see General Municipal Law§§ 50-m, 50-j [6]). The concern was that a proliferation of lawsuits seekingpersonal damages from officers, including punitive damages, was having a chilling effect onofficers in properly discharging their duties. The justification offered for the bill by its Senatesponsor emphasized that "[t]his bill does not provide blanket immunity but would alleviate[officers'] concern that their actions, although proper, may subject them to personalliability" (Mem in Support, Bill Jacket, L 1983, ch 872 at 7 [emphasis added]). Numerous lettersin support of the bill reflected the worry that juries could improperly impose punitive damages onofficers despite the fact that they "acted with unquestioned good faith" (Letter of SuperiorOfficers Assn, Bill Jacket, L 1983, ch 872 at 23). Accordingly, the Board's interpretation of thestatute was not irrational or unreasonable, but was consistent with the statute and its legislativeintent.
The statute vests the Board with the discretion to determine the issues of proper discharge ofduties and scope of employment, limited only by judicial review of whether a denial of defenseand indemnification is arbitrary and capricious (see Matter of Salino v Cimino, 1 NY3d 166, 172 [2003]; Matterof Williams v City of New York, 64 NY2d 800, 802 [1985]). Here, the Board'sdetermination that the petitioner was not acting within the scope of his employment was arbitraryand capricious (see Matter of Sagal-Cotler v Board of Educ. of the City Sch. Dist. of the Cityof N.Y., 20 NY3d at 675; Riviello v Waldron, 47 NY2d 297, 302 [1979]). However,its determination that the petitioner's failure to notify anyone that an incarcerated arrestee couldnot possibly have committed the robbery for which he was charged was not "committed while inthe proper discharge of his duties" was supported by the facts and was not arbitrary andcapricious (General Municipal Law § 50-l; see Matter of Williams v City ofNew York, 64 NY2d at 802). A court "may not substitute its judgment for that of the agencyresponsible for making the determination, but must ascertain only whether there is a rationalbasis for the decision or whether it is arbitrary and capricious" (Matter of Rodriguez v County ofNassau, 80 AD3d 702, 703 [2011]). Accordingly, the Supreme Court properly deniedthe petition and dismissed the proceeding.
The petitioner's constitutional argument, raised for the first time in his reply brief, is notproperly before this Court (see U.S.Bank N.A. v Dellarmo, 128 AD3d 680, 681 [2015]). Mastro, J.P., Maltese, Duffy andBrathwaite Nelson, JJ., concur.