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MERCURIO v. CITY OF NEW YORK

September 6, 1984

GUY MERCURIO, Plaintiff, against THE CITY OF NEW YORK, ROBERT MAHONEY, ALBERT CRONK, ROBERT SIMILE, JAMES BERGEN, MARTIN McGORTY, "JOHN" LOWERY, (said first name being fictitious), "JOHN" CARTY (said first name being fictitious) and "JOHN DOE" (said name being fictitious), Defendants.


The opinion of the court was delivered by: NICKERSON

MEMORANDUM AND ORDER

NICKERSON, District Judge

This case is before the court on motions by the individual defendants for reimbursement from defendant the City of New York (the City) of their costs, including attorney's fees, in the defense of the action.

 Plaintiff claimed, pursuant to 42 U.S.C. § 1983 and New York common law, that while he was incarcerated at the City Police Department's Queens Central Booking facility on March 17, 1980 defendants Bergen, Cronk, Mahoney, McGorty, and Simile, then New York City police officers, beat him without justification. Plaintiff alleged further that defendant Carty, then a Sergeant in the City Police Department, failed to halt the beating, that the individual defendants did not provide him with proper medical care, and that the City was liable to plaintiff for inadequately training and supervising them and for failing to provide proper equipment to them.

 At trial the City did not dispute plaintiff's account of the incident. The court dismissed all claims against McGorty at the close of the plaintiff's case. At the end of the entire case the jury returned a verdict for all remaining defendants on all counts.

 The City Corporation Counsel had refused from the outset to represent the individual defendants other than Carty because Police Department disciplinary charges for their acts were pending against them. On April 26, 1982 the Police Commissioner approved stipulations disposing of those charges and providing, among other things, that the disposition did not constitute an adjudication of the officers' guilt or innocence. Subsequently the Corporation Counsel, which had represented Carty, took the position that he had acted improperly and moved to be relieved as counsel because of the conflict of interest. Judge Platt granted the motion, and Carty retained private counsel.

 The individual defendants pleaded cross-claims against the City for indemnity and for payment of their expenses. The court treats the present applications as motions for summary judgment on the cross claims.

 The individual defendants' rights, if any, to representation and reimbursement arise under state law. Because there is no diversity of citizenship between the City and any of the individual defendants, this court's jurisdiction over the cross-claims is ancillary. The court determines in its discretion that the policies of judicial economy, convenience, and fairness to litigants justify retention of jurisdiction over the ancillary claims after the disposition of the federal civil rights claim. See Stamford Bd. of Educ. v. Stamford Educ. Ass'n, 697 F.2d 70 (2d Cir. 1982).

 The only statutory authority for the provision by the City of a defense to civil actions against City employees is Section 50-k of the New York General Municipal Law. Section 50-k(2) provides that, upon compliance with certain procedural requirements not in issue here, the City "shall provide for the defense of an employee" in an action

 arising out of any alleged act or omission which the corporation counsel finds occurred while the employee was acting within the scope of his public employment and in the discharge of his duties and was not in violation of any rule or regulation of his agency at the time the alleged act or omission occurred.

 Section 50-k(2) provides that when the act or omission upon which the court's proceeding is based is also the basis of a disciplinary proceeding by the employee's agency against the employee,

 representation by the corporation counsel and indemnification by the city may be withheld (a) until such disciplinary proceeding has been resolved and (b) unless the resolution of the disciplinary proceeding exonerated the employee as to such act or omission.

 The City argues that its refusal to represent the individual defendants was mandated by the quoted provisions because the disciplinary proceedings did not exonerate any defendant and in any event the Corporation Counsel found that the individual defendants violated applicable rules and regulations. The City says that the exclusive means to challenge the Corporation Counsel's determination was a proceeding pursuant to Article 78 of the N.Y.C.P.L.R., and that defendants forfeited that remedy by failing to bring such a proceeding within four months of notice of the adverse determinations. N.Y.C.P.L.R. § 217.

 While Section 50-k(2) speaks of the City's duty to "provide for the defense," it seems clear, particularly from Section 50-k(5), that the entire section authorizes representation only by the Corporation Counsel and "does not provide for representation of City employees by private attorneys at City expense where there is a conflict of interest between the City and the employee." 1981 Report of the Law Revision Commission, 1981 McKinney's Session Laws of New York, Vol. 2, p. 2318; accord, Accardi v. City of New York, No. 28842/82 (Sup. Ct. N.Y. Co.)(decided June 16, 1983), p.5. In this respect the language of Section 50-k is quite unlike that of the analogous statute concerning state employees. N.Y. Pub. Officers Law § 17(2)(b). It is therefore ...


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