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September 3, 1986

NORMAN RUDOW, Plaintiff,

The opinion of the court was delivered by: SAND

HONORABLE LEONARD B. SAND, United States District Judge.


 Plaintiff, Norm Whitman, the City of New York and its Commission on Human Rights ("the Commission"), alleging three grounds for relief. Plaintiff's first and third claims are brought under 42 U.S.C. § 1983 and allege that his "due process" rights under the fourteenth amendment to the United States Constitution were violated by defendant Whitman's conduct during certain Commission proceedings, subsequent state court proceedings, and occasions related thereto. Plaintiff's second claim for relief charges the same alleged wrongs under the New York Judiciary Law and pursuant to that law, seeks treble damages. Defendant Whitman has moved to dismiss plaintiff's complaint pursuant to F.R.Civ.P. 12(b)(6) for failure to state a claim upon which relief can be granted. Whitman also alleges that this "case qualifies as the kind of meritless and vexatious action justifying [an] award [of attorneys' fees]" pursuant to 42 U.S.C. § 1988. Defendants City of New York and the Commission (together the "City defendants") have moved for summary judgment pursuant to F.R.Civ.P. 56.

 For the reasons elaborated below, we grant defendant Whitman's motion to dismiss, but deny her motion for attorneys' fees. In addition, we grant the City defendants' motion for summary judgment on plaintiff's federal claims, but not on plaintiff's state cause of action.


 Plaintiff is the former president of the Mid-Atlantic region of Litton Office Product Centers. The tortured history of this case began on August 6, 1981, when Brenda Alvarez, a former Litton employee over whom plaintiff had indirect supervisory responsibilty, filed a complaint with the Commission. Alvarez contended that she had been sexually harassed by Litton employees, including plaintiff, who allegedly engaged in a pattern of sexual advances and unconsented touching. A hearing on Alvarez's complaint was held before the Commission in May, 1982. There defendant Whitman prosecuted the complaint on behalf of the Commission in her capacity as staff attorney. Whitman later became Acting General Counsel to the Commission and served in that capacity from approximately September, 1982 to December, 1982 when she became General Counsel. She remained in that post until September, 1985, when she resigned. Exh. G (at P1) to Affidavit of Julian W. Friedman ("Friedman Aff.").

 At the Commission hearing, Alvarez testified along with two other female. Litton employees regarding plaintiff's repeated sexual advances. Alvarez also testified that a Dr. Nam Geun Yoo had prescribed valium for her and had given her a note (admitted into evidence), that she in turn showed to her employer. This note confirmed Alvarez's treatment and stated that she was "suffering nervous condition and needs rest with medication, she is now taking valium 5 mg." Exh. 2 to Affidavit of Julian Bazel ("Bazel Aff.").

 The Commission sustained Alvarez's complaint in a decision and order issued January 10, 1983 and awarded her $15,188.97 in damages. Exh. 3 to Bazel Aff. The monetary award was settled by Alvarez and Litton, without Rudow contributing. The Supreme Court, New York County, upon Rudow's petition for review, confirmed this determination on March 17, 1984. Rudow v. New York City Commission on Human Rights, 123 Misc.2d 709, 474 N.Y.S.2d 1005 (N.Y.Sup.Ct. 1984). Plaintiff then appealed to the Appellate Division of the New York Supreme Court. While that appeal was being briefed, however, plaintiff learned that Alvarez's testimony concerning Dr. Yoo had been false and that the doctor's note was a forgery, facts which Alvarez subsequently admitted. Plaintiff moved to supplement the record before the Appellate Division to include this information. The Appellate Division, which had denied an earlier motion by Rudow to supplement the record with evidence that his previous attorney had defrauded both the Commission and him, granted plaintiff's motion. Nevertheless, it affirmed without opinion the decision of the Supreme Court. The Court of Appeals on December 17, 1985, denied plaintiff's motion for leave to appeal.

 While these proceedings were taking place, counsel for plaintiff began a letter campaign for purposes of bringing Alvarez's malfeasance to the attention of City officials. After failing to receive what he considered to be a satisfactory response, Rudow filed a notice of claim with the City Comptroller asserting that he was filing against all the instant defendants as well as other Commission employees and officials a $15 million claim alleging deprivation of his rights. This was followed by the appearance on July 17 and 18, 1985 of two articles in the New York Post publicizing the Alvarez matter. Thereafter, the Corporation Counsel, by letter dated August 26, 1985, notified the Court of Appeals that it would advise the Commission's chairperson that the Commission's order would have to be vacated for purposes of taking additional evidence. The Corporation Counsel also requested that the Court of Appeals defer action on the pending motion. Prior to doing this, the Corporation Counsel wrote to Alvarez informing her of the letter he would send to the Court of Appeals. The Corporation Counsel told Alvarez: "[W]hatever impression you may have had in the past, you should understand that there is no attorney-client relationship between you and any City Attorney. This means that if your interests are to be represented, you must either represent yourself or secure counsel." .Exh. 34 to Bazel Aff.

 In response to the Corporation Counsel's letter, Alvarez commenced a proceeding of her own pursuant to Article 78 of the New York Civil Practice Law & Rules. She sought an order that would prohibit the Corporation Counsel from advising the Commission to vacate its prior order. Her application was denied, but before the Commission had an opportunity to vacate its order and reconsider Alvarez's claim against Rudow, Alvarez and Rudow jointly requested that no further action be taken. They then entered into a stipulation, dated March 25, 1986, requesting again that the Commission conduct no further proceedings on Alvarez's complaint, and waiving any rights they may have had to further proceedings on the matter. Exh. 45 (at page 3) to Bazel Aff.

 We return now to defendant Whitman's dealings with Alvarez. Whitman first met Alvarez in 1981 when Alvarez initially filed her complaint with the Commission. Reply Affidavit of Lois Whitman, dated June 2, 1986, at P1. Following what she alleges was "an almost invariable practice in the agency during [her] seven years of service there," Whitman represented both the complainant, Alvarez, and the Commission in the administrative hearings and court proceedings that followed. Id. at P2. Whitman also claims that the Commission attorneys regularly informed complainants (and she so informed Alvarez at the outset) that the attorney-client privilege would cover all of their communications. Exh. G. (at PP3-4) to Friedman Aff.

 Subsequent to the administrative hearing, defendant Whitman received authorization to act as "Special Assistant Corporation Counsel" in actions and proceedings in the Supreme Court for review or enforcement of the Commission's actions. Thus, when plaintiff petitioned for review of the Commission's order in the Supreme Court, it was Whitman who defended that order. While her delegated authority did not explicitly authorize representation of Alvarez, Whitman represented in court papers that she was acting on Alvarez's behalf. Bazel Aff. at P12. Whitman made the same representation in her first appearance in the Appellate Division. Bazel Aff. at P16.

 Whitman's appearance in the Appellate Division is subject to scrutiny for another reason. Her designation as "Special Assistant Corporation Counsel" did not cover judicial proceedings beyond the Supreme Court level. See Exh. 4 to Bazel Aff. Whitman claims she had observed Commission attorneys handle appeals before both the Appellate Division and the Court of Appeals during her tenure with the Commission, Exh. G. (at PP14-15) to Friedman Aff., and mistakenly believed she was authorized to appear in the Appellate Division. Whitman thus submitted papers in opposition to both plaintiff's motion to supplement the record and the appeal itself. The brief and affidavit Whitman submitted in opposition to Rudow's motion to supplement the record allegedly were not reviewed by either of the City defendants. Exh. A (at P5(e)) to Friedman Aff.

 When Whitman was first served with plaintiff's motion to supplement the record, she allegedly consulted with Alvarez and learned that the perjury and forgery contentions were true, facts Whitman did not report to the Commission. Exh. A. (at P5(c) & (d)) to Friedman Aff. Instead, Whitman disclosed Alvarez's admission in an ex parte communication to the Administrative Law Judge ("ALJ") who had presided over the hearing. In response, he allegedly advised Whitman that knowledge of the perjury and forgery would not have altered his ultimate determination. Exh. A (at P5(d)) to Friedman Aff. According to Whitman, her conduct was in conformity with her ethical obligations, and her papers neither admitted nor denied the veracity of plaintiff's allegations. Exh. G (at P10) to Friedman Aff.; see also Exh. B (at PP5-12) to Friedman Aff. Defendant Whitman continued to oppose supplementation of the record in a motion before the Appellate Division for reargument and in a motion before the New York Court of Appeals for leave to appeal.

 After the newspaper accounts regarding the case appeared in the New York Post in July, 1985, Whitman met with Marcella Maxwell, Chairperson of the Commission, and the Corporation Counsel. It was at this meeting that the City defendants allege they first became aware of the content of the papers Whitman had submitted in opposition to plaintiff's motion to supplement the record. Exh. A (at PP5 & 6) to Friedman Aff.; see also Exh. 41 to Bazel Aff. Whitman, however, alleges that at an April 5, 1985 meeting, she informed the Chief of the Appeals Division of the Corporation Counsel that the Alvarez case was on appeal. Exh. G (at P 13) to Friedman Aff. After apologizing for her misunderstanding as to the breadth of her special designation, Whitman claims she was informed that "Mr. Koerner . . . would not take the case away from [her], since [she] had won it at the Appellate Division[.] [She was] asked . . . to send [Mr. Koerner] copies of [her] brief to the Appellate Division and the decision." Exh. G (at 14) to Friedman Aff. Whitman claims she complied with Koerner's request and, in addition, sent memoranda to Chairperson Maxwell and to the Executive Director of the Commission, informing them of Koerner's determination. Id.


 A. Defendant Whitman's Motion to Dismiss

 Plaintiff has submitted both his own affidavit and that of his attorney, Julian W. Friedman, Esq., and, thus, urges the Court to treat defendant Whitman's motion as one for summary judgment. Defendant Whitman, in turn, has submitted her own reply affidavit in support of the motion. Under these circumstances, we will treat her motion to dismiss as one for summary judgment. *fn1" Therefore, the standard governing Rule 56 motions applies, and the motion may be granted only if there is "no genuine issue as to any material fact and . . . the moving party is entitled to judgment as a matter of law." F.R.Civ.P. 56(c). Moreover, in determining whether to grant summary judgment, we "must resolve all ambiguities and draw all reasonable inferences against the moving party." Katz v. Goodyear Tire & Rubber Co., 737 F.2d 238, 244 (2d Cir. 1984). Only if we are persuaded that the suit can have but one possible outcome may we grant summary judgment. See Reliance Insurance Co. v. Barron's, 442 F. Supp. 1341, 1343-44 (S.D.N.Y. 1977).

 Defendant Whitman contends that the doctrine of absolute immunity bars plaintiff's two federal claims and that the even broader state doctrine of absolute immunity bars his state claim. Plaintiff counters that absolute immunity is not applicable where its intended beneficiary has acted beyond the scope of her authority, jurisdiction and duties. More specifically, plaintiff claims that by acting on Alvarez's behalf while simultaneously representing the Commission, Whitman falls without the absolute immunity umbrella in the same way as do prosecutors who serve in a conflicting "dual capacity" as governmental and private advocates. Plaintiff also claims that since Whitman exceeded the bounds of her designated representation, she would not be entitled to absolute immunity under any circumstances with respect to her conduct at the appellate levels.

 1. The Federal Claims: Whitman's Dual Capacity

 The federal doctrine of absolute immunity shields from section 1983 liability those, such as defendant Whitman, who have served as government counsel in proceedings that are "functionally comparable" to judicial proceedings. Butz v. Economou, 438 U.S. 478, 513, 57 L. Ed. 2d 895, 98 S. Ct. 2894 (1977). "Functionally comparable" proceedings include civil and criminal suits as well as administrative proceedings. See, e.g., Ackerman v. State Board for Professional, 83 Civ. 7871 (S.D.N.Y. Nov. 16, 1984); see also Butz, supra, 438 U.S. at 504; Martin Hodas, East Coast Cinematics v. Lindsay, 431 F. Supp. 637, 642-43 (S.D.N.Y. 1977). The policy supporting this immunity grant relates to the cost that would otherwise be exacted, i.e., that government counsel would be unable to perform their duties without intimidation or harassment. Butz v. Economou, supra ; see also Imbler v. Pachtman, 424 U.S. 409, 424-25, 47 L. Ed. 2d 128, 96 S. Ct. 984 (1976). But for the doctrine, government attorneys "'might hesitate to bring forward some witnesses or documents' for fear that the proof might turn out to be false, subjecting them to liability." Barrett v. United States, Docket Nos. 86-6014, 86-6028, slip op. at 4873 (2d Cir. July 31, 1986) (quoting Butz, supra, 438 U.S. at 517). "Although the immunity may occasionally preclude redress for defamation, it recognizes the free speech needs of litigating adversaries." Id. at 4875. The doctrine is limited in application, however, to those government counsel working within the scope of their authority, jurisdiction and duties. See Imbler v. Pachtman, supra, 424 U.S. at 410, 418, 422.

 Plaintiff contends that the doctrine is inapplicable to defendant Whitman at all levels of her representation because she purported to be counsel not only for the Commission, but for Alvarez as well. Plaintiff argues that the conflict of interest inherent in this dual representation strips Whitman of her absolute immunity. We disagree.

 While the shield of absolute immunity may be lost by a prosecutor when acting on behalf of a private client, such a situation is not at all analagous to the circumstances here. In the former situation, prosecutors have been stripped of immunity because even though they were purporting to act in their public capacities, they were nevertheless advancing their own private interests. In such circumstances, courts have found that a grant of immunity would not advance the above-noted policy reasons that support the absolute immunity doctrine. See, e.g., Beard v. Udall, 648 F.2d 1264 (9th Cir. 1981) (no absolute immunity where a county attorney who also maintained a private practice acting in his private capacity petitioned a state judge to modify a client's original divorce decree and then, in his public capacity, caused a baseless criminal charge to be filed aginst his client's former husband); Brooks v. Fitch, 534 F. Supp. 129, 132-36 (D.N.J. 1981) (no absolute immunity if part-time prosecutor carried out retaliation related to his private practice through his access to prosecutor's office).

 Here, defendant Whitman had no private interest to further. She was a full-time City employee. Although the prevailing practice in her office called on her to represent the private interests of Commission complainants, *fn2" see text, supra ; see also Maloff v. City Commission on Human Rights, 46 N.Y.2d 908, 414 N.Y.S.2d 901, 387 N.E.2d 1217 (1979); defendant Whitman's Reply Memorandum at nn. 1 & 2, such representation was in furtherance of the law enforcement scheme designed to combat sex harassment and discrimination. *fn3" To deprive a Commission attorney of her absolute immunity under such circumstances would undoubtedly create in that attorney's mind the same apprehension about zealously prosecuting a claim that the absolute immunity doctrine seeks to dispel. Moreover, it would make the position of Commission attorney so fraught with personal risk that we think it likely many lawyers would be deterred from this form of public service.

 Plaintiff also contends that even if Whitman possessed absolute immunity in the early stages of this action, she lost it when her potential conflict of interest ripened into an actual conflict, i.e., when she learned of Alvarez's perjury. At that point, plaintiff contends, Whitman chose to act on behalf of Alvarez and not the Commission, first by arguing against allowing the record on appeal to be supplemented and then by arguing in favor of upholding the original decision finding Rudow liable. By so arguing, plaintiff contends, Whitman acted beyond the scope of her authority, jurisdiction and duties as a prosecutor and, therefore, should lose her absolute immunity. Again we disagree. At worst, Whitman made a serious error of judgment. Immunity, however, must protect not only correct decisions but erroneous ones as well if it is to serve its intended purpose. As the Second Circuit recently observed: "The immunity attaches to [a prosecutor's] function, not to the manner in which he performed it." Barrett v. United States, supra, slip op. at 4876. We note that a prosecutor cannot make these judgments with impunity; professional or even criminal sanctions can be imposed. But a government attorney can make these difficult decisions free from the fear of being harassed by civil law suits. That some civil suits with merit will be dismissed along with baseless suits is an unavoidable cost of the absolute immunity doctrine.

 2. The Federal Claims: Whitman's Authority on Appeal

 Plaintiff contends that inasmuch as defendant Whitman was not authorized to prosecute Alvarez's claims beyond the state Supreme Court level, in prosecuting the appeal she exceeded the scope of her authority and, therefore, is not entitled to absolute immunity.

 We reject this argument because we think it would raise bureaucratic form over substance. Plaintiff was at all times employed by the City. She was an attorney for the Commission on Human Rights, a City agency. Commission attorneys are legally empowered to represent the Commission in the state's appeals courts and apparently have done so on some occasions. Here, however, Whitman failed to obtain from the City's attorney, i.e., the Corporation Counsel, the appropriate designation to handle the appeal. Whitman concedes that she erred in failing to obtain the proper permission, but claims she was laboring under the mistaken impression that an official designation was unnecessary. No one here has questioned this stated reason for Whitman's failing to procure the designation. In any event, after the Appellate Division rendered its ruling, the Corporation Counsel, by his chief assistant, in effect ratified her action by allowing her to handle the appeal in the state's highest court, the Court of Appeals. Although the Chief Assistant Corporation Counsel now claims that he would not have allowed Whitman to handle the case at any appellate level had he been properly alerted beforehand, see Affidavit of Leonard Koerner at P 8, at no time during the prosecution of this claim did the City try to dissociate itself from Whitman's representation. And indeed, as Whitman points out, even now the City relies on the state court decision as res judicata.

 While Whitman's failure to obtain the proper designation might subject her to sanctions from her employer, we fail to see why it should cause her to lose her immunity from outside civil prosecution. She was, as far as both Rudow and the City were concerned, the City prosecutor in the case against Rudow.

 Further support for our holding is found in Lerwill v. Joslin, 712 F.2d 435 (9th Cir. 1983) which presented a more extreme case than the instant one of a prosecutor allegedly acting beyond the scope of his authority. The defendant in Lerwill, a part-time City attorney who was authorized to file only criminal charges based on City misdemeanor ordinances, was held absolutely immune from civil liability even though he presented a criminal complaint charging plaintiffs with violation of state felony statutes. He also successfully urged a Justice of the Peace to issue an arrest warrant for plaintiffs, set bail, and not allow plaintiffs, who ultimately spent 19 hours in jail, to ...

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