The opinion of the court was delivered by: SCHEINDLIN
SHIRA A. SCHEINDLIN, U.S.D.J.:
Third-party defendants The City of New York, New York City Department of Correction, and Anthony Schembri, as Commissioner of the New York City Department of Correction, move for an order pursuant to Fed. R. Civ. P. 12(b), 12(c), 21, and 56. They seek the dismissal of third-party plaintiff Salvatore Minutella's claim for indemnification. In the alternative, they seek a severance of the indemnification claim. For the following reasons each of these motions is denied.
Plaintiff John W. Harris commenced this action pursuant to 42 U.S.C. § 1983 against former New York City Department of Correction ("DOC") Officer Timothy Butler. Harris alleges that Butler and other correction officers assaulted him in violation of his constitutional rights. Harris subsequently filed an amended complaint naming Officers Salvatore Minutella, William Mays and Robert Rivera as additional defendants.
Based upon an investigation conducted by the DOC, and upon the outcome of proceedings by the Office of Administrative Trials and Hearings on December 3, 1992, the City declined to represent any of the individual correction officers. The Administrative Law Judge's Report and Recommendation to the Commissioner of the DOC stated that Butler used impermissible force against Harris, filed a false report and made false statements. The Report also found that Officers Minutella and Mays both failed to accurately report the use of force, filed false reports and made false statements. The ALJ recommended that Officer Butler be terminated and Officers Minutella and Mays be suspended for twenty days without pay. See Report and Recommendation, annexed as Ex. C to Third-Party Defendant's Notice of Motion to Dismiss and/or Summary Judgment.
Defendant Minutella, seeking indemnification, attorney's fees and damages, impleaded the City of New York, DOC, and former DOC Commissioner Anthony J. Schembri. Minutella subsequently dropped his claim for attorney's fees.
The City offers two grounds for dismissal of Minutella's claim for indemnification. First, the City argues that this Court has no jurisdiction over the claim because the state has exclusive jurisdiction with respect to indemnification claims against public officials. Second, the City argues that the indemnification claim must be dismissed as a matter of law because no such claim exists unless and until plaintiff obtains a judgment against the defendant in the underlying action.
A. Jurisdiction Over the Claim for Indemnification
1. State's Jurisdiction is Not Exclusive
New York General Municipal Law ("GML") § 50-k requires the City of New York to represent an employee in any proceeding which arises from the following:
any 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 ...