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MOTHERSELL v. CITY OF SYRACUSE

September 13, 1996

IVAN MOTHERSELL, Plaintiff,
v.
CITY OF SYRACUSE, EDGAR PRUE, and JOHN BURKE, III, Defendants.



The opinion of the court was delivered by: DI BIANCO

 Presently before the court is a dispute involving defendant Edgar Prue's choice of private counsel to represent him in this Section 1983 action, and whether the City of Syracuse is obligated to pay for the cost of an attorney selected by defendant Prue. On June 24, 1996, oral argument was heard on these issues. Letter briefs were subsequently submitted by the City and by Deperno, Khanzadian, McGrath & Lalonde ("the Deperno firm"), the firm chosen by defendant Prue to represent him. Pursuant to the court's order of August 21, 1996, the Deperno firm submitted a reply brief.

 BACKGROUND

 The complaint alleges that on July 16, 1994, defendants Prue and Burke, then Syracuse Police Officers, arrested plaintiff outside of plaintiff's home in Syracuse, New York. Plaintiff claims that, while driving him to the jail, the defendants stopped in a "dimly lit parking lot," where defendant Prue struck plaintiff with a "nightstick" about the legs, face and mouth. Plaintiff claims that his hands were handcuffed behind his back during the incident, and that defendant Burke did not intervene. Plaintiff further alleges that the City of Syracuse, knowing of defendant Prue's history of misconduct, failed to properly train or supervise defendant Prue.

 This action was commenced, pursuant to 42 U.S.C. § 1983, on October 11, 1995. The City initially undertook the defense of defendants Prue and Burke, but subsequently advised defendant Prue that, because of a potential conflict of interest between Prue and the City, Prue should be represented by private counsel. The City provided Prue with a list of three attorneys from which Prue could choose to represent him, "and whom the City of Syracuse will reimburse for reasonable legal fees incurred in representing you in this action." Prue apparently rejected the attorneys on the list, and instead "retained" the firm of Deperno, Khanzadian, McGrath & Lalonde. *fn2"

 DISCUSSION

 1. Choice of Counsel and Reimbursement:

 The City claims that it may limit Prue's choice of private counsel to those on the three-attorney list provided by the City. Prue argues that he is entitled to choose his own private counsel and still have the city reimburse him for attorneys fees.

 As Prue states, section 18 of New York's public Officers Law explicitly states that an employee "shall be entitled to be represented by private counsel of his choice in any civil action or proceeding whenever the chief legal officer of the public entity . . . determines that a conflict of interest exists." N.Y. Pub. Off. Law § 18(3)(b) (emphasis added). The provisions of section 18, however, apply only to public entities whose governing bodies have "agreed by the adoption of local law . . . (i) to confer the benefits of this section upon its employees, and (ii) to be held liable for the costs incurred under these provisions." N.Y. Pub. Off. Law § 18(2)(a). The City of Syracuse has enacted a local law which is similar to Section 18 in many ways, but does not give an employee his choice of private counsel. Rather, the local law provides that "the employee shall be entitled to be represented by private counsel selected by the board of estimate of the city of Syracuse." *fn3" Syracuse, N.Y., Local Law § 12-162 (emphasis added) (City's Brief, Ex. D).

 Prue argues in his reply brief that the City's local law is invalid because, by enacting Public Officers Law § 18, the state preempted municipalities from enacting legislation relating to the defense and indemnification of claims against its employees. Prue primarily relies on subsection 12 of Public Officers Law § 18 as evidence of the state's intention to preempt local legislation. Subsection 12 provides:

 
Except as otherwise provided in this section, benefits accorded to employees under this section shall be in lieu of and take the place of defense or indemnification protections accorded the same employees by another enactment; unless the governing body of the public entity shall have provided that these benefits shall supplement, and be available in addition to, defense or indemnification protection conferred by another enactment.

 N.Y. Pub. Off. Law § 18(12). However, it is clear from subsection 2 that the state did not intend to preempt local legislation in this area. Subsection 2 limits the applicability of Public Officers Law § 18 to public entities that agree, by local legislation, to confer the section's benefits on their employees and to be liable for the costs incurred thereunder.

 Prue further argues that section 18 of the Public Officers Law and section 50-j of the General Municipal Law require the City to reimburse Prue for attorney fees incurred in connection with his defense. Having found that the City's local law is not preempted by section 18 of the Public Officers Law, the court looks to the relevant provision of the local law, which provides that, "upon compliance with section 4 [section 12-164] herein the city shall provide for the defense of the employee in any civil action," which includes payment of "reasonable attorneys' fees and litigation expenses." Syracuse, N.Y., Local Law § 12-162(a), (b). Section 12-164 requires that (a) the employee deliver to corporate counsel originals of the summons, complaint, and other documents with a written request for the city to provide a defense, and (b) the employee fully cooperate in the defense of the action. If the employee "fails to or refuses to cooperate in the formation or presentation of his defense, the city may withdraw its representation upon ten (10) days' written notice to the employee." Syracuse, N.Y., Local Law § 12-164. ...


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