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MOTHERSELL v. CITY OF SYRACUSE

January 22, 1997

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



The opinion of the court was delivered by: SCULLIN

 Introduction

 Presently before the Court is Defendant Edgar Prue's ("Appellant's") appeal of Magistrate Judge Gustave J. DiBianco's September 13, 1996 Order. The underlying action concerns a civil rights action brought pursuant to 42 U.S.C. § 1983 by the Plaintiff, Ivan Mothersell, based on the alleged use of unlawful force by the Defendants, Burke and Prue, formerly Syracuse City Police Officers. The present matter concerns a dispute between Defendants Prue and the City of Syracuse ("City") over the City's duty to reimburse the Appellant for attorney's fees in connection with the underlying action. In his September 13 Order, Judge DiBianco found that the Appellant was entitled to reimbursement for his legal expenses by the City of Syracuse as long as Appellant selected one of the attorneys on the City's approved list.

 The complaint alleges that on July 16, 1994, the Defendants Prue and Burke arrested the Plaintiff outside of Plaintiff's home in Syracuse, New York. The Plaintiff further alleges that the Defendants, while driving the Plaintiff to jail, stopped in a parking lot and beat the Plaintiff with a nightstick while the Plaintiff's hands were handcuffed. *fn1" The Plaintiff's § 1983 claims against the individual Defendants are premised on these allegations. In addition, Plaintiff brings a Monell claim against the City for failing to properly train and supervise Defendant Prue.

 The City initially undertook the individual defense of both Defendants Burke and the Appellant. Upon the City's determination that there was a potential conflict of interest between the City and the Appellant, however, the City advised the Appellant that he had to be represented by separate counsel. The City agreed to reimburse the Appellant for his reasonable attorney's fees provided he chose one of three attorneys from a list provided to him by the City. Prue rejected the attorneys on the list, and retained the firm of DePerno, Khanzadian, McGrath & Lalonde ("DePerno law firm") The DePerno law firm notified the City that it had been retained by the Appellant and that it was Appellant's position that he had an absolute right to choose any attorney at the City's expense. In a pretrial conference with Magistrate Judge DiBianco, counsel for the appellant raised this disputed issue of who would bear the expense of the Appellant's representation. Judge DiBianco requested briefing on the matter from the parties.

 The City made two arguments in its brief. First the City argues that it was not required to pay the Appellant's legal fees if Appellant refused to select one of the attorneys from the list provided by the City. Second, the City argued that the DePerno firm should be further barred from representing the Appellant because of a conflict of interest created by its involvement in other litigation with the City. In response, the Appellant argued that he is entitled to the attorney of his choice, and that the City is legally required to reimburse him for his attorney's fees.

 In an Order dated September 19, 1996, Judge DiBianco found that the Appellant is entitled to the attorney of his choice, however, the City is entitled to limit the choice of attorneys for which they will reimburse the Appellant. Judge DiBianco further found that there was no ethical conflict of interest apparent in the representation of the Appellant by the DePerno law firm. Judge DiBianco ordered that within thirty days the Appellant must complete one of the following three options: (1) have the DePerno law firm file a notice of appearance on the Appellant's behalf, and pay his own attorney's fees, (2) select one of the attorneys from the list provided by the City, and have the City pay his legal expenses, or (3) file a notice of appearance declaring that he will proceed pro se.

 Appellant appeals this Order, arguing that Judge DiBianco's findings were clearly erroneous in that the City is required by state law to reimburse the Appellant for representation by the attorney of his choosing.

 Discussion

 Appellant argues that the City has adopted New York Public Officers Law § 18, and that § 18 requires the City to reimburse the Appellant for counsel of his choosing in the present action. Appellant further argues that even though the City's reimbursement law, Local Law No. 11, authorizes the City to limit the attorney choices of a public officer in the Appellant's position, the City was not authorized to amend Public Law § 18 in this manner. The Appellant also argues that Judge DiBianco erred in interpreting General Municipal Law § 50-j to authorize the City's actions in limiting Appellant's choice of counsel. Finally, the Appellant argues that the act of limiting his choices of outside representation by the City in and of itself creates an ethical conflict of interest. Appellant's arguments essentially restate his original arguments before the Magistrate. Pursuant to Fed. R. Civ. P. 72(a), the Court will set aside Judge DiBianco's Order only upon a finding that it is "clearly erroneous or contrary to law."

 Public Officers Law § 18(3) provides that a "public entity shall provide for the defense of an employee in any civil action or proceeding, state or federal, arising out of any alleged act or omission which occurred . . . while the employee was acting within the scope of his public employment or duties." N.Y. Pub. Off. Law § 18(3)(c) (McKinney 1988). It further provides that "the employee shall be entitled to be represented by private counsel of his choice in any civil action or proceeding whenever the chief legal officer . . . determines that a conflict of interest exists . . . ." § 18(3)(b). Section 18 by its express terms, however, only applies to those municipalities "whose governing body has agreed by the adoption of local law, by-law, resolution, rule or regulation (i) to confer the benefits of this section upon its employees, and (ii) to be held liable for the costs incurred under these provisions. § 18(2)(a).

 Appellant argues that the City adopted § 18 of the Public Officers Law when it enacted Local Law No. 11 of 1982, because it utilizes similar language to that of § 18. Additionally, the Appellant argues that the City's Corporation Counsel references § 18 in its various letters to the Appellant. Judge DiBianco found that, although Local Law 11 was similar to § 18 in many ways, it left out the provision in § 18(3)(b) that provides a municipal officer his choice of counsel. Rather, Local Law 11, in relevant part, provides that "the employee shall be entitled to be represented by private counsel selected by the board of estimate of the city [sic] of Syracuse." Syracuse, N.Y., Local Law § 12-162. This Court finds, as did Judge DiBianco, that the City did not adopt § 18 of the Public Officers Law because the City Common Council did not expressly adopt it by local law, as required by § 18(2)(b). Thus § 18 does not create any rights in favor of the Appellant. ...


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