United States District Court, S.D. New York
June 15, 2005.
ELIEZER WAHHAB, and AMEHRA BROWN, Plaintiffs,
THE CITY OF NEW YORK, NEW YORK CITY POLICE OFFICERS SAMUEL RUSHING, Shield #6377 and DAVID E. MARTIN, Shield #88157, THE GALLERY AT FULTON ST., LLC, TOP POTATO PLUS CORP., THEODORE PRIFTAKIS, Individually and as Owner/Manager of Top Potato Plus Corp., CANNADY SECURITY CO., HENRY CANNADY, Individually and as Owner of Cannady Security Co., SECURITY GUARD JOVAN ROUSE, and SECURITY GUARDS DOE ONE THROUGH FIVE, not yet identified, Defendants.
The opinion of the court was delivered by: CONSTANCE MOTLEY, Senior District Judge
MEMORANDUM OPINION AND ORDER
The Gallery at Fulton Street, LLC, Samuel Rushing and David E.
Martin, defendants in the above-captioned matter, which is
scheduled for trial in this Court on June 22, 2005, have
requested a conference with the Court. Defendants claim that the
City of New York ("City") is statutorily obligated to indemnify
defendants Rushing and Martin, notwithstanding the City's
previous settlement with the plaintiffs.
Whether an employee is "entitled to representation by the
Corporation Counsel and indemnification by the city are to be
determined in the first instance by the Corporation Counsel."
Williams v. New York, 64 N.Y.2d 800, 802 (1985). § 50-k(2) of
New York's General Municipal Law describes the criteria by which
the City determines whether to provide representation and
indemnification to its employees. § 50-k(2) provides that "At the
request of the employee and upon compliance by the employee with
the provisions of subdivision four of this section, the city
shall provide for the defense of an employee of any agency in any
civil action or proceeding in any state or federal court. . . ."
N.Y. GEN. MUN. LAW § 50-k(2). Counsel for the City argues in opposition to defendants' application that
defendants Rushing and Martin did not request representation from
the City, as clearly required by the statute. Defendants' reply
that the City was "aware" of the suit against its employees is
unpersuasive. Defendants cite no authority for the proposition
that mere notice of a suit against employees of the City excuses
compliance with the statutory requirements. The statute does not
require the City to determine whether an employee is entitled to
representation prior to a request for representation, especially
where, as here, the employees did not request representation, and
as defendants point out, in fact sought and received separate
Defendants' further argument, addressing the Court's
jurisdiction over a third-party indemnification action, is moot.
Accordingly, defendants' request is hereby DENIED.
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