The opinion of the court was delivered by: Joseph F. Bianco, District Judge
Plaintiffs Tyniera ("Tyniera") and Shanair ("Shanair") Hogan (collectively, "plaintiffs") commenced this action alleging claims pursuant to 28 U.S.C. § 1983 against Police Officers William Higgins ("Higgens") and Thaddeus Niksa ("Niksa") (collectively, "defendants") and the City of New York ("City").*fn1 Before this Court is a motion by defendants seeking to have the Court (1) make a pre-trial determination that they are entitled to indemnification by the City of New York, or, in the alternative, (2) have the jury determine if the officers were acting under the color of law and within the scope of their employment. The City opposes this motion, arguing that the Court should not determine a third-party crossclaim for indemnification prior to a decision by the Corporation Counsel on that issue after a review of the trial record and that such post-trial review should be by the Court, not a jury.
As set forth below, the Court concludes that, pursuant to substantive New York law, defendants' application to the Court for a ruling on indemnification prior to a decision by the Corporation Counsel is premature and the Corporation Counsel should not be required to make such a determination until he has had a reasonable opportunity to review the trial record. Moreover, the Court, not the jury, will review any challenges to the indemnification decision by the City. Therefore, the Court will retain jurisdiction to hear defendants' cross-claim, but will do so only after the City has had an opportunity to review the trial record (or a settlement agreement) and make its determination.
The instant case arises from an arrest of the plaintiffs in the vicinity of Guy Brewer Blvd. and Foch Blvd. in Queens, New York, on July 12, 2003, and the prosecution that followed such arrest. The evidence in the record is outlined in detail in the Court's Memorandum and Order, dated March 12, 2007, which denied the cross-motions for summary judgment. Thus, the Court presumes the parties' familiarity with the underlying facts of this case, as set forth in this Court's previous decision, and such facts are not repeated here.
On March 4, 2004, plaintiffs had a joint bench trial before the Honorable Joseph Zaya.*fn2 Judge Zayas found Shanair and Tyniera not guilty of disorderly conduct charges.
Plaintiffs then filed complaints against defendants with the N.Y.P.D. Internal Affairs Division and the Civilian Complaint Review Board ("CCRB"). The original complaints by the plaintiffs alleged abuse of authority and the use of excessive force. The excessive force allegations were found to be unsubstantiated, but CCRB did substantiate the abuse of authority allegations with respect to the initial stop of the plaintiffs by the defendants. The charges against defendants were dismissed after plaintiffs failed to appear on the trial dates set before the Departmental Trial Commissioner.
Plaintiffs commenced the instant action on August 1, 2004, against the City of New York and Police Officers Higgins and Niksa, alleging unlawful search and seizure, malicious prosecution, false arrest and false imprisonment, excessive force, and violations of their First Amendment right to freedom of speech. On December 21, 2004, defendants Higgins and Niksa filed their answer and a cross-claim for indemnity against the City of New York. Defendant Niksa also filed counter-claims against Shanair for assault and battery and for negligence.
On September 26, 2006, defendants moved for summary judgment on all of plaintiffs' claims, plaintiffs cross-moved as to defendants' liability, and Shanair moved to dismiss the counter-claim. By Memorandum and Order dated March 12, 2007, the Court denied all motions. Defendants now move for a pre-trial determination of their cross-claim against the City of New York on the issue of indemnification.
The issues presented before the Court are: (1) whether the Court should make a pre-trial determination regarding the thirdparty cross-claim for indemnification prior to a decision by the Corporation Counsel on that issue; and (2) whether, in connection with the indemnification issue, the jury should decide whether the ...