In the Matter of the Application of Sean Warner, Petitioner, For a Judgment Pursuant to Article 78 of the Civil Practice Law and Rules
Eric T. Schneiderman, as Attorney General of the State of New York, Respondent.
Meyers, LLP Attorneys for Petitioner By: Cheryl Meyers Buth,
T. Schneiderman Attorney General of the State of New York
(By: George Michael Zimmermann, Assistant Attorney General,
of Counsel) Attorney for Respondent
A. Weinstein, J.
Article 78 petition challenges a determination of the Office
of the New York State Attorney General (the "OAG"
or "Attorney General") made by letter dated May 18,
2015, terminating the State's provision of a defense to
petitioner Sean Warner in a federal civil lawsuit pursuant to
Public Officers Law ("POL") § 17. This case is
one of three parallel proceedings. The other two, brought by
Keith Swack and Matthew Rademacher,  are addressed in
separate opinions also issued today. The petitioners were all
correction officers assigned to Attica Correctional Facility
("Attica") at the time of the events that are at
the genesis of these proceedings.
facts underlying this proceeding are as follows:
January 17, 2012 Warner, Swack, Rademacher and a fourth
individual were named as defendants in an action initiated by
plaintiff George Williams in New York State Supreme Court,
Kings County by Summons with Notice (the "
Williams action") (Petition ["Pet."]
¶ 7). Williams alleged that the defendants assaulted him
on August 9, 2011, while he was incarcerated at Attica. In a
letter from the OAG dated March 8, 2012, the State agreed to
assume the cost of Warner's defense and that of his
co-defendants in the Williams action (id.
¶ 10; see Answer ["Ans."] Ex. B). The
letter noted that the Attorney General had "not
investigated all the facts and circumstances" of the
matter, and "reserve[d] the right at any time to
terminate, withdraw, revoke and disclaim any and all
obligations of the State" undertaken by the letter
(id. at 2).
defendants' demand, Williams filed a verified complaint
dated March 22, 2012 (Pet. Ex. A). The complaint alleged that
on the day in question, "without justification"
defendants delivered multiple kicks and punches to
Williams' head and body, slammed him against a wall,
threw him down the stairs and shouted racial epithets at him
(id. ¶¶ 11 - 14). The complaint also
stated that the defendants submitted false reports about the
incident, which resulted in disciplinary charges being filed
against Williams, and sanction imposed on him (id.
¶¶ 16-20). Williams' pleading set forth causes
of action under 42 USC § 1983, and for battery and
intentional infliction of emotional distress.
removed the Williams action to federal court, where
it was stayed due to the pendency of a criminal indictment
brought against them in Wyoming County  (see Pet.
Ex. A). The civil case was ultimately transferred to the
United States District Court for the Western District of New
York  (see Pet. ¶ 14).
original indictment was dismissed, and a new one filed
against Warner, Swack and Rademacher on January 22, 2013. The
indictment set forth five counts against Warner arising out
of the alleged August 9, 2011 assault on Williams: Gang
Assault in the First Degree, Tampering with Physical
Evidence, Official Misconduct, and two counts of Offering a
False Instrument for Filing in the First Degree. The first
three counts also charged Swack and Rademacher with the same
offenses (Pet. Ex. B).
Gang Assault charge alleged that the three correction
officers "caused serious physical injury" to
Williams, with intent to do so (id.). The
substantive portion of the Official Misconduct charge read in
its entirety as follows:
"At said time and place KEITH SWACK, SEAN WARNER, &
MATTHEW RADDEMACHER [sic] committed an act relating to their
office but constituting an unauthorized exercise of his
official function, knowing that such act is
Misconduct is a Class A misdemeanor (see Penal Law
defendants' request, the District Attorney provided a
bill of particulars containing further detail on the
allegations in the indictment. The original bill did not
reference the Official Misconduct Charge, and by subsequent
Decision and Order the Court directed the prosecutor to give
further specificity as to that count. The prosecutor
responded by characterizing the Official Misconduct
allegation as follows: "the Defendants engaged in the
unauthorized use of physical force upon the victim"
(Ans. Ex. C).
March 2, 2015, Warner pled guilty to a single count of
Official Misconduct, in satisfaction of the entire
indictment. The complete colloquy regarding the conduct to
which he admitted was as follows:
"The Court: Are you Sean Warner, the named Defendant in
Mr. Warner: Yes, sir.
The Court: And do you admit that you were in Wyoming County
on or about August 9th, 2011?
Mr. Warner: Yes, sir.
The Court: And at that date, time and place, did you commit
an act relating to your office but constituting an
unauthorized exercise of your official functions, knowing
that such act was unauthorized, and that the unauthorized act
was removal of a baton from State grounds?"
Mr. Warner: Yes, Sir" (Pet Ex. C at 15-16).
then entered a plea of guilty, after which his attorney asked
the Court to clarify that Warner was employed as a public
servant on August 9, 2011. He confirmed that this was true
(id. at 16).
was sentenced to a conditional discharge and, as a result of
the plea, resigned his position as a correction officer.
Warner's conviction, the OAG notified him by letter dated
May 18, 2015 that it would no longer provide him a defense in
the Williams action (Pet. Ex. D). It made that
determination on two grounds.
it noted that section 17 only covers acts or omissions
"which occurred or [are] alleged to have occurred while
the employee was acting within the scope of his public
employment duties" (id. at 2). According to the
letter, "[t]he nature of the conduct to which Mr. Warner
pled and which by his own admission constitutes a crime
cannot be said to be within the scope of his employment"
the letter stated that Warner had "admitted to an
intentional wrong doing" (id.). It asserted
that the duty to indemnify under Section 17 does not apply to
injuries resulting from intentional wrongdoing, and
"[w]here the State has no legal obligation to indemnify,
it has no obligation to defend" (id., citing
Matter of Sharrow v State of New York, 216 A.D.2d
844, 846 [3d Dept 1995]).
then commenced this Article 78 proceeding, by which he seeks
an order "enforcing his rights under Public Officers Law
section 17, compelling the [S]tate to rescind the position it
took in its May 18, 2015 letter..., [and] paying for the cost
of defense in Williams v Warner, et al.... "
(Pet. at 19-20). The petition avers, among other things, that
the Court in the Williams action has rejected
defendants' application for a stay ...