Labor & Employment Law

Only employees sued for performing official duties are entitled to indemnification

By Harvey Randall, Esq.

Only employees sued for performing official duties are entitled to indemnification
Perez v City of New York, 43 A.D.3d 712, Appellate Division, First Department

Severino Perez sued the City of New York and won $11 million in damages. In addition, the court awarded former New York City police officer Carol Healy legal fees and expenses in the amount of $31,000 to be paid by the City.

The Appellate Division overturned both of these awards.

According to the Appellate Division, following an incident culminating a long-brewing personal dispute between Perez and Healy, ?Perez was arrested and prosecuted at the instigation of Healy, then a City police officer.? Although the jury decided that Healy was acting within the scope of her employment, the Appellate Division said:

We find no reasonable interpretation of the facts to support that conclusion. As a matter of law, an officer is not acting within the scope of employment when causing an arrest of an individual while ?engaging in a personal dispute, without any genuine official purpose,? and simply ?motivated by personal pique?

Vacating Healy?s award for legal fees and expenses, the court said that Perez?s arrest was clearly ?brought on by a matter wholly personal in nature, the source of which was not job-related.?

This finding, said the Appellate Division, necessitates rejection of Healy?s cross claim for legal fees and expenses as well the jury?s award in favor of Perez.

The decision notes that although Healy had requested the City?s Corporation Counsel to provide her with a defense in accordance with General Municipal Law Section 50-k. the Corporation Counsel determined that Healy?s action did not involve an ?act or omission [that] occurred while the [Healy] was acting within the scope of [her] public employment and in the discharge of [her] duties ?.? Accordingly, said the court, the determination by the Corporation Counsel should not have been set aside by Supreme Court, ?since it cannot be said that it lacked a factual basis, or was, in that sense, arbitrary and capricious.?

Full post as published by New York Public Personnel Law on April 23, 2008 (boomark / email).