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County not required to defend or indemnify an employee being sued if alleged act or omission was not within the scope of the employee?s duties

County not required to defend or indemnify an employee being sued if alleged act or omission was not within the scope of the employee?s duties
Rew v County of Niagara, 2010 NY Slip Op 04009, decided on May 7, 2010, Appellate Division, Fourth Department

Public Officers Law §17, with respect to State officers and employees and Public Officers Law §18, with respect to officers and employees of political subdivisions of the State, provide for the defense and indemnification of such persons being sued as a result of an act or omission in the performance of their official duties.

Michael J. Rew initiated a lawsuit naming "John Doe" among the several respondents listed in his complaint. Rew was seeking damages for injuries he sustained as the result of his being shot by Doe, a deputy sheriff employed by County of Niagara Sheriff''s Department. Doe was named as a respondent and characterized as the "being [the] deputy on duty and involved in [the] shooting incident."

Doe asked Supreme Court to dismiss Rew?s action on the representation that Rew failed to name him in the notice of claim, contending that General Municipal Law §50-e bars an action against an individual who has not been named in such notice of claim. When Supreme Court dismissed Doe?s motion he appealed, arguing that such notice was a ?condition precedent? to Rew?s maintaining an action against him.

Not so, said the Appellate Division. Such a notice "is not a condition precedent to the commencement of an action against [Doe] unless the county is required to indemnify [him]."*

Further, a county's duty to indemnify an employee [1] "turns on whether [the individual was] acting within the scope of [his or her] employment" and [2] "whether the obligation to indemnify the individual was formally adopted by a local governing body."

In this instance, said the Appellate Division, even if County was required to indemnify Doe, [which was not clear that it was based on the record before the court], Rew alleged that Doe "did willfully, maliciously, and intentionally discharge his weapon and shoot without provocation."

Thus, "the conduct of [Doe] as alleged in the complaint amounts to [an] intentional tort." The Appellate Division ruled that under the circumstances, the acts alleged by Rew falls outside the scope of Doe?s employment and thus is not encompassed within the County?s duty to indemnify him should Rew prevail.

Accordingly, naming Doe in any notice of claim otherwise required by General Municipal Law §50-e is not, under the circumstances, a "condition precedent" to Rew maintaining his lawsuit against Doe.

* See Public Officers Law §18 [1] [a], [b]; [4] [a]

The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2010/2010_04009.htm

Full post as published by New York Public Personnel Law on May 18, 2010 (boomark / email).