Judges: Kane
Filed Date: 11/21/2002
Status: Precedential
Modified Date: 11/1/2024
Appeal from a judgment of the Supreme Court (Caruso, J.), entered May 29, 2001 in Schenectady County, which dismissed petitioner’s application, in a proceeding pursuant to CPLR article 78, to review a determination of respondent denying defense and indemnification to a police officer.
While off duty on December 27, 1998, Ronald Pedersen, a police officer for respondent, was involved in an incident with Rebecca Di Sorbo and Jessica Di Sorbo at the Union Inn in the City of Schenectady, Schenectady County. In an underlying federal civil rights action commenced against Pedersen, two other police officers and respondent, the Di Sorbos claimed before the United States District Court for the Northern District of New York that, inter alia, they were falsely arrested after Rebecca Di Sorbo rejected Pedersen’s romantic overtures. Pursuant to the collective bargaining agreement between the parties, Pedersen requested that respondent’s Corporation Counsel defend and indemnify him in the federal action, but the Corporation Counsel refused based on the determination that Pedersen was “acting outside the scope and course of [his] police duties” and in “derogation of established procedure” at the time and place of the incident.
Petitioner, the duly recognized bargaining unit for all police officers employed by respondent, commenced this CPLR article 78 proceeding seeking a judgment annulling respondent’s determination and directing that respondent defend and indemnify him pursuant to General Municipal Law § 50-j. Supreme Court dismissed the petition, holding that respondent’s determination to deny the request to defend and indemnify was not arbitrary or capricious.
Equally without merit is petitioner’s argument that respondent’s decision to deny Pedersen a defense and indemnification on the ground that he was acting outside the scope of his employment was arbitrary and capricious and without a rational basis in the record. Whether the acts of a police officer are committed within the scope of employment and in the discharge of such duties is a factual question (see Matter of Williams v City of New York, 64 NY2d 800, 802; Matter of Polak v City of Schenectady, 181 AD2d 233, 236-237). Pursuant to General Municipal Law § 50-j (6), once respondent determines to provide the protections therein, as it has here, it has a statutory duty to establish the method for determining whether the “police officer properly discharged his duties within the scope of his employment” (General Municipal Law § 50-j [6] [a], [b]). Article XVIII of the parties’ collective bargaining agreement requires the Corporation Counsel to make a prompt, preanswer decision of all section 50-j defense and indemnification issues. Hence, whether Pedersen was “so acting and thus was entitled to representation by the Corporation Counsel and indemnification by [respondent] are to be determined in the first instance by the Corporation Counsel” (Matter of Williams v City of New York, supra at 802). The determination may be set aside only if it is arbitrary and capricious and lacks a factual basis in the record (see id. at 802).
“[A]n employee’s actions are not within the scope of employ
Equally unpersuasive is petitioner’s argument that respondent’s determination denying Pedersen a defense and indemnification with respect to the lawsuit by Jessica Di Sorbo is irrational in light of the fact that he had no direct contact with her. Although the record does not dispute the fact that Pedersen had no direct contact with Jessica Di Sorbo and was not the police officer who arrested her, nevertheless Supreme Court properly concluded that it was Pedersen’s personal confrontation with Rebecca Di Sorbo which directly led to the arrest of Jessica Di Sorbo. Accordingly, respondent’s determination cannot be characterized as irrational in light of the fact that Pedersen’s conduct was personally motivated and entirely unrelated to the employer’s business.
Cardona, P.J., Mugglin, Rose and Lahtinen, JJ., concur. Ordered that the judgment is affirmed, without costs.