Lemma v. Nassau Cnty. Police Officer Indemnification Bd.

Decision Date14 June 2018
Docket NumberNo. 70,70
Parties In the Matter of Nicholas LEMMA, Appellant, v. NASSAU COUNTY POLICE OFFICER INDEMNIFICATION BOARD, et al., Respondents.
CourtNew York Court of Appeals Court of Appeals

31 N.Y.3d 523
105 N.E.3d 1250
80 N.Y.S.3d 669

In the Matter of Nicholas LEMMA, Appellant,
v.
NASSAU COUNTY POLICE OFFICER INDEMNIFICATION BOARD, et al., Respondents.

No. 70

Court of Appeals of New York.

June 14, 2018


105 N.E.3d 1251

Worth, Longworth & London, LLP, New York City (Mitchell Garber of counsel), for appellant.

Carnell T. Foskey, County Attorney, Mineola (Robert F. Van der Waag, Christi Kunzig, James LaRusso and Nicholas Vevante of counsel), for respondents.

OPINION OF THE COURT

DiFIORE, Chief Judge.

105 N.E.3d 1252
31 N.Y.3d 525

General Municipal Law § 50–l provides for defense and indemnification of Nassau County police officers, requiring indemnification for civil "damages, including punitive or exemplary damages, arising out of a negligent act or other tort of such police officer committed while in the proper discharge of [the officer's] duties and within the scope of [the officer's] employment." In this CPLR article 78 proceeding, the issue is

31 N.Y.3d 526

whether the Nassau County Police Officer Indemnification Board's determination revoking a prior defense and indemnification determination in favor of petitioner, a Nassau County police officer, was irrational. To answer that question, we must determine the meaning of the phrase "proper discharge of ... duties" in the context of this statute. We conclude, as did the courts below, that the Board's finding that petitioner's conduct was not "proper" within the meaning of the statute was rational. We therefore affirm.

Based on the facts developed in the administrative record, petitioner—a Nassau County police officer since 1987—was assigned to investigate a March 26, 2005 knifepoint robbery allegedly perpetrated by three men. Two months after the robbery—on May 27, 2005—Raheem Crews was arrested for the crime. A few days later, on June 1, 2005, petitioner questioned another suspect, who admitted his own involvement but said that Crews was in jail at the time of the robbery. That same day, petitioner confirmed via a police database search that Crews was incarcerated on the date of the robbery. Despite knowledge that Crews could not have been one of the perpetrators, petitioner told no one. Apparently, due to a typographical error by other officers, the date of the robbery was incorrectly stated as April 26, 2005, on the felony complaint provided to Crews and his attorney (Crews was not in jail on that date). As a result, the alibi went undiscovered and Crews remained in pretrial detention for four months for a crime petitioner knew he did not commit. It was not until September, after Crews was arraigned on an indictment listing the date of the robbery as March 26, 2005, that defense counsel demonstrated that Crews had been incarcerated on that date, securing his immediate release and dismissal of the charges.

80 N.Y.S.3d 672

Crews commenced an action in federal court pursuant to 42 USC § 1983 against petitioner, among others. In 2006, Nassau County—unaware at that time that petitioner had known and failed to disclose that Crews was in jail on the date of the crime—offered to represent and indemnify petitioner pursuant to General Municipal Law § 50–l, based on the Board's initial determination that any actions taken by petitioner that might give rise to liability were within the scope of petitioner's employment and a proper discharge of his duties.

Years later, in 2009, petitioner was deposed in the Crews case, revealing for the first time that he had learned a few days after the arrest that Crews was in jail on the date of the

31 N.Y.3d 527

robbery—information that he acknowledged at the deposition "exonerated" Crews. When asked what he did after learning this information, petitioner stated: "I kept it to myself and said, ‘[l]et the chips fall where they

105 N.E.3d 1253

may.’ " At that time, petitioner offered no further explanation for his conduct. In the wake of the deposition testimony, the Board reopened its decision to indemnify petitioner and held a hearing at which petitioner appeared with counsel. The focus at the hearing was the meaning of petitioner's deposition testimony, portions of which were read into the record. Petitioner's counsel acknowledged that the "let the chips fall where they may" comment was "terrible" and could "alter the minds of some" Board members to conclude petitioner's conduct was intentional. However, counsel argued that petitioner's statement reflected his state of mind at the time of the deposition—that he understood that he made a mistake and he would "let the chips fall" in accepting responsibility for his actions—and was not indicative of his state of mind when he learned Crews could not have perpetrated the robbery. Petitioner claimed that the information concerning Crews' incarceration had simply slipped his mind due to a heavy caseload and personal problems he was experiencing at the time. He denied intentionally concealing the information. Alternatively, counsel argued that, by including coverage for punitive damages, the statutory scheme provided indemnification, even for a police officer's intentional misconduct. After the reconsideration hearing, the Board voted to revoke defense and indemnification. Upon petitioner's request for reconsideration, the Board conducted a second administrative proceeding at which petitioner and his counsel were present and essentially the same facts and arguments were elicited. The Board adhered to its decision denying defense and indemnification.

Subsequently, petitioner commenced this CPLR article 78 proceeding seeking a judgment annulling the Board's determination. Petitioner argued that the phrase "proper discharge of duties" did not mean that the act itself must be proper, but only that it occurred while the officer was engaged in police work, making it synonymous with the phrase "scope of employment." Petitioner suggested this was the only reasonable interpretation considering the legislature's intent to indemnify even for acts giving rise to punitive damages. Petitioner argued the Board's decision denying indemnification was overly restrictive and, thus, arbitrary and capricious. Nassau County countered

31 N.Y.3d 528

that the statute provides the Board with the responsibility to determine whether conduct in particular circumstances amounts to a proper discharge of an officer's duties and, because the Board rationally determined that petitioner's conduct was not in the proper discharge of his duties, its decision was not arbitrary and capricious.

Supreme Court denied the petition and dismissed the proceeding, reasoning that

80 N.Y.S.3d 673

" General Municipal Law § 50–l gives the [Board] the responsibility to determine if an officer's conduct occurred ‘in the proper discharge of his duties and within the scope of his employment’ " and that the Board rationally concluded petitioner's conduct was not "proper." The Appellate Division affirmed, holding, among other things, that the Board rationally interpreted General Municipal Law § 50–l to limit defense and indemnification, reasoning that the word "proper" was "added ... to exclude indemnification for intentional misconduct" ( 147 A.D.3d 760, 762, 47 N.Y.S.3d 54 [2d Dept. 2017] ). We granted leave to appeal ( 29 N.Y.3d 907, 57 N.Y.S.3d 712, 80 N.E.3d 405 [2017] ) and now affirm.

Where, as here, no administrative hearing was required, judicial review of an agency determination is limited to

105 N.E.3d 1254

whether the Board's determination was irrational or arbitrary and capricious (see Matter of Peckham v. Calogero, 12 N.Y.3d 424, 431, 883 N.Y.S.2d 751, 911 N.E.2d 813 [2009] ; Matter of Salino v. Cimino, 1 N.Y.3d 166, 172, 770 N.Y.S.2d 702, 802 N.E.2d 1100 [2003] ; CPLR 7803[3] ). An administrative determination of a board or agency involving...

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    ...have a ‘chilling effect’ on police ‘properly discharging their duties.’” Lemma v. Nassau Cty. Police Off‌icer Indemnif‌ication Bd., 105 N.E.3d 1250, 1254–55 (N.Y. 2018) (quoting Sponsors’ Mem in Support, Bill Jacket, L 1983, ch 872 at 8). 101. Harlow v. Fitzgerald, 457 U.S. 800, 814 (1982) ......

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