31 N.Y.3d 523, 2018-04382, Lemma v. Nassau County Police Officer Indemnification Board

Docket Nº:2018-04382, 70
Citation:31 N.Y.3d 523, 80 N.Y.S.3d 669, 105 N.E.3d 1250
Opinion Judge:DiFIORE, Chief Judge.
Party Name:In the Matter of Nicholas LEMMA, Appellant, v. NASSAU COUNTY POLICE OFFICER INDEMNIFICATION BOARD, et al., Respondents.
Attorney: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.
Judge Panel:Judges Rivera, Stein, Fahey, Garcia, Wilson and Feinman concur.
Case Date:June 14, 2018
Court:New York Court of Appeals
 
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Page 523

31 N.Y.3d 523

80 N.Y.S.3d 669, 105 N.E.3d 1250

In the Matter of Nicholas LEMMA, Appellant,

v.

NASSAU COUNTY POLICE OFFICER INDEMNIFICATION BOARD, et al., Respondents.

No. 2018-04382

No. 70

New York Court of Appeals

June 14, 2018

Page 524

[105 N.E.3d 1251] [80 N.Y.S.3d 671] 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

DiFIORE, Chief Judge.

Page 525

[105 N.E.3d 1252] 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

Page 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 U.S.C. § 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

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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 petitioners deposition testimony, portions of which were read into the record. Petitioners 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 petitioners conduct was intentional. However, counsel argued that petitioners 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...

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