Schwartz v. City of New York

• Decision Date: 15 June 1995
• Docket Number: No. 1376,D,1376
• Citation: 57 F.3d 236
• Parties: Arthur SCHWARTZ, Plaintiff, v. The CITY OF NEW YORK, Defendant-Appellee, and Terrance Collins, John Carney and Darin Bured, Defendants-Appellants, and Frank McDermott, Defendant, in their individual and official capacity as Police Officers employed by the New York City Department of Police. ocket 94-9047.
• Court: U.S. Court of Appeals — Second Circuit

Page 236

57 F.3d 236

Arthur SCHWARTZ, Plaintiff, v. The CITY OF NEW YORK, Defendant-Appellee and Terrance Collins, John Carney and Darin Bured, Defendants-Appellants and Frank McDermott, Defendant in their individual and official capacity as Police Officers employed by the New York City Department of Police.

No. 1376, Docket 94-9047.

United States Court of Appeals, Second Circuit.

Argued May 8, 1995.

Decided June 15, 1995.

Joel Berger, Office of Corp. Counsel, New York City (Paul A. Crotty, Corp. Counsel, The City of New York, Leonard J. Koerner, Pamela Seider Dolgow, Fay Ng, New York City, of counsel) for defendant-appellee.

Raymond E. Kerno, Lake Success, NY (Lysaght, Lysaght & Kramer, Lake Success, NY) for defendants-appellants.

Before: NEWMAN, Chief Judge, CARDAMONE and PARKER, Circuit Judges.

PARKER, Circuit Judge:

New York City police officers Terrance Collins, John Carney and Darin Bured, defendants below, have filed this appeal from an interlocutory order entered on September 16, 1994 in the United States District Court for the Eastern District of New York, Raggi Judge. The order granted a motion by the Corporation Counsel of the City of New York for leave to withdraw as counsel for the three officers. Because the order is not a final judgment for purposes of 28 U.S.C. Sec. 1291 and does not fall within the "collateral order" exception to the final judgment rule, the appeal is dismissed for want of jurisdiction.

Plaintiff Arthur Schwartz sued the three officers and the City of New York City under 42 U.S.C. Sec. 1983 after he was allegedly beaten following a minor traffic incident. Corporation Counsel for the City initially undertook representation of all defendants pursuant to New York State General Municipal Law Sec. 50-k(2) (McKinney 1986), which provides in relevant part:

At the request of the employee ... the city shall provide for the defense of an employee of any agency in any civil action or proceeding in any state or federal court ... arising out of any alleged act or omission which the corporation counsel finds occurred while the employee was acting within the scope of his public employment and in the discharge of his duties and was not in violation of any rule or regulation of his agency at the time the alleged act or omission occurred.

(Emphasis added.) Subsequently, Corporation Counsel moved to be relieved as counsel for the officers after the Civilian Complaint Review Board found that Schwartz's complaint against Collins was substantiated in important respects--in effect, that Collins had acted in violation of police department rules. Corporation Counsel also felt that, because Bured and Carney backed Collins's version of events, it would be a conflict to represent both the City and the individual officers. The district court granted the motion.

The collateral order doctrine is a narrow exception to the general rule that interlocutory orders are not appealable as a matter of right. Its "reach is limited to trial court orders affecting rights that will be irretrievably lost in the absence of an immediate appeal." Richardson-Merrell Inc. v. Koller, 472 U.S. 424, 430-31, 105 S.Ct. 2757, 2761, 86 L.Ed.2d 340 (1985). The doctrine provides that appeals may be taken from prejudgment orders "which finally determine claims of right separable from, and collateral to, rights asserted in the action, too important to be denied review and too independent of the cause itself to require that appellate consideration be deferred until the whole case is adjudicated." Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 546, 69 S.Ct. 1221, 1225-26, 93 L.Ed. 1528 (1949).

In Coopers & Lybrand v. Livesay, 437 U.S. 463, 468, 98 S.Ct. 2454, 2457-58, 57 L.Ed.2d 351 (1978), the Supreme Court set forth three requirements to fit the exception: the interlocutory order must (1) conclusively determine the disputed question, (2) resolve an important issue...