Blumberg v. Town of North Hempstead
| Decision Date | 10 May 1982 |
| Citation | 450 N.Y.S.2d 698,114 Misc.2d 8 |
| Parties | Barbara BLUMBERG, Petitioner, v. TOWN OF NORTH HEMPSTEAD and Joseph Guarino, as Town Attorney of the Town of North Hempstead, Respondents. |
| Court | New York Supreme Court |
When a member of a town board on her own initiative and without board authorization brings a proceeding against the town's board of zoning appeals pursuant to Town Law section 267, subdivision 7, is she acting within the scope of her "public employment or duties"? This is the primary issue raised on this motion by the respondent Town of North Hempstead and its Town Attorney to dismiss this Article 78 proceeding in which the petitioner Barbara Blumberg seeks a judgment directing the Town to provide for her defense in an action instituted against her as a result of a proceeding she brought against the Board of Appeals.
It appears that Blumberg was at all relevant times a councilwoman serving on the Town Board of the Town of North Hempstead and that while serving in that capacity she, together with others including several civic associations, brought an Article 78 proceeding challenging the Board of Zoning Appeals' grant of a use variance to Triad Land Associates. In the petition Blumberg is described as a "duly elected Town Councilwoman" and a "taxpayer" of the Town of North Hempstead. The petition was dismissed by Special Term but on appeal Special Term was reversed and the determination of the Board of Zoning Appeals annulled and the matter remitted for further proceedings (In re Blumberg, 87 A.D.2d 650, 448 N.Y.S.2d 522 ). Prior to the reversal, Triad Land Associates commenced an action against all of the petitioners in the Article 78 proceeding including Blumberg who is described inter alia as "a holder of public office". The gravamen of Triad's complaint was malicious prosecution and abuse of process on the part of the Article 78 petitioners. By motion returnable on February 1, 1982 Blumberg moved in this Court for summary judgment dismissing the Triad action and the motion was granted by Justice McCaffrey in an order dated February 25, 1982.
Meanwhile, in September of 1981 upon receipt of the Triad complaint, Blumberg asked the Town Attorney to provide for her defense and when the request was denied she retained private counsel and, in December, commenced the instant proceeding.
In support of their motion to dismiss, the respondents urge that Blumberg is not entitled to the relief she seeks essentially upon the ground that she did not comply with section 23-15.2 of the Town Code which details the conditions under which the Town will provide for the defense of an employee in a civil action (see also Public Officers Law §§ 17 and 18). The Code defines the word "employee" to include any person holding a position "by election, appointment or employment in the service of the town" and "all members of all boards and commissions of the town * * *."
Section 23-15.2, subdivision A of the Code provides inter alia that the Town shall provide for the defense of an employee in a civil action or proceeding "arising out of any alleged act or omission which occurred or is alleged in the complaint to have occurred while the employee was acting within the scope of his public employment or duties, or which is brought to enforce a provision of § 1981 or 1983 of Title 42 of the United States Code." Subdivision B provides in pertinent part that an employee coming within the provisions of subdivision A shall be entitled to representation by private counsel of his choice whenever the Town Attorney determines, based upon his investigation and review of the facts and circumstances of the case, that representation by the Town Attorney would be inappropriate or whenever a court upon motion determines that a conflict of interest exists and that the employee is entitled to be so represented. Subdivision C provides that where the employee delivers process and a request for defense assistance to the Town Attorney as required by section 23-15.4, the Town Attorney shall take steps, including retention of private counsel as provided in subdivision B, on behalf of the employee to avoid entry of a default judgment pending resolution of any question pertaining to the obligation to provide for a defense. Section 23-15.4 provides in pertinent part as follows:
The respondents allege that:
(1) Blumberg failed to deliver the summons and complaint to the Town Attorney within the five (5) day period prescribed in the Code;
(2) she did not obtain a determination by the Town Attorney that representation by the Town Attorney would be inappropriate before she retained private counsel; and
(3) the acts alleged in the Triad complaint did not occur while she was acting within the scope of her public employment or duties, nor was the action brought to enforce a provision of section 1981 or section 1983 of Title 42 of the United States Code.
It appears that the summons and complaint was timely delivered to the Town Attorney, although delivered on the sixth day, since the fifth day was a Sunday. It also appears that Blumberg did request a determination that representation by the Town Attorney would be inappropriate, although it also appears that the procedures for doing so in subdivision B of the Code never became operative because the Town Attorney had already determined that she did not come within the provision of subdivision A on the ground that commencing the proceeding against the Board of Appeals was not an act within the scope of her public employment or duties. The purpose of the provision requiring delivery of the summons and complaint is to afford the governmental entity an opportunity to make precisely that determination (see Lapidot v. State of New York, 88 Misc.2d 1090, 389 N.Y.S.2d 539).
Thus, the only issue is whether Blumberg was sued by Triad for an act done within the scope of her employment or duties as a public officer.
Preliminarily, it is noted that an attorney may not be compensated for services rendered a municipal board or officer unless he has been retained in accordance with statutory authority or appropriate resolution of the governing body (Corning v. Village of Laurel Hollow, 48 N.Y.2d 348, 422 N.Y.S.2d 932, 398 N.E.2d 537; Cahn v. Town of Huntington, 29 N.Y.2d 451, 328 N.Y.S.2d 672, 278 N.E.2d 908; Seif v. City of Long Beach, 286 N.Y. 382, 36 N.E.2d 630; see also Gavin v. Board of Supervisors, 221 N.Y. 222, 116 N.E. 996). Without the benefit of authorizing legislation, reimbursement by a municipality of the expenses incurred by a board or officer in defending an action would constitute a gift of public funds for a purely private purpose, a matter expressly forbidden by Article VIII, section 1 of the Constitution (see e.g., Corning v. Village of Laurel Hollow, supra; Leo v. Barnett, 48 A.D.2d 463, 369 N.Y.S.2d 789, affd. 41 N.Y.2d 879, 393 N.Y.S.2d 994, 362 N.E.2d 624). Where an officer is compelled to engage counsel to avoid personal liability for alleged misconduct, it has been held that no benefit inures to the municipality and that the officer is not representing the public interest (see e.g., Levine v. Miteer, 16 A.D.2d 990, 229 N.Y.S.2d 433; Buckley v. City of N. Y., 264 App.Div. 116, 34 N.Y.S.2d 577; Kilroe v. Craig, 208 App.Div. 93, 203 N.Y.S. 71; Donahue v. Keeshan, 91 App.Div. 602, 87 N.Y.S. 144; see also Corning v. Village of Laurel Hollow, supra ). The rationale is that when a citizen accepts a public office he assumes the risk of defending himself against unfounded accusations at his own expense (Corning v. Village of Laurel Hollow, supra; Chapman v. New York, 168 N.Y. 80, 61 N.E. 108). On the other hand, where a statute, prospective in application, authorizes payment of such expenses, the conditional promise to reimburse is regarded as part of the compensation the officer shall receive in return for services to be rendered (see Gavin v. Board of Supervisors, supra ), provided of course, that the accusation against which he defends grew out of his "official duties" (Matter of Guarino v. Anderson, 259 N.Y. 93, 181 N.E. 60).
It has been said that the acts of a public officer are performed within the "scope of official duties" if such acts are done in relation to matters committed by law to the officer's control or supervision (Cooper v. O'Connor, 107 F.2d 207, 71 App.D.C. 6). It has also...
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Commco, Inc. v. Amelkin
...the zoning ordinances (see Town Law, §§ 261, 267, subd. 2; Jaffe v. Burns, 64 A.D.2d 692, 407 N.Y.S.2d 577; Blumberg v. Town of North Hempstead, 114 Misc.2d 8, 450 N.Y.S.2d 698) which are passed and enforced by the Town Board (see Town Law, § 261). When performing this function, as contrast......
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...first instance, a variance from the zoning ordinances (see Town Law, §§ 261, 267, subd 2; Jaffe v Burns, 64 AD2d 692 ; Blumberg v Town of North Hempstead, 114 Misc 2d 8 ) which are passed and enforced by the Town Board (see Town Law, § 261). When performing this function * * * the Zoning Bo......