Coggins v. County of Nassau

Decision Date05 January 2009
Docket NumberNo. 07-CV-3624 (JFB)(AKT).,07-CV-3624 (JFB)(AKT).
Citation615 F.Supp.2d 11
PartiesDarryl T. COGGINS, Plaintiff, v. COUNTY OF NASSAU, Nassau County Police Department, Police Officer James Vara, in his Individual and Official Capacity, Police Officer Craig Buonora, in his Individual and Official Capacity, and John Does 1-10, in Their Individual and Official Capacity, Defendants.
CourtU.S. District Court — Eastern District of New York

Frederick K. Brewington, Esq. of the Law Offices of Frederick K. Brewington, Hempstead, New York, for plaintiff.

Laurence Jeffrey Weingard, Esq. of the Law Offices of Laurence Jeffrey Weingard, New York, NY, for defendant Buonora.

Donna Napolitano, Esq. of the Nassau County Attorney's Office, Mineola, NY, for defendants Nassau County, the Police Department, Vara, and John Does 1-10.

MEMORANDUM AND ORDER

JOSEPH F. BIANCO, District Judge.

Plaintiff Darryl T. Coggins ("Coggins" or "plaintiff") brings the instant action against defendants County of Nassau ("Nassau County" or "County"), Nassau County Police Department ("Police Department"), Police Officer James Vara ("Vara"), in his individual and official capacity, Police Officer Craig Buonora ("Buonora"), in his individual and official capacity, and John Does 1-10, in their individual and official capacities (collectively, "defendants"), pursuant to 42 U.S.C. §§ 1981 and 1983 and New York State tort law. On March 17, 2005, a grand jury empaneled by the Nassau County District Attorney's Office (the "DA's Office") indicted Coggins on charges of unlawful possession of a weapon, and the complaint alleges that defendants actively prosecuted Coggins on those charges despite their knowledge that he was innocent. The complaint further alleges that Officers Vara and Buonora conspired to commit perjury during the grand jury proceedings. After dismissing all charges against plaintiff, Buonora was indicted for perjury and subsequently pled guilty to a misdemeanor charge of perjury.

On November 26, 2007, Buonora received a determination from the Nassau County Police Officer Indemnification Board ("Board") holding that his actions were not within the proper discharge of his duties or within the scope of his employment and, therefore, he was not entitled to representation by the County Attorney of Nassau County ("County Attorney"). However, Buonora was provided with an opportunity to challenge that determination before the Board. While challenging that determination, Buonora retained other counsel in this case. On March 14, 2008, after Buonora's presentation to the Board, the Board changed its position and made a determination that Buonora's actions were within the proper discharge of his duties and within the scope of his employment and, therefore, he would be entitled to legal representation and indemnification by the County for any judgment against him. On June 26, 2008, the County Attorney advised Buonora by letter that the County Attorney was prepared to resume representation of Buonora in this lawsuit based on the March 14, 2008 determination by the Board.

Buonora now moves for an Order or Declaratory Judgment to the effect that the County Attorney is estopped from resuming her role as counsel for Buonora, on the grounds that the County Attorney has already abandoned his defense or waived her right to represent Buonora. Alternatively, within the context of such motion, Buonora asserts that the County Attorney should be disqualified from representing Buonora on conflict of interest grounds. Specifically, Buonora contends that the County Attorney's proposed representation of him presents a conflict of interest with both co-defendant Nassau County and co-defendant Vara. Under either theory of relief, Buonora claims to be statutorily entitled to private counsel of his own choosing at the County's expense. For the following reasons, Buonora's motion is denied in its entirety.

I. BACKGROUND
A. Facts

The underlying facts giving rise to this litigation are comprehensively described by this Court in a prior Memorandum and Order addressing Buonora's motion to dismiss and for summary judgment, dated June 20, 2008. Thus, the Court presumes the parties' familiarity with the underlying lawsuit brought by Coggins and only describes the facts to the extent that they are relevant to resolution of the instant motion.

This lawsuit arises out of criminal proceedings against Coggins, during which he was arrested and charged in Nassau County with two counts of Criminal Possession of a Weapon in the Third Degree, in violation of Penal Law §§ 265.02(3) and (4). (Complaint ("Compl.") ¶ 19.) According to the complaint, Coggins was innocent of the crimes with which he was charged, and defendants knew that Coggins was innocent. (Compl. ¶¶ 20, 42, 48.) The complaint alleges that defendants "actively instigated and encouraged the prosecution of plaintiff" and, inter alia, manufactured the charges against plaintiff, withheld information that would have exonerated him, and deprived plaintiff of his due process rights. (Compl. ¶¶ 32, 33, 35, 43, 46.) Coggins now asserts claims of civil rights violations, conspiracy, and New York state intentional torts against defendants.

Following the dismissal of the criminal charges against plaintiff, Buonora was indicted for perjury in connection with the testimony that he gave to the grand jury in the underlying criminal action against plaintiff. (Buonora Memorandum of Law ("Buonora Mem."), at 2.) Buonora claims that Vara was granted transactional immunity in exchange for his testimony in the grand jury proceedings considering perjury charges against Buonora. (Buonora Affidavit ("Buonora Aff.") ¶ 13; Buonora Mem., at 2.) Buonora subsequently pled guilty to one count of misdemeanor perjury and was disciplined by the Police Department. (Buonora Mem., at 2.)

Buonora was served with the complaint in this case in September 2007. The complaint alleged that Buonora "was a police officer employed by the County, under the direction of the Nassau Police and County and was acting in furtherance of the scope of his employment ...." (Compl. ¶ 13.) The County Attorney at that time acted on his behalf in seeking and receiving two extensions of time in which to respond to the complaint. (Buonora Mem., at 2, Exs. A and B; Buonora Aff. ¶ 4; County Defendants' Memorandum of Law in Opposition ("County Def. Mem."), at 6.) In September 2007, after the filing of the complaint by Coggins, the law offices of Mr. Laurence Jeffrey Weingard ("Mr. Weingard" or "counsel for Buonora"), current counsel for Buonora, was "retained by Buonora to monitor his defense ... and encourage the County Attorney to undertake his defense, assert various issues including the defense of absolute immunity." (Weingard Affidavit ("Weingard Aff.") ¶ 5.)

On November 27, 2007, Buonora received notice of a determination by the Board, which had voted on November 26, 2007, holding that his actions were not within the proper discharge of his duties or within the scope of his employment. (Buonora Aff. ¶ 5; Buonora Mem., at Exs. C, E and F.) Buonora was given the opportunity to present additional facts and personally appear before the Board prior to the determination becoming final, which, had he failed to appear before the Board, would occur within fifteen days of his receipt of the determination. (Buonora Mem., at 4 and Ex. E.) Buonora also was notified by a letter dated November 26, 2007 from the County Attorney that the County Attorney's Office would not be defending him in this matter.1 (Buonora Aff. ¶ 5; Buonora Mem., at 3 and Ex. E.)

At that point, Buonora fully engaged the services of Mr. Weingard, who had previously represented him in connection with the criminal charges against him, as well as the Police Department's disciplinary charges, to represent Buonora's interests in this action. (Buonora Aff. ¶ 6.) In connection with these services, Buonora claims to have paid substantial sums of money for legal fees and expenses. (Buonora Aff. ¶ 6.)

On December 5, 2007, the County Attorney filed an answer in this case on behalf of the County of Nassau, the Nassau County Police Department and Officer Vara ("County Defendants"). In their answer, the County Defendants claimed that Vara "performed [his duties] in good faith, without malice and with reasonable and proper cause in the ordinary course of [his] duties" (County Def. Answer, at 8 ¶ 4), and that "if the plaintiff sustained the damages as alleged in the Complaint, such damages were sustained through and by virtue of the conduct of parties other than the County Defendants, over whom the County Defendants exercised no control, without any negligence on the part of the County defendants, its agents, servants or employees contributing thereto." (County Def. Answer, at 9 ¶ 13.) Buonora alleges that these defenses asserted by the County Defendants imply that Buonora did not act in good faith in the ordinary course of his duties and that Buonora was responsible for the damages, if any, sustained by Coggins. (Buonora Mem., at 20.)

On December 6, 2007, Buonora notified the Board that he wanted to appear before it to present additional information to challenge the November 26, 2007 determination, and, in the intervening time period, Buonora filed in this case a motion to dismiss the complaint and for summary judgment. Buonora, along with his current counsel, appeared at a hearing before the Board on March 14, 2008. (Buonora Aff. ¶ 7-8; Buonora Mem., at Ex. G.) Also present at this hearing were representatives of the County Attorney's office. (Buonora Mem., at 5; County Def. Mem., at 7.) On that date, the Board changed its position and issued another determination that Buonora's actions were within the proper discharge of his duties and within the scope of his employment and, as a result, he would be indemnified for any judgment by the County. (Buonora Aff. ¶ 9; Buonora Mem., at...

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