England v. Town of Clarkstown

• Decision Date: 10 October 1995
• Citation: England v. Town of Clarkstown, 634 N.Y.S.2d 958, 166 Misc.2d 834 (N.Y. Sup. Ct. 1995)
• Parties: Stuart ENGLAND, Plaintiff, v. TOWN OF CLARKSTOWN, Defendant. Daniel P. ENGLAND, Plaintiff, v. CLARKSTOWN POLICE DEPARTMENT, et al., Defendants.
• Court: New York Supreme Court

Page 958

634 N.Y.S.2d 958

166 Misc.2d 834

Stuart ENGLAND, Plaintiff, v. TOWN OF CLARKSTOWN, Defendant.

Daniel P. ENGLAND, Plaintiff, v. CLARKSTOWN POLICE DEPARTMENT, et al., Defendants.

Supreme Court, Rockland County.

Oct. 10, 1995.

Robert P. Kassel, Nyack, for Plaintiff, Stuart England.

Joseph A. Maria, P.C., White Plains, for Defendant, Town of Clarkstown.

Terrence Ryan, Suffern, for Plaintiff, Daniel Phillip England.

Lysaght, Lysaght & Kramer, Pearl River, for Defendant, Clarkstown Police Department.

GEORGE M. BERGERMAN, Justice.

This is an application by the defendant police officer Kilduff which is joined in by defendant police officers Palacios, Valentino and Rose for an order pursuant to Public Officers Law § 18(3)(b) directing defendant Town of Clarkstown to permit the police officer defendants to be represented by counsel of their choice and for reimbursement for counsel fees and litigation expenses and directing Clarkstown's counsel to withdraw as attorney for said defendants. The individual police officer defendants are employed by the defendant municipality and the same attorney presently represents both the Town and the police officers. Defendant Clarkstown and plaintiff Daniel England oppose the application.

Plaintiff Daniel England's first cause of action alleges that on March 6, 1989 between 3:00 and 3:20 P.M. he was assaulted/beaten by the police officer defendants who used excessive and unreasonable force in effecting his arrest.

Plaintiff Daniel England's third cause of action alleges that on March 6, 1989 between 3:20 P.M. and midnight (while he was in the custody of the police following his arrest) he was again assaulted by the police officer defendants who used excessive and unreasonable force and otherwise beat and mistreated him.

Plaintiff Daniel England's second and fourth causes of action are for violation of his civil rights (42 U.S.C. § 1983) arising out of the assaults/beatings which are alleged in the first and third causes of action.

The defendant police officers are sued individually and the plaintiff seeks punitive damages against the individual police officers.

With respect to the second assault/beating which allegedly occurred on March 6, 1989, the plaintiff Daniel England contends that the police officers' activities "were performed with the knowledge, permission and consent of the various members of the Clarkstown Police Department who were on duty at the time, both field officers and supervising officers, and of the Clarkstown Police Department, Town of Clarkstown; none of the aforesaid defendants and personnel did anything to prevent the defendants from participating in the aforesaid activities." (4th cause of action, para. 22, 42 U.S.C. § 1983). Defendants' answer denies these allegations.

Plaintiff Daniel England's complaint further alleges that "The activities complained of in the third cause of action were part of a pattern or practice of indifference on the part of officials of the Clarkstown Police Department, Town of Clarkstown, and condonation of excessive and unreasonable force by police officers toward persons in custody." (4th cause of action, para. 23, 42 U.S.C. § 1983).

The Court notes that defendants have admitted in their answer that the police officer defendants were acting in the "course" of their employment with the Clarkstown Police Department.

Public Officers Law § 18 subd. (3)(b) provides that an "employee shall be entitled to be represented by private counsel of his choice in any civil action or proceeding whenever the chief legal officer of the public entity ... determines that a conflict of interest exists, or whenever a court ... determines that a conflict of interest exists and that the employee is entitled to be represented by counsel of his choice".

Defendant Kilduff's attorney by letter dated August 25, 1995 to the Clarkstown Town Attorney alleged that a conflict of interest existed and requested that the firm of Lysaght, Lysaght and Kramer, P.C. be designated as attorney for the police officer defendants to be reimbursed by the Town. This request was summarily denied by the Town of Clarkstown on the grounds that no conflict of interest existed.

Initially, the Court notes that the Town fails to controvert the police officers' allegations that they were never informed by the Town's counsel that they could be found individually liable and could be personally liable for punitive damages. Nor did the Town's counsel ever inform the officers about the potential conflict which could exist in any civil rights action whereby a municipality can avoid liability by demonstrating that the employees were not acting within the scope of their official duties because their unofficial actions would not be pursuant to municipal policy. Owen v. City of Independence, 445 U.S. 622, 100 S.Ct. 1398, 63 L.Ed.2d 673.

Nor did the Town's counsel advise the police officers that if they could demonstrate that their actions were pursuant to an official policy, they could shift their liability to the municipality. The officers were not advised that if they were successful in asserting a good faith immunity defense, the Town would be wholly liable because it would not be permitted to assert the good faith immunity of its employees as a defense to a 42 U.S.C. § 1983 action. Owen, supra at 638, 657, 100 S.Ct. at 1409, 1419.

The Town of Clarkstown proffers Galligan v. City of Schenectady, 116 A.D.2d 798, 497 N.Y.S.2d 186 (3rd Department, 1986) as the controlling precedent in a situation where an alleged conflict of interest exists between a municipality and its employees in an a Civil Rights Action. While Galligan recognizes the obvious conflict that could arise under these circumstances, it applies the rule of strict statutory construction in interpreting the provisions of Public Officers Law § 18 subd. (3)(b) and requires that proof of an actual, presently existing conflict is required before the Court will require separate representation. Since the municipal employees in Galligan were unable to demonstrate a presently existing conflict and had alleged only the "possibilities" of future conflict, the Court refused to exercise its discretion to appoint separate counsel pursuant to Public Officers Law § 18.

However, in Death v. Salem, 111 A.D.2d 778, 490 N.Y.S.2d 526, the Second Department held that under appropriate circumstances where the "possibility" of a conflict of interest exists the Court may exercise its discretion and order the disqualification of counsel and the appointment and reimbursement of separate counsel pursuant to Public...