In re Amato v. County of Nassau

• Decision Date: 07 June 2011
• Docket Number: Index No. 495/11,Motion Sequence No. 001
• Parties: In the Matter of the Application of THOMAS AMATO, Petitioner, For a Judgment pursuant to Article 78 of the Civil Practice Law and Rules v. THE COUNTY OF NASSAU, Respondent.
• Court: New York Supreme Court

2011 NY Slip Op 31629

In the Matter of the Application of THOMAS AMATO, Petitioner,
For a Judgment pursuant to Article 78 of the Civil Practice Law and Rules
v.
THE COUNTY OF NASSAU, Respondent.

Index No. 495/11
Motion Sequence No. 001

SUPREME COURT - STATE OF NEW YORK TRIAL / IAS PART 30 NASSAU COUNTY

Dated: June 7, 2011

SHORT FORM ORDER

Present: ANTONIO I. BRAND VEEN
J. S. C.

The following papers having been read on this motion:

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                ¦Notice of Motion, Affidavits, & Exhibits¦1¦
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                ¦Answering Affidavits ¦2¦
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                ¦Replying Affidavits ¦3¦
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                ¦Briefs: Plaintiff's / Petitioner's ¦ ¦
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                ¦Defendant's / Respondent's ¦ ¦
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The petitioner Thomas Amato seeks pursuant to CPLR Article 78 an order compelling the respondent County of Nassau to provide the petitioner with legal representation in a federal civil action, to wit Kenneth C. Varricchio, plaintiff against Nassau County State of New York, Nassau County Sheriff's Dept., Nassau County District Attorney's Office, Thomas Amato and Desiree Laster, defendants under United States District County, Eastern District of New York index number 08CV04526 (JFB)

Page 2

(AKT) pursuant to Nassau County Administrative Code § 22-2.8 (2) (a), or if the respondent determines the Nassau County Attorney's representation of the petitioner would be inappropriate to notify the petitioner in writing and reimburse the petitioner for the reasonable attorney's fees and litigation expenses incurred in defense of the petitioner in that federal civil action. The federal civil action was brought by former detainee at the Nassau County Correctional Center who alleged the petitioner used excessive force against him in violation of 42 U.S.C. § 1983. The petitioner claims here the respondent failed to perform a legal duty required by law, specifically Nassau County Administrative Code § 22-2.8 (2) (a). The petitioner also asserts a hearing before the Court is required under CPLR 7804 (h) because there are material issues of fact requiring resolution by a trier of fact. The petitioner maintains he exhausted his administrative remedies, and there is no adequate remedy at law.

The petitioner's attorney states, in the January 11, 2011 verified petition, the petitioner may be entitled to defense and indemnification in the federal law suit from the respondent if the Nassau County Peace Officer Indemnification Board found the petitioner's actions were within the discharge of the petitioner's duties and scope of employment. The petitioner's attorney asserts the petitioner requested representation from the respondent, but the respondent notified the petitioner on May 20, 2009 the Nassau County Peace Officer Indemnification Board determined the respondent would neither represent nor indemnify the petitioner pursuant to General Municipal Law § 50-n.

Page 3

The petitioner's attorney avers the petitioner retained that law firm on or about June 30, 2009 to represent the petitioner in the pending federal litigation paying the law firm from personal funds. So, the petitioner's attorney wrote to the Nassau County Attorney's Office to request the respondent evaluate the petitioner's request for representation under Nassau County Administrative Code § 22-2.8, but the respondent did not respond. The petitioner's attorney maintains an August 16, 2010 letter was sent which reiterated the June 22, 2010 request, and added if the law firm did not receive a response within 30 days then an Article 78 proceeding would be commenced. No response came from the respondent, so the petitioner commenced the instant special proceeding in the nature of a mandamus to compel the respondent.

The respondent challenges the petition, and opposes the relief sought by the petitioner. The Nassau County Attorney's Office maintains, in a February 11, 2011 verified...