Krug v. City of Buffalo

• Decision Date: 08 June 2018
• Docket Number: 17–01399,67
• Citation: 162 A.D.3d 1463,79 N.Y.S.3d 404
• Parties: In the Matter of Corey KRUG, Petitioner–Respondent, v. CITY OF BUFFALO, Respondent–Appellant.
• Court: New York Supreme Court — Appellate Division

162 A.D.3d 1463

79 N.Y.S.3d 404

In the Matter of Corey KRUG, Petitioner–Respondent,

v.CITY OF BUFFALO, Respondent–Appellant.

67

17–01399

Supreme Court, Appellate Division, Fourth Department, New York.

Entered: June 8, 2018

TIMOTHY A. BALL, CORPORATION COUNSEL, BUFFALO (DAVID M. LEE OF COUNSEL), FOR RESPONDENT–APPELLANT.

CREIGHTON, JOHNSEN & GIROUX, BUFFALO (IAN HAYES OF COUNSEL), FOR PETITIONER–RESPONDENT.

PRESENT: WHALEN, P.J., SMITH, DEJOSEPH, NEMOYER, AND WINSLOW, JJ.

MEMORANDUM AND ORDER

It is hereby ORDERED that the judgment so appealed from is affirmed without costs.

Memorandum: Petitioner, a police officer employed by respondent, City of Buffalo, commenced this proceeding pursuant to CPLR article 78 to challenge respondent's determination denying his request that respondent defend and indemnify him in a civil action. The civil action arose from an incident in which petitioner was on patrol and allegedly attacked and assaulted a civilian complainant in violation of the complainant's constitutional rights. Petitioner was indicted in connection with that incident, and the complainant thereafter commenced the civil action. Supreme Court determined that petitioner's request for indemnification was premature, and the court granted that part of the petition seeking to annul respondent's denial of petitioner's request to be defended on the ground that the determination with respect thereto was arbitrary and capricious. Respondent appeals, and we affirm.

We reject respondent's contention that its determination was not arbitrary and capricious. Respondent has a duty to provide a defense to petitioner "if his alleged conduct occurred or allegedly occurred while he was acting within the scope of his public employment or duties" ( Matter of Riehle v. County of Cattaraugus, 17 A.D.3d 1029, 1029, 794 N.Y.S.2d 186 [4th Dept. 2005] ; see Buffalo City Code §§ 35–28, 35–29), and the determination that petitioner was not acting within the scope of his public employment or duties "may be set aside only if it lacks a factual basis, and in that sense, is arbitrary and capricious" ( Matter of Williams v. City of New York, 64 N.Y.2d 800, 802, 486 N.Y.S.2d 918, 476 N.E.2d 317 [1985] ). Here, it is undisputed that petitioner was on duty and working as a police officer when the alleged conduct occurred (see generally Riviello v. Waldron, 47 N.Y.2d 297, 304–305, 418 N.Y.S.2d 300, 391 N.E.2d 1278 [1979] ).

We respectfully disagree with the view of our dissenting colleagues that a 30–second–long video recording of a portion of the incident, considered in conjunction with the indictment, provides a factual basis for respondent's implicit determination that petitioner was not acting within the scope of his employment and duties as a police officer. First, it is well settled that "[a]n indictment is a mere accusation and raises no presumption of guilt" ( People v. Miller, 91 N.Y.2d 372, 380, 670 N.Y.S.2d 978, 694 N.E.2d 61 [1998] ; see Republic Pension Servs. v. Cononico, 278 A.D.2d 470, 472, 718 N.Y.S.2d 76 [2d Dept. 2000] ; see also In re Oliver, 333 U.S. 257, 265, 68 S.Ct. 499, 92 L.Ed. 682 [1948] ). Thus, the filing of an indictment against petitioner does not provide a factual basis to support the denial of a defense to petitioner in the civil action. Second, the video recording captured only part of the encounter between petitioner and the complainant, and did not capture the beginning or the end of the encounter. As a result, the recorded images of petitioner striking the complainant in the area of his legs and feet with a baton are unaccompanied by contextual factual information that would be essential to support a determination that petitioner's actions fell outside the scope of his employment and duties as a police officer. Notably, the brief video clip shows a loud and chaotic intersection with a heavy police presence, and petitioner appeared to be dressed in police uniform and wearing a jacket with the word "POLICE" printed in bold letters. Three of the officers in the video appeared to be carrying batons, like petitioner, and one other officer appeared to have been engaged in a physical struggle with a civilian on the sidewalk. That struggle appeared to continue into the roadway before the other officer and the civilian disengaged, at which point the camera panned over to a parking lot where petitioner was already engaged with the complainant.

Although it is well settled that an employee's conduct does not fall within the scope of his or her employment where his or her actions are taken for wholly personal reasons not related to the employee's job (see Beauchamp v. City of New York, 3 A.D.3d 465, 466, 771 N.Y.S.2d 129 [2d Dept. 2004] ; Schilt v. New York City Tr. Auth., 304 A.D.2d 189, 194, 759 N.Y.S.2d 10 [1st Dept. 2003] ), we conclude that the video recording does not establish that petitioner's actions were taken for wholly personal reasons unrelated to his job as a police officer. Absent sufficient factual support upon which to make that determination, we conclude that respondent's denial of petitioner's request for a defense in the civil action was arbitrary and capricious (see generally Matter of Scherbyn v. Wayne–Finger Lakes Bd. of Coop. Educ. Servs., 77 N.Y.2d 753, 758, 570 N.Y.S.2d 474, 573 N.E.2d 562 [1991] ; Williams, 64 N.Y.2d at 802, 486 N.Y.S.2d 918, 476 N.E.2d 317 ; Matter of Taft v. Village of Newark Planning Bd., 74 A.D.3d 1840, 1841, 904 N.Y.S.2d 839 [4th Dept. 2010] ).

All concur except Dejoseph and Nemoyer, JJ., who dissent and vote to reverse in accordance with the following memorandum: We respectfully dissent and vote to reverse the judgment and grant respondent's motion to dismiss the petition.

Municipalities must defend and indemnify police officers for torts committed "within the scope of [their] employment" ( General Municipal Law § 50–j[1] ), which the law defines as the "immediate and actual performance of a public duty ... for the benefit of the citizens of the community" ( § 50–j[2] ). In the City of Buffalo, the Corporation Counsel determines in the first instance whether any particular tort was committed within the scope of a police officer's employment such that he or she receives a taxpayer-funded defense (see Buffalo City Code § 35–28; Matter of Salino v. Cimino, 1 N.Y.3d 166, 172 n 4, 770 N.Y.S.2d 702, 802 N.E.2d 1100 [2003] ). The Corporation Counsel's determination will be upheld so long as, insofar as relevant here, it is not arbitrary and capricious (see Salino, 1 N.Y.3d at 172, 770 N.Y.S.2d 702, 802 N.E.2d 1100 ; Matter of Williams v. City of New York, 64 N.Y.2d 800, 802, 486 N.Y.S.2d 918, 476 N.E.2d 317 [1985] ). Notably, the Court of Appeals has specifically rejected the notion that the Corporation Counsel's determination is controlled by the language of the civil complaint against which a taxpayer-funded defense is sought (see Salino, 1 N.Y.3d at 172, 770 N.Y.S.2d 702, 802 N.E.2d 1100 ). Thus, the mere fact that a plaintiff accuses an officer of violating his or her rights under color of law does not, by itself, entitle the officer to a taxpayer-funded defense against those allegations.

So far, we are all in accord. We part company with the majority, however, in its application of those principles to the facts of this case. The majority holds that the Corporation Counsel acted arbitrarily and capriciously in determining that petitioner was not acting within the scope of his employment during the imbroglio that gave rise to the underlying civil lawsuit. But we say precisely the opposite. The imbroglio was captured on videotape, and it shows petitioner, armed with a baton, violently striking a prone and unarmed man for no apparent reason. As a result of this conduct, petitioner was charged criminally in federal court and sued civilly in Supreme Court. The Corporation Counsel took all three pieces of information—video, criminal indictment, and civil complaint—into account in making the challenged determination. Under these circumstances, we cannot say that the Corporation Counsel's determination to withhold a...