Lemma v. Nassau Cnty. Police Officer Indemnification Bd.

• Decision Date: 01 February 2017
• Citation: 147 A.D.3d 760,47 N.Y.S.3d 54
• Parties: In the Matter of Nicholas LEMMA, appellant, v. NASSAU COUNTY POLICE OFFICER INDEMNIFICATION BOARD, et al., respondents.
• Court: New York Supreme Court — Appellate Division

147 A.D.3d 760

47 N.Y.S.3d 54

In the Matter of Nicholas LEMMA, appellant,

v.NASSAU COUNTY POLICE OFFICER INDEMNIFICATION BOARD, et al., respondents.

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

Feb. 1, 2017.

Worth, Longworth & London, LLP, New York, NY (Mitchell Garber and Howard Sterinbach of counsel), for appellant.

Carnell T. Foskey, County Attorney, Mineola, NY (Robert F. Van der Waag of counsel; James LaRusso on the brief), for respondents.

WILLIAM F. MASTRO, J.P., JOSEPH J. MALTESE, COLLEEN D. DUFFY, and VALERIE BRATHWAITE NELSON, JJ.

In a proceeding pursuant to CPLR article 78 to review a determination of the Nassau County Police Officer Indemnification Board, dated May 22, 2009, determining that the petitioner was not entitled to defense or indemnification in an action entitled Crews v. County of Nassau, pending in the United States District Court for the Eastern District of New York, under Case No. CV–06–2610, the petitioner appeals from a judgment of the Supreme Court, Nassau County (Jaeger, J.), entered December 20, 2013, which, upon a decision of the same court dated May 3, 2013, made after a nonjury trial pursuant to CPLR 7804(h), denied the petition and dismissed the proceeding.

ORDERED that the judgment is affirmed, with costs.

The petitioner was a Nassau County Police Department (hereinafter NCPD) detective involved in the investigation of a robbery, for which Raheem Crews and two others were arrested. After the charges against Crews were dismissed, Crews commenced a federal action against the NCPD and others, including the petitioner, alleging unlawful imprisonment and other violations of his civil rights (hereinafter the Crews action). The Deputy County Attorney submitted the matter to the Nassau County Police Indemnification Review Board (hereinafter the Board) to determine whether the members of the police force named in the complaint would be defended and indemnified in connection with the Crews action. On July 28, 2006, the Board determined that defense and indemnification would be provided.

In 2009, the petitioner was deposed in the Crews action. The petitioner was the detective assigned to the robbery investigation. During his testimony, he revealed for the first time that he had learned a few days after Crews was arrested that Crews was in jail on the date of the robbery and, therefore, could not have committed the robbery. Asked what he did with that information, he testified, "I kept it to myself and said ‘Let the chips fall where they may.’ " Although the robbery occurred on March 26, 2005, due to a typographical error, the arrest report and felony complaint alleged that the robbery occurred on April 26, 2005. Crews, arrested on May 27, 2005, was in jail for four months before he was arraigned on an indictment, which alleged the correct robbery date. The alibi was then discovered, Crews was released from jail, and the charges were thereafter dismissed.

Based on the petitioner's admission at his deposition, the Board reopened its original determination to defend and indemnify him. After a hearing, the Board denied the petitioner defense and indemnification, finding that his alleged acts were not committed while in the proper discharge of his duties and within the scope of his employment, as required by General Municipal Law § 50–l. The petitioner appealed the determination to the Board and another hearing was held. In a determination dated May 22, 2009, the Board adhered to its denial of defense and indemnification.

The petitioner commenced this proceeding pursuant to CPLR article 78 to review the Board's determination, arguing that the determination was arbitrary and capricious, lacked a factual basis, and was based on an interpretation of the statute which was contrary to law. The Supreme Court directed a nonjury trial pursuant to CPLR 7804(h), after which the Supreme Court denied the petition and dismissed the proceeding. The petitioner appeals.

Judicial review of administrative determinations not made after a quasi-judicial hearing is limited to whether the action taken by the agency was made in violation of lawful procedure, was affected by an error of law, or was arbitrary and capricious or an abuse of discretion (see CPLR 7803[3] ; Matter of 9215 Realty, LLC v. State of N.Y. Div. of Hous. & Community Renewal, 136 A.D.3d 925, 25 N.Y.S.3d 335 ; Matter of Williamsburg & Greenpoint Parents: Our Pub. Schs.! v. Board of Trustees, State Univ. of N.Y., 130 A.D.3d 638, 639, 13 N.Y.S.3d 219 ). "When a statute is ambiguous and requires interpretation, the construction given to the statute by an administrative agency responsible for its administration should be upheld by the courts, unless the agency's interpretation is irrational, unreasonable, or inconsistent with the governing statute" (Matter of Better World Real Estate Group v. New York City Dept. of Fin., 122 A.D.3d 27, 35, 992 N.Y.S.2d 247 [internal citations omitted]; see Matter of Toys "R" Us v. Silva, 89 N.Y.2d 411, 418–419, 654 N.Y.S.2d 100, 676 N.E.2d 862 ; Matter of Robins v. Blaney, 59 N.Y.2d 393, 399, 465 N.Y.S.2d 868, 452 N.E.2d 1196 ). "When presented with a question of statutory interpretation, [the] primary consideration ‘is to ascertain and give effect to the intention of the Legislature’ " (Matter of DaimlerChrysler Corp. v. Spitzer, 7 N.Y.3d 653, 660, 827 N.Y.S.2d 88, 860 N.E.2d 705, quoting Riley v. County of Broome, 95 N.Y.2d 455, 463, 719 N.Y.S.2d 623, 742 N.E.2d 98 ). Where a statute does not define its terms, those terms must be given their ordinary meaning (see Matter of Better World Real Estate Group v. New York City Dept. of Fin., 122 A.D.3d 27, 35, 992 N.Y.S.2d 247 ).

General Municipal Law § 50–l provides:

"Notwithstanding the provisions of any other law, code or charter, the county of Nassau shall provide for the defense of any civil action or proceeding brought against a duly appointed police officer of the Nassau county police department and shall indemnify and save harmless such police officer from any judgment of a court of competent jurisdiction whenever such action, proceeding or judgment is for damages, including punitive or exemplary damages, arising out of a negligent act or other tort of such police officer committed while in the proper discharge of his duties and within the scope of his employment. Such proper discharge and scope shall be determined by a majority vote of a panel consisting of one member appointed by the Nassau county board of

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