Messinger v. Yap

• Decision Date: 28 April 1994
• Citation: 611 N.Y.S.2d 322,203 A.D.2d 870
• Parties: Patricia MESSINGER, Individually and as Parent and Natural Guardian of Todd Messinger, an Infant, Respondent, v. Leding YAP et al., Appellants, et al., Defendant. State of New York, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 322

611 N.Y.S.2d 322

203 A.D.2d 870

Patricia MESSINGER, Individually and as Parent and Natural Guardian of Todd Messinger, an Infant, Respondent, v. Leding YAP et al., Appellants, et al., Defendant State of New York, Appellant.

Supreme Court, Appellate Division,

Third Department.

April 28, 1994.

Wilson, Bave, Conboy & Bave (John P. Perfetti, of counsel), White Plains, for Leding Yap, appellant.

Shapiro, Shiff, Beilly, Rosenberg & Fox (Lewis Rosenberg, of counsel), New York City, for Norman Sehayik, appellant.

G. Oliver Koppell, Atty. Gen. (Michael S. Buskus, of counsel), Albany, for State of New York, appellant.

Spiegel, Pergament, Brown & Basso (John J. Basso, of counsel), Poughkeepsie, for respondent.

Schiavetti, De Vito, Begos & Nicholson (Carl D. Weinberg of counsel), White Plains, for Medical Liability Mut. Ins. Co., amicus curiae.

Before MIKOLL, J.P., and CREW, WHITE, YESAWICH and PETERS, JJ.

WHITE, Justice.

Appeal (transferred to this court by order of the Appellate Division, Second Department) from an order of the Supreme Court (Jiudice, J.), entered July 18, 1991 in Dutchess County, which granted motions by defendants Leding Yap and Norman Sehayik for representation and indemnification by the State of New York and denied motions by said defendants to strike their examinations before trial.

Plaintiff commenced this action against numerous defendants in April 1988 alleging, inter alia, negligence and malpractice in the administration of anesthesia to plaintiff's infant son, Todd Messinger, at the State-owned Helen Hayes Hospital in Rockland County on or about August 23, 1978. As a result of alleged malpractice, the infant suffered cardiac arrest which resulted in serious and permanent injuries. Defendants Leding Yap and Norman Sehayik were anesthesiologists during this procedure. Subsequent to the commencement of litigation, the Attorney-General undertook the representation of Yap and Sehayik pursuant to Public Officers Law § 17. On June 5, 1989, Yap was deposed and on June 27, 1989, a videotaped deposition of Sehayik was conducted with an Assistant Attorney-General appearing for both defendants during their respective examinations before trial.

By letter dated October 6, 1989, however, the Attorney- General advised Sehayik that upon investigation of the facts and circumstances of the case, it would be inappropriate for the Attorney-General to represent him in this matter. The letter further stated that Sehayik would be entitled to representation by private counsel and that the State would pay reasonable counsel fees and litigation expenses in this regard pursuant to Public Officers Law § 17(2)(b). In addition, the letter called attention to Public Officers Law § 17(3)(a) regarding indemnification by the State if the act or omission from which the judgment or settlement arose occurred while Sehayik was acting in the scope of his public employment or duties and did not result from any intentional wrongdoing. It is conceded that Yap received an identical letter from the Attorney-General.

Yap and Sehayik (hereinafter collectively referred to as defendants) each retained independent counsel and both thereafter moved to suppress their examinations before trial on the ground that the Attorney-General had not properly represented them during their pretrial examinations. Sehayik further moved for an order directing the State to continue to pay for his defense and to indemnify him pursuant to Public Officers Law § 17(3)(a) if he was found to be liable on plaintiff's claim, and Yap joined in the motion.

Supreme Court denied defendants' motions to strike their examinations before trial but held that the State was responsible to continue to defend, indemnify and save harmless defendants pursuant to Public Officers Law § 17. Defendants each appeal the denial of their motions to suppress the examinations before trial and the State appeals the order directing continued defense and indemnification.

Public Officers Law § 17(1)(a) defines the term employee to include "any person holding a position by election, appointment or employment in the service of the state * * * but shall not include an independent contractor". Public Officers Law § 17(2)(a) directs that the State provide for the defense of the employee in any civil action "arising out of any alleged act or omission which occurred or is alleged in the complaint to have occurred while the employee was acting within the scope of his public employment or duties". Pursuant to this section, the State undertook the defense of defendants, as it was required to do given the allegations in the complaint (see, Frontier Ins. Co. v. State of New York, 172 A.D.2d 13, 576 N.Y.S.2d 622). When the Attorney-General determined that representation by his office would be inappropriate, he authorized representation of defendants by private counsel of their choice in accordance with Public Officers Law § 17(2)(b) (see, Matter of O'Brien v. Regan, 182 A.D.2d 869, 581 N.Y.S.2d 911, lv. denied 80 N.Y.2d 758, 589 N.Y.S.2d 308, 602 N.E.2d 1124).

Defendants contend that once the State undertook their defense as employees, it is bound to indemnify them pursuant to Public Officers Law § 17(3)(a), particularly in view of the delay before withdrawing as their attorney. However, it is the general rule that estoppel does not lie against the State (see, Matter of Hamptons Hosp. & Med. Ctr. v. Moore, 52 N.Y.2d 88, 436 N.Y.S.2d 239, 417 N.E.2d 533) unless there is a wrongfully induced reliance by one entitled to rely and who detrimentally changes his or her position (see, Bender v. New York City Health & Hosps. Corp., 38 N.Y.2d 662, 382 N.Y.S.2d 18, 345 N.E.2d 561). In the instant case, the Attorney-General's letter of October 1989, as well as an earlier letter of August 16,...