Mura v. Thomas

• Decision Date: 11 September 2020
• Docket Number: 19 CV 8699 (LMS)
• Parties: ANTHONY DELLA MURA, Plaintiff, v. RICHARD THOMAS, et al., Defendants.
• Court: U.S. District Court — Southern District of New York

ANTHONY DELLA MURA, Plaintiff, v. RICHARD THOMAS, et al., Defendants.

19 CV 8699 (LMS)

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

September 11, 2020

DECISION AND ORDER

THE HONORABLE LISA MARGARET SMITH, U.S.M.J.¹

Currently before the Court is Defendant Lawrence Porcari's ("Porcari") motion to compel Defendant City of Mount Vernon ("City") to defend and indemnify Defendant Porcari pursuant to Article IV of the City of Mount Vernon Code. ECF No. 83. Defendant Porcari further requests that the Court enforce the terms of the retainer agreement between Porcari and his attorney, which states that "THE ATTORNEY'S REPRESENTATION, HOWEVER, SHALL BE EXPRESSLY CONDITIONED ON 1) THE DISTRICT COURT ORDERING THE CITY OF MOUNT VERNON TO PAY ALL OF THE CLIENT'S REASONABLE ATTORNEY FEES IN DEFENCE OF THE CLIENT IN THE ABOVE PROCEEDING AT THE EXPRESS HOURLY RATE OF $600 PER HOUR AND 2) A FURTHER ORDER OF THE COURT DIRECTING THE COMPTROLLER OF THE CITY OF MOUNT VERNON TO PAY THE ATTORNEY'S LEGAL FEE INVOICES WITHIN 30 DAYS OF THEIR SUBMISSION TO THE COMPTROLLER OR BE HELD IN CONTEMPT." ECF No. 83-11 (Memo. of Law in Support); ECF No. 83-4 (Retainer Agreement).

For the following reasons, Defendant Porcari's motion to compel is GRANTED in part and DENIED in part.

BACKGROUND

Plaintiff commenced this civil action on September 19, 2019, against Defendants Richard Thomas ("Thomas"), Lawrence Porcari ("Porcari"), Benjamin Marable ("Marable"),² Mount Vernon Board of Water Supply ("MVBWS"), and the City of Mount Vernon ("City"). ECF No. 1. Plaintiff alleges that Defendants unlawfully prevented Plaintiff from conducting his work as Senior Bookkeeper for the City and unlawfully rejected Plaintiff's requests for reasonable accommodations due to his disability in an effort to prevent Plaintiff from uncovering payments that Defendant Porcari (then Corporation Counsel for the City of Mount Vernon) directed be made from Mount Vernon Board of Water Supply bank account to pay for the legal fees of Defendant Thomas (then Mayor of the City of Mount Vernon) in violation of the Racketeer Influenced and Corrupt Organizations ("RICO") Act and the Americans with Disabilities Act ("ADA"). Id.

In January 2020, Defendant City and Defendant MVBWS moved to disqualify counsel for Defendant Thomas and Defendant Porcari. ECF Nos. 51, 54. The Court granted the motion on April 30, 2020. ECF No. 71. By separate order, the Court expressed its expectation that Defendants Thomas and Porcari would secure new counsel within 30 days. ECF No. 72. On June 9, 2020, the Court directed Defendant Thomas³ and Defendant Porcari to provide a statusupdate to the Court within fourteen days as no attorneys had filed notices of appearances on Defendants' behalf. ECF No. 73. On July 4, 2020, Mario Biaggi, Jr. ("Biaggi" or "private counsel") filed a notice of appearance on behalf of Defendant Porcari. ECF No. 77. Biaggi limited his appearance to making a motion to compel Defendant City to pay Defendant Porcari's attorneys' fees. Id. The undersigned granted Defendant Porcari permission to make his motion to compel and set a briefing schedule. Minute Entry for 7/30/2020. The motion is now fully briefed.

DISCUSSION

The City of Mount Vernon Municipal Code ("Code") Part I, Chapter 50, Article IV § 50-44 governs a City employee's right to have his or her legal defense provided for by the City. Pursuant to the Code, the City " shall provide for the defense of the employee in any civil action or proceeding in any state or federal court or before any board, bureau, agency or commission, arising out of any alleged act of omission or commission 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 . . ." if the employee delivers to the City's corporation counsel "the original or a copy of any summons, complaint, process, notice, demand or pleading within five days after he is served with such document." Article IV §§ 50-44(A), 50-46. "[T]he employee shall be entitled to be represented by the City Corporation Counsel; provided, however, that the employee shall be entitled to representation by private counsel of his choice in any civil judicial proceeding whenever the Corporation Counsel determines, based upon his investigation and review of the facts and circumstances of the case, that representation by the Corporation Counsel would be inappropriate or whenever a court of competent jurisdiction, upon appropriate motion or by a special proceeding, determines that a conflict of interest exists and that the employee isentitled to be represented by private counsel of his choice." Article IV § 50-44(B). The Code provides that "[a]ttorneys' fees and litigation expenses shall be set by a contract at a flat rate to be established by the Corporation Counsel and shall be paid by the City to such private counsel from time to time during the pendency of the civil action or proceeding subject to the certification that the employee is entitled to representation under the terms and conditions of this section . . ." Id.

Defendant City seemingly concedes that Defendant Porcari is entitled to his choice of private counsel paid for by the City and only opposes Defendant Porcari's motion on the ground that Defendant Porcari failed to comply with the statutory process for approving private counsel and counsel's rate. ECF No. 84 at ¶¶ 3-7, 12. Defendant City's opposition is based on Article IV § 50-44(B) of the Code and two new chapters to the Code (Chapters 268 and 268-2) that the City enacted on June 25, 2020. Id. at ¶¶ 5-6. The new chapters set forth requirements for the use of independent counsel, which include that independent counsel must have its rates approved by the Board of Estimate prior to commencing any legal work and that independent counsel must file its retainer agreement with the Board of Estimate. ECF No. 84-1.

Defendant Porcari states in his Reply Affidavit that he tendered process to Corporation Counsel within five days of his receipt along with a request for representation, as required by §§ 50-44 and 50-46, but his request was rejected. ECF No. 85-2. Private counsel also submitted emails between himself and Corporation Counsel which detail private counsel's request for the City to pay for his fees. ECF No. 83-3. Private counsel's request was also rejected. Id.

Defendant City's argument that Porcari failed to comply with Chapters 268 and 268-2 (the newly enacted Code chapters) is unpersuasive. First, the new chapters were enacted nine months after this case was filed and after both Defendant's Porcari's and private counsel'srequests had been denied. These provisions do not state that theywill apply retroactively, and the Court has no legal basis upon which to hold Defendant Porcari to provisions enacted ex post facto. Second, Defendant City has not shown that Chapters 268 and 268-2 apply in this case. When interpreting a statute, the Court must look first to the text. See Griffith v. Steiner Williamsburg, LLC, 760 F. Supp. 2d 345, 355 (S.D.N.Y. 2010) (" 'Statutory interpretation always begins with the plain language of the statute,' which [the court] consider[s] in 'the specific context in which that language is used, and the broader context of the statute as a whole.'"). The new chapters establish requirements for the City's use of "independent counsel." ECF No. 84-1. However, the language setting forth an employee's right to defense uses the term "private counsel." Compare ECF No. 84-1 with Article IV § 50-44(B). "Independent counsel" is defined in Chapter 268 as "any legal counsel or licensed attorney who is sought to be retained by or after being duly retained under this Chapter by, any City officers, boards, or departments when the Corporation Counsel of the City of Mount Vernon has a qualifying conflict of interest under New York State Law." ECF 84-1 (emphasis added). "Private counsel" as used in § 50-44 is not covered by this definition. The only explicit reference to private counsel being sought and retained by Corporation Counsel is in § 50-44(D), which states that upon receipt of process and a request for representation, Corporation Counsel must "take the necessary steps, including the retention of private counsel . . . on behalf of the employee to avoid entry of default pending resolution of any question pertaining to the obligation to provide for a defense." The implication is that in other contexts, the employee would seek and retain counsel as opposed to Corporation Counsel engaging private counsel for the employee to avoid default, which is not the case here. Private counsel would not be "retained under this Chapter" (Chapter 268) because the provision providing for an employee's right to a defense is in another chapter (i.e. Chapter 50). Further, thesubstantive text of Chapters 268 and 268-2 make no mention of independent counsel in the context of defending an employee but make several references to independent counsel being retained by or acting on behalf of City departments, boards, or officials. See ECF No. 84-1. For these reasons, the Court does not require Defendant Porcari to comply with Chapters 268 and 268-2.

The Court will require the parties to comply with Article IV § 50-44. Section 50-44(B) requires Corporation Counsel to certify...