Wehr v. Brown

• Citation: 92 N.Y.S.3d 663 (Mem),169 A.D.3d 807
• Decision Date: 13 February 2019
• Docket Number: 2016–04784,Index No. 19700/15
• Parties: In the Matter of Everett WEHR, Appellant, v. Dennis M. BROWN, etc., et al., Respondents.
• Court: New York Supreme Court Appellate Division

169 A.D.3d 807

92 N.Y.S.3d 663 (Mem)

In the Matter of Everett WEHR, Appellant,

v.Dennis M. BROWN, etc., et al., Respondents.

2016–04784

Index No. 19700/15

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

Argued—October 15, 2018

February 13, 2019

Wayne J. Schaefer, LLC, Smithtown, NY, for appellant.

Dennis M. Brown, County Attorney, Hauppauge, N.Y. (Megan O'Donnell of counsel), respondent pro se and for respondent County of Suffolk.

MARK C. DILLON, J.P., ROBERT J. MILLER, HECTOR D. LASALLE, ANGELA G. IANNACCI, JJ.

DECISION & ORDER

In a hybrid proceeding pursuant to CPLR article 78 and action for declaratory relief, the petitioner/plaintiff appeals from a judgment of the Supreme Court, Suffolk County (John H. Rouse, J.), dated March 9, 2016. The judgment denied the petition to annul a determination of the respondent Suffolk County Attorney, dated July 21, 2015, finding that the petitioner is not entitled to defense or indemnification in an action entitled Olsen v. Wehr, pending in the Supreme Court, Suffolk County, under Index No. 10515/15, and, in effect, dismissed the petition/complaint.

ORDERED that the judgment is affirmed, with costs.

The petitioner/plaintiff (hereinafter the petitioner) is a police officer employed by the County of Suffolk. In June 2015, a fellow police officer commenced an action against the petitioner to recover damages for sexual assault and battery. Shortly after the assault action was commenced, the petitioner requested, pursuant to Code of Suffolk County § 42–3(A) (former Code of Suffolk County § 35–3[A] ), that the County provide for his legal defense in the underlying action. The Suffolk County Attorney denied the request, finding that the alleged acts did not occur within the scope of the petitioner's employment. In November 2015, the petitioner commenced this hybrid proceeding and action to annul the County Attorney's determination as arbitrary and capricious, and for a judgment declaring, among other things, that the County must defend and indemnify him in the underlying action. The Supreme Court denied the petition and, in effect, dismissed the petition/complaint.

The determination of the County Attorney as to whether the acts which formed the basis of the underlying action were committed within the scope of the petitioner's employment may be set aside only if it 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 Salino v. Cimino, 1 N.Y.3d 166, 172, 770 N.Y.S.2d 702, 802 N.E.2d 1100 ; Matter of DiLeonardo v. Nassau County Police Officer Indemn. Bd., 148 A.D.3d 701, 702, 49 N.Y.S.3d 466 ). That standard was not met here. A sexual assault perpetrated by an employee is not in furtherance of business and is a clear departure from the scope of employment, having been committed for wholly personal motives (see N.X. v. Cabrini Med. Ctr., 97 N.Y.2d 247, 251, 739 N.Y.S.2d 348, 765 N.E.2d 844 ; Judith M. v. Sisters of Charity Hosp., 93 N.Y.2d 932, 933, 693 N.Y.S.2d 67, 715 N.E.2d 95 ; Berardi v. Niagara County, 147 A.D.3d 1400, 1402, 47 N.Y.S.3d 544 ; Mayo v. New York City Tr. Auth., 124 A.D.3d 606, 607, 3 N.Y.S.3d 36 ; "John Doe 1" v. Board of Educ. of Greenport Union Free Sch. Dist. , 100 A.D.3d 703, 706, 955 N.Y.S.2d 600 ; Kunz v. New Netherlands Routes, Inc., 64 A.D.3d 956, 958, 882 N.Y.S.2d 565 ; Bowman v. State, 10 A.D.3d 315, 316, 781 N.Y.S.2d 103 ). Accordingly, the County Attorney's determination denying the petitioner a defense and indemnification in the underlying action was not arbitrary or capricious.

Additionally, although the petitioner asserted causes of action seeking declaratory relief, in...