January 13, 2011

Representation and indemnification of a public employee being sued

Representation and indemnification of a public employee being sued
Ganzman v Hess, App. Div., 273 A.D.2d 352

Defending a public employee who is being sued as a result of some act or omission in the performance of his or her official duties is an important benefit. When Joel Ganzman, the Deputy Public Administrator of the Office of the Public Administrator of Kings County [Office] was named as a defendant in a Federal discrimination suit, [Gryga v Ganzman, Docket No. 97 Civ 3929, USDC, EDNY], he asked Michael D. Hess, Corporation Counsel of the City of New York and the City of New York, to defend him and, if necessary, indemnify him if he was held liable for damages. Hess rejected Ganzman’s request on the ground that he was not a City employee.

Ganzman sued and won a court order by a State Supreme Court Justice requiring Hess, and the City of New York, to defend and indemnify him should the need arise.

Hess appealed. The Appellate Division affirmed the result, but for a different reason. It said that it is undisputed that the expenses of the Office are funded at least in part by the City. Accordingly, said the court, the Office is an agency of the City as defined by General Municipal Law Section 50-k(1)(a). Since Ganzman holds a position in the Office, he is an employee as defined by GML Section 50-k(1)( e). Conclusion: he is entitled to the defense available to any employee under GML Section 50-k(2).

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