Providing for the defense and indemnification of officers and employees of public entities named as defendants in civil litigation

Providing for the defense and indemnification of officers and employees of public entities named as defendants in civil litigation
2014 NY Slip Op 05510, Appellate Division, Second Department

A number of employees [Plaintiffs] of the State sued their employer and named an agency employee “in her official capacity” for damages for “intentional infliction of emotional distress, negligent misrepresentation, fraudulent misrepresentation, defamation, abuse of process, and civil rights violations pursuant to 42 USC § 1983.”

In response to the Attorney General’s motion to dismiss the complaint, Plaintiffs filed an amended complaint removing the agency and the employee “in her official capacity” as defendants and then sought to name the employee as the defendant “in her individual capacity.”

The bottom line: Supreme Court granted Attorney General’s motion to dismiss the amended complaint as “time barred” and Plaintiffs appealed.

Among the issues considered by the Appellate Division was Plaintiffs’ contention that the Attorney General “was without authority to defend” the employee in this action as she was being sued in her “individual capacity” rather than in her “official capacity.” The Appellate Division said that Plaintiffs' arguments were “without merit,” citing Public Officers Law §17[2][a])*.

§17[2][a] provides for the defense of State officers and employee in any civil action or proceeding in any state or federal court arising out of any alleged act or omission which occurred or is alleged in the complaint to have occurred while the officer or employee was acting within the scope of his or her public employment or duties, including the federal civil rights statutes, 42 USC 1981 and 42 US 1983.

The Appellate Division then sustained Supreme Court’s ruling that the statutes of limitations applicable to the Plaintiffs' claims” filed against the employee in her individual capacity had expired, explaining that the statute of limitations was not tolled by the doctrine of equitable estoppel as the record establishes that Plaintiffs had "timely awareness of the facts requiring [them] to make further inquiry before the statute[s] of limitations expired.”

* §18[2][a] of the Public Officers Law permits public entities other than the State as an employer to provide for the defense and indemnification of its officers and employees of public entities upon its adoption of an appropriate law, by-law, rule, regulation or resolution.
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