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September 29, 2015

A political subdivision of the State may provide for the defense and indemnification of its officers and employees sued in state or federal court involving the performance of official duties


A political subdivision of the State may provide for the defense and indemnification of its officers and employees sued in state or federal court involving the performance of official duties
Bonilla v Town of Hempstead, 2015 NY Slip Op 06916, Appellate Division, Second Department

Former Hempstead Town Clerk Mark A. Bonilla initiated an Article 78 action seeking a court order compelling the  Town of Hempstead to provide him with a defense and indemnification in an action entitled Smith v Town of Hempstead, CV-134985, pending in the United States District Court for the Eastern District of New York as mandated by the Town Code.

The relevant section of the Town Code, §11-2(A), provides as follows:

The town shall provide for the defense of an 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 employee was acting within the scope of his public employment or duties or which is brought to enforce a provision of Section 1981 or 1983 of Title 42 of the United States Code; provided, however, that the duty of the town to defend or save harmless shall be conditioned upon: 

1. Delivery to the Town Attorney at his offices by the employee of the original or a copy of any summons, complaint, process, notice, demand or pleading within five days after he is served with such document. Such delivery shall be deemed a request by the employee that the town provide for his defense pursuant to this chapter 

2. The full cooperation of the employee in the defense of such action or proceeding and in the defense of any action or proceeding against the town based upon the same act or omission and in the prosecution of any appeal.

Supreme Court granted Bonella’s petition and the Town appealed.

The Appellate Division affirmed the Supreme Court’s ruling, noting that §11-2(A) of the Code of the Town of Hempstead provides, in relevant part, that the Town "shall provide for the defense of an employee [or former 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] to have occurred while the employee was acting within the scope of his [or her] public employment or duties or which is brought to enforce a provision of [42 USC §1981 or 42 USC §1983]."* 

As the underlying federal complaint seeks to recover damages for civil rights violations pursuant to 42 USC §1983 and neither the parties nor the Supreme Court addressed the provision of Town Code §11-2(A) directing the Town to defend an employee in any action seeking to enforce a provision of 42 USC §1983, the Appellate Division focused “only on the question of whether the federal complaint sufficiently alleged that the harassment occurred while [Bonilla] was acting in the scope of his employment.”

The court explained that the duty to defend an employee or former employee is broader than the duty to indemnify and it is triggered if the civil complaint includes allegations that the employee was acting within the scope of his or her employment at the time of the alleged wrongdoing. In this instance the federal complaint included allegations that Bonilla committed act constituting sexual harassment while acting in the scope of his employment as the Town Clerk, that the Town facilitated a hostile work environment, and that the Town failed to prevent workplace harassment.

Supreme Court determined that the allegations in the federal complaint were sufficient to trigger the Town's broad duty to defend Bonilla notwithstanding the Town’s argument to the contrary and the Appellate Division sustained the Supreme Court’s ruling. Thus, said the court, Supreme Court properly granted the petition to the extent of directing the Town to provide a defense for Bonilla in the federal action.

* With the exception of the provision regarding actions brought to enforce a provision of 42 USC §1981 or 42 USC §1983, the language contained in Town Code §11-2(A) is similar to language set out in Public Officers Law §18 and was enacted as Local Law No. 2-1980, adopted January 8, 1980, effective January 11, 1980.  In contrast to §18 of the Public Officers Law, §17.2(a) of the Public Officers Law provides for “Defense and indemnification of state officers and employees” in civil and federal actions, including actions brought pursuant to 42 USC §1981 or 42 USC §1983.

The decision is posted on the Internet at:

Public Personnel Law E-books

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