September 27, 2018

The availability of General Municipal Law §50-e(1)(b) rights to "defense and indemnification" to a municipal employees in an action brought in federal court


The availability of General Municipal Law §50-e(1)(b) rights to "defense and indemnification" to a municipal employees in an action brought in federal court
Richard Hardy  v Daley et. al., [New York City police officers in their personal rather than their official capacities], United States Court of Appeals, Second Circuit, C.V. 172906

The United States District Court, Southern District, dismissed Richard Hardy's amended complaint alleging sexual assault, intentional infliction of emotional distress, and failure to intervene federal civil rights claims with prejudice for failure to state a cause of action.

The Circuit Court sustained the district court's ruling with respect to the federal civil rights claims explaining that such a complaint must plead "enough facts to state a claim to relief that is plausible on its face ... and allow the court to draw the reasonable inference that the defendant is liable for the misconduct alleged."

Hardyʹs federal complaint, however, included New York State law claims, which the district court dismissed "failure to serve a timely notice of claim." The Circuit Court ruled that the district court had err in so doing.

Under New York law, explained the Circuit Court, service of a notice of claim is a condition precedent to tort actions against a municipal entity or its employees and these provision apply "to state law claims even when they are brought in federal court." In contrast, in actions commenced against a municipal employee but not against the employing municipal corporation,* the service of a notice of claim upon the corporation is "required only if the corporation has a statutory obligation to indemnify [the employee]" pursuant to §50-e(1)(b) of the General Municipal Law.

A municipality, however, is required to indemnify its employee only if his or her liability arose as the result of an act or omission constituting conduct "within the scope of his [or her] employment and in the discharge of his [or her] duties." Noting that Hardyʹs state law tort claims against defendants in their individual capacities are founded on alleged conduct that would be well beyond the scope of employment the Circuit Court explained that such allegations "would, by definition, have constituted 'intentional wrongdoing' [whereby] defendants would not have a right to indemnification by their public employer" otherwise available to such employees pursuant to §50-e(1)(b) of the General Municipal Law.

Accordingly, the Circuit Court found that Hardyʹs state law tort claims were not procedurally barred for failure to file a notice of claim and remanded the case is "for further proceedings consistent with this ruling."

* Service of the notice of claim upon an officer, appointee or employee of a public corporation shall not be a condition precedent to the commencement of an action or special proceeding against such person. If an action or special proceeding is commenced against such person, but not against the public corporation, service of the notice of claim upon the public corporation shall be required only if the corporation has a statutory obligation to indemnify such person under this chapter or any other provision of law. The defendants are New York City police officers being sued in their personal rather than their official capacities and the City of New York is not a defendant in this action.

The decision is posted on the Internet at:

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