Plaintiff commenced this action against the City of New York [City] and one of its employees, [Employee], among others, seeking to recover damages for alleged employment discrimination on the basis of sex and unlawful retaliation in violation of Administrative Code of the City of New York §8-107.
Employee requested that the City's Corporation Counsel to provide her with legal representation in Plaintiff's action but Corporation Counsel denied her request. Employee then retained her own counsel and initiated a cross-claim against the City pursuant to General Municipal Law §50-k seeking, among other things, to recover attorneys' fees and costs she incurred in her defense in Plaintiff's action.
In response City filed a motion for summary judgment dismissing Employee's cross-claim seeking fees and costs incurred in her defense of Plaintiff's action. Supreme Court denied the City's motion and the City appealed.
The Appellate Division reversed Supreme Court's order dismissing the City's cross-motion for summary judgment with respect to the cross-claim of Employee to recover attorneys' fees and costs incurred in Employee's defense of Plaintiff's action.
In the words of the Appellate Division, "City demonstrated its prima facie entitlement to summary judgment dismissing so much of [Employee's] cross-claim as sought to recover attorneys' fees and costs incurred in her defense of this action by submitting the discipline report, in which [Employee] accepted the OEEO's [Office of Equal Employment Opportunity] substantiated findings, inter alia, that [Employee] subjected a coworker to 'inappropriate touching' on three separate occasions".
This, said the court, provided a sufficient factual basis for Corporation Counsel's determination that Employee was not entitled to representation or indemnification on the ground that Employee violated one or more of the employer's rules and was not acting within the scope of her employment, citing General Municipal Law §50 and Matter of Williams v City of New York, 64 NY2d at 802.
The Appellate Division then opined "[Employee] failed to raise a triable issue of fact" and "the Supreme Court should have granted the City's cross-motion for summary judgment dismissing so much of [Employee's] cross-claim as sought to recover attorneys' fees and costs incurred in [Employee's] defense of this action".
Click HERE to access the Appellate Division's decision posted on the Internet.