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Apr 6, 2026

Deceased employee estate denied representation and indemnification by the employer because the individual's actions were not undertaken as part of his regular duties

In this CPLR Article 78 action Petitioners challenged the determination of the Orange County Executive that the Estate of a deceased Orange County, New York employee [Deceased] was not entitled to defense or indemnification by the County in an action pending in the United States District Court, Southern District of New York.

The County Executive's found that the Decease's acts did not involve the performance of his "regular duties", a determination that was sustained by Supreme Court, Orange County. Petitioners then appealed the Supreme Court's ruling.

The Appellate Division said the issue of whether a county employee's act was "committed within the scope of his [or her] public employment and the discharge of his [or her] duties" is a factual question. In the words of the Court, "Orange County Local Law 3 provides that the determination as to whether a County employee was so acting and, thus is entitled to defense and indemnification, is to be made in the first instance by the County Executive."

The Appellate Division then noted that County Executive's "determination may be set aside only if it lacks a factual basis, and in that sense, is arbitrary and capricious".

In the instant action Appellate Division found that the County Executive's determination that the Deceased was not acting within the scope of his employment or duties with the Office of the Orange County District Attorney [OCDA] in connection with his conduct alleged in the federal action. Accordingly, the Court concluded that the Estate was not entitled to be "defended and indemnified" by the County.

In particular, the Appellate Division said the County Executive "rationally based his determination on the allegations of the complaint in the federal action and in the underlying federal indictment demonstrating that [the Deceased's] actions in investigating and prosecuting ... were not undertaken as part of [the Deceased's] normal duties as an OCDA prosecutor but rather were undertaken in connection with an illegal bribery scheme carried out with his friend ... purely for personal purposes, and which was actively concealed from the OCDA".

Click HERE to access the Appellate Division's decision posted on the Internet.


Editor in Chief Harvey Randall served as Director of Personnel, State University of New York Central Administration; Director of Research, Governor's Office of Employee Relations; Principal Attorney, Counsel's Office, New York State Department of Civil Service; and Colonel, JAG, Command Headquarters, New York Guard. Consistent with the Declaration of Principles jointly adopted by a Committee of the American Bar Association and a Committee of Publishers and Associations, the material posted to this blog is presented with the understanding that neither the publisher nor NYPPL and, or, its staff and contributors are providing legal advice to the reader and in the event legal or other expert assistance is needed, the reader is urged to seek such advice from a knowledgeable professional.

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