PRESENT: WHALEN, P.J., SMITH, DEJOSEPH, NEMOYER, AND WINSLOW, JJ.
IN THE MATTER OF COREY KRUG, PETITIONER-RESPONDENT, v. MEMORANDUM AND ORDERCITY OF BUFFALO, RESPONDENT-APPELLANT.TIMOTHY A. BALL, CORPORATION COUNSEL, BUFFALO (DAVID M. LEE OFCOUNSEL), FOR RESPONDENT-APPELLANT.CREIGHTON, JOHNSEN & GIROUX, BUFFALO (IAN HAYES OF COUNSEL), FORPETITIONER-RESPONDENT.Appeal from a judgment of the Supreme Court, Erie County (JamesH. Dillon, J.), entered April 19, 2017 in a proceeding pursuant toCPLR article 78. The judgment granted the petition in part.It is hereby ORDERED that the judgment so appealed from isaffirmed without costs.Memorandum: Petitioner, a police officer employed by respondent, City of Buffalo, commenced this proceeding pursuant to CPLR article 78to challenge respondent’s determination denying his request thatrespondent defend and indemnify him in a civil action. The civilaction arose from an incident in which petitioner was on patrol andallegedly attacked and assaulted a civilian complainant in violationof the complainant’s constitutional rights. Petitioner was indictedin connection with that incident, and the complainant thereaftercommenced the civil action. Supreme Court determined thatpetitioner’s request for indemnification was premature, and the courtgranted that part of the petition seeking to annul respondent’s denialof petitioner’s request to be defended on the ground that thedetermination with respect thereto was arbitrary and capricious.Respondent appeals, and we affirm.We reject respondent’s contention that its determination was notarbitrary and capricious. Respondent has a duty to provide a defenseto petitioner “if his alleged conduct occurred or allegedly occurredwhile he was acting within the scope of his public employment orduties” (Matter of Riehle v County of Cattaraugus, 17 AD3d 1029, 1029[4th Dept 2005]; see Buffalo City Code §§ 35-28, 35-29), and thedetermination that petitioner was not acting within the scope of hispublic employment or duties “may be set aside only if it lacks afactual basis, and in that sense, is arbitrary and capricious” (Matter of Williams v City of New York, 64 NY2d 800, 802 [1985]). Here, it isundisputed that petitioner was on duty and working as a police officerwhen the alleged conduct occurred (see generally Riviello v Waldron, 47 NY2d 297, 304-305 [1979]).We respectfully disagree with the view of our dissentingcolleagues that a 30-second-long video recording of a portion of theincident, considered in conjunction with the indictment, provides afactual basis for respondent’s implicit determination that petitionerwas not acting within the scope of his employment and duties as apolice officer. First, it is well settled that “[a]n indictment is amere accusation and raises no presumption of guilt” (People v Miller, 91 NY2d 372, 380 [1998]; see Republic Pension Servs. v Cononico, 278AD2d 470, 472 [2d Dept 2000]; see also In re Oliver, 333 US 257, 265[1948]). Thus, the filing of an indictment against petitioner doesnot provide a factual basis to support the denial of a defense topetitioner in the civil action. Second, the video recording capturedonly part of the encounter between petitioner and the complainant, anddid not capture the beginning or the end of the encounter. As aresult, the recorded images of petitioner striking the complainant inthe area of his legs and feet with a baton are unaccompanied bycontextual factual information that would be essential to support adetermination that petitioner’s actions fell outside the scope of hisemployment and duties as a police officer. Notably, the brief videoclip shows a loud and chaotic intersection with a heavy policepresence, and petitioner appeared to be dressed in police uniform andwearing a jacket with the word “POLICE” printed in bold letters.Three of the officers in the video appeared to be carrying batons, like petitioner, and one other officer appeared to have been engagedin a physical struggle with a civilian on the sidewalk. That struggleappeared to continue into the roadway before the other officer and thecivilian disengaged, at which point the camera panned over to aparking lot where petitioner was already engaged with the complainant.Although it is well settled that an employee’s conduct does notfall within the scope of his or her employment where his or heractions are taken for wholly personal reasons not related to theemployee’s job (see Beauchamp v City of New York, 3 AD3d 465, 466 [2dDept 2004]; Schilt v New York City Tr. Auth., 304 AD2d 189, 194 [1stDept 2003]), we conclude that the video recording does not establishthat petitioner’s actions were taken for wholly personal reasonsunrelated to his job as a police officer. Absent sufficient factualsupport upon which to make that determination, we conclude thatrespondent’s denial of petitioner’s request for a defense in the civilaction was arbitrary and capricious (see generally Matter of Scherbyn v. Wayne-Finger Lakes Bd. of Coop. Educ. Servs., 77 NY2d 753, 758[1991]; Williams, 64 NY2d at 802; Matter of Taft v Village of NewarkPlanning Bd., 74 AD3d 1840, 1841 [4th Dept 2010]).All concur except DEJOSEPH and NEMOYER, JJ., who dissent and voteto reverse in accordance with the following memorandum: Werespectfully dissent and vote to reverse the judgment and grantrespondent’s motion to dismiss the petition.Municipalities must defend and indemnify police officers fortorts committed “within the scope of [their] employment” (GeneralMunicipal Law § 50-j [1]), which the law defines as the “immediate andactual performance of a public duty . . . for the benefit of thecitizens of the community” (§ 50-j [2]). In the City of Buffalo, theCorporation Counsel determines in the first instance whether anyparticular tort was committed within the scope of a police officer’semployment such that he or she receives a taxpayer-funded defense (seeBuffalo City Code § 35-28; Matter of Salino v Cimino, 1 NY3d 166, 172n 4 [2003]). The Corporation Counsel’s determination will be upheldso long as, insofar as relevant here, it is not arbitrary andcapricious (see Salino, 1 NY3d at 172; Matter of Williams v City ofNew York, 64 NY2d 800, 802 [1985]). Notably, the Court of Appeals hasspecifically rejected the notion that the Corporation Counsel’sdetermination is controlled by the language of the civil complaintagainst which a taxpayer-funded defense is sought (see Salino, 1 NY3dat 172). Thus, the mere fact that a plaintiff accuses an officer ofviolating his or her rights under color of law does not, by itself, entitle the officer to a taxpayer-funded defense against thoseallegations.So far, we are all in accord. We part company with the majority, however, in its application of those principles to the facts of thiscase. The majority holds that the Corporation Counsel actedarbitrarily and capriciously in determining that petitioner was notacting within the scope of his employment during the imbroglio thatgave rise to the underlying civil lawsuit. But we say precisely theopposite. The imbroglio was captured on videotape, and it showspetitioner, armed with a baton, violently striking a prone and unarmedman for no apparent reason. As a result of this conduct, petitionerwas charged criminally in federal court and sued civilly in SupremeCourt. The Corporation Counsel took all three pieces of information –video, criminal indictment, and civil complaint — into account inmaking the challenged determination. Under these circumstances, wecannot say that the Corporation Counsel’s determination to withhold ataxpayer-funded defense from petitioner was arbitrary or capricious inany sense of the term, i.e., that it was “taken without sound basis inreason or regard to the facts” (Matter of Peckham v Calogero, 12 NY3d424, 431 [2009]; see e.g. Matter of Riehle v County of Cattaraugus, 17AD3d 1029, 1029-1030 [4th Dept 2005]; Matter of Bolusi v City of NewYork, 249 AD2d 134, 134 [1st Dept 1998]). In fact, we suspect thatthe average citizen would be surprised to learn that the sort ofconduct captured on videotape here constitutes, as a matter of law, a“public duty performed . . . for the benefit of the citizens of thecommunity” (General Municipal Law § 50-j [2]).The majority articulates four rationales for its contrarydetermination, but none withstands scrutiny. First, the majorityinvokes the time-honored rule that “[a]n indictment is a mereaccusation and raises no presumption of guilt” (People v Miller, 91NY2d 372, 380 [1998] [internal quotation marks omitted]). This is ofcourse true, and we have no quarrel with the majority’s conclusionthat the Corporation Counsel may not automatically withhold ataxpayer-funded defense in a civil suit simply because the officer wasindicted in connection with the same incident. But that is not whatoccurred here. Rather, the Corporation Counsel “went to thevideotape” and determined for himself that petitioner was not actingwithin the scope of his employment during the underlying incident.This is the very determination that the Buffalo City Code commits tothe sound discretion of the Corporation Counsel. Indeed, if theCorporation Counsel cannot withhold a taxpayer-funded defense when apolice officer is caught red-handed assaulting a citizen, then wecannot imagine any circumstances in which he or she could validlyexercise the discretion conferred by law to decline to defend a policeofficer at taxpayer expense — a discretion, we might add, that hasbeen consistently vindicated by the Court of Appeals (see Salino, 1NY3d at 171-172; Williams, 64 NY2d at 801-802).Second, the majority claims that “the video recording capturedonly part of the encounter between petitioner and the complainant, and[is] . . . unaccompanied by contextual factual information that wouldbe essential to support a determination that petitioner’s actions felloutside the scope of his employment and duties as a police officer.”We disagree with the majority’s characterization of the video; itshows enough of the encounter to demonstrate, persuasively to ourmind, that petitioner was not acting out of any immediate fear for hislife or his safety or out of any need to subdue the complainant, whowas lying prone on his back during the encounter. Indeed, the mindstruggles to even hypothesize an off-camera event that could havejustified petitioner’s conduct. But ultimately, our conflictinginterpretations of the videotape are beside the point, for theydemonstrate — at most — that reasonable people could disagree aboutwhat is depicted thereon. And that is simply an insufficientpredicate for striking down an administrative determination asarbitrary and capricious; quite the opposite, it is well establishedthat administrative action “may not be characterized as arbitrary andcapricious” so long as “[r]easonable [people] might differ as to thewisdom of such a determination” (Matter of Sinacore v New York StateLiq. Auth., 21 NY2d 379, 384 [1968] [emphasis added]).Third, the majority emphasizes that “the video recording does notestablish that petitioner’s actions were taken for wholly personalreasons unrelated to his job as a police officer.” Perhaps so, butthat is merely one way that an officer can step outside the scope ofhis duties within the meaning of General Municipal Law § 50-j (2).Stated conversely, the fact that petitioner might not have been actingfor “wholly personal reasons” does not demonstrate that he was actingwithin the scope of his duties for purposes of section 50-j (2); itestablishes only that he was not acting outside the scope of hisduties by virtue of wholly personal conduct. None of the cases uponwhich the majority relies for this point holds that an officer isnecessarily acting within the scope of his duties so long as he is notacting for wholly personal reasons.Finally, and most importantly, the majority notes that it is“undisputed that petitioner was on duty and working as a policeofficer when the alleged conduct occurred.” As a factual matter, trueenough. But as a legal matter, the majority’s observation demarcatesonly the beginning, not the end, of the scope-of-duty analysis. Asthe Second Department recently held, not every act undertaken by anon-duty officer constitutes the ” ‘proper’ ” performance of his or herduties (Matter of Lemma v Nassau County Police Officer Indem. Bd., 147AD3d 760, 762 [2d Dept 2017], lv granted 29 NY3d 907 [2017]). Byparity of reasoning, not every act undertaken by an on-duty officerconstitutes an “immediate and actual performance of a public duty . .. for the benefit of the citizens of the community” (General MunicipalLaw § 50-j [2]). Such is the case here — or, at the very minimum, theCorporation Counsel rationally could have so determined. Werespectfully dissent.Entered: June 8, 2018Mark W. BennettClerk of the Court
