Della Mura v. Thomas

Magistrate Judge Lisa Margaret Smith¹

DECISION AND ORDER   Currently before the Court is Defendant Lawrence Porcari’s (“Porcari”) motion to compel Defendant City of Mount Vernon (“City”) to defend and indemnify Defendant Porcari pursuant to Article IV of the City of Mount Vernon Code. ECF No. 83. Defendant Porcari further requests that the Court enforce the terms of the retainer agreement between Porcari and his attorney, which states that “THE ATTORNEY’S REPRESENTATION, HOWEVER, SHALL BE EXPRESSLY CONDITIONED ON 1) THE DISTRICT COURT ORDERING THE CITY OF MOUNT VERNON TO PAY ALL OF THE CLIENT’S REASONABLE ATTORNEY FEES IN DEFENCE OF THE CLIENT IN THE ABOVE PROCEEDING AT THE EXPRESS HOURLY RATE OF $600 PER HOUR AND 2) A FURTHER ORDER OF THE COURT DIRECTING THE COMPTROLLER OF THE CITY OF MOUNT VERNON TO PAY THE ATTORNEY’S LEGAL FEE INVOICES WITHIN 30 DAYS OF THEIR SUBMISSION TO THE COMPTROLLER OR BE HELD IN CONTEMPT.” ECF No. 83-11 (Memo. of law in Support); ECF No. 83-4 (Retainer Agreement). For the following reasons, Defendant Porcari’s motion to compel is GRANTED in part and DENIED in part. BACKGROUND Plaintiff commenced this civil action on September 19, 2019, against Defendants Richard Thomas (“Thomas”), Lawrence Porcari (“Porcari”), Benjamin Marable (“Marable”),² Mount Vernon Board of Water Supply (“MVBWS”), and the City of Mount Vernon (“City”). ECF No. 1. Plaintiff alleges that Defendants unlawfully prevented Plaintiff from conducting his work as Senior Bookkeeper for the City and unlawfully rejected Plaintiff’s requests for reasonable accommodations due to his disability in an effort to prevent Plaintiff from uncovering payments that Defendant Porcari (then Corporation Counsel for the City of Mount Vernon) directed be made from Mount Vernon Board of Water Supply bank account to pay for the legal fees of Defendant Thomas (then Mayor of the City of Mount Vernon) in violation of the Racketeer Influenced and Corrupt Organizations (“RICO”) Act and the Americans with Disabilities Act (“ADA”). Id. In January 2020, Defendant City and Defendant MVBWS moved to disqualify counsel for Defendant Thomas and Defendant Porcari. ECF Nos. 51, 54. The Court granted the motion on April 30, 2020. ECF No. 71. By separate order, the Court expressed its expectation that Defendants Thomas and Porcari would secure new counsel within 30 days. ECF No. 72. On June 9, 2020, the Court directed Defendant Thomas³ and Defendant Porcari to provide a status update to the Court within fourteen days as no attorneys had filed notices of appearances on Defendants’ behalf. ECF No. 73. On July 4, 2020, Mario Biaggi, Jr. (“Biaggi” or “private counsel”) filed a notice of appearance on behalf of Defendant Porcari. ECF No. 77. Biaggi limited his appearance to making a motion to compel Defendant City to pay Defendant Porcari’s attorneys’ fees. Id. The undersigned granted Defendant Porcari permission to make his motion to compel and set a briefing schedule. Minute Entry for 7/30/2020. The motion is now fully briefed. DISCUSSION The City of Mount Vernon Municipal Code (“Code”) Part I, Chapter 50, Article IV §50-44 governs a City employee’s right to have his or her legal defense provided for by the City. Pursuant to the Code, the City “shall provide for the defense of the employee in any civil action or proceeding in any state or federal court or before any board, bureau, agency or commission, arising out of any alleged act of omission or commission 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…” if the employee delivers to the City’s corporation counsel “the original or a copy of any summons, complaint, process, notice, demand or pleading within five days after he is served with such document.” Article IV §§50-44(A), 50-46. “[T]he employee shall be entitled to be represented by the City Corporation Counsel; provided, however, that the employee shall be entitled to representation by private counsel of his choice in any civil judicial proceeding whenever the Corporation Counsel determines, based upon his investigation and review of the facts and circumstances of the case, that representation by the Corporation Counsel would be inappropriate or whenever a court of competent jurisdiction, upon appropriate motion or by a special proceeding, determines that a conflict of interest exists and that the employee is entitled to be represented by private counsel of his choice.” Article IV §50-44(B). The Code provides that “[a]ttorneys’ fees and litigation expenses shall be set by a contract at a flat rate to be established by the Corporation Counsel and shall be paid by the City to such private counsel from time to time during the pendency of the civil action or proceeding subject to the certification that the employee is entitled to representation under the terms and conditions of this section…” Id. Defendant City seemingly concedes that Defendant Porcari is entitled to his choice of private counsel paid for by the City and only opposes Defendant Porcari’s motion on the ground that Defendant Porcari failed to comply with the statutory process for approving private counsel and counsel’s rate. ECF No. 84 at