Court of Appeals April-May Session: Arguments of Interest for May 2, 2018

The Court of Appeals wraps up the April-May Session on Wednesday, May 2, 2018 with three cases on the argument docket (the Court’s case summaries can be found here). Two civil cases and one criminal case will be heard today, involving the following issues: (1) under the NYC rent control regulations that provide for deregulation when tenants reach $175,000 in adjusted gross income, must the income reported on a joint tax return be apportioned between the spouses when one of the spouses has vacated a regulated apartment; (2) does a police officer lose his entitlement to defense and indemnification from civil liability under the General Municipal Law when he admits that he intentionally disregarded alibi evidence that would have cleared a criminal suspect, leading to the suspects wrongful detention for four months; and (3) is an individual inquiry required to determine whether a juror is grossly unqualified as a result of her outburst at defendant’s counsel for his repeated use of a racial epithet during trial.

No. 70 Matter of Lemma v Nassau County Police Officer Indemnification Board

Police officers who get sued for things they do in the line of duty generally aren’t individually responsible to pay civil damages in lawsuits. Instead, General Municipal Law 50-l provides that the police department has to defend its officers in civil suits and indemnify them if the courts award damages for the officers’ conduct. But there is a limitation on that principle. Particularly, GML 50-l provides for indemnification in civil actions “from any judgment … for damages, including punitive or exemplary damages, arising out of a negligent act or other tort of such police officer committed while in the proper discharge of his duties and within the scope of his employment.” So, the officers’ conduct that gave rise to liability has to be a “proper” discharge of his duties before the police department will be on the hook for damages.

The question in this case is is Nicholas Lemma, a detective with the Nassau County Police Department, entitled to be indemnified from civil liability for his intentional withholding of alibi evidence that would have allowed a criminal suspect to go free four months earlier. That’s right. Lemma discovered that a suspect was in jail at the time of the robbery that the suspect was accused of committing, and he sat on that information to “let the chips fall where they may.” And he wants the NCPD to pay for his misconduct.

Supreme Court dismissed Lemma’s challenge to the Police Indemnification Board’s decision to deny his request for defense and indemnification. The Court held that Lemma’s actions didn’t satisfy the requirement that they be a “proper” discharge of his duties, because he purposefully withheld the alibi evidence.

The Appellate Division, Second Department affirmed. Now, the Court of Appeals will take up the question. Need an officer show that he or she was acting properly before he or she will be entitled to indemnification from civil damages?

The Appellate Division, Second Department’s order can be found here.

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