Opinion
19661/07.
Decided March 5, 2008.
James R. Sandner, Esq., Attorney for Petitioner.
Guercio Guercio, Esqs., Attorneys for Respondent.
The petitioner initiated this proceeding for a judgment declaring that the respondent has failed to perform a duty upon it by law and engaged in conduct that is in violation of lawful procedure, affected by an error of law, and is arbitrary and capricious, or an abuse of discretion by refusing to save harmless and defend and indemnify the petitioner in the civil action entitled McCarthy v. Cotter and Garden City Public School District, Index No. 010611/07, pending in Supreme Court, County of Nassau.
The petitioner also seeks a judgment declaring the respondent's refusal to save harmless and defend and indemnify the petitioner in the aforementioned pending action is a violation of the terms of a Settlement Agreement entered into between the petitioner and respondent on December 18, 2006, whereby the petitioner contends that the respondent agreed to save harmless and defend petitioner in a civil action relating to the June 20, 2006 incident. Petitioner also seeks judgment directing the respondent to save harmless and defend and indemnify petitioner in the aforementioned pending action by providing the petitioner with legal representation and/or reimbursement for attorney's fees and legal expenses, and saving him harmless form any financial losses which he has incurred and/or may incur as a result of the aforementioned civil action, included but not limited to fees, settlements, and/or judgments.
The petitioner, James Cotter, (hereinafter referred to as "Cotter"), a tenured teacher employed by the respondent, and other teachers including Philip McCarthy, (hereinafter referred to as "McCarthy"), a fellow teacher, were grading final examination papers in the library of the Garden City High School on June 20, 2006 when Cotter and McCarthy got into an altercation. Affidavits submitted on the record by various fellow teachers present at the time of the incident provide, in essence, that McCarthy wanted to leave the table to run tests through a machine. Cotter told McCarthy to sit down. Cotter and McCarthy exchanged insults. McCarthy then threw water at Cotter. Cotter then placed McCarthy in a "choke" hold or "headlock". McCarthy called the police who responded. McCarthy initiated a personal injury action against Cotter as a result of the incident in an action entitled McCarthy v. Cotter and Garden City Public School District, Index No. 010611/07, pending in Supreme Court, County of Nassau before the Honorable Justice Palmieri.
Cotter contends that pursuant to a Settlement Agreement entered into between Cotter and the respondent, the respondent is obligated to defend and indemnify Cotter in the related pending action initiated by McCarthy. The agreement provides that "[i]n the event that Cotter is named as a defendant in a civil action relating to the June 20, 2006 incident, he may obtain a defense and indemnification from the District to the extent permitted by law". (Emphasis added.)
The complaint in the related action alleges that as a result of Cotter's "assault" on him, McCarthy sustained injuries to his neck. In this proceeding, Cotter alleges that the respondent unlawfully, arbitrarily and capriciously denied his request for defense and indemnification based upon Education Law 3023 and the Settlement Agreement.
Upon the record herein, Cotter has not demonstrated that the respondent's resolution was arbitrary, capricious or an abuse of discretion. (CPLR 7803). The claim in the related pending action is an action for assault, an intentional tort, and not an action for negligence. Education Law 3023 is generally invoked in cases where a teacher seeks indemnification for a student's negligence claim against that teacher, and is inapplicable to the related action for an intentional tort. ( Widger v. Central School District No. 1, 20 AD2d 296). Additionally, the respondent's determination that the petitioner's actions were not in the discharge of his duties or within the scope of his employment was not arbitrary and capricious. The mere fact that an employee's action occurred during employment, does not conclusively demonstrate that the employee's actions were with the scope of his employment, or that he was performing acts in furtherance of his employment or in the employer's business. ( Nicolette T. v. Hospital for Joint Diseases, 198 AD2d 54.) Here, the acts complained of appear to be wholly personal in nature, outside the scope of his employment, and not in furtherance of the respondent's business. ( Id.)
The petitioner's contention that the respondent is obligated to defend and indemnify the petitioner in accordance with the Settlement Agreement is unavailing. The Settlement Agreement provides that in the event that the petitioner is named as a defendant in a civil action relating to the June 20, 2006 incident, the petitioner "may" obtain a defense and indemnification from the respondent "to the extent permitted by law". As already provided, the complaint in the related pending action claims that the petitioner herein assaulted the plaintiff, McCarthy. The alleged "assault" committed by petitioner is not an action sounding in negligence. The alleged "assault" is not an action performed within the scope of his employment, or in furtherance of his employer's business.
Additionally, the petitioner's reliance upon Educational Law 3811 is improper as it was raised for the first time in its Memorandum of Law and Reply affirmation served after the respondent's answer. ( Town of Pleasant Valley v. Town of Poughkeepsie Planning Board, 289 AD2d 583).
In light of the foregoing, the petition is denied and therefore, the instant proceeding is dismissed.