Opinion
No. 02 Civ. 0851 (CBM).
June 15, 2005
MEMORANDUM OPINION AND ORDER
The Gallery at Fulton Street, LLC, Samuel Rushing and David E. Martin, defendants in the above-captioned matter, which is scheduled for trial in this Court on June 22, 2005, have requested a conference with the Court. Defendants claim that the City of New York ("City") is statutorily obligated to indemnify defendants Rushing and Martin, notwithstanding the City's previous settlement with the plaintiffs.
Whether an employee is "entitled to representation by the Corporation Counsel and indemnification by the city are to be determined in the first instance by the Corporation Counsel."Williams v. New York, 64 N.Y.2d 800, 802 (1985). § 50-k(2) of New York's General Municipal Law describes the criteria by which the City determines whether to provide representation and indemnification to its employees. § 50-k(2) provides that "At the request of the employee and upon compliance by the employee with the provisions of subdivision four of this section, the city shall provide for the defense of an employee of any agency in any civil action or proceeding in any state or federal court. . . ." N.Y. GEN. MUN. LAW § 50-k(2). Counsel for the City argues in opposition to defendants' application that defendants Rushing and Martin did not request representation from the City, as clearly required by the statute. Defendants' reply that the City was "aware" of the suit against its employees is unpersuasive. Defendants cite no authority for the proposition that mere notice of a suit against employees of the City excuses compliance with the statutory requirements. The statute does not require the City to determine whether an employee is entitled to representation prior to a request for representation, especially where, as here, the employees did not request representation, and as defendants point out, in fact sought and received separate representation.
Defendants' further argument, addressing the Court's jurisdiction over a third-party indemnification action, is moot. Accordingly, defendants' request is hereby DENIED.
SO ORDERED.