Kelly v. The City of Mount Vernon
- Philip Halpern
- 7:19-cv-11369
- U.S. District Court · Southern District of New York
- 8
In Kelly v. Mount Vernon, Judge Halpern granted Thomas’s motion, requiring City Defendants to provide independent counsel and pay fees and expenses.
Richard Thomas received an order requiring the City of Mount Vernon and the City of Mount Vernon Urban Renewal Agency to provide and pay for independent counsel of his choice in Kelly’s lawsuit.
What happened
In Kelly v. The City of Mount Vernon, Robert Kelly sued Richard Thomas, the City, the City of Mount Vernon Urban Renewal Agency, and others. Thomas, representing himself, asked the court to require the City Defendants to defend him and pay for a lawyer of his choice. The City Defendants opposed the request, arguing that Thomas asked too late and that his alleged conduct was outside his employment.
The court held that the federal court was an appropriate place to decide Thomas’s request. It also held that the City Defendants’ alleged lack of timely notice did not eliminate their duty to defend because the City was already a defendant and knew Thomas sought representation. The court further concluded that the City Charter required a defense because Kelly’s lawsuit included a claim under the federal civil-rights statute identified as Section 1983, and the allegations also indicated that Thomas acted within his public duties.
Judge Philip M. Halpern granted Thomas’s motion to compel a defense. Because the City Defendants had identified a conflict of interest, Thomas was entitled to private counsel of his choice. Judge Halpern ordered Thomas to provide the lawyer’s name and contact information within ten days and ordered the City Defendants to take the steps necessary to pay that lawyer’s fees and expenses.
The detailed version
- Kelly v. The City of Mount Vernon · No. 7:19-cv-11369
- Philip Halpern
- Aug. 19, 2020
Background
Robert Kelly, proceeding without a lawyer, brought claims under 42 U.S.C. § 1983, a federal civil-rights statute, and state law against the City of Mount Vernon, the City of Mount Vernon Urban Renewal Agency, Richard Thomas, Frank Acocella, and the Acocella Law Group P.C. Kelly alleged that the defendants prosecuted an earlier civil action against him despite allegedly knowing it was time-barred and failed to indemnify him in that earlier action. He also asserted claims for defamation, negligence, and intentional infliction of emotional distress.
Thomas, sued individually and as the City’s former mayor, also represented himself. He moved under New York Public Officers Law § 18 and Mount Vernon City Charter § 50-44 for an order requiring the City Defendants to defend him or pay the fees and expenses of private counsel of his choice. The City Defendants had advised the court that they would not defend Thomas or pay his legal fees.
Analysis
The court rejected the City Defendants’ argument that Thomas had to bring his request in a different type of proceeding. It held that a motion in the federal case was an appropriate way to seek an order compelling a defense under Public Officers Law § 18.
The court then addressed notice. Section 18 generally conditions a municipality’s duty to defend on the employee’s delivering a written request and the relevant legal papers within ten days after service. The City Charter contains a similar five-day requirement. Thomas stated that he sent notice by email and certified mail five days after he was served.
The court held that, regardless of whether Thomas complied with the delivery requirement, the City Defendants still had to defend him. Relying on a New York appellate decision, the court explained that failure to strictly comply with the notice provision does not prevent a defense when the municipality is also a defendant in the underlying lawsuit and knew that the employee sought representation.
The City Defendants also argued that the complaint alleged conduct by Thomas that was outside the scope of his employment. The court explained that, under Public Officers Law § 18, the allegations in the complaint ordinarily determine whether the duty to defend is triggered. But the court found that Mount Vernon City Charter § 50-44 expanded the City’s obligation. That provision requires the City to defend an employee in an action alleged to have arisen from conduct within the employee’s public duties or in an action brought to enforce 42 U.S.C. § 1983.
Because Kelly’s action included a Section 1983 claim, the court concluded that the City was required to defend Thomas under the Charter. The court also found that Kelly alleged Thomas acted under color of law and within the scope of his public employment. The City Defendants had likewise taken the position in another filing that the defendants were alleged to have acted as state and municipal agents.
Private Counsel and Disposition
The court stated that, when a municipality’s duty to defend has been triggered and representation by the municipality’s counsel is inappropriate because of a conflict of interest, the employee is entitled to private counsel of his choice, with the municipality paying the fees and litigation expenses. The City Defendants had acknowledged a potential and actual conflict and requested that Thomas retain independent counsel.
The court therefore GRANTED Thomas’s motion to compel the City Defendants to defend him. It ordered Thomas to give the City Defendants the name and contact information of his chosen counsel within ten days of the order. It ordered the City Defendants to take the necessary steps to retain and pay that counsel. The Clerk was directed to terminate the pending motion.
Read the full 8-page opinion on CourtListener, the free public archive maintained by the Free Law Project.