IN RE: Application of David G. SAMUELS (1998)

Judgment, Supreme Court, New York County (Louis York, J.), entered January 24, 1997, which, in a proceeding pursuant to CPLR article 78 challenging respondent Attorney General's refusal to certify, pursuant to Public Officers Law § 17(2)(b), that petitioner is entitled to be represented by private counsel of his choice in a Federal action brought against him and others under 42 U.S.C. 1983, granted respondent's motion to dismiss the petition for failure to state a cause of action, unanimously affirmed, without costs.   Order, same court and Justice, entered April 29, 1997, which denied petitioner's motion to renew, unanimously affirmed, without costs.

Since the complaint in the section 1983 action against petitioner does not allege that petitioner was not executing respondent's policy or otherwise acting outside the scope of his public employment, there was never any possibility that petitioner would be held liable for unreimbursable damages, either compensatory or punitive (cf., Kentucky v. Graham, 473 U.S. 159, 165-167, 105 S.Ct. 3099, 3104-3106, 87 L.Ed.2d 114).   Nor do petitioner's allegations concerning respondent's tactics and conduct in either the section 1983 action or the prosecution underlying it, viewed in light of the documentary evidence and conceded facts, show that respondent was asserting a position that exposed petitioner to an unreimbursable liability, contemplating such a position, or otherwise putting himself in conflict with petitioner.   The motion to renew was properly denied since all of the facts presented in support thereof were known to petitioner at the time of the original motion, and should have presented in opposition thereto.

MEMORANDUM DECISION.