RIEHLE v. COUNTY OF CATTARAUGUS

Reset A A Font size: Print

Supreme Court, Appellate Division, Fourth Department, New York.

Matter of Robert RIEHLE, Petitioner-Appellant, v. COUNTY OF CATTARAUGUS, Respondent-Respondent.

Decided: April 29, 2005

PRESENT:  PIGOTT, JR., P.J., GREEN, GORSKI, MARTOCHE, AND SMITH, JJ. Rupp, Baase, Pfalzgraf, Cunningham & Coppola LLC, Buffalo (Stephen A. Sharkey of Counsel), for Petitioner-Appellant. Dennis V. Tobolski, County Attorney, Little Valley, for Respondent-Respondent.

Petitioner, formerly a lieutenant in the Cattaraugus County Sheriff's Department, commenced this proceeding to challenge the determination of respondent that petitioner is not entitled to a defense or indemnification in a personal injury action initiated against him by a Deputy Sheriff and his wife.   The underlying action arose from an incident that occurred when petitioner and the Deputy Sheriff were attending a defensive tactics training program.   As the Deputy Sheriff was observing a demonstration, petitioner allegedly approached him from behind and placed him in a neck restraint, causing him to fall and sustain serious injuries.

Supreme Court properly dismissed the petition.   The duty of respondent to provide a defense and indemnification to petitioner arises only if his alleged conduct occurred or allegedly occurred while he was acting within the scope of his public employment or duties (County of Cattaraugus Local Law No. 20-1983 [3], [4] ).   The underlying complaint does not allege that petitioner was acting within the scope of his public employment or duties, and, in any event, respondent determined, based upon its independent investigation, that petitioner was not acting within the scope of his public employment or duties when he allegedly injured the Deputy Sheriff (see Matter of Salino v. Cimino, 1 N.Y.3d 166, 171-172, 770 N.Y.S.2d 702, 802 N.E.2d 1100;  Matter of Polak v. City of Schenectady, 181 A.D.2d 233, 236, 585 N.Y.S.2d 844;  see generally Merrill v. County of Broome, 244 A.D.2d 590, 592, 664 N.Y.S.2d 144).   That “determination may be set aside only if it lacks a factual basis, and in that sense, is arbitrary and capricious” (Matter of Williams v. City of New York, 64 N.Y.2d 800, 802, 486 N.Y.S.2d 918, 476 N.E.2d 317;  see Salino, 1 N.Y.3d at 172, 770 N.Y.S.2d 702, 802 N.E.2d 1100;  Matter of Grecco v. Cimino, 13 A.D.3d 371, 372, 786 N.Y.S.2d 204).   Contrary to the contention of petitioner, the determination that petitioner was not acting within the scope of his public employment or duties has a factual basis and is not arbitrary or capricious (see Williams, 64 N.Y.2d at 802, 486 N.Y.S.2d 918, 476 N.E.2d 317, Matter of Schenectady Police Benevolent Assn. v. City of Schenectady, 299 A.D.2d 717, 718-719, 750 N.Y.S.2d 666).

It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously affirmed without costs.

MEMORANDUM: