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

IN RE: John FOODY, Respondent, v. COUNTY OF ROCKLAND, et al., Appellants.

Decided: September 28, 1998

Before O'BRIEN, J.P., and SULLIVAN, JOY and FRIEDMANN, JJ. Patterson, Belknap, Webb & Tyler, LLP, New York City (John D. Winter, of counsel), for appellants. Trager, Cronin & Byczek, LLP, Lake Success (Raymond E. Kerno, of counsel), for respondent.

In a proceeding pursuant to CPLR article 78 in the nature of mandamus to compel the County of Rockland to allow the petitioner to substitute the law firm of Lysaght, Lysaght & Kramer, P.C., as his counsel in an action entitled Bryant v Foody, Index No. 8238/96, pending in the Supreme Court, Rockland County, and directing the County of Rockland to pay that firm's reasonable legal fees and disbursements, the appeal is from a judgment of the Supreme Court, Rockland County (Bergerman, J.), entered August 11, 1997, which granted the petition.

ORDERED that the judgment is reversed, on the law, with costs, the petition is denied, and the proceeding is dismissed on the merits.

According to Chapter 45 of the Laws of Rockland County, which governs the defense and indemnification of municipal employees who have been jointly sued with the County, it is the function of the County Attorney to decide whether a conflict of interest exists such that an employee is entitled to independent representation to be paid for out of County funds.   Thereafter, the County Executive is authorized to choose the employee's “private counsel” (Laws of Rockland County § 45-2[B][2];  see, e.g., Corning v. Village of Laurel Hollow, 48 N.Y.2d 348, 422 N.Y.S.2d 932, 398 N.E.2d 537;  see also, Mothersell v. City of Syracuse, 952 F.Supp. 112;  1993 Opns. Atty. Gen. No. 93-23, at 1036;  1992 Opns. Atty. Gen. No. 92-12, at 1031;  1987 Opns. Atty. Gen. No. 87-28, at 82).   In this case, it cannot be said that the County Attorney acted improperly in denying the petitioner's request to be allowed to name his own attorney to be paid at the County's expense.


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