Legal Representation By The Corporation Counsel: What's The Standard?

Many people are charged with allegations of misconduct performed in their jobs or while at work, and they seek representation by the New York City Law Department or "Corporation Counsel". I do not understand how NYC randomly and often abusively denies this representation to teachers and other employees without any basis in fact or law.
In the case of teacher Steve Ostrin, he was accused of harassment of a female student in his class at Brooklyn Technical High School, but according to Theresa Europe, Director of the Gotcha Squad, the case was closed in 2007 and there was no investigation of the charges. Nonetheless Steve asked for, but was denied representation by the Corporation Counsel.
Thus any student or person so inclined can accuse anyone who is an employee of the City of New York of anything, and the NYC Law Department can deny legal representation saying that the allegation must be true, therefore the employee was acting outside of his/her employment and cannot be represented by the City.

Allegations are just that; they are not facts. This is what the "Gotcha Squad" is known for, and that is, scheduling 3020-a arbitration with allegations that have not been proven or voted on by a school board nor any outside party, and the single arbitrator not chosen by the charged party helps the NYC BOE "prove" the allegations and punish the employee. The rubber rooms were holding pens set up by the Board of Education and accepted by the UFT and NYSUT as proper placement for tenured employees who needed to be sitting somewhere while they were framed ....oops, I mean "investigated". When the public heard through the media that there were large warehouses of people getting paid for doing nothing, Mike Bloomberg, Joal Klein, Cathy Black, Dennis Walcott and the NYC BOE woke up to the fact that 100+ people in one place will talk with each other and organize opposition groups.

The NYC BOE (the name "Board of Education" for NYC was evidently never changed  in court, so that's why I use 'BOE' and not 'DOE') also sets up parents who blow the whistle on fraud inside their child's school, and indemnify parents who attack other parents. When I, a parent of two daughters who attended Stuyvesant High School from 1999-2007,  asked to see the financial records of the Stuyvesant High School Parents Association and I and the chinese parents were denied these records (and verbally abused by the officers of the PA who did not want us to have this information), I sued to get the records. The Corporation Counsel - namely Attorney Martin Bowe - called me up to tell me that the parents who were doing these heinous acts - Paula De Kock, Lauren Coleman-Lochner and Sumitake Nakazato - were now indemnified by him "because he wanted them to be." I asked him why he didnt indemnify me, and defend my efforts to get transparency with the finances of the Stuy PA, and he told me "We will NEVER,NEVER, defend you." [Does that mean that I dont have to pay City taxes?]

 I started looking into this issue of representation by the Corporation Counsel. The pattern and practice seems to me to be completely arbitrary and capricious. Are there any attorneys out there who can describe to me how the Corporation Counsel works?

I'd really like to understand how the State of New York can prosecute its citizens with a huge Law firm funded by taxpayer funds.

Below are a few more examples and by the way, Stuart Lichten, a very good attorney I've heard, whose law firm is Schwartz, Lichten & Bright, is the husband of Senior NYSUT Attorney Maria Elena Gonzalez:

Matter of O'Brien v Spitzer

2006 NY Slip Op 05158 [7 NY3d 239]

June 29, 2006

R.S. Smith, J.

Court of Appeals

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

As corrected through Wednesday, August 9, 2006

[*1]

In the Matter of Stephen L. O'Brien, Respondent, v Eliot Spitzer, as Attorney General of the State of New York, Appellant.

Argued June 6, 2006; decided June 29, 2006

Matter of O'Brien v Spitzer, 24 AD3d 9, reversed.

{**7 NY3d at 241} OPINION OF THE COURT

R.S. Smith, J.

We hold that the Attorney General properly found a private lawyer who was appointed as referee in a mortgage foreclosure proceeding to be an independent contractor, not a state employee. The referee therefore was not entitled to defense and indemnification from the State in a lawsuit brought against him.

Facts and Procedural History

This case arises out of a proceeding to foreclose a mortgage on a home owned by Donald MacPherson. Supreme Court entered a judgment of foreclosure and sale, and appointed petitioner, a lawyer in private practice, as referee to supervise the sale of the property. The property was sold and MacPherson, contending that the foreclosure and sale violated his constitutional rights, brought a lawsuit in federal court seeking damages and injunctive relief against several defendants, including petitioner.

Petitioner informed the Attorney General of the lawsuit, and requested defense and indemnification pursuant to Public Officers Law § 17. The Attorney General rejected the request, relying on the exclusion of "independent contractor[s]" from the rights given by the statute. Petitioner then brought this proceeding under CPLR article 78 against the Attorney General, seeking an order annulling the Attorney General's determination and directing the Attorney General to defend petitioner in MacPherson's suit. MacPherson later withdrew his claims against petitioner, but petitioner continues to seek indemnification for the expense the suit caused him.{**7 NY3d at 242}

[*2]Supreme Court granted the petition, and the Appellate Division affirmed. The Appellate Division permitted the Attorney General to appeal to this Court on a certified question, and we now reverse.

Discussion

Public Officers Law § 17 (2) (a) requires the State to "provide for the defense" of an "employee" in an action arising out of his or her public duties. "Employee" is defined in Public Officers Law § 17 (1) (a), which provides in relevant part: "As used in this section, unless the context otherwise requires the term 'employee' shall mean any person holding a position by election, appointment or employment in the service of the state, . . . but shall not include an independent contractor."

The issue is whether petitioner was an "employee" or an "independent contractor" within the meaning of this section. We first consider whether the Attorney General's resolution of this issue is entitled to deference, and we conclude that it is.

While as a general rule courts will not defer to administrative agencies in matters of "pure statutory interpretation" (Matter of KSLM-Columbus Apts., Inc. v New York State Div. of Hous. & Community Renewal, 5 NY3d 303, 312 [2005]), deference is appropriate "where the question is one of specific application of a broad statutory term" (Matter of American Tel. & Tel. Co. v State Tax Commn., 61 NY2d 393, 400 [1984], quoting NLRB v Hearst Publications, Inc., 322 US 111, 131 [1944] [interpreting the term "employees"]). This case is in that category.

The terms "employee" and "independent contractor" are familiar ones, and their definitions are well known. Broadly speaking, an employee is someone who works for another subject to substantial control, not only over the results produced but also over the means used to produce the results. A person who works for another subject to less extensive control is an independent contractor (e.g., Matter of Hertz Corp. [Commissioner of Labor], 2 NY3d 733, 735 [2004]; Matter of Charles A. Field Delivery Serv. [Roberts], 66 NY2d 516, 521 [1985]). But it is often not easy to apply those definitions to specific facts. When a person claiming to be a public employee requests indemnification, the Attorney General must first decide whether that person is indeed an employee, or is an independent contractor. Where his decision is a reasonable one, courts should not second-guess it.

Here, there was ample basis for the Attorney General's determination that petitioner was an independent contractor, not an{**7 NY3d at 243} employee. Petitioner worked without day-to-day supervision and chose his own hours of work; it was he who selected the date for the foreclosure sale. He performed his duties on a part-time basis, while also working for clients of his private law practice. His compensation did not come from state funds, but from the sale proceeds. The State did not withhold income tax or provide workers' compensation. Petitioner furnished whatever materials he needed for his work, and paid his own expenses, subject to reimbursement from the sale proceeds. He deposited the proceeds in a special bank account bearing his own name, as required by CPLR 2609. He was, in short, substantially more independent from state control over his activities than a typical state employee. Beyond this, public policy supports the Attorney General's decision: The purpose of Public Officers Law § 17 is, in essence, to provide insurance against litigation. Private lawyers like petitioner ordinarily have malpractice coverage, and the Legislature is unlikely to have intended to substitute the State for lawyers' malpractice carriers.

Accordingly, the order of the Appellate Division should be reversed, without costs, the petition dismissed and the certified question answered in the negative.

Chief Judge Kaye and Judges G.B. Smith, Ciparick, Rosenblatt, Graffeo and Read concur.

Order reversed, etc.

Decided on August 29, 2011 

Supreme Court, New York County

In the matter of the application of Josephine Thomas, Petitioner, For a Judgment Pursuant to Article 78 of the Civil Practice Law and Rules,  against New York City Department of Education, Cathleen Black, as Chancellor of the New York City Department of Education and City of New York, Respondents.

100711/11 
Attorneys for Plaintiff: 

Lichten & Bright, P.C. 
475 Park Ave. South, 17th FL 
New York, New York 10016 
(646) 588 - 4871 

Attorneys for Defendant: 
Corporation Counsel 
100 Church Street, 4th FL 
New York, New York 10007 
(212) 788 - 0303 
Judith J. Gische, J.
Petitioner is a City employee employed as a paraprofessional. Respondents are the New York City Department of Education, its former chancellor and the City of New York (hereinafter "respondents" sometimes "DOE"). Petitioner seeks reversal of the respondents' decision denying her legal representation in connection with a civil law suit commenced against her by the mother of one of her students. The respondents have answered and seek the denial of the petition without the need for a testimonial hearing.

Since an Article 78 proceeding is a special proceeding, it may be summarily determined upon the pleadings, papers, and admissions to the extent that no triable issues of fact are raised [*2](CPLR § 409[b]; CPLR §§ 7801, 7804 [h]). Therefore, the court will decide the issues raised on the papers and grant judgment for the prevailing party, unless there is an issue of fact requiring a trial (CPLR § 7804 [h]); York v. McGuire, 99 AD2d 1023 [1st Dept 1984] aff'd 63 NY2d 760 [1984]; Battaglia v. Schumer, 60 AD2d 759 [4th Dept 1977]). 

Facts considered and arguments presented

On May 11, 2009, petitioner was a paraprofessional assigned to P.S. 94, a school in the Bronx. In an incident that was reported to the Office of Special Investigations, it was alleged that the petitioner, while working with a kindergarten student on a lesson, struck the child on the forehead with the back of her hand because the was doing the assignment incorrectly and had gotten the answer wrong.

Following the incident an investigation ensued. The allegations were found to be "substantiated" in a report dated May 19, 2009. By correspondence dated May 21, 2009, the principal of P.S. 94 notified the petitioner of the investigation's findings. The letter states that "evidence gathered substantiates the allegation that you did hit [the child] on the head during small group work." As a result of these findings, petitioner was reassigned with a warning that "[o]ur students are our most precious resource and must be respected and protected at all times. Under no circumstances is it acceptable to hit a student." Thereafter, the child's mother filed a civil action against the city, the New York City Board of Education and Ms. Thomas in the Bronx (Index No. 350220/10) ("civil action"). Petitioner requested legal representation in the civil action and Corporation Counsel responded to her request by letter October 14, 2010 stating that it could not provide legal representation after conducting its review "pursuant to Section 50-k of the General Municipal Law."

Respondents have answered the petition and provide further clarification of what the letter meant and why they denied legal representation. They contend that they properly denied petitioner a defense because General Municipal Law § 50-k and Education Law § 2560 govern the situation at bar and, according to respondents, the actions petitioner took — corporal punishment — was not within the scope of her duties as a New York City school paraprofessional and they violated the rules and regulations of the DOE.

The parties' disagreement focuses on the both afore cited sections of law as well as Education Law § 3028. The parties also disagree about whether certain trial court decisions apply (as petitioner claims) or have been incorrectly decided (as respondents contend). Initially, respondents sought a stay of this proceeding pending decisions in the appeals of two legal representation cases (Zampieron v. Board of Education, Index No. 109677/10, 2010 NY Slip Op. 52338U [Sup Ct, NY Co. 2010] and Morel v. Board of Education, 116668/10, 2010 NY Slip Op 32079U [Sup Ct. NY Co, 2010]). Respondents withdrew that application pursuant to the so-ordered stipulation of the parties dated May 26, 2011. These and other cases are examined later in this decision in the Discussion section below.

Education Law § 2560 [1] provides, in relevant part, as follows:

Notwithstanding any inconsistent provision of law, general, special or local, or the limitation contained in the provisions of any city charter, any duly appointed member of the board of education in a city having a population of one million or more, the members of each community school board in such city, the teaching or supervising staff, officer, or employee of such board and of each such community school board, member of a committee on special [*3]education or subcommittee thereof or authorized participant in the school volunteer program in such city shall be entitled to legal representation and indemnification pursuant to the provisions of, and subject to the conditions, procedures and limitations contained in [GML § 50—k] ....

General Municipal Law § 50-k [2] provides, in relevant part, as follows:

[T]he city shall provide for the defense of an employee of any agency in any civil action or proceeding ... arising out of any alleged act or omission which the corporation counsel finds occurred while the employee was acting within the scope of his public employment and in the discharge of his duties and was not in violation of any rule or regulation of his agency at the time the alleged act or omission occurred. . .

General Municipal Law § 50—k [3] provides, in pertinent part, as follows:

The city shall indemnify and save harmless its employees in the amount of any judgment obtained against such employees ..., or in the amount of any settlement of a claim ... provided that the act or omission from which such judgment or settlement arose occurred while the employee was acting within the scope of his public employment and in the discharge of his duties and was not in violation of any rule or regulation of his agency at the time the alleged damages were substantiated; . . .

Education Law § 3028 provides the following, in pertinent part:

Notwithstanding any inconsistent provision of any general, special or local law, or the limitations contained in the provisions of any city charter, each board of education, trustee or trustees in the state shall provide an attorney or attorneys for, and pay such attorney's fees and expenses necessarily incurred in the defense of a teacher, member of a supervisory or administrative staff or employee, or authorized participant in a school volunteer program in any civil or [criminal] action or proceeding arising out of disciplinary action taken against any pupil of the district while in the discharge of his duties within the scope of his employment or authorized volunteer duties.

Petitioner contends that she is entitled to a defense by the Corporation Counsel because she did not strike the child, the incident is alleged to have occurred during a lesson and, therefore, the act allegedly took place "while [she] was acting within the scope of [her] public employment and in the discharge of [her] duties," as General Municipal Law § 50-k [2] provides. She argues that Education Law § 3028, not Education Law § 2560 controlling.

Respondents, on the other hand, deny that Education Law § 3028 is applicable. They argue that Education Law § 2560 supercedes Education Law § 3028 because section 2560 is a specific statute, applicable to schools in a "city having a population of one million or more" (which New York City has) and when Education Law § 2560 was amended in 1979 it was to make sure there were consistent standards for, and conditions of, indemnification for all New York City employees. [*4]

Alternatively, respondents argue that even if Education Law § 2560 did not supersede section 3028, Education Law § 3028 is inapplicable to the facts of this case because the civil action against petitioner did not arise out of some legitimate disciplinary action taken by her against a student. They argue that petitioner hit the child because he got the wrong answer and, therefore, her actions (corporal punishment) is prohibited by DOE's regulations. Thus, respondents distinguish the present situation where the teacher is behaving in a rogue manner from those in which a teaching is dutifully and properly carrying out his or her duties within the scope of his or her employment.

Respondents point out that under General Municipal Law § 50-k, the Corporation Counsel has the right in the first instance to determine whether the alleged act or omission "occurred while the employee was acting within the scope of his public employment and in the discharge of his duties" and whether the act was in "violation of any rule or regulation of his agency" Thus, respondents argue that Corporation Counsel had a sufficient factual basis for its determination that petitioner was not entitled to legal representation because she had violated DOE's regulation forbidding corporal punishment.

Finally, respondents argue that petitioner did not satisfy statutory pre-conditions to filing this summary proceeding because she did not provide DOE with a notice of claim. For this argument they rely on the requirements of General Municipal Law § 50-k [6] which proscribes the institution of any proceeding under section 50-k, "unless notice of claim shall have been made and served upon the city in compliance with section [50- i]." This section of the law is entitled "prosecution of tort claims; commencement of action."

Another disagreement between the parties is whether petitioner is entitled to reimbursement of her legal fees because Corporation Counsel has declined to provide her with legal representation. Petitioner claims that if she has not violated any rule or regulation, then by not providing her legal representation, respondents have violated General Municipal Law § 50-k. 

Discussion

In an Article 78 proceeding, the applicable standard of review is whether the administrative decision being challenged has a rational basis (CPLR 7803 [3]). Thus, where it is alleged the decision was arbitrary and capricious, or without a rational basis, the petitioner must set forth facts that establish it is "without sound basis in reason" (Matter of Pell, Jr. v. Board of Educ. of Union Free School District No., 1 of the Towns of Scarsdale and Mamaroneck, Westchester County, 34 NY2d 222 at 231 [1974]; Matter of Colton, Jr. v. Berman, 21 NY2d 322 [1967]). The court cannot and must not disturb such a decision, even if it would have arrived at a different decision itself. For the reasons that follow, the court finds that petitioner has failed to establish that the determination by respondents, denying her legal representation, and for reimbursement of legal fees is neither arbitrary nor capricious.

The law in this area (legal representation for a school employee) is unsettled. Some trial courts have held that Education Law § 3028 is controlling and that the only ground upon which legal representation can be refused by respondents is if the alleged conduct was not within the scope of petitioner's employment (Morel v. Board of Education, 116668/10, 2010 NY Slip Op 32079U [Sup Ct. NY Co, 2010] ("Morel"); Inglis v. Dundee Cent. School Dist. Bd. of Education., 180 Misc 2d 156 [Sup Ct, Yates County 1999]; Sagal-Cotler v. Board of Education, Index No. 104406/10 [Sup Ct., NY Co 2011] ("Inglis"). [*5]

Other courts have, however, decided that Education Law § 2560 is a specific statute governing a petitioner's right to legal representation by the respondents (Zampieron v. Board of Education of City School Dist. of City of New York, 30 Misc 3d 1210 [A], 2010 WL 5576190 (Table) [Sup Ct. N.Y.Co., 2010] ("Zampieron"), holding that if the Corporation Counsel makes a rationally based determination that petitioner's conduct violated DOE's rules and regulations, then respondents' decision denying legal representation cannot be disturbed (also, Martin v. Board of Education of the City of New York, 2011 WL 1527190 [Sup Ct., NY Co., 2011] ["Martin"]). For the reasons that follow, this court agrees with the analysis set forth in the decisions of Zampieron and Martin and the court holds that petitioner failed to meet her burden of showing the respondents' decision is without a rational basis.

Upon initial examination, it appears that Education Law § 3028 and Education Law § 2560 (which incorporates General Municipal Law § 50—k [2] by reference) are inconsistent. However, upon closer inspection, it is apparent that Education Law § 2560 is more specific than section 3028 and the two sections of the law can be harmonized.

Whereas section 3028 is a general statute, Education Law § 2506 specifically applies to New York City schools. Furthermore, even if the two statutes cannot be harmonized, under rules of statutory construction the later, more specific statute takes precedence over the pre-existing and irreconcilably conflicting provision (see, Zampieron, 30 Misc 3d 1210 [A] [Sup Ct., NY Co.] and cases cited therein). The legislative history provided by respondents supports their arguments, that the amendments to Education Law § 2506 were insure that all city employees were indemnified against civil liabilities incurred as a result of proper performance of their duties on the job (see, Governor's Bill Jacket, 1979, Ch. 673). Consequently, a New York City DOE employee who is sued is entitled to a legal defense "in any civil action or proceeding ... arising out of any alleged act or omission which the corporation counsel finds occurred while the employee was acting within the scope of his public employment and in the discharge of his duties and was not in violation of any rule or regulation of [his or her] agency at the time the alleged act or omission occurred ..." (General Municipal Law § 50-k [2]) (emphasis added). Therefore, under Education Law § 2506, there are conditions that must be met before a petitioner is eligible for legal defense by the Corporation Counsel.

Although petitioner easily meets "the within the scope of [his or her] public employment" requirement because she was in a class working with a student when the incident occurred, petitioner fails in meeting the other requirements. According to the child and an eyewitness, petitioner struck the child because he got the wrong answer on a lesson. Not only was the action alleged — hitting the child - not undertaken in the discharge or furtherance of her duties as a school employee, corporal punishment by a school employee violates specific regulations (8 NYCRR § 19.5[a][2]; Chancellor's Reg A-420). Consequently, while Education Law § 2560 may provide school employees in a city having a population of one million or more the right to legal defense where an action arises out of disciplinary action taken by the employee against a student while discharging his or her duties within the scope of his employment, it is up to the Corporation Counsel to make the initial determination whether these requirements are satisfied (General Municipal Law § 50-k [2] Perez v. City of New York, 43 AD3d 712, 841 N.Y.S.2d 559 [1st Dept 2007]). The Corporation Counsel's determination on behalf of the respondents is not subject to attack unless it is arbitrary and capricious and without a rational basis. [*6]

Although petitioner contends the decisions in Zampieron (and Martin) are inconsistent with the decision in Timmerman v. Board of Educ. of City School Dist. of City of New York, 50 AD3d 592 [1st Dept 2008], this argument fails. In Timmerman, the Appellate Division, First Department ordered DOE to reimburse petitioner for the attorneys' fees and expenses he incurred in defending himself against criminal charges. The charges arose, however, from disciplinary action he undertook against three disruptive students. When the students did not curb their behavior, Timmerman called one of the girl's parents. A few days later, two of the students reported that Timmerman had "touched" them in a sexual manner and he was arrested on the strength of those claims. The First Department observed that the charges which were dropped were directly tied to his actions as a teacher trying to keep control and discipline in his class. In this case there is no suggestion that the child involved (age 6) reported he was hit on the head to get back at petitioner having taken some disciplinary action against him. The act of hitting the child on the head is simply an act of corporal punishment which is not tolerated except for in the most extreme and dire of circumstances not present on the day of the alleged incident. Following an investigation, the petitioner's actions were reported as "substantiated" and she was disciplined by reassigning her and having a letter put into her employment file.

The decision by respondents to deny petitioner legal representation is firmly supported by the record which includes the incident report and the report following the investigation, each identifying the incident of corporal punishment with specificity. The respondents' decision to deny her legal representation has a rational basis. Therefore, the petition, insofar as it seeks judgment directing respondents to provide her with legal representation is denied.

Petitioner also seeks reimbursement for the legal fees she has incurred because she is a "modestly paid public servant." Pursuant to General Municipal Law § 50-k [2], the initial determination as to whether an employee was acting within the scope of his or her employment, rests solely with the Corporation Counsel (Blood v. The Board of Education of the City of New York, et al, 121 AD2d 128, 130 [1st Dept 1986]). This is to protect "fallible public employees from the potentially ruinous legal consequences" of "unintentional lapses in the daily discharge of their duties" (Blood v. The Board of Education of the City of New York, et al., supra at 132). "

General Municipal Law § 50-k [2] does not provide for private recovery of legal fees if the petitioner is not represented by Corporation Counsel. However, General Municipal Law § 50-k [5] does provide that if the court proceeding against the employee is also "the basis of a disciplinary proceeding by the employee's agency against the employee, [then] representation by the corporation counsel and indemnification by the city may be withheld (a) until such disciplinary proceeding has been resolved and (b) unless the resolution of the disciplinary proceeding exonerated the employee as to such act or omission."

In the case at bar, there is no unresolved disciplinary proceeding against petitioner. The allegations against have been substantiated and she has been disciplined. She is not now, nor will she be in the future, eligible to recover the legal fees she has incurred in obtaining private legal counsel to defend against the civil action, even if it is dismissed against her because her employer, the city, has determined her actions were not within the scope of her employment (see, Ostrin v. The City of New York, 2007 WL 4241913 [Sup Ct., NY Co. 2007]). Therefore, this branch of her petition is denied as well.

Although respondents have raised an issue that petitioner did not comply with the notice [*7]requirements of General Municipal Law § 50- i, they have not shown that this section, pertaining to "prosecution of tort claims" has any applicability to this Article 78 summary proceeding. Therefore, respondents' claimed lack of notice is not a basis to deny this petition. 
Conclusion

In accordance with the foregoing,

It is hereby

ORDERED, DECREED and ADJUDGED that the petition for a judgment (1) declaring that respondents' denial of legal representation and indemnification of expenses he incurred in defense of a civil proceeding was arbitrary, capricious and contrary to law and an abuse of discretion; (2) directing that respondents provide him with legal representation in the civil proceeding is DENIED in its entirety and this proceeding is dismissed; and it is further

ORDERED that this constitutes the decision, order and Judgment of the Court. 

Dated:New York, New York

August 29, 2011

So Ordered:

_______________________

Hon. Judith J. Gische, JSC

Perez v City of New York

2007 NY Slip Op 06764 [43 AD3d 712]

September 18, 2007

Appellate Division, First Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

As corrected through Wednesday, November 7, 2007

Severino Perez, Respondent, v City of New York et al., Appellants, and Carol Healy, Respondent.

—[*1] Michael A. Cardozo, Corporation Counsel, New York (Janet L. Zaleon of counsel), for appellants.

Pollack, Pollack, Isaac & DeCicco, New York (Jillian Rosen of counsel), for Severino Perez, respondent.

Cascione, Purcigliotti & Galluzzi, P.C., New York (Thomas G. Cascione of counsel), for Carol Healy, respondent.

Judgment, Supreme Court, Bronx County (Alexander W. Hunter, Jr., J.), entered December 16, 2005, after a jury trial, awarding plaintiff damages in the principal sum of $1.1 million, and judgment, same court and Justice, entered December 6, 2005, which, after a hearing before Anne E. Targum, J., awarded defendant Healy indemnification against defendant City for legal fees and expenses in the amount of $31,000, unanimously reversed, on the law, without costs, and the complaint and Healy's cross claim dismissed. The Clerk is directed to enter judgment accordingly.

Plaintiff was arrested and prosecuted at the instigation of defendant Healy, then a City police officer, in an incident culminating a long-brewing personal dispute between them. The jury determined that Healy was acting within the scope of her employment. We find no reasonable interpretation of the facts to support that conclusion (see e.g. Caits v Keyser, 202 AD2d 180 [1994]). As a matter of law, an officer is not acting within the scope of employment when causing an arrest of an individual while "engaging in a personal dispute, without any genuine official purpose," and simply "motivated by personal pique" (Campos v City of New York, 32 AD3d 287, 291-292 [2006], lv denied 8 NY3d 816 [2007]). This arrest was clearly "brought on by a matter wholly personal in nature, the source of which was not job-related" (see Seymour v Gateway Prods., 295 AD2d 278, 278 [2002]). The trial court should have granted the City's motion to dismiss on this ground.

This finding necessitates rejection of Healy's cross claim for legal fees and expenses as well. Pursuant to General Municipal Law § 50-k, she requested the Corporation Counsel to [*2]provide her with a defense. The Corporation Counsel has the statutory authority to determine whether or not the subject "act or omission . . . occurred while the employee was acting within the scope of [her] public employment and in the discharge of [her] duties and was not in violation of any rule or regulation of [her] agency at the time the alleged act or omission occurred" (§ 50-k [2]). Here, the negative determination by the Corporation Counsel should not have been set aside by Supreme Court, since it cannot be said that it lacked a factual basis, or was, in that sense, arbitrary and capricious (see Wong v City of New York, 174 AD2d 486 [1991]). Concur—Andrias, J.P., Buckley, Catterson, Malone and Kavanagh, JJ.