Lang v. Kidera et al

Filing 39

-CLERK TO FOLLOW UP-ORDER granting 37 Motion for Partial Summary Judgment. County of Ontario to provide Kidera with a defense to the allegations in Plaintiffs complaint pursuant to Ontario County Local Law 1986-3(3)(a). This case will now be referred for mediation by separate order. The Clerk is directed to send a copy of this Decision and Order to the Clerk of Ontario County and refer to Case No. 107217. Signed by Hon. Charles J. Siragusa on 1/18/2013. (MWP)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK

STEFANIE N. LANG,
Plaintiff,
-vsTHOMAS J. KIDERA, COUNTY OF ONTARIO,
Defendants.

DECISION & ORDER
11-CV-6603-CJS

THOMAS J. KIDERA,
Cross-Claimant,
-vsCOUNTY OF ONTARIO,
Cross-Defendant.

APPEARANCES
For Plaintiff:

Theodore S. Kantor, Esq.
Bilgore, Reich, Levine & Kantor
950 Reynolds Arcade Building
16 East Main Street
Rochester, NY 14614
[phone]

For Thomas J. Kidera:

David Rothenberg, Esq.
Geiger and Rothenberg, LLP
45 Exchange Street Suite 800
Rochester, NY 14614
[phone]

For County of Ontario:

Kristen J. Thorsness, Esq.
Ontario County Attorney
27 North Main Street 4th Floor
Canandaigua, NY 14424
[phone]

INTRODUCTION
Siragusa, J. Before the Court is defendant Thomas J. Kidera’s (“Kidera”) crossmotion seeking an order directing co-defendant County of Ontario (“the County”) to
provide Kidera with a defense to the allegations raised in Plaintiff’s complaint pursuant
to section 18 of the New York Public Officers Law, or “such other and further relief as to
the Court seems just, proper, and equitable.” Notice of Cross-Motion, Sept. 12, 2012,
ECF No. 37. For the reasons stated below, the application is granted.
BACKGROUND
In his Amended Verified Answer and Cross-Claims, filed on September 4, 2012,
ECF No. 35, Kidera related the background of his request for the County to defend him
and its refusal to do so:
ELEVENTH AFFIRMATIVE DEFENSE AND THIRD CROSS-CLAIM
28. The plaintiff in the pending action is Stefanie Lang, who was
employed as confidential secretary to the Public Defender.
29. All of the actions in Ms. Lang’s complaint are alleged to have occurred
at the Ontario County Public Defender’s Office, or in connection with Ms.
Lang’s employment with the Ontario County Public Defender.
30. Accordingly, after personal service of the summons and complaint,
defendant Kidera promptly delivered the summons and complaint to the
Ontario County Attorney, and requested defense and indemnification,
pursuant to Section 18 of the Public Officers Law.
31. On November 25, 2011, John Garvey, County Administrator of the
County of Ontario denied defendant Kidera’s request for defense and
indemnification.
32. Thereafter, and acting through counsel, defendant Kidera appealed
the decision of County Administrator Garvey and requested that the
co-defendant County of Ontario reconsider its denial of a defense in the
lawsuit brought by Ms. Lang.
33. On or about December 8, 2011, the Ontario County Board of
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Supervisors formally denied defendant Kidera’s appeal from Mr. Garvey’s
denial of defense and indemnification.
34. Accordingly, co-defendant County of Ontario has denied defendant
Kidera defense and indemnification under Section 18 of the Public
Officers Law, and that decision has become final.…
48. Clearly, many of the allegations in plaintiff Lang’s complaint, and the
causes of action arising from those allegations, all arise from conduct that
is alleged to have occurred while defendant Kidera was acting within the
scope of his employment as Ontario County Public Defender.
49. By reason of the foregoing, defendant Kidera is entitled to a defense
of the within action, pursuant to Section 18 of the Public Officer’s Law.
Kidera Am. Ans. ¶¶ 28–34, 48–49.
The parties entered into a stipulation, which the Court “so ordered,” Stipulation
and Order, Aug. 24, 2012, ECF No. 34, which in pertinent part states the following:
2. Defendants consent that the court has jurisdiction to determine Kidera’s
cross-claims for indemnity and defense, and further consent that the
County is a proper party defendant for determination of those
cross-claims.…
5. The related action—Kidera v. Garvey, et al., 12-CV-6004-CJS—shall
be remanded to New York State Supreme Court, but shall be stayed, by
order of this Court and consent of both Kidera and the County, pending
determination of the parties’ motion(s) addressed to Kidera’s cross-claims
alleging a right to indemnity and defense under Section 18 of the Public
Officers Law.
Stip. & Order ¶ 2 & 5. Finally, in paragraph 6 of the stipulation, the parties agreed that
this Court’s determination of Kidera’s cross-claims “for the right to indemnity and
defense under Section 18 of the Public Officers Law…shall be binding on defendants,
and shall not be re-litigated in New York State Courts or any other venue.” Id. ¶ 6.

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ANALYSIS
Mr. Kidera relies on New York Public Officers Law section 181 to support his
argument that the County owes him a defense in this action. The County argues that
statute does not apply to this situation. By way of background on section 18, the Court
in Hennessy v. Robinson, 985 F. Supp. 283 (N.D.N.Y 1997), noted:
Prior to the enactment of § 18, “a confusing patchwork of defense and
indemnification provisions existed that applied to various public officers
and employees . . . sued as a result of acts or omissions within the scope
of their public employment.” (Memorandum of the Law Revision
Commission, McKinney’s Sessions Laws of 1981, pp. 2314-15).…
After the passage of § 18, the office of the New York State Attorney
General stated:
Coverage under section 18 is at the election of the local
governing body. (§ 18[2][a]). Additionally, section 18
expressly states that its provisions may replace or
supplement other defense and indemnification enactments
(§ 18 [12]). From this, we conclude that a local government
may elect defense and indemnification under section 18,
continue or provide for defense and indemnification under a
local enactment or supplement local enactments with the
provisions of section 18. Had the Legislature desired to
make section 18 the exclusive format for defense and
indemnification, it could easily have so provided. Instead,
local governing bodies expressly are given the option of
retaining local enactments and supplementing them through
the application of section 18 (§ 18 [12]).New York Opinion
Attorney General (Inf.) 82, 1987 WL 273422, at *2 (N.Y.A.G.
1987) (emphasis added).
Id. at 286. Thus, by its own terms, section 18 requires that the County decide whether
to adopt its provisions for defense of its officers. The County cites to its own Local Law

1

New York Public Officers Law section 18 was added by L.1981, ch. 277, § 1, and effective
June 22, 1981. It has been amended six times since its adoption, the latest in 1984. Legislative
History, NY CLS Pub O § 18 (2012).
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1986-32 and contends that it decided not to adopt section 18, but to provide a defense
for its officers on these terms:
SECTION 3: (a) Upon compliance by an employee with the provisions of
Section 5 of this local law, the County of Ontario, through the office of the
County Attorney, or by means of any applicable insurance program
maintained by the county, shall provide for the defense of the employee in
any civil action or proceeding in any state or federal court arising out of
any alleged act or omission which occurred or is alleged in the complaint
to have occurred while the employee was acting within the scope of his
public employment or duties. This duty to provide for defense shall not
arise where such civil action or proceeding is brought by or on behalf of
the County of Ontario.
Ontario County Local Law No. 2 (later renumbered 1986-3) section 3(a) (1986)
(Reinhardt Supp’l Aff. Ex. B, Jan. 20, 2012, ECF No. 15-1). Section 5 of the local law
requires the employee to deliver a copy of the summons, complaint, process, notice,
demand or pleading within five days of service on the employee, as well as the
employee’s full cooperation.
The County relies on Section 4 of the same law to argue that if an employee is
alleged to have committed intentional misconduct, the County does not owe him a duty
to defend. Section 4 of Local Law 1986-3 states in full as follows:
SECTION 4: (a) The County of Ontario shall indemnify and save harmless
its employees in the amount of any judgment obtained against such
employees in any state or federal court, or in the amount of any
settlement of a claim, provided that the act or omission from which any
such judgment or settlement arose occurred while the employee was
acting within the scope of his public employment or duties; the duty to
indemnify and save harmless described by the section shall not arise
where the injury or damage resulted from the intentional wrongdoing or
recklessness on the part of the employee and shall not be applicable to

2

As Assistant Ontario County Attorney Michael Reinhardt stated in his supplemental affidavit
¶ 4, filed January 25, 2012, ECF No. 15-1, Ontario County Local Law No. 2, passed in 1986, was
later re-numbered to Local Law 1986-3.
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an award for punitive damages.
(b) The determination of an issue of whether an employee was acting
within the scope of his public employment or duties at the time of the
occurrence, act or omission giving rise to a claim, shall be made by the
County Administrator, on advice by the County Attorney, subject to appeal
to the Board of Supervisors, upon advice from the County Attorney. Any
such determination shall be subject to review by a court of competent
jurisdiction in the manner prescribed by law.
(c) An employee represented by private counsel shall cause to be
submitted to the County Administrator any proposed settlement which
may be subject to indemnification by the county of Ontario, and if not
inconsistent with the provisions of this section, the County Administrator
shall certify such settlement, and submit such settlement and certification
to the County Attorney. The attorney shall review such proposed
settlement as to form and amount, and shall give his approval if in his
judgment the settlement is in the best interest of the county. Nothing In
this subdivision shall be construed to authorize the county to indemnify or
save harmless an employee with respect to a settlement not so reviewed
and approved by the County Attorney.
(d) Upon entry of a final judgment against the employee, or upon the
settlement of the claim, the employee shall cause to be served a copy of
such judgment or settlement, personally or by certified or registered mall
within thirty (30) days of the date of entry or settlement, upon the County
Administrator; and if not inconsistent with the provisions of this section,
such judgment or settlement shall be certified for payment by the County
Administrator. If the attorney concurs in such certification, the judgment or
settlement shall be paid upon the audit and warrant of the Finance Officer.
Ontario County Local Law 1986-3 section 4 (1986). Relying on this section, the County
maintains that Kidera is not owed either a defense at the County’s expense, or
indemnification. Additionally, the County argues that this Court, in reviewing its decision
to deny defense and indemnification, must apply the arbitrary and capricious standard
from New York Civil Procedure Law and Rules Article 78 in determining whether the
County’s decision should be overturned. Since the duty to indemnify is not before it on
this motion, the Court declines to rule on that issue.

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It is well settled law in New York that the duty of an insurance company to
defend is broader than the duty to indemnify. Automobile Ins. Co. of Hartford v. Cook, 7
N.Y.3d 131, 137 (2006) (“It is well settled that an insurance company’s duty to defend is
broader than its duty to indemnify. Indeed, the duty to defend is ‘exceedingly broad’ and
an insurer will be called upon to provide a defense whenever the allegations of the
complaint ‘suggest ... a reasonable possibility of coverage.’”). With regard to whether a
municipality has a similarly broad duty to defend, the New York State Supreme Court,
Appellate Division, Third Department, in Dreyer v. City of Saratoga Springs, 43 A.D.3d
586, 587–88, 840 N.Y.S.2d 680, 681–82 (N.Y. App. Div. 3d Dept. 2007), ruled that such
duty is similarly broad. In that case, the Third Department wrote:
First, whether the City adopted the provisions of Public Officers Law § 18,
as petitioner alleges in her amended petition, and whether Supreme Court
erred in determining that respondents do not contest this issue (they do,
as evidenced by their verified answer) are issues rendered academic
because the language employed in City Code § 9–1—“[t]he City Council
of the City of Saratoga Springs agrees to provide a defense and indemnify
its officers and employees in any state or federal action arising out of any
alleged act or omission which occurred or allegedly occurred in the scope
of official duty or public employment” (emphasis added)—is identical to
that contained in Public Officers Law § 18(3)(a). Thus, Supreme Court did
not err in applying case law interpreting Public Officers Law § 18 in
interpreting City Code § 9–1 (see 1997 Ops. Atty. Gen. No. I 97–40;
Matter of Schulz v. Doetsch, 217 A.D.2d 861, 862, 629 N.Y.S.2d 841
[1995]). Accordingly, whether respondents owe petitioner a legal defense
under City Code § 9–1 hinges on whether the federal complaints allege
that the employee was acting within the scope of her employment at the
time of the alleged wrongdoing (see Merrill v. County of Broome, 244
A.D.2d 590, 592, 664 N.Y.S.2d 144 [1997]; Matter of Polak v. City of
Schenectady, 181 A.D.2d 233, 236, 585 N.Y.S.2d 844 [1992] ). If the
allegations of the complaint suggest that any of the conduct asserted falls
reasonably within the scope of employment, the duty to provide a defense
is triggered since the duty to defend is extremely broad and exists
regardless of how baseless the complaint may be (see Automobile Ins.
Co. of Hartford v. Cook, 7 N.Y.3d 131, 137, 818 N.Y.S.2d 176, 850 N.E.2d
1152 [2006]; Matter of Sharrow v. State of New York, 216 A.D.2d 844,
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845, 628 N.Y.S.2d 878 [1995], lv. denied 87 N.Y.2d 801, 637 N.Y.S.2d
688, 661 N.E.2d 160 [1995]).
Dreyer v. City of Saratoga Springs, 43 A.D.3d 586, 587–88, 840 N.Y.S.2d 680, 681–82
(N.Y. App. Div. 3d Dept. 2007).
Comparing the two provisions at issue here, Local Law 1986-3, section 3(a), with
Public Officers Law section 18(3)(a) shows that the two have nearly identical language
with respect to the duty to defend:
Local Law 1986-3 section 3(a)

N.Y. Public Officers Law section 18(3)(a)

Upon compliance by an employee with
the provisions of Section 5 of this local
law, the County of Ontario, through the
office of the County Attorney, or by
means of any applicable insurance program maintained by the county, shall provide for the defense of the employee in
any civil action or proceeding in any state
or federal court arising out of any alleged
act or omission which occurred or is alleged in the complaint to have occurred
while the employee was acting within the
scope of his public employment or duties.
This duty to provide for defense shall not
arise where such civil action or proceeding is brought by or on behalf of the
County of Ontario.

Upon compliance by the employee with
the provisions of subdivision five of this
section, the public entity shall provide for
the defense of the employee in any civil
action or proceeding, state or federal,
arising out of any alleged act or omission
which occurred or allegedly occurred
while the employee was acting within the
scope of his public employment or duties.
This duty to provide for a defense shall
not arise where such civil action or proceeding is brought by or at the behest of
the public entity employing such employee.

Furthermore, with respect Local Law 1986-3, the County stated that, “[i]n enacting this
local law, the Board of Supervisors of Ontario County finds that the State of New York
has enacted similar provisions for the legal and financial security of its officers and
employees and further finds that such security is also required for local personnel.”
Local Law 1986-3 section 1. Accordingly, this Court comes to the same conclusion as
did the court in Dwyer: “If the allegations of the complaint suggest that any of the
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conduct asserted falls reasonably within the scope of employment, the duty to provide a
defense is triggered since the duty to defend is extremely broad and exists regardless
of how baseless the complaint may be…” Dwyer, 43 A.D.3d at 588.
In the case at bar, the complaint alleges, inter alia, the following that touches
upon whether Mr. Kidera was allegedly acting in the scope of his employment:
5. The Defendant, Thomas J. Kidera, was formerly employed by the
Defendant, County of Ontario, as the first Ontario County Public
Defender, commencing in approximately November, 2009.…
16. Commencing in or about June, 2010, I began to receive
uncomfortable communications from Defendant Kidera in emails on my
personal and work email accounts, text messages and telephone calls
seeking to spend more time with me outside of work.
17. At that point in time and until his departure from the office in March,
2011, I had never spent time with Mr. Kidera outside of work, except for
an occasional lunch meeting during a work day and an office holiday party
or office dinner.…
22. When I approached Mr. Kidera about my need for time-off from work
due to fever, chills, etc., he stated to me that he thought that I had
“cancer” from a lump in my leg.
23. This was extremely upsetting to me and I began to cry hysterically.…
25. When I returned to the office, and in and around February, 2011, Mr.
Kidera began to “stalk” me in the office and to treat me differently from all
of the other employees in the office.…
55. Also found among Mr. Kidera’s papers was a yellow pad with ‘’Notes’‘
for a conversation which Mr. Kidera apparently intended to have with me
on or about February 18, 2011.
56. I asked for a copy of the ‘’Notes,’‘ but I was refused a copy by the
County Human Resources Director and the Deputy County Administrator.
57. To the best of recollection, included among the ‘’Notes,’‘ were items
wherein Mr. Kidera was going to tell me that I needed to act differently in
the office, as follows:
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A. That I was not allowed to talk to Ms. Bleakley or Chris
Eaggleston during work hours, only after 5pm.
B. I was not allowed to be in Ms. Bleakley’s office or Ms.
Eaggleston’s cubicle during the work day.
C. I was not permitted to leave my desk during the work day.
D. I was not to communicate with anyone outside the office
unless I had gotten his approval and that I was not allowed
to discuss anything he talked to me about to anyone.
Compl. ¶¶ 5, 16, 17, 22, 23, 25, 55–57. Without even going outside the complaint, it is
clear that Plaintiff’s allegations encompass Kidera’s conduct while acting as Public
Defender, that is, “arising out of any alleged act or omission which occurred or is
alleged in the complaint to have occurred while the employee was acting within the
scope of his public employment or duties.” Local Law 1986-3 section 3(a).
Consequently, the County of Ontario owes Kidera a duty to defend.
As indicated above, the County maintains that its decision to deny Kidera a
defense under Local Law 1986-3, affirmed by its Board of Supervisors, can be set aside
only if this Court determines it was arbitrary and capricious. The County has provided
the Court with an affidavit and supplemental affidavit from John Garvey, the County
Administrator for Ontario County (“Garvey”). Garvey Aff., Dec. 16, 2011, ECF No. 5-3;
Garvey Supp’l. Aff., Jan 25, 2012, ECF No. 15-2. Garvey was the initial officer who
denied Kidera’s request for a defense. However, neither of Garvy’s two affidavits relates
to his decision to deny Kidera a defense under Local Law 1986-3 or, for that matter,
Public Officers Law section 18. Although the County argues that the Court should apply
the arbitrary and capricious standard, it has failed to provide any record of the
proceedings that produced the decision by Garvey or the affirmance by the Board of
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Supervisors, to deny Kidera a defense paid for by the County. Therefore, the Court is
without a record to review, and based solely on the language in the Local Law, and the
allegations in the complaint, finds that Kidera is entitled to a defense paid for by the
County of Ontario.
CONCLUSION
Defendant Thomas J. Kidera’s cross-motion, ECF No. 37, seeking partial
summary judgment, more specifically, an Order directing the County of Ontario to
provide Kidera with a defense to the allegations in Plaintiff’s complaint, is granted
pursuant to Ontario County Local Law 1986-3(3)(a). This case will now be referred for
mediation by separate order. The Clerk is directed to send a copy of this Decision and
Order to the Clerk of Ontario County and refer to Case No. 107217.

IT IS SO ORDERED
Dated: January 18, 2013
Rochester, New York
ENTER:

___________________________
CHARLES J. SIRAGUSA
United States District Judge

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