98 A.D.2d 871 | N.Y. App. Div. | 1983
— Appeal from a judgment of the Supreme Court at Special Term (Connor, J.), entered May 13, 1983 in Albany County, which granted petitioner’s application, in a proceeding pursuant to CPLR article 78, to, inter alia, compel respondents to certify that petitioner is entitled to payment of attorney’s fees for private counsel in defense of a Federal civil action. The issues presented arise from the withdrawal from a case by an Assistant Attorney-General upon her claim that petitioner did not fully co-operate in the defense of a claim against him. Petitioner is a permanently appointed employee of the New York State Department of Correctional Services and has been employed at the Downstate Correctional Facility since 1972. In October of 1981, petitioner and six other correction officers were named defendants in a civil action commenced in Federal District Court. The complaint alleges, in brief, that petitioner and the other defendants confiscated plaintiff’s property, assaulted him and, by the use of excessive force, deprived him of the opportunity to receive proper medical care and treatment while plaintiff, one Herrera, was an inmate at Downstate Correctional Facility. Upon being served, petitioner promptly exercised the option available to him under section 17 of the Public Officers Law and requested that the Attorney-General defend him in the Federal civil action. In response, an Assistant Attorney-General was assigned to represent petitioner and an answer was interposed on his behalf. Petitioner was requested to forward certain reports and memoranda to the Assistant Attorney-General and to attend conferences and otherwise assist in the furtherance of his defense and, concededly, he performed these chores satisfactorily. The sole reason
Petitioner, without assistance or advice from the Assistant Attorney-General, corrected the answer by affidavit sent to plaintiff’s counsel before forwarding the signed transcript.