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Acting Within the Scope of Employment: Employees' Right to Have City Provide Defense



In the Matter of Deborah Sagal-Cotler v. Board of Education of the City School District of the City of New York, et al.

In the Matter of Josephine Thomas v. New York City Department of Education, et al.

Both cases were ruled upon by the New York Court of Appeals

Facts:  Both petitioners were paraprofessionals employed in New York City public schools who had been sued by students who alleged that the petitioners had hit them.  Both petitioners did not dispute that their actions, regarding corporal punishment of the students, violated a Rule of the Board of Regents which prohibited corporal punishment.  When both petitioners asked the City of New York to defend them, the city refused on the grounds that the petitioners actions precluded them from having the City pay for their defense.  The petitioners claimed that they were entitled to a defense paid for by the City under Education Law § 3028.  This section provided for a defense paid for by the City when a complained of action arose out of the actions of a City employee who was in the discharge of their duties within the scope of their employment.  The City argued that since the petitioners actions violated a regulation regarding corporal punishment, § 3028 did not apply. 

Holding:  For both cases, the court held that the employees of the New York City Department of Education were entitled to a defense provided by the City of New York, notwithstanding the fact that the employees' conduct violated a State regulation.  The Court reasoned that since the petitioners were acting with the scope of their employment, the authors of § 3028 intended to provide a defense even in situations in which an employee's use of corporal punishment violated a regulation.

Judgment:  The Court of Appeals reversed both cases and remitted them to the New York County Supreme Court for further proceedings in accordance with the Court's position.

Majority Opinion Judge:  Judge Smith

Date:  April 25, 2013

Opinion:  http://www.nycourts.gov/ctapps/Decisions/2013/Apr13/73-74opn13-Decision.pdf

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