Erie County may proceed with a lawsuit against its former commissioner of central police services.
The Appellate Division, Fourth Department, in a 3-2 decision, last week upheld a lower court ruling by Erie County Supreme Court Justice John A. Michalek, who denied a motion by Kevin J. Comerford, the former commissioner, to dismiss the suit.
Comerford, who is represented by Buffalo attorney David J. Seeger, contended the county was not able to sue him because bringing suit was not approved by the County Legislature. He also maintained the complaint, alleging fraud and a breach of fiduciary duty, was insufficient.
Three Appellate Division justices disagreed.
“My client and I obviously agree with the dissent, which essentially agreed with our basis for appeal,” Seeger said. “My client is a former commissioner who served the county well over two different administrations and got caught up in politics.”
The county is represented by Katherine M. Liebner, of the Buffalo firm Gross, Shuman, Brizdle & Gilfillan PC, who could not be reached for comment Wednesday morning.
The nine-page decision does not address the details of the allegation, but notes the county is accusing Comerford of giving false information to the County Legislature about vendors the county should contract with for an upgrade of its computer-aided dispatch system.
It further notes the county, claiming its decision was based on a memorandum from Comerford, entered into a contract in 2007 with Massachusetts-based M/A-Com Inc. for slightly more than $4 million that, at the time of the complaint, had not been completed. M/A-Com is also named in the suit, but was not part of Comerford’s motion to dismiss.
Seeger said everything Comerford did was on the advice of a county attorney, which included the process to apply for a state grant to upgrade the 911 system. Seeger said the purchase was on state bid through contract pricing based on terms negotiated through the state Office of Homeland Security.
“When Chris Collins came in as county executive, he had a different view,” Seeger said. “Suit was brought and my client got scooped up. I believe the county’s position is that the contract should have been the result of a public bidding procedure preceded by a request for proposals.”
Collins, now a U.S. representative, succeeded Joel Giambra, who did not seek re-election in 2007.
Seeger said current County Executive Mark C. Poloncarz was county comptroller at the time and that he and the assistant county attorney were well aware the contract was done under state bid.
The Appellate Division majority rejected Comerford’s contention that the county’s fraud complaint was insufficient for a cause of action; saying Comerford did not offer proof.
The dissenters, Justices Rose H. Sconiers and Gerald J. Whalen, supported Comerford, saying the county’s claim was based solely on “information and belief” that Comerford was advised by New York State Homeland Security that the proposed contract with M/A-Com was “unauthorized and illegal,” allegations they said were insufficient to support the claim. Comerford said the county did not identify the source of the information on which the allegations were made.
The majority, Presiding Justice Henry J. Scudder and Judges Edward D. Carni and Joseph D. Valentino, said they did not take issue with the legal authority cited, but would not dismiss a complaint on a legal theory not raised by the defendant. They further noted the county was not notified such a theory for dismissal was being raised by Comerford and had no opportunity to refute it.
“Nevertheless, defendant moved to dismiss the first amended complaint for, inter alia, failure to state a cause of action alleging fraud and argued that the allegations of fraud made against him were too vague,” Justices Sconiers and Whalen wrote. “We do not agree with the majority that the county should, in effect, be permitted to proceed on patently insufficient fraud allegations in the face of defendant’s challenge to the sufficiency of those very allegations.”
A large part of the decision focuses on whether the county could bring suit. It is noted there is no dispute the County Legislature did not authorize bringing the action, but the majority ruled the county executive, as chief county officer under the County Charter, had the power to authorize the county attorney to begin civil litigation.
Justices Sconiers and Whalen disagreed, saying state County Law holds that the power to authorize a county attorney to bring civil actions belongs to the County Legislature. They cite a number of cases, as well as County Laws 501(1) and 150-a which deal, respectively, with the duties of the county attorney and the county legislative body.
As for the County Charter, Justices Sconiers and Whalen say it explicitly provides the County Legislature shall have “all powers and duties,” a phrase they say is conspicuously absent from the section dealing with the county executive’s powers and duties.
“The County Legislature clearly knew how to empower a branch of the Erie County government with ‘all powers and duties of the county’ (Section 202), but chose not to bestow those powers on the county executive,” they wrote. “Therefore, because it is undisputed in this case that the county attorney acted only at the direction of the county executive and without a resolution from the County Legislature, we would dismiss the first amended complaint on the ground that the county lacked the capacity to sue.”
Seeger said the case will proceed with discovery and move toward trial. He reiterated that Comerford followed the spoken and written advice of the assistant county attorney assigned to advise him.
Seeger said if his client loses at trial, he was a right to appeal to the state Court of Appeals, based on two justices dissenting.
The decision, issued Friday, is County of Erie v. M/A-Com Inc. et al.and Kevin J. Comerford (2013 NY Slip Op 01734).
In a separate appeal, County of Erie v. M/A-Com Inc. (2013 NY Slip Op 01735), the Appellate Division also upheld Judge Michalek’s February 2011 order denying Comerford’s motion to compel the county to pay for his legal defense. That decision was unanimous.