Law360, New York (January 27, 2023, 4:35 PM EST) — Former Gov. Andrew Cuomo won a key ruling Friday from a New York state judge that will likely require the attorney general to fund his private defense of a sexual harassment lawsuit brought by a state trooper.
New York State Supreme Court Justice Shlomo Hagler said that under state law, Attorney General Letitia James had a duty to defend Cuomo in the lawsuit, even though the trooper’s allegations first came to light in James’ own investigation of the governor.
The ex-governor’s attorneys then immediately sought a state-funded private defense instead, saying the attorney general has already acknowledged a conflict of interest and authorized a private defense in another sexual harassment lawsuit stemming from her investigation, among other litigation. The state requested time to consider its options.
In 2021, Cuomo denied wrongdoing but resigned following James’ searing report, which found he sexually harassed 11 women while in office. While the attorney general has a responsibility to defend state employees sued for conduct within the scope of their employment, James rejected his request for representation, saying Cuomo’s alleged conduct was well outside his job description.
But in a remote hearing on Friday, Justice Hagler found that while the allegations are “quite disturbing and should not be tolerated in the workplace, if true,” he did not believe it was “clear-cut” that reasonable minds could come to no other conclusion than that the governor’s alleged touching or comments were outside the scope of his employment.
“Did it go over the line? That’s not clear-cut at this stage,” said Justice Hagler, echoing his earlier concerns that it remained unclear based on the allegations and Cuomo’s own statements. A “trier of fact” would need to ultimately decide, he said.
The judge said the next question is whether the AG’s office would have a conflict of interest in defending Cuomo. The ex-governor’s attorneys responded that James has already allowed a state-funded private defense in former Cuomo aide Charlotte Bennett’s sexual harassment lawsuit against him — her claims also featured in the attorney general’s report.
“Under no circumstances should the attorney general represent him in any of these matters,” said Cuomo attorney Theresa Trzaskoma of of Sher Tremonte LLP. “I don’t know what there is to discuss.”
“They have a conflict in any matter in which Gov. Cuomo has been sued in his individual capacity. They have been withdrawing in those cases,” said another Cuomo attorney, Rita Glavin of Glavin PLLC. “The attorney general is citing a conflict because of what has happened over the last year and a half. So, I think this should be relatively quick because the attorney general has stated its position to us repeatedly.”
The judge gave the attorney general until next week to respond with her position and adjourned the matter until Feb. 3.
The underlying federal lawsuit brought by “Trooper 1,” whose allegations were featured in the attorney general’s investigation, claims that Cuomo made sexual comments and jokes to her and touched her inappropriately over the three years she worked on his security team.
James’ August 2021 report was penned by independent investigators at Vladeck Raskin & Clark PC and Cleary Gottlieb Steen & Hamilton LLP.
It detailed how the state trooper recalled the governor recruiting her to his detail in 2017, later kissing only her on the cheek in front of others, repeatedly making sexually charged comments and running his hands over her body — once allegedly tracing his finger down her spine as she stood in front of him on an elevator, saying, “Hey, you.” Other troopers backed up her testimony describing harassment continuing into 2021, according to the investigation.
Cuomo resigned later that month, calling the allegations of harassment “false” but apologizing to the “11 women who I truly offended.” He cast the decision as a move to avoid “months of political and legal controversy” amid a looming impeachment investigation. That inquiry also ended with a conclusion that Cuomo had sexually harassed women as governor.
In December 2021, the Nassau County district attorney concluded that allegations that Cuomo had touched the trooper inappropriately at the Belmont Park racetrack were “credible, deeply troubling, but not criminal under New York law.”
During the hearing Friday, Justice Hagler said that both the attorney general’s and the legislature’s inquiries had not afforded the governor the sufficient due process for them to be considered in his decision. Cuomo has repeatedly called the investigations biased.
“I’m not trying to denigrate those investigations,” the judge said, calling the attorney general’s report “professional and thorough and quite impressive,” but he noted that Cuomo did not have the chance to cross-examine the witnesses and therefore the findings couldn’t be a decisive factor in whether Cuomo deserved a state defense.
State counsel Andrew Amer pushed back, arguing that the trooper’s testimony in the attorney general’s investigation was the clear-cut evidence the court required.
In a statement after the hearing, a spokesperson for James said that “while we disagree with the judge’s decision, we respect it. We are reviewing the decision and any potential next steps.”
Cuomo’s spokesperson touted the win on Friday. “From the very beginning, every action Tish James has taken concerning Governor Cuomo has amounted to a politicized abuse of power and every time one of them goes before a court of law, it unravels,” Rich Azzopardi said.
Cuomo is represented by Rita M. Glavin of Glavin PLLC, and Theresa Trzaskoma and Allegra A. Noonan of Sher Tremonte LLP.
New York is represented by Andrew Amer, Michael Jaffe and Serena Longley of the Office of the Attorney General of the State of New York.
The case is Andrew M. Cuomo v. Letitia James, case number 156771/2022, in the Supreme Court of the State of New York, New York County.
–By Frank G. Runyeon. Editing by Marygrace Anderson.
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