Memorandum.

The order of the Appellate Division should be reversed, with costs, and the petition dismissed.

Petitioner Police Officer Corey Krug commenced this CPLR article 78 proceeding, seeking defense and indemnification,{**34 NY3d at 1095} under General Municipal Law § 50-j, in connection with a civil action brought against him. Petitioner asserted that respondent City of Buffalo's denial of his request for defense and indemnification was "arbitrary and capricious under [a]rticle 78 of the CPLR."^[FN1] The City moved to dismiss the petition, arguing that its determination was governed by Buffalo City Code § 35-28 and was not arbitrary and capricious insofar as the [*2]determination was rational and supported by the facts. In response, petitioner conceded that Buffalo City Code § 35-28—through General Municipal Law § 50-j (6)—applied to his request for a defense.

Supreme Court granted the petition in part by directing the City to provide for petitioner's defense; the court concluded that—while petitioner's request for indemnification was premature—the City's denial of a defense was "arbitrary and capricious" insofar as it lacked a sufficient factual basis. A divided Appellate Division affirmed insofar as appealed from by the City, holding that the City's denial of a defense to petitioner "was arbitrary and capricious" under Buffalo City Code § 35-28 because it lacked "sufficient factual support" (162 AD3d 1463, 1465 [4th Dept 2018]).

Buffalo City Code § 35-28 requires the City to defend an employee in civil actions "arising out of any alleged act or omission which the Corporation Counsel finds occurred while the . . . employee was acting within the scope of . . . public employment and in the discharge of [the employee's] duties," so long as the employee did not violate any rule or regulation, or engage in intentional wrongdoing or recklessness. In this proceeding, the parties agree that the City's determination that petitioner was not entitled to a defense is governed by Buffalo City Code § 35-28 and have limited their arguments to whether the City's determination is arbitrary and capricious because it lacks a factual basis (see CPLR 7803 [3]).^[FN2]

Given the narrow question before us and under the circumstances presented here, we cannot say that the City's determination{**34 NY3d at 1096} was "irrational or arbitrary and capricious" (Matter of Lemma v Nassau County Police Officer Indem. Bd., 31 NY3d 523, 528 [2018]). Insofar as the record supports the City's conclusion that petitioner was not "acting within the scope of his public employment" under Buffalo City Code § 35-28 because his conduct constituted "intentional wrongdoing" and violated the City's rules regarding the use of force, the City's determination was not "taken without regard to the facts" (Matter of Pell v Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County, 34 NY2d 222, 231 [1974]; see generally Matter of Williams v City of New York, 64 NY2d 800, 802 [1985]).

In light of the arguments presented to this Court and to the courts below, we have no occasion to opine on the relationship between Buffalo City Code § 35-28 and General Municipal Law § 50-j (see Matter of Salino v Cimino, 1 NY3d 166, 172-173 [2003]).

Wilson, J. (dissenting). Numerous Buffalo police officers, including Officer Corey Krug, were deployed to keep order at Chippewa Street, a popular location for late-night drunken revelry. In the course of doing his job, a 30-second excerpt of a{**34 NY3d at 1097} video filmed by a local TV station crew shows Officer Krug performing his duties with what appears to be excessive force: asking an unarmed young man, Devin Ford, why he returned to the area, throwing him onto the hood of a car, striking him in the leg several times with a baton and stopping only when another officer saw the incident and told him to stop. Criminal charges were filed against Officer Krug for the use of excessive force, and Mr. Ford filed a civil suit against him. Officer Krug demanded that the City of Buffalo defend and indemnify him. The City refused; its decision was made by its Corporation Counsel, who considered just two items in deciding to deny representation and indemnification: the 30-second video excerpt and the criminal indictment of Officer Krug.

Officer Krug filed this petition under CPLR article 78 to compel the City to defend and indemnify him, alleging the City was required to do so under General Municipal Law § 50-j (1). Supreme Court granted his petition to the extent it sought to require the City to assume the defense of the litigation against Officer Krug and otherwise dismissed the petition.^[FN1] The Appellate Division affirmed insofar as appealed from by the City (165 AD3d 1463 [4th Dept 2018]).

The majority now reverses the Appellate Division, chastising it and Supreme Court for failing to apply the highly deferential standard applicable to the exercise of discretion by an administrative agency vested with discretion. In doing so, the majority makes two errors. First, it mischaracterizes Officer Krug's article 78 petition as "governed by Buffalo City Code § 35-28" (majority op at 1095). But Officer Krug's article 78 petition does not once mention any portion of the Buffalo City Code as the basis for his claim to defense and indemnification. Instead, he brought his claim entirely under General Municipal Law § 50-j (1). Likewise, in the argument before Supreme Court, the parties discussed General Municipal Law § 50-j exclusively; there was no mention of Buffalo City Code § 35-28.^[FN2] Moreover, neither the City nor Officer [*3]Krug once mentioned General Municipal{**34 NY3d at 1098} Law § 50-j (6) in Supreme Court; counsel for the City confirmed at oral argument before us that it had not relied on that subdivision whatsoever. We must decide this case as pleaded, on the basis of General Municipal Law § 50-j (1).

Second, as a result of the above error, the majority treats Officer Krug's article 78 petition as if it was for mandamus to review, rather than for mandamus to compel. Mandamus to compel, codified in CPLR 7803 (1), asks "whether the body or officer failed to perform a duty enjoined upon it by law." The majority properly notes that mandamus to compel under CPLR 7803 (1) "requires that a petitioner 'have a clear legal right to the relief demanded and [that] there . . . exist a corresponding nondiscretionary duty on the part of the administrative agency to grant that relief' " (majority op at 1095 n 1, quoting Matter of Scherbyn v Wayne-Finger Lakes Bd. of Coop. Educ. Servs., 77 NY2d 753, 757 [1991] [elision by majority]). That is precisely what Officer Krug claimed in his verified petition: "Under General Municipal Law § 50-j, the City is obligated to indemnify Officer Krug"; "the City was thus obligated to indemnify him"; "GML § 50-j requires a municipality to indemnify"; "a municipality is required to indemnify the officer"; "the City was obligated to defend and indemnify him pursuant to GML § 50-j(1)"^[FN3] (emphases added). Those words are more than sufficient to assert a claim of a clear legal right and nondiscretionary duty. If{**34 NY3d at 1099} no such right and duty exist, the solution is not to apply a different legal standard applicable to discretionary agency review, but to reject the petition for mandamus to compel on the merits. For purposes of this case, however, this second problem does not matter, because even under CPLR 7803 (3), which governs (among other things) mandamus to review, we should reverse because the City's determination rested on a clear error of law.

The unfortunate consequence of the majority's recharacterization of Officer Krug's claim is that it has transformed a case that presented as a question of statewide importance we have never addressed—the obligation to defend and indemnify under General Municipal Law § 50-j (1)—into a question of no importance: an interpretation of what would be required under the Buffalo City Code if General Municipal Law § 50-j did not exist.

Under General Municipal Law § 50-j (1), the City of Buffalo has a duty to provide Officer Krug a defense if his conduct occurred while he was acting within the scope of his employment. The City's discretionary determination to deny representation and indemnification to Officer Krug was based on its application of an erroneous legal standard—the Buffalo City Code—rather than the common-law respondeat superior standard governing General Municipal Law § 50-j (1). In an article 78 proceeding, when a local government's decision rests on its application of an erroneous legal standard, we reverse and remit for application of the correct standard (CPLR 7803 [3]).

General Municipal Law § 50-j is a statute of general application, applicable to all municipalities within New York State with the sole exception of New York City. It states:

"Notwithstanding the provisions of any general, special or local law, charter or code to the contrary, every city, county, town, village, authority or agency shall be liable for, and shall assume the liability to the extent that it shall save harmless, any duly appointed police officer of such municipality, authority or agency for any negligent act [*4]or tort, provided such police officer, at the time of the negligent act or tort complained of, was acting in the performance of his duties and within the scope of his employment" (General Municipal Law § 50-j [1]).

General Municipal Law § 50-j (1), by its terms, supersedes all other laws, and renders local governments liable for the{**34 NY3d at 1100} torts of their officers acting in the performance of duties, requiring those local government to "save harmless" such officers.^[FN4] Quite apart from the "notwithstanding" clause, General Municipal Law § 50-j (1) vests no discretion in any local authority to make varying discretionary determinations about whether an officer was acting within the scope of his or her duties: that question requires application of the common-law standard for respondeat superior liability.

A little legislative background is in order. Historically, acts of police officers done within the scope of their employment—even if negligent or tortious—were deemed "governmental functions," for which local governments could not be held liable, because of their governmental immunity (see Jones v State of New York, 33 NY2d 275, 279-280 [1973]). The legislature enacted General Municipal Law § 50-j to abrogate that immunity, so that local governments would be liable for the negligent acts and torts of their police officers, so long as those officers were acting within the scope of their employment (see e.g. Letter from John E. Roe, City of Albany Corporation Counsel, July 21, 1975, Bill Jacket, L 1975, ch 843). The statute contemplates everyday occurrences in which officers doing their jobs use excessive force, engage in negligent conduct, or commit some other tort, and makes the policy decision that the local government—not the officer—will be liable in those circumstances and will represent and "save harmless" the officer.

The legislative history makes clear that General Municipal Law § 50-j (1) was expected to allow for the application of the common-law respondeat superior standard to acts of police officers (see e.g. Mem of Morton H. Grusky, Bill Jacket, L 1975, ch 843). I do not believe the majority would dispute that proposition; rather, the majority deems it irrelevant because it characterizes Officer Krug's claim as arising under a local law, not the General Municipal Law. Instead of whatever (un)fettered discretionary standard Buffalo's Corporation Counsel used, the Corporation Counsel was bound to apply the factors set out in Riviello v Waldron (47 NY2d 297 [1979]). Those factors are:{**34 NY3d at 1101}

"the connection between the time, place and occasion for the act; the history of the relationship between employer and employee as spelled out in actual practice; whether the act is one commonly done by such an employee; the extent of departure from normal methods of performance; and whether the specific act was one that the employer could reasonably have anticipated" (id. at 303).

Here, the factual record is far from sufficient to show, under Riviello, that Officer Krug acted outside the scope of his employment. What is clear and undisputed is that Officer Krug was in uniform, on duty, assigned to keep order in an area known for and filled with rowdy Buffalonians. A criminal indictment cannot serve as the basis for denying an officer's defense for several reasons. First, an indictment is a set of accusations, and defendants—even police officers—are innocent until proved guilty. (Officer Krug was, in fact, acquitted following trial by jury.) Second, allowing local governments to refuse to provide a defense to officers who are indicted would limit the provisions of General Municipal Law § 50-j to defense in civil cases only, which does not appear in the language or legislative history of that statute, and would not comport with the "save harmless" language in the statute.

The only other evidence on which the City relied was the 30-second video clip. But that clip is insufficient to show, under Riviello, that Officer Krug was acting outside of the scope of his duties. Again, the video clearly shows that Officer Krug was in uniform and on duty when the incident occurred. He was performing crowd control with the express purpose of maintaining order and breaking up fights at a particularly popular drinking area. To that end, Officer Krug was equipped with a police-issued baton. Although excessive force may always partially depart from the "normal methods of performance," the Riviello test contemplates this: it is a test of "actual practice" and what is "commonly done" rather than only accounting for the official policy. Here, the sad truth is some amount of excessive force is both common and could be reasonably anticipated by all municipalities, including the City of Buffalo. It [*5]would be particularly difficult to say that such use of force was not foreseen here when the City decided to deploy many additional officers the evening before Thanksgiving in an area where it expected potentially thousands of intoxicated people to congregate. Even conceding that the video shows Officer Krug using excessive force on an unarmed civilian, that is{**34 NY3d at 1102} not sufficient to show that he was acting outside the scope of his duties. Of course, some uses of excessive force must be within the scope of employment, otherwise there would be no purpose behind General Municipal Law § 50-j.^[FN5]

Furthermore, the City admitted at oral argument that it viewed only the 30-second video clip before denying Officer Krug's request for it to assume his defense, despite the fact that Officer Krug's counsel noted that a more complete version of the video was entered into evidence at Officer Krug's criminal trial, which ended in his acquittal. The City conducted no investigation before denying Officer Krug's request, employing none of the ordinary methods of investigation one would expect. The City did not interview witnesses (including other officers at the scene or Mr. Ford), take depositions or obtain affidavits, or conduct hearings of any sort (cf. Matter of Lemma v Nassau County Police Officer Indem. Bd., 31 NY3d 523, 526-527 [2018] [where the Indemnification Board took depositions, heard testimony, and conducted multiple hearings]). It may be possible, from watching a 30-second video excerpt and reading an indictment, to determine that an officer has used excessive force. It is not possible, from only that, to determine that the officer was not acting within the scope of employment.{**34 NY3d at 1103} Incomplete imagery in an incomplete investigation should not determine the fate of the important legal question before us.

The majority relies on Matter of Salino v Cimino (1 NY3d 166, 172 [2003]) to justify its decision not to apply General Municipal Law § 50-j. But in Salino, the officer expressly grounded his claim on the Suffolk County Code, not the General Municipal Law. The officer in Salino did not raise the General Municipal Law at all "in the petition, or before Supreme Court," failing to address the General Municipal Law until its briefing before this Court (id. at 173). Here, Officer Krug has expressly brought his article 78 petition under General Municipal Law § 50-j (1) and continues to argue that that law applies. Salino offers no basis to transform Officer Krug's General Municipal Law claim into a claim under the Buffalo City Code.

Simply, the majority has applied the wrong legal standard to Officer Krug's claims, by asserting that his article 78 petition was brought to enforce rights under the Buffalo City Code rather than under the General Municipal Law. Neither use of a microscope nor a solution to reveal invisible ink discloses any mention of Buffalo City Code § 35-28 in his article 78 petition. Instead, both in that petition and before Supreme Court, Officer Krug argued that General Municipal Law § 50-j (1) applied and obligated the City to defend him. Therefore, contrary to the majority's conclusion that the parties supposedly agreed that Buffalo City Code § 35-28 governs, the Buffalo City Code has no application here, both because Officer Krug did not seek to enforce it, and because, even were the City to attempt to rely on it, it is [*6]expressly preempted by General Municipal Law § 50-j (1)—the statute under which Officer Krug sued.^[FN6] Accordingly, I respectfully dissent, and note that the majority's decision does not purport to contain any holding about the obligations imposed on local governments under the General Municipal Law.

Chief Judge DiFiore and Judges Rivera, Stein, Garcia and Feinman concur; Judge Wilson dissents in an opinion in which Judge Fahey concurs.{**34 NY3d at 1104}

Order reversed, with costs, and petition dismissed, in a memorandum.