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MATTER OF O'BRIEN v. SPITZER

7 N.Y.3d 239 (2006)

851 N.E.2d 1195

818 N.Y.S.2d 844

In the Matter of STEPHEN L. O'BRIEN, Respondent, v. ELIOT SPITZER, as Attorney General of the State of New York, Appellant.

Court of Appeals of New York.

Decided June 29, 2006.

Attorney(s) appearing for the Case

Eliot Spitzer, Attorney General, New York City (Richard Rifkin, Caitlin J. Halligan, Daniel Smirlock, Michael S. Belohlavek and David Lawrence III of counsel), appellant pro se.

O'Brien & O'Brien, LLP, Nesconset (Stephen L. O'Brien pro se and Daniel P. O'Brien of counsel), for respondent.

Chief Judge KAYE and Judges G.B. SMITH, CIPARICK, ROSENBLATT, GRAFFEO and READ concur.

OPINION OF THE COURT

R.S. SMITH, J.

We hold that the Attorney General properly found a private lawyer who was appointed as referee in a mortgage foreclosure proceeding to be an independent contractor, not a state employee. The referee therefore was not entitled to defense and indemnification from the State in a lawsuit brought against him.

Facts and Procedural History

This case arises out of a proceeding to foreclose a mortgage on a home...

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