2012 New York Consolidated Laws
PBO - Public Officers
Article 2 - (3 - 19) APPOINTMENT AND QUALIFICATION OF PUBLIC OFFICERS
17 - Defense and indemnification of state officers and employees.

 
    § 17. Defense  and indemnification of state officers and employees. 1.
  (a) As used in this section, unless the context otherwise  requires  the
  term  "employee"  shall  mean any person holding a position by election,
  appointment or  employment  in  the  service  of  the  state,  including
  clinical  practice  pursuant  to  subdivision  fourteen  of  section two
  hundred six of the public health law, whether or not compensated,  or  a
  volunteer  expressly  authorized  to  participate  in  a state-sponsored
  volunteer program, but shall not include an independent contractor.  The
  term  employee shall include a former employee, his estate or judicially
  appointed personal representative and persons who assist  the  education
  department  or  the  department  of  health  as  consultants  or  expert
  witnesses in the investigation or prosecution  of  alleged  professional
  misconduct,  licensure  matters,  restoration  proceedings,  or criminal
  prosecutions for unauthorized practice pursuant to title  eight  of  the
  education law or title II-A of the public health law.
    (b)  For  the  purposes  of  this  section,  the term "employee" shall
  include members, officers and other persons in the employment of the New
  York state energy research and development  authority,  members  of  the
  board  of directors, officers and other persons in the employment of the
  New York state science and technology foundation,  and  members  of  the
  board  of directors, officers and other persons in the employment of the
  New York state olympic accommodations control corporation or serving  on
  its  board  of  directors  on or before June thirtieth, nineteen hundred
  eighty.
    (c) For the purposes  of  this  section,  the  term  "employee"  shall
  include   members  of  the  state  patient  qualification  review  board
  appointed  by  the  commissioner   of   health   pursuant   to   article
  thirty-three-A of the public health law.
    (d)  For  the  purposes  of  this  section,  the term "employee" shall
  include directors, officers and employees of the facilities  development
  corporation.
    (e)  For  the  purposes  of  this  section,  the term "employee" shall
  include  directors,  officers  and  employees   of   the   environmental
  facilities corporation.
    (f)  For  the  purposes  of  this  section,  the term "employee" shall
  include ombudsmen designated under section five hundred  forty-four  and
  section  five hundred forty-five of the executive law, and shall include
  such ombudsmen without regard to whether they  are  volunteers  or  paid
  staff  of  the  office for the aging or of designated substate ombudsman
  programs under the direction of the office.
    (g) For the purposes  of  this  section,  the  term  "employee"  shall
  include the members of the board, officers and employees of the greenway
  heritage  conservancy  for  the  Hudson  river  valley  or  the greenway
  council.
    (h) For the purposes  of  this  section,  the  term  "employee"  shall
  include  members  of  the  board, officers and employees of the New York
  local government assistance corporation.
    (i) For purposes of this section, the term  "employee"  shall  include
  the  officers  and  employees of the Central Pine Barrens joint planning
  and policy commission.
    (j) For purposes of this section, the term  "employee"  shall  include
  directors, officers and employees of the dormitory authority.
    (k)  For  the purposes of this section only, the term "employee" shall
  include any member, director, officer or employee of a  soil  and  water
  conservation  district  created pursuant to section five of the soil and
  water conservation districts law who  is  working  on  a  project  which
  receives  funding  from the state and has received approval by the state
  soil and water conservation committee or who is carrying out the  powers

  and  duties  pursuant  to article two of the soil and water conservation
  districts law by working with any agency of  the  state  as  defined  by
  subdivision  five  of  section  three of the soil and water conservation
  districts law.
    (l)  For  the  purposes  of  this  section  and  consistent  with  the
  provisions of section 13 of a chapter of the laws of 1997, amending  the
  public  authorities law, the public health law, the public officers law,
  chapter 41 of the laws  of  1997  relating  to  providing  a  retirement
  incentive  for  certain  public  employees,  and  the civil service law,
  relating  to  the  creation  of  the  Roswell  Park   Cancer   Institute
  corporation   and   providing   for   the  rights,  powers,  duties  and
  jurisdiction of such corporation,  the  term  "employee"  shall  include
  directors,  officers  and employees of the Roswell Park Cancer Institute
  corporation.
    (m) For the purposes  of  this  section,  the  term  "employee"  shall
  include  the members of the spinal cord injury research board within the
  department of health.
    (n) For the purposes  of  this  section,  the  term  "employee"  shall
  include  directors,  officers,  and  employees of the Governor Nelson A.
  Rockefeller empire state plaza performing arts center corporation.
    (o) For the purposes  of  this  section,  the  term  "employee"  shall
  include  the  directors, officers and employees of the state of New York
  mortgage agency.
    (q) For the purposes  of  this  section,  the  term  "employee"  shall
  include  the  members,  officers and employees of the tobacco settlement
  financing corporation.
    (r) For the purposes  of  this  section,  the  term  "employee"  shall
  include  the directors, officers, and employees of the state of New York
  municipal bond bank  agency  and  the  directors,  officers,  employees,
  trustees  and  other  managers  (however  denominated),  of any tax lien
  entity (as defined in subdivision sixteen of section twenty-four hundred
  thirty-two of the public authorities law)  of  the  state  of  New  York
  municipal bond bank agency.
    (s)  For  the  purposes  of  this  section,  the term "employee" shall
  include the members of the board, officers and employees of the  Niagara
  river greenway commission.
    (t)  For  the  purposes  of  this  section,  the term "employee" shall
  include the  members  of  the  board,  officers  and  employees  of  the
  dormitory  authority for purposes of section sixteen hundred eighty-l of
  the public authorities law.
    (u) For the purposes  of  this  section,  the  term  "employee"  shall
  include  the  members  of  the  empire  state stem cell board within the
  department of health.
    (v) For the purposes  of  this  section,  the  term  "employee"  shall
  include  the members of the board, and officers and employees of the New
  York city off-track betting corporation.
    (w) For purposes of this section, the term "employee" shall include  a
  person  certified  by the office of court administration and paid by the
  city of New York to serve as  a  guardian  ad  litem  in  an  action  or
  proceeding pending in the housing part of the civil court of the city of
  New York.
    2.  (a)  Upon  compliance  by  the  employee  with  the  provisions of
  subdivision four of this  section,  the  state  shall  provide  for  the
  defense  of  the employee in any civil action or proceeding in any state
  or federal court arising out  of  any  alleged  act  or  omission  which
  occurred  or  is  alleged  in  the  complaint to have occurred while the
  employee was acting within the scope of his public employment or duties;
  or which is brought to enforce a provision of section  nineteen  hundred

  eighty-one  or  nineteen  hundred eighty-three of title forty-two of the
  United States code  and  the  act  or  omission  underlying  the  action
  occurred  or  is  alleged  in  the  complaint to have occurred while the
  employee was acting within the scope of his public employment or duties.
  This  duty  to  provide  for  a defense shall not arise where such civil
  action or proceeding is brought by or on behalf of the state.
    (b) Subject to the conditions set  forth  in  paragraph  (a)  of  this
  subdivision,  the  employee  shall  be entitled to be represented by the
  attorney general, provided, however, that the employee shall be entitled
  to representation by private counsel of his choice in any civil judicial
  proceeding whenever the  attorney  general  determines  based  upon  his
  investigation and review of the facts and circumstances of the case that
  representation  by  the  attorney  general  would  be  inappropriate, or
  whenever a court of competent jurisdiction, upon appropriate  motion  or
  by  a  special proceeding, determines that a conflict of interest exists
  and that the employee is entitled to be represented by  private  counsel
  of his choice. The attorney general shall notify the employee in writing
  of such determination that the employee is entitled to be represented by
  private  counsel.  The  attorney  general may require, as a condition to
  payment  of  the  fees  and  expenses  of  such   representation,   that
  appropriate groups of such employees be represented by the same counsel.
  If  the  employee or group of employees is entitled to representation by
  private counsel under the  provisions  of  this  section,  the  attorney
  general  shall so certify to the comptroller. Reasonable attorneys' fees
  and litigation expenses shall be paid  by  the  state  to  such  private
  counsel  from  time  to  time during the pendency of the civil action or
  proceeding subject to certification that the  employee  is  entitled  to
  representation  under  the  terms  and conditions of this section by the
  head of the department, commission, division, office or agency in  which
  such  employee  is  employed  and  upon  the  audit  and  warrant of the
  comptroller. Any dispute with  respect  to  representation  of  multiple
  employees  by  a  single counsel or the amount of litigation expenses or
  the reasonableness of attorneys' fees shall be  resolved  by  the  court
  upon motion or by way of a special proceeding.
    (c) Where the employee delivers process and a request for a defense to
  the  attorney  general  as required by subdivision four of this section,
  the attorney general  shall  take  the  necessary  steps  including  the
  retention  of private counsel under the terms and conditions provided in
  paragraph (b) of subdivision two  of  this  section  on  behalf  of  the
  employee  to avoid entry of a default judgment pending resolution of any
  question pertaining to the obligation to provide for a defense.
    3. (a) The state shall indemnify and save harmless  its  employees  in
  the  amount of any judgment obtained against such employees in any state
  or federal court, or in the amount of any  settlement  of  a  claim,  or
  shall  pay  such  judgment  or  settlement;  provided,  that  the act or
  omission from which such judgment or settlement arose occurred while the
  employee was acting within the scope of his public employment or duties;
  the duty to indemnify and  save  harmless  or  pay  prescribed  by  this
  subdivision  shall  not  arise  where the injury or damage resulted from
  intentional wrongdoing on the part of the employee.
    (b) An employee represented by the  attorney  general  or  by  private
  counsel pursuant to this section shall cause to be submitted to the head
  of the department, commission, division, office or agency in which he is
  employed any proposed settlement which may be subject to indemnification
  or  payment  by the state and if not inconsistent with the provisions of
  this section such head of the department, commission,  division,  office
  or  agency  in  which  he is employed shall certify such settlement, and
  submit such settlement and certification to the  attorney  general.  The

  attorney  general  shall  review such proposed settlement as to form and
  amount, and shall give his approval if in his judgment the settlement is
  in the best interest of the state. Nothing in this subdivision shall  be
  construed  to  authorize the state to indemnify and save harmless or pay
  an employee with respect to a settlement not so reviewed and approved by
  the attorney general.
    (c) Nothing in this subdivision shall authorize the state to indemnify
  or save harmless an employee with respect  to  fines  or  penalties,  or
  money  recovered  from  an  employee  pursuant to article seven-a of the
  state finance law; provided, however, that the state shall indemnify and
  save harmless its employees in the amount of any costs, attorneys' fees,
  damages, fines or penalties  which  may  be  imposed  by  reason  of  an
  adjudication  that  an  employee,  acting within the scope of his public
  employment or duties, has, without willfulness or intent  on  his  part,
  violated  a  prior  order,  judgment,  consent  decree or stipulation of
  settlement entered in any court of this state or of the  United  States.
  The  attorney general shall promulgate such rules and regulations as are
  necessary to effectuate the purposes of this subdivision.
    (d) Upon entry of a final judgment against the employee, or  upon  the
  settlement of the claim, the employee shall cause to be served a copy of
  such  judgment  or  settlement, personally or by certified or registered
  mail within thirty days of the date of entry  or  settlement,  upon  the
  head  of the department, commission, division, office or agency in which
  he is employed; and if not inconsistent  with  the  provisions  of  this
  section,  such  judgment or settlement shall be certified for payment by
  such head of the department, commission, division, office or agency.  If
  the  attorney  general  concurs  in  such certification, the judgment or
  settlement shall be paid upon the audit and warrant of the  comptroller.
  On or before January fifteenth the comptroller, in consultation with the
  department of law and other agencies as may be appropriate, shall submit
  to  the  governor and the legislature an annual accounting of judgments,
  settlements, fees, and litigation expenses paid pursuant to this section
  during the preceding and current fiscal  years.  Such  accounting  shall
  include,  but not be limited to the number, type and amount of claims so
  paid, as well as an estimate of claims to be paid during  the  remainder
  of the current fiscal year and during the following fiscal year.
    4.  The  duty  to  defend or indemnify and save harmless prescribed by
  this section shall be conditioned upon  (i)  delivery  to  the  attorney
  general  or an assistant attorney general at an office of the department
  of law in the state by the employee of the original or  a  copy  of  any
  summons, complaint, process, notice, demand or pleading within five days
  after  he is served with such document, and (ii) the full cooperation of
  the employee in the defense of such action or proceeding and in  defense
  of any action or proceeding against the state based upon the same act or
  omission,  and  in the prosecution of any appeal. Such delivery shall be
  deemed a request by the employee that the state provide for his  defense
  pursuant to this section.
    5.  The  benefits  of  this  section  shall inure only to employees as
  defined herein and shall not enlarge or diminish the rights of any other
  party nor shall any provision of this section be  construed  to  affect,
  alter or repeal any provision of the workers' compensation law.
    6.  This  section  shall  not  in any way affect the obligation of any
  claimant to give notice to the state under section ten of the  court  of
  claims act or any other provision of law.
    7.  The  provisions  of this section shall not be construed to impair,
  alter, limit or modify the rights and obligations of any  insurer  under
  any policy of insurance.

    8.  The  provisions  of  this  section  shall apply to all actions and
  proceedings pending  upon  the  effective  date  thereof  or  thereafter
  instituted.
    9.  Except  as  otherwise  specifically  provided in this section, the
  provisions of this section shall not be construed in any way to  impair,
  alter,  limit, modify, abrogate or restrict any immunity available to or
  conferred upon any unit, entity, officer or employee of the state or any
  other  level  of  government,   or   any   right   to   defense   and/or
  indemnification provided for any governmental officer or employee by, in
  accordance  with,  or  by  reason  of,  any  other provision of state or
  federal statutory or common law.
    10. If any provision of this section or the application thereof to any
  person or circumstance be held unconstitutional or invalid in  whole  or
  in  part  by  any  court  of  competent  jurisdiction,  such  holding of
  unconstitutionality or invalidity shall in no way affect or  impair  any
  other provision of this section or the application of any such provision
  to any other person or circumstance.
    11.  The  provisions of this section shall not apply to physicians who
  are subject to the provisions of the plan for the management of clinical
  practice income as set forth in the policies of the board  of  trustees,
  title  8,  New  York  codes  rules  and regulations, regarding any civil
  action or proceeding alleging some professional malpractice in any state
  or federal court arising out of the physician's involvement in  clinical
  practice as defined in that plan.