N.Y. PBO Law § 17 — New York Code / Act PBO / Article 2 / Section 17
Defense and indemnification of state officers and employees
Status: in_force

§ 17. Defense and indemnification of state officers and employees. 1.\n(a) As used in this section, unless the context otherwise requires the\nterm "employee" shall mean any person holding a position by election,\nappointment or employment in the service of the state, including\nclinical practice pursuant to subdivision fourteen of section two\nhundred six of the public health law, whether or not compensated, or a\nvolunteer expressly authorized to participate in a state-sponsored\nvolunteer program, but shall not include an independent contractor. The\nterm employee shall include a former employee, his estate or judicially\nappointed personal representative and persons who assist the education\ndepartment or the department of health as consultants or expert\nwitnesses in the investigation or prosecution of alleged professional\nmisconduct, licensure matters, restoration proceedings, or criminal\nprosecutions for unauthorized practice pursuant to title eight of the\neducation law or title II-A of the public health law.\n  (b) For the purposes of this section, the term "employee" shall\ninclude members, officers and other persons in the employment of the New\nYork state energy research and development authority, members of the\nboard of directors, officers and other persons in the employment of the\nNew York state science and technology foundation, and members of the\nboard of directors, officers and other persons in the employment of the\nNew York state olympic accommodations control corporation or serving on\nits board of directors on or before June thirtieth, nineteen hundred\neighty.\n  (c) For the purposes of this section, the term "employee" shall\ninclude members of the state patient qualification review board\nappointed by the commissioner of health pursuant to article\nthirty-three-A of the public health law.\n  (d) For the purposes of this section, the term "employee" shall\ninclude directors, officers and employees of the facilities development\ncorporation.\n  (e) For the purposes of this section, the term "employee" shall\ninclude directors, officers and employees of the environmental\nfacilities corporation.\n  (f) For the purposes of this section, the term "employee" shall\ninclude ombudsmen designated under section five hundred forty-four and\nsection five hundred forty-five of the executive law, and shall include\nsuch ombudsmen without regard to whether they are volunteers or paid\nstaff of the office for the aging or of designated substate ombudsman\nprograms under the direction of the office.\n  (g) For the purposes of this section, the term "employee" shall\ninclude the members of the board, officers and employees of the greenway\nheritage conservancy for the Hudson river valley or the greenway\ncouncil.\n  (h) For the purposes of this section, the term "employee" shall\ninclude members of the board, officers and employees of the New York\nlocal government assistance corporation.\n  (i) For purposes of this section, the term "employee" shall include\nthe officers and employees of the Central Pine Barrens joint planning\nand policy commission.\n  (j) For purposes of this section, the term "employee" shall include\ndirectors, officers and employees of the dormitory authority.\n  (k) For the purposes of this section only, the term "employee" shall\ninclude any member, director, officer or employee of a soil and water\nconservation district created pursuant to section five of the soil and\nwater conservation districts law who is working on a project which\nreceives funding from the state and has received approval by the state\nsoil and water conservation committee or who is carrying out the powers\nand duties pursuant to article two of the soil and water conservation\ndistricts law by working with any agency of the state as defined by\nsubdivision five of section three of the soil and water conservation\ndistricts law.\n  (l) For the purposes of this section and consistent with the\nprovisions of section 13 of a chapter of the laws of 1997, amending the\npublic authorities law, the public health law, the public officers law,\nchapter 41 of the laws of 1997 relating to providing a retirement\nincentive for certain public employees, and the civil service law,\nrelating to the creation of the Roswell Park Cancer Institute\ncorporation and providing for the rights, powers, duties and\njurisdiction of such corporation, the term "employee" shall include\ndirectors, officers and employees of the Roswell Park Cancer Institute\ncorporation.\n  (m) For the purposes of this section, the term "employee" shall\ninclude the members of the spinal cord injury research board within the\ndepartment of health.\n  (n) For the purposes of this section, the term "employee" shall\ninclude directors, officers, and employees of the Governor Nelson A.\nRockefeller empire state plaza performing arts center corporation.\n  (o) For the purposes of this section, the term "employee" shall\ninclude the directors, officers and employees of the state of New York\nmortgage agency.\n  (q) For the purposes of this section, the term "employee" shall\ninclude the members, officers and employees of the tobacco settlement\nfinancing corporation.\n  (r) For the purposes of this section, the term "employee" shall\ninclude the directors, officers, and employees of the state of New York\nmunicipal bond bank agency and the directors, officers, employees,\ntrustees and other managers (however denominated), of any tax lien\nentity (as defined in subdivision sixteen of section twenty-four hundred\nthirty-two of the public authorities law) of the state of New York\nmunicipal bond bank agency.\n  (s) For the purposes of this section, the term "employee" shall\ninclude the members of the board, officers and employees of the Niagara\nriver greenway commission.\n  (t) For the purposes of this section, the term "employee" shall\ninclude the members of the board, officers and employees of the\ndormitory authority for purposes of section sixteen hundred eighty-l of\nthe public authorities law.\n  (v) For the purposes of this section, the term "employee" shall\ninclude the members of the board, and officers and employees of the New\nYork city off-track betting corporation.\n  (w) For purposes of this section, the term "employee" shall include\n(i) a person certified by the office of court administration and paid by\nthe city of New York to serve as a guardian ad litem in an action or\nproceeding pending in the housing part of the civil court of the city of\nNew York; or (ii) a person certified by the office of court\nadministration and paid by the county of Westchester to serve as a\nguardian ad litem in a non-payment, holdover, or other landlord-tenant\naction or proceeding pending in a village, town, city, or other court in\nthe county of Westchester.\n  (x) For the purposes of this section, the term "employee" shall\ninclude the members of the board, officers and employees of the\ndormitory authority for purposes of section sixteen hundred eighty-q of\nthe public authorities law.\n  (y) For purposes of this section, the term "employee" shall include\nmembers of the board, officers and employees of the New York state\nthruway authority or its subsidiaries.\n  (z) For purposes of this section, the term "employee" shall include\nmembers of the governing board, officers and employees of the New York\nstate canal corporation.\n  2. (a) Upon compliance by the employee with the provisions of\nsubdivision four of this section, the state shall provide for the\ndefense of the employee in any civil action or proceeding in any state\nor federal court arising out of any alleged act or omission which\noccurred or is alleged in the complaint to have occurred while the\nemployee was acting within the scope of his public employment or duties;\nor which is brought to enforce a provision of section nineteen hundred\neighty-one or nineteen hundred eighty-three of title forty-two of the\nUnited States code and the act or omission underlying the action\noccurred or is alleged in the complaint to have occurred while the\nemployee was acting within the scope of his public employment or duties.\nThis duty to provide for a defense shall not arise where such civil\naction or proceeding is brought by or on behalf of the state.\n  (b) Subject to the conditions set forth in paragraph (a) of this\nsubdivision, the employee shall be entitled to be represented by the\nattorney general, provided, however, that the employee shall be entitled\nto representation by private counsel of his choice in any civil judicial\nproceeding whenever the attorney general determines based upon his\ninvestigation and review of the facts and circumstances of the case that\nrepresentation by the attorney general would be inappropriate, or\nwhenever a court of competent jurisdiction, upon appropriate motion or\nby a special proceeding, determines that a conflict of interest exists\nand that the employee is entitled to be represented by private counsel\nof his choice. The attorney general shall notify the employee in writing\nof such determination that the employee is entitled to be represented by\nprivate counsel. The attorney general may require, as a condition to\npayment of the fees and expenses of such representation, that\nappropriate groups of such employees be represented by the same counsel.\nIf the employee or group of employees is entitled to representation by\nprivate counsel under the provisions of this section, the attorney\ngeneral shall so certify to the comptroller. Reasonable attorneys' fees\nand litigation expenses shall be paid by the state to such private\ncounsel from time to time during the pendency of the civil action or\nproceeding subject to certification that the employee is entitled to\nrepresentation under the terms and conditions of this section by the\nhead of the department, commission, division, office or agency in which\nsuch employee is employed and upon the audit and warrant of the\ncomptroller. Any dispute with respect to representation of multiple\nemployees by a single counsel or the amount of litigation expenses or\nthe reasonableness of attorneys' fees shall be resolved by the court\nupon motion or by way of a special proceeding.\n  (c) Where the employee delivers process and a request for a defense to\nthe attorney general as required by subdivision four of this section,\nthe attorney general shall take the necessary steps including the\nretention of private counsel under the terms and conditions provided in\nparagraph (b) of subdivision two of this section on behalf of the\nemployee to avoid entry of a default judgment pending resolution of any\nquestion pertaining to the obligation to provide for a defense.\n  3. (a) The state shall indemnify and save harmless its employees in\nthe amount of any judgment obtained against such employees in any state\nor federal court, or in the amount of any settlement of a claim, or\nshall pay such judgment or settlement; provided, that the act or\nomission from which such judgment or settlement arose occurred while the\nemployee was acting within the scope of his public employment or duties;\nthe duty to indemnify and save harmless or pay prescribed by this\nsubdivision shall not arise where the injury or damage resulted from\nintentional wrongdoing on the part of the employee.\n  (b) An employee represented by the attorney general or by private\ncounsel pursuant to this section shall cause to be submitted to the head\nof the department, commission, division, office or agency in which he is\nemployed any proposed settlement which may be subject to indemnification\nor payment by the state and if not inconsistent with the provisions of\nthis section such head of the department, commission, division, office\nor agency in which he is employed shall certify such settlement, and\nsubmit such settlement and certification to the attorney general. The\nattorney general shall review such proposed settlement as to form and\namount, and shall give his approval if in his judgment the settlement is\nin the best interest of the state. Nothing in this subdivision shall be\nconstrued to authorize the state to indemnify and save harmless or pay\nan employee with respect to a settlement not so reviewed and approved by\nthe attorney general.\n  (c) Nothing in this subdivision shall authorize the state to indemnify\nor save harmless an employee with respect to fines or penalties, or\nmoney recovered from an employee pursuant to article seven-a of the\nstate finance law; provided, however, that the state shall indemnify and\nsave harmless its employees in the amount of any costs, attorneys' fees,\ndamages, fines or penalties which may be imposed by reason of an\nadjudication that an employee, acting within the scope of his public\nemployment or duties, has, without willfulness or intent on his part,\nviolated a prior order, judgment, consent decree or stipulation of\nsettlement entered in any court of this state or of the United States.\nThe attorney general shall promulgate such rules and regulations as are\nnecessary to effectuate the purposes of this subdivision.\n  (d) Upon entry of a final judgment against the employee, or upon the\nsettlement of the claim, the employee shall cause to be served a copy of\nsuch judgment or settlement, personally or by certified or registered\nmail within thirty days of the date of entry or settlement, upon the\nhead of the department, commission, division, office or agency in which\nhe is employed; and if not inconsistent with the provisions of this\nsection, such judgment or settlement shall be certified for payment by\nsuch head of the department, commission, division, office or agency. If\nthe attorney general concurs in such certification, the judgment or\nsettlement shall be paid upon the audit and warrant of the comptroller.\nOn or before January fifteenth the comptroller, in consultation with the\ndepartment of law and other agencies as may be appropriate, shall submit\nto the governor and the legislature an annual accounting of judgments,\nsettlements, fees, and litigation expenses paid pursuant to this section\nduring the preceding and current fiscal years. Such accounting shall\ninclude, but not be limited to the number, type and amount of claims so\npaid, as well as an estimate of claims to be paid during the remainder\nof the current fiscal year and during the following fiscal year.\n  4. The duty to defend or indemnify and save harmless prescribed by\nthis section shall be conditioned upon (i) delivery to the attorney\ngeneral or an assistant attorney general at an office of the department\nof law in the state by the employee of the original or a copy of any\nsummons, complaint, process, notice, demand or pleading within five days\nafter he is served with such document, and (ii) the full cooperation of\nthe employee in the defense of such action or proceeding and in defense\nof any action or proceeding against the state based upon the same act or\nomission, and in the prosecution of any appeal. Such delivery shall be\ndeemed a request by the employee that the state provide for his defense\npursuant to this section.\n  5. The benefits of this section shall inure only to employees as\ndefined herein and shall not enlarge or diminish the rights of any other\nparty nor shall any provision of this section be construed to affect,\nalter or repeal any provision of the workers' compensation law.\n  6. This section shall not in any way affect the obligation of any\nclaimant to give notice to the state under section ten of the court of\nclaims act or any other provision of law.\n  7. The provisions of this section shall not be construed to impair,\nalter, limit or modify the rights and obligations of any insurer under\nany policy of insurance.\n  8. The provisions of this section shall apply to all actions and\nproceedings pending upon the effective date thereof or thereafter\ninstituted.\n  9. Except as otherwise specifically provided in this section, the\nprovisions of this section shall not be construed in any way to impair,\nalter, limit, modify, abrogate or restrict any immunity available to or\nconferred upon any unit, entity, officer or employee of the state or any\nother level of government, or any right to defense and/or\nindemnification provided for any governmental officer or employee by, in\naccordance with, or by reason of, any other provision of state or\nfederal statutory or common law.\n  10. If any provision of this section or the application thereof to any\nperson or circumstance be held unconstitutional or invalid in whole or\nin part by any court of competent jurisdiction, such holding of\nunconstitutionality or invalidity shall in no way affect or impair any\nother provision of this section or the application of any such provision\nto any other person or circumstance.\n  11. The provisions of this section shall not apply to physicians who\nare subject to the provisions of the plan for the management of clinical\npractice income as set forth in the policies of the board of trustees,\ntitle 8, New York codes, rules and regulations, regarding any civil\naction or proceeding alleging some professional malpractice in any state\nor federal court arising out of the physician's involvement in clinical\npractice as defined in that plan, provided however, that the provisions\nof this section shall apply when a claim or proceeding arises while the\nphysician was acting on behalf of the state within the scope of such\nphysician's public employment or duties.\n