2023 New York Laws › PBO - Public Officers › Article 2 - 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.
* NB Repealed December 31, 2025
(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
(i) 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;  or  (ii)  a  person  certified  by  the  office   of   court
administration  and  paid  by  the  county  of Westchester to serve as a
guardian ad litem in a non-payment, holdover, or  other  landlord-tenant
action or proceeding pending in a village, town, city, or other court in
the county of Westchester.
(x)  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-q of
the public authorities law.
(y)  For  purposes  of this section, the term "employee" shall include
members of the board, officers and  employees  of  the  New  York  state
thruway authority or its subsidiaries.
(z)  For  purposes  of this section, the term "employee" shall include
members of the governing board, officers and employees of the  New  York
state canal corporation.
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, provided however, that the provisions
of this section shall apply when a claim or proceeding arises while  the
physician  was  acting  on  behalf of the state within the scope of such
physician's public employment or duties.