§ 6205 — Liability of board of trustees and liability of city university of New York

§ 6205. Liability of board of trustees and liability of city\nuniversity of New York. 1. The state shall save harmless and indemnify\nmembers of the board of trustees and any duly appointed member of the\nteaching or supervising staff, officer or employee, and a student\nserving on a university or college body or committee which is composed\nof a majority of faculty, administration and trustees, of the senior\ncolleges under the jurisdiction of such board pursuant to section\nseventeen of the public officers law against any claim, demand, suit or\njudgment arising by reason of any act or omission to act by such person\noccurring in the discharge of his duties and within the scope of his\nservice on behalf of such university.\n 2. (a) As used in this subdivision, the term (i) "employee" shall mean\nany person holding a position by appointment or employment at a\ncommunity college under the jurisdiction of the board of trustees,\nwhether or not compensated, or a volunteer expressly authorized to\nparticipate in a sponsored volunteer program of such community colleges,\nand a student serving on a community college body or committee composed\nof a majority of faculty, administration and trustees, but shall not\ninclude an independent contractor. The term employee shall include a\nformer employee, his estate or judicially appointed personal\nrepresentative; (ii) "comptroller" shall mean the comptroller of the\ncity of New York; and (iii) "corporation counsel" shall mean the\ncorporation counsel of the city of New York.\n (b) Upon compliance by the employee with the provisions of paragraph\n(i) of this subdivision, the city of New York 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. This duty to provide for a defense shall not arise\nwhere such civil action or proceeding is brought by or on behalf of the\ncity of New York.\n (c) Subject to the conditions set forth in paragraph (b) of this\nsubdivision, the employee shall be entitled to be represented by the\ncity of New York provided, however, that the employee shall be entitled\nto representation by private counsel of his choice in any civil judicial\nproceeding whenever the corporation counsel of the city of New York\ndetermines based upon his investigation and review of the facts and\ncircumstances of the case that representation by the corporation counsel\nwould be inappropriate, or whenever a court of competent jurisdiction,\nupon appropriate motion or by a special proceeding, determines that a\nconflict of interest exists and that the employee is entitled to be\nrepresented by private counsel of his choice. The corporation counsel\nshall notify the employee in writing of such determination that the\nemployee is entitled to be represented by private counsel. The\ncorporation counsel may require, as a condition to payment of the fees\nand expenses of such representation, that appropriate groups of such\nemployees be represented by the same counsel. If the employee or group\nof employees is entitled to representation by private counsel under the\nprovisions of this subdivision, the corporation counsel shall so certify\nto the comptroller of the city of New York. Reasonable attorneys' fees\nand litigation expenses shall be paid by the city of New York to such\nprivate counsel from time to time during the pendency of the civil\naction or proceeding subject to certification that the employee is\nentitled to representation under the terms and conditions of this\nsubdivision by the board of trustees of the city university and upon the\naudit and warrant of the comptroller. Any dispute with respect to\nrepresentation of multiple employees by a single counsel or the amount\nof litigation expenses or the reasonableness of attorneys' fees shall be\nresolved by the court upon motion or by way of a special proceeding.\n (d) Where the employee delivers process and a request for a defense to\nthe corporation counsel as required by paragraph (i) of this\nsubdivision, the corporation counsel shall take the necessary steps\nincluding the retention of private counsel under the terms and\nconditions provided in paragraph (c) of this subdivision, on behalf of\nthe employee to avoid entry of a default judgment pending resolution of\nany question pertaining to the obligation to provide for a defense.\n (e) The city of New York shall indemnify and save harmless employees\nof the community colleges of the city university in the amount of any\njudgment obtained against such employees in any state or federal court,\nor in the amount of any settlement of a claim, provided that the act or\nomission from which such judgment or settlement arose, occurred while\nthe employee was acting within the scope of his public employment or\nduties; the duty to indemnify and save harmless prescribed by this\nsubdivision shall not arise where the injury or damage resulted from\nintentional wrongdoing or recklessness on the part of the employee.\n (f) An employee represented by private counsel shall cause to be\nsubmitted to the board of trustees any proposed settlement which may be\nsubject to indemnification by the city of New York and if not\ninconsistent with the provisions of this subdivision the board of\ntrustees shall certify such settlement and submit such settlement and\ncertification to the corporation counsel. The corporation counsel shall\nreview such proposed settlement as to form and amount, and shall give\nhis approval if in his judgment the settlement is in the best interest\nof the city of New York. Nothing in this subdivision shall be construed\nto authorize the city of New York to indemnify or save harmless an\nemployee with respect to a settlement not so reviewed and approved by\nthe board of trustees.\n (g) Nothing in this subdivision shall authorize the city of New York\nto indemnify and save harmless an employee with respect to punitive or\nexemplary damages, fines or penalties, or money recovered from an\nemployee pursuant to article seven-A of the state finance law.\n (h) 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\nboard of trustees; and if not inconsistent with the provisions of this\nsubdivision, such judgment or settlement shall be certified for payment\nby the board of trustees of the city university. If the corporation\ncounsel concurs in such certification, the judgment or settlement shall\nbe paid upon audit and warrant of the comptroller.\n (i) The duty to defend or indemnify and save harmless prescribed by\nthis subdivision shall be conditioned upon (1) delivery to the\ncorporation counsel at his main business office in the city of New York\nby the employee of the original or a copy of any summons, complaint,\nprocess, notice, demand or pleading within five days after he is served\nwith such document, and (2) the full cooperation of the employee in the\ndefense of such action or proceeding and in defense of any action or\nproceeding against the city university or city of New York based upon\nthe same act or omission, and in the prosecution of any appeal. Such\ndelivery shall be deemed a request by the employee that the board of\ntrustees provide for his defense pursuant to this subdivision.\n (j) The benefits of this subdivision 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 subdivision be construed to\naffect, alter or repeal any provision of the workers' compensation law.\n (k) This subdivision shall not in any way affect the obligation of any\nclaimant to serve notice of the claim upon the city of New York pursuant\nto any other provision of law.\n (l) The provisions of this subdivision shall not be construed to\nimpair, alter, limit or modify the rights and obligations of any insurer\nunder any policy of insurance.\n (m) The provisions of this subdivision shall apply to all actions and\nproceedings pending upon the effective date thereof or thereafter\ninstituted.\n (n) Except as otherwise specifically provided in this subdivision, the\nprovisions of this subdivision shall not be construed in any way to\nimpair, alter, limit, modify, abrogate or restrict any immunity\navailable to or conferred upon any unit, entity, officer or employee of\nthe city of New York or any other level of government, or any right to\ndefense or indemnification provided for any governmental officer and/or\nemployee by, in accordance with, or by reason of, any other provision of\nstate or federal statutory or common law.\n (o) If any provision of this subdivision or the application thereof to\nany person or circumstance be held unconstitutional or invalid in whole\nor in 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 subdivision or the application of any such\nprovision to any other person or circumstance.\n