§ 402-A — Defense and indemnification in civil actions against employees of the New York city housing authority

§ 402-a. Defense and indemnification in civil actions against\nemployees of the New York city housing authority. 1. As used in this\nsection, the term "employee" shall mean the members, including the\nchairman of the New York city housing authority appointed by the mayor\nof the city of New York, officers, employees, or a former employee, his\nor her estate or judicially appointed personal representative. The term\n"employee" shall not include an independent contractor.\n 2. At the request of the employee, and upon compliance by the employee\nwith the provisions of this section, the New York city housing authority\nshall provide for the defense of an employee in any civil action or\nproceeding in any state or federal court, arising out of any alleged act\nor omission which the New York city housing authority finds occurred\nwhile the employee was acting within the scope of his or her public\nemployment and in the discharge of his or her public duties and was not\nin violation of any rule or regulation of the New York city housing\nauthority at the time the alleged act or omission occurred. This duty to\nprovide for a defense and indemnification shall not arise where such\ncivil action or proceeding is brought by or on behalf of the New York\ncity housing authority against the employee. A member of the New York\ncity housing authority police force, when within the geographical limits\nof his or her jurisdiction, although excused from official duty at the\ntime, for the purposes of this section, shall be deemed to be acting in\nthe discharge of duty when engaged in the immediate and actual\nperformance of a public duty imposed by law and such public duty\nperformed was for the benefit of all the citizens of the community, and\nthe New York city housing authority derived no special benefit in its\ncorporate capacity.\n 3. The New York city housing authority shall indemnify and save\nharmless its employees in the amount of any civil judgment obtained\nagainst such employees in any state or federal court, or in the amount\nof any settlement of a claim approved by the New York city housing\nauthority provided that the act or omission from which such judgment or\nsettlement arose occurred while the employee was acting within the scope\nof his or her public employment and in the discharge of his or her\npublic duties and was not in violation of any rule or regulation of the\nNew York city housing authority at the time the alleged damages were\nsustained.\n 4. The duty to indemnify and save harmless prescribed by this section\nshall not arise where the injury or damage resulted from an intentional\nwrongdoing, or recklessness on the part of the employee.\n 5. Nothing in this section shall authorize the New York city housing\nauthority to indemnify or save harmless an employee with respect to\npunitive or exemplary damages, fines or penalties.\n 6. The duty to defend and indemnify and save harmless prescribed by\nthis section shall be conditioned upon (i) delivery by the employee to\nthe chairman, general manager or general counsel of the New York city\nhousing authority at the office of the New York city housing authority\nof the original or a copy of any summons, complaint, claim, process,\nnotice, demand or pleading within ten days after the employee is served\nwith such document, and (ii) the full cooperation of the employee in the\ndefense of such action or proceeding and in defense of any action or\nproceeding against the New York city housing authority based upon the\nsame act or omission, and in the prosecution of any appeal. Such\ndelivery shall be deemed a request by the employee that the New York\ncity housing authority provide for his or her defense pursuant to this\nsection. In the event that the New York city housing authority shall\nassume an employee's defense and thereafter the employee fails or\nrefuses to cooperate in the formation or presentation of his or her\ndefense, the court shall permit the New York city housing authority to\nwithdraw its representation ten days after giving written notice to the\nemployee of its intention to discontinue such representation.\n 7. In the event that the act or omission upon which the court\nproceeding against the employee is based was or is also the basis of a\ndisciplinary proceeding by the New York city housing authority against\nthe employee, representation and indemnification by the New York city\nhousing authority, as set forth in this section, may be withheld (i)\nuntil such disciplinary proceeding has been resolved and (ii) unless the\nresolution of the disciplinary proceeding exonerated the employee as to\nsuch act or omission.\n 8. Subject to the conditions set forth in this section, the employee\nshall be entitled to representation by the general counsel of the New\nYork city housing authority or by any attorney or attorneys designated\nby the general counsel, provided, however, that the employee shall be\nentitled to be represented by private counsel of his or her choice in\nany civil action or proceeding whenever the New York city housing\nauthority determines that representation would be inappropriate, or\nwhenever a court, upon appropriate motion or otherwise by a special\nproceeding, determines that a conflict of interest exists and that the\nemployee is entitled to be represented by private counsel of the\nemployee's choice. The general counsel of the New York city housing\nauthority shall notify the employee in writing of such determination\nthat the employee is entitled to be represented by private counsel.\nProvided, however, that the New York city housing authority may require,\nas a condition to payment of the fees and expenses of such\nrepresentation, that appropriate groups of such employees be represented\nby the same counsel. Reasonable attorneys' fees and litigation expenses\nshall be paid by the New York city housing authority to such private\ncounsel from time to time during the pendency of the civil action or\nproceeding.\n 9. Any dispute with respect to representation of multiple employees by\na single counsel or the reasonableness of attorneys' fees or the amount\nof litigation expenses shall be resolved by the court upon motion or by\nway of a special proceeding.\n 10. 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 11. The provisions of this section shall not be construed in any way\nto impair, alter, limit or modify the rights and obligations of any\ninsurer under any policy of insurance.\n 12. 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, member, officer or employee of the New\nYork city housing authority, or any right to defense and/or\nindemnification provided for any member, officer or employee by, in\naccordance with, or by reason of, any other provision of state, federal\nor local law or common law.\n 13. Every action or proceeding instituted pursuant to the provisions\nof this section shall be commenced pursuant to section one hundred\nfifty-seven of this chapter and within one year and ninety days. No\naction or proceeding instituted pursuant to the provisions of this\nsection shall be prosecuted or maintained against the New York city\nhousing authority, or an officer or employee thereof, unless notice of\nclaim or demand shall have been made and served upon the New York city\nhousing authority in compliance with section one hundred fifty-seven of\nthis chapter and within ninety days after the claim arises.\n 14. 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, such holding of unconstitutionality or invalidity\nshall in no way affect or impair any other provision of this section or\nthe application of any such provision to any other person or\ncircumstance.\n 15. The provisions of this section shall apply to the actions and\nproceedings set forth herein notwithstanding any inconsistent provisions\nof state or local law.\n