N.Y. Education Law § 6205: Liability of board of trustees and liability of city university of New York

§ 6205. Liability of board of trustees and liability of city

university of New York. 1. The state shall save harmless and indemnify

members of the board of trustees and any duly appointed member of the

teaching or supervising staff, officer or employee, and a student

serving on a university or college body or committee which is composed

of a majority of faculty, administration and trustees, of the senior

colleges under the jurisdiction of such board pursuant to section

seventeen of the public officers law against any claim, demand, suit or

judgment arising by reason of any act or omission to act by such person

occurring in the discharge of his duties and within the scope of his

service on behalf of such university.

2. (a) As used in this subdivision, the term (i) "employee" shall mean

any person holding a position by appointment or employment at a

community college under the jurisdiction of the board of trustees,

whether or not compensated, or a volunteer expressly authorized to

participate in a sponsored volunteer program of such community colleges,

and a student serving on a community college body or committee composed

of a majority of faculty, administration and trustees, but shall not

include an independent contractor. The term employee shall include a

former employee, his estate or judicially appointed personal

representative; (ii) "comptroller" shall mean the comptroller of the

city of New York; and (iii) "corporation counsel" shall mean the

corporation counsel of the city of New York.

(b) Upon compliance by the employee with the provisions of paragraph

(i) of this subdivision, the city of New York 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. This duty to provide for a defense shall not arise

where such civil action or proceeding is brought by or on behalf of the

city of New York.

(c) Subject to the conditions set forth in paragraph (b) of this

subdivision, the employee shall be entitled to be represented by the

city of New York provided, however, that the employee shall be entitled

to representation by private counsel of his choice in any civil judicial

proceeding whenever the corporation counsel of the city of New York

determines based upon his investigation and review of the facts and

circumstances of the case that representation by the corporation counsel

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 corporation counsel

shall notify the employee in writing of such determination that the

employee is entitled to be represented by private counsel. The

corporation counsel 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 subdivision, the corporation counsel shall so certify

to the comptroller of the city of New York. Reasonable attorneys' fees

and litigation expenses shall be paid by the city of New York 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

subdivision by the board of trustees of the city university 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.

(d) Where the employee delivers process and a request for a defense to

the corporation counsel as required by paragraph (i) of this

subdivision, the corporation counsel shall take the necessary steps

including the retention of private counsel under the terms and

conditions provided in paragraph (c) of this subdivision, 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.

(e) The city of New York shall indemnify and save harmless employees

of the community colleges of the city university 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, 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 prescribed by this

subdivision shall not arise where the injury or damage resulted from

intentional wrongdoing or recklessness on the part of the employee.

(f) An employee represented by private counsel shall cause to be

submitted to the board of trustees any proposed settlement which may be

subject to indemnification by the city of New York and if not

inconsistent with the provisions of this subdivision the board of

trustees shall certify such settlement and submit such settlement and

certification to the corporation counsel. The corporation counsel 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 city of New York. Nothing in this subdivision shall be construed

to authorize the city of New York to indemnify or save harmless an

employee with respect to a settlement not so reviewed and approved by

the board of trustees.

(g) Nothing in this subdivision shall authorize the city of New York

to indemnify and save harmless an employee with respect to punitive or

exemplary damages, fines or penalties, or money recovered from an

employee pursuant to article seven-A of the state finance law.

(h) 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

board of trustees; and if not inconsistent with the provisions of this

subdivision, such judgment or settlement shall be certified for payment

by the board of trustees of the city university. If the corporation

counsel concurs in such certification, the judgment or settlement shall

be paid upon audit and warrant of the comptroller.

(i) The duty to defend or indemnify and save harmless prescribed by

this subdivision shall be conditioned upon (1) delivery to the

corporation counsel at his main business office in the city of New York

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 (2) the full cooperation of the employee in the

defense of such action or proceeding and in defense of any action or

proceeding against the city university or city of New York 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 board of

trustees provide for his defense pursuant to this subdivision.

(j) The benefits of this subdivision 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 subdivision be construed to

affect, alter or repeal any provision of the workers' compensation law.

(k) This subdivision shall not in any way affect the obligation of any

claimant to serve notice of the claim upon the city of New York pursuant

to any other provision of law.

(l) The provisions of this subdivision shall not be construed to

impair, alter, limit or modify the rights and obligations of any insurer

under any policy of insurance.

(m) The provisions of this subdivision shall apply to all actions and

proceedings pending upon the effective date thereof or thereafter

instituted.

(n) Except as otherwise specifically provided in this subdivision, the

provisions of this subdivision 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 city of New York or any other level of government, or any right to

defense or indemnification provided for any governmental officer and/or

employee by, in accordance with, or by reason of, any other provision of

state or federal statutory or common law.

(o) If any provision of this subdivision 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 subdivision or the application of any such

provision to any other person or circumstance.