N.Y. Public Housing Law § 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

employees of the New York city housing authority. 1. As used in this

section, the term "employee" shall mean the members, including the

chairman of the New York city housing authority appointed by the mayor

of the city of New York, officers, employees, or a former employee, his

or her estate or judicially appointed personal representative. The term

"employee" shall not include an independent contractor.

2. At the request of the employee, and upon compliance by the employee

with the provisions of this section, the New York city housing authority

shall provide for the defense of an employee in any civil action or

proceeding in any state or federal court, arising out of any alleged act

or omission which the New York city housing authority finds occurred

while the employee was acting within the scope of his or her public

employment and in the discharge of his or her public duties and was not

in violation of any rule or regulation of the New York city housing

authority at the time the alleged act or omission occurred. This duty to

provide for a defense and indemnification shall not arise where such

civil action or proceeding is brought by or on behalf of the New York

city housing authority against the employee. A member of the New York

city housing authority police force, when within the geographical limits

of his or her jurisdiction, although excused from official duty at the

time, for the purposes of this section, shall be deemed to be acting in

the discharge of duty when engaged in the immediate and actual

performance of a public duty imposed by law and such public duty

performed was for the benefit of all the citizens of the community, and

the New York city housing authority derived no special benefit in its

corporate capacity.

3. The New York city housing authority shall indemnify and save

harmless its employees in the amount of any civil judgment obtained

against such employees in any state or federal court, or in the amount

of any settlement of a claim approved by the New York city housing

authority provided that the act or omission from which such judgment or

settlement arose occurred while the employee was acting within the scope

of his or her public employment and in the discharge of his or her

public duties and was not in violation of any rule or regulation of the

New York city housing authority at the time the alleged damages were

sustained.

4. The duty to indemnify and save harmless prescribed by this section

shall not arise where the injury or damage resulted from an intentional

wrongdoing, or recklessness on the part of the employee.

5. Nothing in this section shall authorize the New York city housing

authority to indemnify or save harmless an employee with respect to

punitive or exemplary damages, fines or penalties.

6. The duty to defend and indemnify and save harmless prescribed by

this section shall be conditioned upon (i) delivery by the employee to

the chairman, general manager or general counsel of the New York city

housing authority at the office of the New York city housing authority

of the original or a copy of any summons, complaint, claim, process,

notice, demand or pleading within ten days after the employee 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 New York city housing authority 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 New York

city housing authority provide for his or her defense pursuant to this

section. In the event that the New York city housing authority shall

assume an employee's defense and thereafter the employee fails or

refuses to cooperate in the formation or presentation of his or her

defense, the court shall permit the New York city housing authority to

withdraw its representation ten days after giving written notice to the

employee of its intention to discontinue such representation.

7. In the event that the act or omission upon which the court

proceeding against the employee is based was or is also the basis of a

disciplinary proceeding by the New York city housing authority against

the employee, representation and indemnification by the New York city

housing authority, as set forth in this section, may be withheld (i)

until such disciplinary proceeding has been resolved and (ii) unless the

resolution of the disciplinary proceeding exonerated the employee as to

such act or omission.

8. Subject to the conditions set forth in this section, the employee

shall be entitled to representation by the general counsel of the New

York city housing authority or by any attorney or attorneys designated

by the general counsel, provided, however, that the employee shall be

entitled to be represented by private counsel of his or her choice in

any civil action or proceeding whenever the New York city housing

authority determines that representation would be inappropriate, or

whenever a court, upon appropriate motion or otherwise by a special

proceeding, determines that a conflict of interest exists and that the

employee is entitled to be represented by private counsel of the

employee's choice. The general counsel of the New York city housing

authority shall notify the employee in writing of such determination

that the employee is entitled to be represented by private counsel.

Provided, however, that the New York city housing authority 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. Reasonable attorneys' fees and litigation expenses

shall be paid by the New York city housing authority to such private

counsel from time to time during the pendency of the civil action or

proceeding.

9. Any dispute with respect to representation of multiple employees by

a single counsel or the reasonableness of attorneys' fees or the amount

of litigation expenses shall be resolved by the court upon motion or by

way of a special proceeding.

10. 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.

11. The provisions of this section shall not be construed in any way

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

insurer under any policy of insurance.

12. 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, member, officer or employee of the New

York city housing authority, or any right to defense and/or

indemnification provided for any member, officer or employee by, in

accordance with, or by reason of, any other provision of state, federal

or local law or common law.

13. Every action or proceeding instituted pursuant to the provisions

of this section shall be commenced pursuant to section one hundred

fifty-seven of this chapter and within one year and ninety days. No

action or proceeding instituted pursuant to the provisions of this

section shall be prosecuted or maintained against the New York city

housing authority, or an officer or employee thereof, unless notice of

claim or demand shall have been made and served upon the New York city

housing authority in compliance with section one hundred fifty-seven of

this chapter and within ninety days after the claim arises.

14. 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, 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.

15. The provisions of this section shall apply to the actions and

proceedings set forth herein notwithstanding any inconsistent provisions

of state or local law.