N.Y. Racing, Pari-Mutuel Wagering and Breeding Law § 619: Civil actions against employees of the corporation

§ 619. Civil actions against employees of the corporation. 1. As used

in this section the following terms shall mean and include:

a. "Corporation counsel." The corporation counsel of the city.

b. "Employee." Any officer, director or employee of the corporation, a

former officer, director or employee of the corporation, 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 subdivision four of this section, the corporation

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

proceeding in any state or federal court including actions under

sections nineteen hundred eighty-one through nineteen hundred

eighty-eight of title forty-two of the United States code arising out of

any alleged act or omission which the corporation counsel finds occurred

while the employee was acting within the scope of his employment and in

the discharge of his duties and was not in violation of any rule or

regulation of the corporation at the time the alleged act or omission

occurred. This duty to provide for a defense shall not arise where such

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

corporation, the city or state or any agency of either.

3. The corporation 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 approved

by the corporation counsel and the comptroller, provided that the act or

omission from which such judgment or settlement arose occurred while the

employee was acting within the scope of his employment and in the

discharge of his duties and was not in violation of any rule or

regulation of the corporation at the time the alleged damages were

sustained, 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. Any

judgment or settlement pursuant to this section shall be a cost of the

corporation's functions and shall be payable from the moneys of the

corporation.

4. The duty to defend or indemnify and save harmless prescribed by

this section shall be conditioned upon:

a. delivery to the corporation counsel at the office of the law

department of the city by the employee of the original or a copy of any

summons, complaint, process, notice, demand or pleading within ten days

after he or she is served with such document, and

b. the full cooperation of the employee in the defense of such action

or proceeding and in defense of any action or proceeding against the

corporation 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 corporation provide for his or her defense pursuant to this

section. In the event that the corporation counsel shall assume an

employee's defense and thereafter the employee fails to or refuses to

cooperate in the formation or presentation of his or her defense, the

court shall permit the corporation counsel to withdraw his or her

representation ten days after giving written notice to the employee of

his or her intention to discontinue such representation.

5. 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 corporation against the employee,

representation and indemnification pursuant to this section may be

withheld:

a. until such disciplinary proceeding has been resolved, and

b. unless the resolution of the disciplinary proceeding exonerated the

employee as to such act or omission.

6. Every action or proceeding instituted against an employee,

including an action brought to enforce a provision of sections nineteen

hundred eighty-one through nineteen hundred eighty-eight of title

forty-two of the United States code, shall be commenced pursuant to the

provisions of section six hundred eighteen of this chapter and within

one year and ninety days. No action or proceeding instituted against an

employee other than one instituted pursuant to sections nineteen hundred

eighty-one through nineteen hundred eighty-eight of title forty-two of

the United States code shall be prosecuted or maintained against the

corporation or an employee unless notice of claim shall have been made

and served upon the corporation in compliance with section six hundred

eighteen of this chapter and within ninety days after the claim arises.

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, except that the provisions of subdivision six of this

section shall apply only to actions and proceedings instituted on or

after the effective date of this section.

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

impair, alter, limit, modify, or abrogate or restrict any immunity

available to or conferred upon the corporation or any employee, or any

right to defense indemnification provided in accordance with, or by

reason of, any other law.

10. Notwithstanding any inconsistent provision of this section, the

provisions of this section shall not apply to any civil action or

proceeding commenced after the effective date of this subdivision.

Further, the corporation counsel may continue representation in any

action or proceeding brought by or against such corporation prior to

such effective date. The corporation counsel and the corporation shall

be empowered to agree to the transfer of the defense or prosecution of

any such action or proceeding to such other counsel as shall be agreed

upon.