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This entry was published on 2014-09-22
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SECTION 402-A
Defense and indemnification in civil actions against employees of the New York city housing authority
Public Housing (PBG) CHAPTER 44-A, ARTICLE 13, TITLE 1
§ 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.