S T A T E O F N E W Y O R K
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8217
2011-2012 Regular Sessions
I N A S S E M B L Y
June 7, 2011
___________
Introduced by M. of A. ABBATE -- read once and referred to the Committee
on Governmental Employees
AN ACT to amend the general municipal law, in relation to civil actions
against police officers of the city of New York
THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:
Section 1. Section 50-k of the general municipal law, as added by
chapter 673 of the laws of 1979, is amended to read as follows:
S 50-k. Civil actions against employees AND POLICE OFFICERS of the
city of New York. 1. As used in this section:
a. "Agency" shall mean a city, county, borough, or other office, posi-
tion, administration, council, department, division, bureau, board,
community board, commission, institution or agency of government, the
expenses of which are paid in whole or in part from the city treasury,
but shall not include, unless otherwise provided by law, any public
authority, public benefit corporation or board of education.
b. "City" shall mean the city of New York.
c. "Comptroller" shall mean the comptroller of the city.
d. "Corporation Council" shall mean the corporation council of the
city.
e. "Employee" shall mean any person holding a position by election,
appointment or employment in the service of any agency, whether or not
compensated, or a volunteer expressly authorized to participate in a
city sponsored volunteer program, but shall not include an independent
contractor. The term employee shall include a former employee, his
estate or judicially appointed personal representative. FOR PURPOSES OF
THIS SECTION, THE TERM "EMPLOYEE" SHALL NOT INCLUDE POLICE OFFICERS, AS
DEFINED IN PARAGRAPH F OF THIS SUBDIVISION.
F. "POLICE OFFICER" SHALL MEAN ANY PERSON EMPLOYED BY THE THE NEW YORK
CITY POLICE DEPORTMENT AS A "POLICE OFFICER" AS THAT TERM IS DEFINED IN
SECTION 1.20 OF THE CRIMINAL PROCEDURE LAW.
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD11965-01-1
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2. At the request of the employee and upon compliance by the employee
with the provisions of subdivision four of this section, the city shall
provide for the defense of an employee of any agency 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 public employment
and in the discharge of his duties and was not in violation of any rule
or regulation of his agency 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 city or
state or an agency of either.
2-A. AT THE REQUEST OF THE POLICE OFFICER AND UPON COMPLIANCE BY THE
POLICE OFFICER WITH THE PROVISIONS OF SUBDIVISION FOUR OF THIS SECTION,
THE CITY SHALL PROVIDE FOR THE DEFENSE OF A POLICE OFFICER 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 COMPTROLLER FINDS OCCURRED WHILE
THE POLICE OFFICER WAS ACTING WITHIN THE SCOPE OF HIS PUBLIC EMPLOYMENT
AND IN THE DISCHARGE OF HIS DUTIES. 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 OR STATE OR AN AGENCY OF EITHER.
3. The city 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 public employment and in the
discharge of his duties and was not in violation of any rule or regu-
lation of his agency 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 wrongdo-
ing or recklessness on the part of the employee.
3-A. THE CITY SHALL INDEMNIFY AND SAVE HARMLESS ITS POLICE OFFICERS IN
THE AMOUNT OF ANY JUDGMENT OBTAINED AGAINST SUCH POLICE OFFICERS 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 COMPTROLLER FINDS THAT THE ACT OR OMISSION FROM WHICH SUCH JUDGMENT
OR SETTLEMENT AROSE OCCURRED WHILE THE POLICE OFFICER WAS ACTING WITHIN
THE SCOPE OF HIS PUBLIC EMPLOYMENT AND IN THE DISCHARGE OF HIS 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 POLICE OFFICER.
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
OR POLICE OFFICER of the original or a copy of any summons, complaint,
process, notice, demand or pleading within ten days after he is served
with such document, and (b) the full cooperation of the employee OR
POLICE OFFICER in the defense of such action or proceeding and in
defense of any action or proceeding against the city based upon the same
act or omission, and in the prosecution of any appeal. Such delivery
shall be deemed a request by the employee OR POLICE OFFICER that the
city provide for his defense pursuant to this section. In the event that
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the corporation counsel shall assume an employee's OR POLICE OFFICER'S
defense and thereafter the employee OR POLICE OFFICER fails to or
refuses to cooperate in the formation or presentation of his defense,
the court shall permit the corporation counsel to withdraw his represen-
tation ten days after giving written notice to the employee OR POLICE
OFFICER of his intention to discontinue such representation.
5. In the event that the act or omission upon which the court proceed-
ing against the employee is based was or is also the basis of a disci-
plinary proceeding by the employee's agency against the employee, repre-
sentation by the corporation counsel and indemnification by the city 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.
5-A. IN THE EVENT THAT THE ACT OR OMISSION UPON WHICH THE COURT
PROCEEDING AGAINST THE POLICE OFFICER IS BASED WAS OR IS ALSO THE BASIS
OF A DISCIPLINARY PROCEEDING BY THE POLICE OFFICER'S AGENCY AGAINST THE
EMPLOYEE BROUGHT PURSUANT TO SUBDIVISION (B) OF SECTION 14-115 OF THE
ADMINISTRATIVE CODE OF THE CITY OF NEW YORK, REPRESENTATION BY THE
CORPORATION COUNSEL SHALL CONTINUE AND THE CITY SHALL INDEMNIFY AND HOLD
HARMLESS THE POLICE OFFICER UNLESS OR UNTIL THE RESOLUTION OF THE DISCI-
PLINARY PROCEEDING RESULTS IN A FINDING AFTER TRIAL THAT THE POLICE
OFFICER WAS GUILTY OF THE ACT OR OMISSION UPON WHICH THE COURT PROCEED-
ING AGAINST THE POLICE OFFICER IS BASED, OR THE POLICE OFFICER PLEADS
GUILTY TO THE ACT OR OMISSION UPON WHICH THE COURT PROCEEDING IS BASED.
6. Every action or proceeding instituted hereunder, 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 fifty-i of this chapter and within one year and ninety days. No
action or proceeding instituted hereunder, 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 city or any agency or an employ-
ee OR A POLICE OFFICER unless notice of claim shall have been made and
served upon the city in compliance with section fifty-e 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 insti-
tuted, except that the provisions of subdivision six 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 any unit, entity, officer or employee of
the city or any agency or any other level of government, or any right to
defense and/or indemnification provided for any governmental officer or
employee by, in accordance with, or by reason of, any other provision of
state, federal or local law or common law.
10. IN THE EVENT THAT THE COMPTROLLER DETERMINES PURSUANT TO SUBDIVI-
SION 2-A, 3-A OR 5-A OF THIS SECTION THAT THE CITY WILL NOT DEFEND OR
INDEMNIFY AND SAVE HARMLESS A POLICE OFFICER IN ANY CIVIL ACTION, THE
COMPTROLLER SHALL PROVIDE TO THE POLICE OFFICER A DETAILED REPORT
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SETTING FORTH SPECIFIC REASONS FOR SUCH DETERMINATION IN ACCORDANCE WITH
THIS SECTION.
S 2. This act shall take effect immediately and shall apply to civil
actions commenced on or after such date.