§ 17. Defense and indemnification of state officers and employees. 1.
(a) As used in this section, unless the context otherwise requires the
term "employee" shall mean any person holding a position by election,
appointment or employment in the service of the state, including
clinical practice pursuant to subdivision fourteen of section two
hundred six of the public health law, whether or not compensated, or a
volunteer expressly authorized to participate in a state-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 and persons who assist the education
department or the department of health as consultants or expert
witnesses in the investigation or prosecution of alleged professional
misconduct, licensure matters, restoration proceedings, or criminal
prosecutions for unauthorized practice pursuant to title eight of the
education law or title II-A of the public health law.

(b) For the purposes of this section, the term "employee" shall
include members, officers and other persons in the employment of the New
York state energy research and development authority, members of the
board of directors, officers and other persons in the employment of the
New York state science and technology foundation, and members of the
board of directors, officers and other persons in the employment of the
New York state olympic accommodations control corporation or serving on
its board of directors on or before June thirtieth, nineteen hundred
eighty.

(c) For the purposes of this section, the term "employee" shall
include members of the state patient qualification review board
appointed by the commissioner of health pursuant to article
thirty-three-A of the public health law.

(d) For the purposes of this section, the term "employee" shall
include directors, officers and employees of the facilities development
corporation.

(e) For the purposes of this section, the term "employee" shall
include directors, officers and employees of the environmental
facilities corporation.

(f) For the purposes of this section, the term "employee" shall
include ombudsmen designated under section five hundred forty-four and
section five hundred forty-five of the executive law, and shall include
such ombudsmen without regard to whether they are volunteers or paid
staff of the office for the aging or of designated substate ombudsman
programs under the direction of the office.

(g) For the purposes of this section, the term "employee" shall
include the members of the board, officers and employees of the greenway
heritage conservancy for the Hudson river valley or the greenway
council.

(h) For the purposes of this section, the term "employee" shall
include members of the board, officers and employees of the New York
local government assistance corporation.

(i) For purposes of this section, the term "employee" shall include
the officers and employees of the Central Pine Barrens joint planning
and policy commission.

(j) For purposes of this section, the term "employee" shall include
directors, officers and employees of the dormitory authority.

(k) For the purposes of this section only, the term "employee" shall
include any member, director, officer or employee of a soil and water
conservation district created pursuant to section five of the soil and
water conservation districts law who is working on a project which
receives funding from the state and has received approval by the state
soil and water conservation committee or who is carrying out the powers
and duties pursuant to article two of the soil and water conservation
districts law by working with any agency of the state as defined by
subdivision five of section three of the soil and water conservation
districts law.

(l) For the purposes of this section and consistent with the
provisions of section 13 of a chapter of the laws of 1997, amending the
public authorities law, the public health law, the public officers law,
chapter 41 of the laws of 1997 relating to providing a retirement
incentive for certain public employees, and the civil service law,
relating to the creation of the Roswell Park Cancer Institute
corporation and providing for the rights, powers, duties and
jurisdiction of such corporation, the term "employee" shall include
directors, officers and employees of the Roswell Park Cancer Institute
corporation.

(m) For the purposes of this section, the term "employee" shall
include the members of the spinal cord injury research board within the
department of health.

(n) For the purposes of this section, the term "employee" shall
include directors, officers, and employees of the Governor Nelson A.
Rockefeller empire state plaza performing arts center corporation.

(o) For the purposes of this section, the term "employee" shall
include the directors, officers and employees of the state of New York
mortgage agency.

(q) For the purposes of this section, the term "employee" shall
include the members, officers and employees of the tobacco settlement
financing corporation.

(r) For the purposes of this section, the term "employee" shall
include the directors, officers, and employees of the state of New York
municipal bond bank agency and the directors, officers, employees,
trustees and other managers (however denominated), of any tax lien
entity (as defined in subdivision sixteen of section twenty-four hundred
thirty-two of the public authorities law) of the state of New York
municipal bond bank agency.

(s) For the purposes of this section, the term "employee" shall
include the members of the board, officers and employees of the Niagara
river greenway commission.

(t) For the purposes of this section, the term "employee" shall
include the members of the board, officers and employees of the
dormitory authority for purposes of section sixteen hundred eighty-l of
the public authorities law.

* (u) For the purposes of this section, the term "employee" shall
include the members of the empire state stem cell board within the
department of health.

* NB Repealed December 31, 2025

(v) For the purposes of this section, the term "employee" shall
include the members of the board, and officers and employees of the New
York city off-track betting corporation.

(w) For purposes of this section, the term "employee" shall include
(i) a person certified by the office of court administration and paid by
the city of New York to serve as a guardian ad litem in an action or
proceeding pending in the housing part of the civil court of the city of
New York; or (ii) a person certified by the office of court
administration and paid by the county of Westchester to serve as a
guardian ad litem in a non-payment, holdover, or other landlord-tenant
action or proceeding pending in a village, town, city, or other court in
the county of Westchester.

(x) For the purposes of this section, the term "employee" shall
include the members of the board, officers and employees of the
dormitory authority for purposes of section sixteen hundred eighty-q of
the public authorities law.

(y) For purposes of this section, the term "employee" shall include
members of the board, officers and employees of the New York state
thruway authority or its subsidiaries.

(z) For purposes of this section, the term "employee" shall include
members of the governing board, officers and employees of the New York
state canal corporation.

2. (a) Upon compliance by the employee with the provisions of
subdivision four of this section, the state 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 and the act or omission underlying the action
occurred or is alleged in the complaint to have occurred while the
employee was acting within the scope of his public employment or 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 state.

(b) Subject to the conditions set forth in paragraph (a) of this
subdivision, the employee shall be entitled to be represented by the
attorney general, provided, however, that the employee shall be entitled
to representation by private counsel of his choice in any civil judicial
proceeding whenever the attorney general determines based upon his
investigation and review of the facts and circumstances of the case that
representation by the attorney general 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 attorney general shall notify the employee in writing
of such determination that the employee is entitled to be represented by
private counsel. The attorney general 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 section, the attorney
general shall so certify to the comptroller. Reasonable attorneys' fees
and litigation expenses shall be paid by the state 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 section by the
head of the department, commission, division, office or agency in which
such employee is employed 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.

(c) Where the employee delivers process and a request for a defense to
the attorney general as required by subdivision four of this section,
the attorney general shall take the necessary steps including the
retention of private counsel under the terms and conditions provided in
paragraph (b) of subdivision two of this section 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.

3. (a) The state 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, or
shall pay such judgment or settlement; 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 or pay prescribed by this
subdivision shall not arise where the injury or damage resulted from
intentional wrongdoing on the part of the employee.

(b) An employee represented by the attorney general or by private
counsel pursuant to this section shall cause to be submitted to the head
of the department, commission, division, office or agency in which he is
employed any proposed settlement which may be subject to indemnification
or payment by the state and if not inconsistent with the provisions of
this section such head of the department, commission, division, office
or agency in which he is employed shall certify such settlement, and
submit such settlement and certification to the attorney general. The
attorney general 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 state. Nothing in this subdivision shall be
construed to authorize the state to indemnify and save harmless or pay
an employee with respect to a settlement not so reviewed and approved by
the attorney general.

(c) Nothing in this subdivision shall authorize the state to indemnify
or save harmless an employee with respect to fines or penalties, or
money recovered from an employee pursuant to article seven-a of the
state finance law; provided, however, that the state shall indemnify and
save harmless its employees in the amount of any costs, attorneys' fees,
damages, fines or penalties which may be imposed by reason of an
adjudication that an employee, acting within the scope of his public
employment or duties, has, without willfulness or intent on his part,
violated a prior order, judgment, consent decree or stipulation of
settlement entered in any court of this state or of the United States.
The attorney general shall promulgate such rules and regulations as are
necessary to effectuate the purposes of this subdivision.

(d) 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
head of the department, commission, division, office or agency in which
he is employed; and if not inconsistent with the provisions of this
section, such judgment or settlement shall be certified for payment by
such head of the department, commission, division, office or agency. If
the attorney general concurs in such certification, the judgment or
settlement shall be paid upon the audit and warrant of the comptroller.
On or before January fifteenth the comptroller, in consultation with the
department of law and other agencies as may be appropriate, shall submit
to the governor and the legislature an annual accounting of judgments,
settlements, fees, and litigation expenses paid pursuant to this section
during the preceding and current fiscal years. Such accounting shall
include, but not be limited to the number, type and amount of claims so
paid, as well as an estimate of claims to be paid during the remainder
of the current fiscal year and during the following fiscal year.

4. The duty to defend or indemnify and save harmless prescribed by
this section shall be conditioned upon (i) delivery to the attorney
general or an assistant attorney general at an office of the department
of law in the state 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 (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 state 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 state provide for his defense
pursuant to this section.

5. 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.

6. This section shall not in any way affect the obligation of any
claimant to give notice to the state under section ten of the court of
claims act or any other provision of law.

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.

9. 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, officer or employee of the state 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 or
federal statutory or common law.

10. 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 of competent jurisdiction, 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.

11. The provisions of this section shall not apply to physicians who
are subject to the provisions of the plan for the management of clinical
practice income as set forth in the policies of the board of trustees,
title 8, New York codes, rules and regulations, regarding any civil
action or proceeding alleging some professional malpractice in any state
or federal court arising out of the physician's involvement in clinical
practice as defined in that plan, provided however, that the provisions
of this section shall apply when a claim or proceeding arises while the
physician was acting on behalf of the state within the scope of such
physician's public employment or duties.