Can the State defend and indemnify the Hunter College Foundation, a private not-for-profit fundraising affiliate of CUNY, once it takes ownership of the Roosevelt House?

Plain-English summary

The Hunter College Foundation is a not-for-profit corporation that raises money for Hunter College, a senior college of CUNY. The Foundation was about to take ownership of Roosevelt House (a historic property previously held by a separate student association) and use it for Foundation activities to benefit the college. CUNY's General Counsel asked whether the State would defend and indemnify the Foundation and its officers and employees if they were sued.

The AG said no. There was no statutory authority.

Two statutes provide defense and indemnification for CUNY-related people. Neither reached the Foundation.

Education Law § 6205(1) requires the State to save harmless and indemnify "members of the board of trustees, members of the teaching or supervisory staff, officers and employees of the senior colleges" of CUNY. That language targets CUNY itself, not a separately incorporated not-for-profit. The Foundation is its own legal entity. Section 6205(1) by its terms does not reach the Foundation's officers or employees, even though the Foundation exists solely for Hunter College's benefit.

Public Officers Law § 17 provides State defense and indemnification to State "employees," defined as persons holding a position by election, appointment, or employment in the service of the State, or as authorized volunteers in state-sponsored programs (§ 17(1)(a)). Foundation employees are not in State service; they are private not-for-profit employees. Section 17 does not pull them in by default.

The opinion pointed out a useful structural cue: the Legislature has expressly extended § 17 to various other public benefit corporations and entities whose legal existence is separate from the State (the catalog of subsections at § 17(1)(b) through (k) attests to that). The fact that the Legislature has had to enumerate each entity that gets coverage means courts and the AG read the statute as not reaching unenumerated entities. A special statute would be required to add the Foundation.

The opinion closed with two settled propositions about defense and indemnification: without statutory authorization, even public officials bear their own defense costs and any judgments against them (citing Corning v Village of Laurel Hollow and Chapman v City of New York); and statutory authorization for coverage is construed narrowly. Both points reinforce the conclusion: silence in the statute means no coverage.

Currency note

This opinion was issued in 1997. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Why doesn't the Foundation get coverage just because it works for Hunter College?

Because the State's defense-and-indemnification statutes are scoped to specific legal entities (CUNY itself, the State, named public benefit corporations). A separate not-for-profit corporation, even one organized exclusively to benefit a CUNY college, is a different legal entity. The statutes don't say "any affiliate of CUNY"; they say "officers and employees of the senior colleges."

Could the Foundation buy its own insurance?

Yes. The opinion did not address insurance options. The standard practice for college foundations is to maintain directors-and-officers liability insurance and general liability insurance, often coordinated with or partially funded by the parent institution. The opinion addresses State-statutory indemnity, not commercial insurance.

Could the Legislature add Foundation employees to § 17?

Yes. The opinion specifically notes that the Legislature has extended § 17 to a long list of separately incorporated entities by adding subsections to § 17(1). A bill to add Hunter College Foundation, or all CUNY affiliate foundations, would be the legislative fix. None had been enacted as of the opinion.

What happens if a Foundation employee is sued for actions taken on Hunter College premises?

Depending on the facts, the employee might claim the suit really targets activity within the scope of CUNY's mission, or that the employee was acting as a de facto CUNY representative. Those arguments would have to be litigated case by case. The 1997 opinion holds only that there is no automatic statutory entitlement to State defense.

Does the same logic apply to foundations affiliated with SUNY or community colleges?

The same statutory-text analysis would apply. SUNY foundations and community college foundations are typically separately incorporated not-for-profits. Whether any of them have been expressly added to § 17(1) is a question to check against the current statute.

Background and statutory framework

Public Officers Law § 17 is the general State indemnification statute. Subdivision (1)(a) defines "employee" to include persons in State service and authorized volunteers in state-sponsored programs. Subdivisions (1)(b) through (1)(k) are the entity-by-entity extensions: each subsection brings within § 17 the employees of a specifically named separate legal entity (various public benefit corporations and similar bodies). The pattern proves that coverage for separately incorporated entities is granted only by express enumeration.

Education Law § 6205(1) is the CUNY-specific indemnification statute. It requires the State to save harmless and indemnify members of the CUNY Board of Trustees, the teaching and supervisory staff, and the officers and employees of the senior colleges, in accordance with the standards of Public Officers Law § 17. The senior colleges include Hunter, Brooklyn, City, Queens, and the other four-year CUNY institutions. Foundations affiliated with senior colleges are not within the statute.

Corning v Village of Laurel Hollow, 64 AD2d 918 (2d Dept 1978), affirmed at 48 NY2d 348 (1979), is the leading case for the proposition that public officials without statutory indemnification bear their own defense costs and liability. Chapman v City of New York, 168 NY 80, 85-86 (1901), is the older authority cited for the same proposition.

Two earlier AG opinions (96-F5 and 93-F5) are cited for the rule that statutory authorizations for defense and indemnification are construed narrowly. The opinion does not summarize them; it cites them for the construction rule.

Citations

• Education Law § 6205(1) (State indemnification of CUNY senior college officers and employees).
• Public Officers Law § 17 (State defense and indemnification framework).
• Public Officers Law § 17(1)(a) (definition of "employee").
• Public Officers Law § 17(1)(b) through (k) (entity-specific extensions to public benefit corporations and similar entities).
• Corning v Village of Laurel Hollow, 64 AD2d 918 (2d Dept 1978), aff'd, 48 NY2d 348 (1979) (public officials bear own defense without statutory indemnity).
• Chapman v City of New York, 168 NY 80, 85-86 (1901) (same).
• Op Atty Gen No. 96-F5 (narrow construction of indemnification statutes).
• Op Atty Gen No. 93-F5 (narrow construction of indemnification statutes).

Source

• Landing page: https://ag.ny.gov/libraries-documents/opinions/opinions-year
• Original PDF: https://ag.ny.gov/sites/default/files/opinions/97-F8_pw.pdf

Original opinion text

EDUCATION LAW § 6205(1); PUBLIC OFFICERS LAW § 17.
There is no authorization for the State to defend and
indemnify the Hunter College Foundation and its employees.
November 5, 1997
Robert E. Diaz, Esq.
Formal Opinion
General Counsel
No. 97-F8
The City University of New York
Office of General Counsel and
Vice Chancellor for Legal Affairs
535 East 80th Street
New York, NY 10021
Dear Mr. Diaz:
You have asked whether the Hunter College Foundation and its
officers and employees (Foundation), a not-for-profit corporation
separate from Hunter College and any other senior colleges
comprising the City University of New York (CUNY), may receive
defense and indemnification by the State upon the transfer to the
Foundation of the Roosevelt House.
You have explained that the Roosevelt House currently is
owned by the Hunter College Student Social, Community and
Religious Clubs Association, which was incorporated in perpetuity
by act of the State Legislature in 1943, at which time the
Association acquired the Roosevelt House.
The March 21, 1997 letter to you from the president of
Hunter College, transmitted with your opinion request, explains
the purpose of the Foundation and its proposed use of the
Roosevelt House. The Foundation functions exclusively for the
benefit of Hunter College, providing financial assistance to the
college through fundraising and other activities. It is
anticipated that ownership of the Roosevelt House by the
Foundation will facilitate fundraising activities. The
Foundation plans to engage in a private fundraising campaign to
renovate the Roosevelt House and, thereafter, the House will be
used for programs and activities to benefit the college. The
president states that in view of Hunter College's extensive
rights to use the Roosevelt House, the college, while not holding
legal title to the House, will be the de facto owner.
We conclude that the State is not authorized to provide
defense and indemnification to the Foundation. Under section
6205(1) of the Education Law, the State is required to save

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harmless and indemnify members of the board of trustees, members
of the teaching or supervisory staff, officers and employees of
the senior colleges comprising CUNY in accordance with section 17
of the Public Officers Law. This authorization by its terms does
not apply to the Foundation, a not-for-profit corporation
constituting a legal entity separate from the senior colleges
comprising CUNY.
Nor does section 17 independently provide authority.
Section 17 provides defense and indemnification in any civil
action or proceeding to an "employee". The term "employee" is
defined as a person holding a position by election, appointment
or employment in the service of the State or a volunteer
expressly authorized to participate in a State-sponsored
volunteer program. Public Officers Law § 17(1)(a). This
provision does not include the Foundation. The Legislature has
specifically provided coverage under section 17 to officers and
employees of various public benefit corporations and other
entities whose legal existence is separate from the State of
New York, which otherwise would not receive defense and
indemnification protection. Id. § 17(1)(b), (c), (d), (e), (f),
(g), (h), (i), (j), (k). Similarly, a special act of the State
Legislature would be required in order to provide coverage to the
Foundation.
Without a statutory authorization for defense and
indemnification, even public officials assume the risk of
defending themselves and satisfying any judgment resulting, for
example, from a finding of negligence. Corning v Village of
Laurel Hollow, 64 AD2d 918 (2d Dept 1978), affd, 48 NY2d 348
(1979); see also, Chapman v City of New York, 168 NY 80, 85-86
(1901). Further, defense and indemnification coverage under
section 17 or any other statutory authorization is construed
narrowly. Op Atty Gen No. 96-F5; Op Atty Gen No. 93-F5.
We conclude that there is no authorization for the State to
defend and indemnify the Hunter College Foundation and its
employees.
Very truly yours,

DENNIS C. VACCO
Attorney General