NYS Public Health Legal Manual: A Guide for Judges, Attorneys ...

NEW YORK STATE PUBLIC HEALTH LEGAL MANUAL § 1.106
In those instances where statutory immunity would not apply,
actions against governmental entities, officials and employees, and
public health workers and other emergency responders would be
limited by general common law principles of liability. See, e.g.,
Crayton v. Larabee, 220 N.Y. 493, 502 (1917) [action for damages
for quarantine; no liability for “mere error in judgment” but action
may be maintained if decision to quarantine was “arbitrary, unreasonable
or oppressive,” or in excess of authority]; Caristo v. Sanzone,
96 N.Y.2d 172, 175 (2001) [emergency action doctrine—a
person faced with “a sudden and unexpected circumstance which
leaves little or no time for thought, deliberation or consideration” is
judged on whether response is that of a reasonably prudent person
under the circumstances]. See, in general, McLean v. City of New
York, 12 N.Y.3d 194, 203 (2009) [“Government action, if discretionary,
may not be a basis for liability, while ministerial actions may be,
but only if they violate a special duty owed to the plaintiff, apart
from any duty to the public in general.”].
Public employees may be eligible to receive indemnification from
the state or locality should they be subject to liability. Public Officers
Law [POL] §§ 17 (defense and indemnification of state officers
and employees) and 18 (defense and indemnification of local officers
and employees) [both affording public employees, including
“volunteer[s] expressly authorized to participate in a publicly sponsored
volunteer program,” representation and indemnification for
acts while the employees were acting within the scope of their public
employment, but not indemnification where the injury or damage
resulted from intentional wrongdoing]; General Municipal Law
[GML] § 50-k(1)(e), (3) [same as to employees of the City of New
York and authorized volunteers]. Should the immunity provisions of
the Executive Law not cover an employee (or an authorized volunteer)
of a municipality or other political subdivision of the state, the
immunity provisions directly applicable to the political subdivisions
themselves may be able to serve as a basis for immunity for their
employees because of the legal obligation of the political subdivisions
to expend public moneys to indemnify the employees. See
Ebert v. New York City Health and Hospitals Corporation, 82
N.Y.2d 863, 866 (1993) [holding that HHC’s obligation to indem-
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