|
|
Court OpinionsState LawsAlabama US Code1 USC - General Provisions US Constitution |
New York Highway - Article 12-B - § 349-C Design, Construction, and Payment of CostsLegal Research Home > New York Laws > New York Highway (HAY) > New York Highway - Article 12-B - § 349-C Design, Construction, and Payment of Costs
§ 349-c. Design, construction, and payment of costs. 1.
Notwithstanding the provisions of any general, special or local law, the
commissioner of transportation is authorized and empowered to prepare
designs, plans, specifications and estimates for the construction,
reconstruction or improvement (1) of any extension or continuation of
any highway or route which is now or which shall hereafter be authorized
by section three hundred forty-one of this chapter, upon any public
street or streets in any city outside of the city of New York, which are
now or which shall hereafter be designated in this article, and (2) of
any existing or proposed main routes or thoroughfares in the city of New
York; all of which are designated in this article. Such designs, plans,
specifications and estimates may be prepared (a) by the department of
transportation; (b) by any city herein named, if the preparation of such
designs, plans, specifications and estimates are authorized in advance
by the commissioner of transportation and then upon such terms and
conditions as may be agreed by and between such city and the
commissioner of transportation; (c) subject to the approval of the
director of the budget, by the employment of private engineers or
engineering firms; or (d) by a combination of such methods. The
commissioner of transportation may, in his discretion, provide or direct
that there be provided in such designs, plans, specifications and
estimates, such roadside and landscape development, including such
sanitary and other facilities as may be deemed reasonably necessary to
accommodate the public; provided however that such development is within
the bounds of any property acquired for purposes connected with the
highway system of the state of New York pursuant to this chapter, and
any adjacent publicly owned or controlled recreational areas of limited
size and with provision for convenient and safe access thereto by
pedestrian and vehicular traffic. All references hereinafter contained
in this article to the construction of facilities and appurtenances of
state highways, or to a section or sections of the arterial system, may
be deemed to include the development and facilities mentioned in this
paragraph.
2. With relation to any city named in this article, but not including
the city of New York:
2.1. The commissioner is authorized to provide in such designs, plans,
specifications and estimates, for bridges, culverts, drainage,
shoulders, gutters, curbs, sidewalks and any other facilities and
appurtenances as he may determine.
2.2. The commissioner shall construct, reconstruct or improve such
extensions or continuations, including said facilities and
appurtenances, in the same manner as other state highways, facilities
and appurtenances are constructed, reconstructed and improved pursuant
to this chapter. After designs, plans and specifications thereof have
been completed and approved by the city and the commissioner, the city
may, however, elect to construct such section or sections and acquire
property therefor at its own expense in the manner provided by the city
charter or otherwise. For all the purposes of this section, the
jurisdiction of the commissioner shall extend over the entire property
affected by the provisions hereof, as such jurisdiction has been
obtained, or as such jurisdiction may hereafter be obtained pursuant to
the provisions of this chapter. Such sidewalks, facilities and
appurtenances shall be maintained or shall be continued to be
maintained, as the case may be, by the city in which they are located,
or by the agency or unit owning or having control and jurisdiction
thereof.
2.3. The governing body of any city named in section three hundred
forty-nine-e of this article may apply to the commissioner for a change
in such designation of a public street or streets within the boundaries
of such city, and the commissioner may grant such application, and in
case such application is granted, the additional costs and expenses of
the acquisition of property and legal damages caused thereby, and the
additional costs and expenses of construction, reconstruction or
improvement of the public street or streets as requested in such
application shall, pursuant to written agreement, be paid by such city
to the state. The monies so required shall be raised by tax or pursuant
to the local finance law or in accordance with any local charter or law,
as the case may be, and such funds shall be deposited and be subject to
requisition in the manner as herein provided in case a greater width or
different type of construction is desired by such city.
2.4. A state highway may be constructed or reconstructed through any
such city, of such width and type of construction as the commissioner of
transportation shall deem proper, unless a greater width or different
type of construction is desired by such city, in which case the
governing body of such city may apply to the commissioner to provide the
width and type of construction desired. The commissioner may grant such
application, if he deems the filing of such application to be timely,
and the additional costs and expenses of such width and type of
construction, or either of them, shall, pursuant to written agreement,
be paid by such city to the state. Whenever the commissioner shall have
granted such an application the designs, plans, specifications and
estimates of cost, together with an estimate showing the additional
costs and expenses to be borne by such city, to provide for the greater
width or different type of construction or both, shall be submitted to
the governing body of such city which, if it approves such designs,
plans, specifications and estimate of cost, shall by resolution
appropriate the funds necessary to provide for the portion of the costs
and expenses of construction to be borne by such city. Such funds shall,
prior to the advertisement for bids for or including the said greater
width or different type of construction, be deposited by such city with
the state comptroller subject to the draft or requisition of the
commissioner, and a certified copy of such resolution shall be filed
with the state comptroller and with the commissioner. The monies so
required shall be raised by tax or pursuant to the local finance law or
in accordance with any local charter or law, as the case may be. Upon
the completion of a highway within such city where a portion of the
costs and expenses are borne by the city the commissioner shall transmit
to the governing body of such city a statement showing the actual costs
and expenses of the additional width or changed construction including a
proportionate charge for engineering, and shall notify the city clerk
that he will accept the work within twenty days from the date of such
notice, unless protest in writing against the acceptance shall be filed
by such clerk with the commissioner. In case a protest is filed the
commissioner shall hear the same and if it is sustained the commissioner
shall delay the acceptance of the highway or section thereof until the
same be properly completed. If no protest is filed the highway or
section thereof shall at the expiration of the said twenty days be
deemed finally completed and accepted on behalf of such city and the
state. The provisions of any general or special laws relative to the
pavement or improvement of streets and the assessment and payment of the
cost thereof shall apply, as far as may be, to such additional
construction and the assessment and payment of the cost thereof, except
that the provisions of any general or local act affecting the pavement
or improvement of streets or avenues in any such city and requiring the
owners, or any of the owners, of the frontage on a street to consent to
the improvement or pavement thereof, or requiring a hearing to be given
to the persons whose premises are subject to assessment, upon the
question of doing such paving or making such improvement shall not apply
to the portion of the improvement or pavement of a state highway the
expense for which is required to be paid by such city to the state.
2.5. Whenever the commissioner deems it necessary to acquire property
for the purpose of widening any such designated street, he shall,
transmit the plans generally describing the proposed location for said
street to the governing body of such city in which such designated
street or any portion thereof is located. The governing body of such
city, after the receipt of such plans may conduct a public hearing or
hearings upon such notice as such governing body shall deem reasonable,
but not less than ten days, to the commissioner and to such other party
or parties deemed by said governing body to be interested in the
project. In any event and within sixty days or within such other period
of time as may be provided by the provisions of the charter of such
city, after the receipt of such plans, the said governing body shall, by
resolution, duly adopted by its members, approve, disapprove or
recommend modifications in such plans as the public interest shall
require. Within ten days after the adoption of the resolution, the clerk
of such governing body shall mail a certified copy thereof to the
commissioner. The commissioner shall not proceed with the designs, plans
and specifications unless such city in which such designated street or
portion thereof is located approves the plans generally describing the
proposed location. Before filing the description and the original
tracing of any map, or proceeding with the acquisition of such property
or the work of construction, reconstruction or improvement, the
commissioner shall transmit the designs, plans and specifications for
the construction, reconstruction or improvement of the extension or
continuation upon said street to the governing body of such city in
which such designated street or any portion thereof is located. The
governing body of such city, after the receipt of such designs, plans
and specifications, may conduct a public hearing or hearings upon such
notice as such governing body shall deem reasonable, but not less than
ten days, to the commissioner and to such other party or parties deemed
by said governing body to be interested in the project. In any event and
within sixty days or within such other period of time as may be provided
by the provisions of the charter of such city, after the receipt of the
designs, plans, and specifications, the said governing body shall, by
resolution, duly adopted by its members, approve, disapprove or
recommend modifications in such designs, plans and specifications as the
public interest shall require. Within ten days after the adoption of the
resolution, the clerk of such governing body shall mail a certified copy
thereof to the commissioner. The form of the resolution shall be
prescribed by the commissioner. In case such governing body shall
disapprove the designs, plans and specifications, without proposing
modifications, the commissioner may, in his discretion, prepare and
submit to such governing body for approval other designs, plans and
specifications, for the construction, reconstruction or improvement of
the extension or continuation within the bounds of such city, or in his
discretion he may proceed with the work of construction, reconstruction
or improvement within and confined to the existing width of the pavement
of said designated street in the affected location. In case such
governing body shall disapprove the designs, plans and specifications,
and shall recommend modifications, the commissioner may approve the
designs, plans and specifications, so modified, or recommend other
modifications for approval, and said extension or continuation shall be
constructed, reconstructed or improved in accordance with such designs,
plans and specifications, as finally approved. When the designs, plans
and specifications for construction, reconstruction or improvement of an
extension or continuation as aforesaid have finally been approved as
hereunder provided, no resolution thereafter adopted by the governing
body of such city shall rescind, annul or modify such prior resolution
either directly or indirectly, excepting upon the advice and with the
consent of the commissioner. Upon the failure or omission of the
governing body of any such city to act within the time and manner herein
required the said designs, plans and specifications shall be deemed to
be approved so far as such governing body is concerned.
2.6. Any property which is deemed by the commissioner to be necessary
to carry out the provisions of this section, shall be acquired by him
pursuant to the eminent domain procedure law and applicable provisions
of section thirty of this chapter, except that the function of the board
of supervisors as to approval of controlled access shall be exercised by
the governing body of the city. The costs and expenses of such
acquisition of property and any liability incurred by reason thereof,
including legal damages caused by such acquisition and by the work of
constructing, reconstructing or improving such extensions and
continuations, including legal damages caused by such work of
construction, reconstruction or improving, all as provided in section
thirty of this chapter, shall be paid by the state, provided however,
that with respect to any such acquisition made on or before March
thirty-first, nineteen hundred sixty-five only, such costs and expenses
shall be paid by the state in the first instance and shall be borne as
follows: fifty per centum by the state and fifty per centum by such city
affected thereby.
2.6-a. Whenever the commissioner determines that any property
heretofore or hereafter acquired pursuant to the provisions of this
section is no longer necessary for any of the purposes for which it was
acquired, he may, subject to compliance with section four hundred six of
the eminent domain procedure law and notwithstanding the provisions of
any general, special, or local law, dispose of such property by sale or
exchange upon terms beneficial to the state; provided, however, that on
highways where access is not controlled, such disposal of such property
shall not thereby deprive an abutting owner of frontage on such highway
immediately in front of his abutting land. If any such sale or exchange
be made to or with a person who was the owner of property appropriated
for such highway, the consideration therefor may be, in whole or in
part, a release by such former owner of any claim he may have against
the state by reason of such appropriation of his property. In order to
carry any such sale or exchange into effect the commissioner is hereby
authorized to execute and deliver for and on behalf and in the name of
the people of the state of New York and under his official seal a
quitclaim deed of such property. Such deed shall be prepared by the
attorney general and before delivery thereof shall be approved by him as
to form and manner of execution. The total amount of the consideration
passing to the state for any such conveyance shall be apportioned
between the state and the city in which such highway is located in the
same ratio in which the costs and expenses of the acquisition of such
property was borne by the state and such city and the amount thereof
apportioned to such city and exceeding any amount owing from such city
to the state pursuant to the provisions of this section shall be paid to
such city out of monies appropriated for the construction,
reconstruction or improvement of state highways. The amount of
consideration paid in cash for any conveyance hereinabove authorized
shall be paid into the state treasury and credited to the capital
construction funds.
2.7. If any such property shall be so acquired on or before March
thirty-first, nineteen hundred sixty-five, in any such city for the
purpose of this section, before such property shall be so acquired in
such city for the purpose of this section, the commissioner shall
transmit to the governing body of such city an estimate showing the
proportionate costs and expenses of such acquisition as such costs and
expenses are specified in section thirty of this chapter, whereupon and
within ninety days after the transmittal of said estimate such city
shall (a) by resolution, appropriate the funds shown in said estimate,
(b) deposit such funds with the state comptroller subject to the draft
or requisition of the commissioner, and (c) file a copy of the
resolution with the state comptroller and with the commissioner. Upon
the completion of a highway within such city where a portion of the
costs and expenses of the acquisition of the property are borne by the
city, the commissioner shall transmit to the governing body of such city
a statement showing the actual costs and expenses of such acquisition as
hereinbefore mentioned, and shall notify the city clerk of the amount
due from or to be returned to the city, as the case may be. Any sum due
the state shall be paid by such city within sixty days after the date of
the transmittal of said statement and the funds therefor shall be raised
by tax or pursuant to the local finance law, or in accordance with any
local charter or law, as the case may be. If it is determined by
resolution of the governing body of such city that the financial
condition of such city would be adversely affected by the payment in one
lump sum of the full amount of its share of the costs and expenses of
right of way acquisition, the commissioner, subject to the approval of
the director of the budget, and such city acting through the mayor or
other administrative head thereof, pursuant to the aforesaid resolution
of the governing body of such city, are authorized to enter into a
written agreement extending the repayment by the city of its share of
such right of way costs and expenses advanced by the state in the first
instance, by providing for such repayment to be made by equal annual
installments without interest, payable by such city to the state
comptroller on or before April first of each year and in no event shall
such period of repayment to the state exceed the term of ten years
provided however, that during the term of repayment any such city may
elect to pay the balance owing to the state in full or make such
additional payment or payments and at such time or times as it may so
propose. The director of the budget shall not approve the extension of
repayment to the state by such city of its share of any additional right
of way costs and expenses advanced by the state in the first instance
until such time as the state comptroller shall certify to the director
of the budget that all monies previously owed to the state by such city
in accordance with the provisions of this article have been paid in
full. Whenever such city shall fail to make an installment payment due
in accordance with the provisions of such repayment agreement, the state
comptroller thereupon shall cause to be withheld from state-collected,
locally-shared taxes or state aid whichever he shall determine and to
which such city would otherwise be entitled, a sum sufficient to
reimburse the state for the amount due and owing the state in accordance
with such repayment agreement. Such monies so withheld shall be credited
by the state comptroller against the amount payable to the state by such
city in accordance with the provision of such repayment agreement.
3. With relation to the city of New York:
3.1. For convenience of design, acquisition of property and for
purposes of construction, reconstruction or improvement, such state
arterial system in the city of New York (hereinafter called "city")
shall be divided into such sections as may be agreed by and between the
commissioner and the city planning commission. Funds that are now or
that shall hereafter be made available to pay the costs and expenses of
design, acquisition of property, and construction of the uncompleted
portions of such system, may be used to pay the said costs and expenses
in connection with a section or sections of such system as agreed from
time to time by the city and the commissioner. The city may elect in
advance to prepare designs, plans, specifications and estimates of cost
for any such section or sections of such system, as hereinafter
provided.
3.2. Notwithstanding the provisions of any general, special or local
law, designs, plans, specifications and estimates of cost for the
uncompleted portions of the system may be prepared wholly or partly by
the commissioner or by the appropriate city agency if the said
commissioner shall approve or, subject to the approval of the director
of the budget, by private architectural or engineering firms selected by
the said commissioner. The preparation of any such designs, plans,
specifications and estimates of cost by the city shall be undertaken
only when specifically authorized in advance by the commissioner. The
costs and expenses thereof shall be paid out of funds now or hereafter
available for such purposes. Such designs, plans, specifications and
estimates of costs shall require the approval of the city in the manner
provided by the city charter and administrative code. The appropriate
city department or agency may prepare designs, plans, specifications and
estimates of cost at the cost and expense of the city for any part of
such system which such city elects to construct at its own expense.
3.3. Any property which is deemed by the commissioner of
transportation to be necessary to carry out the provisions of this
article shall be acquired and may be disposed of by him pursuant to
applicable provisions of the eminent domain procedure law and section
thirty of this chapter, except that the function of the county
legislative body as to approval of controlled access shall be exercised
by the governing body of the city. Nothing in this section shall,
however, preclude the city from acquiring, subject to the city charter
and administrative code, all or any part of the property needed for the
system in the event that sufficient state funds are not available and it
is deemed desirable by the city to acquire title promptly to expedite
completion of all or parts of the system, but no liability shall be
created thereby or deemed to have been assumed by the state in such
event.
* 3.4. The state shall proceed with the construction of a section or
sections of said system after designs, plans, specifications and
estimates of cost thereof have been completed and approved by the city
and the commissioner of transportation, and the necessary property has
been acquired. The city may, however, elect to construct such section or
sections at its own expense in the manner provided by the city charter
or otherwise. Upon the completion by the state of a section or sections
of parkways constructed by the state in the city of New York, the
commissioner of transportation shall by official order transfer
jurisdiction over the central express artery and adjacent landscape
areas and over adjacent service roads to the city of New York. All such
parkways, excepting such service roads shall be maintained by the city
department of transportation as parkways restricted to pleasure vehicles
and without access except at designated points, except that the city
department of transportation may adopt a rule permitting the use of a
portion of the Grand Central parkway between the Robert F. Kennedy
bridge and the western leg of the Brooklyn-Queens expressway by single
unit commercial vehicles having no more than three axles and ten tires;
provided further that, contingent upon a fully executed memorandum of
understanding between the New York state department of transportation
and the New York city department of environmental protection, the city
department of transportation may adopt a rule permitting the use of the
Korean War Veterans parkway during the remediation of the Brookfield
landfill on Staten Island by not more than forty-ton motor vehicles
commonly classified as construction trucks owned and/or operated by the
department of environmental protection of the city of New York, its
agents or contractors for the purpose of the remediation of such
landfill, provided that such trucks comply with all other provisions of
applicable state and local law. Parkway service roads shall be open to
mixed traffic. Upon the completion of a section or sections of
expressways including incidental service roads constructed by the state
in the city of New York, the commissioner of transportation shall
transfer jurisdiction to the city of New York. The provisions of this
article in regard to design and construction shall apply also to
reconstruction of a section or sections of the state arterial system.
* NB Effective until August 16, 2016
* 3.4. The state shall proceed with the construction of a section or
sections of said system after designs, plans, specifications and
estimates of cost thereof have been completed and approved by the city
and the commissioner of transportation, and the necessary property has
been acquired. The city may, however, elect to construct such section or
sections at its own expense in the manner provided by the city charter
or otherwise. Upon the completion by the state of a section or sections
of parkways constructed by the state in the city of New York, the
commissioner of transportation shall by official order transfer
jurisdiction over the central express artery and adjacent landscape
areas and over adjacent service roads to the city of New York. All such
parkways, excepting such service roads shall be maintained by the city
department of transportation as parkways restricted to pleasure vehicles
and without access except at designated points, except that the city
department of transportation may adopt a rule permitting the use of a
portion of the Grand Central parkway between the Robert F. Kennedy
bridge and the western leg of the Brooklyn-Queens expressway by single
unit commercial vehicles having no more than three axles and ten tires.
Parkway service roads shall be open to mixed traffic. Upon the
completion of a section or sections of expressways including incidental
service roads constructed by the state in the city of New York, the
commissioner of transportation shall transfer jurisdiction to the city
of New York. The provisions of this article in regard to design and
construction shall apply also to reconstruction of a section or sections
of the state arterial system.
* NB Effective August 16, 2016
3.5. No change shall be made in the basic plans of the state arterial
system in the city which will affect adversely the integrity of the said
expressways and parkways in such system by abandoning or relocating a
section or sections or by adding new entrances or exits, or by providing
crossings at grade or traffic lights, other than on service roads,
without approval in writing by the commissioner.
3.6. Nothing herein contained shall affect the powers and duties of
the mayor, the city planning commission and other city departments and
agencies with respect to the acquisition, construction, reconstruction
and control of such state arterial system in the city, except as herein
otherwise specifically provided, and nothing contained in this article
shall be deemed to supersede, change or postpone arrangements by the
federal and state governments with the city of New York to expedite the
post-war arterial improvements within the city with federal, state and
city funds made available for this purpose. Nothing herein contained
shall be construed to alter or in any way change the character and use
of marginal streets and the rights of the city therein.
4. Unless otherwise expressly provided, nothing contained in this
section shall be deemed to be a modification, limitation or exclusion of
any existing, amendatory or supplemental provisions of this chapter or
of any other statute now or hereafter to be enacted, relating to the
improvement, construction, reconstruction or maintenance of any state
highway with necessary facilities and appurtenances, with federal aid.
5. The costs and expenses of (a) all preliminary work including the
preparation of designs, maps, plans, specifications and estimates of
cost; (b) construction, reconstruction or improvement including
resurfacing or the construction, reconstruction or improvement of any
sidewalk because of a change of grade; (c) the acquisition of property
as defined and authorized in section thirty of this chapter; (d)
reconstruction that is undertaken subsequent to the construction or
improvement herein provided, shall all be deemed to be a part of the
cost of construction and reconstruction of state highways, and shall be
paid from funds available therefor; and the cost of maintenance and
repair as hereinafter provided, shall be paid from funds available for
maintenance and repair of highways; all on the audit and warrant of the
state comptroller on vouchers approved by the commissioner of
transportation. The costs and expenses of reconstruction of any
structure that separates highway-railroad grades and, in the discretion
of the commissioner of transportation, the costs and expenses of the
elimination of an existing highway-railroad crossing at grade shall,
pursuant to a certificate of availability of funds therefor which shall
have been approved by the director of the budget, be deemed to be a part
of the cost of construction, reconstruction or improvement of state
highways and shall, in cases provided in this subdivision, be paid by
the state as part of the cost thereof. Any property that may be required
in connection with such work of construction or reconstruction, shall be
acquired by the procedure provided in section thirty of this chapter,
and the cost and expenses of such acquisition of property as defined in
this article shall be paid as provided in this article. The commissioner
of transportation may make an agreement with a railroad corporation for
the performance by such railroad corporation of any work of construction
or reconstruction of such grade separation structure and necessary
facilities and appurtenances and for reimbursement by the state to such
railroad corporation for the cost and expense of such work. Such
agreement may provide that such work may be done by (1) the forces and
with the equipment of such railroad corporation, or (2) by such other
method as such commissioner of transportation shall approve, or (3) by a
combination of such methods, as such commissioner of transportation may
deem to be for the best interests of the state. When a structure which
carries a railroad over an arterial highway, or which carries an
arterial highway over a railroad, is completed, the bridge and its
supports shall be maintained and repaired by the agency responsible for
the maintenance of the highway.
6. The costs of all such work of preparing designs, plans,
specifications and estimates shall be paid out of funds that are now or
that shall hereafter be made available for the construction,
reconstruction or improvement of state highways, subject to the
provisions of this chapter relating to federal aid or to any grants or
contributions relating to federal aid, as such provisions, grants or
contributions are now or shall hereafter be enacted or be made
available; and payment shall be made on the audit and warrant of the
comptroller on vouchers approved by the commissioner.
7. The commissioner of transportation and any city named in this
article, acting through the mayor or other administrative head thereof,
pursuant to a resolution of the governing body of such city except the
city of New York, are authorized to enter into a written agreement for
the maintenance and repair, under the supervision and subject to the
approval of the commissioner, of any public street, main route or
thoroughfare or portion thereof, exclusive of service roads and pavement
on intersecting street bridges, which is within the boundaries of such
city and which is now or which shall hereafter be designated in this
article and which has been constructed or which shall have been
constructed as authorized by articles four and twelve-B of this chapter
and with grants made available by the federal government pursuant to the
federal aid highway act of nineteen hundred forty-four, being public law
five hundred twenty-one of the seventy-eighth congress, chapter six
hundred twenty-six, second session, as approved on the twentieth day of
December, nineteen hundred forty-four. Such agreement may provide that
the state shall pay annually to such city a sum to be computed at the
rate of (a) not more than eighty-five cents per square yard of the
pavement area that is included in the state highway system according to
the provisions of this section, and (b) an additional ten cents per
square yard of such pavement area where such pavement area is located on
any elevated bridge.
The maintenance and repair, as provided in this section, shall be done
either by the forces of such city and with its equipment, or by its
contractor, or by a combination of these two methods.
8. Such agreement for maintenance and repair as authorized by this
section, shall include the procedure and method for regulation of street
openings, and appropriate provisions for the care, protection and
patching of the pavement or pavements, and curbs, the care and
protection of drainage facilities and structures, the maintenance of
adjacent roadside and landscaped areas to include the care of trees,
shrubs and groundcovers and the cutting of grass at specified locations
and to the extent as shall be deemed by such commissioner of
transportation to be for the best interest of the public, control of
snow and ice on any such public street, main route or thoroughfare or
portion thereof included in such agreement, the performance of repairs
and alterations, and the operation and care of traffic lights,
directional guides and controls, and parking controls. Such maintenance
and repair, whether done by a city pursuant to an agreement therefor as
authorized by this section, or by the state because of the absence of
such agreement, as the case may be, shall not include (a) services of
lighting, cleaning, sweeping and sprinkling of any such public street,
main route or thoroughfare or portion thereof, all of which services are
deemed to be the normal maintenance of streets by such city in which
they are located, or (b) any work on or in connection with subsurface
installations and structures that are owned and operated by any city,
including sanitary sewers, gas mains, water lines and conduits and
appurtenances thereto.
8-a. (a) Except as provided hereafter the state shall indemnify and
hold harmless such city for any and all liability for damages for
personal injury, injury to property or wrongful death for losses arising
from or occasioned by the manner of performance of the functions under
any agreement with a city for the maintenance and repair of state
arterial highways pursuant to this section.
(b) In no event shall the state be obligated to defend or indemnify
such city, in any action, proceeding, claim or demand arising out of the
actual operation of a vehicle or other equipment while engaged in the
operation of repair and maintenance under any such agreement, nor any
action, proceeding, claim or demand arising out of services of lighting,
cleaning, sweeping and sprinkling any such public street, main route or
thoroughfare or portions thereof nor any work on or in connection with
subsurface installations and structures that are owned and operated by
any city, including sanitary sewers, gas mains, water lines, and
conduits, and appurtenances thereto.
(c) The city shall be entitled to representation by the attorney
general in any claim described in paragraph (a) of this subdivision,
provided, however, that the city shall be entitled to itself defend any
such action, proceeding, claim or demand 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
determines that a conflict of interest exists and that the city is
entitled to be separately represented. Whenever the municipality is
entitled to defend the action itself, the state shall reimburse the
municipality for any and all costs and expenses, including, but not
limited to, counsel fees and disbursements.
(d) The state shall indemnify and save harmless such city in the
amount of any judgment obtained against such city in any state or
federal court in any claim described in paragraph (a) of this
subdivision, or in the amount of any settlement of such claim, or shall
pay such judgment or settlement; provided, however, that the act or
omission from which such judgment or settlement arose occurred while the
city was acting within the scope of its functions for maintenance and
repair of state arterial highways; provided, further, that no
stipulation of settlement of any such action, proceeding, claim or
demand shall be made or executed without approval of the attorney
general and of the commissioner of transportation or his designee.
Payment of any claim made pursuant to settlement shall not exceed the
sum of fifty thousand dollars. Nothing herein shall authorize the state
to indemnify or save harmless with respect to punitive or exemplary
damages.
(e) The duty to defend or indemnify and save harmless prescribed by
this subdivision shall be conditioned upon (i) delivery to the attorney
general or an assistant attorney general at an office of the department
of law in Albany or New York city and by delivery to the commissioner of
transportation or his designee of a copy of any claim, summons,
complaint, process, notice, demand or other pleading within ten days
after such city is served with such document and (ii) the full
cooperation of the city in the defense of such action, proceeding, claim
or demand and in the defense of any action, proceeding, claim or demand
against the state based upon the same act or omission, and in the
prosecution of any appeal.
(f) The benefits of this subdivision shall inure only to such city and
shall not enlarge or diminish the rights of any other party nor shall
any provision of this subdivision be construed to effect, alter, or
repeal any provision of the workers' compensation law.
(g) This subdivision 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.
(h) The provisions of this subdivision shall not be construed to
impair, alter, limit or modify the rights and obligations of any insurer
under any insurance agreement.
(i) Except as otherwise specifically provided in this subdivision, the
provisions of this subdivision 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 city of any other level of government, or any right to
defense and 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.
9. Whenever the commissioner of transportation shall deem such
maintenance and repair by any such city to be inadequate or
unsatisfactory according to the terms of such agreement, he may, by
official order to be filed in his office, and by filing a certified copy
thereof in the office of the department of state, cancel said agreement,
and the payments thereunder provided by the state shall cease and
determine; whereupon the commissioner may carry out such maintenance and
repair in the same manner as other state highways are maintained by the
state. The official order provided in this subdivision shall become
effective at the expiration of five days after the commissioner shall
mail a certified copy thereof to the city clerk or other official who
performs related duties in such city. Thereupon, the street, main route
or thoroughfare or portion thereof described in said official order
shall be maintained and repaired as provided in this section.
Section: Previous Article 12-B 349-B 349-C 349-D 349-E 349-F Next
Last modified: February 16, 2012 |
|