NY Hwy L § 12 (2021)
2021 New York Laws HAY - Highway Article 2 - Commissioner of Transportation 12 - Commissioner to Provide for Maintenance, Repair, and for Control of Snow and Ice; Roads and Driveways on State Lands.

§ 12. Commissioner to provide for maintenance, repair, and for control of  snow and ice; roads and driveways on state lands. 1. The maintenance and  repair  of  improved  state  highways  in  towns  and  incorporated villages,  exclusive,  however, of the cost of maintaining and repairing bridges having a span in excess of twenty feet shall be under the direct supervision and control of the commissioner  and  he  or  she  shall  be responsible  therefor.  The cost of such maintenance and repair shall be borne wholly by the state and be paid from moneys appropriated  therefor by  the  legislature.  Such  maintenance  and  repair may be done in the discretion of the commissioner either directly by the department  or  by contract  awarded  to  the lowest responsible bidder at a public letting after due advertisement, and under such rules  and  regulations  as  the commissioner  may  prescribe. The commissioner shall also have the power to adopt such system as may seem expedient so that each section of  such highways shall be effectively and economically preserved, maintained and repaired.   2. The maintenance of state highways shall include the control of snow and  ice  on such highways or any parts thereof, as the commissioner may deem to be necessary to  provide  reasonable  passage  and  movement  of vehicles  over  such  highways.  The  commissioner is authorized also to erect snow fences at suitable locations. The work  of  such  control  of snow  and  ice may be done by any municipality which for the purposes of this section shall include only a county, city,  town  or  village.  The governing  board  or  body of any such municipality and the commissioner are hereby authorized to enter into an agreement for the performance  of the  work  of  such  control  of snow and ice upon such terms, rules and regulations as may be deemed by the commissioner  to  be  for  the  best interest of the public. Such agreement may provide for periodic payments based  upon  a  percentage  of  the  estimated total cost. Any agreement authorized by this subdivision shall be for a term of up to  five  years and  at  the  expiration of the year preceding the last year of the term specified in the agreement, as such  term  may  be  extended  as  herein provided, the municipality shall notify the commissioner either (a) that it requests, with the approval of the commissioner, that the term of the agreement be extended for a specified term of up to five years or (b) it intends  not  to extend the agreement and such agreement shall expire at the  end  of  the  term.  If  the  municipality  fails  to  notify   the commissioner   as   herein   provided,  it  shall  be  deemed  that  the municipality intends not to extend the agreement. Such agreement may  be terminated  during  the  specified  term provided the municipality shall notify the commissioner eighteen months prior to  such  termination.  If any such agreement expires, a new agreement between the commissioner and a  municipality may be entered into for a term of up to five years, with extended term or terms upon notification as above provided. Whenever the commissioner shall deem the work of control  of  snow  and  ice  by  any municipality  to  be inadequate or unsatisfactory according to the terms of any such agreement, he or she may, by official order to be  filed  in the  department, 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; whereupon the commissioner may  carry  out  the work of control of snow and ice. 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  clerk  or  other  official  who  performs  related  duties  in such municipality. The governing board or body of any  such  municipality  is authorized  to appropriate such sum as it deems necessary to enable such municipality to perform the terms of such agreement. The  work  of  such control  of  snow  and ice may be done by any of the methods provided in  subdivision one of this section for the work of maintenance and  repair, or  by a combination of such methods. Any county is hereby authorized to enter into a contract with another municipality located within the  same county  for  the performance of the work of such control of snow and ice as a subcontractor under any agreement with  the  commissioner  as  such agreement  is  hereinbefore  provided. Moneys received by a county under the terms of any agreement  authorized  by  this  subdivision  shall  be credited  to  the fund from which moneys were appropriated to enable the county to perform the terms of such agreement. Moneys so received  by  a town shall be credited to the highway fund. Moneys so received by a city or village shall be credited to the general fund.   2-a.  (a)  Except  as provided hereafter the state shall indemnify and hold harmless such municipalities 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 municipality for the control of snow and  ice pursuant to this section.  (b)  In  no  event shall the state be obligated to defend or indemnify such municipality, in any action, proceeding, claim  or  demand  arising out  of the actual operation of an insured vehicle or vehicle subject to self-insurance while engaged in the operation of snow  and  ice  control functions under such agreement.  (c)  The  municipality  shall  be  entitled  to  representation by the attorney general in  any  claim  described  in  paragraph  (a)  of  this subdivision,  provided, however, that the municipality 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 municipality 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 municipality in the amount of any judgment obtained against  such  municipality  in  any state  or  federal court on 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 municipality was acting within the scope of its functions for control of snow and ice; 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 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 the office of the department of  law  located  in  Albany  or  New  York  city and by delivery to the commissioner or his designee a copy of any  claim,  summons,  complaint, process,  notice,  demand  or  other pleading within ten days after such municipality is served with such document and (ii) the full  cooperation of  the municipality 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 municipalities 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 municipality or 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.   3. The commissioner shall have the power to purchase (a) materials for such maintenance and repair, except where such work is done by contract, and  to  contract for the delivery thereof at convenient intervals along such highways, and  (b)  equipment  and  appliances  that  he  may  deem necessary to carry out the provisions of this section. Any municipality, acting  by  and  through its authorized official, is hereby empowered to rent its machinery, tools, equipment, and storage space, to  the  state, acting  by and through the commissioner, for the purpose of such control of snow and ice upon such terms and  at  such  rate  as  may  be  agreed between  the  municipality  and  the  commissioner.  Notwithstanding the provisions of any general, special or local law or of any  charter,  the governing board or body of any such municipality is hereby authorized to sell  such  machinery,  tools  and equipment to the state, acting by and through the commissioner, for the purposes of this section  and  without competitive  bidding  or other limitation or restriction provided in any general, special or local law or of any charter, and  the  commissioner, may,  upon  approval by the state comptroller and the state commissioner of general services, purchase such machinery, tools and  equipment  from any such municipality as herein provided.   4.  Whenever funds therefor are made available, the commissioner shall have power to acquire for the state, by purchase,  or  by  appropriation through  the  procedure  described  in  section  thirty of this chapter, property  for  the  purpose  of  storing,  maintaining   or   processing construction and maintenance supplies, material or equipment and for the purpose  of  providing,  erecting and maintaining offices for department personnel  and  structures  for  storing,  maintaining   or   processing construction and maintenance materials or equipment.   5.  Whenever  a  state highway has been constructed at a greater width than that provided in the original plans, upon petition of a village, as provided in sections forty-six and forty-seven of this chapter, or  upon petition  of  a  town  or  county,  as provided in sections forty-eight, forty-nine, or fifty-nine of this chapter, or whenever such highway  has been  widened by a town or county under a permit granted as provided in, or under conditions  and  regulations  prescribed  pursuant  to  section fifty-two  of  this  chapter,  the additional width of pavement shall be deemed to be a part of the  highway  and  shall  be  maintained  by  the commissioner  as  provided herein, but in no case where any such highway has been widened as provided above, shall the state be  responsible  for  the  maintenance  of  any curb or of any paved gutter or paved shoulder, provided, however, that on any  highway  maintained  by  the  state  the commissioner  shall have authority to clean any pavement or paved gutter or repair any unpaved shoulder or unpaved gutter outside of the pavement maintained  by  the  state,  where  necessary for the protection of such pavement.   6. Whenever the head of any state department  having  jurisdiction  or control  over  lands  owned  and  occupied  by  the  state, requests the commissioner to maintain and to repair any road and  driveway  which  is located   on,   over   and  across  such  lands,  the  commissioner  is, notwithstanding the provisions of any general,  special  or  local  law, authorized  to  grant  such request by his official order therefor. Such official order shall contain a general description of any such road  and driveway.  A certified copy of such official order shall be filed by the commissioner  in  the  office  of  (a)  the  state   department   having jurisdiction or control over such lands, and (b) the department of audit and  control.  Thereupon  any such road and driveway shall be maintained and  repaired  under  the  direct  supervision  and   control   of   the commissioner  in  the same manner as is provided in this section for the maintenance and repair of  improved  state  highways  in  towns  and  in incorporated villages.   7.  Whenever  the head of any state department, agency, institution or public benefit corporation having jurisdiction or control over the lands owned and occupied by the state or such department, agency,  institution or  public  benefit  corporation requests the commissioner to construct, reconstruct, and/or maintain any loop or peripheral roadway which is  or is to be located on, around, over, or across such lands, notwithstanding the provisions of any general, special or local law, the commissioner is authorized  to  grant  such  request  and  undertake  such construction, reconstruction  and/or  maintenance.  Before  undertaking  the  work  of construction,  reconstruction  and/or  maintenance of such roadways, the commissioner and the head of the state department,  agency,  institution or  public  benefit  corporation  shall  enter into a written agreement, subject to the approval of the director of  the  budget,  providing  the funds  therefor,  or  reimbursement  by  such  state department, agency, institution  or  public  benefit  corporation  of  the  funds  therefor, including  all  costs incurred by the department in connection with such construction, reconstruction and/or  maintenance.  Where  such  loop  or peripheral roadway is to be constructed, reconstructed and/or maintained on  lands  occupied  by  either  the state university of New York or the state university construction fund, both the  state  university  of  New York and the state university construction fund shall be parties to such agreement.  Such  roadway  shall  be  constructed,  or reconstructed, to mutually agreeable standards, in the same manner as state  highways  are constructed  or  reconstructed pursuant to this chapter. The maintenance of such roadway shall be in  the  same  manner  as  provided  for  state highways  in this chapter. If such a maintenance agreement extends for a period greater than one year, the funds shall be made available for,  or reimbursed,  on  an  annual  basis.  The  head of such state department, agency, institution or public benefit  corporation  may  terminate  such maintenance agreement upon six months written notice to the commissioner making  provision  for  the  department  to  be reimbursed for all costs incurred by such department up to such termination date.  In  connection with  the  maintenance of such a roadway the commissioner shall cause an official order to be issued therefor. Such official order shall  contain a general description of such roadway. A certified copy of such official order  shall  be  filed by the commissioner in the office of the head of the state department, agency, institution or public benefit  corporation  making such request for maintenance and with the department of audit and control.