2023 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.