2023 New York Laws › RRD - Railroad › Article 3 - Construction, Operation and Management › 90 - New Streets Across Railroads.

§ 90. New streets across railroads. When a new street, avenue, highway
  or  road  or new portion or additional lane of a street, avenue, highway
  or road shall hereafter be constructed across a steam surface  railroad,
  other than pursuant to section ninety-one, such street, avenue, highway,
  or  road  or new portion or additional lane of a street, avenue, highway
  or  road,  shall  pass  over  or  under  such  railroad  whenever   such
  construction  is  practicable.    Notice  of  intention  to lay out such
  street, avenue, highway or road, or such new portion or additional  lane
  of  a  street,  avenue, highway or road, across a steam surface railroad
  shall be given to such railroad corporation by the municipal corporation
  at least fifteen days prior to the making of the order laying  out  such
  street,  avenue,  highway or road or such new portion or additional lane
  of a street, avenue, highway  or  road  by  service  personally  on  the
  president  or  vice-president of the railroad corporation or any general
  officer thereof. Such notice shall designate the  time  when  and  place
  where  a  hearing  will  be given to such railroad corporation, and such
  railroad corporation shall  have  the  right  to  be  heard  before  the
  authorities  of  such  municipal  corporation  upon  the question of the
  necessity of such street, avenue, highways or road or such  new  portion
  or  additional lane of a street, avenue, highway or road on the question
  of the location of such highway. If the municipal corporation determines
  such street, avenue, highway or road or such new portion  or  additional
  lane  of  a  street,  avenue,  highway  or  road  to  be necessary, such
  municipal  corporation  shall  then  apply  to   the   commissioner   of
  transportation  before  any  further proceedings are taken, to determine
  whether such street, avenue, highway or road  or  such  new  portion  or
  additional  lane of a street, avenue, highway or road shall pass over or
  under such railroad or at  grade.  The  commissioner  of  transportation
  shall  thereupon  appoint a time and place for hearing such application,
  and shall give such notice thereof as he shall judge reasonable  to  the
  railroad corporation whose railroad is to be crossed by such new street,
  avenue,  highway  or  road,  or such new portion or additional lane of a
  street, avenue, highway or  road,  to  the  municipal  corporation,  the
  owners  of  land  adjoining  the  railroad  and that part of the street,
  avenue, highway or road to be opened, extended or constructed  and  such
  other  parties  deemed  by  him to be interested in the proceeding.  The
  commissioner of transportation  shall  determine  whether  such  street,
  avenue,  highway  or  road  or  such new portion or additional lane of a
  street, avenue, highway or road shall be constructed over or under  such
  railroad  or  at  grade.  If  the  commissioner  of transportation shall
  determine that such street, avenue, highway or road or such new  portion
  or additional lane of a street, avenue, highway or road shall be carried
  across  such  railroad  above  the grade thereof, he shall determine the
  height, the length and the material of the bridge or structure by  means
  of  which  such  street,  avenue, highway or road or such new portion or
  additional lane of a street, avenue, highway or road  shall  be  carried
  across  such  railroad,  and  the  length,  character  and grades of the
  approaches  thereto.  If  the  commissioner  of   transportation   shall
  determine  that such street, avenue, highway or road or such new portion
  or additional lane of  a  street,  avenue,  highway  or  road  shall  be
  constructed  or  extended  below  the  grade  of such railroad, he shall
  determine the manner and method in which the same shall  be  so  carried
  under,  and  the  length, character and grades of the approaches. If the
  commissioner of transportation shall determine that it is  impracticable
  to  construct or extend such street, avenue, highway or road or such new
  portion or additional lane of a street, avenue, highway or  road  across
  such  railroad  above or below the grade thereof, he shall determine the
  manner and method in  which  the  same  shall  be  carried  across  such

  railroad  at grade and what safeguards shall be maintained. The decision
  of the commissioner of transportation as to the  manner  and  method  of
  carrying  such  new street, avenue, highway or road, or such new portion
  or  additional  lane  of  a  street, avenue, highway or road across such
  railroad shall  be  final,  subject  however  to  the  right  of  appeal
  hereinafter  given,  the  decision of the commissioner of transportation
  rendered in any proceeding under this  section  shall  be  communicated,
  after   final  hearing,  to  the  railroad  corporation,  the  municipal
  corporation and all other  parties  who  appeared  at  such  hearing  by
  counsel  or in person. This section shall not apply to any state highway
  or any  other  street,  avenue,  highway  or  road  or  new  portion  or
  additional  lane  of  a  street,  avenue,  highway  or  road  which  the
  commissioner of transportation proposes to construct across  a  railroad
  pursuant  to  the  highway  law.  Highway  as used in this article shall
  include any highway, road, street, alley, avenue, thoroughfare or public
  driveway which is open to the public and publicly maintained.