N.Y. General Business Law § 765: Penalties and liabilities

§ 765. Penalties and liabilities. 1. Civil penalties. a. Failure to

comply with any provision of this article shall subject an excavator or

an operator to a civil penalty of up to four thousand three hundred

seventy-five dollars for the first violation and up to an additional

seventeen thousand five hundred dollars for each succeeding violation

that occurs within a twelve month period.

b. The penalties provided for by this article shall not apply to an

excavator who damages an underground facility due to the failure of the

operator to comply with any of the provisions of this article nor shall

in such instance the excavator be liable for repairs as prescribed in

subdivision four of this section.

c. An action to recover a penalty under this article may be brought in

the supreme court in the judicial district in which the violation was

alleged to have occurred which shall be commenced and prosecuted by the

attorney general. The public service commission shall, pursuant to

section one hundred nineteen-b of the public service law, forward to the

attorney general its determination of the amount of the penalty for

violations or rules and regulations adopted to implement the

requirements of this article. Upon receipt of such determination, the

attorney general may commence an action to recover such penalty. All

moneys recovered in any such action, together with the costs thereof,

and all moneys recovered as the result of any such public service

commission determination shall be paid into the environmental protection

fund established pursuant to section ninety-two-s of the state finance

law.

2. Except as otherwise provided in this subdivision, nothing in this

article shall impair, limit or reduce the statutory, common law or

contractual duties or tort or other liability of any excavator

excavating or demolishing in the vicinity of underground facilities.

3. Any excavator engaging in or proposing to engage in excavation or

demolition in a negligent or unsafe manner, which has resulted in or is

likely to result in damage to underground facilities in such a manner

that life, property or the continuation of operator service is

endangered, may be enjoined from such excavation or demolition or any

aspect thereof upon application of the operator owning the facilities or

the attorney general made in supreme court having jurisdiction in the

county wherein the excavation or demolition or proposed excavation or

demolition is to take place. Three or more instances of damage by an

excavator to underground facilities in the course of the entire

self-same excavation or demolition activity shall be prima facie grounds

for enjoining the excavator from further performance of the excavation

or demolition activity.

4. In the event that, as a result of a violation of any of the

provisions of this article by an excavator, it is necessary that an

operator make any repair to or provide new support to an underground

facility, the excavator shall be liable to the operator for reasonable

costs so incurred.