N.Y. General Obligations Law § 11-102: Liability of utilities for compensation for damages caused by interfering with, or delaying the progress of work under state public const...

§ 11-102. Liability of utilities for compensation for damages caused

by interfering with, or delaying the progress of work under state public

construction contracts. 1. No utility shall interfere with, or delay the

progress of work under any contract with the state department, agency,

division or board, for the construction, reconstruction or improvement

of any highway, street, road, railroad grade crossing, bridge, tunnel,

underpass, overpass or other state contract work, by failing to remove

or relocate its poles, wires, cables, conduits, pipes or any other

facilities or structures within the time schedule therefor by an

agreement or under the terms of an agreement between the department,

agency, division or board and the utility, or if no time is fixed by

such an agreement or under the terms of such an agreement, within the

time fixed by the department, agency, division or board, by notice

served upon such utility by such state department, agency, division or

board.

2. If such notice is utilized, it shall describe the public

improvement and the geographical location thereof, the date of

commencement and the date of completion, if any, provided for by the

contract, the contractor's name and address, the manner in which and the

extent to which the facilities and structures of the utility obstruct or

prevent the contractor from progressing or performing the work

comprehended by the contract, and shall fix the date or time within such

utility is required to remove or relocate its facilities or structures,

specifying the same, in order to provide the contractor with the site

when required by the contractor for progressing or performing the work

pursuant to such state contract. Such notice shall be in writing and

shall be served upon such utility either personally or by certified mail

at its principal office or place of business in the county where the

work under such contract is to be performed, or, if there be no such

principal office or place of business in such county, at the nearest

principal office or place of business of such utility, outside of such

county. In the event the utility to whom the aforesaid notice was

directed is for any reason unable, within the prescribed period, to

remove or relocate said facilities or structures specified in the

notice, said utility shall immediately advise said department, agency,

division or board and the contractor, in writing, of such inability, and

in the same communication so advise said department, agency, division or

board, and the contractor of the approximate date that such removal or

relocation of facilities or structures could be effected; and shall

further state the basis for the inability of said utility to remove or

relocate said facilities or structures within the time specified by the

notice served thereon by said department, agency, division or board. The

department, agency, division or board, after examining and considering

the utility's basis for establishing a different schedule for such

removal or relocation, shall, if such basis is reasonable, establish and

notify the utility of a revised schedule for completing such removal or

relocation.

3. In cases where the utility has been reimbursed for removal,

relocation, replacement or reconstruction pursuant to subdivision

twenty-four-b of section ten of the highway law, a utility failing to

complete the removal or relocation of such structures or facilities

within a period of thirty days beyond the time fixed therefor by the

latest time schedule established in accordance with this section, shall

be liable and responsible to any such contractor for any damages, direct

or consequential, sustained by any such contractor as the result

thereof, in an action to be brought by such contractor against such

utility in a court of competent jurisdiction within two years from the

time fixed for the removal or relocation of such structures or

facilities. If an action is commenced against a utility, as heretofore

provided, said utility may interpose in its answer in such action any

defense available under the provisions of the civil practice law and

rules. The unreasonableness of the time schedule imposed by the state

department, agency, division or board shall be an absolute defense by

the utility to any such action by the contractor. If, in any such

action, the utility is found to owe nothing to the contractor, or if an

offer of settlement is made by the utility which is not accepted by the

contractor and the resulting verdict against the utility is less than

the offer of settlement, then in either such event the total cost of the

utility of litigation, including reasonable attorney's fees, shall be

paid to the utility by the contractor.