N.Y. Highway Law § 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.