N.Y. Railroad Law § 93-b: Maintenance and removal of highway-railroad separation structures

§ 93-b. Maintenance and removal of highway-railroad separation

structures. The responsibility of a railroad corporation to maintain

and keep in repair highway-railroad separation structures as provided by

law shall not terminate upon the abandonment of the railroad or a

portion thereof, but such responsibility, with respect to state

highways, shall continue unless otherwise agreed upon by the railroad

corporation and the state, and shall continue with respect to highways

other than state highways unless otherwise agreed upon by the governing

body or its designee, of the municipality having jurisdiction over the

highway, until the separation structure is removed as hereinafter

provided. When a structure remains which separates a highway and an

abandoned railroad, the railroad, or the transferee of the abandoned

railroad right-of-way when the transfer of such responsibility has been

approved by the commissioner, and the state, or the municipal

corporation having jurisdiction over the highway, may mutually agree as

to their allocations of the expenses of removal of the structures and

its supports and restoration of the highway. If such approval is not

obtained, the responsibility for maintenance and removal continue with

the railroad. In the event that the interested parties are unable to

agree as to the necessity to remove a grade separation structure, the

manner of removal or the division of cost or the division of performance

of the removal work within one year after the date of the abandonment by

the railroad corporation, either such railroad or such transferee of the

railroad rights-of-way or the municipality having jurisdiction over the

highway may petition the commissioner to hold a hearing in order to

consider such matter. The commissioner upon receipt of such a petition,

or on his own motion with respect to state highways, shall designate a

time and place for a hearing to consider the matter. After such a

hearing has been held, the commissioner shall determine by order whether

it is in the public interest to require either removal of or the

retention of the structure and its supports, in whole or in part, and

shall direct the manner of accomplishing any such removal and the manner

that the cost and expenses of any such removal or the performance of any

such removal work shall be divided. The division of cost to the railroad

or transferee shall be limited to the cost of structure removal only,

including superstructure and substructure elements. Material so removed

shall become the property of the railroad, or the value gained from the

salvage disposition of such material shall be returned to the railroad.

The cost of any embankment removal or placement, or highway restoration,

shall be borne by the state, or the municipal corporation having

jurisdiction over the highway. The decision of the commissioner rendered

in any proceeding under this section shall be communicated after final

hearing, to the petitioner, the railroad corporation or transferee, the

municipal corporation and all other parties who appeared at said hearing

by counsel or in person. Any person aggrieved by such decision, and who

was a party to said proceeding, may within sixty days after the service

of such decision appeal therefrom to the appellate division of the

supreme court in the department in which such separation structure is

located, and to the court of appeals, in the same manner and with like

effect as is provided in the case of appeals from an order of the

supreme court.