N.Y. Railroad Law § 94: Performance of work; division of expenses; accounting; claims for damages; valuation

§ 94. Performance of work; division of expenses; accounting; claims

for damages; valuation. 1. Whenever under section eighty-nine a new

railroad is constructed across an existing highway, the expense of

crossing above or below the grade of the highway including any expense

incurred in altering or changing the highway under a determination of

the commissioner of transportation shall be paid entirely by the

railroad corporation.

2. Whenever under section ninety a new street, avenue, highway or road

or new portion or additional lane of a street, avenue, highway or road

is constructed across an existing railroad, the railroad corporation

shall pay one-half and the municipal corporation having jurisdiction

over such street, avenue, highway, or road or new portion or additional

lane of a street, avenue, highway or road shall pay the remaining

one-half. However, where such new street, avenue, highway or road or new

portion or additional lane of a street, avenue, highway or road crosses

a navigable stream or water adjacent to or near an existing railroad,

which crossing of such navigable stream or water by a bridge or tunnel

necessarily increases the height above or the depth below the crossing

of such railroad or the length of the approaches to such bridge or

tunnel, the railroad corporation shall pay such part or portion of the

expense of making such crossing above or below the grade of the railroad

as may be agreed to between the railroad corporation and the municipal

corporation having jurisdiction over such street, avenue, highway or

road or new portion or additional lane of a street, avenue, highway or

road, and such municipal corporation shall bear and pay the remaining

part of such expense. In case of the failure or inability of the

railroad corporation and the municipal corporation to agree upon the

part or portion of such expense to be paid by the railroad corporation,

the railroad corporation shall pay such part or portion of the expense

of making such crossing above or below the grade of the railroad as the

commissioner of transportation shall, after a hearing on at least ten

days' notice to the railroad corporation, fix and determine, which shall

be one-half of the cost as estimated of a bridge or structure and its

approaches that would be required if such navigable stream or water did

not so intervene as to affect the height or depth of such bridge or

structure or the length of the approaches thereto to carry such street,

avenue, highway or road or new portion or additional lane of such

street, avenue, highway or road across such railroad, and the municipal

corporation shall bear and pay the remaining part of such expense.

3. Whenever a change is made to an existing crossing other than a

change made to an existing structure in accordance with the provisions

of section ninety-one, fifty per centum of the expense thereof shall be

borne by the railroad corporation and twenty-five per centum by the

municipal corporation and twenty-five per centum by the state; except

that whenever an existing crossing other than an existing structure in

which a change is made under section ninety-one, is located wholly or

partly within an incorporated village having not to exceed twelve

hundred inhabitants, the portion of expense herein required to be borne

by the municipal corporation shall be borne by the town or towns in

which such crossing is situated. The expense of every change made in an

existing structure in accordance with and ordered pursuant to the

provisions of section ninety-one shall be borne eighty-five per centum

by the state, and fifteen per centum by the municipal corporation.

Provided, however, that a county may contribute funds to a city, town or

village towards its fifteen per centum share of the cost of

reconstructing a railroad bridge whether or not the road, of which the

bridge is a part is under the jurisdiction of a city, village, town or

county and regardless of who performs the work.

4. Whenever in carrying out sections ninety or ninety-one, two or more

lines of steam surface railroad, owned and operated by different

corporations cross a highway at a point where a change in grade is made,

each corporation shall pay such proportion of fifty per centum of the

expense thereof as shall be determined by the commissioner of

transportation.

4-a. If moneys of the federal government are or may reasonably be

expected to be available for the purposes of this subdivision, the

commissioner of transportation is authorized to use such moneys to

implement this subdivision. Within and to the extent of funds

appropriated by the Legislature for the state's share of the cost, the

commissioner of transportation may authorize or direct a railroad

corporation or the department of transportation to install grade

crossing facilities and appurtenances, which shall include but not be

limited to protective devices and crossing surfaces, the cost of which

including all accessories, labor and material shall be borne not more

than ten per centum by the state and ninety per centum or more with use

of the federal moneys. Installations so authorized or directed shall be

completed by the department of transportation or the railroad

corporation or corporations involved. Upon approval by the commissioner

of transportation of the completed project by the railroad corporation

or corporations, reimbursement of the state and federal shares of the

cost thereof shall be effected by the comptroller upon vouchers approved

by the commissioner. Whenever in carrying out the provisions of this

subdivision, two or more lines of railroad owned and operated by

different corporations cross a highway at a point where such

installation is made, each corporation or the department of

transportation shall perform such portion of the work as shall be

determined by the commissioner of transportation. Such crossing

facilities and appurtenances shall be maintained and operated by and at

the expense of the railroad corporation or corporations. In the event

that state funds appropriated for the purposes of this subdivision are

inadequate or are fully committed or exhausted, the authority herein

contained shall not be deemed to restrict, limit or supersede the

authority of the commissioner of transportation to order such

installations under and pursuant to subdivision one of section

fifty-three of this chapter.

5. In carrying out sections eighty-nine, ninety and ninety-one the

commissioner of transportation shall cause to be prepared or may direct

the municipal corporation or the railroad corporation to prepare plans,

specifications and estimates of cost for the work. Plans, specifications

and estimates of cost for the work prepared by the municipal corporation

or the railroad corporation shall be submitted to the commissioner of

transportation for his approval. The work shall be performed by the

municipal corporation, the railroad corporation or the department of

transportation as the commissioner of transportation shall direct. In

all cases, except where the entire expense is paid by the railroad

corporation, the expense of construction shall be paid in the first

instance by the party directed by the commissioner of transportation to

progress the work and the expense of acquiring lands, rights or

easements shall be paid in the first instance by the party directed by

the commissioner of transportation, or otherwise required by this

chapter, to acquire such lands, rights or easements. When a municipal

corporation or railroad corporation has been directed or authorized to

take competitive bids for all or a portion of the work, it shall, prior

to the award of a contract therefor, submit to the commissioner of

transportation a tabulation of bids received, together with a

recommendation for award, and if he concurs with the recommendation, he

shall approve such award and submit the tabulation and recommendation to

the state comptroller for his approval. If the commissioner of

transportation does not concur with such recommendation or determines

that the bids are excessive, he may require that the work be rebid.

Work which the municipal corporation or the railroad corporation is

directed to perform shall be subject to the supervision and approval of

the commissioner of transportation. All work performed by the department

of transportation, the municipal corporation or their agents upon or

affecting railroad property, right of way or facilities shall be subject

to the supervision and approval of the railroad corporation. No work

upon or affecting railroad property, right of way or facilities shall be

performed without the approval of the railroad corporation. The

commissioner of transportation may employ temporarily such experts and

engineers as may be necessary properly to supervise any work that may be

undertaken under sections eighty-nine, ninety and ninety-one, the

expenses thereof to be paid by the comptroller upon the requisition and

certificate of the commissioner of transportation and included in the

cost of the project and finally apportioned in the manner provided in

this section. Upon the completion of work undertaken pursuant to section

eighty-nine, ninety or ninety-one, the commissioner of transportation

shall cause the same to be inspected and if he approves, accept the work

and make an order certifying its completion.

6. Upon the completion of the work and its approval by the

commissioner of transportation an accounting shall be had between the

railroad corporation and the municipal corporation or the commissioner

of transportation of the amount expended by each with interest, and if

it shall appear that the railroad corporation or the municipal

corporation or the commissioner of transportation has expended more than

its or his proportion of the expense of the crossing as herein provided

a settlement shall be forthwith made in accordance with this section. At

any time after the work has commenced the commissioner of transportation

may, upon its own motion or upon the petition of the railroad

corporation or of any municipality interested, make an order for an

intermediate settlement and direct payments to be made in connection

therewith as in this section provided for a final accounting. All items

of expenditures shall be verified under oath. In case of a dispute

between the railroad corporation and the municipal corporation as to the

amount expended which dispute does not involve the nature or character

of the work performed, any judge of the supreme court in the judicial

district in which the municipality or the state or county highway is

situated may appoint a referee to take testimony as to the amount

expended, and the confirmation of the report of the referee shall be

final. In the event of the failure or refusal of the railroad

corporation to pay its proportion of the expense, the same with interest

from the date of such accounting may be levied and assessed upon the

railroad corporation and collected in the same manner that taxes and

assessments are now collected by the municipal corporations within which

the work is done; and in the event of failure or refusal of the

municipal corporation to pay its proportion of the expense an action may

be maintained by the railroad corporation for the collection of the same

with interest from the date of such accounting, or the railroad

corporation may offset such amount with interest against any taxes

levied or assessed against it or its property by such municipal

corporation.

7. In the event of the appropriation made by the state in any one year

being insufficient to pay the state's proportion of the expense of any

change that may be ordered the first payment from the appropriation of

the succeeding year shall be on account of said change, and no payment

shall be made on account of any subsequent change that may be ordered,

nor shall any subsequent change be ordered, until the obligation of the

state on account of the first named change in grade has been fully

discharged, unless the same shall be provided for by an additional

appropriation to be made by the legislature. The state's proportion of

the expense of changing any existing grade crossing or the structure of

any existing crossing above or below grade shall be paid from the state

treasury on the audit and warrant of the comptroller, to which shall be

appended the certificate of the commissioner of transportation to the

effect that the work has been properly performed and a statement showing

the situation of the crossing or structure that has been changed, the

total cost and the proportionate expense thereof; and the money shall be

paid in whole or in part to the railroad corporation or to the municipal

corporation as the commissioner of transportation may direct, subject,

however, to the rights of the respective parties as they appear from the

accounting or intermediate accounting to be had as hereinbefore provided

for.

8. No claim for damages to property on account of the change or

elimination of any crossing or change in structure or approaches under

this article shall be allowed unless notice of such claim is filed with

the commissioner of transportation within six months after completion of

the work necessary for such change or elimination.

9. Upon the acquisition of any railroad by the public, under the right

of eminent domain or by and under any statute providing for the

acquisition, use or operation thereof, any and all sums of money paid

and contributed by the state or any political subdivision thereof toward

the expense of constructing new crossings as in this article provided,

shall be credited, allowed and deducted in determining the value of such

property or the basis of computing or allowing compensation therefor.

10. In carrying out sections eighty-nine, ninety, and ninety-one, if a

railroad corporation, state department, agency or commission, public

authority or municipal corporation in which the work is located, desires

to make or cause to have made changes or additions which in the opinion

of the commissioner of transportation are not necessary to accomplish

the work, such changes or additions may be embodied in an order

containing findings specifying such changes or additions. Such order

shall state an estimated cost of such desired changes or additions and

the portions therefore chargeable respectively to the railroad

corporation or state department, agency or commission, public authority

or municipal corporation. Before any contract is let the state

department, agency or commission, public authority or municipal

corporation shall certify to the commissioner of transportation that the

necessary funds are available.

11. Notwithstanding any conflicting provisions of this chapter, a

railroad and a municipal corporation having jurisdiction may mutually

agree as to the allocation of their proportion of the expenses of:

construction and reconstruction of a new street, avenue, highway or road

or new portion or additional lane of a street, avenue, highway or road,

or county highway or county road deviating from the line of an existing

street, avenue, highway or road to be constructed at, above, or below

grade, across a steam surface railroad, including the cost of the

installation of automatic flashing light signals with automatic gates or

automatic flashing light signals alone and all accessories,

appurtenances and circuits; or the alteration in the manner which a

railroad crosses or is crossed by a street, avenue, highway or road at,

above, or below grade, including, its approaches, the method of

crossing, the location of the crossing, a change in the existing

structure by which such crossing is made, the closing and discontinuance

of a crossing and the diversion of the travel thereon to another street,

avenue, highway, road or crossing, or if not practicable to change such

crossing from grade, below grade or above grade or to close or

discontinue the same, the opening of an additional crossing for the

partial diversion of travel from the grade, below grade or above grade

crossing, and including the cost of the installation, alteration or

relocation of automatic flashing light signals with automatic gates or

automatic flashing light signals alone, and all accessories,

appurtenances and circuits, whether in connection with such construction

or otherwise.

The agreement shall not be entered into until a public hearing has

been held by the governing body of the municipal corporation involved.

Notice of the hearing shall be published at least once in at least one

newspaper having a general circulation within the municipal corporation.

The notice shall specify the time when and the place where the hearing

will be held, and describe in general terms the proposed agreement. The

first publication shall be at least ten days prior to the day specified

for the hearing.