City of New York v. State

282 A.D.2d 134, 725 N.Y.S.2d 10, 2001 N.Y. App. Div. LEXIS 4399
CourtAppellate Division of the Supreme Court of the State of New York
DecidedMay 1, 2001
StatusPublished
Cited by5 cases

This text of 282 A.D.2d 134 (City of New York v. State) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
City of New York v. State, 282 A.D.2d 134, 725 N.Y.S.2d 10, 2001 N.Y. App. Div. LEXIS 4399 (N.Y. Ct. App. 2001).

Opinion

OPINION OF THE COURT

Nardelli, J.

In this appeal, we are called upon to address a narrow issue of statutory construction, specifically, whether the term “such city” as set forth within the provisions of section 349-c (8-a) of the Highway Law was intended by the Legislature to include the City of New York.

The Statutory Scheme

Article XII-B of the Highway Law (§ 349-b et seq.) was enacted in 1944 in order to create a Statewide system to administer State and federal funds earmarked for the construction and modernization of State arterial highways (see, Highway Law § 349-b; Nowlin v City of New York, 81 NY2d 81, 86). A State arterial highway has been defined as a highway which runs through a locality and connects it to the State highway system (Nowlin v City of New York, supra, at 86). The Legislature substantially amended article XII-B in 1945 (L 1945, ch 619) to authorize the construction of arterial highways in cities and specifically delineated certain New York City routes as part of the arterial system.1

Section 349-c (7) of the Highway Law, which was originally enacted in 1948, authorizes the New York State Commissioner of Transportation to “enter into a written agreement [with any city named in article XII-B] for the maintenance and repair” of State arterial highways passing through that city which were constructed, in whole or in part, with federal funds. The Department of Transportation has since entered into arterial highway maintenance and repair agreements (the agreements) with various cities across the State, including New York City.

The agreements, with some variance not relevant herein, provide that the city is to perform, or engage a contractor to [136]*136perform, maintenance and repair on State arterial highways and that the State would thereafter provide compensation to the city at a rate based upon the area of the highways covered by the particular agreement. The agreements between the State and the cities, with the exception of the City of New York, have also incorporated the following clause since at least 1962:

“Article VII. GENERAL LIABILITY INSURANCE
“The State shall furnish without expense to the City, general liability insurance with respect to the existence, maintenance and repair of the arterial highways, and the insurance policy shall cover the interests of the State, the Commissioner and the city in the performance of this agreement, and shall also cover the State, Commissioner and the City for protective liability with respect to work or operations performed by a contractor of the City.” (Emphasis added.)

The City of New York has provided for the maintenance and repair of the arterial highways passing through its borders since 1952 pursuant to an agreement with the State which has been amended on several occasions. That agreement, however, has quite relevantly never contained a provision requiring the State to provide liability insurance for the City of New York, or to indemnify it in any manner.

The Current Amendment

In October 1985, the State unexpectedly found that it was unable to procure liability insurance to cover those municipalities it was obligated to cover pursuant to the aforementioned agreements. As a result, legislation was proposed which gave the New York State Attorney General (the Attorney General) the power to appear and defend the interests of the State. The proposed legislation also made clear that the State would indemnify and save harmless the municipalities. That legislation was enacted in 1986 as subdivision (8-a) of Highway Law § 349-c and provides, in pertinent part:

“(a) Except as provided hereafter the state shall indemnify and hold harmless such city for any and all liability for damages for personal injury, injury to property or wrongful death for losses * * *
“(c) The city shall be entitled to representation by the attorney general in any claim described in [137]*137paragraph (a) of this subdivision, provided, however, that the city 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 city 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 city in the amount of any judgment obtained against such city in any state or federal court in 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 city was acting within the scope of its functions for maintenance and repair of state arterial highways; 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 of transportation 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.” (Emphasis added.)

The City of New York (hereinafter referred to as the City) first demanded that the State defend and indemnify it pursuant to Highway Law § 349-c (8-a) in 1992, approximately six years after the enactment of the legislation. Those requests were declined. In 1996, the City sent notice to the Attorney General of 12 additional tort claims involving personal injury, damage to property, and/or wrongful death arising out of incidents which occurred on various State arterial highways located within the City’s borders. The City, pursuant to subdivision (8-a), demanded that the Attorney General represent the [138]*138City and provide a defense to the claims, and that the State indemnify it for any losses.

The State agreed to defend the City with regard to two of the claims, pursuant to Highway Law § 12 (2-a),2 which implicates the State’s obligation to indemnify municipalities for tort claims arising from the municipalities’ performance, under agreements with the State, for the control of snow and ice on State highways. The State contends that nothing in the legislative history of section 12 (2-a) of the Highway Law indicates that the City was to be excluded from coverage. Moreover, the Attorney General emphasized that the State’s prior agreements with the City for the control of snow and ice on the City’s arterial highways contain the same indemnification and representation clauses as do the State’s agreements with other municipalities.

The State, however, declined to acquiesce to the City’s demands to provide a defense or indemnify the City with regard to the remaining 10 claims.

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Bluebook (online)
282 A.D.2d 134, 725 N.Y.S.2d 10, 2001 N.Y. App. Div. LEXIS 4399, Counsel Stack Legal Research, https://law.counselstack.com/opinion/city-of-new-york-v-state-nyappdiv-2001.