§ 765 — Penalties and liabilities

§ 765. Penalties and liabilities. 1. Civil penalties. a. Failure to\ncomply with any provision of this article shall subject an excavator or\nan operator to a civil penalty of up to four thousand three hundred\nseventy-five dollars for the first violation and up to an additional\nseventeen thousand five hundred dollars for each succeeding violation\nthat occurs within a twelve month period.\n b. The penalties provided for by this article shall not apply to an\nexcavator who damages an underground facility due to the failure of the\noperator to comply with any of the provisions of this article nor shall\nin such instance the excavator be liable for repairs as prescribed in\nsubdivision four of this section.\n c. An action to recover a penalty under this article may be brought in\nthe supreme court in the judicial district in which the violation was\nalleged to have occurred which shall be commenced and prosecuted by the\nattorney general. The public service commission shall, pursuant to\nsection one hundred nineteen-b of the public service law, forward to the\nattorney general its determination of the amount of the penalty for\nviolations or rules and regulations adopted to implement the\nrequirements of this article. Upon receipt of such determination, the\nattorney general may commence an action to recover such penalty. All\nmoneys recovered in any such action, together with the costs thereof,\nand all moneys recovered as the result of any such public service\ncommission determination shall be paid into the environmental protection\nfund established pursuant to section ninety-two-s of the state finance\nlaw.\n 2. Except as otherwise provided in this subdivision, nothing in this\narticle shall impair, limit or reduce the statutory, common law or\ncontractual duties or tort or other liability of any excavator\nexcavating or demolishing in the vicinity of underground facilities.\n 3. Any excavator engaging in or proposing to engage in excavation or\ndemolition in a negligent or unsafe manner, which has resulted in or is\nlikely to result in damage to underground facilities in such a manner\nthat life, property or the continuation of operator service is\nendangered, may be enjoined from such excavation or demolition or any\naspect thereof upon application of the operator owning the facilities or\nthe attorney general made in supreme court having jurisdiction in the\ncounty wherein the excavation or demolition or proposed excavation or\ndemolition is to take place. Three or more instances of damage by an\nexcavator to underground facilities in the course of the entire\nself-same excavation or demolition activity shall be prima facie grounds\nfor enjoining the excavator from further performance of the excavation\nor demolition activity.\n 4. In the event that, as a result of a violation of any of the\nprovisions of this article by an excavator, it is necessary that an\noperator make any repair to or provide new support to an underground\nfacility, the excavator shall be liable to the operator for reasonable\ncosts so incurred.\n