§ 11-102 — Liability of utilities for compensation for damages caused by interfering with, or delaying the progress of work under state public const...

§ 11-102. Liability of utilities for compensation for damages caused\nby interfering with, or delaying the progress of work under state public\nconstruction contracts. 1. No utility shall interfere with, or delay the\nprogress of work under any contract with the state department, agency,\ndivision or board, for the construction, reconstruction or improvement\nof any highway, street, road, railroad grade crossing, bridge, tunnel,\nunderpass, overpass or other state contract work, by failing to remove\nor relocate its poles, wires, cables, conduits, pipes or any other\nfacilities or structures within the time schedule therefor by an\nagreement or under the terms of an agreement between the department,\nagency, division or board and the utility, or if no time is fixed by\nsuch an agreement or under the terms of such an agreement, within the\ntime fixed by the department, agency, division or board, by notice\nserved upon such utility by such state department, agency, division or\nboard.\n 2. If such notice is utilized, it shall describe the public\nimprovement and the geographical location thereof, the date of\ncommencement and the date of completion, if any, provided for by the\ncontract, the contractor's name and address, the manner in which and the\nextent to which the facilities and structures of the utility obstruct or\nprevent the contractor from progressing or performing the work\ncomprehended by the contract, and shall fix the date or time within such\nutility is required to remove or relocate its facilities or structures,\nspecifying the same, in order to provide the contractor with the site\nwhen required by the contractor for progressing or performing the work\npursuant to such state contract. Such notice shall be in writing and\nshall be served upon such utility either personally or by certified mail\nat its principal office or place of business in the county where the\nwork under such contract is to be performed, or, if there be no such\nprincipal office or place of business in such county, at the nearest\nprincipal office or place of business of such utility, outside of such\ncounty. In the event the utility to whom the aforesaid notice was\ndirected is for any reason unable, within the prescribed period, to\nremove or relocate said facilities or structures specified in the\nnotice, said utility shall immediately advise said department, agency,\ndivision or board and the contractor, in writing, of such inability, and\nin the same communication so advise said department, agency, division or\nboard, and the contractor of the approximate date that such removal or\nrelocation of facilities or structures could be effected; and shall\nfurther state the basis for the inability of said utility to remove or\nrelocate said facilities or structures within the time specified by the\nnotice served thereon by said department, agency, division or board. The\ndepartment, agency, division or board, after examining and considering\nthe utility's basis for establishing a different schedule for such\nremoval or relocation, shall, if such basis is reasonable, establish and\nnotify the utility of a revised schedule for completing such removal or\nrelocation.\n 3. In cases where the utility has been reimbursed for removal,\nrelocation, replacement or reconstruction pursuant to subdivision\ntwenty-four-b of section ten of the highway law, a utility failing to\ncomplete the removal or relocation of such structures or facilities\nwithin a period of thirty days beyond the time fixed therefor by the\nlatest time schedule established in accordance with this section, shall\nbe liable and responsible to any such contractor for any damages, direct\nor consequential, sustained by any such contractor as the result\nthereof, in an action to be brought by such contractor against such\nutility in a court of competent jurisdiction within two years from the\ntime fixed for the removal or relocation of such structures or\nfacilities. If an action is commenced against a utility, as heretofore\nprovided, said utility may interpose in its answer in such action any\ndefense available under the provisions of the civil practice law and\nrules. The unreasonableness of the time schedule imposed by the state\ndepartment, agency, division or board shall be an absolute defense by\nthe utility to any such action by the contractor. If, in any such\naction, the utility is found to owe nothing to the contractor, or if an\noffer of settlement is made by the utility which is not accepted by the\ncontractor and the resulting verdict against the utility is less than\nthe offer of settlement, then in either such event the total cost of the\nutility of litigation, including reasonable attorney's fees, shall be\npaid to the utility by the contractor.\n