§ 12 — Commissioner to provide for maintenance, repair, and for control of snow and ice; roads and driveways on state lands

§ 12. Commissioner to provide for maintenance, repair, and for control\nof snow and ice; roads and driveways on state lands. 1. The maintenance\nand repair of improved state highways in towns and incorporated\nvillages, exclusive, however, of the cost of maintaining and repairing\nbridges having a span in excess of twenty feet shall be under the direct\nsupervision and control of the commissioner and he or she shall be\nresponsible therefor. The cost of such maintenance and repair shall be\nborne wholly by the state and be paid from moneys appropriated therefor\nby the legislature. Such maintenance and repair may be done in the\ndiscretion of the commissioner either directly by the department or by\ncontract awarded to the lowest responsible bidder at a public letting\nafter due advertisement, and under such rules and regulations as the\ncommissioner may prescribe. The commissioner shall also have the power\nto adopt such system as may seem expedient so that each section of such\nhighways shall be effectively and economically preserved, maintained and\nrepaired.\n 2. The maintenance of state highways shall include the control of snow\nand ice on such highways or any parts thereof, as the commissioner may\ndeem to be necessary to provide reasonable passage and movement of\nvehicles over such highways. The commissioner is authorized also to\nerect snow fences at suitable locations. The work of such control of\nsnow and ice may be done by any municipality which for the purposes of\nthis section shall include only a county, city, town or village. The\ngoverning board or body of any such municipality and the commissioner\nare hereby authorized to enter into an agreement for the performance of\nthe work of such control of snow and ice upon such terms, rules and\nregulations as may be deemed by the commissioner to be for the best\ninterest of the public. Such agreement may provide for periodic payments\nbased upon a percentage of the estimated total cost. Any agreement\nauthorized by this subdivision shall be for a term of up to five years\nand at the expiration of the year preceding the last year of the term\nspecified in the agreement, as such term may be extended as herein\nprovided, the municipality shall notify the commissioner either (a) that\nit requests, with the approval of the commissioner, that the term of the\nagreement be extended for a specified term of up to five years or (b) it\nintends not to extend the agreement and such agreement shall expire at\nthe end of the term. If the municipality fails to notify the\ncommissioner as herein provided, it shall be deemed that the\nmunicipality intends not to extend the agreement. Such agreement may be\nterminated during the specified term provided the municipality shall\nnotify the commissioner eighteen months prior to such termination. If\nany such agreement expires, a new agreement between the commissioner and\na municipality may be entered into for a term of up to five years, with\nextended term or terms upon notification as above provided. Whenever the\ncommissioner shall deem the work of control of snow and ice by any\nmunicipality to be inadequate or unsatisfactory according to the terms\nof any such agreement, he or she may, by official order to be filed in\nthe department, and by filing a certified copy thereof in the office of\nthe department of state, cancel said agreement, and the payments\nthereunder provided by the state shall cease; whereupon the commissioner\nmay carry out the work of control of snow and ice. The official order\nprovided in this subdivision shall become effective at the expiration of\nfive days after the commissioner shall mail a certified copy thereof to\nthe clerk or other official who performs related duties in such\nmunicipality. The governing board or body of any such municipality is\nauthorized to appropriate such sum as it deems necessary to enable such\nmunicipality to perform the terms of such agreement. The work of such\ncontrol of snow and ice may be done by any of the methods provided in\nsubdivision one of this section for the work of maintenance and repair,\nor by a combination of such methods. Any county is hereby authorized to\nenter into a contract with another municipality located within the same\ncounty for the performance of the work of such control of snow and ice\nas a subcontractor under any agreement with the commissioner as such\nagreement is hereinbefore provided. Moneys received by a county under\nthe terms of any agreement authorized by this subdivision shall be\ncredited to the fund from which moneys were appropriated to enable the\ncounty to perform the terms of such agreement. Moneys so received by a\ntown shall be credited to the highway fund. Moneys so received by a city\nor village shall be credited to the general fund.\n 2-a. (a) Except as provided hereafter the state shall indemnify and\nhold harmless such municipalities for any and all liability for damages\nfor personal injury, injury to property or wrongful death for losses\narising from or occasioned by the manner of performance of the functions\nunder any agreement with a municipality for the control of snow and ice\npursuant to this section.\n (b) In no event shall the state be obligated to defend or indemnify\nsuch municipality, in any action, proceeding, claim or demand arising\nout of the actual operation of an insured vehicle or vehicle subject to\nself-insurance while engaged in the operation of snow and ice control\nfunctions under such agreement.\n (c) The municipality shall be entitled to representation by the\nattorney general in any claim described in paragraph (a) of this\nsubdivision, provided, however, that the municipality shall be entitled\nto itself defend any such action, proceeding, claim or demand whenever\nthe attorney general determines, based upon his investigation and review\nof the facts and circumstances of the case that representation by the\nattorney general would be inappropriate, or whenever a court of\ncompetent jurisdiction determines that a conflict of interest exists and\nthat the municipality is entitled to be separately represented. Whenever\nthe municipality is entitled to defend the action itself, the state\nshall reimburse the municipality for any and all costs and expenses,\nincluding, but not limited to, counsel fees and disbursements.\n (d) The state shall indemnify and save harmless such municipality in\nthe amount of any judgment obtained against such municipality in any\nstate or federal court on any claim described in paragraph (a) of this\nsubdivision, or in the amount of any settlement of such claim, or shall\npay such judgment or settlement; provided, however, that the act or\nomission from which such judgment or settlement arose occurred while the\nmunicipality was acting within the scope of its functions for control of\nsnow and ice; provided, further, that no stipulation of settlement of\nany such action, proceeding, claim or demand shall be made or executed\nwithout approval of the attorney general and of the commissioner or his\ndesignee. Payment of any claim made pursuant to settlement shall not\nexceed the sum of fifty thousand dollars. Nothing herein shall authorize\nthe state to indemnify or save harmless with respect to punitive or\nexemplary damages.\n (e) The duty to defend or indemnify and save harmless prescribed by\nthis subdivision shall be conditioned upon (i) delivery to the attorney\ngeneral or an assistant attorney general at the office of the department\nof law located in Albany or New York city and by delivery to the\ncommissioner or his designee a copy of any claim, summons, complaint,\nprocess, notice, demand or other pleading within ten days after such\nmunicipality is served with such document and (ii) the full cooperation\nof the municipality in the defense of such action, proceeding, claim or\ndemand and in the defense of any action, proceeding, claim or demand\nagainst the state based upon the same act or omission, and in the\nprosecution of any appeal.\n (f) The benefits of this subdivision shall inure only to such\nmunicipalities and shall not enlarge or diminish the rights of any other\nparty nor shall any provision of this subdivision be construed to\neffect, alter or repeal any provision of the workers' compensation law.\n (g) This subdivision shall not in any way affect the obligation of any\nclaimant to give notice to the state under section ten of the court of\nclaims act or any other provision of law.\n (h) The provisions of this subdivision shall not be construed to\nimpair, alter, limit or modify the rights and obligations of any insurer\nunder any insurance agreement.\n (i) Except as otherwise specifically provided in this subdivision, the\nprovisions of this subdivision shall not be construed in any way to\nimpair, alter, limit, modify, abrogate or restrict any immunity\navailable to or conferred upon any unit, entity, officer or employee of\nthe state or municipality or any other level of government, or any right\nto defense and indemnification provided for any governmental officer or\nemployee by, in accordance with, or by reason of, any other provision of\nstate or federal statutory or common law.\n 3. The commissioner shall have the power to purchase (a) materials for\nsuch maintenance and repair, except where such work is done by contract,\nand to contract for the delivery thereof at convenient intervals along\nsuch highways, and (b) equipment and appliances that he may deem\nnecessary to carry out the provisions of this section. Any municipality,\nacting by and through its authorized official, is hereby empowered to\nrent its machinery, tools, equipment, and storage space, to the state,\nacting by and through the commissioner, for the purpose of such control\nof snow and ice upon such terms and at such rate as may be agreed\nbetween the municipality and the commissioner. Notwithstanding the\nprovisions of any general, special or local law or of any charter, the\ngoverning board or body of any such municipality is hereby authorized to\nsell such machinery, tools and equipment to the state, acting by and\nthrough the commissioner, for the purposes of this section and without\ncompetitive bidding or other limitation or restriction provided in any\ngeneral, special or local law or of any charter, and the commissioner,\nmay, upon approval by the state comptroller and the state commissioner\nof general services, purchase such machinery, tools and equipment from\nany such municipality as herein provided.\n 4. Whenever funds therefor are made available, the commissioner shall\nhave power to acquire for the state, by purchase, or by appropriation\nthrough the procedure described in section thirty of this chapter,\nproperty for the purpose of storing, maintaining or processing\nconstruction and maintenance supplies, material or equipment and for the\npurpose of providing, erecting and maintaining offices for department\npersonnel and structures for storing, maintaining or processing\nconstruction and maintenance materials or equipment.\n 5. Whenever a state highway has been constructed at a greater width\nthan that provided in the original plans, upon petition of a village, as\nprovided in sections forty-six and forty-seven of this chapter, or upon\npetition of a town or county, as provided in sections forty-eight,\nforty-nine, or fifty-nine of this chapter, or whenever such highway has\nbeen widened by a town or county under a permit granted as provided in,\nor under conditions and regulations prescribed pursuant to section\nfifty-two of this chapter, the additional width of pavement shall be\ndeemed to be a part of the highway and shall be maintained by the\ncommissioner as provided herein, but in no case where any such highway\nhas been widened as provided above, shall the state be responsible for\nthe maintenance of any curb or of any paved gutter or paved shoulder,\nprovided, however, that on any highway maintained by the state the\ncommissioner shall have authority to clean any pavement or paved gutter\nor repair any unpaved shoulder or unpaved gutter outside of the pavement\nmaintained by the state, where necessary for the protection of such\npavement.\n 6. Whenever the head of any state department having jurisdiction or\ncontrol over lands owned and occupied by the state, requests the\ncommissioner to maintain and to repair any road and driveway which is\nlocated on, over and across such lands, the commissioner is,\nnotwithstanding the provisions of any general, special or local law,\nauthorized to grant such request by his official order therefor. Such\nofficial order shall contain a general description of any such road and\ndriveway. A certified copy of such official order shall be filed by the\ncommissioner in the office of (a) the state department having\njurisdiction or control over such lands, and (b) the department of audit\nand control. Thereupon any such road and driveway shall be maintained\nand repaired under the direct supervision and control of the\ncommissioner in the same manner as is provided in this section for the\nmaintenance and repair of improved state highways in towns and in\nincorporated villages.\n 7. Whenever the head of any state department, agency, institution or\npublic benefit corporation having jurisdiction or control over the lands\nowned and occupied by the state or such department, agency, institution\nor public benefit corporation requests the commissioner to construct,\nreconstruct, and/or maintain any loop or peripheral roadway which is or\nis to be located on, around, over, or across such lands, notwithstanding\nthe provisions of any general, special or local law, the commissioner is\nauthorized to grant such request and undertake such construction,\nreconstruction and/or maintenance. Before undertaking the work of\nconstruction, reconstruction and/or maintenance of such roadways, the\ncommissioner and the head of the state department, agency, institution\nor public benefit corporation shall enter into a written agreement,\nsubject to the approval of the director of the budget, providing the\nfunds therefor, or reimbursement by such state department, agency,\ninstitution or public benefit corporation of the funds therefor,\nincluding all costs incurred by the department in connection with such\nconstruction, reconstruction and/or maintenance. Where such loop or\nperipheral roadway is to be constructed, reconstructed and/or maintained\non lands occupied by either the state university of New York or the\nstate university construction fund, both the state university of New\nYork and the state university construction fund shall be parties to such\nagreement. Such roadway shall be constructed, or reconstructed, to\nmutually agreeable standards, in the same manner as state highways are\nconstructed or reconstructed pursuant to this chapter. The maintenance\nof such roadway shall be in the same manner as provided for state\nhighways in this chapter. If such a maintenance agreement extends for a\nperiod greater than one year, the funds shall be made available for, or\nreimbursed, on an annual basis. The head of such state department,\nagency, institution or public benefit corporation may terminate such\nmaintenance agreement upon six months written notice to the commissioner\nmaking provision for the department to be reimbursed for all costs\nincurred by such department up to such termination date. In connection\nwith the maintenance of such a roadway the commissioner shall cause an\nofficial order to be issued therefor. Such official order shall contain\na general description of such roadway. A certified copy of such official\norder shall be filed by the commissioner in the office of the head of\nthe state department, agency, institution or public benefit corporation\nmaking such request for maintenance and with the department of audit and\ncontrol.\n