§ 1180-H*2 — Owner liability for failure of operator to comply with certain posted maximum speed limits; city of Schenectady

* § 1180-h. Owner liability for failure of operator to comply with\ncertain posted maximum speed limits; city of Schenectady. (a) 1.\nNotwithstanding any other provision of law, the city of Schenectady is\nhereby authorized to establish a demonstration program imposing monetary\nliability on the owner of a vehicle for failure of an operator thereof\nto comply with posted maximum speed limits in a school speed zone within\nsuch city (i) when a school speed limit is in effect as provided in\nparagraphs one and two of subdivision (c) of section eleven hundred\neighty of this article or (ii) when other speed limits are in effect as\nprovided in subdivision (b), (d), (f) or (g) of section eleven hundred\neighty of this article during the following times: (A) on school days\nduring school hours and one hour before and one hour after the school\nday, and (B) a period during student activities at the school and up to\nthirty minutes immediately before and up to thirty minutes immediately\nafter such student activities. Such demonstration program shall empower\nthe city of Schenectady to install photo speed violation monitoring\nsystems within no more than twenty school speed zones within such city\nat any one time and to operate such systems within such zones (iii) when\na school speed limit is in effect as provided in paragraphs one and two\nof subdivision (c) of section eleven hundred eighty of this article or\n(iv) when other speed limits are in effect as provided in subdivision\n(b), (d), (f) or (g) of section eleven hundred eighty of this article\nduring the following times: (A) on school days during school hours and\none hour before and one hour after the school day, and (B) a period\nduring student activities at the school and up to thirty minutes\nimmediately before and up to thirty minutes immediately after such\nstudent activities. In selecting a school speed zone in which to install\nand operate a photo speed violation monitoring system, the city shall\nconsider criteria including, but not limited to, the speed data, crash\nhistory, and the roadway geometry applicable to such school speed zone.\n 2. No photo speed violation monitoring system shall be used in a\nschool speed zone unless (i) on the day it is to be used it has\nsuccessfully passed a self-test of its functions; and (ii) it has\nundergone an annual calibration check performed pursuant to paragraph\nfour of this subdivision. The city shall install signs giving notice\nthat a photo speed violation monitoring system is in use to be mounted\non advance warning signs notifying motor vehicle operators of such\nupcoming school speed zone and/or on speed limit signs applicable within\nsuch school speed zone, in conformance with standards established in the\nMUTCD.\n 3. Operators of photo speed violation monitoring systems shall have\ncompleted training in the procedures for setting up, testing, and\noperating such systems. Each such operator shall complete and sign a\ndaily set-up log for each such system that the operator operates that\n(i) states the date and time when, and the location where, the system\nwas set up that day, and (ii) states that such operator successfully\nperformed, and the system passed, the self-tests of such system before\nproducing a recorded image that day. The city shall retain each such\ndaily log until the later of the date on which the photo speed violation\nmonitoring system to which it applies has been permanently removed from\nuse or the final resolution of all cases involving notices of liability\nissued based on photographs, microphotographs, videotape or other\nrecorded images produced by such system.\n 4. Each photo speed violation monitoring system shall undergo an\nannual calibration check performed by an independent calibration\nlaboratory which shall issue a signed certificate of calibration. The\ncity shall keep each such annual certificate of calibration on file\nuntil the final resolution of all cases involving a notice of liability\nissued during such year which were based on photographs,\nmicrophotographs, videotape or other recorded images produced by such\nphoto speed violation monitoring system.\n 5. (i) Such demonstration program shall utilize necessary technologies\nto ensure, to the extent practicable, that photographs,\nmicrophotographs, videotape or other recorded images produced by such\nphoto speed violation monitoring systems shall not include images that\nidentify the driver, the passengers, or the contents of the vehicle.\nProvided, however, that no notice of liability issued pursuant to this\nsection shall be dismissed solely because such a photograph,\nmicrophotograph, videotape or other recorded image allows for the\nidentification of the driver, the passengers, or the contents of\nvehicles where the city shows that it made reasonable efforts to comply\nwith the provisions of this paragraph in such case.\n (ii) Photographs, microphotographs, videotape or any other recorded\nimage from a photo speed violation monitoring system shall be for the\nexclusive use of the city for the purpose of the adjudication of\nliability imposed pursuant to this section and of the owner receiving a\nnotice of liability pursuant to this section, and shall be destroyed by\nthe city upon the final resolution of the notice of liability to which\nsuch photographs, microphotographs, videotape or other recorded images\nrelate, or one year following the date of issuance of such notice of\nliability, whichever is later. Notwithstanding the provisions of any\nother law, rule or regulation to the contrary, photographs,\nmicrophotographs, videotape or any other recorded image from a photo\nspeed violation monitoring system shall not be open to the public, nor\nsubject to civil or criminal process or discovery, nor used by any court\nor administrative or adjudicatory body in any action or proceeding\ntherein except that which is necessary for the adjudication of a notice\nof liability issued pursuant to this section, and no public entity or\nemployee, officer or agent thereof shall disclose such information,\nexcept that such photographs, microphotographs, videotape or any other\nrecorded images from such systems:\n (A) shall be available for inspection and copying and use by the motor\nvehicle owner and operator for so long as such photographs,\nmicrophotographs, videotape or other recorded images are required to be\nmaintained or are maintained by such public entity, employee, officer or\nagent; and\n (B) (1) shall be furnished when described in a search warrant issued\nby a court authorized to issue such a search warrant pursuant to article\nsix hundred ninety of the criminal procedure law or a federal court\nauthorized to issue such a search warrant under federal law, where such\nsearch warrant states that there is reasonable cause to believe such\ninformation constitutes evidence of, or tends to demonstrate that, a\nmisdemeanor or felony offense was committed in this state or another\nstate, or that a particular person participated in the commission of a\nmisdemeanor or felony offense in this state or another state, provided,\nhowever, that if such offense was against the laws of another state, the\ncourt shall only issue a warrant if the conduct comprising such offense\nwould, if occurring in this state, constitute a misdemeanor or felony\nagainst the laws of this state; and\n (2) shall be furnished in response to a subpoena duces tecum signed by\na judge of competent jurisdiction and issued pursuant to article six\nhundred ten of the criminal procedure law or a judge or magistrate of a\nfederal court authorized to issue such a subpoena duces tecum under\nfederal law, where the judge finds and the subpoena states that there is\nreasonable cause to believe such information is relevant and material to\nthe prosecution, or the defense, or the investigation by an authorized\nlaw enforcement official, of the alleged commission of a misdemeanor or\nfelony in this state or another state, provided, however, that if such\noffense was against the laws of another state, such judge or magistrate\nshall only issue such subpoena if the conduct comprising such offense\nwould, if occurring in this state, constitute a misdemeanor or felony in\nthis state; and\n (3) may, if lawfully obtained pursuant to this clause and clause (A)\nof this subparagraph and otherwise admissible, be used in such criminal\naction or proceeding.\n (b) If the city of Schenectady establishes a demonstration program\npursuant to subdivision (a) of this section, the owner of a vehicle\nshall be liable for a penalty imposed pursuant to this section if such\nvehicle was used or operated with the permission of the owner, express\nor implied, within a school speed zone in violation of subdivision (c)\nor during the times authorized pursuant to subdivision (a) of this\nsection in violation of subdivision (b), (d), (f) or (g) of section\neleven hundred eighty of this article, such vehicle was traveling at a\nspeed of more than ten miles per hour above the posted speed limit in\neffect within such school speed zone, and such violation is evidenced by\ninformation obtained from a photo speed violation monitoring system;\nprovided however that no owner of a vehicle shall be liable for a\npenalty imposed pursuant to this section where the operator of such\nvehicle has been convicted of the underlying violation of subdivision\n(b), (c), (d), (f) or (g) of section eleven hundred eighty of this\narticle.\n (c) For purposes of this section, the following terms shall have the\nfollowing meanings:\n 1. "manual on uniform traffic control devices" or "MUTCD" shall mean\nthe manual and specifications for a uniform system of traffic control\ndevices maintained by the commissioner of transportation pursuant to\nsection sixteen hundred eighty of this chapter;\n 2. "owner" shall have the meaning provided in article two-B of this\nchapter;\n 3. "photo speed violation monitoring system" shall mean a vehicle\nsensor installed to work in conjunction with a speed measuring device\nwhich automatically produces two or more photographs, two or more\nmicrophotographs, a videotape or other recorded images of each vehicle\nat the time it is used or operated in a school speed zone in violation\nof subdivision (b), (c), (d), (f) or (g) of section eleven hundred\neighty of this article in accordance with the provisions of this\nsection; and\n 4. "school speed zone" shall mean a distance not to exceed one\nthousand three hundred twenty feet on a highway passing a school\nbuilding, entrance or exit of a school abutting on the highway.\n (d) A certificate, sworn to or affirmed by a technician employed by\nthe city of Schenectady, or a facsimile thereof, based upon inspection\nof photographs, microphotographs, videotape or other recorded images\nproduced by a photo speed violation monitoring system, shall be prima\nfacie evidence of the facts contained therein. Any photographs,\nmicrophotographs, videotape or other recorded images evidencing such a\nviolation shall include at least two date and time stamped images of the\nrear of the motor vehicle that include the same stationary object near\nthe motor vehicle and shall be available for inspection reasonably in\nadvance of and at any proceeding to adjudicate the liability for such\nviolation pursuant to this section.\n (e) An owner liable for a violation of subdivision (b), (c), (d), (f)\nor (g) of section eleven hundred eighty of this article pursuant to a\ndemonstration program established pursuant to this section shall be\nliable for monetary penalties in accordance with a schedule of fines and\npenalties to be promulgated by the parking violations bureau of the city\nof Schenectady. The liability of the owner pursuant to this section\nshall not exceed fifty dollars for each violation; provided, however,\nthat such parking violations bureau may provide for an additional\npenalty not in excess of twenty-five dollars for each violation for the\nfailure to respond to a notice of liability within the prescribed time\nperiod.\n (f) An imposition of liability under the demonstration program\nestablished pursuant to this section shall not be deemed a conviction as\nan operator and shall not be made part of the operating record of the\nperson upon whom such liability is imposed nor shall it be used for\ninsurance purposes in the provision of motor vehicle insurance coverage.\n (g) 1. A notice of liability shall be sent by first class mail to each\nperson alleged to be liable as an owner for a violation of subdivision\n(b), (c), (d), (f) or (g) of section eleven hundred eighty of this\narticle pursuant to this section, within fourteen business days if such\nowner is a resident of this state and within forty-five business days if\nsuch owner is a non-resident. Personal delivery on the owner shall not\nbe required. A manual or automatic record of mailing prepared in the\nordinary course of business shall be prima facie evidence of the facts\ncontained therein.\n 2. A notice of liability shall contain the name and address of the\nperson alleged to be liable as an owner for a violation of subdivision\n(b), (c), (d), (f) or (g) of section eleven hundred eighty of this\narticle pursuant to this section, the registration number of the vehicle\ninvolved in such violation, the location where such violation took\nplace, the date and time of such violation, the identification number of\nthe camera which recorded the violation or other document locator\nnumber, at least two date and time stamped images of the rear of the\nmotor vehicle that include the same stationary object near the motor\nvehicle, and the certificate charging the liability.\n 3. The notice of liability shall contain information advising the\nperson charged of the manner and the time in which the person may\ncontest the liability alleged in the notice. Such notice of liability\nshall also contain a prominent warning to advise the person charged that\nfailure to contest in the manner and time provided shall be deemed an\nadmission of liability and that a default judgment may be entered\nthereon.\n 4. The notice of liability shall be prepared and mailed by the city of\nSchenectady, or by any other entity authorized by the city to prepare\nand mail such notice of liability.\n (h) Adjudication of the liability imposed upon owners of this section\nshall be by the city of Schenectady parking violations bureau.\n (i) If an owner receives a notice of liability pursuant to this\nsection for any time period during which the vehicle or the number plate\nor plates of such vehicle was reported to the police department as\nhaving been stolen, it shall be a valid defense to an allegation of\nliability for a violation of subdivision (b), (c), (d), (f) or (g) of\nsection eleven hundred eighty of this article pursuant to this section\nthat the vehicle or the number plate or plates of such vehicle had been\nreported to the police as stolen prior to the time the violation\noccurred and had not been recovered by such time. For purposes of\nasserting the defense provided by this subdivision, it shall be\nsufficient that a certified copy of the police report on the stolen\nvehicle or number plate or plates of such vehicle be sent by first class\nmail to the city of Schenectady parking violations bureau or by any\nother entity authorized by the city to prepare and mail such notice of\nliability.\n (j) Adjudication of the liability imposed upon owners of this section\nshall be by the city of Schenectady parking violations bureau.\n (k) 1. An owner who is a lessor of a vehicle to which a notice of\nliability was issued pursuant to subdivision (g) of this section shall\nnot be liable for the violation of subdivision (b), (c), (d), (f) or (g)\nof section eleven hundred eighty of this article pursuant to this\nsection, provided that:\n (i) prior to the violation, the lessor has filed with such parking\nviolations bureau in accordance with the provisions of section two\nhundred thirty-nine of this chapter; and\n (ii) within thirty-seven days after receiving notice from such bureau\nof the date and time of a liability, together with the other information\ncontained in the original notice of liability, the lessor submits to\nsuch bureau the correct name and address of the lessee of the vehicle\nidentified in the notice of liability at the time of such violation,\ntogether with such other additional information contained in the rental,\nlease or other contract document, as may be reasonably required by such\nbureau pursuant to regulations that may be promulgated for such purpose.\n 2. Failure to comply with subparagraph (ii) of paragraph one of this\nsubdivision shall render the owner liable for the penalty prescribed in\nthis section.\n 3. Where the lessor complies with the provisions of paragraph one of\nthis subdivision, the lessee of such vehicle on the date of such\nviolation shall be deemed to be the owner of such vehicle for purposes\nof this section, shall be subject to liability for such violation\npursuant to this section and shall be sent a notice of liability\npursuant to subdivision (g) of this section.\n (l) 1. If the owner liable for a violation of subdivision (c) or (d)\nof section eleven hundred eighty of this article pursuant to this\nsection was not the operator of the vehicle at the time of the\nviolation, the owner may maintain an action for indemnification against\nthe operator.\n 2. Notwithstanding any other provision of this section, no owner of a\nvehicle shall be subject to a monetary fine imposed pursuant to this\nsection if the operator of such vehicle was operating such vehicle\nwithout the consent of the owner at the time such operator operated such\nvehicle in violation of subdivision (b), (c), (d), (f) or (g) of section\neleven hundred eighty of this article. For purposes of this subdivision\nthere shall be a presumption that the operator of such vehicle was\noperating such vehicle with the consent of the owner at the time such\noperator operated such vehicle in violation of subdivision (b), (c),\n(d), (f) or (g) of section eleven hundred eighty of this article.\n (m) Nothing in this section shall be construed to limit the liability\nof an operator of a vehicle for any violation of subdivision (c) or (d)\nof section eleven hundred eighty of this article.\n (n) If the city adopts a demonstration program pursuant to subdivision\n(a) of this section it shall conduct a study and submit an annual report\non the results of the use of photo devices to the governor, the\ntemporary president of the senate and the speaker of the assembly on or\nbefore the first day of June next succeeding the effective date of this\nsection and on the same date in each succeeding year in which the\ndemonstration program is operable. Such report shall include:\n 1. the locations where and dates when photo speed violation monitoring\nsystems were used;\n 2. the aggregate number, type and severity of crashes, fatalities,\ninjuries and property damage reported within all school speed zones\nwithin the city, to the extent the information is maintained by the\ndepartment of motor vehicles of this state;\n 3. the aggregate number, type and severity of crashes, fatalities,\ninjuries and property damage reported within school speed zones where\nphoto speed violation monitoring systems were used, to the extent the\ninformation is maintained by the department of motor vehicles of this\nstate;\n 4. the number of violations recorded within all school speed zones\nwithin the city, in the aggregate on a daily, weekly and monthly basis;\n 5. the number of violations recorded within each school speed zone\nwhere a photo speed violation monitoring system is used, in the\naggregate on a daily, weekly and monthly basis;\n 6. the number of violations recorded within all school speed zones\nwithin the city that were:\n (i) more than ten but not more than twenty miles per hour over the\nposted speed limit;\n (ii) more than twenty but not more than thirty miles per hour over the\nposted speed limit;\n (iii) more than thirty but not more than forty miles per hour over the\nposted speed limit; and\n (iv) more than forty miles per hour over the posted speed limit;\n 7. the number of violations recorded within each school speed zone\nwhere a photo speed violation monitoring system is used that were:\n (i) more than ten but not more than twenty miles per hour over the\nposted speed limit;\n (ii) more than twenty but not more than thirty miles per hour over the\nposted speed limit;\n (iii) more than thirty but not more than forty miles per hour over the\nposted speed limit; and\n (iv) more than forty miles per hour over the posted speed limit;\n 8. the total number of notices of liability issued for violations\nrecorded by such systems;\n 9. the number of fines and total amount of fines paid after the first\nnotice of liability issued for violations recorded by such systems;\n 10. the number of violations adjudicated and the results of such\nadjudications including breakdowns of dispositions made for violations\nrecorded by such systems;\n 11. the total amount of revenue realized by the city in connection\nwith the program;\n 12. the expenses incurred by the city in connection with the program;\nand\n 13. the quality of the adjudication process and its results.\n (o) It shall be a defense to any prosecution for a violation of\nsubdivision (b), (c), (d), (f) or (g) of section eleven hundred eighty\nof this article pursuant to this section that such photo speed violation\nmonitoring system was malfunctioning at the time of the alleged\nviolation.\n * NB Repealed December 31, 2030\n * NB There are 3 § 1180-h's\n