NY State Assembly Bill 2009-A480

Assembly Bill A480

2009-2010 Legislative Session

Requires the state to defend and indemnify N.Y. city for property damage, personal injury and death that arise out of the maintenance and repair of state arterial highways

download bill text pdf

Archive: Last Bill Status - In Assembly Committee

Introduced
- In Committee Assembly
- In Committee Senate
- On Floor Calendar Assembly
- On Floor Calendar Senate
- Passed Assembly
- Passed Senate
Delivered to Governor
Signed By Governor

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Actions

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	Assembly Actions - Lowercase Senate Actions - UPPERCASE
Jan 06, 2010	referred to transportation
Jan 07, 2009	referred to transportation

2009-A480 (ACTIVE) - Details

Current Committee:: Assembly Transportation
Law Section:: Highway Law
Laws Affected:: Amd §349-c, Hway L
Versions Introduced in 2011-2012 Legislative Session:: A5833

2009-A480 (ACTIVE) - Summary

Requires the state of New York to defend and indemnify the city of New York for property damage, personal injury, and wrongful death claims that arise out of the maintenance and repair of state arterial highways.

2009-A480 (ACTIVE) - Sponsor Memo

                                BILL NUMBER:A480

TITLE  OF BILL:  An act to amend the highway law, in relation to liabil-
ity of the state  with  respect  to  maintenance  and  repair  of  state
arterial highways

PURPOSE:  This  bill  reverses  a decision of the Court of Appeals which
held that New York City was liable  for  damages  for  personal  injury,
property  damage  or wrongful death for losses arising from the perform-
ance of maintenance and repair  functions  on  State  arterial  highways
under  agreement with the State. As a result of this bill, New York City
will be treated exactly the same as  all  other  municipalities  in  the
State which have entered such agreements.

SUMMARY OF PROVISIONS: This bill amends subdivision 8-a of Section 349-c
of the Highway Law to require the State of New York to defend and indem-
nify  the  City  for property damage, personal injury, or wrongful death
claims that arise out of the  maintenance  and  repair  of  the  State's
arterial highways.

JUSTIFICATION: While the State arterial highways are owned by the State,
they  are  maintained  and repaired by the cities they run through under
agreements between the State  Commissioner  of  Transportation  and  the
cities. In order to relieve the municipalities of any liability incurred
as a result of damages for personal injury, injury to property or wrong-
ful  death  for  losses  arising  from  or  occasioned  by the manner of

performance of the functions under the  agreements,  the  State  enacted
subdivision  8-a of section 349-c of the highway law to hold the munici-
palities harmless.

A recent Court of Appeals case, City of New York v.  State of New  York,
98  N.Y.  2d  740  (2002),  held that, unlike every other city which had
entered into maintenance and repair agreements with the state, New  York
City  was not protected by the indemnification provisions of subdivision
8-a. As a result, New York City alone, among all the cities in the State
which have entered these agreements, faces exposure  to  tort  liability
for  the  quality of its work and subsequent personal injuries, property
injury and wrongful death.  There is no justification for this inequita-
ble treatment of New York City and this legislation will clearly provide
it with the same protections afforded to the other municipalities  which
have entered maintenance and repair agreements with NYS DOT.

LEGISLATIVE HISTORY:
2008:  A7523 (Kavanagh) - Transportation 2007: A7523 (Kavanagh) - Trans-
portation 2006: A6483 (Grannis) - Transportation
2005: A6483 (Grannis) - Transportation
2004: A8759 (Grannis) - Transportation
2003: A8759 (Grannis) - Transportation

FISCAL IMPACT ON THE STATE: Unknown

EFFECTIVE DATE: This act shall take effect immediately and  shall  apply
to all actions or proceedings commenced on or after such date.

2009-A480 (ACTIVE) - Bill Text download pdf

                            
                    S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                   480

                       2009-2010 Regular Sessions

                          I N  A S S E M B L Y

                               (PREFILED)

                             January 7, 2009
                               ___________

Introduced by M. of A. KAVANAGH, JAFFEE -- read once and referred to the
  Committee on Transportation

AN  ACT  to amend the highway law, in relation to liability of the state
  with respect to maintenance and repair of state arterial highways

  THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
BLY, DO ENACT AS FOLLOWS:

  Section  1.  Subdivision  8-a  of section 349-c of the highway law, as
added by chapter 568 of the laws of 1986, is amended to read as follows:
  8-a. (a) Except as provided hereafter the state  shall  indemnify  and
hold  harmless [such city] ANY CITY NAMED IN THIS ARTICLE, INCLUDING THE
CITY OF NEW YORK, for any and all liability  for  damages  for  personal
injury,  injury to property or wrongful death for losses arising from or
occasioned by the manner of  performance  of  the  functions  under  any
agreement  with  a city for the maintenance and repair of state arterial
highways pursuant to this section.
  (b) In no event shall the state be obligated to  defend  or  indemnify
such city, in any action, proceeding, claim or demand arising out of the
actual  operation  of  a vehicle or other equipment while engaged in the
operation of repair and maintenance under any such  agreement,  nor  any
action, proceeding, claim or demand arising out of services of lighting,
cleaning,  sweeping and sprinkling any such public street, main route or
thoroughfare or portions thereof nor any work on or in  connection  with
subsurface  installations  and structures that are owned and operated by
any city,  including  sanitary  sewers,  gas  mains,  water  lines,  and
conduits, and appurtenances thereto.
  (c)  [The  city] ANY CITY NAMED IN THIS ARTICLE, INCLUDING THE CITY OF
NEW YORK, shall be entitled to representation by the attorney general in
any claim described in paragraph  (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 deter-

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.

                                                           LBD00419-01-9

A. 480                              2

mines, based upon his investigation and review of the facts and  circum-
stances 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, INCLUDING
THE CITY OF NEW YORK, in the amount of  any  judgment  obtained  against
such  city in any state or federal court in any claim described in para-
graph (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.
  (e)  The  duty  to defend or indemnify and save harmless prescribed by
this subdivision shall be conditioned upon (i) delivery to the  attorney
general  or an assistant attorney general at an office of the department
of law in Albany or New York city and by delivery to the commissioner of
transportation or  his  designee  of  a  copy  of  any  claim,  summons,
complaint,  process,  notice,  demand  or other pleading within ten days
after such city is served with such document and (ii) the  full  cooper-
ation  of  the  city in the defense of such action, proceeding, claim or
demand and in the defense of any action,  proceeding,  claim  or  demand
against the state based upon the same act or omission, and in the prose-
cution of any appeal.
  (f)  The  benefits  of this subdivision shall inure only to such city,
INCLUDING THE CITY OF NEW YORK, and shall not enlarge  or  diminish  the
rights of any other party nor shall any provision of this subdivision be
construed  to  effect,  alter,  or  repeal any provision of the workers'
compensation law.
  (g) This subdivision shall not in any way affect the obligation of any
claimant to give notice to the state under section ten of the  court  of
claims act or any other provision of law.
  (h)  The  provisions  of  this  subdivision  shall not be construed to
impair, alter, limit or modify the rights and obligations of any insurer
under any insurance agreement.
  (i) Except as otherwise specifically provided in this subdivision, the
provisions of this subdivision shall not be  construed  in  any  way  to
impair,  alter, limit, modify, abrogate, or restrict any immunity avail-
able to or conferred upon any unit, entity, officer, or employee of  the
state  or city of any other level of government, or any right to defense
and indemnification provided for any governmental  officer  or  employee
by, in accordance with, or by reason of, any other provision of state or
federal statutory or common law.
  S  2.  This  act  shall take effect immediately and shall apply to all
actions or proceedings commenced on or after such date.

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