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.