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

                                   746

                       2009-2010 Regular Sessions

                          I N  A S S E M B L Y

                               (PREFILED)

                             January 7, 2009
                               ___________

Introduced by M. of A. KAVANAGH -- read once and referred to the Commit-
  tee on Transportation

AN  ACT  to  amend  the  vehicle  and  traffic law, in relation to owner
  liability for obstruction of intersections and authorizing the use  of
  photo monitoring devices

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

  Section 1. Section 1111-a of the vehicle and traffic law, as added  by
chapter  746  of  the laws of 1988, subdivisions (a), (b), (c), (d), (k)
and (m) as amended and subdivision (n) as added by chapter  658  of  the
laws  of 2006 and paragraph (e) as amended by chapter 479 of the laws of
1994, is amended to read as follows:
  S 1111-a. Owner liability for  failure  of  operator  to  comply  with
[traffic-control  indications]  CERTAIN  TRAFFIC LAWS.   (a) 1. Notwith-
standing any other provision of law, each city with a population of  one
million  or more is hereby authorized and empowered to adopt and amend a
local law or ordinance establishing  a  demonstration  program  imposing
monetary  liability on the owner of a vehicle for failure of an operator
thereof to comply with  [traffic-control  indications]  CERTAIN  TRAFFIC
LAWS  in  such  city  in accordance with the provisions of this section.
Such demonstration program shall empower a city to install  and  operate
traffic-control  signal  photo  violation-monitoring  devices at no more
than one hundred intersections within such city at any one time.
  2. Such demonstration program shall utilize necessary technologies  to
ensure,  to  the  extent  practicable, that photographs produced by such
traffic-control signal  photo  violation-monitoring  systems  shall  not
include images that identify the driver, the passengers, or the contents
of  the  vehicle.  Provided, however, that no notice of liability issued
pursuant to this section shall be dismissed solely because a  photograph
or  photographs  allow for the identification of the contents of a vehi-

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

                                                           LBD01775-01-9

A. 746                              2

cle, provided that such city has made a reasonable effort to comply with
the provisions of this paragraph.
  (b) In any city which has adopted a local law or ordinance pursuant to
subdivision  (a) of this section, the owner of a vehicle shall be liable
for a penalty imposed pursuant to this section if such vehicle was  used
or  operated  with  the  permission of the owner, express or implied, in
violation of subdivision (d) of section eleven hundred  eleven  of  this
article  OR  SECTION ELEVEN HUNDRED SEVENTY-FIVE OF THIS TITLE, and such
violation is evidenced by information obtained  from  a  traffic-control
signal photo violation-monitoring system; provided however that no owner
of  a  vehicle  shall  be  liable for a penalty imposed pursuant to this
section where the operator of such vehicle has  been  convicted  of  the
underlying violation of subdivision (d) of section eleven hundred eleven
of this article OR SECTION ELEVEN HUNDRED SEVENTY-FIVE OF THIS TITLE.
  (c)  For  purposes  of  this  section,  "owner" shall have the meaning
provided in article two-B of this chapter. For purposes of this section,
"traffic-control signal photo violation-monitoring system" shall mean  a
vehicle  sensor  installed to work in conjunction with a traffic-control
signal which automatically produces two or more photographs, two or more
microphotographs, a videotape or other recorded images of  each  vehicle
at  the  time  it is used or operated in violation of subdivision (d) of
section eleven hundred eleven of this article OR SECTION ELEVEN  HUNDRED
SEVENTY-FIVE OF THIS TITLE.
  (d)  A  certificate,  sworn to or affirmed by a technician employed by
the city in which the charged violation occurred, or a facsimile  there-
of, based upon inspection of photographs, microphotographs, videotape or
other  recorded images produced by a traffic-control signal photo viola-
tion-monitoring system, shall be  prima  facie  evidence  of  the  facts
contained therein. Any photographs, microphotographs, videotape or other
recorded  images  evidencing  such  a  violation  shall be available for
inspection in any  proceeding  to  adjudicate  the  liability  for  such
violation  pursuant to a local law or ordinance adopted pursuant to this
section.
  (e) An owner liable for a violation  of  subdivision  (d)  of  section
eleven  hundred  eleven of this article OR SECTION ELEVEN HUNDRED SEVEN-
TY-FIVE OF THIS TITLE pursuant to  a  local  law  or  ordinance  adopted
pursuant  to  this  section  shall  be  liable for monetary penalties in
accordance with a schedule of fines and penalties to  be  set  forth  in
such  local law or ordinance, except that in a city which, by local law,
has authorized the adjudication of such owner  liability  by  a  parking
violations  bureau,  such  schedule shall be promulgated by such bureau.
The liability of the owner pursuant to this  section  shall  not  exceed
fifty dollars for each violation; provided, however, that such local law
or  ordinance  may  provide  for  an additional penalty not in excess of
twenty-five dollars for each violation for the failure to respond  to  a
notice of liability within the prescribed time period.
  (f)  An imposition of liability under a local law or ordinance adopted
pursuant to this section shall not be deemed a conviction as an operator
and shall not be made part of the operating record of  the  person  upon
whom  such  liability  is  imposed  nor  shall  it be used for insurance
purposes in the provision of motor vehicle insurance coverage.
  (g) 1. A notice of liability shall be sent by first class mail to each
person alleged to be liable as an owner for a violation  of  subdivision
(d)  of  section eleven hundred eleven of this article OR SECTION ELEVEN
HUNDRED SEVENTY-FIVE OF THIS TITLE pursuant to  this  section.  Personal
delivery  on  the  owner  shall  not  be required. A manual or automatic

A. 746                              3

record of mailing prepared in the ordinary course of business  shall  be
prima facie evidence of the facts contained therein.
  2.  A  notice  of  liability shall contain the name and address of the
person alleged to be liable as an owner for a violation  of  subdivision
(d)  of  section eleven hundred eleven of this article OR SECTION ELEVEN
HUNDRED SEVENTY-FIVE OF THIS TITLE pursuant to this section, the  regis-
tration  number  of the vehicle involved in such violation, the location
where such violation took place, the date and time of such violation and
the identification number of the camera which recorded the violation  or
other document locator number.
  3.  The  notice  of  liability  shall contain information advising the
person charged of the manner and the time in which he  may  contest  the
liability  alleged  in  the  notice. Such notice of liability shall also
contain a warning to advise the persons charged that failure to  contest
in  the manner and time provided shall be deemed an admission of liabil-
ity and that a default judgment may be entered thereon.
  4. The notice of liability shall be prepared and mailed  by  the  city
having  jurisdiction over the intersection where the violation occurred,
or by any other entity authorized by the city to prepare and  mail  such
notification of violation.
  (h)  Adjudication of the liability imposed upon owners by this section
shall be by a traffic violations bureau established pursuant to  section
three hundred seventy of the general municipal law or, if there be none,
by  the  court having jurisdiction over traffic infractions, except that
any city which has established an administrative tribunal  to  hear  and
determine complaints of traffic infractions constituting parking, stand-
ing  or  stopping  violations  may, by local law, authorize such adjudi-
cation by such tribunal.
  (i) If an owner receives  a  notice  of  liability  pursuant  to  this
section for any time period during which the vehicle was reported to the
police  department as having been stolen, it shall be a valid defense to
an allegation of liability for a violation of subdivision (d) of section
eleven hundred eleven of this article OR SECTION ELEVEN  HUNDRED  SEVEN-
TY-FIVE OF THIS TITLE pursuant to this section that the vehicle had been
reported  to  the  police  as  stolen  prior  to  the time the violation
occurred and had not been  recovered  by  such  time.  For  purposes  of
asserting  the  defense  provided by this subdivision it shall be suffi-
cient that a certified copy of the police report on the  stolen  vehicle
be  sent  by  first  class  mail to the traffic violations bureau, court
having jurisdiction or parking violations bureau.
  (j) 1. In a city where the  adjudication  of  liability  imposed  upon
owners  pursuant  to this section is by a traffic violations bureau or a
court having jurisdiction, an owner who is a  lessor  of  a  vehicle  to
which  a  notice  of liability was issued pursuant to subdivision (g) of
this section shall not be liable for the violation of subdivision (d) of
section eleven hundred eleven of this article OR SECTION ELEVEN  HUNDRED
SEVENTY-FIVE OF THIS TITLE, provided that he or she sends to the traffic
violations  bureau  or  court  having jurisdiction a copy of the rental,
lease or other such contract document covering such vehicle on the  date
of  the violation, with the name and address of the lessee clearly legi-
ble, within thirty-seven days after receiving notice from the bureau  or
court  of  the  date and time of such violation, together with the other
information contained in the original notice of  liability.  Failure  to
send  such  information  within  such thirty-seven day time period shall
render the owner liable for the  penalty  prescribed  by  this  section.
Where  the  lessor  complies  with the provisions of this paragraph, the

A. 746                              4

lessee of such vehicle on the date of such violation shall be deemed  to
be  the  owner  of  such  vehicle for purposes of this section, shall be
subject to liability for the violation of  subdivision  (d)  of  section
eleven  hundred  eleven of this article OR SECTION ELEVEN HUNDRED SEVEN-
TY-FIVE OF THIS TITLE pursuant to this  section  and  shall  be  sent  a
notice of liability pursuant to subdivision (g) of this section.
  2.  (i) In a city which, by local law, has authorized the adjudication
of liability imposed upon owners by this section by a parking violations
bureau, an owner who is a lessor of a  vehicle  to  which  a  notice  of
liability  was  issued pursuant to subdivision (g) of this section shall
not be liable for the violation of subdivision  (d)  of  section  eleven
hundred eleven of this article OR SECTION ELEVEN HUNDRED SEVENTY-FIVE OF
THIS TITLE, provided that:
  (A)  prior  to  the violation, the lessor has filed with the bureau in
accordance with the provisions of section  two  hundred  thirty-nine  of
this chapter; and
  (B) within thirty-seven days after receiving notice from the bureau of
the  date  and  time of a liability, together with the other information
contained in the original notice of liability, the lessor submits to the
bureau the correct name and address of the lessee of the vehicle identi-
fied in the notice of liability at the time of such violation,  together
with such other additional information contained in the rental, lease or
other  contract  document,  as  may be reasonably required by the bureau
pursuant to regulations that may be promulgated for such purpose.
  (ii) Failure to comply with clause (B) of  subparagraph  (i)  of  this
paragraph  shall  render  the owner liable for the penalty prescribed in
this section.
  (iii) Where the lessor complies with the provisions of this paragraph,
the lessee of such vehicle on the date of such violation shall be deemed
to be the owner of such vehicle for purposes of this section,  shall  be
subject  to  liability  for  such violation pursuant to this section and
shall be sent a notice of liability pursuant to subdivision (g) of  this
section.
  (k)  1.  If  the  owner  liable  for a violation of subdivision (d) of
section eleven hundred eleven of this article OR SECTION ELEVEN  HUNDRED
SEVENTY-FIVE OF THIS TITLE pursuant to this section was not the operator
of  the  vehicle at the time of the violation, the owner may maintain an
action for indemnification against the operator.
  2. Notwithstanding any other provision of this section, no owner of  a
vehicle  shall  be  subject  to a monetary fine imposed pursuant to this
section if the operator of such vehicle was operating such vehicle with-
out the consent of the owner at the time such operator failed to obey  a
traffic-control indication. For purposes of this subdivision there shall
be  a  presumption  that the operator of such vehicle was operating such
vehicle with the consent of the owner at the time such  operator  failed
to obey a traffic-control indication.
  (l)  Nothing in this section shall be construed to limit the liability
of an operator of a vehicle for any  violation  of  subdivision  (d)  of
section  eleven hundred eleven of this article OR SECTION ELEVEN HUNDRED
SEVENTY-FIVE OF THIS TITLE.
  (m) In any city which  adopts  a  demonstration  program  pursuant  to
subdivision (a) of this section, such city shall submit an annual report
on  the  results of the use of a traffic-control signal photo violation-
monitoring system to the governor, the temporary president of the senate
and the speaker of the assembly on or before June  first,  two  thousand
seven  and  on the same date in each succeeding year in which the demon-

A. 746                              5

stration program is operable. Such report  shall  include,  but  not  be
limited to:
  1.  a  description of the locations where traffic-control signal photo
violation-monitoring systems were used;
  2. within each borough of such city, the aggregate  number,  type  and
severity  of accidents reported at intersections where a traffic-control
signal photo violation-monitoring system is used for the year  preceding
the  installation of such system, to the extent the information is main-
tained by the department of motor vehicles of this state;
  3. within each borough of such city, the aggregate  number,  type  and
severity  of accidents reported at intersections where a traffic-control
signal photo violation-monitoring system is  used,  to  the  extent  the
information  is  maintained  by the department of motor vehicles of this
state;
  4. the number of violations recorded  at  each  intersection  where  a
traffic-control  signal photo violation-monitoring system is used and in
the aggregate on a daily, weekly and monthly basis;
  5. the total number of notices  of  liability  issued  for  violations
recorded by such systems;
  6.  the  number  of  fines  and total amount of fines paid after first
notice of liability issued for violations recorded by such systems;
  7. the number of violations adjudicated and results  of  such  adjudi-
cations   including  breakdowns  of  dispositions  made  for  violations
recorded by such systems;
  8. the total amount of revenue realized by such city from such adjudi-
cations;
  9. expenses incurred by such city in connection with the program; and
  10. quality of the adjudication process and its results.
  (n) It shall be a defense to any prosecution for a violation of subdi-
vision (d) of section eleven hundred eleven of this article  OR  SECTION
ELEVEN  HUNDRED  SEVENTY-FIVE  OF  THIS TITLE pursuant to a local law or
ordinance adopted pursuant to this  section  that  such  traffic-control
indications were malfunctioning at the time of the alleged violation.
  S  2. This act shall take effect immediately provided however that the
amendments to section 1111-a of the vehicle  and  traffic  law  made  by
section  one  of  this  act  shall not affect the repeal of such section
pursuant to chapter 746 of the laws of 1988, as  amended  and  shall  be
deemed repealed therewith.