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

                                  5833

                       2011-2012 Regular Sessions

                          I N  A S S E M B L Y

                              March 2, 2011
                               ___________

Introduced  by M. of A. KAVANAGH, COLTON, JAFFEE, STEVENSON -- 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-
mines,  based upon his investigation and review of the facts and circum-

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD09740-01-1
              

A. 5833                             2

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.