1. The Laws of New York
  2. Consolidated Laws
  3. Highway
  4. Article 2: Commissioner of Transportation


Section 12 Commissioner to provide for maintenance, repair, and for control of snow and ice; roads and driveways on state lands

Highway (HAY)

Commissioner to provide for maintenance, repair, and for control of snow and ice; roads and driveways on state lands. 1. The maintenance and repair of improved state highways in towns and incorporated villages, exclusive, however, of the cost of maintaining and repairing bridges having a span in excess of twenty feet shall be under the direct supervision and control of the commissioner and he or she shall be responsible therefor. The cost of such maintenance and repair shall be borne wholly by the state and be paid from moneys appropriated therefor by the legislature. Such maintenance and repair may be done in the discretion of the commissioner either directly by the department or by contract awarded to the lowest responsible bidder at a public letting after due advertisement, and under such rules and regulations as the commissioner may prescribe. The commissioner shall also have the power to adopt such system as may seem expedient so that each section of such highways shall be effectively and economically preserved, maintained and repaired.

  2. The maintenance of state highways shall include the control of snow and ice on such highways or any parts thereof, as the commissioner may deem to be necessary to provide reasonable passage and movement of vehicles over such highways. The commissioner is authorized also to erect snow fences at suitable locations. The work of such control of snow and ice may be done by any municipality which for the purposes of this section shall include only a county, city, town or village. The governing board or body of any such municipality and the commissioner are hereby authorized to enter into an agreement for the performance of the work of such control of snow and ice upon such terms, rules and regulations as may be deemed by the commissioner to be for the best interest of the public. Such agreement may provide for periodic payments based upon a percentage of the estimated total cost. Any agreement authorized by this subdivision shall be for a term of up to five years and at the expiration of the year preceding the last year of the term specified in the agreement, as such term may be extended as herein provided, the municipality shall notify the commissioner either (a) that it requests, with the approval of the commissioner, that the term of the agreement be extended for a specified term of up to five years or (b) it intends not to extend the agreement and such agreement shall expire at the end of the term. If the municipality fails to notify the commissioner as herein provided, it shall be deemed that the municipality intends not to extend the agreement. Such agreement may be terminated during the specified term provided the municipality shall notify the commissioner eighteen months prior to such termination. If any such agreement expires, a new agreement between the commissioner and a municipality may be entered into for a term of up to five years, with extended term or terms upon notification as above provided. Whenever the commissioner shall deem the work of control of snow and ice by any municipality to be inadequate or unsatisfactory according to the terms of any such agreement, he or she may, by official order to be filed in the department, and by filing a certified copy thereof in the office of the department of state, cancel said agreement, and the payments thereunder provided by the state shall cease; whereupon the commissioner may carry out the work of control of snow and ice. The official order provided in this subdivision shall become effective at the expiration of five days after the commissioner shall mail a certified copy thereof to the clerk or other official who performs related duties in such municipality. The governing board or body of any such municipality is authorized to appropriate such sum as it deems necessary to enable such municipality to perform the terms of such agreement. The work of such control of snow and ice may be done by any of the methods provided in subdivision one of this section for the work of maintenance and repair, or by a combination of such methods. Any county is hereby authorized to enter into a contract with another municipality located within the same county for the performance of the work of such control of snow and ice as a subcontractor under any agreement with the commissioner as such agreement is hereinbefore provided. Moneys received by a county under the terms of any agreement authorized by this subdivision shall be credited to the fund from which moneys were appropriated to enable the county to perform the terms of such agreement. Moneys so received by a town shall be credited to the highway fund. Moneys so received by a city or village shall be credited to the general fund.

  2-a. (a) Except as provided hereafter the state shall indemnify and hold harmless such municipalities 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 municipality for the control of snow and ice pursuant to this section.

  (b) In no event shall the state be obligated to defend or indemnify such municipality, in any action, proceeding, claim or demand arising out of the actual operation of an insured vehicle or vehicle subject to self-insurance while engaged in the operation of snow and ice control functions under such agreement.

  (c) The municipality shall be entitled to representation by the attorney general in any claim described in paragraph (a) of this subdivision, provided, however, that the municipality shall be entitled to itself defend any such action, proceeding, claim or demand whenever the attorney general determines, based upon his investigation and review of the facts and circumstances 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 municipality 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 municipality in the amount of any judgment obtained against such municipality in any state or federal court on any claim described in paragraph (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 municipality was acting within the scope of its functions for control of snow and ice; 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 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 the office of the department of law located in Albany or New York city and by delivery to the commissioner or his designee a copy of any claim, summons, complaint, process, notice, demand or other pleading within ten days after such municipality is served with such document and (ii) the full cooperation of the municipality 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 prosecution of any appeal.

  (f) The benefits of this subdivision shall inure only to such municipalities 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 available to or conferred upon any unit, entity, officer or employee of the state or municipality or 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.

  3. The commissioner shall have the power to purchase (a) materials for such maintenance and repair, except where such work is done by contract, and to contract for the delivery thereof at convenient intervals along such highways, and (b) equipment and appliances that he may deem necessary to carry out the provisions of this section. Any municipality, acting by and through its authorized official, is hereby empowered to rent its machinery, tools, equipment, and storage space, to the state, acting by and through the commissioner, for the purpose of such control of snow and ice upon such terms and at such rate as may be agreed between the municipality and the commissioner. Notwithstanding the provisions of any general, special or local law or of any charter, the governing board or body of any such municipality is hereby authorized to sell such machinery, tools and equipment to the state, acting by and through the commissioner, for the purposes of this section and without competitive bidding or other limitation or restriction provided in any general, special or local law or of any charter, and the commissioner, may, upon approval by the state comptroller and the state commissioner of general services, purchase such machinery, tools and equipment from any such municipality as herein provided.

  4. Whenever funds therefor are made available, the commissioner shall have power to acquire for the state, by purchase, or by appropriation through the procedure described in section thirty of this chapter, property for the purpose of storing, maintaining or processing construction and maintenance supplies, material or equipment and for the purpose of providing, erecting and maintaining offices for department personnel and structures for storing, maintaining or processing construction and maintenance materials or equipment.

  5. Whenever a state highway has been constructed at a greater width than that provided in the original plans, upon petition of a village, as provided in sections forty-six and forty-seven of this chapter, or upon petition of a town or county, as provided in sections forty-eight, forty-nine, or fifty-nine of this chapter, or whenever such highway has been widened by a town or county under a permit granted as provided in, or under conditions and regulations prescribed pursuant to section fifty-two of this chapter, the additional width of pavement shall be deemed to be a part of the highway and shall be maintained by the commissioner as provided herein, but in no case where any such highway has been widened as provided above, shall the state be responsible for the maintenance of any curb or of any paved gutter or paved shoulder, provided, however, that on any highway maintained by the state the commissioner shall have authority to clean any pavement or paved gutter or repair any unpaved shoulder or unpaved gutter outside of the pavement maintained by the state, where necessary for the protection of such pavement.

  6. Whenever the head of any state department having jurisdiction or control over lands owned and occupied by the state, requests the commissioner to maintain and to repair any road and driveway which is located on, over and across such lands, the commissioner is, notwithstanding the provisions of any general, special or local law, authorized to grant such request by his official order therefor. Such official order shall contain a general description of any such road and driveway. A certified copy of such official order shall be filed by the commissioner in the office of (a) the state department having jurisdiction or control over such lands, and (b) the department of audit and control. Thereupon any such road and driveway shall be maintained and repaired under the direct supervision and control of the commissioner in the same manner as is provided in this section for the maintenance and repair of improved state highways in towns and in incorporated villages.

  7. Whenever the head of any state department, agency, institution or public benefit corporation having jurisdiction or control over the lands owned and occupied by the state or such department, agency, institution or public benefit corporation requests the commissioner to construct, reconstruct, and/or maintain any loop or peripheral roadway which is or is to be located on, around, over, or across such lands, notwithstanding the provisions of any general, special or local law, the commissioner is authorized to grant such request and undertake such construction, reconstruction and/or maintenance. Before undertaking the work of construction, reconstruction and/or maintenance of such roadways, the commissioner and the head of the state department, agency, institution or public benefit corporation shall enter into a written agreement, subject to the approval of the director of the budget, providing the funds therefor, or reimbursement by such state department, agency, institution or public benefit corporation of the funds therefor, including all costs incurred by the department in connection with such construction, reconstruction and/or maintenance. Where such loop or peripheral roadway is to be constructed, reconstructed and/or maintained on lands occupied by either the state university of New York or the state university construction fund, both the state university of New York and the state university construction fund shall be parties to such agreement. Such roadway shall be constructed, or reconstructed, to mutually agreeable standards, in the same manner as state highways are constructed or reconstructed pursuant to this chapter. The maintenance of such roadway shall be in the same manner as provided for state highways in this chapter. If such a maintenance agreement extends for a period greater than one year, the funds shall be made available for, or reimbursed, on an annual basis. The head of such state department, agency, institution or public benefit corporation may terminate such maintenance agreement upon six months written notice to the commissioner making provision for the department to be reimbursed for all costs incurred by such department up to such termination date. In connection with the maintenance of such a roadway the commissioner shall cause an official order to be issued therefor. Such official order shall contain a general description of such roadway. A certified copy of such official order shall be filed by the commissioner in the office of the head of the state department, agency, institution or public benefit corporation making such request for maintenance and with the department of audit and control.