Bill Text: NY A05833 | 2011-2012 | General Assembly | Introduced
Bill Title: 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.
Spectrum: Partisan Bill (Democrat 4-0)
Status: (Introduced - Dead) 2012-01-03 - enacting clause stricken [A05833 Detail]
Download: New_York-2011-A05833-Introduced.html
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:
1 Section 1. Subdivision 8-a of section 349-c of the highway law, as
2 added by chapter 568 of the laws of 1986, is amended to read as follows:
3 8-a. (a) Except as provided hereafter the state shall indemnify and
4 hold harmless [such city] ANY CITY NAMED IN THIS ARTICLE, INCLUDING THE
5 CITY OF NEW YORK, for any and all liability for damages for personal
6 injury, injury to property or wrongful death for losses arising from or
7 occasioned by the manner of performance of the functions under any
8 agreement with a city for the maintenance and repair of state arterial
9 highways pursuant to this section.
10 (b) In no event shall the state be obligated to defend or indemnify
11 such city, in any action, proceeding, claim or demand arising out of the
12 actual operation of a vehicle or other equipment while engaged in the
13 operation of repair and maintenance under any such agreement, nor any
14 action, proceeding, claim or demand arising out of services of lighting,
15 cleaning, sweeping and sprinkling any such public street, main route or
16 thoroughfare or portions thereof nor any work on or in connection with
17 subsurface installations and structures that are owned and operated by
18 any city, including sanitary sewers, gas mains, water lines, and
19 conduits, and appurtenances thereto.
20 (c) [The city] ANY CITY NAMED IN THIS ARTICLE, INCLUDING THE CITY OF
21 NEW YORK, shall be entitled to representation by the attorney general in
22 any claim described in paragraph (a) of this subdivision, provided,
23 however, that the city shall be entitled to itself defend any such
24 action, proceeding, claim or demand whenever the attorney general deter-
25 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
1 stances of the case that representation by the attorney general would be
2 inappropriate, or whenever a court of competent jurisdiction determines
3 that a conflict of interest exists and that the city is entitled to be
4 separately represented. Whenever the municipality is entitled to defend
5 the action itself, the state shall reimburse the municipality for any
6 and all costs and expenses, including, but not limited to, counsel fees
7 and disbursements.
8 (d) The state shall indemnify and save harmless such city, INCLUDING
9 THE CITY OF NEW YORK, in the amount of any judgment obtained against
10 such city in any state or federal court in any claim described in para-
11 graph (a) of this subdivision, or in the amount of any settlement of
12 such claim, or shall pay such judgment or settlement; provided, however,
13 that the act or omission from which such judgment or settlement arose
14 occurred while the city was acting within the scope of its functions for
15 maintenance and repair of state arterial highways; provided, further,
16 that no stipulation of settlement of any such action, proceeding, claim
17 or demand shall be made or executed without approval of the attorney
18 general and of the commissioner of transportation or his designee.
19 Payment of any claim made pursuant to settlement shall not exceed the
20 sum of fifty thousand dollars. Nothing herein shall authorize the state
21 to indemnify or save harmless with respect to punitive or exemplary
22 damages.
23 (e) The duty to defend or indemnify and save harmless prescribed by
24 this subdivision shall be conditioned upon (i) delivery to the attorney
25 general or an assistant attorney general at an office of the department
26 of law in Albany or New York city and by delivery to the commissioner of
27 transportation or his designee of a copy of any claim, summons,
28 complaint, process, notice, demand or other pleading within ten days
29 after such city is served with such document and (ii) the full cooper-
30 ation of the city in the defense of such action, proceeding, claim or
31 demand and in the defense of any action, proceeding, claim or demand
32 against the state based upon the same act or omission, and in the prose-
33 cution of any appeal.
34 (f) The benefits of this subdivision shall inure only to such city,
35 INCLUDING THE CITY OF NEW YORK, and shall not enlarge or diminish the
36 rights of any other party nor shall any provision of this subdivision be
37 construed to effect, alter, or repeal any provision of the workers'
38 compensation law.
39 (g) This subdivision shall not in any way affect the obligation of any
40 claimant to give notice to the state under section ten of the court of
41 claims act or any other provision of law.
42 (h) The provisions of this subdivision shall not be construed to
43 impair, alter, limit or modify the rights and obligations of any insurer
44 under any insurance agreement.
45 (i) Except as otherwise specifically provided in this subdivision, the
46 provisions of this subdivision shall not be construed in any way to
47 impair, alter, limit, modify, abrogate, or restrict any immunity avail-
48 able to or conferred upon any unit, entity, officer, or employee of the
49 state or city of any other level of government, or any right to defense
50 and indemnification provided for any governmental officer or employee
51 by, in accordance with, or by reason of, any other provision of state or
52 federal statutory or common law.
53 S 2. This act shall take effect immediately and shall apply to all
54 actions or proceedings commenced on or after such date.
