2006 New York Code - Liability Of Utilities For Compensation For Damages Caused By Interfering With, Or Delaying The Progress Of Work Under State Public Construction Contr



 
    § 11-102. Liability  of  utilities for compensation for damages caused
  by interfering with, or delaying the progress of work under state public
  construction contracts. 1. No utility shall interfere with, or delay the
  progress of work under any contract with the state  department,  agency,
  division  or  board, for the construction, reconstruction or improvement
  of any highway, street, road, railroad grade crossing,  bridge,  tunnel,
  underpass,  overpass  or other state contract work, by failing to remove
  or relocate its poles, wires,  cables,  conduits,  pipes  or  any  other
  facilities  or  structures  within  the  time  schedule  therefor  by an
  agreement or under the terms of an  agreement  between  the  department,
  agency,  division  or  board  and the utility, or if no time is fixed by
  such an agreement or under the terms of such an  agreement,  within  the
  time  fixed  by  the  department,  agency,  division or board, by notice
  served upon such utility by such state department, agency,  division  or
  board.
    2.   If  such  notice  is  utilized,  it  shall  describe  the  public
  improvement  and  the  geographical  location  thereof,  the   date   of
  commencement  and  the  date  of completion, if any, provided for by the
  contract, the contractor's name and address, the manner in which and the
  extent to which the facilities and structures of the utility obstruct or
  prevent  the  contractor  from  progressing  or  performing   the   work
  comprehended by the contract, and shall fix the date or time within such
  utility  is required to remove or relocate its facilities or structures,
  specifying the same, in order to provide the contractor  with  the  site
  when  required  by the contractor for progressing or performing the work
  pursuant to such state contract. Such notice shall  be  in  writing  and
  shall be served upon such utility either personally or by certified mail
  at  its  principal  office  or place of business in the county where the
  work under such contract is to be performed, or, if  there  be  no  such
  principal  office  or  place  of business in such county, at the nearest
  principal office or place of business of such utility, outside  of  such
  county.  In  the  event  the  utility  to  whom the aforesaid notice was
  directed is for any reason unable,  within  the  prescribed  period,  to
  remove  or  relocate  said  facilities  or  structures  specified in the
  notice, said utility shall immediately advise said  department,  agency,
  division or board and the contractor, in writing, of such inability, and
  in the same communication so advise said department, agency, division or
  board,  and  the contractor of the approximate date that such removal or
  relocation of facilities or structures  could  be  effected;  and  shall
  further  state  the basis for the inability of said utility to remove or
  relocate said facilities or structures within the time specified by  the
  notice served thereon by said department, agency, division or board. The
  department,  agency,  division or board, after examining and considering
  the utility's basis for  establishing  a  different  schedule  for  such
  removal or relocation, shall, if such basis is reasonable, establish and
  notify  the utility of a revised schedule for completing such removal or
  relocation.
    3. In cases  where  the  utility  has  been  reimbursed  for  removal,
  relocation,   replacement  or  reconstruction  pursuant  to  subdivision
  twenty-four-b of section ten of the highway law, a  utility  failing  to
  complete  the  removal  or  relocation  of such structures or facilities
  within a period of thirty days beyond the time  fixed  therefor  by  the
  latest  time schedule established in accordance with this section, shall
  be liable and responsible to any such contractor for any damages, direct
  or consequential,  sustained  by  any  such  contractor  as  the  result
  thereof,  in  an  action  to  be brought by such contractor against such
  utility in a court of competent jurisdiction within two years  from  the
  time  fixed  for  the  removal  or  relocation  of  such  structures  or
  facilities. If an action is commenced against a utility,  as  heretofore
  provided,  said  utility  may interpose in its answer in such action any
  defense available under the provisions of the  civil  practice  law  and
  rules.  The  unreasonableness  of the time schedule imposed by the state
  department, agency, division or board shall be an  absolute  defense  by
  the  utility  to  any  such  action  by  the contractor. If, in any such
  action, the utility is found to owe nothing to the contractor, or if  an
  offer  of settlement is made by the utility which is not accepted by the
  contractor and the resulting verdict against the utility  is  less  than
  the offer of settlement, then in either such event the total cost of the
  utility  of  litigation,  including reasonable attorney's fees, shall be
  paid to the utility by the contractor.

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