§ 765. Penalties and liabilities. 1. Civil penalties. a. Failure to
comply with any provision of this article shall subject an excavator or
an operator to a civil penalty of up to two thousand five hundred
dollars for the first violation and up to an additional ten thousand
dollars for each succeeding violation that occurs within a twelve month
period.

b. The penalties provided for by this article shall not apply to an
excavator who damages an underground facility due to the failure of the
operator to comply with any of the provisions of this article nor shall
in such instance the excavator be liable for repairs as prescribed in
subdivision four of this section.

* c. An action to recover a penalty under this article may be brought
in the supreme court in the judicial district in which the violation was
alleged to have occurred which shall be commenced and prosecuted by the
attorney general. The public service commission shall, pursuant to
section one hundred nineteen-b of the public service law, forward to the
attorney general its determination of the amount of the penalty for
violations of rules and regulations adopted to implement the
requirements of this article. Upon receipt of such determination, the
attorney general may commence an action to recover such penalty. All
moneys recovered in any such action, together with the costs thereof,
and all moneys recovered as the result of any such public service
commission determination shall be paid into the underground facilities
safety training account established pursuant to section ninety-seven-www
of the state finance law.

* NB Effective until October 1, 2025

* c. An action to recover a penalty under this article may be brought
in the supreme court in the judicial district in which the violation was
alleged to have occurred which shall be commenced and prosecuted by the
attorney general. The public service commission shall, pursuant to
section one hundred nineteen-b of the public service law, forward to the
attorney general its determination of the amount of the penalty for
violations or rules and regulations adopted to implement the
requirements of this article. Upon receipt of such determination, the
attorney general may commence an action to recover such penalty. All
moneys recovered in any such action, together with the costs thereof,
shall be paid into the state treasury to the credit of the general fund.

* NB Effective October 1, 2025

2. Except as otherwise provided in this subdivision, nothing in this
article shall impair, limit or reduce the statutory, common law or
contractual duties or tort or other liability of any excavator
excavating or demolishing in the vicinity of underground facilities.

3. Any excavator engaging in or proposing to engage in excavation or
demolition in a negligent or unsafe manner, which has resulted in or is
likely to result in damage to underground facilities in such a manner
that life, property or the continuation of operator service is
endangered, may be enjoined from such excavation or demolition or any
aspect thereof upon application of the operator owning the facilities or
the attorney general made in supreme court having jurisdiction in the
county wherein the excavation or demolition or proposed excavation or
demolition is to take place. Three or more instances of damage by an
excavator to underground facilities in the course of the entire
self-same excavation or demolition activity shall be prima facie grounds
for enjoining the excavator from further performance of the excavation
or demolition activity.

4. In the event that, as a result of a violation of any of the
provisions of this article by an excavator, it is necessary that an
operator make any repair to or provide new support to an underground
facility, the excavator shall be liable to the operator for reasonable
costs so incurred.