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Argued September 4, 2008; decided October 21, 2008
Brothers v New York State Elec. & Gas Corp., 43 AD3d 1309, affirmed.
{**11 NY3d at 254} OPINION OF THE COURT
Read, J.
In October 1999, defendant New York State Electric and Gas Corporation (NYSEG) applied to the New York State Department of Transportation (DOT) for a form highway work permit authorizing it to undertake "Electric and Gas Maintenance Work in Highway Region #8 (Columbia, Dutchess, Orange, Putnam, Westchester, Rockland, and Ulster Counties)" between January 1 and December 31, 2000. NYSEG and other utilities providing electric and gas service to customers in upstate New York ask DOT each year for these generic work permits, [*2]which allow them to construct, maintain and repair electric and gas network and support facilities in state highway rights-of-way. The permits are transferable and assignable with DOT's consent, and utilities routinely farm out their highway-related projects to independent contractors.
DOT granted NYSEG the permit, which set forth a detailed outline entitled "METHOD OF PERFORMING WORK WITHIN THE STATE HIGHWAY RIGHT OF WAY." Under the heading "GENERAL CONDITIONS" and the subheading "REQUIREMENTS," the permit stated that
"[a]ll the current requirements of the following shall apply: Occupational Safety and Health Administration, Federal Department of Labor, Safety and Health Standards (29 CFR 1926/1910); Part 131, Title 17, New York Code of Rules and Regulations, Accommodation of Utilities Within State Right-of-Way; New York State Department of Labor, Industrial Code Rule 23, Protection of Persons Employed in Construction and Demolition Work; Industrial Code Rule 53, Construction, Excavation and Demolition{**11 NY3d at 255} Operations At or Near Underground Facilities."
Two of the enumerated regulatory regimes are pertinent to this appeal: the federal Occupational Safety and Health Administration (OSHA) program and State Industrial Code (12 NYCRR) part 23. Specifically, OSHA regulations prescribe that
"[n]o vehicular equipment having an obstructed view to the rear may be operated on off

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