•  Summary 
  •  Actions 
  •  Committee Votes 
  •  Floor Votes 
  •  Memo 
  •  Text 
  •  LFIN 
  •  Chamber Video/Transcript 

A01706 Summary:

Rpld & add §214-d, amd §214, rpld R3211 sub (h), R3212 sub (i), CPLR
Repeals and reenacts statute of limitation provisions on wrongful death, personal injury and property damage actions against professional engineers, architects, landscape architects, land surveyors and construction contractors to provide for a limitations period of ten years after completion of improvement to real property; "completion", which constitutes the accrual date for the limitations period, is defined; provides for a one year extension for injuries to person or property or wrongful death which occur during the tenth year after completion.
Go to top

A01706 Memo:

submitted in accordance with Assembly Rule III, Sec 1(f)
SPONSOR: Pretlow
  TITLE OF BILL: An act to amend the civil practice law and rules, in relation to provid- ing a statute of limitations for certain actions against professional engineers, architects, landscape architects, land surveyors and construction contractors and to repeal section 214-d, subdivision (h) of rule 3211 and subdivision (i) of rule 3212 of the civil practice law and rules relating thereto   PURPOSE OR GENERAL IDEA OF BILL: To establish time limits after which tort claims for personal injury or wrongful death may not be asserted against design professionals and construction contractors.   SUMMARY OF SPECIFIC PROVISIONS: Repeals section 214(d), subdivision (h) of Rule 3211 and subdivision (i) of Rule 3212, and adds a new section 214(d) to the Civil Practice Law and Rules ("CPLR") to establish a ten year statute of repose for professional injury or wrongful death actions brought against professional engineers, architects, landscape architects, land surveyors or construction contractors. The accrual date for the limitations period would be the date of completion of the project. The term completion is defined in subsection 4 of the proposed statute. The bill also includes a one year extension of time (or grace period) so that if an injury or death occurs during the tenth year after completion of the project the plaintiff will have an extra year to commence an action. Subsection 3 of the proposed statute provides that the affirmative defense shall not be asserted by an architect, engineer, landscape architect, land surveyor or construction contractor in actual possession or control of the premises at the time an injury occurs. Subsection 3 also limits the applicability of the ten year statute of repose to third party actions, thereby leaving intact the existing 3 or 6 year statute of limitations governing actions by an owner/client.   EXISTING LAW: Under current law, a cause of action grounded on a theory of simple negligence brought by a third party (not an owner of building or struc- ture) against a design professional or construction contractor is governed by a three year statute of limitations and the cause of action does not accrue until the injury takes place -- even if the plaintiff is injured 20, 30, 50 or 100 years after the design professional has completed work on the building or structure. (See CUBITO V. KRIESBURG, 51 N.Y.2d 900, affirming 69 A.D.2d 738 (1980)). Although there is an expedited procedure for those claims brought more than 10 years 'after the completion of the design professionals' or contractors' work, design professionals and contractors remain answerable to alleged negligence claims commenced indefinitely after project completion; many design professionals and contractors are thus forced to carry insurance cover- age even after they retire from the profession. The insurance problem is exacerbated because insurance coverage is only available on a "claims- made" basis rather than an "occurrence" basis -- thereby requiring the professional and contractor to maintain insurance coverage well into retirement.   JUSTIFICATION: When a contractor or design professional's client (i.e., an owner of a building) sues a contractor or design professional, the CPLR's general statute of limitation rules apply and operate to cut off any claim with- in a three year or six year period. In an action brought by an owner/client against a design professional or contractor for damages resulting from a personal injury based on negligence, a three year stat- ute of limitations applies and the cause of action accrues at the time of injury. A malpractice claim against a design professional or contrac- tor by an owner/client carries a three year statute of limitations and the cause of action accrues upon completion of the project. Similarly, an owner/client claim based on breach of contract is governed by a six year statute of limitations and the cause of action accrues upon completion of the contractual duties. Chapter 682 of the Laws of 1996, which instituted an expedited procedure for claims against design professionals brought more than 10 years after completion of work, was a positive, yet modest, first-step to protect design professionals from meritless claims that are brought years, some- times decades, after completion of a design professional's work. It is still unfair, however, to hold design professionals and contrac- tors liable for errors in design where injuries are sustained many years after the rendition of services and where the design professional or contractor no longer has supervision or control over the premises. This legislation recognizes the fact that there comes a time when a structure passes from a well-designed building to a well-maintained building. The bill seeks to place liability on the person in the best position to correct the defects -- the present owner of the building, and to relieve the design professional and the contractor from the threat of perpetual liability that exists under current law. The outer limit of a ten year statute of repose was selected because a study of insurance claims against design professionals and contractors prepared for the American Institute of Architects demonstrated that the majority of third party claims are brought within seven years of project completion. More specifically, the study indicates that if a ten year statute of repose were in place and the claims were measured from completion of the project, 100% of all claims brought during the study period would have been allowed. The additional one year grace period which sets an outside limit of eleven years for those injured in the tenth year following completion of the project, would provide additional assurance that injured parties will have a right of recourse. These numbers demonstrate that the problem is not the number of actual claims brought after ten years -- the problem is the threat of potential lawsuits which forces design professionals and contractors to carry insurance coverage long after the project has been completed and for years after they supposedly retire from the profession. Further justification for establishing a statute of repose is that the longer the period of time between the completion of the structure and the injury, the greater the opportunity for some intervening negligence to occur. The longer the owner is in possession of the improvement, using it, altering it, and maintaining it, the more likely it is that an injury will be the result of the owner's negligence rather than that of the design professionals or contractors. Thirty-two other states have enacted legislation establishing a statute of repose of seven years or more with completion of the project serving as the accrual date for the cause of action.   LEGISLATIVE HISTORY: 2019-2020 A3595 referred to higher education 06/05/18 A2198 held for consideration in higher education 01/16/15 referred to higher education 01/06/16 referred to higher education 2009-10, A.4394 Referred to Higher Education 2007-08, A.2179/S.4228 Referred to Higher Education/Senate Codes 2005-06, A.269/S.1533 Referred to Higher Education/Senate Codes 2003-04, S. 4172/A.9201 Referred to Codes/Senate Codes   FISCAL IMPLICATIONS: None.   EFFECTIVE DATE: This act shall take effect on the first of January next succeeding the date on which it shall have become a law and shall apply to all sections commenced on or after its effective date.
Go to top