S T A T E   O F   N E W   Y O R K
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                                  4394

                       2009-2010 Regular Sessions

                          I N  A S S E M B L Y

                            February 4, 2009
                               ___________

Introduced  by M. of A. CANESTRARI, ORTIZ -- Multi-Sponsored by -- M. of
  A. COOK, JOHN, LATIMER, McENENY --  read  once  and  referred  to  the
  Committee on Higher Education

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

  THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:

  Section 1. Statement of findings and purpose.  The  legislature  finds
that (a) the open-ended and continuing liability imposed upon members of
the  design  professions  and  construction  contractors, due to alleged
deficiencies relating to improvements to real property, has resulted  in
an  unfair  burden  on  such professionals and a general increase in the
cost of both public and private improvements to real property,  (b)  the
cost  of  maintaining adequate insurance coverage is so expensive that a
significant number of design professionals and construction  contractors
are  forced  to forego insurance coverage altogether to the detriment of
the public's safety and welfare. The legislature further finds that  the
best designed and constructed improvement is dependent upon proper main-
tenance  to  preserve  its integrity and safety and it is thus of impor-
tance to the public safety and welfare to ensure than an owner maintains
and repairs that which is the property of  the  owner.  The  legislature
therefore  finds  that it is necessary and desirable to establish a time
limit after which tort claims for personal injury or wrongful death  may
not be asserted against such professionals and contractors. That statute
of  repose  set forth herein, with a claim accruing on the date that the
improvement was completed, will preserve the liability  of  the  profes-
sional and contractor during a period in which the defects, if any, will

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD02532-01-9
              

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be  revealed,  and  therefore  will  establish  an  appropriate limit on
liability, while affording adequate protection to the public.
  S 2. Section 214-d of the civil practice law and rules is REPEALED and
a new section 214-d is added to read as follows:
  S  214-D.  LIMITATIONS  ON  CERTAIN ACTIONS AGAINST PROFESSIONAL ENGI-
NEERS, ARCHITECTS, LANDSCAPE ARCHITECTS, LAND SURVEYORS OR  CONSTRUCTION
CONTRACTORS.  1. EXCEPT AS OTHERWISE PROVIDED IN SUBDIVISION TWO OF THIS
SECTION, NO ACTION TO RECOVER DAMAGES FOR INJURY TO THE  PERSON  OR  FOR
WRONGFUL DEATH OR FOR DAMAGE TO PROPERTY NOR ANY ACTION FOR CONTRIBUTION
OR INDEMNITY FOR DAMAGES SUSTAINED ON ACCOUNT OF SUCH INJURY OR WRONGFUL
DEATH  OR DAMAGE TO PROPERTY ARISING FROM ANY DEFECT IN THE STRUCTURE OR
IMPROVEMENT RESULTING FROM  THE  DESIGN,  PLANNING,  OR  SUPERVISION  OF
CONSTRUCTION OF AN IMPROVEMENT TO REAL PROPERTY SHALL BE BROUGHT AGAINST
A  PROFESSIONAL  ENGINEER, ARCHITECT, LANDSCAPE ARCHITECT, LAND SURVEYOR
OR CONSTRUCTION CONTRACTOR MORE THAN TEN YEARS AFTER THE  COMPLETION  OF
SUCH IMPROVEMENT.
  2.  IF, BY REASON OF SUCH DEFECT, AN INJURY TO THE PERSON OR AN INJURY
CAUSING WRONGFUL DEATH OR DAMAGES TO PROPERTY OCCURS  DURING  THE  TENTH
YEAR  AFTER  COMPLETION, AN ACTION TO RECOVER DAMAGES FOR SUCH INJURY OR
WRONGFUL DEATH OR DAMAGE TO PROPERTY MAY  BE  BROUGHT  WITHIN  ONE  YEAR
AFTER  THE  DATE ON WHICH SUCH INJURY OCCURRED, BUT IN NO EVENT MAY SUCH
ACTION BE BROUGHT MORE THAN ELEVEN YEARS AFTER  THE  COMPLETION  OF  THE
IMPROVEMENT.
  3.  THE  LIMITATIONS  PRESCRIBED  BY  THIS  SECTION SHALL NOT APPLY TO
ACTIONS BROUGHT BY ONE IN CONTRACTUAL OR PROFESSIONAL PRIVITY  WITH  THE
ENGINEER,  ARCHITECT, LANDSCAPE ARCHITECT, LAND SURVEYOR OR CONSTRUCTION
CONTRACTOR AND SHALL NOT BE ASSERTED BY WAY OF DEFENSE BY ANY PERSON  IN
ACTUAL  POSSESSION OR CONTROL AS OWNER, TENANT, OR OTHERWISE, OF SUCH AN
IMPROVEMENT AT THE TIME ANY DEFECT IN SUCH IMPROVEMENT  CONSTITUTES  THE
PROXIMATE CAUSE OF THE INJURY OR DEATH FOR WHICH IT IS PROPOSED TO BRING
AN ACTION.
  4.  FOR  PURPOSES OF THIS SECTION AN IMPROVEMENT SHALL BE DEEMED TO BE
"COMPLETED" (A) WHEN, AFTER THE IMPROVEMENT HAS BEEN STARTED,  A  PERMA-
NENT CERTIFICATE OF OCCUPANCY IS ISSUED BY THE MUNICIPALITY IN WHICH THE
IMPROVEMENT  IS  SITUATED,  IF  SUCH  IS  REQUIRED OR IS ACTUALLY ISSUED
PURSUANT TO LAW OR REGULATION; OR (B) IF A PUBLIC IMPROVEMENT, UPON  THE
ACCEPTANCE OF THE IMPROVEMENT BY THE OWNER, IF A CERTIFICATE OF OCCUPAN-
CY  IS NOT REQUIRED AND HAS NOT BEEN ISSUED OR (C) ON THE EARLIER OF THE
FOLLOWING DATES, IF THE PROVISIONS OF PARAGRAPHS (A)  AND  (B)  OF  THIS
SUBDIVISION  DO NOT APPLY (I) FOUR MONTHS PRIOR TO THE LAST DAY ON WHICH
MECHANIC'S LIEN, RESULTING FROM WORK PERFORMED  OR  MATERIALS  FURNISHED
WITH RESPECT TO SUCH IMPROVEMENT, CAN BE FILED; OR (II) UPON THE OWNER'S
FINAL  PAYMENT  FOR SERVICES RENDERED OR MATERIALS SUPPLIED WITH RESPECT
TO SUCH IMPROVEMENT.
  5. AN ARCHITECT, ENGINEER, LANDSCAPE ARCHITECT, OR LAND SURVEYOR SHALL
MEAN A PERSON LICENSED OR REGISTERED AS AN  ARCHITECT,  ENGINEER,  LAND-
SCAPE  ARCHITECT  OR  LAND  SURVEYOR,  PURSUANT TO THE PROVISIONS OF THE
EDUCATION LAW OR ANY  PARTNERSHIP  OR  CORPORATION  LAWFULLY  PERFORMING
ARCHITECTURAL,   ENGINEERING,   LANDSCAPE   ARCHITECTURAL  OR  SURVEYING
SERVICES.
  S 3. Subdivisions 4 and 5 of section 214 of the civil practice law and
rules, as separately amended by chapters 485   and 682 of  the  laws  of
1986, are amended to read as follows:
  4.  an  action  to recover damages for an injury to property except as
provided in [section] SECTIONS 214-c AND 214-D;

A. 4394                             3

  5. an action to recover  damages  for  a  personal  injury  except  as
provided in sections 214-b, 214-c, 214-D and 215;
  S  4. Subdivision (h) of rule 3211 and subdivision (i) of rule 3212 of
the civil practice law and rules are REPEALED.
  S 5. Nothing contained in this act shall  be  construed  as  affecting
rights, obligations or duties arising under any contract entered into or
any cause of action resulting from an injury which occurred prior to the
effective date of this act.
  S  6. This act shall take effect on the first of January next succeed-
ing the date on which it shall have become a law and shall apply to  all
actions commenced on or after its effective date.