NY State Senate Bill 2017-S5582

Senate Bill S5582

2017-2018 Legislative Session

Repeals and reenacts provisions on time limitations on certain actions against professional engineers, architects, other designers and construction contractors; repealer

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Archive: Last Bill Status - In Senate Committee Judiciary Committee

Introduced
- In Committee Assembly
- In Committee Senate
- On Floor Calendar Assembly
- On Floor Calendar Senate
- Passed Assembly
- Passed Senate
Delivered to Governor
Signed By Governor

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	Assembly Actions - Lowercase Senate Actions - UPPERCASE
Jan 03, 2018	referred to judiciary
Apr 18, 2017	referred to judiciary

co-Sponsors

2017-S5582 (ACTIVE) - Details

See Assembly Version of this Bill:: A2198
Current Committee:: Senate Judiciary
Law Section:: Civil Practice Law and Rules
Laws Affected:: Rpld & add §214-d, amd §214, rpld R3211 sub (h), R3212 sub (i), CPLR
Versions Introduced in Other Legislative Sessions:: 2009-2010: A4394
2011-2012: S4782, A2475
2013-2014: S3334, A5301
2015-2016: S4931, A2545
2019-2020: S5158, A3595
2021-2022: S4127, A1706
2023-2024: S8213, A4549

2017-S5582 (ACTIVE) - Summary

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.

2017-S5582 (ACTIVE) - Sponsor Memo

                                 BILL NUMBER:  S5582

 TITLE OF BILL :

An act to amend the civil practice law and rules, in relation to
providing 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 :

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 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
structure) 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
statute of limitations applies and the cause of action accrues at the
time of injury. A malpractice claim against a design professional or
contractor 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 merit less claims that are
brought years, sometimes decades; after completion of a design
professional's work.

It is still unfair, however, to hold design professionals and
contractors 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 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 :

2011-12 S.4782 Judiciary Committee/A.2475 Higher Ed Committee.
2014 S.3334 Judiciary Committee/A.5301 Higher Ed Committee.
2015-16 S.4931 Judiciary Committee/A.2545 Higher Ed. Committee.

 FISCAL IMPLICATIONS :
None.

 EFFECTIVE DATE :
The first of January after the date it becomes law and shall apply to
all actions commenced on or after its effective date.

2017-S5582 (ACTIVE) - Bill Text download pdf

                            
 
                     S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   5582
 
                        2017-2018 Regular Sessions
 
                             I N  S E N A T E
 
                              April 18, 2017
                                ___________
 
 Introduced  by  Sens. GRIFFO, RITCHIE -- read twice and ordered printed,
   and when printed to be committed to the Committee on Judiciary
 
 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.
                                                            LBD07784-01-7

 S. 5582                             2
 
 be revealed, and  therefore  will  establish  an  appropriate  limit  on
 liability, while affording adequate protection to the public.
   § 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:
   §  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.
   § 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;

 S. 5582                             3
 
   5. an action to recover  damages  for  a  personal  injury  except  as
 provided in sections 214-b, 214-c, 214-D and 215;
   §  4. Subdivision (h) of rule 3211 and subdivision (i) of rule 3212 of
 the civil practice law and rules are REPEALED.
   § 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.
   §  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.

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Senate Bill S5582

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Sponsored By

Joseph A. Griffo