NY State Senate Bill 2023-S6059

Senate Bill S6059

2023-2024 Legislative Session

Prohibits broad indemnification by a design professional of a state or local agency or political subdivision involving public work for contracts

download bill text pdf

Current Bill Status - Stricken

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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Actions

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	Assembly Actions - Lowercase Senate Actions - UPPERCASE
May 06, 2024	recommit, enacting clause stricken
Jan 03, 2024	referred to procurement and contracts
May 22, 2023	reported and committed to finance
Mar 27, 2023	referred to procurement and contracts

Votes

- May 22, 2023 - Procurement And Contracts Committee Vote
  S6059
  
  5
  
  Aye
  
  0
  
  Nay
  
  2
  
  Aye with Reservations
  
  0
  
  Absent
  
  0
  
  Excused
  
  0
  
  Abstained
  - - Procurement And Contracts Committee Vote: May 22, 2023
      
      aye (5)
      
      Cooney
      
      Gonzalez
      
      Sanders Jr.
      
      Stavisky
      
      Webb
      
      aye wr (2)
      
      Martins
      
      Rolison

co-Sponsors

2023-S6059 (ACTIVE) - Details

See Assembly Version of this Bill:: A7610
Law Section:: General Municipal Law
Laws Affected:: Add §103-h, Gen Muni L; add §2879-d, Pub Auth L; amd §136-a, St Fin L

2023-S6059 (ACTIVE) - Summary

Prohibits broad indemnification by a design professional of a state or local agency or political subdivision involving public work for contracts except to the extent that damages were caused by or the result of the negligence, recklessness, or willful misconduct of the design professional.

2023-S6059 (ACTIVE) - Sponsor Memo

                                 
BILL NUMBER: S6059

SPONSOR: KENNEDY
 
TITLE OF BILL:

An act to amend the general municipal law, the public authorities law
and the state finance law, in relation to liability of design profes-
sionals

 
PURPOSE OF THE BILL:

The bill provides that in contracts for public works, design profes-
sionals (engineers, architects and surveyors) may be required to defend
and provide indemnification for damages caused by or are the result of
their own negligence, recklessness, or willful misconduct, but not for
damages that are the responsibility of other parties, and that contract
provisions that attempt to expand the defense and indemnification obli-
gations of such design professionals to include damages caused by other
parties are void and contrary to public policy.

 
SUMMARY OF SPECIFIC PROVISIONS:

Section 1 amends article 5-A of the General Municipal Law by adding a
new § 103-h. The new § 103-h provides that provisions requiring defense
and indemnification in contracts involving a public work are void to the
extent that a design professional is required to defend and indemnify a
political subdivision or other parties for damages that are not the
result of the negligence, recklessness, or willful misconduct of the
design professional. The amendment more clearly states the objective of
this provision.

Section 2 amends the Public Authorities Law by adding a new § 2879-d.
The new § 2879-d provides that provisions requiring defense and indemni-
fication in contracts involving a public work are void to the extent
that a design professional is required to defend and indemnify the
public authority or other parties for damages that are not the result of
the negligence, recklessness, or willful misconduct of the design
professional. The amendment more clearly states the objective of this
provision.

Section 3 amends § 136-a of the State Finance Law by adding a new subdi-
vision 6. The new subdivision 6 provides that provisions requiring
defense and indemnification in contracts involving a public work are
void to the extent that a design professional is required to defend and
indemnify a State Agency or other parties for damages that are not the
result of the negligence, recklessness, or willful misconduct of the
design professional. The amendment more clearly states the objective of
this provision.

Section 4 provides that the provisions of bill shall take effect imme-
diately.

 
JUSTIFICATION:

State agencies, public authorities and local governments have long
insisted upon the inclusion of broad form indemnification provisions in
contracts for public works with design professionals. Design profes-
sional have little or no ability to negotiate with public owners regard-
ing these provisions. In fact, the public owner can dictate contract
terms of this type. The design professional only options are to assume
the risks related to these provisions or walk away from the contract.

These broad contractual provisions subject the design professional to
liability for services that are well beyond the design professional's
contractual scope of work and for matters over which the design profes-
sional has no control.

Design professionals are unable to secure insurance to cover the scope
of claims these provisions can generate. The demands for defense and
indemnification costs beyond the scope of the design professional's
contractual scope of work may be illusory. This is particularly the case
in instances when the public owner tenders a demand on the design
professional for the provision of defense costs for claims unrelated to
design professional's work.

 
PRIOR LEGISLATIVE HISTORY:

Similar bill: S.6622A (vetoed by the Governor)

 
FISCAL IMPLICATIONS:

None

 
EFFECTIVE DATE:
The bill shall take effect immediately.

2023-S6059 (ACTIVE) - Bill Text download pdf

                             
                     S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   6059
 
                        2023-2024 Regular Sessions
 
                             I N  S E N A T E
 
                              March 27, 2023
                                ___________
 
 Introduced  by  Sen. KENNEDY -- read twice and ordered printed, and when
   printed to be committed to the Committee on Procurement and Contracts
 
 AN ACT to amend the general municipal law, the  public  authorities  law
   and  the state finance law, in relation to liability of design profes-
   sionals

   THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
 BLY, DO ENACT AS FOLLOWS:
 
   Section  1.  The  general  municipal  law  is  amended by adding a new
 section 103-h to read as follows:
   § 103-H. DESIGN  PROFESSIONAL  LIABILITY.  1.  FOR  PURPOSES  OF  THIS
 SECTION, THE TERM "DESIGN PROFESSIONAL" SHALL MEAN:
   A. AN INDIVIDUAL LICENSED PURSUANT TO ARTICLES ONE HUNDRED FORTY-FIVE,
 ONE  HUNDRED  FORTY-SEVEN,  AND ONE HUNDRED FORTY-EIGHT OF THE EDUCATION
 LAW; OR
   B. ANY CORPORATION, LIMITED LIABILITY COMPANY,  PARTNERSHIP  OR  OTHER
 BUSINESS  ENTITY  LEGALLY  AUTHORIZED TO PRACTICE ANY OF THE PROFESSIONS
 REGULATED BY ARTICLES ONE HUNDRED FORTY-FIVE, ONE  HUNDRED  FORTY-SEVEN,
 AND ONE HUNDRED FORTY-EIGHT OF THE EDUCATION LAW.
   2. ANY PROVISION, CLAUSE, COVENANT, OR AGREEMENT CONTAINED IN, COLLAT-
 ERAL TO, OR AFFECTING A CONTRACT EXECUTED ON OR AFTER JANUARY FIRST, TWO
 THOUSAND  TWENTY-FOUR  BETWEEN  A  MUNICIPAL  CORPORATION, AS DEFINED IN
 SECTION SIXTY-SIX OF THE GENERAL CONSTRUCTION LAW, AND A DESIGN  PROFES-
 SIONAL   FOR   PROFESSIONAL  DESIGN  SERVICES  RELATED  TO  THE  DESIGN,
 CONSTRUCTION, REPAIR, OR MAINTENANCE OF ANY PUBLIC BUILDING,  STRUCTURE,
 HIGHWAY, BRIDGE, VIADUCT, WATER OR SEWER SYSTEM, OR OTHER PUBLIC FACILI-
 TY  THAT  REQUIRES  A  DESIGN  PROFESSIONAL  TO DEFEND OR INDEMNIFY SUCH
 MUNICIPAL  CORPORATION,  ITS  AGENTS,  CONTRACTORS,  SUBCONTRACTORS   OR
 SUPPLIERS  SHALL  BE  DEEMED  VOID  AND AGAINST PUBLIC POLICY AND WHOLLY
 UNENFORCEABLE, EXCEPT AS TO CLAIMS THAT ARE CAUSED BY OR THE  RESULT  OF
 THE  NEGLIGENCE,  RECKLESSNESS,  OR  WILLFUL  MISCONDUCT  OF  THE DESIGN
 PROFESSIONAL. ANY CONTRACTUAL OBLIGATION PERMITTED  UNDER  THIS  SECTION
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
                                                            LBD10182-01-3

 S. 6059                             2
 
 SHALL  BE  LIMITED  AND  ENFORCEABLE ONLY TO THE DEGREE OR PERCENTAGE OR
 FAULT ATTRIBUTABLE TO SUCH DESIGN PROFESSIONAL.
   §  2.  The  public  authorities law is amended by adding a new section
 2879-d to read as follows:
   § 2879-D. DESIGN PROFESSIONAL LIABILITY. 1. AS USED IN THIS SECTION:
   A. THE TERM "DESIGN PROFESSIONAL" SHALL MEAN:
   (1) AN INDIVIDUAL LICENSED PURSUANT TO  ARTICLES  ONE  HUNDRED  FORTY-
 FIVE, ONE HUNDRED FORTY-SEVEN, AND ONE HUNDRED FORTY-EIGHT OF THE EDUCA-
 TION LAW, OR
   (2)  ANY  CORPORATION, LIMITED LIABILITY COMPANY, PARTNERSHIP OR OTHER
 BUSINESS ENTITY LEGALLY AUTHORIZED TO PRACTICE ANY  OF  THE  PROFESSIONS
 REGULATED  BY  ARTICLES ONE HUNDRED FORTY-FIVE, ONE HUNDRED FORTY-SEVEN,
 AND ONE HUNDRED FORTY-EIGHT OF THE EDUCATION LAW.
   B. THE TERM "STATE AUTHORITY" SHALL MEAN A PUBLIC AUTHORITY OR  PUBLIC
 BENEFIT  CORPORATION  CREATED  BY  OR EXISTING UNDER THIS CHAPTER OR ANY
 OTHER LAW OF THE STATE OF NEW YORK, WITH ONE  OR  MORE  OF  ITS  MEMBERS
 APPOINTED BY THE GOVERNOR OR WHO SERVE AS MEMBERS BY VIRTUE OF HOLDING A
 CIVIL  OFFICE  OF  THE  STATE, OTHER THAN AN INTERSTATE OR INTERNATIONAL
 AUTHORITY OR PUBLIC BENEFIT CORPORATION, INCLUDING SUBSIDIARIES OF  SUCH
 PUBLIC AUTHORITY OR PUBLIC BENEFIT CORPORATION.
   C.  THE  TERM  "LOCAL AUTHORITY" SHALL MEAN: (1) A PUBLIC AUTHORITY OR
 PUBLIC BENEFIT CORPORATION CREATED BY OR EXISTING UNDER THIS CHAPTER  OR
 ANY OTHER LAW OF THE STATE OF NEW YORK WHOSE MEMBERS DO NOT HOLD A CIVIL
 OFFICE  OF THE STATE, ARE NOT APPOINTED BY THE GOVERNOR OR ARE APPOINTED
 BY THE GOVERNOR  SPECIFICALLY  UPON  THE  RECOMMENDATION  OF  THE  LOCAL
 GOVERNMENT  OR  GOVERNMENTS; (2) A NOT-FOR-PROFIT CORPORATION AFFILIATED
 WITH, SPONSORED BY, OR CREATED  BY  A  COUNTY,  CITY,  TOWN  OR  VILLAGE
 GOVERNMENT;  (3)  A  LOCAL INDUSTRIAL DEVELOPMENT AGENCY OR AUTHORITY OR
 OTHER LOCAL PUBLIC BENEFIT CORPORATION; (4) AN AFFILIATE OF  SUCH  LOCAL
 AUTHORITY;  OR  (5)  A LAND BANK CORPORATION CREATED PURSUANT TO ARTICLE
 SIXTEEN OF THE NOT-FOR-PROFIT CORPORATION LAW.
   2. ANY PROVISION, CLAUSE, COVENANT, OR AGREEMENT CONTAINED IN, COLLAT-
 ERAL TO, OR AFFECTING A CONTRACT EXECUTED ON OR AFTER JANUARY FIRST, TWO
 THOUSAND TWENTY-FOUR BETWEEN A STATE AUTHORITY OR LOCAL AUTHORITY AND  A
 DESIGN  PROFESSIONAL  FOR  PROFESSIONAL  DESIGN  SERVICES RELATED TO THE
 DESIGN, CONSTRUCTION, REPAIR, OR MAINTENANCE  OF  ANY  PUBLIC  BUILDING,
 STRUCTURE,  HIGHWAY,  BRIDGE,  VIADUCT,  WATER OR SEWER SYSTEM, OR OTHER
 PUBLIC FACILITY THAT REQUIRES A DESIGN PROFESSIONAL TO DEFEND OR  INDEM-
 NIFY  SUCH  STATE AUTHORITY OR LOCAL AUTHORITY, ITS AGENTS, CONTRACTORS,
 SUBCONTRACTORS OR SUPPLIERS SHALL BE  DEEMED  VOID  AND  AGAINST  PUBLIC
 POLICY  AND WHOLLY UNENFORCEABLE, EXCEPT AS TO CLAIMS THAT ARE CAUSED BY
 OR THE RESULT OF THE NEGLIGENCE, RECKLESSNESS, OR WILLFUL MISCONDUCT  OF
 THE DESIGN PROFESSIONAL. ANY CONTRACTUAL OBLIGATION PERMITTED UNDER THIS
 SECTION  SHALL BE LIMITED AND ENFORCEABLE ONLY TO THE DEGREE OR PERCENT-
 AGE OR FAULT ATTRIBUTABLE TO SUCH DESIGN PROFESSIONAL.
   § 3. Section 136-a of the state finance law is amended by adding a new
 subdivision 6 to read as follows:
   6. A. AS USED IN THIS SUBDIVISION:
   (1) THE TERM "DESIGN  PROFESSIONAL"  SHALL  MEAN:  (I)  AN  INDIVIDUAL
 LICENSED  PURSUANT  TO  ARTICLES  ONE  HUNDRED  FORTY-FIVE,  ONE HUNDRED
 FORTY-SEVEN, AND ONE HUNDRED FORTY-EIGHT OF THE EDUCATION LAW;  OR  (II)
 ANY  CORPORATION,  LIMITED LIABILITY COMPANY, PARTNERSHIP OR OTHER BUSI-
 NESS ENTITY LEGALLY AUTHORIZED TO PRACTICE ANY OF THE PROFESSIONS  REGU-
 LATED  BY  ARTICLES ONE HUNDRED FORTY-FIVE, ONE HUNDRED FORTY-SEVEN, AND
 ONE HUNDRED FORTY-EIGHT OF THE EDUCATION LAW.
 S. 6059                             3

   (2) THE TERM "STATE AGENCY" SHALL MEAN (I) ANY STATE DEPARTMENT,  (II)
 ANY DIVISION, BOARD, COMMISSION OR BUREAU OF ANY STATE DEPARTMENT, (III)
 THE  STATE  UNIVERSITY  OF NEW YORK AND THE CITY UNIVERSITY OF NEW YORK,
 INCLUDING ALL THEIR CONSTITUENT UNITS, OR (IV) A BOARD,  A  MAJORITY  OF
 WHOSE  MEMBERS  ARE  APPOINTED BY THE GOVERNOR OR WHO SERVE BY VIRTUE OF
 BEING STATE OFFICERS OR EMPLOYEES AS DEFINED IN SUBPARAGRAPH  (I),  (II)
 OR (III) OF PARAGRAPH (I) OF SUBDIVISION ONE OF SECTION SEVENTY-THREE OF
 THE PUBLIC OFFICERS LAW.
   B. ANY PROVISION, CLAUSE, COVENANT, OR AGREEMENT CONTAINED IN, COLLAT-
 ERAL TO, OR AFFECTING A CONTRACT EXECUTED ON OR AFTER JANUARY FIRST, TWO
 THOUSAND  TWENTY-FOUR  BETWEEN  A STATE AGENCY AND A DESIGN PROFESSIONAL
 FOR PROFESSIONAL DESIGN SERVICES RELATED TO  THE  DESIGN,  CONSTRUCTION,
 REPAIR,  OR  MAINTENANCE  OF  ANY  PUBLIC  BUILDING, STRUCTURE, HIGHWAY,
 BRIDGE, VIADUCT, WATER OR SEWER SYSTEM, OR OTHER  PUBLIC  FACILITY  THAT
 REQUIRES A DESIGN PROFESSIONAL TO DEFEND OR INDEMNIFY SUCH STATE AGENCY,
 ITS  AGENTS,  CONTRACTORS,  SUBCONTRACTORS  OR SUPPLIERS SHALL BE DEEMED
 VOID AND AGAINST PUBLIC POLICY AND WHOLLY UNENFORCEABLE,  EXCEPT  AS  TO
 CLAIMS THAT ARE CAUSED BY OR THE RESULT OF THE NEGLIGENCE, RECKLESSNESS,
 OR  WILLFUL MISCONDUCT OF THE DESIGN PROFESSIONAL. ANY CONTRACTUAL OBLI-
 GATION PERMITTED UNDER THIS SECTION SHALL  BE  LIMITED  AND  ENFORCEABLE
 ONLY  TO  THE  DEGREE OR PERCENTAGE OR FAULT ATTRIBUTABLE TO SUCH DESIGN
 PROFESSIONAL.
   § 4. This act shall take effect immediately.

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Senate Bill S6059

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Sponsored By

Timothy M. Kennedy