senate Bill S3334

2013-2014 Legislative Session

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

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Archive: Last Bill Status - In Committee


  • Introduced
  • In Committee
  • On Floor Calendar
    • Passed Senate
    • Passed Assembly
  • Delivered to Governor
  • Signed/Vetoed by Governor

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Assembly Actions - Lowercase
Senate Actions - UPPERCASE
Jan 08, 2014 referred to judiciary
Feb 01, 2013 referred to judiciary

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S3334 - Bill Details

See Assembly Version of this Bill:
A5301
Current Committee:
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 Previous Legislative Sessions:
2011-2012: S4782, A2475
2009-2010: A4394

S3334 - Bill Texts

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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.

view sponsor memo
BILL NUMBER:S3334

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 coverage 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 within 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 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: 2011-12 - S. 4782 Judiciary Committee/A. 2475
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.

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

                                  3334

                       2013-2014 Regular Sessions

                            I N  S E N A T E

                            February 1, 2013
                               ___________

Introduced  by  Sen.  GRIFFO -- 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.
                                                           LBD02789-01-3

S. 3334                             2

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;

S. 3334                             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.

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