BILL NUMBER: S2146A
SPONSOR: COONEY
 
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, geologists
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:
The purpose of this bill is 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 profes-
sional engineers, architects, landscape architects, land surveyors,
geologists or construction contractors. The accrual date for the limita-
tions 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, geologist 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 stat-
ute of repose to third party actions, thereby leaving intact the exist-
ing 3- or 6-year statute of limitations governing actions by an
owner/client.
 
JUSTIFICATION:
When a contractor or design professional's client (i.e., owner of a
building) sues a contractor or design professional, CPLR's general stat-
ute of limitation rules apply and operates 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 accrued at the time of injury. A malp-
ractice 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 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, geologists
and contractors liable for errors in design where injuries are sustained
many years after the rendition of services and where the design profes-
sional, geologist 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 build-
ing, 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 most
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 demon-
strate that the problem is not the number of actual claims brought after
ten years - the problem is the threat of potential lawsuits which force
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 inju-
ry, 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 inju-
ry 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 seven years or more with completion of the project serving as the
accrual date for the cause of action.
 
LEGISLATIVE HISTORY:
FY 2023-2024, S8213/A4549: Advanced to Third Reading, Committed to Rules
 
FISCAL IMPLICATIONS:
This bill will have no fiscal impact on the State or local governments.
 
EFFECTIVE DATE:
This act shall take effect

Statutes affected:
S2146: 214-d civil practice law
S2146A: 214-d civil practice law