BILL NUMBER: S5364
SPONSOR: COMRIE
 
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:
S6059 of 2024 Similar bill: S.6622A (vetoed by the Governor)
 
FISCAL IMPLICATIONS:
None
 
EFFECTIVE DATE:
The bill shall take effect immediately.

Statutes affected:
S5364: 136-a state finance law