The Time is Now for New York State to Enact a Meaningful Statute of Repose to Provide Local Design Professionals with Protection on Par with that Afforded by Other States
New York is one of only two states which has yet to ratify a true statute of repose. Certain groups continue to lobby for the enactment of a statute of repose similar to that passed by other states. However, the legislature has not demonstrated any inclination to adopt such a statute to date. When considering New York’s claimed status as forward thinking and progressive, the absence of a meaningful statute of repose is nothing short of mind boggling.
§214-d of the New York Civil Practice Law and Rules requires wrongful death, personal injury and property damage claimants to provide design professionals with a written notice of claim, at least ninety days prior to commencing suit, when the conduct at issue occurred more than ten years prior to the date of the claim. §214-d is sometimes referred to as a statute of repose. However, it does not have nearly the same effect as the statutes of repose passed in 48 other states.
A meaningful statute of repose is akin to a statute of limitations in that it bars wrongful death, personal injury and property damage claims asserted against design professionals after the expiration of the fixed limitation of time. Under the current law, design professionals practicing in New York are subject to these third party claims for an indefinite period of time. These professionals are robbed of the peace of mind that comes with the knowledge that potential third party claims resulting from past troublesome projects are no longer actionable. Further, since they are subject to liability for third party claims in perpetuity, New York design professionals oftentimes are bereft of any documentary evidence and/or witnesses required to defend a claim resulting from a project completed long ago.
The design and construction communities in New York have been advocating for a meaningful statute of repose for years. In addition to the aforementioned issues, some groups argue that the absence of a statute of repose is one of the primary reasons behind the excessive cost of design liability insurance premiums. In this regard, indefinite exposure to potential claims results in an increase in defense costs which consequently leads to an escalation of insurance premium amounts. As a result of the relatively high cost of doing business in New York, some design professionals undoubtedly will relocate out of state.
Due in significant part to lobbying efforts, the New York Legislature is considering whether to repeal §214-d in its current form and provide a 10-year statute of limitations for wrongful death, personal injury, and real property damage claims asserted against design and construction professionals. In this regard, the Assembly’s Standing Committee On Higher Education and the Senate’s Judiciary Committee are each considering a bill (Assembly Bill A3595 and Senate Bill S5158) which provides a limitations period of ten years after the completion of improvements to real property. In the interest of fairness, each bill provides for a one year extension to assert a claim which accrues during the tenth year after the completion of the improvements. In the event one or both bills garner sufficient support, the bill(s) will be moved to the Assembly and/or Senate floor(s) for a vote.
The time is now for New York to level the playing field by adopting a statute of repose with teeth. Lobbying efforts, while certainly beneficial, only go so far. Absent the enactment of a meaningful statute of repose, the abundance of exceptional architects, engineers and land surveyors in New York may become a thing of the past.
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