STATE OF NEW YORK
       ________________________________________________________________________
 
                                         2303
 
                              2001-2002 Regular Sessions
 
                    IN SENATE
 
                                   February 8, 2001
                                      ___________
 
       Introduced  by  Sens.  VOLKER,  ALESI,  LARKIN,  McGEE -- read twice and
         ordered printed, and when printed to be committed to the Committee  on
         Codes
 
       AN ACT to amend the civil practice law and rules, in relation to requir-
         ing  the filing of a certificate of merit in actions for negligence or
         malpractice against an architect or professional engineer
 
         The People of the State of New York, represented in Senate and  Assem-
       bly, do enact as follows:
 
    1    Section  1.  Section  3012-a  of  the civil practice law and rules, as
    2  amended by chapter 507 of the laws  of  1987,  is  amended  to  read  as
    3  follows:
    4    §  3012-a.  Certificate  of  merit in medical, dental [and], podiatric
    5  [malpractice], architectural or professional engineering actions. (a) In
    6  any action for medical, dental  or  podiatric  malpractice,  or  in  any
    7  action  for  damages,  contribution  or indemnity arising out of alleged
    8  malpractice or negligence of an architect or professional engineer,  the
    9  complaint  shall be accompanied by a certificate, executed by the attor-
   10  ney for the plaintiff, or other party asserting  the  cause  of  action,
   11  declaring that:
   12    (1)  the attorney has reviewed the facts of the case and has consulted
   13  with at least one physician in medical malpractice actions, at least one
   14  dentist in dental malpractice actions [or], at least one  podiatrist  in
   15  podiatric  malpractice  actions, at least one architect in architectural
   16  malpractice actions or at least one  professional  engineer  in  profes-
   17  sional  engineering  malpractice  actions who is licensed to practice in
   18  this state or any other state and who the attorney  reasonably  believes
   19  is  knowledgeable  in  the  relevant  issues  involved in the particular
   20  action, and that the attorney has concluded on the basis of such  review
   21  and  consultation  that there is a reasonable basis for the commencement
   22  of such action; or
 
        EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                             [ ] is old law to be omitted.
                                                                  LBD07903-01-1

       S. 2303                             2
 
    1    (2) the attorney was unable to obtain  the  consultation  required  by
    2  paragraph  one  of this subdivision because a limitation of time, estab-
    3  lished by article two of this chapter, would bar the action and that the
    4  certificate required by paragraph one  of  this  subdivision  could  not
    5  reasonably  be  obtained  before  such time expired. If a certificate is
    6  executed pursuant to this subdivision, the certificate required by  this
    7  section  shall  be  filed  within  ninety  days  after  service  of  the
    8  complaint; or
    9    (3) the attorney was unable to obtain  the  consultation  required  by
   10  paragraph  one  of  this subdivision because the attorney had made three
   11  separate good faith attempts with three  separate  physicians,  dentists
   12  [or],  podiatrists,  architects or professional engineers, in accordance
   13  with the provisions of paragraph one of this subdivision to obtain  such
   14  consultation and none of those contacted would agree to such a consulta-
   15  tion.
   16    (b) Where a certificate is required pursuant to this section, a single
   17  certificate  shall  be  filed  for  each  action,  even if more than one
   18  defendant has been named in the complaint or is subsequently named.
   19    (c) Where the attorney intends to rely solely on the doctrine of  "res
   20  ipsa  loquitur", this section shall be inapplicable.  In such cases, the
   21  complaint shall be accompanied by a certificate, executed by the  attor-
   22  ney, declaring that the attorney is solely relying on such doctrine and,
   23  for that reason, is not filing a certificate required by this section.
   24    (d)  If  a request by the plaintiff for the records of the plaintiff's
   25  medical or dental treatment by the defendants has  been  made  and  such
   26  records  have  not been produced, the plaintiff shall not be required to
   27  serve the certificate required by this section until ninety  days  after
   28  such records have been produced.
   29    (e)  For  purposes  of  this section, and subject to the provisions of
   30  section thirty-one hundred one of this chapter, an attorney who  submits
   31  a  certificate as required by paragraph one or two of subdivision (a) of
   32  this section and the physician, dentist [or], podiatrist,  architect  or
   33  professional  engineer  with  whom  the  attorney consulted shall not be
   34  required to disclose the identity of the physician, dentist [or], podia-
   35  trist, architect or professional engineer consulted and the contents  of
   36  such  consultation;  provided,  however,  that when the attorney makes a
   37  claim under paragraph three of subdivision (a) of this section that [he]
   38  the attorney was unable to obtain the  required  consultation  with  the
   39  physician, dentist [or], podiatrist, architect or professional engineer,
   40  the  court may, upon the request of a defendant made prior to compliance
   41  by the plaintiff with the provisions of section thirty-one  hundred  one
   42  of  this chapter, require the attorney to divulge to the court the names
   43  of physicians, dentists [or], podiatrists,  architects  or  professional
   44  engineers refusing such consultation.
   45    (f) The provisions of this section shall not be applicable to a plain-
   46  tiff who is not represented by an attorney.
   47    (g)  The plaintiff may, in lieu of serving the certificate required by
   48  this section, provide the defendant or defendants with  the  information
   49  required  by  paragraph  one  of  subdivision  (d) of section thirty-one
   50  hundred one of this chapter within the period of time prescribed by this
   51  section.
   52    (h) The physician,  dentist,  podiatrist,  architect  or  professional
   53  engineer consulted may not be a party to the litigation.
   54    (i)  For  purposes  of  this  section,  a  complaint  shall  include a
   55  complaint, third party complaint, an answer containing a counterclaim or
   56  a cross claim.

       S. 2303                             3
 
    1    (j) For purposes of this section, the  term  "architect"  or  "profes-
    2  sional  engineer"  shall  be  deemed to include architects, professional
    3  engineers, landscape architects or land surveyors.
    4    § 2. Nothing contained in this act shall be construed as affecting the
    5  rights, obligations or duties arising under any contract entered into or
    6  any cause of action resulting from an injury which occurred prior to the
    7  effective date of this act.
    8    §  3.    This  act  shall take effect on the first day of January next
    9  succeeding the date on which it shall have become a law and shall  apply
   10  to all actions commenced on or after such date.

 
BILL NUMBER: S2303
 
SPONSOR: VOLKER

 
TITLE:  An Act to amend the Civil Practice Law and Rules, in relation
to requiring the filing of a certificate of merit in actions for negli-
gence or malpractice against an architect or professional engineer.
 
 
PURPOSE:  To require a certificate of merit in actions for damages,
contribution or indemnity arising out of alleged malpractice or negli-
gence of an architect or professional engineer.
 
 
SUMMARY OF PROVISIONS:  Amends CPLR 3012-a to provide that a complaint
in a malpractice or negligence action involving an architect or profes-
sional engineer must be accompanied by a certificate of merit of an
attorney that at least one architect or professional engineer has been
consulted and that the attorney has concluded that there is a reasonable
basis for the action. If the attorney is unable to timely procure such a
consultation because of the running of the statute of limitations or
after three good faith attempts to do so, this must be stated. Where the
attorney intends to rely solely on the doctrine of "res ipsa loquitur",
this section is not applicable.
 
 
EXISTING LAW:  A certificate of merit currently is required in
medical, dental and podiatric suits. This bill would extend the require-
ment to malpractice or negligence actions against an architect or
professional engineer.
 
 
JUSTIFICATION:  Many members of the design professions have found
themselves to be the targets of frivolous lawsuits. The CPLR 3012-a
certificate of merit requirement is presently in effect for medical,
dental and podiatric malpractice suits. This legislation seeks to ensure
that plaintiff's counsel has consulted with a professional engineer or
architect, whichever is relevant, to ascertain that a valid cause of
action exists. Litigants will not be barred from bringing suit, but
absent a favorable opinion from a knowledgeable professional as to the
merits, it is anticipated that actions may be ended in the early stages,
thus saving both parties the expense of litigation, and relieving court
congestion.
 
 
LEGISLATIVE HISTORY:  1999-00,S.2274.  S.2092 introduced in 1997;
passed Senate.
 
 
FISCAL IMPLICATIONS:  None.
 
 
EFFECTIVE DATE:  The first day of January after the date it becomes
law.