STATE OF NEW YORK
       ________________________________________________________________________
 
                                         5138
 
                              2001-2002 Regular Sessions
 
                    IN SENATE
 
                                    April 23, 2001
                                      ___________
 
       Introduced by Sen. DOLLINGER -- read twice and ordered printed, and when
         printed to be committed to the Committee on Judiciary
 
       AN  ACT  to amend the general obligations law and the civil practice law
         and rules, in  relation  to  civil  actions  brought  against  certain
         producers or manufacturers
 
         The  People of the State of New York, represented in Senate and Assem-
       bly, do enact as follows:
 
    1    Section 1. The general obligations law is  amended  by  adding  a  new
    2  section 11-108 to read as follows:
    3    § 11-108. Market share liability in civil actions. 1. Any person seek-
    4  ing  damages in a civil action for injuries sustained as a result of the
    5  presence, removal or abatement of or exposure to lead-based paint in any
    6  residential, child-care or infant day-care premises who establishes:
    7    (a) that a producer or manufacturer of any  lead  constituent  of  the
    8  paint present in the premises cannot be positively identified;
    9    (b) that the lead constituent of said paint was a substantial contrib-
   10  uting  factor  in  bringing  about  the  injuries  for which damages are
   11  sought; and
   12    (c) that the producers or manufacturers of the types or kinds of  lead
   13  constituents  found  in  such paint committed acts or omissions by their
   14  production or manufacture of such lead  constituents  as  would  subject
   15  them  to liability under the laws of the state of New York for the inju-
   16  ries complained of if the producer or manufacturer of the lead constitu-
   17  ents in the paint present in the premises could be identified  shall  be
   18  entitled  to recover all damages suffered from any producers or manufac-
   19  turers of such lead constituents who are joined as parties in the  civil
   20  action.
   21    2.  Any damages awarded under subdivision one of this section shall be
   22  apportioned in equal shares among the producers or manufacturers  joined
   23  in the civil action; provided, however, that any producer or manufactur-
   24  er  which  establishes its actual share of the total amount of such lead
 
        EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                             [ ] is old law to be omitted.
                                                                  LBD10982-01-1

       S. 5138                             2
 
    1  constituents used in paint produced or manufactured at the time  of  the
    2  production  or manufacture of the lead constituent found in the paint in
    3  the residential premises which is the subject of the civil action, shall
    4  be liable only for that portion of the total damages represented by such
    5  share.
    6    3.  Notwithstanding the provisions of subdivisions one and two of this
    7  section, no producer or manufacturer shall be  liable  for  any  damages
    8  under this section if it establishes:
    9    (a)  that  it  did  not  produce  or manufacture the lead constituents
   10  determined to have substantially contributed to the injuries  for  which
   11  damages are sought; or
   12    (b)  that it did not produce or manufacture the types or kinds of lead
   13  constituents found in the paint in the residential premises which is the
   14  subject of the civil action during the time that said paint was produced
   15  or manufactured.
   16    4. The remedy provided by this section is not  exclusive  and  supple-
   17  ments any existing statutory or common law cause of action.
   18    5. A parent or guardian of a child for whom an action has been brought
   19  for  damages  or injuries caused by exposure to dangerous levels of lead
   20  in a residential premise shall not be liable  to  any  other  person  or
   21  entity  for contribution pursuant to article fourteen of the civil prac-
   22  tice law and rules for those damages or injuries.
   23    § 2. Section 213 of the civil practice  law  and  rules,  the  section
   24  heading  as amended and subdivisions 7 and 8 as renumbered by chapter 43
   25  of the laws of 1975, subdivision 2 as amended by chapter 709 of the laws
   26  of 1988, subdivision 6 as amended by chapter 248 of the  laws  of  1965,
   27  subdivision 7 as amended by chapter 532 of the laws of 1963 and subdivi-
   28  sion  8  as added by chapter 248 of the laws of 1965, is amended to read
   29  as follows:
   30    § 213. Actions to be commenced within six years: where  not  otherwise
   31  provided  for;  on  contract; on sealed instrument; on bond or note, and
   32  mortgage upon real property;  by  state  based  on  misappropriation  of
   33  public  property;  based  on  mistake;  by corporation against director,
   34  officer or stockholder; based on fraud. The following  actions  must  be
   35  commenced within six years:
   36    1.  an  action  for  which no limitation is specifically prescribed by
   37  law;
   38    2. an action upon a contractual obligation or  liability,  express  or
   39  implied,  except  as  provided in section two hundred thirteen-a of this
   40  article or article 2 of the uniform commercial code or article  36-B  of
   41  the general business law;
   42    3. an action upon a sealed instrument;
   43    4. an action upon a bond or note, the payment of which is secured by a
   44  mortgage  upon  real  property,  or  upon a bond or note and mortgage so
   45  secured, or upon a mortgage of real property, or any interest therein;
   46    5. an action by the state based upon the spoliation or other misappro-
   47  priation of public property; the time within which the  action  must  be
   48  commenced  shall  be  computed  from discovery by the state of the facts
   49  relied upon;
   50    6. an action based upon mistake;
   51    7. an action by or on behalf of a corporation  against  a  present  or
   52  former director, officer or stockholder for an accounting, or to procure
   53  a judgment on the ground of fraud, or to enforce a liability, penalty or
   54  forfeiture, or to recover damages for waste or for an injury to property
   55  or for an accounting in conjunction therewith[.];

       S. 5138                             3
 
    1    8.  an  action based upon fraud; the time within which the action must
    2  be commenced shall be computed from the time the plaintiff or the person
    3  under whom he claims discovered the  fraud,  or  could  with  reasonable
    4  diligence have discovered it[.];
    5    9.  an  action  brought by or on behalf of any owner of a residential,
    6  child-care or infant  day-care  premises  or  any  county,  city,  town,
    7  regional  school district, housing authority or the state of New York or
    8  any other political subdivision thereof to recover any costs  associated
    9  with  lead-based  paint  related  corrective  actions including, but not
   10  limited to, the removal or replacement of lead-based paint and materials
   11  containing lead-based paint pursuant to section 11-108  of  the  general
   12  obligations  law,  shall  be  commenced only within six years next after
   13  such owner,  county,  city,  town,  regional  school  district,  housing
   14  authority  or  the  state of New York or any other political subdivision
   15  thereof knew of the presence of and the hazard of damage caused  by  the
   16  presence  of  such  lead-based  paint  or material containing lead-based
   17  paint within its buildings.
   18    § 3. This act shall take effect immediately.

 
BILL NUMBER: S5138
 
SPONSOR: DOLLINGER

 
TITLE OF BILL:  An act to amend the general obligations law and the
civil practice law and rules, in relation to civil actions brought
against certain producers or manufacturers
 
 
PURPOSE:  To provide a legal remedy mechanism of market share liabil-
ity so lead-based paint manufacturers will help pay for damages to chil-
dren who have been poisoned by lead-based paint.
 
 
SUMMARY OF PROVISIONS:.  Adds a new section, 11-108, to the general
obligations law and amends section 213 of the civil practice law and
rules providing for market share liability for a manufacturer of lead-
based paint or a manufacturer of any lead constituent of a lead-based
paint.
 
 
EXISTING LAW:  New bill.
 
 
JUSTIFICATION:  Lead poisoning is a very serious health problem for
New York's children.  Estimates are that thousands of children in New
York are poisoned each year, with upstate New York having more serious
problems than down state.  Most housing stock built before the 1970s
contain significant amounts of lead paint which is the chief cause of
lead poisoning in children.  Lead is very toxic to small children, with
the possibility of causing severe mental retardation if the poisoning is
not caught at an early age. Current New York law and regulations require
screening for lead exposure at one and two years old. Unfortunately, a
high percentage of children are not screened even though it is a state
requirement.  Even if they are screened, it is most often after the
fact--after they have ingested lead paint or breathed lead paint dust.
While efforts must continue to increase lead exposure testing, it is as
important, or even more important, to make certain that children are not
exposed to the lead danger in the first place. Housing units must be
lead free before children are allowed to live in them. This is critical
to poorer children living in urban areas because they are more likely to
live in housing built before the 1970s when lead-based paint was discon-
tinued.  The most serious problem in solving the lead poisoning problem
is the amount of money that it will take to adequately abate the risk in
the tens or hundreds of thousands of housing units that have dangerous
amounts of lead in them.  The Alliance to End Childhood Lead Poisoning
has stated, "the lead industry should be held accountable for cleaning
up the hazard it created. For decades, the industry aggressively
promoted lead-based paint as safe for use in houses, apartments,
schools, and nurseries, claiming that lead-based paint promoted health
and sanitation.  Although the industry internally acknowledged the
hazards of lead-based paint early in the 1900s, it concealed them from
the public."
 
 
LEGISLATIVE HISTORY:. New bill.
 
 
FISCAL IMPLICATIONS: None.
 
 
LOCAL FISCAL IMPLICATIONS: None.
 
 
EFFECTIVE DATE:; Immediately.