RETRIEVE BILL
STATE OF NEW YORK
________________________________________________________________________
2944
2003-2004 Regular Sessions
IN SENATE
March 12, 2003
___________
Introduced by Sens. VOLKER, ALESI, FARLEY, GOLDEN, JOHNSON, McGEE, MORA-
HAN, NOZZOLIO, PADAVAN, RATH, TRUNZO, WRIGHT -- 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, the labor law, the
not-for-profit corporation law, the vehicle and traffic law, the court
of claims act, the general municipal law, the town law, the village
law, the judiciary law and the general obligations law, in relation to
enacting the civil justice reform act relating to civil liability and
to repeal article 16, section 214-d, subdivision (h) of rule 3211 and
subdivision (i) of rule 3212 of the civil practice law and rules and
section 241-a of the labor law relating thereto
The People of the State of New York, represented in Senate and Assem-
bly, do enact as follows:
1 Section 1. This act shall be entitled and may be referred to as the
2 "civil justice reform act".
3 § 2. Section 3012-a of the civil practice law and rules, as amended
4 by chapter 507 of the laws of 1987, is amended to read as follows:
5 § 3012-a. Certificate of merit in medical, dental and podiatric malp-
6 ractice actions and actions against all other professionals. (a) In any
7 action for medical, dental or podiatric malpractice, or in any action
8 for damages, contribution or indemnity arising out of alleged negligence
9 of a professional subject to the provisions of title VIII of the educa-
10 tion law, the complaint shall be accompanied by a certificate, executed
11 by the attorney for the plaintiff, or other party asserting the cause
12 of action, declaring that:
13 (1) the attorney has reviewed the facts of the case and has consulted
14 with at least one physician in medical malpractice actions, at least one
15 dentist in dental malpractice actions [or], at least one podiatrist in
16 podiatric malpractice actions, or at least one professional in the same
17 profession as the person or persons defendant in the subject suit in
18 other professional malpractice or negligence actions and who is licensed
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD04675-01-3
S. 2944 2
1 to practice in this state or any other state and who the attorney
2 reasonably believes is knowledgeable in the relevant issues involved in
3 the particular action, and who has signed an affidavit concluding that
4 there is a reasonable basis for the commencement of an action, such
5 affidavit shall accompany the certificate required by this section, and
6 that the attorney has concluded on the basis of such review [and],
7 consultation and affidavit that there is a reasonable basis for the
8 commencement of such action; or
9 (2) the attorney was unable to obtain the consultation and affida-
10 vit required by paragraph one of this subdivision because a limitation
11 of time, established by article two of this chapter, would bar the
12 action and that the certificate required by paragraph one of this
13 subdivision could not reasonably be obtained before such time expired.
14 If a certificate is executed pursuant to this subdivision, the
15 certificate required by this section shall be filed within ninety
16 days after service of the complaint; or
17 (3) the attorney was unable to obtain the consultation and affidavit
18 required by paragraph one of this subdivision because the attorney had
19 made three separate good faith attempts with three separate physicians,
20 dentists [or], podiatrists or subject professionals, in accordance with
21 the provisions of paragraph one of this subdivision to obtain such
22 consultation and affidavit and none of those contacted would agree to
23 such a consultation and affidavit.
24 (b) Where a certificate is required pursuant to this section, a single
25 certificate shall be filed for each action, even if more than one
26 defendant has been named in the complaint or is subsequently named.
27 (c) Where the attorney intends to rely solely on the doctrine of "res
28 ipsa loquitur", this section shall be inapplicable. In such cases, the
29 complaint shall be accompanied by a certificate, executed by the attor-
30 ney, declaring that the attorney is solely relying on such doctrine and,
31 for that reason, is not filing a certificate required by this section.
32 (d) If a request by the plaintiff for the records of the plaintiff's
33 medical or dental treatment by the defendants has been made and such
34 records have not been produced, the plaintiff shall not be required to
35 serve the certificate required by this section until ninety days after
36 such records have been produced.
37 (e) For purposes of this section, and subject to the provisions of
38 section thirty-one hundred one of this chapter, an attorney who submits
39 a certificate as required by paragraph one or two of subdivision (a) of
40 this section and the physician, dentist [or], podiatrist or subject
41 professionals with whom the attorney consulted shall not be required to
42 disclose the identity of the physician, dentist [or], podiatrist or
43 subject professionals consulted and the contents of such consultation
44 and affidavit; provided, however, that when the attorney makes a claim
45 under paragraph three of subdivision (a) of this section that he was
46 unable to obtain the required consultation and affidavit with the physi-
47 cian, dentist [or], podiatrist or subject professionals, the court may,
48 upon the request of a defendant made prior to compliance by the plain-
49 tiff with the provisions of section thirty-one hundred one of this chap-
50 ter, require the attorney to divulge to the court the names of physi-
51 cians, dentists [or], podiatrists or subject professionals refusing such
52 consultation and affidavit.
53 (f) The provisions of this section shall not be applicable to a plain-
54 tiff who is not represented by an attorney.
55 (g) The plaintiff may, in lieu of serving the certificate required by
56 this section, provide the defendant or defendants with the information
S. 2944 3
1 required by paragraph one of subdivision (d) of section thirty-one
2 hundred one of this chapter within the period of time prescribed by this
3 section.
4 (h) The subject professional or professionals consulted may not be a
5 party to the litigation.
6 (i) For purposes of this section, a complaint shall include a
7 complaint, third party complaint, an answer containing a counterclaim or
8 a cross claim.
9 § 3. Article 16 of the civil practice law and rules is REPEALED and a
10 new article 16 is added to read as follows:
11 ARTICLE 16
12 LIMITED LIABILITY OF PERSONS JOINTLY
13 LIABLE
14 1600. Definitions.
15 1601. Limited liability of persons jointly liable.
16 1602. Application.
17 1603. Burden of proof.
18 § 1600. Definitions. As used in this article, the term "damages" shall
19 include, but in no manner be limited to, all economic and non-economic
20 loss awarded in an action as pecuniary compensation or satisfaction for
21 an injury caused or loss sustained as a result of a breach of a contrac-
22 tual obligation, a tortuous act of commission or omission or any other
23 such incident.
24 § 1601. Limited liability of persons jointly liable. 1. Notwithstand-
25 ing any other provision of law, when a verdict or decision in an action
26 or claim for economic or non-economic damages is determined in favor of
27 a claimant in an action involving two or more wrongdoers jointly liable
28 or in a claim against the state, the liability of each such wrongdoer to
29 the claimant for loss shall not exceed the wrongdoer's equitable share
30 determined in accordance with the relative culpability of each person
31 causing or contributing to the total liability, whether or not such
32 person was or could have been a party to the action.
33 2. Nothing herein shall be construed to affect or impair any right of
34 a wrongdoer pursuant to the provisions of section 15-108 of the general
35 obligations law.
36 § 1602. Application. The limitations set forth in this article shall:
37 1. Apply to any claim for contribution or indemnification but shall
38 not include: (a) a claim for indemnification if, prior to the accident
39 or occurrence on which the claim is based, the claimant and the wrong-
40 doer had entered into a written contract in which the wrongdoer had
41 expressly agreed to indemnify the claimant for the type of loss
42 suffered; or
43 (b) a claim for indemnification by a public employee, including indem-
44 nification pursuant to section fifty-k of the general municipal law or
45 section seventeen or eighteen of the public officers law.
46 2. Not be construed to impair, alter, limit, modify, enlarge, abrogate
47 or restrict (i) the limitations set forth in section twenty-a of the
48 court of claims act; (ii) any immunity or right of indemnification
49 available to or conferred upon any defendant for any negligent or wrong-
50 ful act or omission; (iii) any right on the part of any defendant to
51 plead and prove an affirmative defense as to culpable conduct attribut-
52 able to a claimant or decedent which is claimed by such defendant in
53 diminution of damages in any action; and (iv) any liability arising by
54 reason of a non-delegable duty or by reason of the doctrine of respond-
55 ent superior.
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1 3. Not be applied to claims under the workers' compensation law or to
2 a claim against a defendant where the claimant has sustained a "grave
3 injury" as defined in section eleven of the workers' compensation law to
4 the extent of the equitable share of any person against whom the claim-
5 ant is barred from asserting a cause of action because of the applica-
6 bility of the workers' compensation law; provided, however, that nothing
7 in this section shall be construed to create, impair, alter, limit,
8 modify, enlarge, abrogate or restrict any theory of liability upon which
9 any person may be held liable.
10 4. In conjunction with the other provisions of this article not be
11 construed to create or enlarge actions for contributions or indemnity
12 barred because of the application of the workers' compensation law of
13 this state, any other state or the federal government, or section 18-201
14 of the general obligations law.
15 § 1603. Burden of proof. In any action or claim for damages, a party
16 asserting that the limitations of liability set forth in this article do
17 not apply shall allege, and must prove by a preponderance of the
18 evidence, that one or more of the exemptions set forth in either subdi-
19 vision one of section sixteen hundred one, or section sixteen hundred
20 two of this article, shall apply.
21 § 4. Section 214-d of the civil practice law and rules is REPEALED and
22 a new section 214-d is added to read as follows:
23 § 214-d. Limitations on certain actions against professional engi-
24 neers, architects, landscape architects, land surveyors or construction
25 contractors. 1. Except as otherwise provided in subdivision two of this
26 section, no action to recover damages for injury to the person or for
27 wrongful death or for damage to property nor any action for contribution
28 or indemnity for damages sustained on account of such injury or wrongful
29 death or damage to property arising from any defect in the structure or
30 improvement resulting from the design, planning, or supervision of
31 construction of an improvement to real property shall be brought against
32 a professional engineer, architect, landscape architect, land surveyor
33 or construction contractor more than ten years after the completion of
34 such improvement.
35 2. If, by reason of such defect, an injury to the person or an injury
36 causing wrongful death or an injury to property occurs during the tenth
37 year after completion, an action to recover damages for such injury or
38 wrongful death or damage to property may be brought within one year
39 after the date on which such injury occurred, but in no event may such
40 action be brought more than eleven years after the completion of the
41 improvement.
42 3. Except as provided in subdivision two of this section, in the
43 event the provisions of subdivision one of this section shall have
44 reduced the period during which an action against a professional engi-
45 neer, architect, landscape architect, land surveyor or construction
46 contractor could have otherwise been brought pursuant to any other
47 provision of law, rule or regulation, the claimant shall, in that event,
48 be entitled to institute any such action for a period of one year after
49 the effective date of this section.
50 4. The limitations prescribed by this section shall not apply to
51 actions brought by one in contractual or professional privity with the
52 engineer, architect, landscape architect, land surveyor or construction
53 contractor and shall not be asserted by way of defense by any person in
54 actual possession or control as owner, tenant, or otherwise, of such an
55 improvement at the time any defect in such improvement constitutes the
S. 2944 5
1 proximate cause of the injury or death for which it is proposed to bring
2 an action.
3 5. For purposes of this section an improvement shall be deemed to be
4 "completed" (a) when, after the improvement has been started, a perma-
5 nent certificate of occupancy is issued by the municipality in which the
6 improvement is situated, if such is required or is actually issued
7 pursuant to law or regulation; or (b) if a public improvement, upon the
8 acceptance of the improvement by the owner, if a certificate of occupan-
9 cy is not required and has not been issued; or (c) on the earlier of the
10 following dates, if the provisions of paragraphs (a) and (b) of this
11 subdivision do not apply (i) four months prior to the last day on which
12 mechanic's lien, resulting from work performed or materials furnished
13 with respect to such improvement, can be filed; or (ii) upon the owner's
14 final payment for services rendered or materials supplied with respect
15 to such improvement.
16 6. An architect, engineer, landscape architect, or land surveyor shall
17 mean a person licensed or registered as an architect, engineer, land-
18 scape architect, land surveyor or construction contractor, pursuant to
19 the provisions of the education law or any partnership, corporation or
20 any other entity lawfully performing architectural, engineering, land-
21 scape architectural or surveying services.
22 § 5. Subdivisions 4 and 5 of section 214 of the civil practice law and
23 rules, as separately amended by chapters 485 and 682 of the laws of
24 1986, are amended to read as follows:
25 4. an action to recover damages for an injury to property except as
26 provided in [section] sections 214-c, 214-d and 214-f;
27 5. an action to recover damages for a personal injury except as
28 provided in sections 214-b, 214-c, 214-d, 214-f and 215;
29 § 6. Subdivision (h) of rule 3211 and subdivision (i) of rule 3212 of
30 the civil practice law and rules are REPEALED.
31 § 7. The civil practice law and rules is amended by adding a new
32 section 214-f to read as follows:
33 § 214-f. Actions alleging injury from a product; repose. (a) Notwith-
34 standing any law, rule or regulation to the contrary, and subject to the
35 provisions of subdivisions (b), (c) and (d) of this section, no cause of
36 action arising out of the manufacture, sale or marketing of a product
37 may be commenced more than ten years after any such product is delivered
38 to the first purchaser or lessee.
39 (b) The provisions of subdivision (a) of this section shall not bar a
40 product liability action against a subject defendant who shall have made
41 an express warranty, in writing, as to the safety or life expectancy of
42 the specific product involved, which period of warranty is longer than
43 ten years, except that such subdivision shall apply at the expiration of
44 that warranty.
45 (c) If a product liability cause of action accrues during the ten year
46 period described in subdivision (a) of this section but at a time less
47 than two years prior to the expiration of such period, such action may
48 be brought within two years after accrual thereof; provided, however,
49 that in no event may such action be brought more than twelve years after
50 the product was delivered to the first purchaser or lessee.
51 (d) Except as provided in subdivisions (b) and (c) of this section, in
52 the event the provisions of subdivision (a) of this section shall have
53 reduced the period during which a product liability action could have
54 otherwise been brought pursuant to any other provision of law, rule or
55 regulation, the claimant shall, in that event, be entitled to institute
S. 2944 6
1 any such action for a period of one year after the effective date of
2 this section.
3 (e) For purposes of this section, "cause of action arising out of the
4 manufacture, sale or marketing of a product" means any action, including
5 but not limited to a contribution, indemnity or restitution action,
6 brought for or on account of personal injury, wrongful death, injury to
7 property or expenditure of funds that is alleged to have resulted from
8 the manufacture, sale, use, construction, design, formulation, develop-
9 ment of standards, preparation, processing, assembly, rebuilding, test-
10 ing, listing, certifying, marketing, advertising, packaging or labeling
11 of any product, or any warning or instruction or lack of warning or
12 instruction associated with that product, regardless of the theory of
13 liability employed.
14 (f) Notwithstanding the foregoing or any other provision of law, rule
15 or regulation, no claim may be brought against a defendant in any civil
16 action if either (i) with respect to all civil actions, including
17 actions subject herein, the claim is based in whole or in part on any
18 act or omission of the defendant which occurred more than twenty-five
19 years before the claim was brought; or (ii) with respect to any such
20 actions subject herein, the claim is brought more than twenty-five years
21 after the date of delivery of the product to the first purchaser or
22 lessee, which product is alleged to have caused the plaintiff's injury
23 or damage.
24 § 8. Paragraph 1 of subdivision (d) of section 3101 of the civil prac-
25 tice law and rules, as amended by chapter 184 of the laws of 1988,
26 subparagraph (ii) as amended by chapter 165 of the laws of 1991, is
27 amended to read as follows:
28 1. Experts. (i) Upon request, each party shall identify each person
29 whom the party expects to call as an expert witness at trial and shall
30 disclose in reasonable detail the subject matter on which each expert is
31 expected to testify, the substance of the facts and opinions on which
32 each expert is expected to testify, the qualifications of each expert
33 witness and a summary of the grounds for each expert's opinion. However,
34 where a party for good cause shown retains an expert an insufficient
35 period of time before the commencement of trial to give appropriate
36 notice thereof, the party shall not thereupon be precluded from intro-
37 ducing the expert's testimony at the trial solely on grounds of noncom-
38 pliance with this paragraph. In that instance, upon motion of any party,
39 made before or at trial, or on its own initiative, the court may make
40 whatever order may be just. [In an action for medical, dental or podia-
41 tric malpractice, a party, in responding to a request, may omit the
42 names of medical, dental or podiatric experts but shall be required to
43 disclose all other information concerning such experts otherwise
44 required by this paragraph.]
45 (ii) In an action for medical, dental or podiatric malpractice, any
46 party may, by written offer made to and served upon all other parties
47 and filed with the court, [offer to disclose the name of, and to] make
48 available for examination upon oral deposition, any person the party
49 making the offer expects to call as an expert witness at trial. Within
50 twenty days of service of the offer, a party shall accept or reject the
51 offer by serving a written reply upon all parties and filing a copy
52 thereof with the court. Failure to serve a reply within twenty days of
53 service of the offer shall be deemed a rejection of the offer. If all
54 parties accept the offer, each party shall be required to produce his or
55 her expert witness for examination upon oral deposition upon receipt of
56 a notice to take oral deposition in accordance with rule thirty-one
S. 2944 7
1 hundred seven of this [chapter] article. If any party, having made or
2 accepted the offer, fails to make that party's expert available for oral
3 deposition, that party shall be precluded from offering expert testimony
4 at the trial of the action.
5 (iii) Further disclosure concerning the expected testimony of any
6 expert may be obtained only by court order upon a showing of special
7 circumstances and subject to restrictions as to scope and provisions
8 concerning fees and expenses as the court may deem appropriate. However,
9 a party, without court order, may take the testimony of a person author-
10 ized to practice medicine, dentistry or podiatry who is the party's
11 treating or retained expert, as described in paragraph three of subdivi-
12 sion (a) of this section, in which event any other party shall be enti-
13 tled to the full disclosure authorized by this article with respect to
14 that expert without court order.
15 § 9. Subdivisions (b) and (e) of section 5031 of the civil practice
16 law and rules, as amended by chapter 485 of the laws of 1986, are
17 amended to read as follows:
18 (b) The court shall enter judgment in lump sum for past damages, for
19 future damages not in excess of [two hundred] fifty thousand dollars,
20 and for any damages, fees or costs payable in lump sum or otherwise
21 under subdivisions (c) and (d) of this section. For the purposes of this
22 section, any lump sum payment of a portion of future damages shall be
23 deemed to include the elements of future damages in the same proportion
24 as such elements comprise of the total award for future damages as
25 determined by the trier of fact.
26 (e) With respect to awards of future damages in excess of [two
27 hundred] fifty thousand dollars in an action to recover damages for
28 dental, medical or podiatric malpractice, the court shall enter judgment
29 as follows:
30 After making any adjustments prescribed by subdivisions (b), (c) and
31 (d) of this section, the court shall enter a judgment for the amount of
32 the present value of an annuity contract that will provide for the
33 payment of the remaining amounts of future damages in periodic install-
34 ments. The present value of such contract shall be determined in accord-
35 ance with generally accepted actuarial practices by applying the
36 discount rate in effect at the time of the award to the full amount of
37 the remaining future damages, as calculated pursuant to this subdivi-
38 sion. The period of time over which such periodic payments shall be made
39 and the period of time used to calculate the present value of the annui-
40 ty contract shall be the period of years determined by the trier of fact
41 in arriving at the itemized verdict; provided, however, that the period
42 of time over which such periodic payments shall be made and the period
43 of time used to calculate the present value for damages attributable to
44 pain and suffering shall be ten years or the period of time determined
45 by the trier of fact, whichever is less. The court, as part of its judg-
46 ment, shall direct that the defendants and their insurance carriers
47 shall be required to offer and to guarantee the purchase and payment of
48 such an annuity contract. Such annuity contract shall provide for the
49 payment of the annual payments of such remaining future damages over the
50 period of time determined pursuant to this subdivision. The annual
51 payment for the first year shall be calculated by dividing the remaining
52 amount of future damages by the number of years over which such payments
53 shall be made and the payment due in each succeeding year shall be
54 computed by adding four percent to the previous year's payment. The
55 addition of four percent to each of the previous year's payment shall be
56 the exclusive measure of interest, inflation, foregone investment oppor-
S. 2944 8
1 tunity and any other measure of damage. Where payment of a portion of
2 the future damages terminates in accordance with the provisions of this
3 article, the four percent added payment shall be based only upon that
4 portion of the damages that remains subject to continued payment. Unless
5 otherwise agreed, the annual sum so arrived at shall be paid in equal
6 monthly installments and in advance.
7 § 10. Subdivisions (b) and (e) of section 5041 of the civil practice
8 law and rules, as added by chapter 682 of the laws of 1986, are amended
9 to read as follows:
10 (b) The court shall enter judgment in lump sum for past damages, for
11 future damages not in excess of [two hundred] fifty thousand dollars,
12 and for any damages, fees or costs payable in lump sum or otherwise
13 under subdivisions (c) and (d) of this section. For the purposes of this
14 section, any lump sum payment of a portion of future damages shall be
15 deemed to include the elements of future damages in the same proportion
16 as such elements comprise of the total award for future damages as
17 determined by the trier of fact.
18 (e) With respect to awards of future damages in excess of [two
19 hundred] fifty thousand dollars in an action to recover damages for
20 personal injury, injury to property or wrongful death, the court shall
21 enter judgment as follows:
22 After making any adjustment prescribed by subdivisions (b), (c) and
23 (d) of this section, the court shall enter a judgment for the amount of
24 the present value of an annuity contract that will provide for the
25 payment of the remaining amounts of future damages in periodic install-
26 ments. The present value of such contract shall be determined in accord-
27 ance with generally accepted actuarial practices by applying the
28 discount rate in effect at the time of the award to the full amount of
29 the remaining future damages, as calculated pursuant to this subdivi-
30 sion. The period of time over which such periodic payments shall be made
31 and the period of time used to calculate the present value of the annui-
32 ty contract shall be the period of years determined by the trier of fact
33 in arriving at the itemized verdict; provided, however, that the period
34 of time over which such periodic payments shall be made and the period
35 of time used to calculate the present value for damages attributable to
36 pain and suffering shall be ten years or the period of time determined
37 by the trier of fact, whichever is less. The court, as part of its judg-
38 ment, shall direct that the defendants and their insurance carriers
39 shall be required to offer and to guarantee the purchase and payment of
40 such an annuity contract. Such annuity contract shall provide for the
41 payment of the annual payments of such remaining future damages over the
42 period of time determined pursuant to this subdivision. The annual
43 payment for the first year shall be calculated by dividing the remaining
44 amount of future damages by the number of years over which such payments
45 shall be made and the payment due in each succeeding year shall be
46 computed by adding four percent to the previous year's payment. The
47 addition of four percent to each of the previous year's payment shall be
48 the exclusive measure of interest, inflation, foregone investment oppor-
49 tunity and any other measure of damage. Where payment of a portion of
50 the future damages terminates in accordance with the provisions of this
51 article, the four percent added payment shall be based only upon that
52 portion of the damages that remains subject to continued payment.
53 Unless otherwise agreed, the annual sum so arrived at shall be paid in
54 equal monthly installments and in advance.
55 § 11. The civil practice law and rules is amended by adding a new
56 article 50-C to read as follows:
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1 ARTICLE 50-C
2 LIMITATION ON NONECONOMIC DAMAGES
3 5051. Definitions.
4 5052. Damage awards.
5 § 5051. Definitions. As used in this article:
6 1. "Noneconomic damages" means subjective, nonpecuniary damages aris-
7 ing from pain, suffering, inconvenience, physical impairment or disfig-
8 urement, mental anguish, emotional distress, loss of society and compan-
9 ionship, loss of consortium, injury to reputation, humiliation and other
10 nonpecuniary damages.
11 2. "Actual economic damages" means objectively verifiable pecuniary
12 damages arising from medical expenses and medical care, loss of earnings
13 and earning capacity, burial costs, loss of use of property, costs of
14 repair or replacement of property, costs of obtaining substitute domes-
15 tic services, loss of employment, loss of business or employment oppor-
16 tunities, rehabilitation services, custodial care and other pecuniary
17 damages.
18 3. "Personal injury action" means any action, including but in no
19 manner limited to medical, dental and podiatric malpractice actions,
20 whether in tort, contract, or otherwise, in which the plaintiff seeks
21 damages for injury to the person or wrongful death.
22 4. "Compensation" means monetary awards.
23 § 5052. Damage awards. In any personal injury action, the prevailing
24 plaintiff may be awarded:
25 1. Compensation for actual economic damages suffered by the injured
26 plaintiff; and
27 2. Compensation for noneconomic damages suffered by the injured plain-
28 tiff, not to exceed two hundred fifty thousand dollars.
29 § 12. Section 240 of the labor law, the section heading and subdivi-
30 sion 2 as amended by chapter 683 of the laws of 1947 and subdivision 1
31 as amended by chapter 241 of the laws of 1981, is amended to read as
32 follows:
33 § 240. Scaffolding and other devices for use of employees. 1. All
34 contractors and owners and their agents, except owners of one and two-
35 family dwellings who contract for but do not direct or control the work,
36 in the erection, demolition, repairing, altering, painting, cleaning or
37 pointing of a building or structure shall furnish or erect, or cause to
38 be furnished or erected devices or equipment for the performance of such
39 labor, such as scaffolding, hoists, stays, ladders, slings, hangers,
40 blocks, pulleys, braces, irons, and ropes, [and other devices which]
41 where such devices or equipment are necessary to give reasonable and
42 adequate protection and safety to a person so employed. Where such
43 devices or equipment are furnished or erected, the devices or equipment
44 shall be so constructed, placed and operated as to [give proper] provide
45 reasonable and adequate protection and safety to a person so employed.
46 No liability pursuant to this subdivision for the failure to provide
47 protection to a person so employed shall be imposed on professional
48 engineers as provided for in article one hundred forty-five of the
49 education law, architects as provided for in article one hundred forty-
50 seven of such law or landscape architects as provided for in article one
51 hundred forty-eight of such law who do not direct or control the work
52 for activities other than planning and design. This exception shall not
53 diminish or extinguish any liability of professional engineers or archi-
54 tects or landscape architects arising under the common law or any other
55 provision of law.
S. 2944 10
1 2. [Scaffolding or staging more than twenty feet from the ground or
2 floor, swung or suspended from an overhead support or erected with
3 stationary supports, except scaffolding wholly within the interior of a
4 building and covering the entire floor space of any room therein, shall
5 have a safety rail of suitable material properly attached, bolted,
6 braced or otherwise secured, rising at least thirty-four inches above
7 the floor or main portions of such scaffolding or staging and extending
8 along the entire length of the outside and the ends thereof, with only
9 such openings as may be necessary for the delivery of materials. Such
10 scaffolding or staging shall be so fastened as to prevent it from sway-
11 ing from the building or structure.
12 3. All scaffolding shall be so constructed as to bear four times the
13 maximum weight required to be dependent therefrom or placed thereon when
14 in use] Compliance with applicable provisions of the federal Occupa-
15 tional Safety and Health Act and Part twenty-three of title twelve of
16 the New York codes, rules and regulations, as amended, shall be prima
17 facie proof of compliance with subdivision one of this section.
18 3. Nothing in this section shall be deemed to relieve a person injured
19 in the erection, demolition, repairing, altering, painting, cleaning or
20 pointing of a building or structure from the consequences of his culpa-
21 ble conduct in accordance with section fourteen hundred eleven of the
22 civil practice law and rules.
23 § 13. Section 241 of the labor law, as added by chapter 1108 of the
24 laws of 1969, the opening paragraph as amended by chapter 670 of the
25 laws of 1980, subdivisions 6, 7 and 8 as amended and subdivision 10 as
26 added by chapter 520 of the laws of 1989, and subdivision 9 as added by
27 chapter 241 of the laws of 1981, is amended to read as follows:
28 § 241. Construction, excavation and demolition work. 1. All contrac-
29 tors and owners and their agents, except owners of one and two-family
30 dwellings who contract for but do not direct or control the work, when
31 constructing or demolishing buildings or doing any excavating in
32 connection therewith, shall [comply with the following requirements:
33 1. If the floors are to be arched between the beams thereof, or if the
34 floors or filling in between the floors are of fireproof material, the
35 flooring or filling in shall be completed as the building progresses.
36 2. If the floors are not to be filled in between the beams with brick
37 or other fireproof material, the underflooring shall be laid on each
38 story as the building progresses.
39 3. If double floors are not to be used, the floor two stories imme-
40 diately below the story where the work is being performed shall be kept
41 planked over.
42 4. If the floor beams are of iron or steel, the entire tier of iron or
43 steel beams on which the structural iron or steel work is being erected
44 shall be thoroughly planked over, except spaces reasonably required for
45 proper construction of the iron or steel work, for raising or lowering
46 of materials or for stairways and elevator shafts designated by the
47 plans and specifications.
48 5. If elevators, elevating machines or hod-hoisting apparatus are used
49 in the course of construction, for the purpose of lifting materials, the
50 shafts or openings in each floor and at each landing level shall be
51 inclosed or fenced in on all sides by a barrier of suitable height,
52 except on two sides which may be used for taking off and putting on
53 materials, and those sides shall be guarded by an adjustable barrier not
54 less than three nor more than four feet from the floor and not less than
55 two feet from the edges of such shafts or openings.
S. 2944 11
1 6. All areas in which construction, excavation or demolition work is
2 being performed shall be so constructed, shored, equipped, guarded,
3 arranged, operated and conducted] construct, shore, equip, guard,
4 arrange, operate and conduct such work so as to provide reasonable and
5 adequate protection and safety to the persons employed therein or
6 lawfully frequenting such places. The commissioner may make rules to
7 carry into effect the provisions of this subdivision, and the owners and
8 contractors and their agents for such work, except owners of one and
9 two-family dwellings who contract for but do not direct or control the
10 work, shall comply therewith.
11 [7. The commissioner may make rules to provide for the protection of
12 workers in connection with the excavation work for the construction of
13 buildings, the work of constructing or demolishing buildings and struc-
14 tures, and the guarding of dangerous machinery used in connection there-
15 with, and the owners and contractors and their agents for such work,
16 except owners of one and two-family dwellings who contract for but do
17 not direct or control the work, shall comply therewith.
18 8.] 2. Compliance with applicable provisions of the federal Occupa-
19 tional Safety and Health Act and Part twenty-three of title twelve of
20 the New York codes, rules and regulations, as amended, shall be prima
21 facie proof of compliance with subdivision one of this section.
22 3. Nothing in this section shall be deemed to relieve a person injured
23 in the construction, demolition or excavation of a building or structure
24 from the consequences of his culpable conduct in accordance with section
25 fourteen hundred eleven of the civil practice law and rules.
26 4. The commissioner, as deemed necessary, shall promulgate rules
27 designed for the purpose of providing for the reasonable and adequate
28 protection and safety of persons passing by all areas, buildings or
29 structures in which construction, excavation or demolition work is being
30 performed, and the owners and contractors and their agents for such
31 work, except owners of one and two-family dwellings who contract for but
32 do not direct or control the work, shall comply therewith. The
33 provisions of this subdivision shall not apply to cities having a popu-
34 lation of one million or more.
35 [9.] 5. No liability for the non-compliance with any of the provisions
36 of this section shall be imposed on professional engineers as provided
37 for in article one hundred forty-five of the education law, architects
38 as provided for in article one hundred forty-seven of such law or land-
39 scape architects as provided for in article one hundred forty-eight of
40 such law who do not direct or control the work for activities other than
41 planning and design. This exception shall not diminish or extinguish any
42 liability of professional engineers, architects or landscape architects
43 arising under the common law or any other provision of law.
44 [10.] 6. Prior to advertising for bids or contracting for or commenc-
45 ing work on any demolition work on buildings covered under this section
46 except agricultural buildings as defined in regulations promulgated by
47 the commissioner and except buildings the construction of which was
48 begun on or after January first, nineteen hundred seventy-four, all
49 owners and their agents, except owners of one and two-family dwellings
50 who contract for but do not direct or control the work, shall conduct or
51 cause to be conducted a survey to determine whether or not the building
52 to be demolished contains asbestos or asbestos material as defined in
53 section nine hundred one of this chapter. Such surveys shall be
54 conducted in conformance with rules and regulations promulgated by the
55 commissioner. Information derived from such survey shall be immediately
56 transmitted to the commissioner and to the local governmental entity
S. 2944 12
1 charged with issuing a permit for such demolition under applicable state
2 or local laws or, if no such permit is required, to the town or city
3 clerk. If such survey finds that a building to be demolished contains
4 asbestos or asbestos material as defined by section nine hundred one of
5 [the] this chapter, no bids shall be advertised nor contracts awarded
6 nor demolition work commenced by any owner or agent prior to completion
7 of an asbestos remediation contract performed by a licensed asbestos
8 contractor as defined by section nine hundred one of this chapter.
9 § 14. Section 241-a of the labor law is REPEALED.
10 § 15. Section 1411 of the civil practice law and rules, as added by
11 chapter 69 of the laws of 1975, is amended to read as follows:
12 § 1411. Damages recoverable when contributory negligence or assumption
13 of risk is established. In any action to recover damages for personal
14 injury, injury to property, or wrongful death, the culpable conduct
15 attributable to the claimant or to the decedent, including contributory
16 negligence or assumption of risk, shall not bar recovery, but the amount
17 of damages otherwise recoverable shall be diminished in the proportion
18 which the culpable conduct attributable to the claimant or decedent
19 bears to the culpable conduct which caused the damages; provided, howev-
20 er, that the claimant or the decedent's representative shall be abso-
21 lutely barred from the recovery of any damages where the trier of fact
22 finds that the contributory fault on the part of said claimant or dece-
23 dent constitutes more than fifty percent of the proximate cause of the
24 harm for which recovery is sought.
25 § 16. The labor law is amended by adding a new section 742 to read as
26 follows:
27 § 742. Disclosure of employment related information; presumptions;
28 causes of action; definitions. 1. Any employer who, upon request by a
29 prospective employer or a current or former employee, provides accurate
30 information about a current or former employee's job performance or
31 reasons for separation shall be immune from civil liability and other
32 consequences of such disclosure provided such employer is not acting in
33 bad faith. An employer shall be considered to be acting in bad faith
34 only if it can be shown by a preponderance of the evidence that the
35 information disclosed was knowingly false and deliberately misleading.
36 2. Any prospective employer who reasonably relies on information
37 pertaining to an employee's job performance or reasons for separation,
38 disclosed by a former employer, shall be immune from civil liability
39 including liability for negligent hiring, negligent retention, and other
40 causes of action related to the hiring of such employee, based upon such
41 reasonable reliance, unless further investigation, including but not
42 limited to a criminal background check, is required by law.
43 3. As used in this section, the following words and phrases shall have
44 the following meanings unless the context clearly requires otherwise:
45 (a) "Employer" means any person, firm, or corporation, including the
46 state and its political subdivisions, and any agent thereof with one or
47 more employees, or individuals performing services under any contract of
48 hire or service, expressed or implied, oral or written.
49 (b) "Employee" means any person, paid or unpaid, in the service of an
50 employer.
51 (c) "Prospective employer" means any "employer", as defined in para-
52 graph (a) of this subdivision, to which a prospective employee has made
53 application, either oral or written, or forwarded a resume or other
54 correspondence expressing an interest in employment.
S. 2944 13
1 (d) "Prospective employee" means any person who has made an applica-
2 tion, either oral or written, or has sent a resume or other correspond-
3 ence indicating an interest in employment.
4 (e) "Job performance" includes, but is not limited to, attendance,
5 attitude, awards, demotions, duties, effort, evaluations, knowledge,
6 skills, promotions, and disciplinary actions.
7 § 17. Section 720-a of the not-for-profit corporation law, as added by
8 chapter 220 of the laws of 1986, is amended to read as follows:
9 § 720-a. Liability of [directors, officers and trustees] volunteers.
10 (a) Definitions. For purposes of this section the terms: (1) "volunteer"
11 means an individual performing services for a not-for-profit corporation
12 or a governmental entity who does not receive compensation, or any other
13 thing of value in lieu of compensation, for such services (other than
14 reimbursement for expenses actually incurred or honoraria not to exceed
15 three hundred dollars per year for government service), and such term
16 includes a volunteer serving as a director, officer, trustee or direct
17 service volunteer;
18 (2) "not-for-profit corporation" means any organization exempt from
19 taxation under section 501(c) of the Internal Revenue Code; and
20 (3) "damage or injury" includes physical, nonphysical, economic and
21 noneconomic damage.
22 (b) Immunity from liability. Except as provided in sections seven
23 hundred nineteen and seven hundred twenty of this chapter, and except
24 any action or proceeding brought by the attorney general or, in the case
25 of a charitable trust, an action or proceeding against a trustee brought
26 by a beneficiary of such trust, no [person] volunteer serving [without
27 compensation as a director, officer or trustee of] a not-for-profit
28 corporation[, association, organization or trust described in section
29 501 (c) (3) of the United States internal revenue code] shall be liable
30 to any person other than such corporation, association, organization or
31 trust based solely on his or her conduct in the execution of such office
32 unless the conduct of such [director, officer or trustee] volunteer with
33 respect to the person asserting liability constituted gross negligence
34 or was intended to cause the resulting harm to the person asserting such
35 liability. [For purposes of this section, such a director, officer or
36 trustee shall not be considered compensated solely by reason of payment
37 of his or her actual expenses incurred in attending meetings or other-
38 wise in the execution of such office.]
39 (c) Exceptions. Nothing in this section shall be deemed to grant immu-
40 nity to any person causing damage by his willful, wanton or grossly
41 negligent act of commission or omission; or as the result of his negli-
42 gent operation of a motor vehicle; or for liability which would other-
43 wise arise under section 11-101 of the general obligations law.
44 § 18. Subdivision 3 of section 388 of the vehicle and traffic law, as
45 amended by chapter 552 of the laws of 1962, is amended to read as
46 follows:
47 3. As used in this section, "owner" shall be as defined in section
48 one hundred twenty-eight of this chapter [and their] except in the case
49 of a leased vehicle as defined below, in which case "owner" shall be as
50 defined below. Owner's liability under this section shall be joint and
51 several. If a vehicle be sold under a contract of sale which reserves a
52 security interest in the vehicle in favor of the vendor, such vendor or
53 his assignee shall not, after delivery of such vehicle, be deemed an
54 owner within the provisions of this section, but the vendee, or his
55 assignee, receiving possession thereof, shall be deemed such owner
56 notwithstanding the terms of such contract, until the vendor or his
S. 2944 14
1 assignee shall retake possession of such vehicle. A secured party in
2 whose favor there is a security interest in any vehicle out of his
3 possession, shall not be deemed an owner within the provisions of this
4 section. If the vehicle is a leased vehicle, the term "owner" shall
5 mean the person to whom the vehicle has been leased, not the person to
6 whom the certificate of title for the vehicle has been issued or
7 assigned or to whom the manufacturer's or importer's certificate of
8 origin for the vehicle has been delivered or assigned. For purposes of
9 this section, "leased" means the transfer of the possession or the right
10 to possession of a vehicle to a lessee for a valuable consideration for
11 a continuous period of twelve months or more, pursuant to one or more
12 written agreements.
13 § 19. Legislative findings. The legislature hereby finds and declares
14 that allowing convicted felons or persons acting under the influence of
15 alcohol or illegal drugs, in certain cases, to recover civil damages for
16 injuries suffered during the commission of their crimes is an outrage to
17 the people of the state of New York. It is in the public policy to bar
18 convicted felons from recovering for damages against private citizens
19 and against the government when they, by their criminal behavior, have
20 set in motion a chain of circumstances resulting in their own injury.
21 Accordingly, a felony conviction or proof of certain intoxication shall
22 hereafter bar persons from recovery for injuries suffered during the
23 commission of a crime or while under the influence of alcohol or illegal
24 drugs.
25 § 20. The civil practice law and rules is amended by adding a new
26 section 1411-a to read as follows:
27 § 1411-a. Damages recoverable; criminal conduct or intoxication with
28 alcohol or illegal drugs as a bar to recovery in certain cases. (a)
29 Notwithstanding any other provision of law, rule or regulation, in any
30 action to recover damages for personal injury, injury to property, or
31 wrongful death, culpable criminal conduct or intoxication with alcohol
32 or illegal drugs on the part of a claimant, as provided in subdivision
33 (b) of this section, shall absolutely bar recovery.
34 (b) In any action to recover damages as itemized in subdivision (a) of
35 this section, the showing by a preponderance of the evidence that intox-
36 ication with alcohol or illegal drugs on the part of the claimant was a
37 proximate cause for the specific damages sustained, or culpable criminal
38 conduct attributable to the claimant or to the decedent, arising from
39 the same transaction for which damages are sought and so established by
40 a criminal conviction, shall constitute an absolute bar to recovery.
41 § 21. The civil practice law and rules is amended by adding a new
42 article 14-B to read as follows:
43 ARTICLE 14-B
44 PRODUCT LIABILITY ACTIONS;
45 SPECIFIC DEFENSES
46 1420. Postmanufacture changes.
47 1421. Sealed containers.
48 1422. State of the art design.
49 § 1420. Postmanufacture changes. In a product liability action,
50 evidence of measures taken by the manufacturer or seller after an event,
51 which if taken previously would have made the event less likely to
52 occur, is not admissible to prove negligence or culpable conduct or to
53 prove a defect in the product. Evidence of subsequent measures may,
54 however, be admissible when offered to impeach or as proof of ownership,
55 control, or feasibility of precautionary measures, if such issues are
56 controverted.
S. 2944 15
1 § 1421. Sealed containers. In any product liability action a party may
2 assert as a defense in such action that he is not the manufacturer of
3 the product in question and that such product was acquired and sold by
4 him in a sealed container or that the product was acquired and sold by
5 him under circumstances in which he was afforded no reasonable opportu-
6 nity to inspect the product in such a manner which would have or should
7 have, in the exercise of reasonable care, revealed the existence of the
8 defective condition; provided, however, that the defense set forth here-
9 in will not be available if (a) the manufacturer is not subject to
10 service of process under the laws of the state in which the plaintiff
11 brings the action, or (b) the manufacturer has been judicially declared
12 insolvent and is unable to pay its debts as they become due in the ordi-
13 nary course of business, or (c) the court determines that the plaintiff
14 would be unable to enforce a judgment against the manufacturer. The
15 provisions of this section shall not apply to actions based upon breach
16 of express warranty, negligence or fraudulent misrepresentation of the
17 seller.
18 § 1422. State of the art design. (a) In any product liability action
19 based upon defective design, a party shall not be liable unless the
20 plaintiff proves by a preponderance of the evidence that, at the time
21 the product left the control of the party, there existed a feasible
22 alternative design that would have prevented the harm without substan-
23 tially impairing the usefulness or desirability of the product to users.
24 (b) In any product liability action based upon defective design, a
25 party shall not be liable unless the plaintiff proves by a preponderance
26 of the evidence that the product design was the immediate, physical and
27 producing cause of the injury or damage of which the plaintiff
28 complains, and that, if a feasible alternative design as provided in
29 subdivision (a) of this section was marketed by the defendant, the user
30 of the product would have responded by altering his conduct and thereby
31 would have avoided or reduced the injury or damage of which the plain-
32 tiff complains.
33 (c) In any product liability action based upon defective design, a
34 party shall not be liable unless the plaintiff proves by a preponderance
35 of the evidence that, at the time the product left the control of the
36 party, such party knew or, in light of then existing scientific and
37 technological knowledge, reasonably should have known of the danger that
38 caused the plaintiff's harm.
39 (d) In any product liability action based on defective design, a prod-
40 uct shall not be found to contain a defect or be unreasonably dangerous
41 for its intended use if the personal injury, property damage, or death
42 for which recovery of damages is sought was caused by an inherent aspect
43 of the product about which adequate specifications, instructions, or
44 warnings are provided or which would be recognized as capable of causing
45 harm by the ordinary person who uses or consumes the product with the
46 ordinary knowledge common to the class of persons for whom the product
47 is intended.
48 (e) In any product liability action based on defective design, a prod-
49 uct shall not be found to contain a defect or be unreasonably dangerous
50 for its intended use if the personal injury, property damage, or death
51 for which recovery of damages is sought was caused by an unavoidably
52 unsafe product, as defined in comment K to Section 402A of the Restate-
53 ment (2d) of Torts, and specifications, warnings or instructions are
54 provided to the extent required by this article.
S. 2944 16
1 § 22. Subdivisions 2, 3 and 4 of section 9 of the court of claims act,
2 subdivision 2 as amended by chapter 40 of the laws of 1977, are amended
3 to read as follows:
4 2. To hear and determine a claim of any person, corporation or munici-
5 pality against the state, a county, city, town, village, school
6 district, or a special district as such term is defined in section one
7 hundred two of the real property tax law for the appropriation of any
8 real or personal property or any interest therein, for the breach of
9 contract, express or implied, or for the torts of its officers or
10 employees while acting as such officers or employees, providing the
11 claimant complies with the limitations of this article. For the purposes
12 of this act only, a real property tax lien shall be deemed to be an
13 interest in real property.
14 3. To hear and determine any claim in favor of the state, a county,
15 city, town, village, school district, or a special district as such term
16 is defined in section one hundred two of the real property tax law
17 against the claimant, or against his assignor at the time of the assign-
18 ment.
19 4. To render judgment in favor of the claimant or the state, a county,
20 city, town, village, school district, or a special district as such term
21 is defined in section one hundred two of the real property tax law for
22 such sum as should be paid by or to the state, a county, city, town,
23 village, school district, or a special district as such term is defined
24 in section one hundred two of the real property tax law.
25 § 23. The court of claims act is amended by adding a new section 9-a
26 to read as follows:
27 § 9-a. Construction of "state". For purposes of this act, the term
28 "state" shall be deemed to include the state, a county, city, town,
29 village, school district, or a special district as such term is defined
30 in section one hundred two of the real property tax law whenever such a
31 construction is necessary to effectuate the provisions of this act with
32 respect to the jurisdiction conferred by section nine of this article
33 pertaining to such entities; provided, however, that such construction
34 shall not be given when it would conflict with the provisions of the
35 general municipal law.
36 § 24. Subdivision 4 of section 50-e of the general municipal law, as
37 amended by chapter 745 of the laws of 1976, is amended to read as
38 follows:
39 4. Requirements of section exclusive except as to conditions precedent
40 to liability for certain defects or snow or ice. No other or further
41 notice, no other or further service, filing or delivery of the notice of
42 claim, and no notice of intention to commence an action or special
43 proceeding, shall be required as a condition to the commencement of an
44 action or special proceeding for the enforcement of the claim; provided,
45 however, that nothing herein contained shall be deemed to dispense with
46 the requirement of notice of the defective, unsafe, dangerous or
47 obstructed condition of any street, highway, bridge, culvert, sidewalk
48 or crosswalk, public place, land or building, grading, opening, drain,
49 sewer, park or playground or equipment located therein or any parking
50 field, skating rink or park property, or of the existence of snow or ice
51 thereon, where such notice now is, or hereafter may be, required by law,
52 as a condition precedent to liability for damages or injuries to person
53 or property alleged to have been caused by such condition, and the fail-
54 ure or negligence to repair or remove the same after the receipt of such
55 notice.
S. 2944 17
1 § 25. Subdivision 1 of section 65-a of the town law, as amended by
2 chapter 771 of the laws of 1963, is amended to read as follows:
3 1. No civil action shall be maintained against any town or town super-
4 intendent of highways for damages or injuries to person or property
5 sustained by reason of any highway, bridge [or], culvert, public place,
6 land or building, grading, opening, drain, sewer, park or playground or
7 equipment located therein or any parking field, skating rink or park
8 property, being defective, out of repair, unsafe, dangerous or
9 obstructed unless written notice of such defective, unsafe, dangerous or
10 obstructed condition of such highway, bridge [or], culvert, public
11 place, land or building, grading, opening, drain, sewer, park or play-
12 ground or equipment located therein or any parking field, skating rink
13 or park property, was actually given to the town clerk or town super-
14 intendent of highways, and that there was a failure or neglect within a
15 reasonable time after the giving of such notice to repair or remove the
16 defect, danger or obstruction complained of, or, in the absence of such
17 notice, unless such defective, unsafe, dangerous or obstructed condition
18 existed for so long a period that the same should have been discovered
19 and remedied in the exercise of reasonable care and diligence; but no
20 such action shall be maintained for damages or injuries to person or
21 property sustained solely in consequence of the existence of snow or ice
22 upon any highway, bridge [or], culvert, public place, land or building,
23 grading, opening, drain, sewer, park or playground or equipment located
24 therein or any parking field, skating rink or park property unless writ-
25 ten notice thereof, specifying the particular place, was actually given
26 to the town clerk or town superintendent of highways and there was a
27 failure or neglect to cause such snow or ice to be removed, or to make
28 the place otherwise reasonably safe within a reasonable time after the
29 receipt of such notice.
30 § 26. Section 6-628 of the village law is amended to read as follows:
31 § 6-628 Liability of village in certain actions. No civil action shall
32 be maintained against the village for damages or injuries to person or
33 property sustained in consequence of any street, highway, bridge,
34 culvert, sidewalk [or], crosswalk, public place, land or building, grad-
35 ing, opening, drain, sewer, park or playground or equipment located
36 therein or any parking field, skating rink or park property, being
37 defective, out of repair, unsafe, dangerous or obstructed or for damages
38 injuries to person or property sustained solely in consequence of the
39 existence of snow or ice upon any sidewalk, crosswalk, street, highway,
40 bridge [or], culvert, public place, land or building, grading, opening,
41 drain, sewer, park or playground or equipment located therein or any
42 parking field, skating rink or park property unless written notice of
43 the defective, unsafe, dangerous or obstructed condition or of the
44 existence of the snow or ice, relating to the particular place, was
45 actually given to the village clerk and there was a failure or neglect
46 within a reasonable time after the receipt of such notice to repair or
47 remove the defect, danger or obstruction complained of, or to cause the
48 snow or ice to be removed, or the place otherwise made reasonably safe.
49 § 27. Section 474-a of the judiciary law, as amended by chapter 485 of
50 the laws of 1986, is amended to read as follows:
51 § 474-a. Contingent fees for attorneys in claims or actions for
52 medical, dental or podiatric malpractice, or in any claim or action for
53 property damage or personal injury, including death. 1. For the purpose
54 of this section, the term "contingent fee" shall mean any attorney's fee
55 in any claim or action for medical, dental or podiatric malpractice, or
56 in any claim or action for property damage or personal injury, including
S. 2944 18
1 death, whether determined by judgment or settlement, which is dependent
2 in whole or in part upon the success of the prosecution by the attorney
3 of such claim or action, or which is to consist of a percentage of any
4 recovery, or a sum equal to a percentage of any recovery, in such claim
5 or action.
6 2. Notwithstanding any inconsistent judicial rule, a contingent fee in
7 a medical, dental or podiatric malpractice action, or in any claim or
8 action for property damage or personal injury, including death, shall
9 not exceed the amount of compensation provided for in the following
10 schedule:
11 [30] 25 percent of the first $250,000 of the sum recovered;
12 [25] 20 percent of the next $250,000 of the sum recovered;
13 [20] 15 percent of the next $500,000 of the sum recovered;
14 [15] 10 percent of the next $250,000 of the sum recovered;
15 [10] 5 percent of any amount over $1,250,000 of the sum recovered.
16 3. Such percentages shall be computed on the net sum recovered after
17 deducting from the amount recovered expenses and disbursements for
18 expert testimony and investigative or other services properly chargeable
19 to the enforcement of the claim or prosecution of the action. In comput-
20 ing the fee, the costs as taxed, including interest upon a judgment,
21 shall be deemed part of the amount recovered. For the following or simi-
22 lar items there shall be no deduction in computing such percentages:
23 liens, assignments or claims in favor of hospitals, for medical care,
24 dental care, podiatric care and treatment by doctors and nurses, or of
25 self-insurers or insurance carriers.
26 4. In the event that claimant's or plaintiff's attorney believes in
27 good faith that the fee schedule set forth in subdivision two of this
28 section, because of extraordinary circumstances, will not give him
29 adequate compensation, application for greater compensation may be made
30 upon affidavit with written notice and an opportunity to be heard to the
31 claimant or plaintiff and other persons holding liens or assignments on
32 the recovery. Such application shall be made to the justice of the trial
33 part to which the action had been sent for trial; or, if it had not been
34 sent to a part for trial, then to the justice presiding at the trial
35 term calendar part of the court in which the action had been instituted;
36 or, if no action had been instituted, then to the justice presiding at
37 the trial term calendar part of the Supreme Court for the county in the
38 judicial department in which the attorney has an office. Upon such
39 application, the justice, in his discretion, if extraordinary circum-
40 stances are found to be present, and without regard to the claimant's or
41 plaintiff's consent, may fix as reasonable compensation for legal
42 services rendered an amount greater than that specified in the schedule
43 set forth in subdivision two of this section, provided, however, that
44 such greater amount shall not exceed the fee fixed pursuant to the
45 contractual arrangement, if any, between the claimant or plaintiff and
46 the attorney. If the application is granted, the justice shall make a
47 written order accordingly, briefly stating the reasons for granting the
48 greater compensation; and a copy of such order shall be served on all
49 persons entitled to receive notice of the application.
50 5. Any contingent fee in a claim or action for medical, dental or
51 podiatric malpractice, or in any claim or action for property damage or
52 personal injury, including death, brought on behalf of an infant shall
53 continue to be subject to the provisions of section four hundred seven-
54 ty-four of this [chapter] article.
55 § 28. Section 9-103 of the general obligations law is amended by
56 adding a new subdivision 1-a to read as follows:
S. 2944 19
1 1-a. No cause of action shall arise against the owner, tenant or
2 lessee of land or premises for injuries to any person, other than an
3 employee or contractor of the owner, tenant or lessee, who is on the
4 land or premises for the purpose of picking and purchasing agricultural
5 or farm products at a farm or "u-pick" operation, unless the person's
6 injuries were caused by a condition which involved an unreasonable risk
7 of harm and all of the following apply:
8 a. The owner, tenant or lessee knew, had reason to know of, or reason-
9 ably should have known of the condition or risk.
10 b. The owner, tenant or lessee failed to exercise reasonable care to
11 make the condition safe, or to warn the person of the condition or risk.
12 § 29. Legislative intent. The legislature hereby finds that horse-
13 back riding is both a major recreational sport and a major industry
14 within the state of New York. The legislature further finds: (1) that
15 horseback riding, like many other sports, contains inherent risks
16 including, but not limited to, the risks of personal injury or death or
17 property damage, which may be caused by the propensity of equines to
18 behave in ways not always controllable by the participant; the unpre-
19 dictability of an equine's reaction to such things as sounds, sudden
20 movements, and unfamiliar objects, persons, or other animals; surface or
21 subsurface conditions; collisions with other equines or objects; and the
22 potential of a participant to act in a negligent manner; (2) that it is
23 appropriate, as well as in the public interest, to establish certain
24 duties and obligations of equine sponsors and equine professionals rela-
25 tive to the safety of the horseback riding public; and (3) that it is
26 also necessary and appropriate that the public become apprised of, and
27 understand, the risks inherent in the sport of horseback riding so that
28 they may make an informed decision of whether or not to participate in
29 horseback riding notwithstanding the risks. Therefore, the purpose and
30 intent of this article is to establish guidelines for the conduct of the
31 participants, sponsors and professionals involved in the sport of horse-
32 back riding; to educate the public as to the inherent risks in the sport
33 of horseback riding so as to minimize the risk of injury to persons
34 engaged in the sport of horseback riding; to promote safety in the
35 horseback riding industry, and to preserve the financial sustainability
36 of the equine sponsors and equine professionals engaged in the horseback
37 riding industry.
38 § 30. The general obligations law is amended by adding a new article
39 18-B to read as follows:
40 ARTICLE 18-B
41 EQUINE ACTIVITY SAFETY CODE
42 Section 18-301. Short title.
43 18-302. Definitions.
44 18-303. Liability of persons involved in equine activities.
45 18-304. Limitation of liability.
46 18-305. Posting and notification.
47 § 18-301. Short title. This article may be cited and shall be known
48 as the "equine activity safety code act".
49 § 18-302. Definitions. For the purposes of this article, the
50 following words or phrases shall be defined as follows:
51 1. "Engages in an equine activity" means riding, training, assisting
52 in veterinary treatment of, driving, or being a passenger upon an
53 equine, whether mounted or unmounted, visiting or touring or utilizing
54 an equine facility as part of an organized event or activity, or any
55 person assisting a participant or show management. The term "engages in
56 an equine activity" does not include being a spectator at an equine
S. 2944 20
1 activity, except in cases where the spectator places himself in an unau-
2 thorized area or in immediate proximity to the equine activity.
3 2. "Equine" means a horse, pony, mule or donkey.
4 3. "Equine activity" means:
5 (a) Equine shows, fairs, competitions, performances, or parades that
6 involve any or all breeds of equines and any of the equine disciplines,
7 including, but not limited to dressage, hunter and jumper horse shows,
8 grand prix jumping, three-day events, combined training, rodeos, riding,
9 driving, pulling, cutting, polo, steeplechasing, English and western
10 performance riding, endurance trail riding, gymkhana games, and hunting.
11 (b) Equine training or teaching activities or both.
12 (c) The boarding of equines; including normal daily care thereof.
13 (d) Riding, inspecting, or evaluating by a purchaser or an agent an
14 equine belonging to another, whether or not the owner has received some
15 monetary consideration or other thing of value for the use of the equine
16 or is permitting a prospective purchaser of the equine to ride, inspect,
17 or evaluate the equine.
18 (e) Rides, trips, hunts or other equine activities of any type however
19 informal or impromptu that are sponsored by an equine activity sponsor.
20 (f) Placing or replacing horseshoes or hoof trimming on an equine.
21 (g) Providing or assisting in veterinary treatment of an equine.
22 4. "Equine activity sponsor" means an individual, group, club, part-
23 nership, or corporation, whether or not the sponsor is operating for
24 profit or nonprofit, which sponsors, organizes, or provides the facili-
25 ties for, an equine activity, including but not limited to: pony clubs,
26 4-H clubs, hunt clubs, riding clubs, school and college-sponsored class-
27 es, programs and activities, therapeutic riding programs, stable and
28 farm owners and operators, instructors, and promoters of equine facili-
29 ties, including but not limited to farms, stables, clubhouses, pony ride
30 strings, fairs, and arenas at which the activity is held.
31 5. "Equine professional" means a person engaged for compensation:
32 (a) In instructing a participant or renting to a participant an equine
33 for the purpose of riding, driving or being a passenger upon the equine;
34 (b) In renting equipment or tack to a participant;
35 (c) To provide daily care of horses boarded at an equine facility; or
36 (d) To train an equine.
37 6. "Inherent risks of equine activities" means those dangers or condi-
38 tions which are an integral part of equine activities, including but not
39 limited to:
40 (a) The propensity of equines to behave in ways that may result in
41 injury, harm, or death to persons on or around them;
42 (b) The unpredictability of an equine's reaction to such things as
43 sounds, sudden movement, and unfamiliar objects, persons, or other
44 animals;
45 (c) Certain hazards such as surface and subsurface conditions includ-
46 ing, but not limited to, rocks, forest growth, debris, branches, trees,
47 roots, stumps, or other natural objects;
48 (d) Collisions with other equines or objects; and
49 (e) The potential of a participant to act in a negligent manner that
50 may contribute to injury to the participant or others, such as failing
51 to maintain control over the animal or not acting within his or her
52 ability.
53 7. "Participant" means any person, whether amateur or professional,
54 who engages in an equine activity, whether or not a fee is paid to
55 participate in the equine activity.
S. 2944 21
1 § 18-303. Liability of persons involved in equine activities. 1.
2 Nothing in section 18-304 of this article shall prevent or limit the
3 liability of an equine activity sponsor or an equine professional, if
4 the equine activity sponsor or equine professional:
5 (a) (1) Provided the equipment or tack, and knew or should have known
6 that the equipment or tack was faulty, and such equipment or tack was
7 faulty to the extent that it did cause the injury; or
8 (2) Provided the equine and failed to make reasonable and prudent
9 efforts to determine the ability of the participant to engage safely in
10 the equine activity, and determine the ability of the participant to
11 safely manage the particular equine based on the participant's represen-
12 tations of his ability;
13 (b) Owns, leases, rents, has authorized use of, or is otherwise in
14 lawful possession and control of the land, or facilities upon which the
15 participant sustained injuries because of a dangerous latent condition
16 which was known or should have been known to the equine activity sponsor
17 or equine professional and for which warning signs, pursuant to subdivi-
18 sion four of section 18-302 of this article have not been conspicuously
19 posted;
20 (c) Commits an act of omission that constitutes willful or wanton
21 disregard for the safety of the participant, and that act of omission
22 caused the injury;
23 (d) Intentionally injures the participant.
24 2. This section shall not apply to the horse racing activity author-
25 ized pursuant to article two, three or four of the racing, pari-mutuel
26 wagering and breeding law.
27 § 18-304. Limitation of liability. 1. Except as provided in subdi-
28 vision two of section 18-303 of this article, an equine activity spon-
29 sor, an equine professional, or any other person, which shall
30 include corporation or partnership, shall not be liable for an injury
31 to or the death of a participant resulting from the inherent risks
32 of equine activities and, except as provided in subdivision two of
33 section 18-303 of this article, no participant nor participant's repre-
34 sentative shall make any claim against, maintain an action against, or
35 recover from an equine activity sponsor, an equine professional, or any
36 other person for injury, loss, damage, or death of the participant
37 resulting from any of the inherent risks of equine activities.
38 2. Nothing in this article shall limit the application of the
39 provisions of section 9-103 of this chapter.
40 § 18-305. Posting and notification. 1. Every equine professional
41 shall post and maintain signs which contain the warning notice specified
42 in subdivision two of this section. Such signs shall be placed in a
43 clearly visible location in the proximity of the equine activity. The
44 warning notice specified in subdivision two of this section shall appear
45 on the sign in black letters, with each letter to be a minimum of one
46 inch in height. Every written contract entered into by an equine profes-
47 sional for the providing of professional services, instruction, or the
48 rental of equipment or tack or an equine to a participant, whether or
49 not the contract involves equine activities on or off the location or
50 site of the equine professional's business, shall contain in clearly
51 readable print the warning notice specified in subdivision two of this
52 section.
53 2. The signs and contracts described in subdivision one of this
54 section shall contain the following warning notice:
55 WARNING
S. 2944 22
1 Under New York Law, an equine professional or equine activity sponsor
2 is not liable for an injury to, or the death of, a participant in equine
3 activities resulting from the inherent risks of equine activities,
4 pursuant to section 18-304 of the General Obligations Law.
5 § 31. Severability. If any section, part or provision of this act
6 shall be declared unconstitutional, invalid or ineffective by any court
7 of competent jurisdiction, such declaration shall be limited to the
8 section, part or provision directly involved in any such controversy in
9 which such declaration was made and shall not affect any other section,
10 part or provision thereof.
11 § 32. This act shall take effect immediately, provided, however, that:
12 (a) The amendments effected by the provisions of sections two, three,
13 eleven, fifteen, sixteen, seventeen, eighteen, twenty and twenty-one of
14 this act shall apply to subject actions commenced on and after such
15 date;
16 (b) The amendments effected by the provisions of sections four, five
17 and six of this act shall take effect on the first of January next
18 succeeding the date on which it shall have become a law and shall apply
19 to an action commencing on or after such date;
20 (c) The amendments effected by the provisions of section twenty-seven
21 of this act shall apply to retainer agreements executed on or after such
22 date; and
23 (d) The amendments effected by the provisions of section thirty of
24 this act shall take effect on the ninetieth day after it shall have
25 become a law.
REPEAL NOTE.-- Article 16 of the civil practice law and rules,
proposed to be repealed by section three of this act, relates to the
limited liability of persons jointly liable in legal actions and is
replaced by a new article 16 added by section three of this act;
--Section 214-d of the civil practice law and rules, proposed to be
repealed by section four of this act, relates to the limitations on
certain actions against licensed engineers and architects and is
replaced by a new section 214-d as added by section four of this act;
--Section 241-a of the labor law, proposed to be repealed by section
fourteen of this act, relates to the protection of workers in elevator
shafts;
--Subdivision (h) of Rule 3211 of the civil practice law and rules
proposed to be repealed by section six of this act relates to standards
for motions to dismiss certain cases involving licensed architects,
engineers or landscape architects;
--Subdivision (i) of Rule 3212 of the civil practice law and rules
proposed to be repealed by section six of this act relates to standards
for summary judgment in certain cases involving licensed architects,
engineers or landscape architects.