S T A T E O F N E W Y O R K ________________________________________________________________________ S. 3743 A. 6526 1997-1998 Regular Sessions S E N A T E - A S S E M B L Y March 20, 1997 ___________ IN SENATE -- Introduced by Sens. VOLKER, HANNON, MARCELLINO, SEWARD, WRIGHT -- read twice and ordered printed, and when printed to be committed to the Committee on Codes IN ASSEMBLY -- Introduced by M. of A. CANESTRARI, GROMACK -- Multi-Spon- sored by -- M. of A. ABBATE, DESTITO, FARRELL, MAGEE, McENENY, SEMIN- ERIO, TOKASZ, TONKO -- read once and referred to the Committee on Codes AN ACT to amend the civil practice law and rules, in relation to limita- tions on certain actions against licensed land surveyors The People of the State of New York, represented in Senate and Assem- ______________________________________________________________________ bly, do enact as follows: _________________________ 1 Section 1. Section 214-d of the civil practice law and rules, as added 2 by chapter 682 of the laws of 1996, is amended to read as follows: 3  214-d. Limitations on certain actions against licensed engineers and 4 architects. 1. Any person asserting a claim for personal injury, wrong- 5 ful death or property damage, or a cross or third-party claim for 6 contribution or indemnification arising out of an action for personal 7 injury, wrongful death or property damage, against a licensed architect, 8 engineer, land surveyor or landscape architect or against a partnership, _____________ 9 professional corporation or limited liability company lawfully practic- 10 ing architecture, engineering, land surveying or landscape architecture ________________ 11 which is based upon the professional performance, conduct or omission by 12 such licensed architect, engineer, land surveyor or landscape architect _____________ 13 or such firm occurring more than ten years prior to the date of such 14 claim, shall give written notice of such claim to each such architect, 15 engineer, land surveyor or landscape architect or such firm at least _____________ 16 ninety days before the commencement of any action or proceeding against 17 such licensed architect, engineer, land surveyor or landscape architect _____________ 18 or such firm including any cross or third-party action or claim. The 19 notice of claim shall identify the performance, conduct or omissions EXPLANATION--Matter in italics (underscored) is new; matter in brackets _______ [ ] is old law to be omitted. LBD09039-01-7 S. 3743 2 A. 6526 1 complained of, on information and belief, and shall include a request 2 for general and special damages. Service of such written notice of 3 claim may be made by any of the methods permitted for personal service 4 of a summons upon a natural person, partnership or professional corpo- 5 ration. A notice of claim served in accordance with this section shall 6 be filed, together with proof of service thereof, in any court of this 7 state in which an action, proceeding or cross or third-party claim aris- 8 ing out of such conduct may be commenced or interposed, within thirty 9 days of the service of the notice of claim. Upon the filing of any such 10 notice of claim, a county clerk shall collect an index number fee in 11 accordance with section eight thousand eighteen of this chapter and an 12 index number shall be assigned. 13 2. In such pleadings as are subsequently filed in any court, each 14 party shall represent that it has fully complied with the provisions of 15 this section. 16 3. Service of a notice as provided in this section shall toll the 17 applicable statute of limitations to and including a period of one 18 hundred twenty days following such service. 19 4. From and after the date of service of the notice provided for in 20 subdivision one of this section, the claimant shall have the right to 21 serve a demand for discovery and production of documents and things for 22 inspection, testing, copying or photographing in accordance with rule 23 three thousand one hundred twenty of this chapter. Such demand shall be 24 governed by the procedures of article thirty-one of this chapter. In 25 addition, the claimant shall have the right to the examination before 26 trial of such licensed architect, engineer, land surveyor or landscape _____________ 27 architect or such firm or to serve written interrogatories upon such 28 licensed architect, engineer, land surveyor or landscape architect or _____________ 29 such firm after service of and compliance with a demand for production 30 and inspection in accordance with this section. The court may, at any 31 time at its own initiative or on motion of such licensed architect, 32 engineer, land surveyor or landscape architect or such firm deny, limit, _____________ 33 condition or restrict such examination before trial or written interro- 34 gatories upon a showing that such claimant has failed to establish 35 reasonable necessity for the information sought or failed to establish 36 that the information sought by such examination or interrogatories 37 cannot reasonably be determined from the documents or things provided in 38 response to a demand for production and inspection served in accordance 39 with this section. Such examination before trial or interrogatories 40 shall otherwise be governed by article thirty-one of this chapter. 41 5. After the expiration of ninety days from service of the notice 42 provided in subdivision one of this section, the claimant may commence 43 or interpose an action, proceeding or cross or third-party claim against 44 such licensed architect, engineer, land surveyor or landscape architect _____________ 45 or such firm. The action shall proceed in every respect as if the action 46 were one brought on account of conduct occurring less than ten years 47 prior to the claim described in said action, unless the defendant archi- 48 tect, engineer, land surveyor or landscape architect or such firm shall _____________ 49 have made a motion under rule three thousand two hundred eleven or three 50 thousand two hundred twelve of this chapter, in which event the action 51 shall be stayed pending determination of the motion. Such motion shall 52 be granted upon a showing that such claimant has failed to comply with 53 the notice of claim requirements of this section or for the reasons set 54 forth in subdivision (h) of rule three thousand two hundred eleven or 55 subdivision (i) of rule three thousand two hundred twelve of this chap- 56 ter; provided, however, such motion shall not be granted if the moving S. 3743 3 A. 6526 1 party is in default of any disclosure obligation as set forth in subdi- 2 vision four of this section. 3 6. No claim for personal injury, or wrongful death or property damage, 4 or a cross or third-party claim for contribution or indemnification 5 arising out of an action for personal injury, wrongful death or property 6 damage may be asserted against a licensed architect, engineer, land ____ 7 surveyor or landscape architect or such firm arising out of conduct by ________ 8 such licensed architect, engineer, land surveyor or landscape architect _____________ 9 or such firm occurring more than ten years prior to the accrual of such 10 claim shall be commenced or interposed against any such licensed archi- 11 tect, engineer, land surveyor or landscape architect or such firm unless _____________ 12 it shall appear by and as an allegation in the complaint or necessary 13 moving papers that the claimant has complied with the requirements of 14 this section. Upon the commencement of such a proceeding or action or 15 interposition of such cross or third-party claim, a county clerk shall 16 not be entitled to collect an index number fee and such action, proceed- 17 ing or cross or third-party claim shall retain the previously assigned 18 index number. Such action, proceeding or cross or third-party claim 19 shall otherwise be governed by the provisions of this chapter. 20 7. The provisions of this section shall apply only to a licensed 21 architect, engineer, land surveyor or landscape architect or such firm _____________ 22 practicing architecture, engineering, land surveying or landscape archi- ________________ 23 tecture in the state of New York at the time the conduct complained of 24 occurred and shall not apply to any person or entity, including but not 25 limited to corporations, which was not licensed as an architect, engi- 26 neer, land surveyor or landscape architect or such firm in this state or _____________ 27 to a firm not lawfully practicing architecture, engineering, land _______ 28 surveying or landscape architecture at the time the conduct complained _________ 29 of occurred. 30 8. The provisions of this section shall not be construed to in any way 31 alter or extend any applicable statutes of limitations except as 32 expressly provided herein. 33  2. Subdivision (h) of rule 3211 of the civil practice law and rules, 34 as added by chapter 682 of the laws of 1996, is amended to read as 35 follows: 36 (h) Standards for motions to dismiss in certain cases involving 37 licensed architects, engineers, land surveyors or landscape architects. ________________ 38 A motion to dismiss based on paragraph seven of subdivision (a) of this 39 rule, in which the moving party has demonstrated that the action, claim, 40 cross claim or counterclaim subject to the motion is an action in which 41 a notice of claim must be served on a licensed architect, engineer, land ______ 42 surveyor or landscape architect pursuant to the provisions of subdivi- ________ 43 sion one of section two hundred fourteen of this chapter, shall be 44 granted unless the party responding to the motion demonstrates that a 45 substantial basis in law exists to believe that the performance, conduct 46 or omission complained of such licensed architect, engineer, land ______ 47 surveyor or landscape architect or such firm as set forth in the notice ________ 48 of claim was negligent and that such performance, conduct or omission 49 was a proximate cause of personal injury, wrongful death or property 50 damage complained of by the claimant or is supported by a substantial 51 argument for an extension, modification or reversal of existing law. The 52 court shall grant a preference in the hearing of such motion. 53  3. Subdivision (i) of rule 3212 of the civil practice law and rules, 54 as added by chapter 682 of the laws of 1996, is amended to read as 55 follows: S. 3743 4 A. 6526 1 (i) Standards for summary judgment in certain cases involving licensed 2 architects, engineers, land surveyors or landscape architects. A motion ________________ 3 for summary judgment, in which the moving party has demonstrated that 4 the action, claim, cross claim or counterclaim subject to the motion is 5 an action in which a notice of claim must be served on a licensed archi- 6 tect, engineer, land surveyor or landscape architect pursuant to the _________________ 7 provisions of subdivision one of section two hundred fourteen of this 8 chapter, shall be granted unless the party responding to the motion 9 demonstrates that a substantial basis in fact and in law exists to 10 believe that the performance, conduct or omission complained of such 11 licensed architect, engineer, land surveyor or landscape architect or _______________ 12 such firm as set forth in the notice of claim was negligent and that 13 such performance, conduct or omission was a proximate cause of personal 14 injury, wrongful death or property damage complained of by the claimant 15 or is supported by a substantial argument for an extension, modification 16 or reversal of existing law. The court shall grant a preference in the 17 hearing of such motion. 18  4. This act shall take effect immediately.