S T A T E O F N E W Y O R K ________________________________________________________________________ 6661 I N S E N A T E March 26, 1998 ___________ Introduced by Sens. VOLKER, HANNON, GOODMAN, HOLLAND, JOHNSON, LARKIN, PADAVAN, PRESENT, SALAND, SEWARD -- 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 vehicle and traf- fic law, the labor law, the not-for-profit corporation 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 of 1998 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 of 1998". 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 or article twelve-A of the real property law, the complaint ________________________________________________________ 11 shall be accompanied by a certificate, executed by the attorney for 12 the plaintiff, or other party asserting the cause of action, declaring ______________________________________________ 13 that: 14 (1) the attorney has reviewed the facts of the case and has consulted 15 with at least one physician in medical malpractice actions, at least one 16 dentist in dental malpractice actions [or], at least one podiatrist in _ 17 podiatric malpractice actions, or at least one professional in the same __________________________________________ 18 profession as the person or persons defendant in the subject suit in ________________________________________________________________________ 19 other professional malpractice or negligence actions and who is licensed ________________________________________________________ 20 to practice in this state or any other state and who the attorney 21 reasonably believes is knowledgeable in the relevant issues involved in 22 the particular action, and who has signed an affidavit concluding that _________________________________________________ EXPLANATION--Matter in italics (underscored) is new; matter in brackets _______ [ ] is old law to be omitted. LBD14268-03-8 S. 6661 2 1 there is a reasonable basis for the commencement of an action, such ________________________________________________________________________ 2 affidavit shall accompany the certificate required by this section, and ___________________________________________________________________ 3 that the attorney has concluded on the basis of such review [and], _ 4 consultation and affidavit that there is a reasonable basis for the ______________ 5 commencement of such action; or 6 (2) the attorney was unable to obtain the consultation and affida- ____________ 7 vit required by paragraph one of this subdivision because a limitation ___ 8 of time, established by article two of this chapter, would bar the 9 action and that the certificate required by paragraph one of this 10 subdivision could not reasonably be obtained before such time expired. 11 If a certificate is executed pursuant to this subdivision, the 12 certificate required by this section shall be filed within ninety 13 days after service of the complaint; or 14 (3) the attorney was unable to obtain the consultation and affidavit _____________ 15 required by paragraph one of this subdivision because the attorney had 16 made three separate good faith attempts with three separate physicians, 17 dentists [or], podiatrists or subject professionals, in accordance with _ ________________________ 18 the provisions of paragraph one of this subdivision to obtain such 19 consultation and affidavit and none of those contacted would agree to ______________ 20 such a consultation and affidavit. _____________ 21 (b) Where a certificate is required pursuant to this section, a single 22 certificate shall be filed for each action, even if more than one 23 defendant has been named in the complaint or is subsequently named. 24 (c) Where the attorney intends to rely solely on the doctrine of "res 25 ipsa loquitur", this section shall be inapplicable. In such cases, the 26 complaint shall be accompanied by a certificate, executed by the attor- 27 ney, declaring that the attorney is solely relying on such doctrine and, 28 for that reason, is not filing a certificate required by this section. 29 (d) If a request by the plaintiff for the records of the plaintiff's 30 medical or dental treatment by the defendants has been made and such 31 records have not been produced, the plaintiff shall not be required to 32 serve the certificate required by this section until ninety days after 33 such records have been produced. 34 (e) For purposes of this section, and subject to the provisions of 35 section thirty-one hundred one of this chapter, an attorney who submits 36 a certificate as required by paragraph one or two of subdivision (a) of 37 this section and the physician, dentist [or], podiatrist or subject _ ___________ 38 professionals with whom the attorney consulted shall not be required to _____________ 39 disclose the identity of the physician, dentist [or], podiatrist or _ __ 40 subject professionals consulted and the contents of such consultation ______________________ 41 and affidavit; provided, however, that when the attorney makes a claim _____________ 42 under paragraph three of subdivision (a) of this section that he was 43 unable to obtain the required consultation and affidavit with the physi- _____________ 44 cian, dentist [or], podiatrist or subject professionals, the court may, _ ________________________ 45 upon the request of a defendant made prior to compliance by the plain- 46 tiff with the provisions of section thirty-one hundred one of this chap- ___ 47 ter, require the attorney to divulge to the court the names of physi- 48 cians, dentists [or], podiatrists or subject professionals refusing such _ ________________________ 49 consultation and affidavit. _____________ 50 (f) The provisions of this section shall not be applicable to a plain- 51 tiff who is not represented by an attorney. 52 (g) The plaintiff may, in lieu of serving the certificate required by 53 this section, provide the defendant or defendants with the information 54 required by paragraph one of subdivision (d) of section thirty-one 55 hundred one of this chapter within the period of time prescribed by this 56 section. S. 6661 3 1 (h) The subject professional or professionals consulted may not be a ______________________________________________________________________ 2 party to the litigation. ________________________ 3 (i) For purposes of this section, a complaint shall include a ______________________________________________________________________ 4 complaint, third party complaint, an answer containing a counterclaim or ________________________________________________________________________ 5 a cross claim. ______________ 6  3. Article 16 of the civil practice law and rules is REPEALED and a 7 new article 16 is added to read as follows: 8 ARTICLE 16 __________ 9 LIMITED LIABILITY OF PERSONS JOINTLY ____________________________________ 10 LIABLE ______ 11 1600. Definitions. __________________ 12 1601. Limited liability of persons jointly liable. __________________________________________________ 13 1602. Application. __________________ 14 1603. Burden of proof. ______________________ 15  1600. Definitions. As used in this article, the term "damages" shall ______________________________________________________________________ 16 include, but in no manner be limited to, all economic and non-economic ________________________________________________________________________ 17 loss awarded in an action as pecuniary compensation or satisfaction for ________________________________________________________________________ 18 an injury caused or loss sustained as a result of a breach of a contrac- ________________________________________________________________________ 19 tual obligation, a tortuous act of commission or omission or any other ________________________________________________________________________ 20 such incident. ______________ 21  1601. Limited liability of persons jointly liable. 1. Notwithstand- ______________________________________________________________________ 22 ing any other provision of law, when a verdict or decision in an action ________________________________________________________________________ 23 or claim for economic or non-economic damages is determined in favor of ________________________________________________________________________ 24 a claimant in an action involving two or more wrongdoers jointly liable ________________________________________________________________________ 25 or in a claim against the state, the liability of each such wrongdoer to ________________________________________________________________________ 26 the claimant for loss shall not exceed the wrongdoer's equitable share ________________________________________________________________________ 27 determined in accordance with the relative culpability of each person ________________________________________________________________________ 28 causing or contributing to the total liability, whether or not such ________________________________________________________________________ 29 person was or could have been a party to the action. ____________________________________________________ 30 2. Nothing herein shall be construed to affect or impair any right of ______________________________________________________________________ 31 a wrongdoer pursuant to the provisions of section 15-108 of the general ________________________________________________________________________ 32 obligations law. ________________ 33  1602. Application. The limitations set forth in this article shall: _____________________________________________________________________ 34 1. Apply to any claim for contribution or indemnification but shall ______________________________________________________________________ 35 not include: (a) a claim for indemnification if, prior to the accident ________________________________________________________________________ 36 or occurrence on which the claim is based, the claimant and the wrong- ________________________________________________________________________ 37 doer had entered into a written contract in which the wrongdoer had ________________________________________________________________________ 38 expressly agreed to indemnify the claimant for the type of loss ________________________________________________________________________ 39 suffered; or ____________ 40 (b) a claim for indemnification by a public employee, including indem- ______________________________________________________________________ 41 nification pursuant to section fifty-k of the general municipal law or ________________________________________________________________________ 42 section seventeen or eighteen of the public officers law. _________________________________________________________ 43 2. Not be construed to impair, alter, limit, modify, enlarge, abrogate ______________________________________________________________________ 44 or restrict (i) the limitations set forth in section twenty-a of the ________________________________________________________________________ 45 court of claims act; (ii) any immunity or right of indemnification ________________________________________________________________________ 46 available to or conferred upon any defendant for any negligent or wrong- ________________________________________________________________________ 47 ful act or omission; (iii) any right on the part of any defendant to ________________________________________________________________________ 48 plead and prove an affirmative defense as to culpable conduct attribut- ________________________________________________________________________ 49 able to a claimant or decedent which is claimed by such defendant in ________________________________________________________________________ 50 diminution of damages in any action; and (iv) any liability arising by ________________________________________________________________________ 51 reason of a non-delegable duty or by reason of the doctrine of respond- ________________________________________________________________________ 52 ent superior. _____________ 53 3. Not be applied to claims under the workers' compensation law or to ______________________________________________________________________ 54 a claim against a defendant where the claimant has sustained a "grave ________________________________________________________________________ 55 injury" as defined in section eleven of the workers' compensation law to ________________________________________________________________________ 56 the extent of the equitable share of any person against whom the claim- ________________________________________________________________________ S. 6661 4 1 ant is barred from asserting a cause of action because of the applica- ________________________________________________________________________ 2 bility of the workers' compensation law; provided, however, that nothing ________________________________________________________________________ 3 in this section shall be construed to create, impair, alter, limit, ________________________________________________________________________ 4 modify, enlarge, abrogate or restrict any theory of liability upon which ________________________________________________________________________ 5 any person may be held liable. ______________________________ 6 4. In conjunction with the other provisions of this article not be ______________________________________________________________________ 7 construed to create or enlarge actions for contributions or indemnity ________________________________________________________________________ 8 barred because of the application of the workers' compensation law of ________________________________________________________________________ 9 this state, any other state or the federal government, or section 18-201 ________________________________________________________________________ 10 of the general obligations law. _______________________________ 11  1603. Burden of proof. In any action or claim for damages, a party ______________________________________________________________________ 12 asserting that the limitations of liability set forth in this article do ________________________________________________________________________ 13 not apply shall allege, and must prove by a preponderance of the ________________________________________________________________________ 14 evidence, that one or more of the exemptions set forth in either subdi- ________________________________________________________________________ 15 vision one of section sixteen hundred one, or section sixteen hundred ________________________________________________________________________ 16 two of this article, shall apply. _________________________________ 17  4. Section 214-d of the civil practice law and rules is REPEALED and 18 a new section 214-d is added to read as follows: 19  214-d. Limitations on certain actions against professional engi- ______________________________________________________________________ 20 neers, architects, landscape architects, land surveyors or construction ________________________________________________________________________ 21 contractors. 1. Except as otherwise provided in subdivision two of this ________________________________________________________________________ 22 section, no action to recover damages for injury to the person or for ________________________________________________________________________ 23 wrongful death or for damage to property nor any action for contribution ________________________________________________________________________ 24 or indemnity for damages sustained on account of such injury or wrongful ________________________________________________________________________ 25 death or damage to property arising from any defect in the structure or ________________________________________________________________________ 26 improvement resulting from the design, planning, or supervision of ________________________________________________________________________ 27 construction of an improvement to real property shall be brought against ________________________________________________________________________ 28 a professional engineer, architect, landscape architect, land surveyor ________________________________________________________________________ 29 or construction contractor more than ten years after the completion of ________________________________________________________________________ 30 such improvement. _________________ 31 2. If, by reason of such defect, an injury to the person or an injury ______________________________________________________________________ 32 causing wrongful death or an injury to property occurs during the tenth ________________________________________________________________________ 33 year after completion, an action to recover damages for such injury or ________________________________________________________________________ 34 wrongful death or damage to property may be brought within one year ________________________________________________________________________ 35 after the date on which such injury occurred, but in no event may such ________________________________________________________________________ 36 action be brought more than eleven years after the completion of the ________________________________________________________________________ 37 improvement. ____________ 38 3. Except as provided in subdivision two of this section, in the ______________________________________________________________________ 39 event the provisions of subdivision one of this section shall have ________________________________________________________________________ 40 reduced the period during which an action against a professional engi- ________________________________________________________________________ 41 neer, architect, landscape architect, land surveyor or construction ________________________________________________________________________ 42 contractor could have otherwise been brought pursuant to any other ________________________________________________________________________ 43 provision of law, rule or regulation, the claimant shall, in that event, ________________________________________________________________________ 44 be entitled to institute any such action for a period of one year after ________________________________________________________________________ 45 the effective date of this section. ___________________________________ 46 4. The limitations prescribed by this section shall not apply to ______________________________________________________________________ 47 actions brought by one in contractual or professional privity with the ________________________________________________________________________ 48 engineer, architect, landscape architect, land surveyor or construction ________________________________________________________________________ 49 contractor and shall not be asserted by way of defense by any person in ________________________________________________________________________ 50 actual possession or control as owner, tenant, or otherwise, of such an ________________________________________________________________________ 51 improvement at the time any defect in such improvement constitutes the ________________________________________________________________________ 52 proximate cause of the injury or death for which it is proposed to bring ________________________________________________________________________ 53 an action. __________ 54 5. For purposes of this section an improvement shall be deemed to be ______________________________________________________________________ 55 "completed" (a) when, after the improvement has been started, a perma- ________________________________________________________________________ 56 nent certificate of occupancy is issued by the municipality in which the ________________________________________________________________________ S. 6661 5 1 improvement is situated, if such is required or is actually issued ________________________________________________________________________ 2 pursuant to law or regulation; or (b) if a public improvement, upon the ________________________________________________________________________ 3 acceptance of the improvement by the owner, if a certificate of occupan- ________________________________________________________________________ 4 cy is not required and has not been issued; or (c) on the earlier of the ________________________________________________________________________ 5 following dates, if the provisions of paragraphs (a) and (b) of this ________________________________________________________________________ 6 subdivision do not apply (i) four months prior to the last day on which ________________________________________________________________________ 7 mechanic's lien, resulting from work performed or materials furnished ________________________________________________________________________ 8 with respect to such improvement, can be filed; or (ii) upon the owner's ________________________________________________________________________ 9 final payment for services rendered or materials supplied with respect ________________________________________________________________________ 10 to such improvement. ____________________ 11 6. An architect, engineer, landscape architect, or land surveyor shall ______________________________________________________________________ 12 mean a person licensed or registered as an architect, engineer, land- ________________________________________________________________________ 13 scape architect, land surveyor or construction contractor, pursuant to ________________________________________________________________________ 14 the provisions of the education law or any partnership, corporation or ________________________________________________________________________ 15 any other entity lawfully performing architectural, engineering, land- ________________________________________________________________________ 16 scape architectural or surveying services. ____________________________________________ 17  5. Subdivisions 4 and 5 of section 214 of the civil practice law and 18 rules, as separately amended by chapters 485 and 682 of the laws of 19 1986, are amended to read as follows: 20 4. an action to recover damages for an injury to property except as 21 provided in [section] sections 214-c, 214-d and 214-f; ________ _________________ 22 5. an action to recover damages for a personal injury except as 23 provided in sections 214-b, 214-c, 214-d, 214-f and 215; ______________ 24  6. Subdivision (h) of rule 3211 and subdivision (i) of rule 3212 of 25 the civil practice law and rules are REPEALED. 26  7. The civil practice law and rules is amended by adding a new 27 section 214-f to read as follows: 28  214-f. Actions alleging injury from a product; repose. (a) Notwith- ______________________________________________________________________ 29 standing any law, rule or regulation to the contrary, and subject to the ________________________________________________________________________ 30 provisions of subdivisions (b), (c) and (d) of this section, no cause of ________________________________________________________________________ 31 action arising out of the manufacture, sale or marketing of a product ________________________________________________________________________ 32 may be commenced more than ten years after any such product is delivered ________________________________________________________________________ 33 to the first purchaser or lessee. _________________________________ 34 (b) The provisions of subdivision (a) of this section shall not bar a ______________________________________________________________________ 35 product liability action against a subject defendant who shall have made ________________________________________________________________________ 36 an express warranty, in writing, as to the safety or life expectancy of ________________________________________________________________________ 37 the specific product involved, which period of warranty is longer than ________________________________________________________________________ 38 ten years, except that such subdivision shall apply at the expiration of ________________________________________________________________________ 39 that warranty. ______________ 40 (c) If a product liability cause of action accrues during the ten year ______________________________________________________________________ 41 period described in subdivision (a) of this section but at a time less ________________________________________________________________________ 42 than two years prior to the expiration of such period, such action may ________________________________________________________________________ 43 be brought within two years after accrual thereof; provided, however, ________________________________________________________________________ 44 that in no event may such action be brought more than twelve years after ________________________________________________________________________ 45 the product was delivered to the first purchaser or lessee. ___________________________________________________________ 46 (d) Except as provided in subdivisions (b) and (c) of this section, in ______________________________________________________________________ 47 the event the provisions of subdivision (a) of this section shall have ________________________________________________________________________ 48 reduced the period during which a product liability action could have ________________________________________________________________________ 49 otherwise been brought pursuant to any other provision of law, rule or ________________________________________________________________________ 50 regulation, the claimant shall, in that event, be entitled to institute ________________________________________________________________________ 51 any such action for a period of one year after the effective date of ________________________________________________________________________ 52 this section. _____________ 53 (e) For purposes of this section, "cause of action arising out of the ______________________________________________________________________ 54 manufacture, sale or marketing of a product" means any action, including ________________________________________________________________________ 55 but not limited to a contribution, indemnity or restitution action, ________________________________________________________________________ 56 brought for or on account of personal injury, wrongful death, injury to ________________________________________________________________________ S. 6661 6 1 property or expenditure of funds that is alleged to have resulted from ________________________________________________________________________ 2 the manufacture, sale, use, construction, design, formulation, develop- ________________________________________________________________________ 3 ment of standards, preparation, processing, assembly, rebuilding, test- ________________________________________________________________________ 4 ing, listing, certifying, marketing, advertising, packaging or labeling ________________________________________________________________________ 5 of any product, or any warning or instruction or lack of warning or ________________________________________________________________________ 6 instruction associated with that product, regardless of the theory of ________________________________________________________________________ 7 liability employed. ___________________ 8 (f) Notwithstanding the foregoing or any other provision of law, rule ______________________________________________________________________ 9 or regulation, no claim may be brought against a defendant in any civil ________________________________________________________________________ 10 action if either (i) with respect to all civil actions, including ________________________________________________________________________ 11 actions subject herein, the claim is based in whole or in part on any ________________________________________________________________________ 12 act or omission of the defendant which occurred more than twenty-five ________________________________________________________________________ 13 years before the claim was brought; or (ii) with respect to any such ________________________________________________________________________ 14 actions subject herein, the claim is brought more than twenty-five years ________________________________________________________________________ 15 after the date of delivery of the product to the first purchaser or ________________________________________________________________________ 16 lessee, which product is alleged to have caused the plaintiff's injury ________________________________________________________________________ 17 or damage. __________ 18  8. Paragraph 1 of subdivision (d) of section 3101 of the civil prac- 19 tice law and rules, as amended by chapter 184 of the laws of 1988, 20 subparagraph (ii) as amended by chapter 165 of the laws of 1991, is 21 amended to read as follows: 22 1. Experts. (i) Upon request, each party shall identify each person 23 whom the party expects to call as an expert witness at trial and shall 24 disclose in reasonable detail the subject matter on which each expert is 25 expected to testify, the substance of the facts and opinions on which 26 each expert is expected to testify, the qualifications of each expert 27 witness and a summary of the grounds for each expert's opinion. However, 28 where a party for good cause shown retains an expert an insufficient 29 period of time before the commencement of trial to give appropriate 30 notice thereof, the party shall not thereupon be precluded from intro- 31 ducing the expert's testimony at the trial solely on grounds of noncom- 32 pliance with this paragraph. In that instance, upon motion of any party, 33 made before or at trial, or on its own initiative, the court may make 34 whatever order may be just. [In an action for medical, dental or podia- 35 tric malpractice, a party, in responding to a request, may omit the 36 names of medical, dental or podiatric experts but shall be required to 37 disclose all other information concerning such experts otherwise 38 required by this paragraph.] 39 (ii) In an action for medical, dental or podiatric malpractice, any 40 party may, by written offer made to and served upon all other parties 41 and filed with the court, [offer to disclose the name of, and to] make 42 available for examination upon oral deposition, any person the party 43 making the offer expects to call as an expert witness at trial. Within 44 twenty days of service of the offer, a party shall accept or reject the 45 offer by serving a written reply upon all parties and filing a copy 46 thereof with the court. Failure to serve a reply within twenty days of 47 service of the offer shall be deemed a rejection of the offer. If all 48 parties accept the offer, each party shall be required to produce his or 49 her expert witness for examination upon oral deposition upon receipt of 50 a notice to take oral deposition in accordance with rule thirty-one 51 hundred seven of this [chapter] article. If any party, having made or _______ 52 accepted the offer, fails to make that party's expert available for oral 53 deposition, that party shall be precluded from offering expert testimony 54 at the trial of the action. 55 (iii) Further disclosure concerning the expected testimony of any 56 expert may be obtained only by court order upon a showing of special S. 6661 7 1 circumstances and subject to restrictions as to scope and provisions 2 concerning fees and expenses as the court may deem appropriate. However, 3 a party, without court order, may take the testimony of a person author- 4 ized to practice medicine, dentistry or podiatry who is the party's 5 treating or retained expert, as described in paragraph three of subdivi- 6 sion (a) of this section, in which event any other party shall be enti- 7 tled to the full disclosure authorized by this article with respect to 8 that expert without court order. 9  9. Subdivisions (b) and (e) of section 5031 of the civil practice 10 law and rules, as amended by chapter 485 of the laws of 1986, are 11 amended to read as follows: 12 (b) The court shall enter judgment in lump sum for past damages, for 13 future damages not in excess of [two hundred] fifty thousand dollars, 14 and for any damages, fees or costs payable in lump sum or otherwise 15 under subdivisions (c) and (d) of this section. For the purposes of this 16 section, any lump sum payment of a portion of future damages shall be 17 deemed to include the elements of future damages in the same proportion 18 as such elements comprise of the total award for future damages as 19 determined by the trier of fact. 20 (e) With respect to awards of future damages in excess of [two 21 hundred] fifty thousand dollars in an action to recover damages for 22 dental, medical or podiatric malpractice, the court shall enter judgment 23 as follows: 24 After making any adjustments prescribed by subdivisions (b), (c) and 25 (d) of this section, the court shall enter a judgment for the amount of 26 the present value of an annuity contract that will provide for the 27 payment of the remaining amounts of future damages in periodic install- 28 ments. The present value of such contract shall be determined in accord- 29 ance with generally accepted actuarial practices by applying the 30 discount rate in effect at the time of the award to the full amount of 31 the remaining future damages, as calculated pursuant to this subdivi- 32 sion. The period of time over which such periodic payments shall be made 33 and the period of time used to calculate the present value of the annui- 34 ty contract shall be the period of years determined by the trier of fact 35 in arriving at the itemized verdict; provided, however, that the period 36 of time over which such periodic payments shall be made and the period 37 of time used to calculate the present value for damages attributable to 38 pain and suffering shall be ten years or the period of time determined 39 by the trier of fact, whichever is less. The court, as part of its judg- 40 ment, shall direct that the defendants and their insurance carriers 41 shall be required to offer and to guarantee the purchase and payment of 42 such an annuity contract. Such annuity contract shall provide for the 43 payment of the annual payments of such remaining future damages over the 44 period of time determined pursuant to this subdivision. The annual 45 payment for the first year shall be calculated by dividing the remaining 46 amount of future damages by the number of years over which such payments 47 shall be made and the payment due in each succeeding year shall be 48 computed by adding four percent to the previous year's payment. The ___ 49 addition of four percent to each of the previous year's payment shall be ________________________________________________________________________ 50 the exclusive measure of interest, inflation, foregone investment oppor- ________________________________________________________________________ 51 tunity and any other measure of damage. Where payment of a portion of __________________________________________ 52 the future damages terminates in accordance with the provisions of this 53 article, the four percent added payment shall be based only upon that 54 portion of the damages that remains subject to continued payment. Unless 55 otherwise agreed, the annual sum so arrived at shall be paid in equal 56 monthly installments and in advance. S. 6661 8 1  10. Subdivisions (b) and (e) of section 5041 of the civil practice 2 law and rules, as added by chapter 682 of the laws of 1986, are amended 3 to read as follows: 4 (b) The court shall enter judgment in lump sum for past damages, for 5 future damages not in excess of [two hundred] fifty thousand dollars, 6 and for any damages, fees or costs payable in lump sum or otherwise 7 under subdivisions (c) and (d) of this section. For the purposes of this 8 section, any lump sum payment of a portion of future damages shall be 9 deemed to include the elements of future damages in the same proportion 10 as such elements comprise of the total award for future damages as 11 determined by the trier of fact. 12 (e) With respect to awards of future damages in excess of [two 13 hundred] fifty thousand dollars in an action to recover damages for 14 personal injury, injury to property or wrongful death, the court shall 15 enter judgment as follows: 16 After making any adjustment prescribed by subdivisions (b), (c) and 17 (d) of this section, the court shall enter a judgment for the amount of 18 the present value of an annuity contract that will provide for the 19 payment of the remaining amounts of future damages in periodic install- 20 ments. The present value of such contract shall be determined in accord- 21 ance with generally accepted actuarial practices by applying the 22 discount rate in effect at the time of the award to the full amount of 23 the remaining future damages, as calculated pursuant to this subdivi- 24 sion. The period of time over which such periodic payments shall be made 25 and the period of time used to calculate the present value of the annui- 26 ty contract shall be the period of years determined by the trier of fact 27 in arriving at the itemized verdict; provided, however, that the period 28 of time over which such periodic payments shall be made and the period 29 of time used to calculate the present value for damages attributable to 30 pain and suffering shall be ten years or the period of time determined 31 by the trier of fact, whichever is less. The court, as part of its judg- 32 ment, shall direct that the defendants and their insurance carriers 33 shall be required to offer and to guarantee the purchase and payment of 34 such an annuity contract. Such annuity contract shall provide for the 35 payment of the annual payments of such remaining future damages over the 36 period of time determined pursuant to this subdivision. The annual 37 payment for the first year shall be calculated by dividing the remaining 38 amount of future damages by the number of years over which such payments 39 shall be made and the payment due in each succeeding year shall be 40 computed by adding four percent to the previous year's payment. The ___ 41 addition of four percent to each of the previous year's payment shall be ________________________________________________________________________ 42 the exclusive measure of interest, inflation, foregone investment oppor- ________________________________________________________________________ 43 tunity and any other measure of damage. Where payment of a portion of __________________________________________ 44 the future damages terminates in accordance with the provisions of this 45 article, the four percent added payment shall be based only upon that 46 portion of the damages that remains subject to continued payment. 47 Unless otherwise agreed, the annual sum so arrived at shall be paid in 48 equal monthly installments and in advance. 49  11. The civil practice law and rules is amended by adding a new 50 article 50-C to read as follows: 51 ARTICLE 50-C ____________ 52 LIMITATION ON NONECONOMIC DAMAGES _________________________________ 53 5051. Definitions. __________________ 54 5052. Damage awards. ____________________ 55  5051. Definitions. As used in this article: _____________________________________________ S. 6661 9 1 1. "Noneconomic damages" means subjective, nonpecuniary damages aris- ______________________________________________________________________ 2 ing from pain, suffering, inconvenience, physical impairment or disfig- ________________________________________________________________________ 3 urement, mental anguish, emotional distress, loss of society and compan- ________________________________________________________________________ 4 ionship, loss of consortium, injury to reputation, humiliation and other ________________________________________________________________________ 5 nonpecuniary damages. _____________________ 6 2. "Actual economic damages" means objectively verifiable pecuniary ______________________________________________________________________ 7 damages arising from medical expenses and medical care, loss of earnings ________________________________________________________________________ 8 and earning capacity, burial costs, loss of use of property, costs of ________________________________________________________________________ 9 repair or replacement of property, costs of obtaining substitute domes- ________________________________________________________________________ 10 tic services, loss of employment, loss of business or employment oppor- ________________________________________________________________________ 11 tunities, rehabilitation services, custodial care and other pecuniary ________________________________________________________________________ 12 damages. ________ 13 3. "Personal injury action" means any action, including but in no ______________________________________________________________________ 14 manner limited to medical, dental and podiatric malpractice actions, ________________________________________________________________________ 15 whether in tort, contract, or otherwise, in which the plaintiff seeks ________________________________________________________________________ 16 damages for injury to the person or wrongful death. ___________________________________________________ 17 4. "Compensation" means monetary awards. ________________________________________ 18  5052. Damage awards. In any personal injury action, the prevailing ______________________________________________________________________ 19 plaintiff may be awarded: _________________________ 20 1. Compensation for actual economic damages suffered by the injured ______________________________________________________________________ 21 plaintiff; and ______________ 22 2. Compensation for noneconomic damages suffered by the injured plain- ______________________________________________________________________ 23 tiff, not to exceed two hundred fifty thousand dollars. _______________________________________________________ 24  12. Section 240 of the labor law, the section heading and subdivi- 25 sion 2 as amended by chapter 683 of the laws of 1947 and subdivision 1 26 as amended by chapter 241 of the laws of 1981, is amended to read as 27 follows: 28  240. Scaffolding and other devices for use of employees. 1. All 29 contractors and owners and their agents, except owners of one and two- 30 family dwellings who contract for but do not direct or control the work, 31 in the erection, demolition, repairing, altering, painting, cleaning or 32 pointing of a building or structure shall furnish or erect, or cause to 33 be furnished or erected devices or equipment for the performance of such ____________________ 34 labor, such as scaffolding, hoists, stays, ladders, slings, hangers, _______ 35 blocks, pulleys, braces, irons, and ropes, [and other devices which] ___ 36 where such devices or equipment are necessary to give reasonable and ________________________________________________________________________ 37 adequate protection and safety to a person so employed. Where such ________________________________________________________________________ 38 devices or equipment are furnished or erected, the devices or equipment ________________________________________________________________________ 39 shall be so constructed, placed and operated as to [give proper] provide _______ 40 reasonable and adequate protection and safety to a person so employed. _______________________ __________ 41 No liability pursuant to this subdivision for the failure to provide 42 protection to a person so employed shall be imposed on professional 43 engineers as provided for in article one hundred forty-five of the 44 education law, architects as provided for in article one hundred forty- 45 seven of such law or landscape architects as provided for in article one 46 hundred forty-eight of such law who do not direct or control the work 47 for activities other than planning and design. This exception shall not 48 diminish or extinguish any liability of professional engineers or archi- 49 tects or landscape architects arising under the common law or any other 50 provision of law. 51 2. [Scaffolding or staging more than twenty feet from the ground or 52 floor, swung or suspended from an overhead support or erected with 53 stationary supports, except scaffolding wholly within the interior of a 54 building and covering the entire floor space of any room therein, shall 55 have a safety rail of suitable material properly attached, bolted, 56 braced or otherwise secured, rising at least thirty-four inches above S. 6661 10 1 the floor or main portions of such scaffolding or staging and extending 2 along the entire length of the outside and the ends thereof, with only 3 such openings as may be necessary for the delivery of materials. Such 4 scaffolding or staging shall be so fastened as to prevent it from sway- 5 ing from the building or structure. 6 3. All scaffolding shall be so constructed as to bear four times the 7 maximum weight required to be dependent therefrom or placed thereon when 8 in use] Compliance with applicable provisions of the federal Occupa- ______________________________________________________________ 9 tional Safety and Health Act and Part 23 of the New York Codes, Rules ________________________________________________________________________ 10 and Regulations, as amended, shall be prima facie proof of compliance ________________________________________________________________________ 11 with subdivision one of this section. _____________________________________ 12 3. Nothing in this section shall be deemed to relieve a person injured ______________________________________________________________________ 13 in the erection, demolition, repairing, altering, painting, cleaning or ________________________________________________________________________ 14 pointing of a building or structure from the consequences of his culpa- ________________________________________________________________________ 15 ble conduct in accordance with section fourteen hundred eleven of the ________________________________________________________________________ 16 civil practice law and rules. ____________________________ 17  13. Section 241 of the labor law, as added by chapter 1108 of the 18 laws of 1969, the opening paragraph as amended by chapter 670 of the 19 laws of 1980, subdivisions 6, 7 and 8 as amended and subdivision 10 as 20 added by chapter 520 of the laws of 1989, and subdivision 9 as added by 21 chapter 241 of the laws of 1981, is amended to read as follows: 22  241. Construction, excavation and demolition work. 1. All contrac- __ 23 tors and owners and their agents, except owners of one and two-family 24 dwellings who contract for but do not direct or control the work, when 25 constructing or demolishing buildings or doing any excavating in 26 connection therewith, shall [comply with the following requirements: 27 1. If the floors are to be arched between the beams thereof, or if the 28 floors or filling in between the floors are of fireproof material, the 29 flooring or filling in shall be completed as the building progresses. 30 2. If the floors are not to be filled in between the beams with brick 31 or other fireproof material, the underflooring shall be laid on each 32 story as the building progresses. 33 3. If double floors are not to be used, the floor two stories imme- 34 diately below the story where the work is being performed shall be kept 35 planked over. 36 4. If the floor beams are of iron or steel, the entire tier of iron or 37 steel beams on which the structural iron or steel work is being erected 38 shall be thoroughly planked over, except spaces reasonably required for 39 proper construction of the iron or steel work, for raising or lowering 40 of materials or for stairways and elevator shafts designated by the 41 plans and specifications. 42 5. If elevators, elevating machines or hod-hoisting apparatus are used 43 in the course of construction, for the purpose of lifting materials, the 44 shafts or openings in each floor and at each landing level shall be 45 inclosed or fenced in on all sides by a barrier of suitable height, 46 except on two sides which may be used for taking off and putting on 47 materials, and those sides shall be guarded by an adjustable barrier not 48 less than three nor more than four feet from the floor and not less than 49 two feet from the edges of such shafts or openings. 50 6. All areas in which construction, excavation or demolition work is 51 being performed shall be so constructed, shored, equipped, guarded, 52 arranged, operated and conducted] construct, shore, equip, guard, __________________________________ 53 arrange, operate and conduct such work so as to provide reasonable and _________________________________________ 54 adequate protection and safety to the persons employed therein or 55 lawfully frequenting such places. The commissioner may make rules to 56 carry into effect the provisions of this subdivision, and the owners and S. 6661 11 1 contractors and their agents for such work, except owners of one and 2 two-family dwellings who contract for but do not direct or control the 3 work, shall comply therewith. 4 [7. The commissioner may make rules to provide for the protection of 5 workers in connection with the excavation work for the construction of 6 buildings, the work of constructing or demolishing buildings and struc- 7 tures, and the guarding of dangerous machinery used in connection there- 8 with, and the owners and contractors and their agents for such work, 9 except owners of one and two-family dwellings who contract for but do 10 not direct or control the work, shall comply therewith. 11 8.] 2. Compliance with applicable provisions of the federal Occupa- __________________________________________________________________ 12 tional Safety and Health Act and Part 23 of the New York Codes, Rules ________________________________________________________________________ 13 and Regulations, as amended, shall be prima facie proof of compliance ________________________________________________________________________ 14 with subdivision one of this section. _____________________________________ 15 3. Nothing in this section shall be deemed to relieve a person injured ______________________________________________________________________ 16 in the construction, demolition or excavation of a building or structure ________________________________________________________________________ 17 from the consequences of his culpable conduct in accordance with section ________________________________________________________________________ 18 fourteen hundred eleven of the civil practice law and rules. ____________________________________________________________ 19 4. The commissioner, as deemed necessary, shall promulgate rules __ 20 designed for the purpose of providing for the reasonable and adequate 21 protection and safety of persons passing by all areas, buildings or 22 structures in which construction, excavation or demolition work is being 23 performed, and the owners and contractors and their agents for such 24 work, except owners of one and two-family dwellings who contract for but 25 do not direct or control the work, shall comply therewith. The 26 provisions of this subdivision shall not apply to cities having a popu- 27 lation of one million or more. 28 [9.] 5. No liability for the non-compliance with any of the provisions __ 29 of this section shall be imposed on professional engineers as provided 30 for in article one hundred forty-five of the education law, architects 31 as provided for in article one hundred forty-seven of such law or land- 32 scape architects as provided for in article one hundred forty-eight of 33 such law who do not direct or control the work for activities other than 34 planning and design. This exception shall not diminish or extinguish any 35 liability of professional engineers, architects or landscape architects 36 arising under the common law or any other provision of law. 37 [10.] 6. Prior to advertising for bids or contracting for or commenc- __ 38 ing work on any demolition work on buildings covered under this section 39 except agricultural buildings as defined in regulations promulgated by 40 the commissioner and except buildings the construction of which was 41 begun on or after January first, nineteen hundred seventy-four, all 42 owners and their agents, except owners of one and two-family dwellings 43 who contract for but do not direct or control the work, shall conduct or 44 cause to be conducted a survey to determine whether or not the building 45 to be demolished contains asbestos or asbestos material as defined in 46 section nine hundred one of this chapter. Such surveys shall be 47 conducted in conformance with rules and regulations promulgated by the 48 commissioner. Information derived from such survey shall be immediately 49 transmitted to the commissioner and to the local governmental entity 50 charged with issuing a permit for such demolition under applicable state 51 or local laws or, if no such permit is required, to the town or city 52 clerk. If such survey finds that a building to be demolished contains 53 asbestos or asbestos material as defined by section nine hundred one of 54 [the] this chapter, no bids shall be advertised nor contracts awarded ____ 55 nor demolition work commenced by any owner or agent prior to completion S. 6661 12 1 of an asbestos remediation contract performed by a licensed asbestos 2 contractor as defined by section nine hundred one of this chapter. 3  14. Section 241-a of the labor law is REPEALED. 4  15. Section 1411 of the civil practice law and rules, as added by 5 chapter 69 of the laws of 1975, is amended to read as follows: 6  1411. Damages recoverable when contributory negligence or assumption 7 of risk is established. In any action to recover damages for personal 8 injury, injury to property, or wrongful death, the culpable conduct 9 attributable to the claimant or to the decedent, including contributory 10 negligence or assumption of risk, shall not bar recovery, but the amount 11 of damages otherwise recoverable shall be diminished in the proportion 12 which the culpable conduct attributable to the claimant or decedent 13 bears to the culpable conduct which caused the damages; provided, howev- __________________ 14 er, that the claimant or the decedent's representative shall be abso- ________________________________________________________________________ 15 lutely barred from the recovery of any damages where the trier of fact ________________________________________________________________________ 16 finds that the contributory fault on the part of said claimant or dece- ________________________________________________________________________ 17 dent constitutes more than fifty percent of the proximate cause of the ________________________________________________________________________ 18 harm for which recovery is sought. _________________________________ 19  16. The labor law is amended by adding a new section 741 to read as 20 follows: 21  741. Disclosure of employment related information; presumptions; ______________________________________________________________________ 22 causes of action; definitions. 1. Any employer who, upon request by a ________________________________________________________________________ 23 prospective employer or a current or former employee, provides accurate ________________________________________________________________________ 24 information about a current or former employee's job performance or ________________________________________________________________________ 25 reasons for separation shall be immune from civil liability and other ________________________________________________________________________ 26 consequences of such disclosure provided such employer is not acting in ________________________________________________________________________ 27 bad faith. An employer shall be considered to be acting in bad faith ________________________________________________________________________ 28 only if it can be shown by a preponderance of the evidence that the ________________________________________________________________________ 29 information disclosed was knowingly false and deliberately misleading. ______________________________________________________________________ 30 2. Any prospective employer who reasonably relies on information ______________________________________________________________________ 31 pertaining to an employee's job performance or reasons for separation, ________________________________________________________________________ 32 disclosed by a former employer, shall be immune from civil liability ________________________________________________________________________ 33 including liability for negligent hiring, negligent retention, and other ________________________________________________________________________ 34 causes of action related to the hiring of such employee, based upon such ________________________________________________________________________ 35 reasonable reliance, unless further investigation, including but not ________________________________________________________________________ 36 limited to a criminal background check, is required by law. ___________________________________________________________ 37 3. As used in this section, the following words and phrases shall have ______________________________________________________________________ 38 the following meanings unless the context clearly requires otherwise: _____________________________________________________________________ 39 (a) "Employer" means any person, firm, or corporation, including the ______________________________________________________________________ 40 state and its political subdivisions, and any agent thereof with one or ________________________________________________________________________ 41 more employees, or individuals performing services under any contract of ________________________________________________________________________ 42 hire or service, expressed or implied, oral or written. _______________________________________________________ 43 (b) "Employee" means any person, paid or unpaid, in the service of an ______________________________________________________________________ 44 employer. _________ 45 (c) "Prospective employer" means any "employer", as defined in para- ______________________________________________________________________ 46 graph (a) of this subdivision, to which a prospective employee has made ________________________________________________________________________ 47 application, either oral or written, or forwarded a resume or other ________________________________________________________________________ 48 correspondence expressing an interest in employment. ____________________________________________________ 49 (d) "Prospective employee" means any person who has made an applica- ______________________________________________________________________ 50 tion, either oral or written, or has sent a resume or other correspond- ________________________________________________________________________ 51 ence indicating an interest in employment. __________________________________________ 52 (e) "Job performance" includes, but is not limited to, attendance, ______________________________________________________________________ 53 attitude, awards, demotions, duties, effort, evaluations, knowledge, ________________________________________________________________________ 54 skills, promotions, and disciplinary actions. _____________________________________________ 55  17. Section 720-a of the not-for-profit corporation law, as added by 56 chapter 220 of the laws of 1986, is amended to read as follows: S. 6661 13 1  720-a. Liability of [directors, officers and trustees] volunteers. __________ 2 (a) Definitions. For purposes of this section the terms: (1) "volunteer" ________________________________________________________________________ 3 means an individual performing services for a not-for-profit corporation ________________________________________________________________________ 4 or a governmental entity who does not receive compensation, or any other ________________________________________________________________________ 5 thing of value in lieu of compensation, for such services (other than ________________________________________________________________________ 6 reimbursement for expenses actually incurred or honoraria not to exceed ________________________________________________________________________ 7 three hundred dollars per year for government service), and such term ________________________________________________________________________ 8 includes a volunteer serving as a director, officer, trustee or direct ________________________________________________________________________ 9 service volunteer; __________________ 10 (2) "not-for-profit corporation" means any organization exempt from ______________________________________________________________________ 11 taxation under section 501(c) of the Internal Revenue Code; and _______________________________________________________________ 12 (3) "damage or injury" includes physical, nonphysical, economic and ______________________________________________________________________ 13 noneconomic damage. ___________________ 14 (b) Immunity from liability. Except as provided in sections seven _______________________________ 15 hundred nineteen and seven hundred twenty of this chapter, and except 16 any action or proceeding brought by the attorney general or, in the case 17 of a charitable trust, an action or proceeding against a trustee brought 18 by a beneficiary of such trust, no [person] volunteer serving [without _________ 19 compensation as a director, officer or trustee of] a not-for-profit ______________ 20 corporation[, association, organization or trust described in section 21 501 (c) (3) of the United States internal revenue code] shall be liable 22 to any person other than such corporation, association, organization or 23 trust based solely on his or her conduct in the execution of such office 24 unless the conduct of such [director, officer or trustee] volunteer with _________ 25 respect to the person asserting liability constituted gross negligence 26 or was intended to cause the resulting harm to the person asserting such 27 liability. [For purposes of this section, such a director, officer or 28 trustee shall not be considered compensated solely by reason of payment 29 of his or her actual expenses incurred in attending meetings or other- 30 wise in the execution of such office.] 31 (c) Exceptions. Nothing in this section shall be deemed to grant immu- ______________________________________________________________________ 32 nity to any person causing damage by his willful, wanton or grossly ________________________________________________________________________ 33 negligent act of commission or omission; or as the result of his negli- ________________________________________________________________________ 34 gent operation of a motor vehicle; or for liability which would other- ________________________________________________________________________ 35 wise arise under section 11-101 of the general obligations law. _______________________________________________________________ 36  18. Subdivision 3 of section 388 of the vehicle and traffic law, as 37 amended by chapter 552 of the laws of 1962, is amended to read as 38 follows: 39 3. As used in this section, "owner" shall be as defined in section 40 one hundred twenty-eight of this chapter [and their] except in the case ___________________ 41 of a leased vehicle as defined below, in which case "owner" shall be as ________________________________________________________________________ 42 defined below. Owner's liability under this section shall be joint and ______________________ 43 several. If a vehicle be sold under a contract of sale which reserves a 44 security interest in the vehicle in favor of the vendor, such vendor or 45 his assignee shall not, after delivery of such vehicle, be deemed an 46 owner within the provisions of this section, but the vendee, or his 47 assignee, receiving possession thereof, shall be deemed such owner 48 notwithstanding the terms of such contract, until the vendor or his 49 assignee shall retake possession of such vehicle. A secured party in 50 whose favor there is a security interest in any vehicle out of his 51 possession, shall not be deemed an owner within the provisions of this 52 section. If the vehicle is a leased vehicle, the term "owner" shall ______________________________________________________________ 53 mean the person to whom the vehicle has been leased, not the person to ________________________________________________________________________ 54 whom the certificate of title for the vehicle has been issued or ________________________________________________________________________ 55 assigned or to whom the manufacturer's or importer's certificate of ________________________________________________________________________ 56 origin for the vehicle has been delivered or assigned. For purposes of ________________________________________________________________________ S. 6661 14 1 this section, "leased" means the transfer of the possession or the right ________________________________________________________________________ 2 to possession of a vehicle to a lessee for a valuable consideration for ________________________________________________________________________ 3 a continuous period of twelve months or more, pursuant to one or more ________________________________________________________________________ 4 written agreements. ___________________ 5  19. Legislative findings. The legislature hereby finds and declares 6 that allowing convicted felons or persons acting under the influence of 7 alcohol or illegal drugs, in certain cases, to recover civil damages for 8 injuries suffered during the commission of their crimes is an outrage to 9 the people of the state of New York. It is in the public policy to bar 10 convicted felons from recovering for damages against private citizens 11 and against the government when they, by their criminal behavior, have 12 set in motion a chain of circumstances resulting in their own injury. 13 Accordingly, a felony conviction or proof of certain intoxication shall 14 hereafter bar persons from recovery for injuries suffered during the 15 commission of a crime or while under the influence of alcohol or illegal 16 drugs. 17  20. The civil practice law and rules is amended by adding a new 18 section 1411-a to read as follows: 19  1411-a. Damages recoverable; criminal conduct or intoxication with ______________________________________________________________________ 20 alcohol or illegal drugs as a bar to recovery in certain cases. (a) ________________________________________________________________________ 21 Notwithstanding any other provision of law, rule or regulation, in any ________________________________________________________________________ 22 action to recover damages for personal injury, injury to property, or ________________________________________________________________________ 23 wrongful death, culpable criminal conduct or intoxication with alcohol ________________________________________________________________________ 24 or illegal drugs on the part of a claimant, as provided in subdivision ________________________________________________________________________ 25 (b) of this section, shall absolutely bar recovery. ___________________________________________________ 26 (b) In any action to recover damages as itemized in subdivision (a) of ______________________________________________________________________ 27 this section, the showing by a preponderance of the evidence that intox- ________________________________________________________________________ 28 ication with alcohol or illegal drugs on the part of the claimant was a ________________________________________________________________________ 29 proximate cause for the specific damages sustained, or culpable criminal ________________________________________________________________________ 30 conduct attributable to the claimant or to the decedent, arising from ________________________________________________________________________ 31 the same transaction for which damages are sought and so established by ________________________________________________________________________ 32 a criminal conviction, shall constitute an absolute bar to recovery. ____________________________________________________________________ 33  21. The civil practice law and rules is amended by adding a new 34 article 14-B to read as follows: 35 ARTICLE 14-B ____________ 36 PRODUCT LIABILITY ACTIONS; __________________________ 37 SPECIFIC DEFENSES _________________ 38 1420. Postmanufacture changes. ______________________________ 39 1421. Sealed containers. ________________________ 40 1422. State of the art design. ______________________________ 41  1420. Postmanufacture changes. In a product liability action, ______________________________________________________________________ 42 evidence of measures taken by the manufacturer or seller after an event, ________________________________________________________________________ 43 which if taken previously would have made the event less likely to ________________________________________________________________________ 44 occur, is not admissible to prove negligence or culpable conduct or to ________________________________________________________________________ 45 prove a defect in the product. Evidence of subsequent measures may, ________________________________________________________________________ 46 however, be admissible when offered to impeach or as proof of ownership, ________________________________________________________________________ 47 control, or feasibility of precautionary measures, if such issues are ________________________________________________________________________ 48 controverted. _____________ 49  1421. Sealed containers. In any product liability action a party may ______________________________________________________________________ 50 assert as a defense in such action that he is not the manufacturer of ________________________________________________________________________ 51 the product in question and that such product was acquired and sold by ________________________________________________________________________ 52 him in a sealed container or that the product was acquired and sold by ________________________________________________________________________ 53 him under circumstances in which he was afforded no reasonable opportu- ________________________________________________________________________ 54 nity to inspect the product in such a manner which would have or should ________________________________________________________________________ 55 have, in the exercise of reasonable care, revealed the existence of the ________________________________________________________________________ 56 defective condition; provided, however, that the defense set forth here- ________________________________________________________________________ S. 6661 15 1 in will not be available if (a) the manufacturer is not subject to ________________________________________________________________________ 2 service of process under the laws of the state in which the plaintiff ________________________________________________________________________ 3 brings the action, or (b) the manufacturer has been judicially declared ________________________________________________________________________ 4 insolvent and is unable to pay its debts as they become due in the ordi- ________________________________________________________________________ 5 nary course of business, or (c) the court determines that the plaintiff ________________________________________________________________________ 6 would be unable to enforce a judgment against the manufacturer. The ________________________________________________________________________ 7 provisions of this section shall not apply to actions based upon breach ________________________________________________________________________ 8 of express warranty, negligence or fraudulent misrepresentation of the ________________________________________________________________________ 9 seller. _______ 10  1422. State of the art design. (a) In any product liability action ______________________________________________________________________ 11 based upon defective design, a party shall not be liable unless the ________________________________________________________________________ 12 plaintiff proves by a preponderance of the evidence that, at the time ________________________________________________________________________ 13 the product left the control of the party, there existed a feasible ________________________________________________________________________ 14 alternative design that would have prevented the harm without substan- ________________________________________________________________________ 15 tially impairing the usefulness or desirability of the product to users. ________________________________________________________________________ 16 (b) In any product liability action based upon defective design, a ______________________________________________________________________ 17 party shall not be liable unless the plaintiff proves by a preponderance ________________________________________________________________________ 18 of the evidence that the product design was the immediate, physical and ________________________________________________________________________ 19 producing cause of the injury or damage of which the plaintiff ________________________________________________________________________ 20 complains, and that, if a feasible alternative design as provided in ________________________________________________________________________ 21 subdivision (a) of this section was marketed by the defendant, the user ________________________________________________________________________ 22 of the product would have responded by altering his conduct and thereby ________________________________________________________________________ 23 would have avoided or reduced the injury or damage of which the plain- ________________________________________________________________________ 24 tiff complains. _______________ 25 (c) In any product liability action based upon defective design, a ______________________________________________________________________ 26 party shall not be liable unless the plaintiff proves by a preponderance ________________________________________________________________________ 27 of the evidence that, at the time the product left the control of the ________________________________________________________________________ 28 party, such party knew or, in light of then existing scientific and ________________________________________________________________________ 29 technological knowledge, reasonably should have known of the danger that ________________________________________________________________________ 30 caused the plaintiff's harm. ____________________________ 31 (d) In any product liability action based on defective design, a prod- ______________________________________________________________________ 32 uct shall not be found to contain a defect or be unreasonably dangerous ________________________________________________________________________ 33 for its intended use if the personal injury, property damage, or death ________________________________________________________________________ 34 for which recovery of damages is sought was caused by an inherent aspect ________________________________________________________________________ 35 of the product about which adequate specifications, instructions, or ________________________________________________________________________ 36 warnings are provided or which would be recognized as capable of causing ________________________________________________________________________ 37 harm by the ordinary person who uses or consumes the product with the ________________________________________________________________________ 38 ordinary knowledge common to the class of persons for whom the product ________________________________________________________________________ 39 is intended. ____________ 40 (e) In any product liability action based on defective design, a prod- ______________________________________________________________________ 41 uct shall not be found to contain a defect or be unreasonably dangerous ________________________________________________________________________ 42 for its intended use if the personal injury, property damage, or death ________________________________________________________________________ 43 for which recovery of damages is sought was caused by an unavoidably ________________________________________________________________________ 44 unsafe product, as defined in comment K to Section 402A of the Restate- ________________________________________________________________________ 45 ment (2d) of Torts, and specifications, warnings or instructions are ________________________________________________________________________ 46 provided to the extent required by this article. ________________________________________________ 47  22. Subdivisions 2, 3 and 4 of section 9 of the court of claims act, 48 subdivision 2 as amended by chapter 40 of the laws of 1977, are amended 49 to read as follows: 50 2. To hear and determine a claim of any person, corporation or munici- 51 pality against the state, a county, city, town, village, school _____________________________________________ 52 district, or a special district as such term is defined in section one ________________________________________________________________________ 53 hundred two of the real property tax law for the appropriation of any ___________________________________________ 54 real or personal property or any interest therein, for the breach of 55 contract, express or implied, or for the torts of its officers or 56 employees while acting as such officers or employees, providing the S. 6661 16 1 claimant complies with the limitations of this article. For the purposes 2 of this act only, a real property tax lien shall be deemed to be an 3 interest in real property. 4 3. To hear and determine any claim in favor of the state, a county, ___________ 5 city, town, village, school district, or a special district as such term ________________________________________________________________________ 6 is defined in section one hundred two of the real property tax law ________________________________________________________________________ 7 against the claimant, or against his assignor at the time of the assign- 8 ment. 9 4. To render judgment in favor of the claimant or the state, a county, ___________ 10 city, town, village, school district, or a special district as such term ________________________________________________________________________ 11 is defined in section one hundred two of the real property tax law for ___________________________________________________________________ 12 such sum as should be paid by or to the state, a county, city, town, _______________________ 13 village, school district, or a special district as such term is defined ________________________________________________________________________ 14 in section one hundred two of the real property tax law. _______________________________________________________ 15  23. The court of claims act is amended by adding a new section 9-a 16 to read as follows: 17  9-a. Construction of "state". For purposes of this act, the term ______________________________________________________________________ 18 "state" shall be deemed to include the state, a county, city, town, ________________________________________________________________________ 19 village, school district, or a special district as such term is defined ________________________________________________________________________ 20 in section one hundred two of the real property tax law whenever such a ________________________________________________________________________ 21 construction is necessary to effectuate the provisions of this act with ________________________________________________________________________ 22 respect to the jurisdiction conferred by section nine of this article ________________________________________________________________________ 23 pertaining to such entities; provided, however, that such construction ________________________________________________________________________ 24 shall not be given when it would conflict with the provisions of the ________________________________________________________________________ 25 general municipal law. ______________________ 26  24. Subdivision 4 of section 50-e of the general municipal law, as 27 amended by chapter 745 of the laws of 1976, is amended to read as 28 follows: 29 4. Requirements of section exclusive except as to conditions precedent 30 to liability for certain defects or snow or ice. No other or further 31 notice, no other or further service, filing or delivery of the notice of 32 claim, and no notice of intention to commence an action or special 33 proceeding, shall be required as a condition to the commencement of an 34 action or special proceeding for the enforcement of the claim; provided, 35 however, that nothing herein contained shall be deemed to dispense with 36 the requirement of notice of the defective, unsafe, dangerous or 37 obstructed condition of any street, highway, bridge, culvert, sidewalk 38 or crosswalk, public place, land or building, grading, opening, drain, __________________________________________________________ 39 sewer, park or playground or equipment located therein or any parking ________________________________________________________________________ 40 field, skating rink or park property, or of the existence of snow or ice _____________________________________ 41 thereon, where such notice now is, or hereafter may be, required by law, 42 as a condition precedent to liability for damages or injuries to person 43 or property alleged to have been caused by such condition, and the fail- 44 ure or negligence to repair or remove the same after the receipt of such 45 notice. 46  25. Subdivision 1 of section 65-a of the town law, as amended by 47 chapter 771 of the laws of 1963, is amended to read as follows: 48 1. No civil action shall be maintained against any town or town super- 49 intendent of highways for damages or injuries to person or property 50 sustained by reason of any highway, bridge [or], culvert, public place, _ _______________ 51 land or building, grading, opening, drain, sewer, park or playground or ________________________________________________________________________ 52 equipment located therein or any parking field, skating rink or park ________________________________________________________________________ 53 property, being defective, out of repair, unsafe, dangerous or _________ 54 obstructed unless written notice of such defective, unsafe, dangerous or 55 obstructed condition of such highway, bridge [or], culvert, public _ ________ 56 place, land or building, grading, opening, drain, sewer, park or play- ________________________________________________________________________ S. 6661 17 1 ground or equipment located therein or any parking field, skating rink ________________________________________________________________________ 2 or park property, was actually given to the town clerk or town super- _________________ 3 intendent of highways, and that there was a failure or neglect within a 4 reasonable time after the giving of such notice to repair or remove the 5 defect, danger or obstruction complained of, or, in the absence of such 6 notice, unless such defective, unsafe, dangerous or obstructed condition 7 existed for so long a period that the same should have been discovered 8 and remedied in the exercise of reasonable care and diligence; but no 9 such action shall be maintained for damages or injuries to person or 10 property sustained solely in consequence of the existence of snow or ice 11 upon any highway, bridge [or], culvert, public place, land or building, _ ________________________________ 12 grading, opening, drain, sewer, park or playground or equipment located ________________________________________________________________________ 13 therein or any parking field, skating rink or park property unless writ- ___________________________________________________________ 14 ten notice thereof, specifying the particular place, was actually given 15 to the town clerk or town superintendent of highways and there was a 16 failure or neglect to cause such snow or ice to be removed, or to make 17 the place otherwise reasonably safe within a reasonable time after the 18 receipt of such notice. 19  26. Section 6-628 of the village law is amended to read as follows: 20  6-628 Liability of village in certain actions. No civil action shall 21 be maintained against the village for damages or injuries to person or 22 property sustained in consequence of any street, highway, bridge, 23 culvert, sidewalk [or], crosswalk, public place, land or building, grad- _ _______________________________________ 24 ing, opening, drain, sewer, park or playground or equipment located ________________________________________________________________________ 25 therein or any parking field, skating rink or park property, being __________________________________________________________________ 26 defective, out of repair, unsafe, dangerous or obstructed or for damages 27 injuries to person or property sustained solely in consequence of the 28 existence of snow or ice upon any sidewalk, crosswalk, street, highway, 29 bridge [or], culvert, public place, land or building, grading, opening, _ ____________________________________________________ 30 drain, sewer, park or playground or equipment located therein or any ________________________________________________________________________ 31 parking field, skating rink or park property unless written notice of ____________________________________________ 32 the defective, unsafe, dangerous or obstructed condition or of the 33 existence of the snow or ice, relating to the particular place, was 34 actually given to the village clerk and there was a failure or neglect 35 within a reasonable time after the receipt of such notice to repair or 36 remove the defect, danger or obstruction complained of, or to cause the 37 snow or ice to be removed, or the place otherwise made reasonably safe. 38  27. Section 474-a of the judiciary law, as amended by chapter 485 of 39 the laws of 1986, is amended to read as follows: 40  474-a. Contingent fees for attorneys in claims or actions for 41 medical, dental or podiatric malpractice, or in any claim or action for _______________________________ 42 property damage or personal injury, including death. 1. For the purpose ___________________________________________________ 43 of this section, the term "contingent fee" shall mean any attorney's fee 44 in any claim or action for medical, dental or podiatric malpractice, or __ 45 in any claim or action for property damage or personal injury, including ________________________________________________________________________ 46 death, whether determined by judgment or settlement, which is dependent ______ 47 in whole or in part upon the success of the prosecution by the attorney 48 of such claim or action, or which is to consist of a percentage of any 49 recovery, or a sum equal to a percentage of any recovery, in such claim 50 or action. 51 2. Notwithstanding any inconsistent judicial rule, a contingent fee in 52 a medical, dental or podiatric malpractice action, or in any claim or ____________________ 53 action for property damage or personal injury, including death, shall _________________________________________________________________ 54 not exceed the amount of compensation provided for in the following 55 schedule: 56 [30] 25 percent of the first $250,000 of the sum recovered; __ S. 6661 18 1 [25] 20 percent of the next $250,000 of the sum recovered; __ 2 [20] 15 percent of the next $500,000 of the sum recovered; __ 3 [15] 10 percent of the next $250,000 of the sum recovered; __ 4 [10] 5 percent of any amount over $1,250,000 of the sum recovered. _ 5 3. Such percentages shall be computed on the net sum recovered after 6 deducting from the amount recovered expenses and disbursements for 7 expert testimony and investigative or other services properly chargeable 8 to the enforcement of the claim or prosecution of the action. In comput- 9 ing the fee, the costs as taxed, including interest upon a judgment, 10 shall be deemed part of the amount recovered. For the following or simi- 11 lar items there shall be no deduction in computing such percentages: 12 liens, assignments or claims in favor of hospitals, for medical care, 13 dental care, podiatric care and treatment by doctors and nurses, or of 14 self-insurers or insurance carriers. 15 4. In the event that claimant's or plaintiff's attorney believes in 16 good faith that the fee schedule set forth in subdivision two of this 17 section, because of extraordinary circumstances, will not give him 18 adequate compensation, application for greater compensation may be made 19 upon affidavit with written notice and an opportunity to be heard to the 20 claimant or plaintiff and other persons holding liens or assignments on 21 the recovery. Such application shall be made to the justice of the trial 22 part to which the action had been sent for trial; or, if it had not been 23 sent to a part for trial, then to the justice presiding at the trial 24 term calendar part of the court in which the action had been instituted; 25 or, if no action had been instituted, then to the justice presiding at 26 the trial term calendar part of the Supreme Court for the county in the 27 judicial department in which the attorney has an office. Upon such 28 application, the justice, in his discretion, if extraordinary circum- 29 stances are found to be present, and without regard to the claimant's or 30 plaintiff's consent, may fix as reasonable compensation for legal 31 services rendered an amount greater than that specified in the schedule 32 set forth in subdivision two of this section, provided, however, that 33 such greater amount shall not exceed the fee fixed pursuant to the 34 contractual arrangement, if any, between the claimant or plaintiff and 35 the attorney. If the application is granted, the justice shall make a 36 written order accordingly, briefly stating the reasons for granting the 37 greater compensation; and a copy of such order shall be served on all 38 persons entitled to receive notice of the application. 39 5. Any contingent fee in a claim or action for medical, dental or 40 podiatric malpractice, or in any claim or action for property damage or ___________________________________________________ 41 personal injury, including death, brought on behalf of an infant shall ___________________________________ 42 continue to be subject to the provisions of section four hundred seven- 43 ty-four of this [chapter] article. _______ 44  28. Section 9-103 of the general obligations law is amended by 45 adding a new subdivision 1-a to read as follows: 46 1-a. No cause of action shall arise against the owner, tenant or ______________________________________________________________________ 47 lessee of land or premises for injuries to any person, other than an ________________________________________________________________________ 48 employee or contractor of the owner, tenant or lessee, who is on the ________________________________________________________________________ 49 land or premises for the purpose of picking and purchasing agricultural ________________________________________________________________________ 50 or farm products at a farm or "u-pick" operation, unless the person's ________________________________________________________________________ 51 injuries were caused by a condition which involved an unreasonable risk ________________________________________________________________________ 52 of harm and all of the following apply: _______________________________________ 53 a. The owner, tenant or lessee knew, had reason to know of, or reason- ______________________________________________________________________ 54 ably should have known of the condition or risk. ________________________________________________ 55 b. The owner, tenant or lessee failed to exercise reasonable care to ______________________________________________________________________ 56 make the condition safe, or to warn the person of the condition or risk. ________________________________________________________________________ S. 6661 19 1  29. Legislative intent. The legislature hereby finds that horse- 2 back riding is both a major recreational sport and a major industry 3 within the state of New York. The legislature further finds: (1) that 4 horseback riding, like many other sports, contains inherent risks 5 including, but not limited to, the risks of personal injury or death or 6 property damage, which may be caused by the propensity of equines to 7 behave in ways not always controllable by the participant; the unpre- 8 dictability of an equine's reaction to such things as sounds, sudden 9 movements, and unfamiliar objects, persons, or other animals; surface or 10 subsurface conditions; collisions with other equines or objects; and the 11 potential of a participant to act in a negligent manner; (2) that it is 12 appropriate, as well as in the public interest, to establish certain 13 duties and obligations of equine sponsors and equine professionals rela- 14 tive to the safety of the horseback riding public; and (3) that it is 15 also necessary and appropriate that the public become apprised of, and 16 understand, the risks inherent in the sport of horseback riding so that 17 they may make an informed decision of whether or not to participate in 18 horseback riding notwithstanding the risks. Therefore, the purpose and 19 intent of this article is to establish guidelines for the conduct of the 20 participants, sponsors and professionals involved in the sport of horse- 21 back riding; to educate the public as to the inherent risks in the sport 22 of horseback riding so as to minimize the risk of injury to persons 23 engaged in the sport of horseback riding; to promote safety in the 24 horseback riding industry, and to preserve the financial sustainability 25 of the equine sponsors and equine professionals engaged in the horseback 26 riding industry. 27  30. The general obligations law is amended by adding a new article 28 18-B to read as follows: 29 ARTICLE 18-B ____________ 30 EQUINE ACTIVITY SAFETY CODE ___________________________ 31 Section 18-301. Short title. ____________________________ 32 18-302. Definitions. ____________________ 33 18-303. Liability of persons involved in equine activities. ___________________________________________________________ 34 18-304. Limitation of liability. ________________________________ 35 18-305. Posting and notification. _________________________________ 36  18-301. Short title. This article may be cited and shall be known ______________________________________________________________________ 37 as the "equine activity safety code act". _________________________________________ 38  18-302. Definitions. For the purposes of this article, the ______________________________________________________________________ 39 following words or phrases shall be defined as follows: _______________________________________________________ 40 1. "Engages in an equine activity" means riding, training, assisting ______________________________________________________________________ 41 in veterinary treatment of, driving, or being a passenger upon an ________________________________________________________________________ 42 equine, whether mounted or unmounted, visiting or touring or utilizing ________________________________________________________________________ 43 an equine facility as part of an organized event or activity, or any ________________________________________________________________________ 44 person assisting a participant or show management. The term "engages in ________________________________________________________________________ 45 an equine activity" does not include being a spectator at an equine ________________________________________________________________________ 46 activity, except in cases where the spectator places himself in an unau- ________________________________________________________________________ 47 thorized area or in immediate proximity to the equine activity. _______________________________________________________________ 48 2. "Equine" means a horse, pony, mule or donkey. ________________________________________________ 49 3. "Equine activity" means: ___________________________ 50 (a) Equine shows, fairs, competitions, performances, or parades that ______________________________________________________________________ 51 involve any or all breeds of equines and any of the equine disciplines, ________________________________________________________________________ 52 including, but not limited to dressage, hunter and jumper horse shows, ________________________________________________________________________ 53 grand prix jumping, three-day events, combined training, rodeos, riding, ________________________________________________________________________ 54 driving, pulling, cutting, polo, steeplechasing, English and western ________________________________________________________________________ 55 performance riding, endurance trail riding, gymkhana games, and hunting. ________________________________________________________________________ 56 (b) Equine training or teaching activities or both. ___________________________________________________ S. 6661 20 1 (c) The boarding of equines; including normal daily care thereof. _________________________________________________________________ 2 (d) Riding, inspecting, or evaluating by a purchaser or an agent an ______________________________________________________________________ 3 equine belonging to another, whether or not the owner has received some ________________________________________________________________________ 4 monetary consideration or other thing of value for the use of the equine ________________________________________________________________________ 5 or is permitting a prospective purchaser of the equine to ride, inspect, ________________________________________________________________________ 6 or evaluate the equine. _______________________ 7 (e) Rides, trips, hunts or other equine activities of any type however ______________________________________________________________________ 8 informal or impromptu that are sponsored by an equine activity sponsor. _______________________________________________________________________ 9 (f) Placing or replacing horseshoes or hoof trimming on an equine. __________________________________________________________________ 10 (g) Providing or assisting in veterinary treatment of an equine. ________________________________________________________________ 11 4. "Equine activity sponsor" means an individual, group, club, part- ______________________________________________________________________ 12 nership, or corporation, whether or not the sponsor is operating for ________________________________________________________________________ 13 profit or nonprofit, which sponsors, organizes, or provides the facili- ________________________________________________________________________ 14 ties for, an equine activity, including but not limited to: pony clubs, ________________________________________________________________________ 15 4-H clubs, hunt clubs, riding clubs, school and college-sponsored class- ________________________________________________________________________ 16 es, programs and activities, therapeutic riding programs, stable and ________________________________________________________________________ 17 farm owners and operators, instructors, and promoters of equine facili- ________________________________________________________________________ 18 ties, including but not limited to farms, stables, clubhouses, pony ride ________________________________________________________________________ 19 strings, fairs, and arenas at which the activity is held. _________________________________________________________ 20 5. "Equine professional" means a person engaged for compensation: _________________________________________________________________ 21 (a) In instructing a participant or renting to a participant an equine ______________________________________________________________________ 22 for the purpose of riding, driving or being a passenger upon the equine; ________________________________________________________________________ 23 (b) In renting equipment or tack to a participant; __________________________________________________ 24 (c) To provide daily care of horses boarded at an equine facility; or _____________________________________________________________________ 25 (d) To train an equine. _______________________ 26 6. "Inherent risks of equine activities" means those dangers or condi- ______________________________________________________________________ 27 tions which are an integral part of equine activities, including but not ________________________________________________________________________ 28 limited to: ___________ 29 (a) The propensity of equines to behave in ways that may result in ______________________________________________________________________ 30 injury, harm, or death to persons on or around them; ____________________________________________________ 31 (b) The unpredictability of an equine's reaction to such things as ______________________________________________________________________ 32 sounds, sudden movement, and unfamiliar objects, persons, or other ________________________________________________________________________ 33 animals; ________ 34 (c) Certain hazards such as surface and subsurface conditions includ- ______________________________________________________________________ 35 ing, but not limited to, rocks, forest growth, debris, branches, trees, ________________________________________________________________________ 36 roots, stumps, or other natural objects; ________________________________________ 37 (d) Collisions with other equines or objects; and _________________________________________________ 38 (e) The potential of a participant to act in a negligent manner that ______________________________________________________________________ 39 may contribute to injury to the participant or others, such as failing ________________________________________________________________________ 40 to maintain control over the animal or not acting within his or her ________________________________________________________________________ 41 ability. ________ 42 7. "Participant" means any person, whether amateur or professional, ______________________________________________________________________ 43 who engages in an equine activity, whether or not a fee is paid to ________________________________________________________________________ 44 participate in the equine activity. ___________________________________ 45  18-303. Liability of persons involved in equine activities. 1. ______________________________________________________________________ 46 Nothing in section 18-304 of this article shall prevent or limit the ________________________________________________________________________ 47 liability of an equine activity sponsor or an equine professional, if ________________________________________________________________________ 48 the equine activity sponsor or equine professional: ___________________________________________________ 49 (a) (1) Provided the equipment or tack, and knew or should have known ______________________________________________________________________ 50 that the equipment or tack was faulty, and such equipment or tack was ________________________________________________________________________ 51 faulty to the extent that it did cause the injury; or _____________________________________________________ 52 (2) Provided the equine and failed to make reasonable and prudent ______________________________________________________________________ 53 efforts to determine the ability of the participant to engage safely in ________________________________________________________________________ 54 the equine activity, and determine the ability of the participant to ________________________________________________________________________ 55 safely manage the particular equine based on the participant's represen- ________________________________________________________________________ 56 tations of his ability; _______________________ S. 6661 21 1 (b) Owns, leases, rents, has authorized use of, or is otherwise in ______________________________________________________________________ 2 lawful possession and control of the land, or facilities upon which the ________________________________________________________________________ 3 participant sustained injuries because of a dangerous latent condition ________________________________________________________________________ 4 which was known or should have been known to the equine activity sponsor ________________________________________________________________________ 5 or equine professional and for which warning signs, pursuant to subdivi- ________________________________________________________________________ 6 sion four of section 18-302 of this article have not been conspicuously ________________________________________________________________________ 7 posted; _______ 8 (c) Commits an act of omission that constitutes willful or wanton ______________________________________________________________________ 9 disregard for the safety of the participant, and that act of omission ________________________________________________________________________ 10 caused the injury; __________________ 11 (d) Intentionally injures the participant. __________________________________________ 12 2. This section shall not apply to the horse racing activity author- ______________________________________________________________________ 13 ized pursuant to article two, three or four of the racing, pari-mutuel ________________________________________________________________________ 14 wagering and breeding law. __________________________ 15  18-304. Limitation of liability. 1. Except as provided in subdi- ______________________________________________________________________ 16 vision two of section 18-303 of this article, an equine activity spon- ________________________________________________________________________ 17 sor, an equine professional, or any other person, which shall ________________________________________________________________________ 18 include corporation or partnership, shall not be liable for an injury ________________________________________________________________________ 19 to or the death of a participant resulting from the inherent risks ________________________________________________________________________ 20 of equine activities and, except as provided in subdivision two of ________________________________________________________________________ 21 section 18-303 of this article, no participant nor participant's repre- ________________________________________________________________________ 22 sentative shall make any claim against, maintain an action against, or ________________________________________________________________________ 23 recover from an equine activity sponsor, an equine professional, or any ________________________________________________________________________ 24 other person for injury, loss, damage, or death of the participant ________________________________________________________________________ 25 resulting from any of the inherent risks of equine activities. _______________________________________________________________ 26 2. Nothing in this article shall limit the application of the ______________________________________________________________________ 27 provisions of section 9-103 of this chapter. ____________________________________________ 28  18-305. Posting and notification. 1. Every equine professional ______________________________________________________________________ 29 shall post and maintain signs which contain the warning notice specified ________________________________________________________________________ 30 in subdivision two of this section. Such signs shall be placed in a ________________________________________________________________________ 31 clearly visible location in the proximity of the equine activity. The ________________________________________________________________________ 32 warning notice specified in subdivision two of this section shall appear ________________________________________________________________________ 33 on the sign in black letters, with each letter to be a minimum of one ________________________________________________________________________ 34 inch in height. Every written contract entered into by an equine profes- ________________________________________________________________________ 35 sional for the providing of professional services, instruction, or the ________________________________________________________________________ 36 rental of equipment or tack or an equine to a participant, whether or ________________________________________________________________________ 37 not the contract involves equine activities on or off the location or ________________________________________________________________________ 38 site of the equine professional's business, shall contain in clearly ________________________________________________________________________ 39 readable print the warning notice specified in subdivision two of this ________________________________________________________________________ 40 section. ________ 41 2. The signs and contracts described in subdivision one of this ______________________________________________________________________ 42 section shall contain the following warning notice: ___________________________________________________ 43 WARNING _______ 44 Under New York Law, an equine professional or equine activity sponsor ______________________________________________________________________ 45 is not liable for an injury to, or the death of, a participant in equine ________________________________________________________________________ 46 activities resulting from the inherent risks of equine activities, ________________________________________________________________________ 47 pursuant to section 18-304 of the General Obligations Law. __________________________________________________________ 48  31. Severability. If any section, part or provision of this act 49 shall be declared unconstitutional, invalid or ineffective by any court 50 of competent jurisdiction, such declaration shall be limited to the 51 section, part or provision directly involved in any such controversy in 52 which such declaration was made and shall not affect any other section, 53 part or provision thereof. 54  32. This act shall take effect immediately, provided, however, that: 55 (a) The amendments effected by the provisions of sections two, three, 56 eleven, fifteen, sixteen, seventeen, eighteen, nineteen, twenty and S. 6661 22 1 twenty-one of this act shall apply to subject actions commenced on and 2 after such date; 3 (b) The amendments effected by the provisions of sections four, five 4 and six of this act shall take effect on the first day of January next 5 succeeding the date on which it shall have become a law and shall apply 6 to action commencing on and after such date; 7 (c) The amendments effected by the provisions of section twenty-seven 8 of this act shall apply to retainer agreements executed on and after 9 such date; and 10 (d) The amendments effected by the provisions of section thirty of 11 this act shall take effect on the ninetieth day after it shall have 12 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 two 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.