|Legislative Priorities for 2008: A Snapshot of Pending Bills|
Carol J. Patterson, Esq., Partner, Zetlin & De Chiara LLP
Tara B. Mulrooney, Esq., Senior Associate, Zetlin & De Chiara LLP
Eye On Albany
While the press often focuses on gridlock in Albany, engineers should be aware that a number of the bills introduced in the New York State Legislature this year could have a significant impact on the practice of engineering. This article summarizes the most noteworthy.
ENGINEER, ARCHITECT AND LAND SURVEYOR'S GOOD SAMARITAN LAW
A821 (Assembly)/S5557 (Senate)
The purpose of this bill is to provide engineers, architects, landscape architects and land surveyors immunity from liability for providing volunteer services during times of crisis and catastrophe. Under current law, engineers, architects, landscape architects and land surveyors face liability for voluntary assistance rendered during emergencies. This bill proposes a new section 29-f to the Executive Law which provides that engineers, architects, landscape architects and land surveyors who are requested to render services at a scene of a declared emergency are not liable for certain damages that may occur. Such immunity would not be available, however, in cases of wanton, willful or intentional misconduct, or with respect to services provided ninety (90) days or more following an emergency. This bill was proposed in 2006 as Bill A269/S1533.
TEN YEAR STATUTE OF REPOSE FOR NEGLIGENCE ACTIONS AGAINST DESIGN PROFESSIONALS
This bill seeks to amend the Civil Practice Law and Rules to provide a statute of limitations for certain actions against professional engineers, architects, landscape architects and construction contractors. The bill proposes to repeal the current Section 214(d) to the Civil Practice Law and Rules which provides a three (3) year statute of limitations for causes of action grounded in negligence by third-parties against design professionals and contractors. Under the current structure, the statute of limitations does not accrue until the injury occurs, regardless of whether the plaintiff is injured years after work is completed. Therefore, pursuant to the current law, a design professional could face exposure to liability twenty, thirty and even more years after work has been completed on a project. The proposed new 214(d) establishes a ten (10) year statute of repose for personal injury and wrongful death actions against design professionals and contractors. The accrual date for the limitations period is the date of completion of the project. The bill includes a one (1) year extension, or grace period, which provides that if an injury occurs in the tenth year after completion of a project, the plaintiff has an extra year to bring the action. The proposed new section, however, limits the applicability of the ten (10) year statute of limitations to third-party actions, thereby leaving intact the existing three (3) or six (6) year statute of limitations governing actions by an owner or client. This bill was introduced in 2006 as Bill A00269/S51535.
TEN YEAR STATUTE OF REPOSE FOR MALPRACTICE ACTIONS AGAINST DESIGN PROFESSIONALS
This bill also seeks to repeal the current Section 214(d) to the Civil Practice Law and Rules and replace it with a new Rule 214(d). Pursuant to this bill, the amendment would establish a prohibition on lawsuits against architects, engineers or construction professionals brought more than ten years after completion of an allegedly defective structure designed or supervised by that architect, engineer or construction professional. This bill does not preserve the current limitation for actions by an owner or client, so it would extend the applicable statute of limitations for such claims from three (3) years to ten (10) years. Accordingly, this bill is quite problematic for architects and engineers.
DESIGN PROFESSIONAL SERVICE CORPORATIONS
This bill authorizes a new type of professional service corporation to be known as a design professional corporation. Whereas under the current law professional service corporations in New York restrict ownership to design professionals licensed pursuant to the Education Law, the bill would permit design firms the flexibility of offering an ownership interest in the corporation to non-licensees through the new design professional service corporation. Pursuant to the new legislation, non-professionals may own a non-majority, or less than twenty-five percent (25%), of shares, and hold less than twenty-five percent (25%) of director and officer positions in a design professional corporation providing engineering, architecture or land surveying services, or any combination thereof. Further, the bill requires that the largest single shareholder in the corporation and the president, chief executive officer and chairman of the board must all be licensed design professionals. This is consistent with legislation in many other states which allow non-professionals to have a minority ownership in design firms.
EXEMPTION FROM CONTINUING EDUCATION REQUIREMENTS FOR CERTAIN LICENSEES
This bill seeks to amend the Education Law in relation to exempting certain licensed engineers and architects from continuing education requirements. The proposed legislation allows: (1) a sole practitioner, or (2) a licensee who certifies to the department at the time of his/her triennial registration that the continuing education requirement would present an economic hardship, to be exempt from the mandatory continuing education requirement upon the filing of a statement declaring such status. A licensee declaring economic hardship must certify that he/she has kept informed of changes in the law affecting his/her practice.
ARCHITECTS’ AND ENGINEERS’ REVIEW AND APPROVAL OF DELEGATED DESIGN WORK
This bill proposes to amend the Education Law to require working drawings, specifications and shop drawings prepared by a secondary design professional to be reviewed by the primary design professional and to be stamped with the seal of the primary architect, engineer or land surveyor. The justification for this bill is that it would require the primary design professional to assure that each design element is evaluated for its safe incorporation into the overall design. One practical outcome, however, is that this legislation will force primary design professionals to assume liability provided by secondary design professionals. This bill was proposed in 2006 as A7883.
SANCTIONS AGAINST DESIGN PROFESSIONALS WHO SELF-CERTIFY PLANS NOT IN COMPLIANCE WITH ZONING LAWS
This bill would make an engineer’s or architect's misconduct in relation to certifications a basis for license revocation or any other penalty prescribed by the Education Law. The bill seeks to add a new section to the Education Law which makes submitting false, misleading or bad faith certifications that new buildings or alterations meet local zoning or building code requirements an explicit basis for discipline.
ADMINISTRATIVE SANCTIONS IMPOSED ON DESIGN PROFESSIONALS FOR MISCONDUCT WITH RESPECT TO APPLICATIONS
This bill would authorize the commissioner of the New York City Department of Buildings (the "DOB") to impose sanctions upon a registered architect, licensed professional engineer or others found guilty of misconduct with respect to department applications and accompanying documents submitted to the DOB. These sanctions would prohibit such architects and professional engineers from filing any documents with the DOB for a period of two (2) years. These sanctions are in addition to those prescribed by the Education Law.
Eye on City Hall
The following proposed local laws introduced by the New York City Council relate to the practice of engineering:
Introduction of Local Law Amending the Administrative Code of the City of New York to Eliminate Self-Certification of Plans Regarding Demolitions and Certain Alterations.
Introduction No.: 0521-2007
The City Council introduced this local law which seeks to amend the administrative code of the City of New York to eliminate self-certification of plans submitted to the DOB with respect to demolitions and certain alterations.
Introduction of Local Law Amending the Administrative Code of the City of New York to Provide Notice to State Concerning Disciplinary Proceedings Against Design Professionals
Introduction No. 0511-2007
The City Council introduced this local law which seeks to amend the administrative code of the City of New York by requiring written notice to be provided to the Education Department of any professional engineer or registered architect who was the subject of any disciplinary proceeding. Pursuant to this proposed new local law, the notice would be required where there has been an adverse determination or sanction by a department, including any settlement agreement reached, that resulted in a sanction or loss of privileges being imposed by such department. Such notice is required to be sent within ten (10) business days after a determination is made in any such disciplinary proceeding. The proposed local law also requires notice to the Department of Education of any disciplinary proceeding involving a professional engineer or licensed architect where there has been an adverse determination or sanction within the five (5) years immediately preceding the effective date of this law.
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