Construction Law Blog

Legislative Update for the New York Architect

Each year the New York State Legislature enacts dozens of new statutes, which alter various phases of construction. There are currently numerous bills working their way through the legislature, which will impact construction in New York and the professionals who perform the work. The below is an examination of some of the prominent proposed bills:

1. Bill A2984             “An act to amend the executive law, in relation to wind speed limits for light frame wood construction in the counties of Nassau and Suffolk.”
   The purpose of this bill is to provide a wind speed limit of 109 miles per hour for such structures within Nassau and Suffolk counties to withstand external pressure and wind born debris.
   
   This bill reviews the New York area weather archives, going back to 1903, and finding that the current wind standard of 110 miles per hour, as standard in the International Building Code, is more appropriate for other regions of the US, particularly areas in the south.
   
   By reducing this wind and debris requirement, it is anticipated that the costs incurred for such construction of housing in such coastal areas will be significantly reduced.
   
   
2. Bill S03183           “An act to make Indemnification Agreements relating to construction contracts void as against public policy.” As by their nature Indemnification Agreements seek to have one party agree to be primarily liable for damages, which may be caused by the other, thereby causing one party to be held harmless.  These contract provisions are in conflict with the greater public safety considerations that are advanced when parties are responsible for themselves.
   
   Such examples of liability shifting will be prohibited in agreements “relating to the construction, alteration, repair or maintenance of a building, structure, appurtenances and appliances, including moving and excavating.”
   
   
3.  Bill A08473          “An act prohibiting the retention of any payment due and owing a material supplier for a construction project on public works projects.”  This bill seeks to make several modifications to the state finance and general municipal laws, which would remove from retainage any payments due a supplier for supplies and materials incorporated into the project.
   
   Once the contractor or subcontractor has accepted the materials, the supplier has essentially completed their scope of the work. These proposed modifications seek to clarify that concept as well as remove material men from current retainage laws.
   
   
4.  Bill A07090           “An act establishing a prohibition on lawsuits against architects, engineers or construction professionals brought more than ten years after completion.” This proposed bill seeks to reduce the risk of substantial judgments against professionals many years after project completion, and when the professional may no longer be protected by liability insurance. The bill would establish a ten-year time limit (with some exceptions) that a claimant may bring an action for defective design or construction against the architect.
   
   
5. Bill A07734           “An act to establish licensing consequences for architects or engineers who seriously abuse their self-certification privileges.”  This proposed bill seeks to make amendments to the education laws to provide for license suspension for architects or engineers who seriously abuse their self-certifications. The proposed bill does make a clear distinction between the architects who merely violate the rules, from architects who chronically act outside of their certifications. It merely states:
   
   “The professional license of any architect or engineer found to have seriously abused the professional certification program of the City of New York shall be immediately suspended by The Board of Regents.”
   
   
6. Bill A03884           “The engineers’, architects’, landscape architects’ and land surveyors’ good Samaritan act.” This bill seeks to make various changes to the executive law, which would remove these professionals from any specific liability for services rendered at the scene of a declared emergency. The justification for this is to serve the greater public safety, to allow such professionals to render services during an emergency and allow them to fulfill their professional obligations to serve the greater public health, welfare and safety without concern of substantial liability.
   
   
7. Bill A04078           “An act seeking to establish an engineer’s obligation to timely report discovered structural defects.” This bill seeks to make various alterations to the administrative code of New York City and the education law to require “that any defects which may affect a building’s structural ability will have to be reported to the Department of Buildings within five business days of a person’s knowledge of such defects.”
   
   This bill would also enable the state to suspend the licenses of engineers who fail to timely report such conditions.
   
   
8. Bill A04581           “An act establishing the design professional service corporation” This bill seeks to create a new corporation format, which would allow the formation of a professional corporation with non-professional shareholders. This bill would seek to make several changes to the business corporation law and allow for non-professional shareholders to have a non-majority (less than 25%) ownership interest in the shares of the business.
   
   
9.  Bill A06814           “An act which will require public authorities and public benefit corporations to negotiate with professional firms providing architectural or engineering services in order from the most qualified to the least qualified.” This bill seeks to make various alterations to the Public Authorities Law, allowing these authorities a greater opportunity to negotiate with the most qualified architectural and engineering firms. Such public benefit corporations will be able to receive the services of the most qualified contractor through the establishment of a new mechanism for the procurement of engineering, architectural and surveying services.
   
   Your comments are invited at the field below.
   
   The author, John Caravella Esq., is a construction attorney and formerly practicing project architect at The Law Office of John Caravella, P.C., representing architects, engineers, contractors, subcontractors, and owners in all phases of contract preparation, litigation, and arbitration. He also serves as an arbitrator to the American Arbitration Association Construction Industry Panel. Mr. Caravella can be reached by email: John@LIConstructionLaw.com or (516)462-7051
   
   
   
   
   
   This is a general information article and should not be construed as legal advice or a legal opinion.  Readers are encouraged to seek counsel from a construction lawyer for advice on a particular circumstance.