Mark C. Kriss, Esq. Legislative & Legal Counsel
The NYS legislature has recessed and completed the lion’s share of its calendar for 2023. Fortunately, from the Society’s perspective, with the exception of a bill dramatically broadening damages in wrongful death cases (A6698 / S6636 – 2023), no significant legislation opposed by NYSSPE is poised to reach Governor Hochul’s desk. Additionally, no significant bill opposed by the Society has been enacted to date.
The Society has urged that the wrongful death bill be amended to include a statute of repose barring claims against a design professional, when by virtue of the passage of a significant period of time a project has withstood the test of time. [See A4549 (Assemblyman Pretlow) establishing a ten-year statute of repose for design liability claims.] A prior version of the wrongful death bill reached the Governor’s desk last year and was vetoed due to the substantial cost associated with an expansion of damages in wrongful death cases to include emotional and related damages suffered by loved ones. Under current law pain and suffering experienced by a decedent prior to death is compensable.
The Society again will urge that the bill be vetoed in the absence of an amendment to add a statute of repose similar to the law in 48 states wherein design professionals are protected against claims alleged to arise from latent design defects long after a building or other improvement has been completed. The amendment adding a statute of repose would apply to all claims for personal injury and property damage, not just wrongful death claims. New York laws pertaining to the design professions should be consistent with the laws in nearly every other state in the nation.
S5664 / A4720 ( Senator Kennedy / Assemblyman McDonald)
Governmental Oversight Design Build Contracts
This bill, which has passed both houses, requires that public employees be on site for the duration of design build contracts, and that such employees review the contractor’s work to ensure it is performed in a manner consistent with the requirements set forth in the design build contract. Critics of the bill argue that employment of additional personnel is unnecessary in light of the professional oversight responsibilities falling to the design professionals retained as members of the design build team and the employment of inspection protocols.
S1049 / A5051 (Senator Cooney / Assemblyman Jean-Pierre)
Bachelor’s Degree in Engineering Technology
Pursuant to Chapter 465 of the Laws of 2021 licensure as a professional engineer in NYS requires a bachelor’s degree in engineering as a prerequisite. However, the Commissioner of Education has authority to permit candidates with alternative educational backgrounds to qualify for licensure. Moreover, it has long been the policy of the State Education Department to recognize the importance of providing a licensure pathway to parties holding a bachelor’s degree in engineering technology. A party holding a four-year engineering technology degree, from an approved institution, is eligible for licensure upon completion of two additional years of design experience beyond the experience otherwise required for licensure candidates holding a bachelor’s degree in engineering.
NYSSPE successfully opposes this bill, since it would divest the Commissioner of Education of authority to determine whether or not there exists equivalency in the curricula pertaining to engineering and engineering technology baccalaureate program. However, the Society has authorized the appointment of a committee to further examine the issue, and determine whether to support a change in the current disparate treatment of these degrees.
S 6059 / A 7610 (Senator Kennedy / Assemblyman Zebrowski)
Prohibits Inclusion of Overly Broad Indemnification Provisions in State and Municipal Contracts
NYSSPE strongly supports this legislation, which bars the use of overly broad indemnification terms requiring design professional firms to indemnify municipalities and state agencies notwithstanding the absence of fault on the part of the design professional. A number of sister states have enacted legislation to prevent overreaching by state and local governments consisting of the mandatory use of indemnification terms which are fundamentally unfair in so far as they require identification in the absence of fault. A similar bill was passed by both houses, and was vetoed by Governor Andrew Cuomo. The Society continues to work with allied design professional organizations to secure adoption of this legislation. It is our hope that the new administration will be more receptive to the design community’s concerns.
A8504 Comptroller’s Program Bill (2022)
Qualifications Based Selection
This legislation requires the use of Qualifications Based Selection by Public Authorities and Public Benefit Corporations, in addition to state agencies. Expanded utilization of QBS has been a long sought-after goal of NYSSPE. In fact, due in substantial part to the Society’s efforts, similar legislation previously passed the Assembly. QBS assures that price is not the sole criteria in the selection of professional engineering services by affording due consideration to the respective qualifications of consulting firms participating in the procurement process. Adoption of QBS also helps to avoid steering of service contract to politically favored firms. Since former Governor Cuomo opposed expanding QBS, his departure from office has enhanced our assessment of the prospects for this bill. In fact, last year NYS Comptroller Thomas DiNapoli advanced QBS legislation with the goal of to preventing some of the abuses identified under one or more prior administrations. NYSSPE, along with our design professional allies, continues to advocate for adoption of this legislation.
S3312 (Senator Skoufis)
Emergency Responder / Good Samaritan
NYSSPE has joined a broad-based coalition, including other design professional organizations and the construction community, in support of S3312 which combines enhanced Good Samaritan protection with a proposal offering liability protection for emergency responders hired in the wake of a natural or man-made disaster. (The coalition includes the Associated General Contractors of New York, ACEC New York,
AIA-NY and a litany of other organizations representing the construction and design communities.)
In essence, this bill is designed to ensure that the liability for services rendered under emergency conditions (whether voluntary or based on contract) rests with the governmental bodies which are principally charged with restoring normalcy following a disaster. Under the proposal, service providers are held harmless in the absence of gross negligence or intentional wrongdoing for services rendered in the wake of a disaster. The governmental entity securing services will stand in the shoes of the design professional or contractor in instances of ordinary negligence thereby affording the injured party a source of recovery. The measure does not apply to businesses whose primary business is responding to disasters fully cognizant of the risks such as a company routinely advertising its emergency response services.
A4327 (Assemblyman Gunther)
Expands Exemption Requiring Employment of Professional Engineer Pertaining to Municipal Projects
This bill authorizes the practice of professional engineering by persons lacking the rigorous education, examination and experience requirements prescribed by the NYS Education Law. It would substantially increase the size of projects exempt from the PE requirement to $50,000 and is strongly opposed by NYSSPE.
A4549 (Assemblyman Pretlow)
Establishing a 10-year Statute of Repose for Design Liability Claims
As noted above, the Society is advocating for inclusion of this legislation in a bill currently before the Governor broadening damages in wrongful death cases.
S1818-A / A 4870 (Senator Stavisky / Assemblyman McDonald)
The Offering of Geology by Grandfathered Engineering Firms
The profession of geology was first licensed in New York in 2014. Prior to passage of the 2014 statute grandfathered engineering firms were permitted to provide geological services. This bill will enable grandfathered engineering firms to offer professional geology services, per se, provided at least one office or director is a licensed professional geologist. In sum and substance, the bill will treat grandfathered corporations in a manner similar to professional engineering firms operating as professional service corporations, design professional service corporations, professional limited liability companies, and registered limited liability partnerships.
S5614A / A 4202A (Senator Martinez / Assemblyman Stern)
Permits the Issuance of Building Permits by Professional Engineers and Registered Architects
This legislation, opposed by NYSSPE, would permit building permits to be issued without the employment of building code officials. The bill applies to Nassau, Suffolk and Westchester County as well as the city of Yonkers.
A7136 (Assemblyman Pretlow)
Expanding the Use of Design Build to Westchester County
In 2019 the NYS legislature authorized specific NYC agencies to use design build. The implementing legislation did not include safeguards recommended by NYSSPE, as well as the NYS Board for Engineering and the NYS Board for Architecture. This proposal similarly does not include these recommended safeguards and amendments are needed to prevent the proliferation of design, build projects, lacking, proper oversight.
S3295 / A3389 (Senator Breslin / Assemblymember Fahy); (see also A377 Assemblyman Bronson)
Fire Suppression System Contractors / Inspectors
S3295 / A3389 provide for licensure of fire suppression system contractors and among other provisions permits layouts by licensees “in accordance with the provisions of water-based fire protection design standards and design criteria as provided by the engineer of record”.
The legislation listed above includes key bills currently before the legislature or under consideration by Governor Hockul. The list is not exhaustive. Please let us know if you have any particular concerns regarding any of these proposals or other bills impacting the profession. All comments will be shared with NYSSSPE’s Legislative Committee and given careful consideration. (Address all comments and recommendations to: firstname.lastname@example.org.)