NYSSPE 2023 Legislative Update-January  

by Mark Kriss Esq., Legislative Counsel
PREVIEW – 2023 NYS Legislative Session

The 2023 New York State Legislative Session is just underway with Governor Hochul’s State of the State Address held on January 10^th 2022.  The first-time elected governor detailed an ambitious housing plan and focused on creating economic opportunities and combating crime.

“My goals are straightforward and clear. We will make New York safer. We will make New York more affordable. We will create more jobs and opportunities for the New Yorkers of today and tomorrow,” Hochul said as she addressed a joint session of the state Legislature at the Capitol.  Her vision includes significant focus upon the need for affordable and environmentally friendly housing, as well as the need for an investment in programs aiding those challenged by a range of mental health and addiction issues, including the decades long failure of the state to devote adequate resources for mental health programs from inpatient beds to housing and provider services.

While the Governor’s focus is broad, the Society in contrast remains vigilant in protecting both the professional engineering community and the public by preventing the erosion of professional engineering licensure and advocating for public health safety and welfare as the circumstances require.  Following are key proposals requiring the Society’s attention and intervention.

1. Statute of Repose – Support A1706/S4127 Assemblyman Pretlow/Senator Griffo This legislation creates a 10-year Statute of Repose requiring that lawsuits for personal injury and wrongful death against a design professional be commenced not more than 10 years after a project is completed.  Forty-eight (48) states have Statutes of Repose in place protecting professional engineers and architects after a project has withstood the test of time.  New York and Vermont are the only states which fail to protect design professionals against claims via a true Statute of Repose.

Recently the association of lawyers who represent plaintiffs in personal injury and wrongful death cases, secured passage of legislation in both houses to expand damages available to survivors in cases of wrongful death (see S74A / A6770 – 2022).  The trial lawyer bill would add more than a half a billion dollars to their fees annually if the legislation is signed by Governor Hochul.

Supporters for the bill argue that these types of expanded damages are available in forty-one (41) states and that New York should join the majority of other states in allowing for expanded wrongful death recoveries.  Despite the fact that an argument can be made in favor of a properly circumscribed wrongful death bill, the Society has intervened, calling upon the Governor to veto the wrongful death expansion bill, unless and until the legislature incorporates a Statute of Repose into the legislation and provides a complete defense once a reasonable number of years have passed after a design professional has completed work on a project and the improvement has withstood the test of time.  As of this writing we believe the Governor is likely to veto  this bill.  A veto would substantially aid our long-term efforts to secure passage of a Statute of Repose.  If New York is out of step with its failure to offer a recovery for emotional losses suffered by loved ones, it is profoundly out of step with a failure to afford design professionals the benefit of a Statute of Repose found in every other state, with the sole exception of Vermont.

2. Indemnification Reform –

This legislation, which was previously vetoed by ex-Governor Cuomo, addresses the issue of design professional contractual indemnification on public sector projects (state and local) and is strongly supported by NYSSPE.  The legislation addresses public sector contracts wherein municipalities, state agencies and other governmental entities have inordinate leverage over the terms of indemnification.  Presently, governmental entities can and do unfairly shift the burden to design consulting firms for the cost of future contingent events such as property damage, personal injury and attendant attorneys’ fees.

Broad form defense and indemnification provisions subject design professionals to liability arising out of the circumstances that are well beyond the design professional’s scope of work and for matters over which the design professional has no control.  Design professionals in many instances are unable to secure insurance to cover the scope of claims these provisions can generate.  Many of the most highly qualified engineering firms simply refuse to participate in RFQs when confronted with adhesion contracts of this nature.  As a result, both public owners and taxpayers are deprived of the opportunity to benefit from their participation.

This bill addresses indemnification inequity by voiding contractual provisions requiring defense and indemnification involving a public work to the extent that a design professional is required to defend and indemnify a municipality, state agency, and other governmental entity or other parties for damages that are not the result of the negligence, recklessness, or willful misconduct of the design professional.  Responsibility for losses related to the actions or failures of other parties that are unrelated to the design professional services rightfully rest with the at-fault party or parties.  Design professions simply should not be compelled to provide indemnification for such conduct.

3. QBS – Support A8504 –Comptroller’s Program Bill

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 passed the Assembly in 2010. 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, NYS Comptroller Thomas DiNapoli has advanced the legislation with the goal of to preventing some of the abuses identified under one or more prior administrations. 

4. Gas Transmission Lines (Public Safety Enhancement) – Support
   A1939/S544 – Assemblyman Cusick/Senator Kaminsky
   This bill will require that plans and services relating to gas transmission lines which are determined to pose a material risk to public safety must be provided or overseen by a licensed professional engineer. The New York State Public Service Commission is required by the legislation to promulgate rules and regulations addressing the foregoing requirement.

5. Self-Certification (in jurisdictions outside NYC) A 7947A – Assemblyman Stern                                                                                                                    Authorizes local governments (outside of NYC) to permit self-certification for building permit purposes by Professional Engineers and Registered Architects.  NYC has, for well over a decade, permitted self-certification by design professionals. Candidly, the Society has, in the past,  been hesitant to endorse expansion of self-certification, due to the absence of due process safeguards and peer-review protections in the NYC scheme.  The Society has historically advocated for a single professional misconduct policing mechanism under the aegis of the State Education Department which currently has procedural due process and peer review safeguards.  We have advocated for proper funding for SED aimed at providing the resources needed to timely investigate, prosecute and adjudicate professional misconduct cases and illegal practice, while ensuring fair treatment for licensees.  This bill requires that, in jurisdictions outside of NYC, electing to permit self-certification,  in the event a design professional is believed to have abused self-certification privileges, and thereby committed professional misconduct, the matter will be referred to SED.  This approach is an improvement upon the current procedure used in NYC which lacks due process and peer review safeguards and is an improvement over other legislation seeking to expand the use of self-certification.  At the same time the Society has advocated for the retention of checks and balances in the permitting process, as well as upon completion of a project, and supports robust funding and staffing of code enforcement positions at the municipal level to assure that projects are not subject to undue delay.  Clearly resort to properly  experienced and credentialled professional engineers can also be employed.
   
   6. Emergency Responder – Support S6377/A5769 Senator Savino/Assemblyman Englebright Combines Emergency Responder  / Good Samaritan
   As previously reported NYSSPE has joined a broad-based coalition including other design professional organizations and the construction community, in support of this measure 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 New York Building Congress, Associated General Contractors of New York, ACEC New York, AIA New York and a number 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.

7. Inspection of Fire Suppression Systems – Amendment Requested S6761B/A9064 Senator Savino/Assemblyman Bronson

NYSSPE has flagged this bill which, among other objectives, seeks to license fire suppression system inspectors outside of NYC.  The Society has requested an amendment to exempt professional engineers (and architects) from the specialty licensure requirement.  The amendment parallels similar exemptions (including inspections pertaining to the inspections of elevators) which are predicated upon the definition of practice pertaining to the design professions of professional engineering and architecture and rely upon the professional duty imposed upon licensees to limit their practice to licensees’ areas of expertise. 

8. Land Surveying – (Modernization – Definition of Practice) – Monitor
   The New York State Association of Professional Land Surveyors has for many years advocated for legislation which will modernize the definition of practice for land surveying (including, e.g., express reference to GPS technology and photogrammetry). NYSSPE has no objection to legislation to codify these changes provided that professional engineers continue to be authorized to undertake all aspects of the practice of land surveying with the sole exception being the determination of legal land boundaries.

This list is far from exhaustive and is intended to provide a summary of the NYSSPE’s key legislative objectives.  To find additional information regarding any bill simply Google “NYS Assembly Bill Status” and enter the bill number.  Both Assembly and Senate Bills can be accessed via the Assembly’s website.  All bill numbers above reference legislation introduced in the 2021-2022.  New bill numbers for the current year will be made available upon re-introduction.