By: Mark C. Kriss, Esq., Legislative & Legal Counsel
2025 is the beginning of a new two-year legislative session in Albany and introduction of a broad docket of bills for consideration by the State Legislature is underway. Bills of interest to NYSSPE introduced in 2023–2024, along with all other legislation pending at the end of 2024 session, will be assigned new bill numbers for the current session.
The Society is charged with furthering public health, safety, and welfare by assuring that the critical role played by the licensed professional engineering community is fully recognized by state policymakers. We remain vigilant in advocating for bills advancing the profession, and intervening as necessary to defeat or amend bills adverse to the profession and public health and safety. Below are brief descriptions of bills which we will be focusing upon in 2025.
NOTE: All bills below are identified by 2023-2024 bill numbers since none of the bills of interest have been re-introduced to date.
1. Indemnification – Support
S6059 / A7610 – (Senator Kennedy / Assemblyman Zebrowski)
This legislation, which was previously vetoed by former Governor Andrew Cuomo, addresses the issue of design professional contractual indemnification respecting 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 professional engineers and consulting firms for the cost of future contingent events such as personal injury, property damage 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.
This legislation continues to face opposition from the general contractor community and efforts are underway to address these concerns. NYSSPE has been most vocal in proposing a compromise placing a cap on designer liability based on the proportional share design services represent in relation to a project as a whole. New sponsorship will be needed in both houses of the Legislature due to Senator Kennedy’s departure from Albany and his election to Congress and Assemblyman Zebrowski’s decision not to seek re-election.
2. QBS – Support
S 8122A / A9575A – (Senator Comrie / Assemblymember Hyndman)
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 has 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. The cost for design services is a small fraction of overall project costs. Getting the design right can significantly influence the overall cost of construction as well as ongoing life cycle costs. Simply put it is penny wise and pound foolish to employ a low bid methodology in the procurement of design services.
3. Statute of Repose – Support
S8213/ A4549 – (Senator Cooney / Assemblyman Pretlow)
This legislation creates a 10-year Statute of Repose requiring that actions for personal injury, wrongful death or property damage against a design professional be commenced not more than 10 years after a project is completed. All states in the US have true Statutes of Repose with the exception of NY and VT. I am pleased to report the bill was advanced in the Senate out of the Judiciary Committee to the Senate floor for the first time in 2024. Nevertheless, the Plaintiffs’ trial bar has frustrated our efforts to advance the bill across the finish line.
In order to improve the prospect for passage of this measure the Society has urged that a Statute of Repose provision be incorporated into any bill to expand damages in wrongful death cases. Late in the 2024 session Governor Hochul, for the third time, vetoed stand-alone legislation to expand damages in wrongful death cases. (See (A9232B/ S8485B) In 2025 we will continue to advocate for tying our Statue of Repose proposal to any and all wrongful death legislation.
NYSSPE, along with the business community (as well as the medical community including the association of hospitals), had urged that A9232B/ S8485B be vetoed due to the impact of the proposal upon the economic well-being of key segments of the State’s economy. While the 2024 version of the legislation reduced the scope of the bill to some degree, by limiting recovery to traditional family members and shortening a look-back period, the bill was still projected to be extremely expensive increasing general liability costs in excess of two billion dollars. While New York is admittedly out of step with the balance of the country, insofar as more than 40 states permit family members to recover for emotional losses in wrongful death cases, at the same time 48 states have adopted true Statutes of Repose to protect design professionals from liabilities for claims long after a building, or other improvement, has withstood the test of time having performed as intended. Balance must be a cornerstone for sound civil justice reform to proceed.
4. Bachelor’s Degree in Engineering Technology
S1049 / A5051 (Senator Cooney / Assemblyman Jean-Pierre)
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. (The Society was instrumental in securing passage of Chapter 465.) 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 opposed 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 programs.
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