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.

Click Here to read more.

By:Mark Kriss Esq., Legislative Counsel

The Society’s leadership and I want to again thank all NYSSPE members who have helped advance our legislative and regulatory objectives.   I am pleased to report that the Society was broadly successful in our efforts to defeat legislation adverse to the interest of the profession.  Following are key issues which required an investment of our time and energy.  While passage of NYSSPE’s affirmative legislative agenda, including our effort to secure enactment of a Statute of Repose, remains elusive, some progress as detailed below has been made.  

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. 

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.  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.  Earlier this year Governor Hochul vetoed stand alone legislation to expand damages in wrongful death cases.  (See S6636/A6698 2023 veto memo # 151.)

NYSSPE, along with the business community (as well as the medical community including the association of hospitals), have urged that the 2024 wrongful death bill (A9232B/ S8485B) be vetoed yet again 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 is still projected to be extremely expensive.  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.

Click Here to Read More

Legislation to prohibit sellers and buyers of residential property (excepting auction sales) from requiring a waiver of the opportunity for the buyer to conduct a home inspection has been introduced in the New York State Assembly. The bill upon enactment will provide a buyer the right to secure a home inspection within not less than 10 days from the date of seller’s acceptance of a contract offer.

NYSSPE is supportive of the objectives of this legislation. It is noted that the tight residential housing market has created an environment wherein far too often buyers have been pressured to forgo a home inspection and later faced substantial undisclosed defects which could have been discovered had a proper inspection been undertaken.

While the bill is conceptually sound, the Society will be working with the sponsor to ensure that the legislation properly reflects the scope and nature of services performed by home inspectors, as distinguished from services provided by professional engineers. In short, the Society wants to ensure that the bill is consistent with current state law and regulations which regulate the scope of practice of licensed home inspectors as distinguished from licensed professional engineers.

Additionally, while the bill does contain some penalties for violators, as drafted, NYSSPE is concerned that the penalties may be easily circumvented, and that the evil sought to be addressed may continue unabated. We hope to ensure that all potential loopholes are closed.

View Bill Click Here

By: Mark Kriss Esq., Legislative Counsel

Preliminarily, the Society’s leadership and I want to again thank all NYSSPE members who have helped our efforts to shape public policy in both New York State’s legislative and regulatory arenas.  Following are key issues which we hope to influence in the year ahead.

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.

2. QBS – Support – A8504 -2022 – (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 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.  It is penny wise, pound foolish to employ a low bid methodology in the procurement of design services.

In addition to advocating for adoption of QBS on the state level just last month NYSSPE submitted testimony to the NYS Assembly advocating for expansion of QBS at the local level.  Click Here

3. Statute of Repose – Support – A4549 – (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.  Nevertheless the Plaintiffs’ Trial Bar has frustrated our efforts to pass a true Statue of Repose bill in NY.

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.  Most recently Governor Hochul vetoed stand alone legislation to expand damages in wrongful death cases.  (See S6636/A6698 2023 veto memo # 151.)  NYSSPE, along with the business community, as well as the medical society and association of hospitals, urged that the bill be vetoed due to the impact of the proposal upon the economic well-being of key segments of the State’s economy. This veto has afforded the Society a chance to again urge that the two issues be acted upon concurrently.  While NY 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 preformed as intended.

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. 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 improved 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 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. 

5. The Offering of Geology by Grandfathered Engineering Firms
   S1818-A / A 4870 (Senator Stavisky / Assemblyman McDonald)

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 officer or director is a licensed professional geologist. Currently these firms can provide all professional services within the scope of professional geology, as well as engineering, but are restricted to advertising same as “geological engineering” or similar qualifier and are unable to secure a certificate of authorization to provide professional geological services in New York. 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.

6. Emergency Responder – Support
    S3312 / A 8066 (Senator Skoufis / Assemblywomen Jean-Pierre)     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: 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 including a company routinely advertising its emergency response services.

7. Permits Issuance of Building Permits by Professional Engineers and Registered Architects
   S5614A  / A 4202A (Senator Martinez / Assemblyman Stern)

This legislation would permit building permits to be issued by PEs and RAs without the employment of building code officials. The bill applies to Nassau, Suffolk and Westchester County as well as the City of Yonkers.  NYSSPE has urged that local governments adequately staff building departments with qualified building code officials, or retain properly credentialed professionals as needed, to address undue delays in the permitting process in lieu of the approached reflected in this legislation.  At the same time internal discussions are focused upon allowing permits to be issued in narrow  circumscribed such as permits pertaining to signage.

8. Expanding the Use of Design Build to Westchester County – A7136 (Assemblyman Pretlow)

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. 

9. Fire Suppression System Contractors / Inspectors S3295 / A3389 (Senator Breslin / Assemblymember Fahy)

This legislation provides 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”.

10. Land Surveying – (Modernization – Definition of Practice) – Monitor Pending Introduction
    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.

The legislation listed above includes key bills currently before the legislature or anticipated to be introduced in 2024.  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: [email protected].

Re: A 6698 / S 6636 (M. of A. Weinstein) (Senator Hoylman)

Dear Governor:
The bill referenced above will shortly be before you for executive action.  A substantially similar version of this legislation was vetoed by you last year.  Due to the failure of the legislature to address a litany of concerns raised regarding the earlier iteration of the bill, the New York State Society of Professional Engineers renews its request for disapproval of the legislation.  This submittal is predicated in large measure upon the fact that the Society sees the need to tie the instant legislation to the broader issue of civil justice reform and, most importantly, inclusion of a true statute of repose for design liability claims in New York.   Click Here to read more.

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: [email protected].)

By: Mark Kriss, Esq., Legislative Counsel

Legislation strongly endorsed by the Society has been re-introduced for the 2023 Legislative Session. Key bills include:

Indemnification Reform Senate 6059 (Senator Kennedy)  This legislation will prevent governmental entities (state and local level) from contractually shifting the burden of defense costs and indemnification payments to design consulting firms based solely on contract terms.  As a matter of law contract provisions requiring indemnification in the absence of wrongdoing on the part of the design professional will be unenforceable.

Emergency Responder Senate 3312 (Senator Skoufis) the Emergency Responder Act, combines Good Samaritan protection with a proposal offering liability protection for emergency responders hired in the immediate wake of a natural or man-made disaster. In essence, design professionals are held harmless in the absence of gross negligence or intentional misconduct.

Statute of Repose Assembly Bill 4549 (Assemblyman Pretlow) codifies a 10-year Statute of Repose barring claims arising against a design professional long after a building or other project has been completed and withstood the test of time. The Society is working to tie our bill to a strong push by the plaintiff personal injury trial lawyers for adoption of legislation to broaden recovery in wrongful death cases. We are coordinating our legislative efforts with other organizations representing the design community.

• Note: NYSSPE facilitates posting on this blog, but the views and accounts expressed herein are those of the author(s) and not the views or accounts of NYSSPE, its officers or directors whose views and accounts may or may not be similar or identical. NYSSPE, its officers and directors do not express any opinion regarding any product or service by virtue of reference to such product or service in this blog.

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.

[Read more…]

by Mark Kriss Esq., Legislative Counsel
2022 NYS Legislative Session

The 2022 New York State Legislative Session is moving toward its traditional June recess and legislators are focusing upon the upcoming primary elections to be held on June 28th and August 23rd (Congressional and NYS Senate), as well as the general elections on November 8th. The primary elections for U.S. Congress and NYS Senate were moved to August 23rd due to challenges to the original district maps, drawn by NYS lawmakers, which were held to be invalid by the courts and judicially redrawn to eliminate widespread gerrymandering. Notwithstanding the legislative focus on election year politics, the Society has remained 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. 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.

The Society, together with others in the design community, have been examining the developments in sister states regarding indemnification reform. A number of states have adopted meaningful reforms and our internal discussions with sister design organizations have focused upon these states with the goal of refining a model bill for New York. The process has taken longer than we had hoped, but we are optimistic that model legislation to be put forward later this year will provide the best chance for passage in New York.

2. Design Professional Service Corporations –
ESOP Ownership Liberalization S5261B/A1891-B Senator Kennedy/Assemblyperson Lupardo
Approximately ten years ago NYSSPE was instrumental in securing legislation liberalizing the ownership structure of design firms (Design Professional Service Corporations) in New York State. Prior to the Society’s intervention, with the exception of grandfather corporations, ownership in design firms was completely limited to licensees (professional engineers, architects, land surveyors, etc.). This paradigm created a unequal playing field giving grandfather corporations an enormous advantage in attracting talented employees in fields such as IT and marketing. Legislation has now passed both houses which again addresses Design Professional Service Corporations and will permit all of the shares of a firm to be owned by an ESOP vesting membership interests in bona fide employees of the firm without limitation as to the percentage of stock owned by the ESOP. (Currently the ESOP is limited to a maximum ownership of 24.99 % of the firm.) However, the legislation vest control of the ESOP in a Board of Trustees or a Management Committee with a key provision requiring that 75% of the members of the Board of Trustees or Management Committee be licensees. This new structure will ensure that professionals retain control of the key decision-making respecting professional practice and allow local engineering firms to flourish and not exacerbate the acquisition of local firms by grandfather corporations as has historically taken place.

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. Statute of Repose – Support
A1706/S4127 – Assemblyman Pretlow/Senator Griffo
This legislation creates a 10-year Statute of Repose requiring that actions for personal injury and wrongful death against a design professional and construction contractors be commenced not more than 10 years after a project is completed. The bill continues to face strong opposition from the New York State Trial Lawyers Association. NYSSPE has been assisted in its fight by other organizations including associations representing general contractors and AIA. [Read more…]