N.Y. Civil Practice Law & Rules § 214-d: Limitations on certain actions against licensed engineers and architects

§ 214-d. Limitations on certain actions against licensed engineers and

architects. 1. Any person asserting a claim for personal injury,

wrongful death or property damage, or a cross or third-party claim for

contribution or indemnification arising out of an action for personal

injury, wrongful death or property damage, against a licensed architect,

engineer, land surveyor or landscape architect or against a partnership,

professional corporation or limited liability company lawfully

practicing architecture, engineering, land surveying or landscape

architecture which is based upon the professional performance, conduct

or omission by such licensed architect, engineer, land surveyor or

landscape architect or such firm occurring more than ten years prior to

the date of such claim, shall give written notice of such claim to each

such architect, engineer, land surveyor or landscape architect or such

firm at least ninety days before the commencement of any action or

proceeding against such licensed architect, engineer, land surveyor or

landscape architect or such firm including any cross or third-party

action or claim. The notice of claim shall identify the performance,

conduct or omissions complained of, on information and belief, and shall

include a request for general and special damages. Service of such

written notice of claim may be made by any of the methods permitted for

personal service of a summons upon a natural person, partnership or

professional corporation. A notice of claim served in accordance with

this section shall be filed, together with proof of service thereof, in

any court of this state in which an action, proceeding or cross or

third-party claim arising out of such conduct may be commenced or

interposed, within thirty days of the service of the notice of claim.

Upon the filing of any such notice of claim, a county clerk shall

collect an index number fee in accordance with section eight thousand

eighteen of this chapter and an index number shall be assigned.

2. In such pleadings as are subsequently filed in any court, each

party shall represent that it has fully complied with the provisions of

this section.

3. Service of a notice as provided in this section shall toll the

applicable statute of limitations to and including a period of one

hundred twenty days following such service.

4. From and after the date of service of the notice provided for in

subdivision one of this section, the claimant shall have the right to

serve a demand for discovery and production of documents and things for

inspection, testing, copying or photographing in accordance with rule

three thousand one hundred twenty of this chapter. Such demand shall be

governed by the procedures of article thirty-one of this chapter. In

addition, the claimant shall have the right to the examination before

trial of such licensed architect, engineer, land surveyor or landscape

architect or such firm or to serve written interrogatories upon such

licensed architect, engineer, land surveyor or landscape architect or

such firm after service of and compliance with a demand for production

and inspection in accordance with this section. The court may, at any

time at its own initiative or on motion of such licensed architect,

engineer, land surveyor or landscape architect or such firm deny, limit,

condition or restrict such examination before trial or written

interrogatories upon a showing that such claimant has failed to

establish reasonable necessity for the information sought or failed to

establish that the information sought by such examination or

interrogatories cannot reasonably be determined from the documents or

things provided in response to a demand for production and inspection

served in accordance with this section. Such examination before trial or

interrogatories shall otherwise be governed by article thirty-one of

this chapter.

5. After the expiration of ninety days from service of the notice

provided in subdivision one of this section, the claimant may commence

or interpose an action, proceeding or cross or third-party claim against

such licensed architect, engineer, land surveyor or landscape architect

or such firm. The action shall proceed in every respect as if the action

were one brought on account of conduct occurring less than ten years

prior to the claim described in said action, unless the defendant

architect, engineer, land surveyor or landscape architect or such firm

shall have made a motion under rule three thousand two hundred eleven or

three thousand two hundred twelve of this chapter, in which event the

action shall be stayed pending determination of the motion. Such motion

shall be granted upon a showing that such claimant has failed to comply

with the notice of claim requirements of this section or for the reasons

set forth in subdivision (h) of rule three thousand two hundred eleven

or subdivision (i) of rule three thousand two hundred twelve of this

chapter; provided, however, such motion shall not be granted if the

moving party is in default of any disclosure obligation as set forth in

subdivision four of this section.

6. No claim for personal injury, or wrongful death or property damage,

or a cross or third-party claim for contribution or indemnification

arising out of an action for personal injury, wrongful death or property

damage may be asserted against a licensed architect, engineer, land

surveyor or landscape architect or such firm arising out of conduct by

such licensed architect, engineer, land surveyor or landscape architect

or such firm occurring more than ten years prior to the accrual of such

claim shall be commenced or interposed against any such licensed

architect, engineer, land surveyor or landscape architect or such firm

unless it shall appear by and as an allegation in the complaint or

necessary moving papers that the claimant has complied with the

requirements of this section. Upon the commencement of such a proceeding

or action or interposition of such cross or third-party claim, a county

clerk shall not be entitled to collect an index number fee and such

action, proceeding or cross or third-party claim shall retain the

previously assigned index number. Such action, proceeding or cross or

third-party claim shall otherwise be governed by the provisions of this

chapter.

7. The provisions of this section shall apply only to a licensed

architect, engineer, land surveyor or landscape architect or such firm

practicing architecture, engineering, land surveying or landscape

architecture in the state of New York at the time the conduct complained

of occurred and shall not apply to any person or entity, including but

not limited to corporations, which was not licensed as an architect,

engineer, land surveyor or landscape architect or such firm in this

state or to a firm not lawfully practicing architecture, engineering,

land surveying or landscape architecture at the time the conduct

complained of occurred.

8. The provisions of this section shall not be construed to in any way

alter or extend any applicable statutes of limitations except as

expressly provided herein.