NEW YORK STATE ASSEMBLY MEMORANDUM IN SUPPORT OF LEGISLATION submitted in accordance with Assembly Rule III, Sec 1(f)
BILL NUMBER: A8728
SPONSOR: Lunsford TITLE OF BILL:
An act to amend the civil practice law and rules, in relation to enact-
ing the "avoiding vexatious overuse of impleading to delay (AVOID) act"
PURPOSE OR GENERAL IDEA OF BILL: This bill
establishes time limits in a civil action as to when defendants must
implead. so-called "third-party defendants" into the action that may be
in whole or in part liable to them for the plaintiffs claim, and as to
when those third-party defendants must implead subsequent third-party
defendants. The time limits' ensure that defendants and third-party
defendants implead all necessary parties within a year of the filing of
the action and prevent defendant from deliberately postponing the
impleading of known or identifiable parties to delay the litigation.
SUMMARY OF PROVISIONS:
Section one of the bill entitles the bill the Avoiding Vexatious Overuse
of Impleading to Delay (AVOID) Act."
Section two amends subdivision (a) of section 1007 of Article 10 of the
Civil Practice Law and Rules so that prior pleadings are served on
impleaded parties twenty days after a third-party complaint is filed. It
also ensures that impleading provisions apply to legal entities.
Section three of the bill adds new subdivisions (b) through (e) to
section 1007 of Article 10 of the Civil Practice Law and Rules. Subdi-
visions (b), (c), and (d) set forth time periods and limitations with
which defendants and third-party defendants must comply in order to
implead parties. Subdivision (e) sets forth that in the event a third-
party action is severed from the initial action, and a third-party
plaintiff proceeds to initiate a new action by the filing of a summons
and complaint against a severed third-party defendant, any motion to
consolidate such actions shall not be permitted.
Section four of the bill states that this act shall take effect one
hundred and twenty days after it shall have become a law.
JUSTIFICATION:
A defendant who is sued may implead or "vouch in" any other persons or
legal entities that may be in whole or in part liable to the defendant
for the plaintiff's claim. The right is codified in section 1007 of the
CPLR.
However, section 1007 is silent regarding the timetable for impleading
such parties. Clever defendants have thus developed an egregious strate-
gy to add years to any case and, during that respite, avoid financial
accountability. These defendants deliberately delay the case by implead-
ing known or identifiable third-party defendants into a case on a roll-
ing basis, one after another after another etc. Each time a new third-
party defendant is added to the case, the newly added party has the
right to depose all the parties that have already been deposed, as well
as asking for document discovery that has already been produced. The
newly added party can also serve additional document requests tailored
to the pertinent liability issues concerning the newly added person or
legal entity. Discovery begins anew when a party joins a case Crit-
ically, the defendants and third-party defendants know exactly who may
be liable to them at the beginning of the case, since most have entered
into contracts for the services with indemnity agreements constituting
significant portions of such contracts. Nevertheless, such defendants
vexatiously refuse to timely identify and implead these parties for only
one purpose: to delay the case. With this technique, a case that should
take two years to resolve routinely takes twice or three times as long.
This not only frustrates individual cases, but needlessly ties up the
court's docket and drains court resources overall.
This bill seeks to ensure that defendants implead third-party defendants
at the beginning of the case so that depositions need not be taken
multiple times and that document discovery proceeds as a unified proc-
ess. This bill aims to prevent late impleading solely to delay a resol-
ution of an action and aims to ensure that all necessary parties are
impleaded into a case within one year after the filing of the action.
PRIOR LEGISLATIVE HISTORY:
New bill.
FISCAL IMPLICATIONS:'
None.
EFFECTIVE DATE:
This act shall take effect one hundred and twenty days after it shall
have become a law and shall apply to pending cases; provided that it
shall not apply to any third-party summons and complaint that was filed
and served prior to the effective date of this act.
STATE OF NEW YORK
________________________________________________________________________
8728
2025-2026 Regular Sessions
IN ASSEMBLY
June 2, 2025
___________
Introduced by M. of A. LUNSFORD -- read once and referred to the Commit-
tee on Judiciary
AN ACT to amend the civil practice law and rules, in relation to enact-
ing the "avoiding vexatious overuse of impleading to delay (AVOID)
act"
The People of the State of New York, represented in Senate and Assem-bly, do enact as follows:
1 Section 1. This act shall be known and may be cited as the "avoiding
2 vexatious overuse of impleading to delay (AVOID) act".
3 § 2. Section 1007 of the civil practice law and rules, as amended by
4 chapter 216 of the laws of 1992, is amended to read as follows:
5 § 1007. When third-party practice allowed. (a) After the service of
6 [his] a defendant's answer, [a] the defendant may proceed against a
7 person or legal entity not a party who is or may be liable to that
8 defendant for all or part of the plaintiff's claim against that defend-
9 ant, by filing pursuant to section three hundred four of this chapter a
10 third-party summons and complaint with the clerk of the court in the
11 county in which the main action is pending, for which a separate index
12 number shall not be issued but a separate index number fee shall be
13 collected. The third-party summons and complaint and all prior pleadings
14 served in the action shall be served upon such person or legal entity
15 within [one hundred] twenty days of the filing. A defendant serving a
16 third-party complaint shall be styled a third-party plaintiff and the
17 person or legal entity so served shall be styled a third-party defend-
18 ant. The defendant shall also serve a copy of such third-party complaint
19 upon the plaintiff's attorney simultaneously upon issuance for service
20 of the third-party complaint on the third-party defendant.
21 (b) 1. A defendant shall proceed with the filing and serving of a
22 third-party summons and complaint against a person or legal entity who
23 is or may be liable to that defendant for all or part of the plaintiff's
24 claim against that defendant within sixty days after serving an answer
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD13132-03-5
A. 8728 2
1 upon the plaintiff in the event that such liability arises from a
2 contractual relationship between the defendant and such person or enti-
3 ty, or otherwise within sixty days of becoming aware that such person is
4 or may be liable to the defendant for all or part of a plaintiff's
5 claim.
6 2. A third-party defendant who proceeds with the filing of its own
7 third-party summons and complaint, becoming in effect a second third-
8 party plaintiff, shall proceed with the filing and serving of such
9 summons and complaint against a second third-party defendant, within
10 forty-five days after serving an answer.
11 3. A second third-party defendant who then proceeds with the filing of
12 its own third-party summons and complaint, becoming in effect a third
13 third-party plaintiff, shall proceed with the filing and serving of such
14 summons and complaint against a third third-party defendant within thir-
15 ty days after serving an answer.
16 4. Any subsequent third-party defendant, who proceeds with the filing
17 of its own third-party summons and complaint, becoming in effect an
18 additional third-party plaintiff, shall proceed with the filing of such
19 summons and complaint against an additional third-party defendant within
20 twenty days after serving an answer.
21 5. There shall be no extensions of the time periods set forth in this
22 subdivision longer than thirty days without an order of the court,
23 provided that a defendant or third-party defendant may not proceed with
24 the filing and serving a third-party summons and complaint twelve months
25 after having filed an answer in the action without written consent of
26 both the plaintiff and the court.
27 (c) Notwithstanding subdivision (b) of this section, a defendant or
28 third-party defendant may not proceed with the filing of a third-party
29 summons and complaint after the filing of a note of issue. An action
30 filed in violation of this subdivision shall be severed or dismissed
31 without prejudice.
32 (d) The time periods set forth in subdivisions (b) and (c) of this
33 section shall not apply when a defendant or third-party defendant seeks
34 to file and proceed with a third-party summons and complaint against an
35 employer of the plaintiff in the event that either: 1. the defendant or
36 third-party defendant is seeking contribution or indemnification for a
37 grave injury as such term in defined in section eleven of the workers'
38 compensation law, or 2. the identity of such employer had not been known
39 to the defendant or third-party defendant or otherwise identified until
40 the such time periods have expired. In either instance, the defendant or
41 third-party defendant shall proceed with the filing and serving of a
42 summons and complaint within one hundred twenty days after the later of
43 either event. An action in violation of this subdivision shall not be
44 allowed to proceed without written consent of both the plaintiff and the
45 court.
46 (e) In the event a third-party action is severed from the initial
47 action, and a third-party plaintiff proceeds to initiate a new action by
48 the filing of a summons and complaint against a severed third-party
49 defendant, any motion to consolidate such actions shall not be permit-
50 ted.
51 § 3. This act shall take effect on the one hundred twentieth day after
52 it shall have become a law and shall apply to cases pending on or after
53 such date; provided, however, this act shall not apply to any third-par-
54 ty summons and complaint filed and served prior to the effective date of
55 this act.
