For decades, third-party practice in New York has existed in a state of uneasy equilibrium—tolerated, leveraged, and often times resented by nearly everyone involved.
Plaintiffs’ attorneys appreciate third-party defendants for one obvious reason: they expand the pool of potential recovery. At the same time, plaintiffs often oppose impleader because it typically arrives late in the game—after depositions—triggering additional discovery, motion practice, and inevitable delay. That delay, in turn, stalls resolution and settlement.
Courts have their own complicated relationship with impleader. In theory, third-party practice promotes efficiency by allowing all responsible parties to be adjudicated in a single action. In reality, judges—under constant pressure to reduce backlogs—know that third-party actions frequently slow cases down and extend time to disposition. This tension has existed since third-party practice was first codified in New York in 1962.
Now, that longstanding balance has been decisively disrupted.
With the support of the plaintiffs’ bar, Governor Kathy Hochul has signed into law the Avoiding Vexatious Overuse of Impleading to Delay Act—the aptly abbreviated AVOID Act. The name suggests a solution to abusive delay tactics, but it glosses over an inconvenient truth: for years, plaintiffs have been perfectly content to let defendants do the investigative heavy lifting to identify additional potentially responsible parties—while naming only the most obvious defendants at the outset.
Courts, too, have played a role in delay. Standard conference orders routinely permit thirdparty actions to be commenced up to 45 days after depositions, virtually guaranteeing that impleader will extend discovery and motion practice.
The AVOID Act replaces that informal system with rigid statutory deadlines.
What the New Law Requires
Under the AVOID Act, a defendant seeking to implead a third-party defendant must serve and file the third-party summons and complaint:
• Within 60 days after serving an answer, if the third-party liability arises from a contractual relationship; or
• Within 60 days of becoming aware that a nonparty is or may be liable for all or part of the plaintiff’s claim.
The statute also imposes time limits on second and third third-party actions. An exception remains for impleader against a plaintiff’s employer based on a qualifying “grave injury.”
Extensions are strictly limited. No extension may exceed 30 days without court approval. More significantly, a defendant may not commence a third-party action:
• More than 12 months after filing an answer, without the written consent of both the plaintiff and the court; or
• After the filing of the note of issue, under any circumstances.
Late third-party actions will be severed or dismissed without prejudice.
Why This Matters—A Lot
This legislation fundamentally alters how risk transfer must be handled in New York litigation.
Defendants—particularly statutory defendants in Labor Law cases—are now forced to make impleader decisions early, often before discovery provides meaningful clarity. Miss the window, and the right to implead is gone.
Ironically, the likely result is more third-party actions, not fewer. Faced with unforgiving deadlines, defense counsel will implead defensively—filing early to preserve rights— because an impleader can always be dismissed later, but it cannot be commenced once the statutory clock runs out.
Insurers will also need to adapt quickly. Carriers can no longer afford to delay investigations or await tender determinations before authorizing third-party actions. Early, proactive claims handling will be essential, and defense counsel will need information faster than ever to meet statutory deadlines.
In short, the AVOID Act shifts the risk—and the urgency—squarely onto defendants and their insurers. Those who fail to adjust their litigation and claims strategies will do so at their peril.
If you would like to discuss the AVOID Act and its implications for your cases, please contact Brian R. Biggie, Michael F. Harris, or Thomas Bona.
