In our prior alert, “Batten Down the Hatches,” we discussed the sweeping changes introduced by New York’s Avoiding Vexatious Overuse of Impleading to Delay (AVOID) Act, which imposed strict, front-loaded deadlines on third-party practice.
Since then, the law has already been materially revised.
On February 13, 2026, Governor Kathy Hochul signed chapter amendments to the AVOID Act (S.8809)—significantly altering the framework we outlined. These amendments, effective April 18, 2026, fundamentally reshape how defendants must approach impleader in New York going forward.
What Changed Since Our Last Alert
A Shift to a Single 90-Day Deadline
Our prior alert highlighted the Act’s original structure, which imposed multiple, cascading deadlines (60, 45, 30, and 20 days depending on the claim and procedural posture).
That structure has been eliminated.
Under the amended statute:
A defendant must file any third-party summons and complaint
within 90 days of serving its answerAny filing beyond 90 days requires leave of court
Bottom line: The Legislature replaced complexity with a single, uniform deadline, but one that remains rigid and unforgiving.
Applicability Clarified
The amended law makes clear that the AVOID Act:
Applies only to actions commenced on or after April 18, 2026
Does not apply retroactively to pending cases
This resolves earlier uncertainty and allows parties to clearly determine which rules govern their cases.
Post–Note of Issue Impleader: Limited Flexibility Added
In its original form, the AVOID Act imposed a complete bar on third-party actions after the filing of a note of issue.
The amendments introduce a narrow exception:
Impleader may be permitted post–note of issue
But only upon a showing of “good cause” or “in the interest of justice”
While this is a meaningful modification, the standard is expected to be strictly applied.
Employer Exception Aligned with New Timeline
The amended Act also revises how claims against a plaintiff’s employer are handled:
Defendants may implead an employer within 90 days of:
Learning the employer’s identity; or
Learning of a qualifying “grave injury”
This replaces the more fragmented and uncertain timing rules contemplated in the original version.
What Remains Unchanged
Despite these revisions, the core intent, and impact, of the AVOID Act remains intact:
Strict enforcement: Late filings will be severed or dismissed without prejudice
No second chances: Severed claims cannot be consolidated back into the main action
Front-loaded strategy: Defendants must still identify and act on third-party liability at the outset of the case
Practical Impact for Defendants and Insurers
Although the amendments simplify the statute, they reinforce its underlying message: delay is no longer tolerated.
Early Investigation Is Critical
Defendants must evaluate:
Contractual indemnity rights
Additional insured coverage
Potential contribution claims
almost immediately upon answering.
The 90-Day Window Is a Hard Stop
Missing the deadline now means:
Motion practice to seek leave
Increased costs and delay
Potential need to file a separate third party action
Expect More “Protective” Filings
To avoid waiver, defendants may implead broadly and early, even where liability is not fully developed.
Insurers Must Move Faster
Carriers can no longer wait on:
Tender responses
Coverage determinations
Failure to act within the statutory window risks permanent loss of indemnity or contribution opportunities.
Key Takeaways from This Update
The AVOID Act now imposes a single 90-day deadline for third-party actions
The law applies prospectively only (April 18, 2026 forward)
Post–note of issue impleader is limited but no longer absolutely barred
The need for immediate, proactive case evaluation is greater than ever
Conclusion
While the original AVOID Act dramatically altered third-party practice in New York, the 2026 amendments refine, not retreat from, that shift.
If our first message was to “batten down the hatches,” this update delivers a sharper directive:
Move quickly, make decisions early, and treat the 90-day deadline as dispositive.
If you have any questions about the AVOID Act, its recent amendments, or how these changes may impact your litigation strategy, claims handling, or risk transfer practices, please contact our office. Our team is closely monitoring developments and is available to assist in navigating these new requirements and ensuring your rights are preserved under this evolving statutory framework.
Brian B. Biggie
Partner
(716) 313-2195
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