On December 19, 2025, New York State Governor Kathy Hochul signed the Avoiding Vexatious Overuse of Impleading to Delay (AVOID) Act into law, imposing a strict time limit on impleader in civil actions, effective for all cases pending on or filed after April 18, 2026.1
As we reported in August, the AVOID Act seeks to prevent litigation delay by pushing defendants to file third-party actions within 60 days of answering a complaint (if the third-party defendant’s liability is contractual in nature) or within 60 days of determining another party could be liable to that defendant for the plaintiff’s alleged damages.2 The time limit on filing a fourth-party action shortens to 45 days and 30 days for a fifth-party action. Any subsequent third-party practice must take place within 20 days of answering. Limited exceptions do apply – for example, the time periods do not apply to a third-party action against the plaintiff’s employer for contribution or indemnification due to a grave injury or when the employer’s identity was unknown until after those time limits expired, provided the third-party complaint is filed within 120 days of the defendant’s discovery of the employer’s identity or the existence of the grave injury. Additionally, parties may stipulate to extend these deadlines for up to 30 days so long as the note of issue has not been filed.
While the purpose of the AVOID Act is reasonable (i.e., to prevent defendants from using third-party actions as a delay tactic), the impacts are detrimental to defendants with legitimate third-party claims that are discovered too late. The discovery process does not always move quickly and often it is not until well after 60 days have elapsed that a party finds another entity that may be contractually liable for damages alleged by a plaintiff. And if another party owes the defendant contractual indemnification, it is rare for that third party or its insurer to accept the defendant’s defense and indemnification tender within 60 days. The likely outcome of the AVOID Act is a swath of third-party actions, especially in cases involving construction-related injuries.
Currently, when an entity is sued, they have time to respond to the action, investigate the circumstances, tender their defense and indemnity to the parties deemed liable, and—only when necessary—implead a third party. The AVOID Act will force defendants to file third-party actions before tendering parties even have a chance to respond to the tender. Additionally, if a defendant fails to comply with the new limitations, the third-party claim will be severed or have to be filed as a separate action, which cannot be consolidated with the original action. Separate actions involving related liability issues and risk allocation among potentially responsible parties may lead to duplicative discovery, conflicting verdicts, and create roadblocks for settling cases—especially if discovery in the severed action lags behind discovery in the original personal injury action.
In light of these new time limitations, it will be critical for defendants to turn over every possible stone in the pre-answer investigation when served with a lawsuit, especially where that defendant may be entitled to contractual indemnification from a third party. One practical tip: when tendering defense and indemnity obligations to a third party, simultaneously prepare a third-party summons and complaint and calendar the deadline to file and serve.
While the implications of the AVOID Act are yet to be seen, the most immediate effect is that there will be an increase in third-party practice as defendants proactively file third-party actions to preserve their rights, even while defendants and third-party defendants are tendering to potentially responsible parties and awaiting responses to those tenders.
If you have any questions about the content of this alert, please contact C. J. Englert, associate, at cenglert@barclaydamon.com; Matthew Larkin, Torts & Products Liability Defense Practice Area chair, at mlarkin@barclaydamon.com; Tony Piazza and Mark Whitford, Insurance Coverage & Regulation Practice Area co-chairs, at apiazza@barclaydamon.com and mwhitford@barclaydamon.com; Tom Cronmiller and Sanjeev Devabhakthuni, Professional Liability Practice Area co-chairs, at tcronmiller@barclaydamon.com and sdevabhakthuni@barclaydamon.com; or another member of the firm’s Torts & Products Liability Defense, Insurance Coverage & Regulation, or or Professional Liability Practice Areas.
1New York State Senate Bill S8071A.
22025 Bill Text NY S8071A.