AVOID Act Obviates Third-Party Defendants’ Reliance on CPLR § 1010’s “Safety Valve”
Third-Party Defendants implicated in indemnification or contribution actions in New York may now have a new procedural defense.
New York’s Civil Practice Laws and Rules have never before set a hard deadline for third-party pleadings. Instead, CPLR § 1007 as historically written and enforced merely established a 120-day service deadline following the filing of a third-party complaint without guidance as to when that third-party complaint must have been made.[1] As of April 18, 2026, however, CPLR § 1007(b), newly added as part of the Avoiding Vexatious Overuse of Impleading to Delay Act (“AVOID”), will now require filing of third-party summonses and complaints within ninety days of the filing of the answer in the main action, unless an order permitting otherwise is entered by the court. Relatedly, newly created § 1007(c) sets a concurrent deadline for filing third-party actions as before the filing of the note of issue, save for instances of good cause.[2]
Despite the historical lack of formalized deadlines, that third-party practice must commence in a timely fashion is not a new idea under New York law. Before the passage of the AVOID Act, the timeliness of third-party practice had been controlled instead by CPLR § 1010, which permits New York courts to dismiss third-party complaints without prejudice on a discretionary basis where “the controversy between the third-party plaintiff and the third-party defendant will unduly delay the determination of the main action or prejudice the substantial rights of any party.”[3]
Indeed, New York courts have applied § 1010 to dismiss third-party complaints in cases of significant, unnecessary, unjustifiable, or prejudicial delay between main-action pleadings and the third-party action. For example, New York’s Second Department recently considered a § 1010 dismissal ordered by the Kings County Supreme Court in Morales v. 88th Ave. Owner, LLC.[4] There, the plaintiff alleged injury on a work site caused by sparking metalwork from the floor above where plaintiff was located. As an employee of a subcontractor hired for the construction project, he chose to commence suit against the owner of the property where the construction was taking place. Years later, that property owner commenced third-party practice against the subcontracting entities employing plaintiff and performing the work.
Faced with this delay between injury, pleadings against the property owner, and the property owner’s third-party complaint, the court noted "CPLR 1010 provides a safety valve” for third-party defendants brought into underlying actions on an untimely basis.[5] Utilizing this “safety valve,” the Morales court affirmed dismissal because third-party plaintiffs “delayed the commencement of the second third-party action … more than four years after … their answer in the main action.”[6] Moreover, the court noted that third-party plaintiffs had not and could not claim they “were unaware of the existence of facts necessary to commence the second third-party action at an earlier date.”[7] After all, plaintiff’s employer as well as the entities performing the relevant metal work as part of the ongoing construction project had been known to defendant/third-party plaintiffs prior to their answer in the main action. In other words, the Morales court, operating within the § 1010 framework, weighed period of delay between answer and third-party pleadings paired with the third-party plaintiff’s knowledge at the time of answer and throughout the delay. Together, these factors warranted dismissal.
The Morales decision was based in large part on a previous Second Department decision: Soto v. CBS Corp..[8] There, New York’s Second Department again affirmed a third-party complaint dismissal from the Kings County Supreme Court on § 1010 grounds. Soto’s main action stemmed from a staircase collapse that caused injury. Throughout the course of main-action discovery, plaintiff sought – and the court ordered the production of – maintenance and control records regarding the subject staircase. Instead of producing this information, defendant instead commenced a third-party lawsuit against the cleaning company allegedly responsible for the stairs. That court similarly found dismissal appropriate as “defendants[/third-party plaintiffs] deliberately and intentionally delayed commencing the third-party action for more than four years.”[9]
Not all historical application of § 1010 required multi-year delays, however. Several years before Morales and Soto, the First Department in Skolnick v. Max Connor, LLC, affirmed an Order of the Bronx County Supreme Court granting dismissal of a third-party complaint where “third-party plaintiffs delayed in bringing the third-party action until almost a year after the main action for personal injuries was commenced and months after the filing of the note of issue, despite being aware of a potential contractual indemnification claim against third-party defendant.”[10] Again, the court emphasized the knowledge of third-party plaintiffs of the potential for third-party practice prior to commencement of the third-party action the primary factor driving dismissal despite the delay lasting less than one year. Additionally, the Skolnick court found the delay prejudicial to the third-party defendants because that defendant, a business, had dissolved and its records had been largely lost. The court found that “[t]his would put third-party defendant at a severe disadvantage in gathering evidence to defend itself,” justifying dismissal.[11] Finally, the court considered that the plaintiff in the main action was seventy-nine years of age, contributing to the importance of an efficient resolution of that action which was trial ready at the time of the commencement of the third-party action.
The AVOID Act’s passage indicates that the New York legislature considered this historical application of § 1010’s discretionary dismissal guidelines to be inadequate in controlling third-party practice and protecting potential indemnification or contribution defendants. The newly established ninety-day deadline from answer to third-party complaint under § 1007(b) is a far-cry shorter than the multi-year delays seen in Morales and Soto subject instead to court discretion.
Many other states have statutory restrictions on the timeliness of third-party complaints before the AVOID Act’s passage in New York, some even shorter. For example, and most strict for third-party plaintiffs, Illinois limits the time to bring a third-party complaint to the defendant’s time to answer.[12] Oklahoma and South Dakota law both permit defendants to bring third-party actions without leave within ten days of their answer. Thereafter, defendants must seek leave by motion to bring the action.[13] Kansas, Montana, and Nebraska law features a fourteen-day period following answer for third-party complaints without leave.[14] North Carolina requires filing within forty-five days of the answer,[15] while Pennsylvania permits a sixty-day period without leave.[16] Only Wisconsin’s deadline is longer than New York’s newly imposed ninety-day deadline, permitting six months between complaint and third-party complaint.[17]
Several practice changes have resulted from this dramatic shift in deadline in New York. Primarily, negligence defendants and their counsel, as potential third-party plaintiffs, must be aware of this newly imposed ninety-day deadline and work with diligence to identify potential third-party defendants in conjunction with their main-action initial pleadings – or seek an order extending the time for third-party actions contemplated by § 1007(b). Of course, nothing within the AVOID Act’s § 1007 would prohibit third-party plaintiffs to commence independent actions separate and apart from the main action. But to be brought as a third-party complaint, such actions must be made on an accelerated timeline.
On the flipside, upon receipt of a third-party complaint, third-party defendants should consider defending against that claim on procedural grounds. Importantly, § 1010’s discretionary dismissal guidelines for cases of delay despite knowledge of the potential third-party action still apply, and such facts might provide important persuasion towards dismissal, a third-party complaint made more than ninety days after the main action complaint is now untimely and procedurally deficient on its face.
Notably, the new deadlines under § 1007 apply only to third-party actions brought after April 18, 2026. However, the newly imposed deadline may prove persuasive to courts considering delay under the existing § 1010 standard.
[1] N.Y. C.P.L.R. Law § 1007 (L 1992, ch 216 § 9, eff July 1, 1992).
[2] N.Y. C.P.L.R. Law § 1007 (L 2026, ch 79, § 1, effective April 18, 2026).
[3] N.Y. C.P.L.R. Law § 1010 (Consol., Lexis Advance through 2026 released Chapters 1-49, 61-118).
[4] 2025 NY Slip Op 07295, 3, 244 A.D.3d 1098, 1102, 249 N.Y.S.3d 133, 138 (App. Div. 2nd Dept.)
[5] Id. (citing (Soto v CBS Corp., 157 AD3d 740, 741, 69 N.Y.S.3d 61 [2018]; Annanquartey v Passeser, 260 AD2d 517, 517, 688 N.Y.S.2d 252 [1999]).
[6] Id.
[7] Id.
[8] 2018 NY Slip Op 00185, 1, 157 A.D.3d 740, 740, 69 N.Y.S.3d 61, 62 (App. Div. 2nd Dept.).
[9] Id.
[10] 2011 NY Slip Op 7716, 1, 89 A.D.3d 443, 444, 932 N.Y.S.2d 453, 453 (App. Div. 1st Dept.).
[11] Id.
[12] 735 Ill. Comp. Stat. Ann. 5/2-406 (LexisNexis, Lexis Advance through P.A. 104-460 of the 2025 Regular Session of the 104th General Assembly.***).
[13] Okla. Stat. tit. 12, § 2014 (LexisNexis, Lexis Advance through Chapter 418 of the Second Regular Session of the 60th Legislature (2026) with exception through Chapters 154, 163, 196, 197, 217, 223, 231-233, 246, 247, 282, 292, 308, 336, 338, 341, 342, 368, 374, 401, 406); S.D. Codified Laws § 15-6-14a (LexisNexis, Lexis Advance through the 2026 General Session of the 101st South Dakota Legislative Assembly with amendments by Ex-Order 2026-02 and with Acts effective March 12, 2026. ***).
[14] Kan. Stat. Ann. § 60-214 (LexisNexis, Lexis Advance through July 1, 2026. ***); Mont. Code Ann. Rule 25-20-14 (LexisNexis, Lexis Advance through the end of the 2025 Regular Session of the Montana Legislature.***).
[15] N.C. Gen. Stat. § 1A-1, R. 14.
[16] 231 Pa. Code Part I, Ch 2250, Rule 2253.
[17] Wis. Stat. Ann. § 803.05 (LexisNexis, Lexis Advance through Act 126 of the 2025-2026 Legislative Session, with exceptions from Act 118 ***).
