The AVOID Act establishes a single, unified 90-day deadline for all third-party complaints in New York state court. Under CPLR § 1007(b), a defendant has 90 days from serving its answer to file a third-party summons and complaint. Without a court order, any complaint filed after that window is subject to severance or dismissal without prejudice under CPLR § 1007(d). That 90-day window sounds straightforward, but how it works in practice, and how to investigate quickly enough to use it effectively, requires careful attention.
The single clock and what starts it
Under the enacted AVOID Act, all third-party claims are subject to the same deadline: 90 days from the date the defendant served its answer. There is no separate track for indemnification claims, contribution claims, or failure-to-procure-insurance claims. All theories run on the same 90-day window.
The start date is fixed and verifiable: the date the defendant served its answer on the plaintiff. That date appears in the affidavit of service and is not subject to interpretation. Use the deadline calculator to calculate the exact 90th day from your answer-served date.
What 90 days actually requires
The 90-day window sounds workable until you trace through what must happen within it. The defendant must:
- Identify every subcontractor, vendor, or other party that may bear liability for the plaintiff's injuries.
- Locate the governing contracts for each potential defendant, if any.
- Confirm that enforceable indemnification language exists (for indemnification claims) or that the sub failed to maintain required insurance (for failure-to-procure claims).
- Identify parties with no written contract but a potential common-law liability connection.
- Brief defense counsel and obtain a filing-ready complaint for each viable third-party defendant.
On a large construction project with dozens of active subcontractors, overlapping scopes of work, and project records stored in multiple systems, each of these steps takes time. A defendant who begins the investigation on day one has a realistic chance of completing it before day 90. A defendant who waits for the first status conference, or who defers the investigation until after the coverage reservation is resolved, may not.
The investigation framework for 90 days
A structured investigation that uses the full 90-day window proceeds in three phases.
Days 1 through 15: Establish the factual map
From the complaint, the incident report (if available), and your own knowledge of the project or premises, identify:
- The precise location and nature of the accident or injury
- Every contractor, subcontractor, and vendor who had active work in that location or scope during the relevant period
- Any photographs, incident reports, or contemporaneous documentation about the condition that caused the accident
- Any OSHA reports or agency filings related to the incident
Your goal in the first two weeks is to build a list of every possible third-party defendant. Cast the net wide at this stage; narrowing happens later.
Simultaneously, begin the contract retrieval process. Pull the relevant subcontracts from your contract management system. For each potential third-party defendant, confirm whether a written contract exists and whether it contains indemnification and insurance-procurement provisions.
Days 16 through 50: Evaluate each candidate
For each potential third-party defendant identified in the first phase:
- Confirm their involvement in the specific work or location at issue.
- Assess the factual basis for claiming that their acts or omissions contributed to the plaintiff's injury.
- Determine whether a written contract supports an indemnification or failure-to-procure claim.
- For parties without a written contract, evaluate whether a contribution or common-law indemnification claim is cognizable.
- Confirm whether the note of issue has been filed or is imminent.
Parties who are already named defendants are generally not candidates for a third-party complaint. Your focus is on parties who are not yet in the action and who bear potential liability.
Days 51 through 75: Confirm viability and brief counsel
By day 51, you should have a working list of viable third-party defendants, each with a documented factual and legal basis for the claim. Brief defense counsel with enough lead time to evaluate the legal sufficiency of each candidate and prepare the complaint.
Counsel will assess:
- Whether the indemnification claim is cognizable given the nature of the claims in the main action and New York's indemnification requirements.
- Whether the proposed third-party defendant is subject to New York jurisdiction.
- Whether any claim would be time-barred by an underlying statute of limitations.
- Whether the note of issue has been filed or is imminent, which would trigger the CPLR § 1007(c) good-cause standard rather than the as-of-right 90-day window.
Days 76 through 90: File or document the decision
If viable third-party defendants exist, the complaint must be filed before the 90-day clock expires. If no viable candidates exist, document the investigation and the reasons for not filing. That documentation will be useful if the question of waiver or default is raised later in the litigation.
For cases where the investigation reveals viable claims but the complaint is not yet ready, counsel may seek a court-ordered extension. Such an extension requires a showing of good cause under CPLR § 1007(b). The stronger the factual basis and the more clearly the extension request explains why 90 days was insufficient, the better positioned the defendant will be to obtain the order.
The employer exception: a separate 90-day window
For claims involving an employer under Workers' Compensation Law § 11, the AVOID Act provides a separate window. Under CPLR § 1007(e), the defendant has 90 days from the later of: the date the employer's identity became known, or the date the defendant knew or should have known that the plaintiff sustained a grave injury as defined by the statute.
This window runs separately from the general 90-day window. A defendant who serves its answer on a date when neither the employer's identity nor the grave injury is known may have a longer overall window for employer exception claims than for other third-party claims. The key is documenting the date each trigger event occurred, because that documentation establishes when the 90-day window for the employer exception began.
Where both employer exception claims and other third-party claims exist against the same or different parties, all viable claims should be included in a single timely complaint. See the employer exception article for a complete analysis of how CPLR § 1007(e) works in practice.
The note-of-issue provision and its effect on the window
Under CPLR § 1007(c), a third-party complaint filed after the note of issue requires a showing of good cause or that filing is in the interest of justice. This provision can effectively shorten the 90-day window if the plaintiff files the note of issue before day 90.
A defendant who is tracking the 90-day deadline but is not monitoring the case calendar may find that the note of issue was filed while time remained in the 90-day window, creating an additional hurdle. The post-note-of-issue standard is not an absolute bar, but it requires affirmative court action rather than the as-of-right filing available within the 90-day window.
The practical implication is that monitoring the case calendar is as important as tracking the deadline calendar. If the note of issue is filed before your 90-day window closes, you need to evaluate whether you can meet the good-cause standard or whether you need to file before the note of issue is accepted.
The interaction between claim theories within the 90-day window
In many construction cases, the same proposed third-party defendant may be subject to both an indemnification claim (based on a subcontract clause) and a contribution or failure-to-procure claim. Where multiple claim theories exist against the same party, all viable theories should be included in a single third-party complaint filed before the 90-day deadline.
The risk of filing for only one theory initially is that the other theory may be harder to add after the 90-day window closes. The conservative approach is to include all viable claims in the initial complaint. This requires that the investigation and counsel briefing cover all potential claim theories within the same 90-day window, which argues for beginning the investigation immediately upon service rather than deferring any part of it.
The compliance checklist incorporates all third-party claims tracking into its 10-step framework. For the full deadline structure across all AVOID Act provisions, see AVOID Act deadlines.