Most defendants subject to the AVOID Act face a 90-day window from serving their answer to file a third-party complaint. For a specific category of construction cases involving catastrophically injured workers, the statute provides a separate 90-day window with a different start date: 90 days from the later of two triggering events. This is the employer exception under CPLR § 1007(e), and understanding when it applies and how it interacts with the rest of the AVOID Act is essential for general contractors and their insurers.
The baseline problem the exception solves
Workers' compensation law creates a general exclusivity rule: an employee cannot sue their employer in tort. The employer's workers' compensation coverage is the exclusive remedy. But Workers' Compensation Law § 11 carves out an exception for grave injuries. When an employee suffers a grave injury at a covered worksite, the employer loses the protection of workers' compensation exclusivity and may be held liable in a third-party action brought by the general contractor or property owner defending the primary tort claim.
This statutory structure has been a feature of New York construction litigation for decades. What the AVOID Act changed is the timing of that impleader. Before the AVOID Act, a general contractor defending a Labor Law § 240 claim could wait to determine whether the plaintiff's injuries qualified as grave injuries before filing against the employer. The employer exception preserves the ability to make that determination carefully, by providing 90 days from the relevant triggering event rather than requiring the defendant to file immediately upon serving its answer.
The two triggering events
The employer exception clock does not start when the answer is served. Instead, it starts from the later of two separate triggering events under CPLR § 1007(e).
Triggering event one: The date when the defendant knows or should know the plaintiff sustained a grave injury as defined in WCL § 11. An injury that is not initially apparent as a grave injury may evolve over time as the plaintiff's medical condition develops. Alternatively, counsel may need to obtain medical records, expert review, or deposition testimony before determining whether the injury meets the WCL § 11 definition.
Triggering event two: The date when the identity of the employer becomes known. In some construction cases, particularly those involving large projects with multiple tiers of subcontractors and temporary labor, the plaintiff's employer is not immediately apparent. The employee may have been placed by a staffing agency, employed by a sub-subcontractor not listed in the general contractor's project files, or engaged through an informal arrangement.
What qualifies as a grave injury
Grave injury is defined by WCL § 11. The definition is specific and courts apply it strictly. It is not sufficient that an injury is serious, permanent, or disabling in a general sense.
The statutory list of grave injuries under WCL § 11 (verify against current statutory text) includes: death, permanent and total disability, amputation of an arm, leg, hand, or foot, loss of multiple fingers or toes, paraplegia, quadriplegia, total and permanent blindness or deafness, loss of nose, loss of ear, permanent and severe facial disfigurement, and loss of an index finger.
The courts have consistently held that conditions not on the enumerated list do not qualify, even if they result in complete inability to work. A spinal injury that causes significant disability but not paraplegia or quadriplegia, for example, generally does not qualify. Traumatic brain injury has been the subject of considerable litigation, and its status depends heavily on the specific findings.
Because the grave injury determination is both legally and medically complex, defendants who think a case may involve grave injury should obtain a medical assessment early in the litigation. Waiting until the standard impleader deadline is approaching before evaluating the grave injury question eliminates the benefit the exception was designed to provide.
How the employer exception interacts with the standard deadline
The employer exception does not replace the standard 90-day deadline from answer. It runs in parallel with it. A general contractor defending a Labor Law § 240 claim has two potential impleader theories against the plaintiff's employer: a contractual indemnification theory (if the subcontract with the employer contains an indemnification clause) and a grave-injury third-party liability theory (if the injury qualifies under WCL § 11).
Both the standard impleader claim and the employer exception claim carry 90-day windows, but they may run from different start dates. The standard claim runs from the answer date. The employer exception claim runs from the later of the two triggering events described above.
In practice, counsel should consider whether to file the contractual impleader within 90 days of the answer and then address the grave-injury claim within the employer exception window, or to wait until both theories are available and file a single comprehensive third-party complaint. The risk of waiting is that the 90-day window from answer may close before the grave injury analysis is complete, eliminating the contractual theory.
Practical steps for defendants with potential grave-injury exposure
Given the complexity of the employer exception and the consequences of missing any applicable deadline, defendants in cases with potentially catastrophic injuries should take the following steps from the beginning of the litigation.
Step one: assess injury severity immediately. On receipt of the complaint, flag any case where the plaintiff alleges severe or permanent injuries. Do not wait for medical records to arrive. Flag it based on the complaint's description alone and immediately calendar a review for medical documentation.
Step two: identify all employers in the chain. Obtain the project's certified payroll records, subcontractor lists, and any staffing agency agreements. The plaintiff's employer may not be the subcontractor listed in the prime contract. In cases involving temporary workers, the employer is often the staffing agency rather than the entity that directed the work.
Step three: obtain medical records and expert review. Once records are available, have counsel and a medical expert review them against the WCL § 11 definition. Document the date this review is completed, because it may be the triggering event that starts the 90-day employer exception clock.
Step four: calendar both deadlines separately. Track the standard 90-day deadline from the answer date and the employer exception 90-day deadline from the later triggering event. These will expire on different dates if the triggering events postdate the answer, and both need independent monitoring.
For construction cases generally, the AVOID Act's impact on how Labor Law claims are defended is significant. How the AVOID Act reshapes construction litigation provides a broader look at what the statute means for the construction sector.
The note-of-issue rule and the employer exception
Even the employer exception does not override the note-of-issue provision. Under CPLR § 1007(c), no third-party summons and complaint may be filed after the filing of a note of issue unless upon good cause shown or in the interest of justice. If the note of issue has been filed before the employer exception clock has run, a court order is required, and the defendant must show good cause or that the filing is in the interest of justice.
In practice, this means that slow-developing grave injury cases, where the injury severity is not confirmed until late in the litigation, may find that the employer exception window and the note-of-issue provision are in tension. Counsel should be alert to this possibility and should not assume that the employer exception provides unlimited time to file.
Use the deadline calculator to track the employer exception clock and the standard deadlines for any specific matter. The compliance checklist includes guidance on building the internal processes that support timely identification of potential grave injury exposure across an active litigation portfolio.