Relates to the apportionment of liability for non-economic loss in personal injury actions

This measure would amend CPLR §§1601, 1603 and 3018(b) to (1) correct an anomaly that arises from the current wording of CPLR § 1601, and (2) resolve a continuing disagreement between the Appellate Divisions concerning whether a plaintiff is entitled to discover what claims, if any, the defendant intends to make at trial concerning the culpability of non-parties.

CPLR Article 16

Both of the proposed changes concern the workings of CPLR Article 16.

Article 16, which was enacted in 1986 and applies solely to personal injury actions, provides that, except in those instances detailed in CPLR § 1602, a defendant who is assigned "fifty percent or less of the total liability" can limit his or her liability to that percentage share of the plaintiff's non-economic loss. Thus, a defendant assigned 30% of the fault is responsible for only 30% of plaintiff's pain and suffering damages, but is still jointly and severally responsible for the plaintiff's economic loss.

Prior to the article's enactment, a joint tortfeasor was responsible to the plaintiff for the entire judgment, regardless of its share of the fault. Rangolan v County of Nassau, 96 N.Y.2d 42,46,725 N.Y.S.2d 611,614-615 (2001). Although the tortfeasor might then seek contribution or indemnification from any others who contributed to causing the plaintiffs injury, such right could well be academic in the event that the others were bankrupt, judgment-proof, or were otherwise not subject to liability.

The statute was intended to modify the common law so as to assure that a defendant assigned a minor share of the fault would bear that same share of the liability for the plaintiffs non-economic loss. Rangolan, supra.

Correction of the Anomaly Concerning The Plaintiff's Own Culpability

The proposed amendment of CPLR § 1601 would correct an anomaly that may occur when the plaintiff is found partially at fault for the subject injuries.

As Justice Mark C. Dillon recently noted in the Albany Law Review (73 Alb.L.Rev. 79 [2009]), there is an instance in which a defendant

assigned 50% or less of the total culpability can nonetheless derive no benefit under CPLR § 1601.

As presently worded, the benefits of CPLR § 1601 go to a defendant who is assigned "fifty percent or less of the total liability assigned to all persons liable." While that may seem a long-winded way of saying "fifty percent or less of the total culpability," it is not. The difference arises when one of the culpable persons is the plaintiff.

Since the plaintiff is not "liable" for his or her own injury and is therefore not a "person liable," the plaintiffs culpability will not "count" for purposes of the statutory computation. This leads to the bizarre result that the defendant's tights could be reduced by virtue of the plaintiffs negligence.

If, for example, plaintiff is assigned 60% of the fault while defendants Smith and Jones are respectively assigned 30% and 10% of the fault, Smith's share of the "total culpability" is 30% but his or her share of the "total liability assigned to all persons liable" is 75%. Smith is thus wholly denied any benefits of Article 16 simply because the 60% share of the fault was assigned to the plaintiff rather than to another defendant or a non-party.

The problem noted by Justice Dillon is not merely theoretical. Those decisions that have addressed the issue have held that the "fifty percent or less" tortfeasor obtains no benefit under the statute in the circumstance in which it is the plaintiff s culpability that keeps the defendant below the 51 % mark. Risk.o v Alliance Builders Corp., 40 A.D.3d 345 (1st Dep't 2007); Robinson v June, 167 Misc.2d 483 (Sup. Ct. Tompkins Co. 1996).

We believe that the Legislature could not have intended the consequences noted above, and, in any event, that apportionment in terms of "culpability" rather than "liability" would better effectuate the policies that the Legislature sought to promote. On the advice of our Advisory Committee, we recommend that the statute be amended accordingly.

Amendment of CPLR § 1603 To Resolve The Marsala/Ryan Discovery Issue

The proposed amendments of CPLR §§ 1603 and 30 18(b) would not alter the defendant's current rights to limit liability under CPLR Article 16, but would resolve whether the plaintiff is entitled to notice and discovery concerning the claims that the defendant intends to advance at trial. The issue has been the subject of conflicting rulings by the Second and Fourth Departments of the Appellate Division.

In Ryan v Beavers, 170 A.D.2d 1045 (1991), the Fourth Department noted that, under the terms of CPLR § 1603, a defendant seeking to limit its liability under Article 16 bears the burden of proving that some other or others were also at fault in causing the subject injuries. For that reason, the Court ruled that the plaintiff was entitled to demand a bill of particulars specifying which persons were alleged to have negligently caused plaintiffs injury, and in what respects they were alleged to have acted negligently.

In Marsala v Weinraub, 208 A.D.2d 689 (1994), the majority of a divided Second Department panel reached the opposite conclusion. Noting that CPLR Article 16 did not characterize the claim to limit liability as an "affirmative defense," the majority ruled that it logically followed that the plaintiff was not entitled to demand any particulars regarding the claims that the defendant intended to assert at trial regarding Article 16 limitation of liability.

Since the ruling in Marsala more than a decade ago, the lower courts in the Second Department have, not surprisingly, continued to adhere to it. At the same time, the contrary ruling in Ryan remains good law in the Fourth Department. Neither the First Department nor the Third Department has addressed the issue. Nor is it likely that the Court of Appeals will ever pass on the matter inasmuch as discovery disputes rarely reach that Court. Meanwhile, courts in the First and Third Departments must struggle with conflicting precedents. Maria E. v 599 West Associates, 188 Misc.2d 119 (Sup. Ct. Bronx Co. 2001).

As a result of the ruling in Marsala, a plaintiff in the Second Department may not discover until the trial itself which non-parties are claimed to be responsible for the subject injuries or in what respect they are claimed to have negligently caused the injuries. When that information becomes evident during the trial itself, it may not be possible to depose witnesses or otherwise seek to conduct discovery regarding the merits of the allegations. Further, while it is possible that the issue concerning the non-party's alleged negligence was directly or indirectly referenced in a deposition, document, or expert disclosure notice, such will not necessarily have occurred and it is even possible that the non-party's very existence and role in causing the injury will be known only to the defendant.

We believe that the Marsala rule can result in the kind of "trial by ambush" that has long been deemed unacceptable in modem jurisprudence. Aside from the obvious problem with fairness, such practice can lead to situations in which a defense that would have failed if the operative facts were known instead succeeds.

This measure would alter CPLR 3018(b) to list the Article 16 defense along with other affirmative defenses. This would have the practical effect of statutorily codifying Ryan and rejecting Marsala.

Notably, the proposed amendments relate solely to limitation of liability arising under CPLR Article 16. As such, the amendments do not affect in any way the defendant's ability to defeat the claim entirely on the ground that it is not liable at all. The amendments are intended to confirm that the defendant has the burden of proof in establishing an Article 16 defense.

This measure would have no fiscal impact on the State. It would take effect on the first day of January next succeeding the date on which it shall become law and shall apply to all actions commenced on or after the effective date and to all pending actions in which trial has not yet commenced.

2011 Legislative History:

None. New proposal.