1 The DelliCarpini Law Firm Melville Law Center Old Country Road fax Melville, NY John M. DelliCarpini Christopher J. DelliCarpini (admitted in NY and DC) The Truth About CPLR Article 16 by Christopher J. DelliCarpini and John M. DelliCarpini Personal injury attorneys in New York routinely invoke CPLR Article 16, which can limit a defendant s liability when other tortfeasors contributed to the plaintiff s injury. Even experienced counsel, however, may hold misconceptions about what Article 16 actually requires in pleading and practice. These misconceptions can deny plaintiffs full recovery and force defendants to pay more than their equitable share of liability. Properly understood, though, Article 16 presents opportunities for both sides to ensure fair outcomes in complex cases. What Article 16 Says and Doesn t CPLR 1601 limits a personal injury defendant s liability for non-economic loss to its equitable share whenever its liability is found to be fifty percent or less of the total liability assigned to all persons liable. 1 Before Article 16 s passage in 1986, a plaintiff could hold any one defendant liable for the entire loss, regardless of how much other tortfeasors may have been responsible. 2 CPLR 1602 enumerates several circumstances that exempt a defendant from this limitation, such as non-delegable duties or the use of a motor vehicle. 3 Lastly, CPLR 1603 imposes two requirements. Any party seeking to limit its liability through Article 16 shall have the burden of proving by a preponderance of the evidence its equitable share of the total liability. Any party seeking to invoke CPLR 1602, however, must both allege and prove that any exemption applies. 1 CPLR 1601(1). Non-economic loss includes pain and suffering, mental anguish, and loss of consortium. See CPLR Morales v. County of Nassau, 94 N.Y.2d 218, 223 (1999). 3 CPLR 1602(6).
2 The DelliCarpini Law Firm 2 Article 16 s brevity leaves several questions unanswered. If a defendant bears the burden of proving its share of liability, then must Article 16 be pleaded as an affirmative defense? If so, then must a defendant serve a bill of particulars if demanded? Defendants commonly plead a boilerplate affirmative defense claiming the protection of Article 16 should it apply. They may not know of any other tortfeasors, but wish to limit their liability should the facts permit. Plaintiffs, eager to discover any other potential defendants, may then serve a demand for a bill of particulars on this affirmative defense. The defendant will then either reject the demand as palpably improper or merely promise to identify such persons if they ever become known. Either way, the whole process has done little to advance the case. Or if Article 16 need not be pleaded, then when and how may a defendant claim its benefit? And if plaintiffs must plead any CPLR 1602 exemptions, then how early in the ligation must they do so? For their part, Plaintiffs typically plead in the complaint any CPLR 1602 exemptions that at the outset appear to apply. But what if disclosure shows that other statutory exemptions apply? What if the plaintiff does not realize until after disclosure, or even during trial, than an exemption applies? Case law resolves many of these ambiguities and offers guidance to counsel, though likely not what most of us would expect. The Article 16 Affirmative Defense: Say No More In fact, defendants need never plead Article 16 as an affirmative defense. At least, not in the Second Department. In Marsala v. Weinraub the defendants alleged Article 16 in their respective answers. The plaintiff demanded particulars, and the defendants responded by stating merely that they expected the plaintiff s evidence to identify other tortfeasors. Unsatisfied, the plaintiff moved under CPLR 3042 to preclude the introduction of evidence of other tortfeasors. The trial court, finding the bills sufficiently particular, denied the motion. 4 The Second Department affirmed, holding that the defendants did not even have to plead Article 16 in the first place. On its face, CPLR 1601 automatically applies whenever the facts warrant. Therefore, the court held, A.D.2d 689, (2nd Dept. 1994)(Ritter, J., concurring).
3 The DelliCarpini Law Firm 3 the demand for a bill of particulars was palpably improper, meaning defendants could have ignored it without even moving for a protective order. 5 In a lengthy concurrence, Justice Ritter contended that CPLR 3018(b) required defendants to plead Article 16 as an affirmative defense which if not pleaded would be likely to take the adverse party by surprise or would raise issues of fact not appearing on the face of a prior pleading. 6 He concurred in the result, however, because he considered the bills of particulars sufficient. 7 Justice Ritter foresaw that under Marsala a defendant could as late as trial introduce another nonparty tortfeasor, possibly precluding the plaintiff s full recovery. In fact, in Rodi v. Landau the plaintiff faced exactly that fate. 8 In Rodi, a medical malpractice case, not until after plaintiff s expert testified did the defendant move in limine to introduce expert testimony blaming a nonparty radiologist. Following Marsala, the court held that the jury would be charged on Article 16: While plaintiffs may have been surprised... under the present state of the law, defendant is entitled to the benefit of the article 16 apportionment. 9 Only the Second Department has unambiguously and completely exempted defendants from pleading Article 16. The Fourth Department the only other department to address this issue holds to the contrary, requiring defendants to plead and particularize Article 16 like any other affirmative defense. 10 The First Department has not spoken on this issue, though at least one trial court has agreed that CPLR 3018 may require a defendant to plead Article 16 and provide particulars. 11 The Third Department has not spoken on this issue either, though it appears to have applied Article 16 on appeal to limit a defendant s liability Id. at Id. at Id. at Misc.2d 180 (Sup. Ct., Rockland Co. 1996). 9 Id. at Ryan v. Beavers, 170 A.D.2d 1045 (4 th Dept. 1991). 11 Maria E. v. 599 West Assocs., 188 Misc.2d 119 (Sup. Ct., Bronx Co. 2001). 12 See Cazsador v. Green Central School, 220 A.D.2d 862, 864 (3 rd Dept. 1995). The defendant had brought a third-party claim, in which the jury had apportioned liability among the two tortfeasors.
4 The DelliCarpini Law Firm 4 Pleading Article 16 Exemptions: Better Late than Never Parties seeking to assert a CPLR 1602 exemption must allege it, but by when must they do so? In Detrinca v. De Fillippo the First Department held that, with no time limit in Article 16, parties were as free to add a CPLR 1602 exemption as they are to otherwise amend pleadings under CPLR The Second Department has not addressed this issue, but one reported opinion from Brooklyn Supreme Court goes even further than Detrinca. In Rubinfeld v. City of New York the City raised Article 16 post-trial, and the plaintiff raised the non-delegable duty exemption. The plaintiff had never amended his pleading, but the court held that because the article 16 issues were extensively argued during trial, the plaintiff s complaint is hereby deemed to have been amended. 14 The appeals stage, however, appears to be too late to invoke a CPLR 1602 exemption for the first time. In Cole v. Mandell Food Stores, the Court of Appeals held that implicit in CPLR 1603 s allege and prove requirement is that a defendant potentially subject to the weight of a full judgment must have appropriate notice provided by pleadings, therefore the defendants were prejudiced by the plaintiff introducing an exemption on appeal. 15 Article 16 and Summary Judgment What if a co-defendant prevails on a motion for summary judgment under CPLR 3212? Can the remaining defendants still use Article 16 to reduce their own liability by that former defendant s share? After Drooker v. South Nassau Communities Hospital, it appears that they cannot: Inasmuch as a motion for summary judgment is the functional equivalent of a trial and the remaining defendants failed to satisfy the evidentiary burden that shifted upon the movant's prima facie showing, the opportunity to limit liability under article 16 with respect to the movant's acts or omissions has been forfeited. 16 A motion to dismiss under CPLR 3211, however, is not the functional equivalent of a trial. So when two of the three defendants in Brash v. Richards had the complaint dismissed as against them, the remaining defendant was still able to argue for apportionment of liability among all three A.D.2d 505, 509 (1 st Dept. 1991) Misc.2d 868 (Sup. Ct., Kings Co. 1996) N.Y.2d 34, (1999) Misc.2d 181, 185 (Cup. Ct., Nassau Co. 1998)(citations omitted) Misc.3d 436, 446 (Sup. Ct., Kings Co. 2010).
5 The DelliCarpini Law Firm 5 Whether and When to Allege and Prove Given Marsala, there seems little reason for defendants in the Second Department to plead Article 16. Moreover, any defendant who does so would be hard pressed to argue, even with Marsala, that they need not offer particulars as they would for any other affirmative defense. In the Fourth Department, of course, defendants must plead Article 16. They probably should do so in the First and Third Departments as well, if only to comply with CPLR But defendants need not plead Article 16 before learning of other tortfeasors. Defendants are as free as plaintiffs to amend their pleadings under CPLR 3025, and as long as the other tortfeasors appeared in disclosure there can hardly be a claim of surprise. Whenever defendants plead Article 16, plaintiffs should serve a demand for a bill of particulars. Even if the demand is ultimately deemed palpably improper or met with a non-responsive response, plaintiffs might learn what other tortfeasors defendants know of at the outset of litigation. They will also have laid the groundwork for a subsequent argument under CPLR 3018 should the defendants late in the game introduce other tortfeasors. Plaintiffs and co-defendants, for that matter should also plead any applicable CPLR 1602 exemptions as soon as possible. In fact, there seems no reason for plaintiffs not to plead generally that Article 16 does not apply, just as defendants may generally allege an Article 16 affirmative defense. Should specific exemptions appear relevant though disclosure, parties can always seek leave to amend their pleadings. To be safe, one should try to raise all applicable exemptions by the pretrial conference. But one should not ignore an exemption found even later to apply. Depending on the possible prejudice to the defendant and the progress of disclosure and trial, a judge might let the exemption go to the jury. Of course, all parties should proactively seek out in disclosure any other tortfeasors. Both sides have an interest in bringing all responsible parties into the litigation, and full disclosure may weaken any subsequent argument of surprise. To proactively avoid surprise, parties should demand fuller expert witness disclosures under CPLR 3101(d). Perhaps one cannot preclude the possibility that a defendant, à la Rodi, will introduce a nonparty tortfeasor at the last minute. But the more that defendants are pressed for fuller expert disclosure, the more likely that experts will be precluded from going beyond the disclosure to blame others.
6 The DelliCarpini Law Firm 6 Lastly, neither plaintiffs nor defendants should neglect co-defendants motions for summary judgment. Should those co-defendants prevail, they will be immune from apportionment of liability under Article 16. The authors are principals of The DelliCarpini Law Firm with offices in Melville, representing plaintiffs in personal injury matters. Reprinted with permission, Nassau County Bar Association.
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