Opinion

Carol Artibee v. Home Place Corporation

  • 28 N.Y.3d 739
  • 71 N.E.3d 1205
Court
New York Court of Appeals
Filed
Feb 14, 2017
Status
Published
On the bench
Stein, Difiore, Fahey, Garcia, Abdus-Salaam, Rivera, Wilson
Cited by
19 cases
Authority
More cited than 3.4%

noting that claims for money damages against the State must be brought in the Court of Claims

How later courts described this case

  • noting that claims for money damages against the State must be brought in the Court of Claims

Written by the judges who cited it.

The opinion

This opinion is uncorrected and subject to revision before

publication in the New York Reports.

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No. 5

Carol Artibee et al.,

Appellants,

v.

Home Place Corporation,

Respondent.

Robert H. Coughlin, Jr., for appellants.

Thomas J. Johnson, for respondent.

Frederick A. Brodie, for amicus curiae State of New

York.

STEIN, J.:

This appeal presents us with the question of whether

the factfinder in Supreme Court may apportion fault to the State

under CPLR 1601 (1) when a plaintiff claims that both the State

and a private party are liable for noneconomic losses in a

personal injury action. We conclude that such apportionment is

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not permitted and, therefore, reverse.

I.

Plaintiff Carol Artibee and her spouse, derivatively,

commenced this action in Supreme Court, to recover for injuries

that plaintiff sustained while traveling on a state highway when

a large branch broke off a tree bordering the road, fell through

plaintiff's Jeep and struck her on the head. Defendant allegedly

owns the property on which the tree was located. The complaint

alleges that defendant was negligent in failing to inspect, trim

and remove the dead or diseased tree. Plaintiffs also filed a

claim against the State of New York in the Court of Claims,

alleging that Department of Transportation employees were

negligent in failing to monitor open and obvious hazards along

the state highway, properly maintain the trees, or warn drivers

of the hazard.

Defendant in this action moved for permission to

introduce evidence at trial of the State's negligence and for a

jury charge directing the apportionment of liability for

plaintiff's injuries between defendant and the State. Plaintiff

expressed her "position that nothing bars the Supreme Court jury

from hearing evidence at trial as to the State of New York's

potential liability for [plaintiff's] injuries," but objected to

allowing the jury to apportion fault against the State. Supreme

Court ruled that, while evidence of the State's negligence would

be admissible, the jury would not be instructed to apportion

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liability between defendant and the State. The court concluded,

based on the language of CPLR 1601, that the issue before it was

"whether the plaintiff's inability to join the State in the

Supreme Court action, because of the doctrine of sovereign

immunity, equates to the plaintiff's inability to obtain

jurisdiction over a non-party thereby limiting the applicability

of CPLR [a]rticle 16 apportionment." The court determined that

the language of the statute and equitable considerations required

denial of defendant's request for a jury instruction regarding

apportionment.

Thereafter, the court adjourned the trial to permit

defendant to appeal, reasoning that it had essentially granted

summary judgment dismissing defendant's claim for apportionment.

The Appellate Division modified by reversing the denial of

defendant's motion for a jury charge on apportionment (132 AD3d

96 [3d Dept 2015]). In holding that defendant was entitled to

have the jury consider apportionment against the State when

determining defendant's fault as a joint tortfeasor, the court

observed that, under CPLR 1601, "where potential tortfeasors are

not joined in an action, the culpability of a nonparty tortfeasor

may be imposed upon the named defendant [only] if the plaintiff

can show that he or she is unable to obtain jurisdiction over the

nonparty tortfeasor" (132 AD3d at 98). The court concluded that

plaintiffs here did "not face a jurisdictional limitation in

impleading the State as a codefendant, but instead [could not] do

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so due to the doctrine of sovereign immunity" (id.). The court

then explained that, "[g]iven the statutory purpose of CPLR 1601

(1) to 'limit[] a joint tortfeasor's liability for noneconomic

losses to its proportionate share, provided that it is 50% or

less at fault,' . . . juries . . . should be given the option to

. . . apportion fault between defendant and the State" (id. at

100, quoting Rangolan v County of Nassau, 96 NY2d 42, 46 [2001]).

A dissenting Justice agreed with the majority that evidence of

the State's wrongdoing is admissible, but expressed concern that,

"if we permit the requested charge and ask a jury (in the context

of the Supreme Court action) to apportion fault (if any) between

defendant, which will be present in the courtroom and which no

doubt will present a vigorous defense, and the State, which, as

the 'constitutionally mandated empty chair' in the courtroom, can

neither appear nor offer any defense, an unfair -- or, at the

very least, skewed -- result will occur" (132 AD3d at 101 [Egan,

Jr., J., dissenting]). The Third Department granted plaintiffs

leave to appeal, certifying the question of whether it erred in

its order of modification.

II.

CPLR 1601 (1) "modifie[d] the common-law rule of joint

and several liability by limiting a joint tortfeasor's liability

in certain circumstances" (Rangolan, 96 NY2d at 46). The statute

provides that, in a personal injury action involving two or more

jointly-liable tortfeasors or in a claim brought against the

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State in the Court of Claims, the liability for noneconomic loss

of a defendant with 50% or less "of the total liability assigned

to all persons liable . . . shall not exceed that defendant's

equitable share determined in accordance with the relative

culpability of each person causing or contributing to the total

liability for non-economic loss" (CPLR 1601 [1]). In other

words, under CPLR 1601, "a joint tortfeasor whose share of fault

is 50% or less [is] liable for [a] plaintiff's noneconomic loss

only to the extent of that tortfeasor's share of the total

noneconomic loss," so that "low-fault tortfeasors are liable only

for their actual assessed share of responsibility" (Chianese v

Meier, 98 NY2d 270, 275 [2002]). Apportionment against a

nonparty defendant is available under section 1601, unless "the

claimant proves that with due diligence he or she was unable to

obtain jurisdiction over" the nonparty defendant "in said action

(or in a claim against the state, in a court of this state)"

(CPLR 1601 [1]).

The statutory language permitting the State to seek

apportionment in the Court of Claims against a private defendant

if the claimant could have sued that defendant in any court of

this State was specifically requested by the office of the

Attorney General (see Mem of Dept of Law, Bill Jacket, L 1986, ch

682, at 14). Pursuant to that language, as long as a claimant in

the Court of Claims could have commenced an action against a

private tortfeasor in any court in the State of New York, then

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the tortfeasor's culpable conduct can be considered by the Court

of Claims in determining the State's equitable share of the total

liability (see Siegel, NY Prac § 168C, at 290 [5th ed 2011]).

The statute does not, however, contain similar, express enabling

language to allow apportionment against the state in a Supreme

Court action (see id. [acknowledging that such a rule has derived

from case law, rather than any "statute in point"]).

Plaintiffs, along with the State,1 argue that the

inclusion of unambiguous language permitting the Court of Claims

to consider the liability of a nonparty tortfeasor -- while, at

the same time, omitting language to allow the factfinder in

Supreme Court to consider the liability of the State --

demonstrates the Legislature's intent not to allow apportionment

of the State's liability in Supreme Court.2 Moreover, even apart

1

The State is not a party to this action, which originated

in Supreme Court, but it has submitted an amicus brief to protect

its interests in assuring that the procedures for litigating

claims against it are applied in a manner consistent with the

governing statutes. The State contends that, if apportionment is

permitted against it in Supreme Court, it would be prejudiced

because the parties do not adequately represent its interests --

with defendants seeking to show the State is entirely liable, and

plaintiff simultaneously suing the State in the Court of Claims.

The State concedes that any finding of culpability against it in

Supreme Court is not binding on the Court of Claims, but notes

that, as a practical matter, Court of Claims judges are

"attentive" to the reduction of a plaintiff's Supreme Court

verdict to account for the State's supposed negligence and are

less likely under those circumstances to accept the State's

argument that it is not liable at all.

2

We do not ignore the meaning of the word "or" in the

statute (see dissenting op, at 2-4), but recognize that the

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from the absence of language permitting apportionment against the

State in Supreme Court, CPLR 1601 (1) provides that a nonparty

tortfeasor's relative culpability must not be considered in

apportioning fault "if the claimant . . . with due diligence

. . . was unable to obtain jurisdiction over such person in said

action" (emphasis added). The meaning of that language is at the

heart of the dispute herein.

Of course, "[t]he primary consideration of courts in

interpreting a statute is to 'ascertain and give effect to the

intention of the Legislature' . .. [and] the words of the statute

are the best evidence of the Legislature's intent" (Riley v

County of Broome, 95 NY2d 455, 463 [2000], quoting McKinney's

Cons Laws of NY, Book 1, Statutes § 92 [a], at 177). Inasmuch as

no claimant can obtain jurisdiction over the State in Supreme

Court and the statute does not, by its terms, otherwise authorize

the apportionment of liability against the State in that court,

we agree with plaintiff that defendant was not entitled to a jury

charge on apportionment in this action.

III.

Initially, we reject any argument that plaintiff did

not face a jurisdictional limitation in impleading the State as a

codefendant in this action. Rather, the State Constitution and

disparate language in CPLR 1601 regarding "action[s]," on the one

hand, and "claim[s] against the state," on the other, has

disparate implications for private tortfeasors, as opposed to

state tortfeasors.

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our case law both indicate that the restriction on Supreme Court

imposed by the doctrine of sovereign immunity is jurisdictional

in nature. Specifically, we have explained that the New York

Constitution, article VI, § 9, which "preserv[es] the State's

historical sovereign immunity from suit," is a constitutional

limitation on "the jurisdiction of Supreme Court" (People v

Correa, 15 NY3d 213, 227 [2010] [emphasis added]; see Siegel, NY

Prac § 12, at 16 [5th ed 2011] [noting that "[t]here are two

broad categories of original jurisdiction that . . . [S]upreme

[C]ourt lacks: cases of which exclusive jurisdiction has been

conferred by Congress on the federal courts, and actions against

the state, where jurisdiction is conferred exclusively on the

[C]ourt of [C]laims"]). Article VI, § 9 states that the Court of

Claims "shall have jurisdiction to hear and determine claims

against the state or by the state against the claimant or between

conflicting claimants as the legislature may provide." As this

Court stated in Correa, "claims for money damages brought against

the State . . . must be initiated and tried in the Court of

Claims" and, thus, "Supreme Court cannot exercise jurisdiction

over [such] claims" (15 NY3d at 227-228 [emphasis added]) -- that

is, article VI, § 9 limits the jurisdiction of Supreme Court.3

3

Although this Court previously concluded in People ex rel.

Swift v Luce (204 NY 478 [1912]) that the doctrine of sovereign

immunity and the exclusive jurisdiction of the Court of Claims

did not amount to limitations on the jurisdiction of Supreme

Court, Swift was decided prior to the amendment to the New York

Constitution, effective January 1950, that created the Court of

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Because it concluded in this case that there is no

jurisdictional bar against suing the State in Supreme Court, the

Appellate Division did not consider defendant's argument that the

word "jurisdiction" in the statute refers to personal

jurisdiction, as opposed to subject matter jurisdiction. To be

sure, defendant's argument finds support in various commentaries

and lower court cases (see Brown v State of New York, 268 AD2d

548, 549 [2d Dept 2000]; Duffy v County of Chautauqua, 225 AD2d

261, 267 [4th Dept 1996], lv dismissed in part & denied in part

89 NY2d 980 [1997]; Rezucha v Garlock Mech. Packing Co., 159 Misc

2d 855, 860 [Sup Ct, Broome County 1993]; Siegel, NY Prac § 168C,

at 290 [5th ed 2011]; Vincent C. Alexander, Practice

Commentaries, McKinney's Cons Laws of NY, Book 7B CPLR C 1601:3).

The argument is not, however, supported by the language of the

statute, its legislative history, or its purpose.

Claims as a constitutional court of record (see Easley v New York

State Thruway Auth., 1 NY2d 374, 377 [1956]). At the time Swift

was decided, the "Court of Claims" was "only an auditing board

and a quasi-judicial body" (Swift, 204 NY at 486) -- i.e., it

"was one of a series of boards and tribunals set up successively

by various legislative acts to hear and audit various kinds of

claims against the state" (Easley, 1 NY2d at 377). Inasmuch as

legislative acts cannot deprive Supreme Court "of one particle of

its jurisdiction" (People v Correa, 15 NY3d 213, 229 [2010]

[internal quotation marks and citation omitted]), Swift was

correct at the time it was decided. However, as indicated above,

we have recognized, following the 1950 amendment of the State

Constitution, that the exclusive jurisdiction of the Court of

Claims is a constitutional limitation on the jurisdiction of

Supreme Court (see id. at 227-228).

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IV.

This Court has observed that "[j]urisdiction is a word

of elastic, diverse, and disparate meanings" (Lacks v Lacks, 41

NY2d 71, 74 [1976]). It can refer to both subject matter

jurisdiction, relating to "a court's competence to entertain an

action," as well as to the court's "power to render a judgment on

the merits," which does not relate to subject matter jurisdiction

(id. at 75). "[T]he rationale for the jurisdictional restriction

[in CPLR 1601] is that if a diligent claimant were able to sue

all tortfeasors but neglected to do so, then it would not be

unfair for the culpability of a nonparty to be considered even

though the claimant's recovery might not be as complete as that

provided by the common-law rule of joint and several liability"

(Rezucha, 159 Misc 2d at 860). As a practical matter, it makes

no difference to the parties what type of jurisdiction is absent

-- regardless of whether a defendant is not subject to long-arm

jurisdiction or Supreme Court lacks subject matter jurisdiction,

the "claimant [cannot] with due diligence . . . obtain

jurisdiction over such person in said action" (CPLR 1601 [1]).4

4

We do not overlook the context in which the term

"jurisdiction" is used, or the phrases "with due diligence" and

"over such person" (see dissenting op, at 6-8). Rather, we

recognize that the "due diligence" requirement leads to the same

result regardless of whether subject matter jurisdiction is

lacking or long-arm (i.e., personal) jurisdiction is lacking --

the claimant will not be able to obtain jurisdiction in either

instance. Furthermore, when the term "jurisdiction" is used in

reference to the State in the context of a personal injury action

-- the type of action to which CPLR 1601 applies -- subject

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To read the word "personal" into the statute, as

dissenters and defendant would have us do, results in an

interpretation broader than that required by the statutory

language itself, which simply uses "the catchall word

'jurisdiction'" (Lacks, 41 NY2d at 75). Because CPLR 1601 is a

statute in derogation of the common law, it must be strictly

construed (see e.g. Matter of New York City Asbestos Litig., 24

NY3d 275, 281 [2014]; McKinney's Cons Laws of NY, Book 1,

Statutes § 301, Comment). By its terms, the statute does not

specify that the inability to obtain jurisdiction must have a

particular cause. "If the legislature intended that the term

['jurisdiction'] mean only 'personal jurisdiction,' it could have

easily done so with the addition of that one word to the statute"

(Siegel & Connors, NY Prac § 168C, January 2017 Supplement, at

118; see Matter of Theroux v Reilly, 1 NY3d 232, 240 [2003]).

Moreover, interpreting the word "jurisdiction" as

limited to "personal jurisdiction" effectively renders

meaningless the phrase "in said action []or in a claim against

matter jurisdiction, not personal jurisdiction, is the primary

consideration. The statutory language directs us to consider

whether a claimant is able "with due diligence . . to obtain

jurisdiction over such person" in Supreme Court. When the

"person" is the State, the relevant question is whether Supreme

Court has subject matter jurisdiction. While Supreme Court

generally has subject matter jurisdiction over personal injury

actions, it lacks such subject matter jurisdiction when the

defendant is the State, as explained above (see Correa, 15 NY3d

at 227-228). Thus, there is, indeed, a "reason for the

legislature to be concerned with subject matter jurisdiction in

the context of a personal injury action" (dissenting op, at 7).

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the state" in CPLR 1601 (1). "[T]he inclusion of the [phrase]

. . . is a strong indication that the term 'jurisdiction'

encompasses both subject matter and personal jurisdiction"

(Siegel & Connors, NY Prac § 168C, January 2017 Supplement, at

118). On the other hand, if that phrase were eliminated, the

statute would prohibit apportionment only "if the claimant

prove[d] that with due diligence he or she was unable to obtain

jurisdiction over such person . . . in a court of this state"

(CPLR 1601 [1] [as modified to accommodate defendant's

argument]). Thus, if the statute had been so drafted,

apportionment would be unauthorized only if the claimant proved

that personal jurisdiction could not be obtained because the

defendant "is not a domiciliary of New York and no basis for

extraterritorial (i.e., longarm) jurisdiction is available

against [the defendant]" (Siegel, NY Prac § 168C, at 290 [5th ed

2011]). Inasmuch as a claimant can obtain jurisdiction over the

State in a court of this State -- the Court of Claims --

apportionment against the State in Supreme Court would be

permitted. However, judicially excising language to reach the

result that defendant urges would contravene the "'accepted rule

that all parts of a statute are intended to be given effect and

that a statutory construction which renders one part meaningless

should be avoided'" (Matter of Springer v Board of Educ. of the

City Sch. Dist. of the City of N.Y., 27 NY3d 102, 107 [2016],

quoting Rocovich v Consolidated Edison Co., 78 NY2d 509, 515

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[1991]).5

V.

Our reading of CPLR 1601 (1) further accords with the

legislative history and objective of the statute. The

legislative history is largely silent on the meaning of the word

"jurisdiction" in CPLR 1601 (1), although the Governor's Approval

Memorandum states that a defendant "will not be able to reduce

his or her share by any amount for which a third party is

responsible if jurisdiction cannot be obtained over such party"

(Governor's Mem approving L 1986, ch 682, 1986 McKinney's Session

Laws of NY, at 3183; see Mem of Dept of Law, Bill Jacket, L 1986,

5

There is no merit to defendant's argument that

interpreting jurisdiction to mean "subject matter jurisdiction"

would bar apportionment against tortfeasors who are absent from

the plaintiff's action in Supreme Court due to the exclusivity

provisions of the Workers' Compensation Law, thereby rendering

meaningless the second proviso of section 1601 (1) or section

1602 (4). Defendant's argument is based upon its assumption that

Supreme Court lacks subject matter jurisdiction over actions

against employers whose employees have received workers'

compensation benefits. However, "[w]ork[ers]' compensation is an

exclusive remedy as a matter of substantive law . . ., it is not

the kind of subject-matter jurisdiction deficiency which ousts a

court of competence to decide the case" (Murray v City of New

York, 43 NY2d 400, 407 [1977]). In any event, third-party

contribution claims can be brought by a defendant/third-party

plaintiff against an employer/third-party defendant when, among

other things, the plaintiff has suffered a grave injury; such

claims may be resolved in the same trial as the employee-

plaintiff's direct claims against the defendant, even though a

direct action by the plaintiff against the employer is barred by

the exclusivity provisions (see Workers' Compensation Law § 11;

see generally Dole v Dow Chem. Co., 30 NY2d 143, 152-153 [1972]).

In such a scenario, there would be a "claimant" within the

meaning of CPLR 1601 (1) (the defendant/third-party plaintiff)

who can "obtain jurisdiction over" the employer.

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ch 682, at 12). Again, "the catchall word 'jurisdiction'"

(Lacks, 41 NY2d at 75) is used in the Memoranda of the Governor

and Department of Law, with no indication that only personal

jurisdiction was considered.

The Legislative history does, however, more clearly

confirm that the statute reflects "careful deliberations over the

appropriate situations for a modified joint and several liability

rule" (Governor's Mem approving L 1986, ch 682, 1986 McKinney's

Session Laws of NY, at 3184; see Chianese, 98 NY2d at 275;

Rangolan, 96 NY2d at 49; Morales v County of Nassau, 94 NY2d 218,

224-225 [1999]). This Court has recognized that the statute "was

the product of a painstaking balance of interests . . .

includ[ing], among many others, the burdens to be imposed on

innocent plaintiffs as well as a concern that defendants at fault

to a small degree were consistently paying a disproportionate

share of damages awards, adversely affecting the availability and

affordability of liability insurance" (Morales, 94 NY2d at 225).

Given the assiduous balancing of interests that went into this

statute -- including the provision permitting apportionment in

the Court of Claims to benefit the State, at the State's request

(see Mem of Dept of Law, Bill Jacket, L 1986, ch 682, at 14)6 --

6

Defendant argues -- and the dissent agrees -- that,

because the Department of Law's Memorandum referred to this

provision as a "technical change[] . . . made to ensure that the

State can take advantage of the modifications in joint and

several liability" (Mem of Dept of Law, Bill Jacket, L 1986, ch

682, at 14), the State should be viewed merely as being on the

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we decline to recognize the availability of apportionment where

the statute does not expressly permit it.

The legislative history further confirms that a strict

construction of the statute is consistent with the Legislature's

purpose in enacting it. While the statute was intended to

"'remedy the inequities created by joint and several liability on

low-fault, deep pocket defendants'" (Chianese, 98 NY2d at 275,

quoting Rangolan, 96 NY2d at 46), the driving purpose behind that

intent was to alleviate a liability insurance crisis (see

Morales, 94 NY2d at 225; Mem of Dept of Law, Bill Jacket, L 1986,

ch 682, at 13-14). The modifications to joint and several

liability arose out of the recommendations of the Governor's

Advisory Commission, chaired by former Court of Appeals Judge

Hugh R. Jones (see Governor's Mem approving L 1986, ch 682, 1986

McKinney's Session Laws of NY, at 3183-3184; see also Rangolan,

96 NY2d at 46).

The Commission opined that amendment of the common-law

same footing as other defendants to which the statute applies,

rather than enjoying any special status. Defendant and the

dissenters note that the Memorandum does not reference any

request for special status for the State pursuant to which

apportionment would not be allowed in Supreme Court. However,

the absence of any such request can be explained by the fact that

no further request would be necessary to ensure that the State

enjoys a "special status." The language of the statute, on its

face, prohibits apportionment against the State in Supreme Court

because a claimant cannot "obtain jurisdiction" over the State in

that court. The lack of jurisdiction, which gives the State its

"special status" under the statute, is simply a function of

sovereign immunity.

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joint and several liability rule -- which developed in the

contributory negligence regime -- had become necessary as a

result of New York's 1975 replacement of the rule of contributory

negligence with the comparative fault concept (see Insuring Our

Future, Report of Governor's Advisory Commission on Liability

Insurance, at 130 [Apr. 7, 1986]). "[T]he expansions of

liability created by [the] contemporary doctrine . . . create[d]

insurance prices that [were] greater than even institutional

insureds [could] bear" (id. at 125), but the courts were "blind

. . . to the health of the risk-spreading mechanism that American

society . . . developed to assure that compensation is in fact

available for those who are entitled to receive it" (id. at 127-

128). The Commission noted that "the ends of justice are

subverted when insurance is unavailable at an affordable price"

(id. at 128), and concluded that the switch from contributory

negligence to comparative fault rules exacerbated the problem by

removing the disincentive for plaintiffs to sue "defendants whose

minor degrees of fault might dramatize the fact that the

plaintiff's fault was at least as great" (id. at 130). That led

to defendants who were "adjudged to have a small percentage share

of fault, but wound up paying all . . . of a large money judgment

because no reimbursement was forthcoming from co-defendants"

(id. at 130-131). The right of contribution under the old joint

and several liability rule was "cold comfort" to deep-pocket

defendants and their insurers "when the other tortfeasors [were]

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insolvent or nearly so" (Alexander, Practice Commentaries,

McKinney's Cons Laws of NY, Book 7B, CPLR C1601:1).

The State, however, is not insolvent and, if a

defendant believes that it has been held liable in Supreme Court

for what is actually the State's negligent conduct, the defendant

can sue the State for contribution in the Court of Claims (see

Bay Ridge Air Rights v State of New York, 44 NY2d 49, 54 [1978]).

Indeed, a strict construction of the statute does not deprive a

tortfeasor of the opportunity to prove that it is a low-liability

defendant because it may do so in the Court of Claims. In that

regard, even defendant acknowledges that the risk of potential

prejudice to such a defendant with an absent bankrupt tortfeasor

-- who is subject to apportionment in Supreme Court -- is far

greater than the risk present when the State is the alleged joint

tortfeasor because "[t]he State will always have sufficient

resources to satisfy whatever judgment" is obtained against it.

True, our interpretation of the statute places on defendants,

rather than "on innocent plaintiffs" (Morales, 94 NY2d at 225),

the burden of having to seek recovery against the State in the

Court of Claims.7 However, that burden is not nearly of the same

7

Where, as here, the plaintiff is also suing the State in

the Court of Claims, our interpretation of the statute as placing

the burden on a private defendant to seek contribution from the

State following an adverse verdict in Supreme Court facilitates

the achievement of a fair result for both plaintiffs and

defendants because it provides an incentive for all parties --

including both private and state tortfeasors -- to appear in, and

develop a full record before, a single court.

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order of magnitude as the burden that CPLR 1601 was intended to

remedy -- forcing deep pocket defendants to pursue contribution

from insolvent tortfeasors who were assessed a much greater

portion of liability. Given that a strict construction of the

statute does not "result in the very inequity the Legislature

sought to eliminate" (Chianese, 98 NY2d at 278) and, in fact,

promotes equity, we apply the statute as it is written.

Plaintiff's remaining arguments are unpreserved.

Accordingly, the order of the Appellate Division should

be modified, without costs, by denying the motion of defendant

Home Place Corporation insofar as it sought a jury charge on

apportionment of liability of the State of New York pursuant to

CPLR 1601 and, as so modified, affirmed, and the certified

question answered in the affirmative.

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Artibee v Home Place

No. 5

ABDUS-SALAAM, J.(dissenting):

The majority's interpretation of CPLR 1601 is a

strained reading of the statutory language and contravenes the

legislative goal of limiting the liability of any and all

tortfeasors who are responsible for 50% or less of the total

liability. The majority's analysis gives the State a preferred

status over other tortfeasors, despite no indication that the

legislature intended such a result, and notwithstanding that the

plain reading of the text indicates the legislature simply wanted

to create parallel rights of apportionment for state tortfeasors

and non-state tortfeasors. Furthermore, the majority's holding

creates anomalous situations that I do not believe were intended

by the legislature: 1) a defendant in Supreme Court cannot shift

liability to the non-party State, but a State defendant in the

Court of Claims can shift liability to a private party; and 2) a

plaintiff in the Court of Claims will face apportionment with the

State pointing to an empty chair, but a plaintiff in the Supreme

Court will not face apportionment where the empty chair is the

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State. Accordingly, I respectfully dissent, and would affirm the

Appellate Division's order.

CPLR article 16 was promulgated as a modification of

the common-law theory of joint and several liability, the purpose

of which was "to remedy the inequities created by joint and

several liability on low-fault, 'deep pocket' defendants"

(Rangolan v County of Nassau, 96 NY2d 42, 46 [2001]). As we

noted in Rangolan, the statute was especially intended to benefit

governmental entities such as municipalities (e.g., the defendant

State, in plaintiffs' Court of Claims action) and landowners

(e.g., the defendant Home Place, in plaintiffs' Supreme Court

action)(see Rangolan at 48, citing the report issued by the

Governor's Advisory Commission on Liability Insurance, chaired by

former Court of Appeals Judge Hugh R. Jones, referenced in the

majority opinion at 15).

In resolving this appeal, we are guided by the

established principle that "the statutory text is the clearest

indicator of legislative purpose" (Matter of M.B., 6 NY3d 437,

447 [2006]). In my view, the majority's analysis of the text,

while appropriately focused on the word "jurisdiction," ignores

the meaning of the word "or," and fails to adequately weigh the

significance of the phrases "due diligence" and "over such

person."

The first general provision of CPLR 1601 states:

"Notwithstanding any other provision of law, when a verdict or a

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decision in an action or claim for personal injury is determined

in favor of a claimant in an action involving two or more

tortfeasors jointly liable or in a claim against the State and

the liability of a defendant is found to be fifty percent or less

of the total liability assigned to all persons liable, the

liability of such defendant to the claimant for non-economic loss

shall not exceed the defendant’s equitable share determined in

accordance with the relative culpability of each person causing

or contributing to the total liability for non-economic loss"

(emphasis added).

The general provision, by its use of the term "or" in

referring to an action involving two or more tortfeasors jointly

liable or in a claim against the State, indicates that the

legislature intended to address alternative situations (see

Statutes, § 235, Comment ["Use of the conjunction 'or' in a

statute usually indicates that the language is to be construed in

an alternative sense;" see also McSweeney v Bazinet, 269 AD 213,

216 [3rd Dept 1945], affd 295 NY 797 [1946]; Merriam-Webster's

New Collegiate Dictionary [9th ed 1986]["or" is "used as a

function word to indicate an alternative <coffee or tea> <sink or

swim>, the equivalent or substitutive character of two words or

phrases"]). Thus, the general provision applies alternatively --

equivalently, to state tortfeasors or non-state tortfeasors. In

other words, whether in Supreme Court or the Court of Claims, in

a personal injury action involving jointly liable tortfeasors,

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- 4 - No. 5

where the liability of a tortfeasor is found to be fifty percent

or less of the total liability, that tortfeasor's monetary share

of the damages may not be greater than the share of liability

assigned to that tortfeasor.

The statute's application to either state tortfeasors

or non-state tortfeasors is again addressed in the first proviso,

which states: "provided, however that the culpable conduct of any

person not a party to the action shall not be considered in

determining any equitable share herein if the claimant proves

that with due diligence he or she was unable to obtain

jurisdiction over such person in said action (or in a claim

against the state, in a court of this state)" (CPLR 1601).

Again, the use of the word "or," which the majority does not

address, demonstrates that the legislature was indicating

alternative, equivalent situations -- non-state tortfeasors as

well as state tortfeasors. The parenthetical language was a

technical change, "made to ensure that the State can take

advantage of the modifications in joint and several liability

contained in the statute" (Mem of Dept of Law, Bill Jacket, L

1986, ch 682, at 14). There is no indication in the legislative

history that the legislature intended that the State be given

special status under CPLR 1601. The State has waived its

sovereign immunity and an action seeking damages for personal

injury may be commenced against the State in the Court of Claims

(see Court of Claims Act § 8).

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Furthermore, if the legislature had actually wanted to

preclude a private tortfeasor from seeking apportionment against

the State in Supreme Court, in contravention of the overall

purpose of CPLR 1601 which is to limit the liability of low-fault

tortfeasors to only their actual share of responsibility (see

Chianese v Meier, 98 NY2d 270, 275 [2002]), it could have simply

specified that a joint tortfeasor cannot seek apportionment

against the State. It is unlikely that the legislature would

carve out such an important exclusion without express language

indicating its intent. Yet, the majority concludes that the

apportionment rule, vis-4a-vis state tortfeasors, is the polar

opposite in Supreme Court than it is in the Court of Claims.

The majority points out that the statute "was the

product of a painstaking balance of interests . . . includ[ing]

among others, the burden to be imposed on innocent plaintiffs"

(majority op, at 13, 16, quoting from Morales v County of Nassau,

94 NY2d 218, 224-224 [1999]). But the majority does not explain

why the legislature would treat "innocent plaintiffs" less

favorably in the Court of Claims than in Supreme Court. And yet,

that is a consequence of the majority opinion, because it exposes

a plaintiff in the Court of Claims to apportionment,1 but does

not similarly disadvantage a plaintiff in Supreme Court when the

non-party tortfeasor is the State. The legislature has evinced

1

As noted in the majority opinion, any apportionment

determination in one court is not binding on the other court

(majority op, at 6, n 1).

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- 6 - No. 5

no intention of exposing plaintiffs suing the State in the Court

of Claims to the apportionment of damages, while permitting

plaintiffs in Supreme Court to escape that outcome.2

Furthermore, while the majority correctly recognizes

that "jurisdiction" "is a word of elastic diverse and disparate

meanings" (majority op, at 9-10, quoting Lacks v Lacks, 41 NY2d

71, 74 [1976]], the majority veers off course when it applies the

broadest possible interpretation of that term, without giving due

weight to the context in which it is used. I do not quarrel with

the majority's point that in CPLR 1601, the legislature did not

expressly specify whether it was referring to personal or subject

matter jurisdiction. However, I disagree with the conclusion

that because the legislature did not so specify, it must have

been referring to either personal or subject matter jurisdiction.

The statute's requirement that the plaintiff exercise due

diligence to obtain jurisdiction over a tortfeasor cannot

possibly refer to a court's subject matter jurisdiction, where

the plaintiff's due diligence has no bearing because a plaintiff

can do nothing to affect a court's subject matter jurisdiction

over the parties' claims. Instead, the phrase "due diligence"

2

I acknowledge that because a plaintiff cannot commence a

personal injury action against a private tortfeasor in the Court

of Claims, and cannot bring a personal injury action against the

State in Supreme Court, the empty chair element of apportionment

can result in an outcome that does not fully compensate a

plaintiff. However, that is fundamentally rooted in the division

of our court system, and not in this statute.

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- 7 - No. 5

only makes sense in relation to personal jurisdiction, where a

plaintiff may or may not exercise due diligence (see generally

CPLR 308). Similarly, the phrase "over such person" makes sense

when "jurisdiction" is read as "personal jurisdiction," as the

phrase is meaningless in the context of subject matter

jurisdiction, which refers to the authority of a court to hear

particular claims. Hence, the reference to jurisdiction in the

statute logically refers only to personal jurisdiction.

Moreover, that the legislature did not specify personal

or subject matter jurisdiction cannot simply be discounted as

imprecise drafting. The Supreme Court always has subject matter

jurisdiction over personal injury actions (other than those

interposed against the State), although it might not always have

personal jurisdiction. There would be no reason for the

legislature to be concerned with subject matter jurisdiction in

the context of a personal injury action, such as this case.

Consequently, in enacting CPLR 1601, the legislature must have

sought to address situations in which a party cannot obtain

jurisdiction "over such person."

As noted by the majority, the conclusion reached by

most courts and legal scholars that have considered the meaning

of the term "jurisdiction" in the context of this statute is that

personal jurisdiction, not subject matter jurisdiction, is the

focus of the statute (see majority op, at 9). In reaching the

opposite conclusion, the majority's analysis ignores the context

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- 8 - No. 5

in which the term is used, and the descriptive phrases of "due

diligence," and "over such person," which clearly only apply to

personal jurisdiction.

In sum, given the purpose of CPLR 1601, which is to

limit the liability of "low-fault, 'deep pocket' defendants"

(Rangolan at 46 [2001]), there is no reason why the State should

be permitted to demonstrate the culpability of non-parties in the

Court of Claims but defendants in Supreme Court should not have

the parallel right to demonstrate the State's culpability.

Contrary to the majority's conclusion, the language of the

statute does not require this disparate treatment of state

tortfeasors and private tortfeasors, but instead, calls for

comparable treatment. The majority's construction of the statute

does not promote equity (see majority op, at 17); it promotes

inequity, by elevating the rights of plaintiffs in Supreme Court

over those of plaintiffs in the Court of Claims, and the rights

of state tortfeasors in the Court of Claims over those of private

tortfeasors in Supreme Court.

* * * * * * * * * * * * * * * * *

Order modified, without costs, by denying the motion of defendant

Home Place Corporation insofar as it sought a jury charge on

apportionment of liability of the State of New York pursuant to

CPLR 1601, and, as so modified, affirmed, and certified question

answered in the affirmative. Opinion by Judge Stein. Chief

Judge DiFiore and Judges Fahey and Garcia concur. Judge

Abdus-Salaam dissents and votes to affirm in an opinion in which

Judge Rivera concurs. Judge Wilson took no part.

Decided February 14, 2017

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This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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