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Artibee v. Home Place Corp.

New York Court of Appeals

February 14, 2017

Carol Artibee et al., Appellants,
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 not permitted and, therefore, reverse.


         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 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 A.D.3d 96');">132 A.D.3d 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 A.D.3d 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 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 N.Y.2d 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 A.D.3d 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.


         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 N.Y.2d 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 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 N.Y.2d 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 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 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 N.Y.2d 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.


         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 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 N.Y.3d 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 N.Y.3d at 227-228 [emphasis added]) - that is, article VI, § 9 limits the jurisdiction of Supreme Court. [3]

         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 A.D.2d 548, 549 [2d Dept 2000]; Duffy v County of Chautauqua, 225 A.D.2d 261, 267 [4th Dept 1996], lv dismissed in part & denied in part89 N.Y.2d 980');">89 N.Y.2d 980 [1997]; Rezucha v Garlock Mech. Packing Co., 159 Misc.2d 855, 860 [Sup Ct, Broome County 1993]; Siegel, NY Prac ยง 168C, at 290 [5th ed 2011]; Vincent C. Alexander, ...

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