Roseboro v. New York City Transit Authority

Judgment, Supreme Court, New York County (Paula Omansky, J.), entered August 31, 1999, which awarded plaintiff-respondent Lydia Roseboro the amount of $788,822.96 and Sandra Roseboro, her daughter, the amount of $10,401, for the personal injury and wrongful death of Leandrow Roseboro, reversed, on the law, without costs, judgment vacated, and the matter remanded for a new trial on apportionment only. Plaintiffs decedent was struck by a subway train as it approached the 116th Street station in Manhattan. Mr. Roseboro had descended onto the tracks in an attempt to evade an assault by three men who were subjecting him to a beating. The assailants were apprehended and convicted of felony murder in connection with the attack. In this action seeking damages for wrongful death and for personal injury, the jury found that the failure of defendant’s token booth clerk to summon assistance was a substantial contributing factor to the injury and death. However, the jury found no negligence on the part of defendant’s motorman. The amount awarded includes $500,000 for decedent’s pain and suffering. Defendant appeals from a ruling made at the start of trial, which granted plaintiffs motion in limine to bar apportionment pursuant to CPLR article 16. Supreme Court held that where the cause of action is simple negligence, a defendant tortfeasor is not entitled to apportionment based upon the conduct of a nonparty intentional tortfeasor. CPLR article 16 is normally applicable in tort actions, with certain specified exceptions. It abrogates the common-law doctrine of joint and several liability by limiting an individual tortfeasor’s liability for “non-economic loss” (CPLR 1600) to the extent of that tortfeasor’s relative culpability (CPLR 1601). Under the statutory scheme, apportionment for non-economic loss is presumptively available to a defendant, whose only-obligation is to establish that his equitable share of the total liability is no more than 50% so as to fall within the ambit of the provision (CPLR 1603). To invoke a limitation on the applicability of CPLR article 16, a plaintiff is required to “allege and prove by a preponderance of the evidence that one or more of the exemptions” stated in CPLR 1601 (1) or 1602 applies to the action (CPLR 1603). [223] The necessity to “allege” a ground for exemption is construed as a pleading requirement, to be asserted in the complaint or in an amendment to the complaint. As the Court of Appeals has made clear, “a party asserting an exception to article 16 has the affirmative obligation of pleading and proving that exception by a preponderance of the evidence (CPLR 1603)” (Cole v Mandell Food Stores, 93 NY2d 34, 38-39 [emphasis added]). As the Court noted, “Implicit in this requirement is that a defendant potentially subject to the weight of a full judgment must have appropriate notice provided by pleadings” (supra, at 40). The complaint in this matter alleges only in the most general manner: “That this action falls into one or more of the exceptions set forth in C.P.L.R. Article 16.” At no time did plaintiff move to amend the pleadings to state the statutory basis for limiting application of the article. Only in the course of arguing her motion in limine did plaintiff indicate that the basis for asserting an exception was this Court’s decision in Pantages v L.G. Airport Hotel Assocs. (187 AD2d 273 [CPLR 1602 (5)]; cf., Siler v 146 Montague Assocs., 228 AD2d 33 [2d Dept], appeal dismissed 90 NY2d 927). As the Court of Appeals noted in Cole (supra, at 39), leave to amend the pleadings is liberally granted “at various points throughout an action in order to comply with CPLR 1603”; however, plaintiff’s application at the start of trial did not afford defendant sufficient “notice of such assertion so that it could prepare its defense or adjust its trial strategy. Failure to provide such notice cannot be deemed harmless” (id., at 40). It is not in keeping with either the obligation to plead that “one or more of the exemptions * * * applies” (CPLR 1603) or with the language of Cole to permit a plaintiff to make a non-specific reference to article 16 in the complaint and then unfairly surprise the defendant with the particular exception relied upon at the commencement of trial. Having failed to adequately plead the issue, plaintiff has waived the limitation on apportionment of non-economic injury. A new trial is required to determine the extent of the liability of the nonparty intentional tortfeasors (Rangolan v County of Nassau, 96 NY2d 42). Were we to reach the merits, we would hold that Supreme Court erred in failing to deliver an apportionment charge with respect to non-economic damages. It is plaintiffs position that apportionment pursuant to CPLR article 16 is unavailable against nonparty intentional tortfeasors. However, no such exemption is provided in the statute, and the Court of Appeals [224] has applied the maxim “expressio unius est exclusio alterius” to preclude any basis for exemption not expressly mandated by the Legislature (Morales v County of Nassau, 94 NY2d 218, 224). Plaintiff’s assertion that CPLR article 16 precludes apportionment is without merit. CPLR 1602 provides that the limitation of a defendant’s share of non-economic damages to the extent of its own culpability does “not apply to actions requiring proof of intent” (CPLR 1602 [5]). However, as Supreme Court recognized, the action prosecuted by plaintiff against the New York City Transit Authority is for negligence only. There is no suggestion that defendant’s conduct was willful, and plaintiff has instituted no action against any of the assailants convicted for the felony murder of plaintiff’s decedent. The exclusion, by its terms, is applicable to “actions” prosecuted against intentional tortfeasors and cannot, by implication, be extended to nonparties. If any blanket exclusion from apportionment for the acts of nonparty assailants were recognized, it would have found obvious application under the facts of Rangolan v County of Nassau (supra). In that action, the United States District Court for the Eastern District of New York granted judgment to plaintiff as a matter of law for injuries sustained while incarcerated at the Nassau County jail at the hands of Steven King, a fellow inmate (217 F3d 77, 79). The County had actual notice that the plaintiff had given information against King to police, and plaintiff’s records explicitly stated that he was to be housed apart from King (96 NY2d, supra, at 45). Certifying a question to the New York Court of Appeals, the Second Circuit Court of Appeals broadly posited (at 46) “ ‘whether a tortfeasor such as the County can, in the facts and circumstances of this case, seek to apportion its liability with another tortfeasor such as King pursuant to N. Y. C.P.L.R. 1601, or whether N. Y. C.P.L.R. 1602 (2) (iv) precludes such a defendant from seeking apportionment’ ” (quoting 217 F3d, supra, at 81). The Court of Appeals stated: “We answer the first part of the question in the affirmative, and thus [sic] the second part in the negative,” holding that there is no statutory exclusion for a defendant whose duty is “non-delegable” (96 NY2d, supra, at 46; see, CPLR 1602 [2] [iv]). It has been prominently noted that CPLR article 16 “was the product of a painstaking balance of interests” (Morales, supra, at 224), and that extension of the stated exemptions to article 16 “would upset this careful balance struck by the Legislature” (supra, at 225). As the Court of Appeals stated in Rangolan v [225] County of Nassau (supra, at 48), “municipalities, landowners and employers, who often owe a non-delegable duty or are vicariously liable for their agents’ actions * * * are precisely the entities that article 16 was designed to protect.” Concur— Sullivan, P. J., Tom and Rubin, JJ.