STATE OF NEW YORK
       ________________________________________________________________________
 
                                         3533
 
                              2001-2002 Regular Sessions
 
                    IN SENATE
 
                                    March 14, 2001
                                      ___________
 
       Introduced by Sen. VOLKER -- (at request of the Judiciary) -- read twice
         and ordered printed, and when printed to be committed to the Committee
         on Codes
 
       AN  ACT to amend the civil practice law and rules, in relation to plead-
         ing a defense premised upon article 16 of such law and rules
 
         The People of the State of New York, represented in Senate and  Assem-
       bly, do enact as follows:
 
    1    Section  1.  Section  1603  of  the  civil  practice law and rules, as
    2  amended by chapter 635 of the laws  of  1996,  is  amended  to  read  as
    3  follows:
    4    §  1603.  Burdens  of  proof.  In  any action or claim for damages for
    5  personal injury a party asserting that the limitations on liability  set
    6  forth  in  this article do not apply shall allege and prove by a prepon-
    7  derance of the evidence that one or more of the exemptions set forth  in
    8  subdivision  one  of  section  [sixteen  hundred  one]  1601  or section
    9  [sixteen hundred two] 1602 applies. A party asserting limited  liability
   10  pursuant  to  this article shall have the burden of alleging and proving
   11  by a preponderance of the evidence that its equitable share of the total
   12  liability is fifty percent or less of the total  liability  assigned  to
   13  all persons liable.
   14    §  2.  Subdivision  (b)  of section 3018 of the civil practice law and
   15  rules, as amended by chapter 504 of the laws of 1980, is amended to read
   16  as follows:
   17    (b) Affirmative defenses. A party shall plead all matters which if not
   18  pleaded would be likely to take the adverse party by surprise  or  would
   19  raise  issues of fact not appearing on the face of a prior pleading such
   20  as arbitration and award, collateral estoppel, culpable conduct  claimed
   21  in  diminution of damages as set forth in article fourteen-A, limitation
   22  of liability pursuant to article sixteen, discharge in bankruptcy, facts
   23  showing illegality either by statute or common law,  fraud,  infancy  or
   24  other disability of the party defending, payment, release, res judicata,
 
        EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                             [ ] is old law to be omitted.
                                                                  LBD09652-01-1

       S. 3533                             2
 
    1  statute  of  frauds,  or  statute of limitation. The application of this
    2  subdivision shall not be confined to the instances enumerated.
    3    §  3.  This  act  shall  take  effect on the first day of January next
    4  succeeding the date on which it shall have become a law and  shall  only
    5  apply to actions commenced on or after such date.

 
BILL NUMBER: S3533
 
SPONSOR: VOLKER

 
TITLE OF BILL:  An act to amend the civil practice law and rules, in
relation to pleading a defense premised upon article 16 of such law and
rules
 
This is one of a series of measures being introduced at the request of
the Chief Administrative Judge upon the recommendation of his Advisory
Committee on Civil Practice.
 
This measure would amend CPLR 1603 and 3018(b) to require that reliance
on Article 16 be pleaded as an affirmative defense.  Under CPLR Article
16, a defendant found liable to a plaintiff in an action for personal
injury, in certain circumstances, may reduce its liability for non-eco-
nomic loss by showing that its liability, if any, is fifty percent or
less of the total liability assigned to all persons liable.
 
The amendment of CPLR 3018(b) would create a new Article 16 affirmative
defense. It thus would join the analogous defense of comparative negli-
gence (i.e., reduction of liability by virtue of the plaintiff's own
contribution to the accident or occurrence). The primary consequence of
the amendment is that the plaintiff then would be entitled to receive in
advance a bill of particulars with respect to the Article 16 defense.
This would limit the risk of surprising the plaintiff at the trial with
new factual claims not asserted in any pleading. CPLR 1603 also would be
amended to the same effect.
 
Although CPLR 1603 currently places the burden of proving another's
culpability on the party asserting the claim, there is a split among the
departments of the Appellate Division whether a plaintiff is entitled to
receive a bill of particulars with respect to the limitation of liabil-
ity defense.
 
In Ryan v. Beavers, 170 A.D.2d 1045 (1991), the Fourth Department
concluded that plaintiffs are entitled to receive such a bill of partic-
ulars. The Court reasoned that it was "well settled that a party must
provide a bill of particulars on matters on which he bears the burden of
proof."
 
However, in Marsala v. Weinraub, 208 A.D.2d 689 (1994), a divided panel
of the Second Department reached the opposite conclusion.  It reasoned
that " 
since the respondents need not plead CPLR Article 16 as an affir-
mative defense, it follows that the respondents need not provide a bill
of particulars with regard to CPLR Article 16." Obviously, the Marsala
majority's premise, and therefore its conclusion as well, would be
altered with the proposed amendment.
 
In a concurring opinion in Marsala, Justice David S. Ritter argued that
CPLR Article 16 should be pleaded as an affirmative defense so as to
prevent unfair surprise. At the same time, Justice Ritter felt that a
defendant seeking the benefits of CPLR Article 16 should be entitled to
rely upon the factual claims pleaded and evidence adduced by the other
parties (including the plaintiff) in those instances in which the
defendant chose not to advance further claims or proof. In such cases,
the defendant's bill of particulars merely would advise the plaintiff of
such claim. Our Advisory Committee agrees with Justice Ritter's views,
and it is the Committee's intent that they be reflected in the amend-
ments proposed by this measure.
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,
but are not intended to require a defendant relying upon Article 16 to
particularize beyond what the defendant would have to prove at trial to
establish entitlement to an Article 16 setoff. The intent is to require
the defendant to provide the plaintiff with fair notice of whatever
factual claims the defendant intends to prove at trial.
 
This measure, which would have no fiscal impact on the State, would take
effect on January 1st next following the date on which it becomes a law,
and apply only to actions commenced on or after such date.
 
 
1995-96 LEGISLATIVE HISTORY:  Senate 6949 (Rules)  
Codes
 
Assembly 10529 (Rules, Weinstein)  
Rules
 
 
1997-98 LEGISLATIVE HISTORY:  Senate 5169 (Rules)  
Codes
 
Assembly 7838 (Rules, Weinstein)  
Passed Assembly
 
 
1999-00 LEGISLATIVE HISTORY:  Senate 3522 (Volker)  
Codes
 
Assembly 8534 (Rules, Weinstein)  
Codes