STATE OF NEW YORK
        ________________________________________________________________________
 
                                          5197
 
                               2003-2004 Regular Sessions
 
                    IN SENATE
 
                                      May 22, 2003
                                       ___________
 
        Introduced by Sen. VOLKER -- (at request of the Judiciary) -- read twice
          and ordered printed, and when printed to be committed to the Committee
          on Rules
 
        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 of this article applies.  A  party  asserting
    10  limited  liability  pursuant  to  this  article shall have the burden of
    11  alleging and proving by a preponderance of the evidence that its equita-
    12  ble share of the total liability is fifty percent or less of  the  total
    13  liability assigned to 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.
                                                                   LBD11564-02-3

        S. 5197                             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 of January next succeed-
     4  ing the date on which it shall have become a law and shall only apply to
     5  actions commenced on or after that date.