S T A T E   O F   N E W   Y O R K
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                                      5169
                           1997-1998 Regular Sessions
                                I N  S E N A T E
                                 April 16, 1997
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    Introduced  by  COMMITTEE  ON  RULES -- (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-
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    bly, do enact as follows:
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 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
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 9  [sixteen hundred two] 1602 applies. A party asserting limited  liability
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10  pursuant  to  this article shall have the burden of alleging and proving
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11  by a preponderance of the evidence that its equitable share of the total
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12  liability is fifty percent or less of the total  liability  assigned  to
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13  all persons liable.
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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
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22  of liability pursuant to article sixteen, discharge in bankruptcy, facts
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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
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                          [ ] is old law to be omitted.
                                                               LBD10523-02-7
    S. 5169                             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 become a law and shall only  apply
 5  to actions commenced on or after such date.