S T A T E O F N E W Y O R K
________________________________________________________________________
3496
1999-2000 Regular Sessions
I N S E N A T E
March 8, 1999
___________
Introduced by Sen. GOODMAN -- 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, the general municipal
law and the judiciary law, in relation to reducing the costs of tort
liability
THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:
1 Section 1. Section 105 of the civil practice law and rules is amended
2 by adding a new subdivision (r-1) to read as follows:
3 (R-1) PUBLIC ENTITY: THE TERM "PUBLIC ENTITY" MEANS THE STATE, A COUN-
4 TY, CITY, TOWN, OR VILLAGE, A PUBLIC UNIVERSITY, BOARD OF EDUCATION,
5 COMMUNITY SCHOOL BOARD, BOARD OF COOPERATIVE EDUCATIONAL SERVICES, OR
6 SCHOOL DISTRICT, A FIRE DISTRICT, VOLUNTEER FIRE DEPARTMENT OR FIRE
7 COMPANY, A PUBLIC HOSPITAL, CLINIC, HEALTH CENTER, OR HOSPITALS CORPO-
8 RATION, A PUBLIC AUTHORITY, A PUBLIC BENEFIT CORPORATION, OR ANY OFFI-
9 CER, AGENT OR EMPLOYEE OF A PUBLIC ENTITY.
10 S 2. Section 1411 of the civil practice law and rules, as added by
11 chapter 69 of the laws of 1975, is amended to read as follows:
12 S 1411. Damages recoverable when contributory negligence or assumption
13 of risk is established. {In} (A) EXCEPT AS OTHERWISE PROVIDED IN THIS
14 SECTION, IN any action to recover damages for personal injury, injury to
15 property, or wrongful death, the culpable conduct attributable to the
16 claimant or to the decedent, including contributory negligence or
17 assumption of risk, shall not bar recovery, but the amount of damages
18 otherwise recoverable shall be diminished in the proportion which the
19 culpable conduct attributable to the claimant or decedent bears to the
20 culpable conduct which caused the damages.
21 (B) THERE SHALL BE NO RIGHT OF RECOVERY AGAINST A PUBLIC ENTITY WHEN
22 THE CULPABLE CONDUCT ATTRIBUTABLE TO THE CLAIMANT OR DECEDENT IS FOUND
23 TO BE FIFTY PERCENT OR MORE OF THE CULPABLE CONDUCT WHICH CAUSED THE
24 DAMAGES.
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
{ } is old law to be omitted.
LBD09622-02-9
S. 3496 2
1 (C) THE PROVISIONS AND LIMITATIONS OF THIS SECTION SHALL APPLY TO ALL
2 CLAIMS BROUGHT BY, OR ON BEHALF OF, THE CLAIMANT OR DECEDENT, ALL DERIV-
3 ATIVE CLAIMS BY THE SPOUSE OR OTHER FAMILY MEMBERS OF SUCH CLAIMANT OR
4 DECEDENT, AND ALL CLAIMS FOR CONTRIBUTION OR COMMON-LAW INDEMNIFICATION,
5 WHETHER BROUGHT IN THE SAME, OR ANOTHER, ACTION.
6 S 3. The civil practice law and rules is amended by adding a new arti-
7 cle 14-B to read as follows:
8 ARTICLE 14-B
9 DAMAGE ACTIONS; INJURIES ARISING FROM FELONIOUS ACTS
10 SECTION 1414. INJURIES ARISING FROM FELONIOUS ACTS.
11 S 1414. INJURIES ARISING FROM FELONIOUS ACTS. NOTWITHSTANDING ANY
12 OTHER PROVISION OF LAW, THERE SHALL BE NO RIGHT TO RECOVER DAMAGES
13 AGAINST A PUBLIC ENTITY FOR ANY INJURY, INCLUDING PERSONAL INJURY, INJU-
14 RY TO PROPERTY, OR DEATH, SUSTAINED BY A CLAIMANT OR DECEDENT WHILE
15 ENGAGED IN THE COMMISSION OF ANY ACT OR ACTS THAT WOULD CONSTITUTE A
16 FELONY UNDER THE PENAL LAW, OR IN FLIGHT THEREFROM. THE PROVISIONS AND
17 LIMITATIONS OF THIS SECTION SHALL APPLY TO ALL CLAIMS BROUGHT BY, OR ON
18 BEHALF OF, THE CLAIMANT OR DECEDENT, ALL DERIVATIVE CLAIMS BY THE SPOUSE
19 OR OTHER FAMILY MEMBERS OF SUCH CLAIMANT OR DECEDENT, AND ALL CLAIMS FOR
20 CONTRIBUTION OR COMMON-LAW INDEMNIFICATION, WHETHER BROUGHT IN THE SAME,
21 OR ANOTHER, ACTION.
22 S 4. Section 1601 of the civil practice law and rules, as added by
23 chapter 682 of the laws of 1986 and subdivision 1 as amended by chapter
24 635 of the laws of 1996, is amended to read as follows:
25 S 1601. Limited liability of persons jointly liable. 1. Notwith-
26 standing any other provision of law, AND EXCEPT AS PROVIDED IN THIS
27 SECTION, when a verdict or decision in an action or claim for personal
28 injury is determined in favor of a claimant in an action involving two
29 or more tortfeasors jointly liable {or in a claim against the state} and
30 the liability of a defendant is found to be fifty percent or less of the
31 total liability assigned to all persons liable, the liability of such
32 defendant to the claimant for non-economic loss shall not exceed that
33 defendant`s equitable share determined in accordance with the relative
34 culpability of each person causing or contributing to the total liabil-
35 ity for non-economic loss; provided, however that the culpable conduct
36 of any person not a party to the action shall not be considered in
37 determining any equitable share herein if the claimant proves that with
38 due diligence he or she was unable to obtain jurisdiction over such
39 person in said action (or in a claim against the state, in a court of
40 this state); and further provided that the culpable conduct of any
41 person shall not be considered in determining any equitable share herein
42 to the extent that action against such person is barred because the
43 claimant has not sustained a "grave injury" as defined in section eleven
44 of the workers` compensation law.
45 2. LIMITED LIABILITY OF PUBLIC ENTITIES. NOTWITHSTANDING ANY OTHER
46 PROVISION OF LAW, WHEN A VERDICT OR DECISION IN AN ACTION OR CLAIM FOR
47 PERSONAL INJURY, INJURY TO PROPERTY OR WRONGFUL DEATH, IS DETERMINED IN
48 FAVOR OF A CLAIMANT IN AN ACTION INVOLVING TWO OR MORE TORTFEASORS,
49 WHETHER OR NOT THEY ARE JOINED IN THE ACTION, THE LIABILITY OF A PUBLIC
50 ENTITY TO THE CLAIMANT FOR ANY INJURY, LOSS OR DAMAGE SHALL NOT EXCEED
51 THE PUBLIC ENTITY`S EQUITABLE SHARE DETERMINED IN ACCORDANCE WITH THE
52 RELATIVE CULPABILITY OF EACH PERSON CAUSING OR CONTRIBUTING TO THE TOTAL
53 LIABILITY.
54 3. Nothing in this section shall be construed to affect or impair any
55 right of a tortfeasor under section 15-108 of the general obligations
56 law.
S. 3496 3
1 S 5. Subdivision 6 of section 1602 of the civil practice law and
2 rules, as added by chapter 682 of the laws of 1986, is amended to read
3 as follows:
4 6. not apply to any person held liable by reason of his use, opera-
5 tion, or ownership of a motor vehicle or motorcycle, as those terms are
6 defined respectively in sections three hundred eleven and one hundred
7 twenty-five of the vehicle and traffic law; PROVIDED, HOWEVER, THAT THE
8 LIMITATIONS SET FORTH IN THIS ARTICLE SHALL APPLY TO ANY PUBLIC ENTITY
9 HELD LIABLE FOR REASON OF ITS USE, OPERATION, OR OWNERSHIP OF A MOTOR
10 VEHICLE OR MOTORCYCLE.
11 S 6. The civil practice law and rules is amended by adding a new arti-
12 cle 17 to read as follows:
13 ARTICLE 17
14 LIABILITY OF PUBLIC ENTITIES
15 SECTION 1700. DEFINITIONS.
16 1701. LIMITED LIABILITY OF PUBLIC ENTITIES.
17 S 1700. DEFINITIONS. AS USED IN THIS ARTICLE THE TERM "NON-ECONOMIC
18 LOSS" SHALL BE DEFINED AS IN SECTION SIXTEEN HUNDRED OF THIS CHAPTER.
19 S 1701. LIMITED LIABILITY OF PUBLIC ENTITIES. 1. NOTWITHSTANDING ANY
20 OTHER PROVISION OF LAW, IN ANY ACTION AGAINST A PUBLIC ENTITY FOR
21 PERSONAL INJURY, INCLUDING INJURY RESULTING IN DEATH, EXCEPT AN ACTION
22 BASED UPON AN INTENTIONAL TORT, THE FOLLOWING LIMITATIONS SHALL APPLY:
23 (A) THERE SHALL BE NO RIGHT TO RECOVER DAMAGES FOR NON-ECONOMIC LOSS
24 FOR ANY INJURY, EXCEPT AN INJURY RESULTING IN DEATH, PERMANENT LOSS OF A
25 BODILY FUNCTION, DISMEMBERMENT OR SIGNIFICANT DISFIGUREMENT, UNLESS THE
26 FAIR AND REASONABLE VALUE OF ALL MEDICAL SERVICES THAT WERE, OR WITH
27 REASONABLE CERTAINTY WILL BE, RENDERED IN TREATMENT OF AND ATTRIBUTABLE
28 TO SUCH INJURY EQUALS OR EXCEEDS THE SUM OF FIVE THOUSAND DOLLARS,
29 WHETHER OR NOT SUCH SUM WAS OR WILL BE PAID BY THE INJURED PERSON.
30 (B) THERE SHALL BE NO RIGHT TO RECOVER DAMAGES FOR NON-ECONOMIC LOSS
31 IN EXCESS OF TWO HUNDRED FIFTY THOUSAND DOLLARS.
32 (C) EXCEPT AS OTHERWISE PROVIDED IN THIS SECTION, THE PROVISIONS OF
33 THIS SECTION SHALL APPLY TO ALL CLAIMS BROUGHT AGAINST A PUBLIC ENTITY
34 BY OR ON BEHALF OF THE INJURED PERSON OR DECEDENT, ALL DERIVATIVE CLAIMS
35 BY THE SPOUSE OR OTHER FAMILY MEMBERS OF SUCH INJURED PERSON OR DECEDENT
36 AND ALL CLAIMS FOR CONTRIBUTION OR COMMON-LAW INDEMNIFICATION, WHETHER
37 BROUGHT IN THE SAME, OR ANOTHER, ACTION; PROVIDED, HOWEVER, THAT THE
38 TOTAL AMOUNT OF DAMAGES FOR NON-ECONOMIC LOSS THAT MAY BE RECOVERED BY
39 ALL SUCH CLAIMANTS, WHEN ADDED TOGETHER, SHALL NOT EXCEED THE LIMITATION
40 SET FORTH IN PARAGRAPH (B) OF THIS SUBDIVISION.
41 S 7. The general municipal law is amended by adding a new section 71-c
42 to read as follows:
43 S 71-C. LIABILITY INCIDENT TO OWNERSHIP OF DANGEROUS, DEFECTIVE OR
44 UNSAFE REAL PROPERTY. NOTWITHSTANDING ANY OTHER PROVISION OF LAW, NO
45 CAUSE OF ACTION, ACCRUING WITHIN A PERIOD OF TWO YEARS SUBSEQUENT TO THE
46 ACQUISITION OF REAL PROPERTY BY A MUNICIPAL CORPORATION PURSUANT TO
47 FORECLOSURE OF A TAX LIEN BY AN ACTION IN REM, SHALL BE MAINTAINED
48 AGAINST ANY SUCH MUNICIPAL CORPORATION, OR ANY OFFICER, AGENT OR EMPLOY-
49 EE THEREOF, TO RECOVER DAMAGES FOR PERSONAL INJURY, INCLUDING DEATH OR
50 INJURY TO PROPERTY SUSTAINED OR ARISING BY REASON OF SUCH REAL PROPERTY
51 BEING OUT OF REPAIR OR IN A DANGEROUS, DEFECTIVE, OR UNSAFE CONDITION.
52 S 8. Section 474-a of the judiciary law, as amended by chapter 485 of
53 the laws of 1986, is amended to read as follows:
54 S 474-a. Contingent fees for attorneys in claims or actions for
55 medical, dental or podiatric malpractice, OR FOR PERSONAL INJURY,
56 INCLUDING DEATH. 1. For the purpose of this section, the term "contin-
S. 3496 4
1 gent fee" shall mean any attorney`s fee in any claim or action for
2 medical, dental or podiatric malpractice, OR FOR PERSONAL INJURY,
3 INCLUDING DEATH, whether determined by judgment or settlement, which is
4 dependent in whole or in part upon the success of the prosecution by the
5 attorney of such claim or action, or which is to consist of a percentage
6 of any recovery, or a sum equal to a percentage of any recovery, in such
7 claim or action.
8 2. Notwithstanding any inconsistent judicial rule, a contingent fee in
9 a medical, dental or podiatric malpractice action, OR AN ACTION FOR
10 PERSONAL INJURY, INCLUDING DEATH, shall not exceed the amount of compen-
11 sation provided for in the following schedule:
12 30 percent of the first $250,000 of the sum recovered;
13 25 percent of the next $250,000 of the sum recovered;
14 20 percent of the next $500,000 of the sum recovered;
15 15 percent of the next $250,000 of the sum recovered;
16 10 percent of any amount over $1,250,000 of the sum recovered.
17 3. Such percentages shall be computed on the net sum recovered after
18 deducting from the amount recovered expenses and disbursements for
19 expert testimony and investigative or other services properly chargeable
20 to the enforcement of the claim or prosecution of the action. In comput-
21 ing the fee, the costs as taxed, including interest upon a judgment,
22 shall be deemed part of the amount recovered. For the following or
23 similar items there shall be no deduction in computing such percentages:
24 liens, assignments or claims in favor of hospitals, for medical care,
25 dental care, podiatric care and treatment by doctors and nurses, or of
26 self-insurers or insurance carriers.
27 4. In the event that claimant`s or plaintiff`s attorney believes in
28 good faith that the fee schedule set forth in subdivision two of this
29 section, because of extraordinary circumstances, will not give him
30 adequate compensation, application for greater compensation may be made
31 upon affidavit with written notice and an opportunity to be heard to the
32 claimant or plaintiff and other persons holding liens or assignments on
33 the recovery. Such application shall be made to the justice of the trial
34 part to which the action had been sent for trial; or, if it had not been
35 sent to a part for trial, then to the justice presiding at the trial
36 term calendar part of the court in which the action had been instituted;
37 or, if no action had been instituted, then to the justice presiding at
38 the trial term calendar part of the Supreme Court for the county in the
39 judicial department in which the attorney has an office. Upon such
40 application, the justice, in his discretion, if extraordinary circum-
41 stances are found to be present, and without regard to the claimant`s or
42 plaintiff`s consent, may fix as reasonable compensation for legal
43 services rendered an amount greater than that specified in the schedule
44 set forth in subdivision two of this section, provided, however, that
45 such greater amount shall not exceed the fee fixed pursuant to the
46 contractual arrangement, if any, between the claimant or plaintiff and
47 the attorney. If the application is granted, the justice shall make a
48 written order accordingly, briefly stating the reasons for granting the
49 greater compensation; and a copy of such order shall be served on all
50 persons entitled to receive notice of the application.
51 5. Any contingent fee in a claim or action for medical, dental or
52 podiatric malpractice, OR FOR PERSONAL INJURY, INCLUDING DEATH, brought
53 on behalf of an infant shall continue to be subject to the provisions of
54 section four hundred seventy-four of this chapter.
S. 3496 5
1 S 9. This act shall take effect immediately and shall apply to all
2 actions and proceedings pending or commenced on or after such effective
3 date, provided, however, that section eight of this act shall apply to
4 all retainer agreements executed on or after such effective date.
.SO DOC S 3496 *END* BTXT 1999
Bill S03496
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