New York, Supreme Court

New York Law Journal

Monday, October 28, 2002

Ia Part 6

Justice Bransten

Plaintiff N.X. moves for an order pursuant to CPLR 3025(b), amending the complaint against defendants Cabrini Medical Center and Andrea Favara to plead an exception to Article 16 of the CPLR, which governs apportionment of liability for non-economic losses in personal-injury cases.


On July 27, 1995, N.X. was admitted to Cabrini for vaginal surgery. After the surgery, she was placed in the recovery room under the care of two nurses. While in the recovery room and still under the effects of anesthesia, defendant Dr. Favara-a surgical resident at the hospital who had no connection to N.X. and had never treated her-assaulted N.X. by placing his fingers inside her vagina and anus.

In 1996, N.X. commenced this action, which includes several different claims against the two defendants. Specifically, N.X. charged Cabrini with a host of negligence claims, and after years of litigation, the Court of Appeals unanimously concluded that questions of fact exist as to whether Cabrini's nurses failed to protect her adequately as she recovered from surgery. See, N.X. v. Cabrini Med. Center, 97 N.Y.2d 247, 252 (2002). The Court determined that "under the settled hospital-patient duty equation there are issues of fact as to whether the nurses actually observed or unreasonably ignored events immediately preceding the misconduct which indicated a risk of imminent harm to plaintiff, triggering the need for protective action." Id.

In addition, N.X. asserted claims against Dr. Favara for intentional torts-including battery and intentional infliction of emotional distress-and for lack of informed consent. A default judgment was granted against Dr. Favara.

Now, almost five years after commencing the action, N.X. seeks to amend her complaint to state that the "limitations on liability set forth in Article 16 of the CPLR do not apply to this action." Affirmation in Support of Motion, Ex. A ("Proposed Amended Complaint), at �14. N.X. thus contends that the general rule of joint and several liability operates in this case.

Cabrini vehemently opposes the amendment on two grounds. The hospital urges that, as a matter of law based on the Court of Appeals June 2002 decision in Chianese v. Meier (98 N.Y.2d 270), there is absolutely no merit to the proposed amendment. Cabrini further argues that amendment at this late stage, after the end of discovery and after a certificate of readiness for trial has been filed, would be extremely prejudicial. Because this Court agrees with Cabrini that there is no set of facts under which the proposed claim could succeed, N.X.'s motion to amend is denied.


The rule of joint and several liability, which generally governs in tort cases, provides that each tortfeasor is responsible for the totality of plaintiff's judgment, not merely for the damages it alone was deemed to have caused. See generally, Siegel, New York Prac. �§168A, at 266 (3d ed.).

Article 16 of the CPLR was enacted to "remedy the inequities created by joint and several liability on low-fault, 'deep pocket' defendants." See, Rangolan v. County of Nassau, 96 N.Y.2d 42, 46 (2001). CPLR 1601 modifies the common law joint-and-several- liability rule and provides, with respect to personal injury actions, that a joint tortfeasor whose share of fault is 50 percent or less, will only be liable for its proportionate share of the total non-economic loss. Thus, "low-fault tortfeasors are liable only for their actual assessed share of responsibility, rather than the full amount of plaintiff's noneconomic loss." See, Chianese v. Meier, supra, 98 N.Y.2d, at 275.

Significantly, CPLR 1602 carves out exceptions to the apportionment scheme. Subdivision 5, for example, provides that Article 16 apportionment shall "not apply to actions requiring proof of intent." The meaning of this subdivision has not only generated conflicts between the various Departments of the Appellate Division, it has sparked controversy within the Appellate Division, First Department itself. Compare, Chianese v. Meier, 285 A.D.2d 315 (1st Dep't 2001)(two Justices dissenting), aff'd as modified 98 N.Y.2d 270 (2002), with Concepcion v. New York City Health and Hosps. Corp., 284 A.D.2d 37 (1st Dep't 2001) (one Justice dissenting), lv. dismissed 97 N.Y.2d 674 (2001) and Roseboro v. New York City Tr. Auth., 286 A.D.2d 222 (1st Dep't 2001) (one Justice dissenting), lv dismissed 97 N.Y.2d 676 (2001).

Specifically, the panels-and individual Justices within the panels-divided on whether the actions-requiring-proof-of-intent exception to apportionment applied, displacing joint and several liability, in cases where the named defendants were guilty of negligence and other tortfeasors were alleged to have acted intentionally. In Chianese, for example, plaintiff was brutally attacked by an intruder in her building and commenced an action alleging inadequate security against the building's owner and managing agent. A divided panel of the Appellate Division, First Department concluded that CPLR 1602(5) should be construed broadly to effect the general rule of joint and several liability. The majority held that the apportionment exception applied because in "a premises security case to establish that the landlord's negligence was a proximate cause of the assault, the plaintiff must prove the fact of the assault, an intentional act." See, Chianese v. Meier, supra, 285 A.D.2d, at 322.

In Concepcion, by contrast-where while visiting a hospital, plaintiff was attacked by a box-cutter wielding out-patient-the majority concluded that the "plain meaning" of CPLR 1602(5) was that the exception only applied to "'actions' prosecuted against intentional tortfeasors." Concepcion v. New York City Health and Hosps. Corp., supra, 284 A.D.2d, at 39. Because plaintiff only sued the hospital, seeking recovery for negligence alone, the panel determined that "there is nothing in the exclusion that would indicate that it was intended to preclude a negligent tortfeasor from seeking apportionment from an intentional tortfeasor." Id.

The Court of Appeals settled the debate in Chianese v. Meier, supra, 98 N.Y.2d 270, and resolved the lack of clarity with respect to the applicability of the exception. Acknowledging that there "is cogency and anomaly in both positions," the unanimous Court agreed with the result in Concepcion and limited application of the actions-requiring-proof- of-intent exception. The Court concluded that CPLR 1602(5) did not apply in that action for three reasons.

First, plaintiff's claim was for negligence and not "an action requiring proof of intent." Defendants' liability, according to the Court, "did not depend on proof of [the intentional tortfeasor's] state of mind." Id., at 277. "That a non-party tortfeasor acted intentionally does not bring a pure negligence action within the scope of the exclusion." Id.

Second, the legislative history of Article 16 reflects that joint and several liability was to be preserved for "'instances in which defendant's acts upon which liability is based are willfully performed or intentionally performed in concert with others.'" Id. (quoting Governor's Mem. approving L. 1986, ch. 682, 1986 McKinney's Session Laws of N.Y., at 3184) (emphasis supplied by Court of Appeals). The Court stressed that there was no indication that, in passing CPLR 1602(5), the Legislature created "what would amount to a broad exception to apportionment" at the expense of low-fault, merely negligent, tortfeasors, who were the intended beneficiaries of Article 16. Id., at 277-278.

Third, under the circumstances, authorization of the exception (and, consequently, imposition of joint and several liability) would "result in the very inequity the Legislature sought to eliminate. [The] right of a low-fault defendant to apportion would depend entirely on the nature of the culpability of the third party tortfeasor. A negligent defendant could apportion liability with a negligent or reckless third party tortfeasor, but not an intentional tortfeasor. Such a result is not only illogical, but also inconsistent with the chief remedial purpose of article 16." Id., at 278 (citations omitted).

N.X. is quick to correctly point out that Chianese is distinguishable (as are all of the other cases that have addressed the applicability of CPLR 1602[5]). Chianese limited the relief that she sought to damages from the building's owner and managing agent on account of their alleged negligence. Here, in addition to seeking damages against Cabrini for negligence, N.X. is pursuing recovery against Favara for intentional torts. Thus, N.X. maintains that unlike the pure negligence actions that the plaintiffs maintained in Chianese and Concepcion-where the intentional tortfeasors were not parties-hers is clearly an "action requiring proof of intent."

Cabrini counters that disallowing apportionment in this case would undermine the rationale of Chianese. The hospital contends that there "is no valid reason why Cabrini's ability to apportion liability against the intentional tortfeasor Dr. Favara should depend entirely upon whether Dr. Favara was named in this lawsuit." Supplemental Affirmation in Opposition, at �14. Cabrini posits that CPLR 1602(5) was only intended to preclude intentional tortfeasors from obtaining Article 16's apportionment benefits and that the exception strictly applies to those liable for causes of action requiring proof of intent. Based on Chianese, this Court agrees.

It would be completely anomalous to allow negligent tortfeasors to invoke the benefit of Article 16 when a plaintiff fails to seek recovery against the intentional tortfeasor, while at the same time precluding similarly negligent tortfeasors from apportionment where plaintiff has brought the intentional tortfeasor into the mix. See, Chianese v. Meier, supra, 98 N.Y.2d, at 278. In both cases, the negligent tortfeasor is guilty of the very same conductlack of due care. It would defy logic to hold that a negligent defendant's ability to avail itself of apportionment is wholly dependent on whether its codefendent stands accused of an intentional act. That result cannot be the one the Legislature contemplated.

Rather, based on the interpretation of CPLR 1602(5) provided by this State's highest court in Chianese, it is clear that the Legislature intended to bar defendants who stand accused of "actions requiring proof of intent" from shielding themselves with Article 16's limitation of liability. See, Siegel, New York State Law Digest No. 511, Court of Appeals Holds that Unintentional Tortfeasor Can Have Article 16 Reduction Based on Conduct of Intentional Tortfeasor (July 2002) ( "courts must pierce through whatever multiplicity of tortfeasors there are in each case and deprive of the benefits of Article 16 only the intentional ones; the unintentional ones remain the beneficiaries of Article 16 as long as their shares of fault are assessed at 50 percent or less"). A contrary conclusion would be undercut "the chief remedial purpose of article 16." See, Chianese v. Meier, supra, 98 N.Y.2d, at 277- 278. [1]

Although leave to amend is typically freely granted absent evidence of surprise resulting from the delay, see, CPLR 3025(b); see also, Davis & Davis, P.C. v. Morson, 286 A.D.2d 584, 585 (1st Dep't 2001), amendment of an action to include a non-viable, meritless claim is impermissible and rises to the level of an abuse of discretion. See, e.g., Boyd v. Trent, __ A.D.2d __, 746 N.Y.S.2d 191, 193-194 (2d Dep't 2002); Davis & Davis, P.C. v. Morson, supra, 286 A.D.2d, at 585. Because the proposed amendment is meritless as to Cabrini, it will not be permitted.

Accordingly, it is

ORDERED that plaintiff's motion to amend the complaint to state that the "limitations on liability set forth in Article 16 of the CPLR do not apply" is denied.

This constitutes the decision and order of the Court.



��� Though, as N.X. points out, the Legislature certainly could have clarified that Article 16 is inapplicable to causes of action requiring proof of intent, as the Court of Appeals itself explained, the legislation, which has engendered difficulty in its practical application, has been described as an "undistinguished piece of statutory prose" that is as clear and elegant as the Internal Revenue Code. See, Chianese v. Meier, supra, 98 N.Y.2d, at 275.

Date Received: October 24, 2002