S T A T E O F N E W Y O R K
________________________________________________________________________
6697
2011-2012 Regular Sessions
I N A S S E M B L Y
March 24, 2011
___________
Introduced by M. of A. WEINSTEIN -- (at request of the Office of Court
Administration) -- read once and referred to the Committee on Judici-
ary
AN ACT to amend the civil practice law and rules, in relation to appor-
tionment of liability for non-economic loss in personal injury actions
THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:
Section 1. Subdivision 1 of section 1601 of the civil practice law and
rules, as amended by chapter 635 of the laws of 1996, is amended to read
as follows:
1. Notwithstanding any other provision of law, when a verdict or
decision in an action or claim for personal injury is determined in
favor of a claimant in an action involving two or more tortfeasors
jointly liable or in a claim against the state and the liability of a
defendant is found to be fifty percent or less of the total [liability
assigned to all persons liable] CULPABILITY OF ALL PERSONS DEEMED CULPA-
BLE, the liability of such defendant to the claimant for non-economic
loss shall not exceed that defendant's equitable share determined in
accordance with the relative culpability of each person causing or
contributing to the total [liability] CULPABILITY for non-economic loss;
provided, however that the culpable conduct of any person not a party to
the action shall not be considered in determining any equitable share
herein if the claimant proves that with due diligence he or she was
unable to obtain jurisdiction over such person in said action (or in a
claim against the state, in a court of this state); and further provided
that the culpable conduct of any person shall not be considered in
determining any equitable share herein to the extent that action against
such person is barred because the claimant has not sustained a "grave
injury" as defined in section eleven of the workers' compensation law.
S 2. Section 1603 of the civil practice law and rules, as amended by
chapter 635 of the laws of 1996, is amended to read as follows:
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD09308-01-1
A. 6697 2
S 1603. Burdens of proof. In any action or claim for damages for
personal injury a party asserting that the limitations on liability set
forth in this article do not apply shall allege and prove by a prepon-
derance of the evidence that one or more of the exemptions set forth in
subdivision one of section sixteen hundred one or section sixteen
hundred two applies. A party asserting limited liability pursuant to
this article shall have the burden of ALLEGING AND proving by a prepon-
derance of the evidence THAT its equitable share of the total [liabil-
ity] CULPABILITY IS FIFTY PERCENT OR LESS OF THE TOTAL CULPABILITY.
S 3. Subdivision (b) of section 3018 of the civil practice law and
rules, as amended by chapter 504 of the laws of 1980, is amended to read
as follows:
(b) Affirmative defenses. A party shall plead all matters which if not
pleaded would be likely to take the adverse party by surprise or would
raise issues of fact not appearing on the face of a prior pleading such
as arbitration and award, collateral estoppel, culpable conduct claimed
in diminution of damages as set forth in article fourteen-A, LIMITATION
OF LIABILITY PURSUANT TO ARTICLE SIXTEEN, discharge in bankruptcy, facts
showing illegality either by statute or common law, fraud, infancy or
other disability of the party defending, payment, release, res judicata,
statute of frauds, or statute of limitation. The application of this
subdivision shall not be confined to the instances enumerated.
S 4. This act shall take effect on the first of January next succeed-
ing the date on which it shall have become a law and shall apply to all
actions commenced on or after such effective date and to all pending
actions in which trial has not yet commenced.