Bill Text: NY A06697 | 2011-2012 | General Assembly | Introduced

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Bill Title: Relates to the apportionment of liability for non-economic loss in personal injury actions.

Spectrum: Partisan Bill (Democrat 1-0)

Status: (Introduced - Dead) 2012-01-04 - referred to judiciary [A06697 Detail]

Download: New_York-2011-A06697-Introduced.html

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                           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:
    1    Section 1. Subdivision 1 of section 1601 of the civil practice law and
    2  rules, as amended by chapter 635 of the laws of 1996, is amended to read
    3  as follows:
    4    1.    Notwithstanding  any  other  provision of law, when a verdict or
    5  decision in an action or claim for  personal  injury  is  determined  in
    6  favor  of  a  claimant  in  an  action involving two or more tortfeasors
    7  jointly liable or in a claim against the state and the  liability  of  a
    8  defendant  is  found to be fifty percent or less of the total [liability
    9  assigned to all persons liable] CULPABILITY OF ALL PERSONS DEEMED CULPA-
   10  BLE, the liability of such defendant to the  claimant  for  non-economic
   11  loss  shall  not  exceed  that defendant's equitable share determined in
   12  accordance with the relative  culpability  of  each  person  causing  or
   13  contributing to the total [liability] CULPABILITY for non-economic loss;
   14  provided, however that the culpable conduct of any person not a party to
   15  the  action  shall  not be considered in determining any equitable share
   16  herein if the claimant proves that with due  diligence  he  or  she  was
   17  unable  to  obtain jurisdiction over such person in said action (or in a
   18  claim against the state, in a court of this state); and further provided
   19  that the culpable conduct of any  person  shall  not  be  considered  in
   20  determining any equitable share herein to the extent that action against
   21  such  person  is  barred because the claimant has not sustained a "grave
   22  injury" as defined in section eleven of the workers' compensation law.
   23    S 2. Section 1603 of the civil practice law and rules, as  amended  by
   24  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
    1    S  1603.  Burdens  of  proof.  In  any action or claim for damages for
    2  personal injury a party asserting that the limitations on liability  set
    3  forth  in  this article do not apply shall allege and prove by a prepon-
    4  derance of the evidence that one or more of the exemptions set forth  in
    5  subdivision  one  of  section  sixteen  hundred  one  or section sixteen
    6  hundred two applies. A party asserting  limited  liability  pursuant  to
    7  this  article shall have the burden of ALLEGING AND proving by a prepon-
    8  derance of the evidence THAT its equitable share of the  total  [liabil-
    9  ity] CULPABILITY IS FIFTY PERCENT OR LESS OF THE TOTAL CULPABILITY.
   10    S  3.  Subdivision  (b)  of section 3018 of the civil practice law and
   11  rules, as amended by chapter 504 of the laws of 1980, is amended to read
   12  as follows:
   13    (b) Affirmative defenses. A party shall plead all matters which if not
   14  pleaded would be likely to take the adverse party by surprise  or  would
   15  raise  issues of fact not appearing on the face of a prior pleading such
   16  as arbitration and award, collateral estoppel, culpable conduct  claimed
   17  in  diminution of damages as set forth in article fourteen-A, LIMITATION
   18  OF LIABILITY PURSUANT TO ARTICLE SIXTEEN, discharge in bankruptcy, facts
   19  showing illegality either by statute or common law,  fraud,  infancy  or
   20  other disability of the party defending, payment, release, res judicata,
   21  statute  of  frauds,  or  statute of limitation. The application of this
   22  subdivision shall not be confined to the instances enumerated.
   23    S 4. This act shall take effect on the first of January next  succeed-
   24  ing  the date on which it shall have become a law and shall apply to all
   25  actions commenced on or after such effective date  and  to  all  pending
   26  actions in which trial has not yet commenced.