CPLR § 1601 Limited liability of persons jointly liable
Cunha v City of New York, 2009 NY Slip Op 04698 (Ct. App., 2009)
Haks also raises the issue of the potential liability of other parties and relies on our recent decision in Frank v Meadowlakes Dev. Corp. (6 NY3d 687 ) for the proposition that the City is entitled to only partial indemnification from Haks. In Frank,
we held that CPLR article 16 limited the amount that can be recovered
in indemnity when a tortfeasor's liability is 50% or less. In that
case, the injured plaintiff sued the owner of the job-site,
Meadowlakes, and the general contractor, DJH Enterprises, Inc. ("DJH").
Meadowlakes thereafter brought a third-party action for indemnification
against plaintiff's employer, Home Insulations and Supply, Inc.
("Home"). Since the claim arose before the 1996 amendment to Workers
Compensation Law sec. 11, Home was not immune from third-party
liability. After a trial, the jury apportioned fault in the amount of
10% to plaintiff, 10% to Home and 80% to DJH. The court also directed a
verdict against Meadowlakes and DJH based upon a violation of Labor Law
§ 240 (1). Plaintiff settled with Meadowlakes for $1.4 million and with
DJH for $300,000.
Meadowlakes moved for common-law indemnification against Home
for 100% of its settlement liability. Home appealed arguing, as
relevant to this appeal, that because it was found only 10% at fault,
it should be liable to Meadowlakes for only its proportionate share of
negligence. We agreed, finding that Meadowlakes was not entitled to
100% recovery. In doing so, we held that the savings provision of CPLR
1602 (2) (iv) applied and that recovery from Home, as a party found 10%
liable, was limited to its proportionate share with respect to
This case differs from Frank, however, in that no
Article 16 issue exists inasmuch as no other tortfeasor could be found
liable for plaintiff's injuries. Haks argues that the jury must have
found another entity liable as they apportioned only 40% fault to Haks.
This argument is flawed.
A likely interpretation of the jury's verdict is that the jury
allocated culpability to plaintiff's employer, JLJ – but JLJ's fault
was irrelevant and should not have been before the jury. Plaintiff did
not sustain a grave injury and thus, his employer was not subject to
being part of the action (see Workers Compensation Law sec. 11;
CPLR 1601 ). To the extent the jury may have considered plaintiff
himself at fault, his negligence must be excluded because he, like JLJ,
cannot be an indemnitor (see Frank, 6 NY3d at 693). It is
unlikely that the jury allocated active fault to the City; to the
extent the verdict is unclear on that issue, the burden was on Haks to
clarify it, by proposing an appropriate question to the jury.
Moreover, no apportionment for any other third-party was
requested by Haks at any time during the proceedings. No evidence was
submitted at trial that any other entity was negligent, nor could have
any other entity been found negligent based upon the instructions
provided to the jury, the verdict sheet, or the charge provided to the
jury. Consequently, once Haks was found to be negligent—and since Haks
was the only possible negligent party to the lawsuit—the City was
entitled to 100% indemnification from Haks.
The bold is mine.