Opinion
No. 11698/2013.
03-18-2015
Jermaul HOLLOMAN, Plaintiff, v. The CARTEL ASSOCIATES, INC., Defendant.
Jermaul Holloman, Eric Bernstein P.C. by Eric R. Bernstein, Madison Avenue, attorney for plaintiff. Nicolini, Paradise, Ferretti & Sabella, The Cartel Associates, Inc. by John Nicolini, Mineola, attorneys for defendant.
Jermaul Holloman, Eric Bernstein P.C. by Eric R. Bernstein, Madison Avenue, attorney for plaintiff.
Nicolini, Paradise, Ferretti & Sabella, The Cartel Associates, Inc. by John Nicolini, Mineola, attorneys for defendant.
Opinion
PETER P. SWEENEY, J.
Plaintiff moves for an order striking the defense of defendant CARTEL ASSOCIATES, INC., premised on CPLR Article 16 and dismissing defendant's third-party claim against S.A.R. CONSTRUCTION INC. (S.A.R.) for contribution. Plaintiff also moves for an extension of time to file a Note of Issue.
Plaintiff, JERMAUL HOLLOMAN, commenced this action claiming that he suffered personal injuries on March 30, 2013, as a result of falling down a flight of stairs inside a building located at 2519 Atlantic Avenue, Brooklyn, New York. Defendant, the CARTEL ASSOCIATES, INC. is the owner of the building. At his examination before trial, plaintiff testified that as he was descending a flight of the stairs between the second and first floors. He testified that when he stepped down with his left foof onto the carpet covering the thread of the sixth step from the bottom, the carpet unexpectedly moved causing hi to lunge forward and fall down the remaining stairs.
Prior to the accident, defendant had hired third-party defendant S.A.R., an independent contractor, to repair a number of broken steps on the staircase in question. S.A.R. did the repairs in January of 2013. After appearing in the action, the defendant commenced a third-party action against S.A.R. seeking contribution and/or indemnity alleging that S.A.R. created the defective condition that caused plaintiff's accident.
Plaintiff's counsel contends that defendant had a non-delegable duty to maintain the building where the accident occurred in good repair and that the defendant would be vicariously liable for any negligence on S.A.R.'s part in creating the unsafe condition that caused plaintiff's accident. For these reasons, plaintiff contends that if S.A.R. is found partially at fault for causing plaintiff's injuries, under CPLR 1602(2)(iv), liability can not be apportioned between the defendant and S.A.R. for the purpose of determining defendant's liability to the plaintiff for his non-economic damages under CPLR 1601(1). Finally, plaintiff contends that CPLR 1602(2)(iv) precludes the defendant from seeking contribution against S.A.R.
Under CPLR 1601(1), a defendant who is found to be 50% or less at fault for causing a plaintiff's personal injury is only liable to the plaintiff for non-economic damages to the extent of its proportionate share of fault. This rule, however, is subject to many exceptions and limitations, some of which are set forth in CPLR 1602. CPLR 1602(2)(iv) provides that “[t]he limitations set forth in this article shall ... 2. not be construed to impair, alter, limit, modify, enlarge, abrogate or restrict ... (iv) any liability arising by reason of a non-delegable duty....”
Plaintiff correctly contends that the defendant had a non-delegable duty to maintain the building where the accident occurred in good repair and that if S.A.R. is found to be negligent in creating the unsafe condition that allegedly caused plaintiff's accident, the defendant would be vicariously liable for such negligence(Thomassen v. J & K Diner, 152 A.D.2d 421, 424–425, 549 N.Y.S.2d 416 [2nd Dep't 1989], appeal dismissed, 76 N.Y.2d 771, 559 N.Y.S.2d 979, 559 N.E.2d 673 [1990] ; June v. Bill Zikakis Chevrolet Inc., 199 A.D.2d 907, 909, 606 N.Y.S.2d 390, 392 [3rd Dep't] ; Arabian v. Benenson, 284 A.D.2d 422, 726 N.Y.S.2d 447 [2nd Dep't 2001] ; Backiel v. Citibank, N.A., 299 A.D.2d 504, 508, 751 N .Y.S.2d 492, 496 [2nd Dep't 2002] ).
Plaintiff also correctly conteds CPLR 1602(2)(iv) precludes the defendant from seeking an apportionment of liability between it and S.A.R. for the purpose of determining to what extend the defendant is liable to the plaintiff for his non-economic losses under CPLR 1601(1). In Rangolan v. County of Nassau, 96 N.Y.2d 42, 725 N.Y.S .2d 611, 749 N.E.2d 178 [2001] and Faragiano ex rel. Faragiano v. Town of Concord, 96 N.Y.2d 776, 778, 749 N.E.2d 184, 186, 725 N.Y.S.2d 609, 611 [2001], the Court of Appeals addressed the application of CPLR 1602(2)(iv) to defendants who have non-delegable duties. In both cases, the Court held under CPLR 1602(2)(iv) a defendant who has a non-delegable duty may not seek an apportionment of liability for CPLR 1601(1) purposes with anyone for whose negligence it is vicariously liable. The Rangolan Court stated:
Specifically, CPLR 1602(2)(iv) is a savings provision that preserves principles of vicarious liability. It ensures that a defendant is liable to the same extent as its delegate or employee, and that CPLR article 16 is not construed to alter this liability (see, Alexander, Practice Commentaries, op. cit., at 616–617 ; see also, Kreindler, Rodriguez, Beekman & Cook, New York Law of Torts § 10.11, at 602–603 [14 West's N.Y. Prac. Series 1997] ). Thus, for example, a municipality that delegates a duty for which the municipality is legally responsible, such as the maintenance of its roads, to an independent contractor remains vicariously liable for the contractor's negligence, and cannot rely on CPLR 1601(1) to apportion liability between itself and its contractor (see, Faragiano v. Town of Concord, 96 N.Y.2d 776, 725 N.Y.S.2d 609, 749 N .E.2d 184 [decided today]; see also, Kreindler, Rodriguez, Beekman & Cook, op. cit., at 602–603 [premises owner having a non-delegable duty] ). Similarly, CPLR 1602(2)(iv) prevents an employer from disclaiming respondeat superior liability under article 16 by arguing that the true tortfeasor was its employee.
(Rangolan, 96 N.Y.2d 42, 47, 749 N.E.2d 178, 182, 725 N.Y.S.2d 611, 615 ). The Rangolan Court made it clear, however, that CPLR 1602(2)(iv) does not preclude a defendant with a non-delegable duty from seeking apportionment for CPLR 1601(1) purposes with other tortfeasors for whose negligence it is not vicariously liable. The Court stated:
However, nothing in CPLR 1602(2)(iv) precludes a municipality, landowner or employer from seeking apportionment between itself and other tortfeasors “for whose liability [it] is not answerable”
Rangolan, supra., citing Kreindler, Rodriguez, Beekman & Cook, op. cit., at 602. Accordingly, while CPLR 1602(2)(iv) precludes defendant from seeking an apportionment of liability between it and S.A.R. for CPLR 1601(1), it does not precluded the defendant from seeking an apportionment of liability between itself and other tortfeasors for whose liability it is not answerable. The issue of whether any such tortfeasors exist is not before the Court.
To illustrate, assume this case goes to trial in its present posture and a jury finds that both the defendant and S.A.R. were negligent and apportions 25% percent of the fault against the defendant and 75% of the fault against S.A.R. Under these circumstances, the defendant would be liable to the plaintiff for the entire amount of his non-economic losses and could not invoke CPLR 1601(1) to limit its liability for such losses. Assume that a third tortfeasor surfaces, for whose liability the defendant is not answerable, and a jury apportions 25% of the fault against the defendant, 30% against S.A.R. and 45% against the third tortfeasor. Under these circumstances, by operation of CPLR 1601(1), the defendant would only be liable for 25% of plaintiff's non-economic losses.
Finally, plaintiff's contention that CPLR 1602(2)(iv) precludes the defendant from seeking contribution against S.A.R. is totally without merit. In neither Rangolan nor Faragiano ex rel. Faragiano did the Court hold that CPLR 1602(2)(iv) precludes a defendant who breaches a non-delegable duty from seeking contribution from another tortfeasor. Plaintiff's counsel apparently confused the concept of apportioning liability for purposes of CPLR 1601(1) and apportioning liability for purposes of common law and statutory contribution under CPLR Article 14 and Dole v. Dow Chem. Co., 30 N.Y.2d 143, 331 N.Y.S.2d 382, 282 N.E.2d 288 [1972] ). Clearly, neither CPLR 1602(2)(iv) nor any other provision of CPLR Article 16 should be construed as limiting a tortfeasors right to contribution against another tortfeasor.
For all of the above reasons, it is hereby
ORDERED that plaintiff's motion insofar as it seeks to strike defendant's CPLR Article 16 defense is GRANTED solely to the extent the defendant is precluded from seeking an apportionment of liability between itself and with S.A.R, for the purpose of determining its liability for plaintiff's non-economic losses under CPLR 1601(1) ; and it is further
ORDERED that plaintiff's motion insofar as it seeks dismissal of defendant's third-party claims against S.A.R. is DENIED, and it is further
ORDERED that plaintiff's motion for an extension of time to file a Note of Issue is GRANTED and the plaintiff may file a Note of Issue on or before May 16, 2015.
This constitutes the decision and order of the Court.