Opinion
3204.
Decided April 29, 2004.
Order, Supreme Court, New York County (Helen Freedman, J.), entered on or about November 26, 2002, which, to the extent appealed from as limited by the briefs, granted defendants' motion for declaratory relief while denying plaintiffs' cross motion for declaratory relief, unanimously affirmed, without costs.
Anthony Tancredi, et al., Plaintiffs-Appellants, A.C. S., Inc., et al., Defendants-Respondents. The City of New York, Amicus Curiae.
Caplin Drysdale, New York (Elihu Inselbuch of counsel), for appellants.
Oscar G. Chase, New York, for Amchem Corp., et al., respondents.
McGuire Woods, LLP, New York (Yvette Harmon of counsel), for American Standard Inc., respondent.
O'Melveny Myers LLP, New York (John L. Altieri, Jr. of counsel), for Treadwell Corp., respondent.
Michael A. Cardozo, Corporation Counsel, New York (Victoria Scalzo of counsel), for The City of New York, amicus curiae.
Before: Tom, J.P., Andrias, Ellerin, Gonzalez, JJ.
A New York State court does not lack jurisdiction over a tortfeasor in bankruptcy. Notwithstanding the automatic stay resulting from bankruptcy, the tortfeasor is not exempt from consideration of damages under CPLR article 16. To the extent that such entity's culpability is 50% or less, exposure for non-economic damages can still be calculated in apportioning liability ( Kharmah v. Metropolitan Chiropractic Ctr., 288 A.D.2d 94; see also Duffy v. County of Chautauqua, 225 A.D.2d 261, 266-267, lv dismissed 89 N.Y.2d 980). The issue of personal jurisdiction over such an entity, under CPLR 1601(1), must be resolved on the facts of each case, and not simply on whether or not the tortfeasor is bankrupt.
We have considered plaintiffs' other arguments and find them unavailing.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.