Kevin G. Faley and Kenneth E. Pitcoff
*Originally published in the
New York Law Journal
March 24, 2008

Several bills are currently before the New York State Assembly that propose enlarging the benefits of CPLR Article 16 as it relates to public entities.

CPLR 1601 was adopted in 1986 as part of the tort reform law. It is entitled "Limited Liability of Persons Jointly Liable." The purpose of this article was to modify the traditional rule that a tortfeasor is jointly and severally liable to the plaintiff for the plaintiff's damages without regard to the defendant's actual degree of culpability.

Essentially, the statute holds a defendant responsible only for its actual share of damages if its degree of culpability was found by the jury to be 50 percent or less.1 If, however, the defendant was found greater than 50 percent liable, the plaintiff could elect to enter judgment against that defendant and then, in turn, the affected defendant would have to seek reimbursement from the codefendant(s), if any.

Bill Number A02950 was proposed on March 30, 2007 in the New York State Assembly. It is presently pending before the Judiciary Committee. Its primary purpose is to add the following language to 1601(2):

The liability of a public entity to the claimant for any injury, loss or damage shall not exceed the public entity's equitable share determined in accordance with the relative culpability of each person causing or contributing to the total liability.

Accordingly, a public entity would be responsible only for its actual degree of fault and would not be responsible to pay the entire verdict regardless of its degree of culpability.

Although 1601 does not apply to ordinary motor vehicle or motorcycle accidents, the Legislature also proposes to apply the limitations of liability under 1601 to any actions in which a public entity is held liable by reason of its use, operation or ownership of a motor vehicle or motorcycle. This would create a special exemption or status for public entities.2

Defining Public Entity

Bill Number A02950 also proposes to alter two additional statutes. The definition of public entity is to be expanded by a new subdivision of CPLR 105(r-1). A public entity would be defined to mean:

The state, a county, city, town, or village, a public university, board of education, community school board, board of cooperative educational services, or school district, a fire district, volunteer fire department or fire company, a public hospital, clinic, health center, or hospitals corporation, a public authority, a public benefit corporation, or any officer, agent or employee of a public entity.

This sweeping all-encompassing definition would include all public hospitals, schools, universities, public service providers, public authorities and all levels of municipalities. These would include the New York City Transit Authority, New York City Housing Authority, the Port Authority of New York and New Jersey, the State University of New York system, the City University of New York system and the State Dormitory Authority.

Lastly, CPLR 1411 defining the New York statute's comparative negligence standard would be amended to completely bar recovery to a plaintiff who is found to be greater than 50 percent at fault. Specifically, subsection (h) would provide that there would be no right of recovery against a public entity at all if culpable conduct of the plaintiff is found to be greater than 50 percent.3

This would radically alter New York's pure comparative negligence standard of recovery which distinguishes the state's tort law from so many others in the country.

Purpose of Changes

An examination of the accompanying memo to Bill Number A02950 illustrates that the sole purpose of the changes is to control the spiraling cost of personal injury suits against public entities. By barring recovery against a public entity in circumstances where plaintiff's culpability is found to be more than 50 percent and limiting the amount payable by a public entity to its proportional share of culpability, the traditional "deep pocket" defendants would be protected, if not totally insulated, from liability.

While deep pocket abuse would be curtailed, the injured plaintiff's right to recover against other nonpublic entity defendants would remain unchanged. The city of New York alone estimates that it could save about $21 million a year by abolishing joint and several liability and modifying the comparative negligence rule.4 This does not include the amount which would be saved by other public entities as defined by the new bills.

Spiraling tort costs affect every member of society. Municipal coffers are not bottomless. Presently, public entity dollars are expended on tort claims where the municipality pays the price for negligent acts committed by third parties. Municipal funds would be better spent on health care, education, law enforcement and business development, rather than on settlements and/or verdicts which are largely the responsibility of others.

Kevin G. Faley and Kenneth E. Pitcoff are partners in the firm of Morris Duffy Alonso & Faley. Erin M. McGinnis, a law student, aided in the preparation of this article.


1. CPLR 1601 provides in pertinent part:

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 50 percent or less of the total liability assigned to all persons liable, the liability of such defendant to the claimant for noneconomic 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 for noneconomic 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 11 of the workers' compensation law.

2. CPLR 1602 6. Proposed not apply to any person held liable by reason of his use, operation, or ownership of a motor vehicle or motorcycle, as those terms are defined respectively in sections three hundred eleven and one hundred twenty-five of the vehicle and traffic law; provided, however, that the limitations set forth in this article shall apply to any public entity held liable by reason of its use, operation, or ownership of a motor vehicle or motorcycle.

3. CPLR 1411(b). There shall be no right of recovery against a public entity when the culpable conduct attributable to the claimant or decedent is found to be 50 percent or more of the culpable conduct that caused the damages.

4. New York State Assembly 02950 Memo, Reg. Sess. (NY 2007).