Carol Artibee et al., Appellants,v.Home Place Corporation, Respondent.BriefN.Y.January 5, 2017To be Argued by: ROBERT H. COUGHLIN, JR. (Time Requested: 12 Minutes) APL-2016-00018 Warren County Clerk’s Index No. 56768 Court of Appeals of the State of New York CAROL ARTIBEE and JAMES ARTIBEE, Plaintiffs-Appellants, – against – HOME PLACE CORPORATION, Defendant-Respondent. BRIEF FOR PLAINTIFFS-APPELLANTS TOWNE RYAN & PARTNERS, P.C. James T. Towne, Jr., Esq. Robert H. Coughlin, Jr., Esq. Attorneys for Plaintiffs-Appellants 450 New Karner Road Albany, New York 12212 Tel.: (518) 452-1800 Fax: (518) 452-6435 Date of Completion: March 7, 2016 i STATUS OF RELATED LITIGATION This case has been scheduled for trial in Supreme Court and recently has been reassigned as Justice Krogmann, who decided the motion ultimately giving rise to this appeal, has retired. The newly assigned Justice has scheduled a conference on March 25, 2016 to discuss, among other things, the trial date currently scheduled for May 9, 2016. The Plaintiffs-Appellants also have an action arising from the same accident in the Court of Claims under Claim number 123050. The note of issue is to be filed by April 11, 2016. ii TABLE OF CONTENTS Page No. STATUS OF RELATED LITIGATION .................................................................... i TABLE OF AUTHORITIES .................................................................................... iv JURISDICTIONAL STATEMENT ......................................................................... 1 QUESTIONS PRESENTED ...................................................................................... 2 NATURE OF THE CASE ......................................................................................... 3 ARGUMENT POINT I THE LEGISLATURE DID NOT INTEND TO ALLOW APPORTIONMENT OF THE STATE’S LIABILITY IN A PERSONAL INJURY ACTION IN NEW YORK STATE TRIAL COURTS OUTSIDE THE COURT OF CLAIMS ....................................... 6 A. The Plain Language of C.P.L.R. §1601 Allows The Court of Claims To Apportion A Non-Party’s Liability ..................................... 6 B. The Legislature Did Not Intend To Allow The Fact-Finder In The Supreme Court To Apportion The Liability of The Non-Party State of New York ............................................................................ 10 POINT II CASE LAW ALLOWING APPORTIONMENT AGAINST NON-PARTY BANKRUPTS AND AGAINST EMPLOYERS OF INJURED PLAINTIFFS IS DISTINGUISHABLE AND NOT CONTROLLING. ............................................ 16 A. Case Law Relied Upon by Defendant-Respondent At The Appellate Division That Apportionment Against Non-Party Tortfeasors In Bankruptcy Is Allowable Is Not Relevant To this Appeal .......................................................................... 16 iii B. Case Law Relied Upon by Defendant-Respondent In The Appellate Division That Apportionment Against The Employer Of The Plaintiff Is Allowable Is Not Relevant To This Appeal ................................................................................ 18 C. The Case of Rezucha v. Garlock Mechanical Packing Co. Inc. Does Not Accurately State the Legislature’s Intent ............................................................................................................... 20 POINT III EVIDENCE OF THE STATE’S LIABILITY SHOULD NOT BE PERMITTED IN SUPREME COURT AS THE DEFENDANT-RESPONDENT IS NOT WITHOUT RECOURSE IN THE EVENT IT BELIEVES IT HAS OVERPAID AS RESULT OF THE FACTFINDER’S VERDICT IN SUPREME COURT. ........................................................................ 21 CONCLUSION ........................................................................................................ 24 iv TABLE OF AUTHORITIES CASE: PAGE NO. Brown v. State of New York 268 A.D.2d 548 (2nd Dept. 2000) .......................................................................... 18 Chianese v. Meyer 98 N.Y.2d 270 (2002) ............................................................................................... 6 Cruz v. TD Bank 22 N.Y.3d 61 (2013) ............................................................................................... 15 Duffy v. County of Chautauqua 225 A.D.2d 261 (4th Dept. 1996) ........................................................................... 18 In re Eastern and Southern Districts Asbestos Litigation 772 F. Supp. 1380 (1991), aff’d. in part, rev’d. in part, 971 F2d 831 (2nd Cir. 1992) ............................................................ 17 Hendrickson v. Philbor Motors, Inc. 102 A.D.3d 251 (2nd Dept. 2012) .......................................................................... 18 Kharmah v. Metro. Chiropractic Ctr. 288 A.D.2d 94 (1st Dept. 2001) .............................................................................. 18 Madden v Town of Greene 95 A.D.3d 1426 (3d Dept. 2012) ............................................................................. 1 Morales v. County of Nassau 94 N.Y.2d 218 (1999) ........................................................................... 11, 12, 13, 14 Matter of New York City Asbestos Litigation 194 Misc. 2d 214 (Sup. Ct. N.Y. Cty. 2002) .......................................................... 17 O’Connor v. State 70 N.Y.2d 914 (1987) ......................................................................................... 8, 22 Orens v. Novello 99 N.Y.2d 180 (2002) ......................................................................................... 8, 10 v Patrolmen’s Benevolent Assn. v. City of New York 41 N.Y.2d 205 (1976) ......................................................................................... 9, 10 Rangolan v. County of Nassau 96 N.Y.2d 42 (2001) ................................................................................................. 7 Rezucha v. Garlock Mechanical Packing Co. 159 Misc. 2d 185 (Sup. Ct. Broome Cty. 1993) ......................................... 11, 20, 21 Sutka v. Conners 73 N.Y.2d 395 (1989) ............................................................................................. 10 Tancredi v. A.C.&S., Inc. (In re New York City Asbestos Litigation) 6 AD3d 352 (1st Dept. 2004) .................................................................................. 17 Vaughan v. Saint Francis Hosp. 29 A.D.3d 1133 (3d Dept. 2006) .............................................................................. 1 Walter v. White-Bonn, Inc. 8 A.D.3d 715 (3rd Dept. 2004) ............................................................................... 22 Whitman v. American Trucking Assn. 531 U.S. 457 (2001) ................................................................................................ 15 Zakshevsky v. City of New York 149 Misc. 2d 52 (Sup. Ct. Kings Cty. 1990) .......................................................... 18 STATUTES Court of Claims Act Section 8 ................................................................................... 8 Constitution of the State of New York, Article VI, Section 9 ................................... 7 C.P.L.R. §1401 ......................................................................................................... 22 C.P.L.R. §1601 ..................................................................................................passim C.P.L.R. §1602 ......................................................................................................... 13 C.P.L.R. §5515(3) ...................................................................................................... 2 vi C.P.L.R. §5602(b) ...................................................................................................... 1 C.P.L.R. §5713 ........................................................................................................... 2 TREATISES and COMMENTARIES Alexander's Practice Commentaries McKinney's Cons. Laws of NY, Book 7B, C.P.L.R., C§ 1601:3 ................................................................................................. 11 Governor’s Approval Mem, Bill Jacket, L 1986, ch. 682, reprinted 1986 NY LEGIS ANN, at 289 ................................................................................................. 14 McKinney’s Statutes §363 ....................................................................................... 11 McKinney’s Cons Laws of NY, Book 1, Statutes, Section 94 ................................ 16 Siegel, New York Practice, (5th Ed.), § 168C ......................................................... 11 1 JURISDICTIONAL STATEMENT This appeal is taken by the Plaintiffs-Appellants Carol and James Artibee by permission of the Appellate Division, Third Judicial Department (R. 36)1. Specifically, the Plaintiffs-Appellants were granted leave to appeal the Appellate Division’s Opinion and Order, dated August 13, 2015, pursuant to C.P.L.R. §5602(b) (R. 37). The Opinion and Order modified the trial court’s pre-trial Order which denied Defendant-Respondent Home Place Corporation’s motion in limine for a jury charge, pursuant to C.P.L.R. §1601, to include apportionment of liability to the non-party State of New York (R. 5 to 8). The Appellate Division acknowledged that an Order deciding a motion in limine is generally not appealable, as it is merely an advisory opinion (R. 38 at footnote 1). However, it held that the Defendant-Respondent’s motion was “’the functional equivalent of a motion for partial summary judgment’ (Madden v. Town of Greene, 95 A.D.3d 1426, 1427 [3d Dept. 2012] [internal quotation marks and citations omitted]) as to the issue of the State’s liability in this action. The motion is therefore appealable because the resolution thereof limited the scope of the issues to be tried (see CPLR §5701 [a] [2] [iv], [v]; Vaughan v. Saint Francis Hosp., 29 A.D.3d 1133, 1135 [3d Dept. 2006])” (R. 38 at footnote 1). The Plaintiffs-Appellants timely moved the Appellate Division, Third Judicial 1 All references to pages in the Record on Appeal will be designated “(R. ___).” 2 Department for permission to appeal to the Court of Appeals, and the motion was granted on January 6, 2016 (R. 36). Pursuant to CPLR §5515(3), the Clerk of the Appellate Division, Third Judicial Department sent a copy of the Decision and Order which granted permission to appeal to the Clerk of the Court of Appeals on January 6, 2016 (R. 43). In accordance with CPLR §5713, the Appellate Division held that a question of law relating to apportionment under Article 16 of the C.P.L.R. had arisen which it believed ought to be reviewed by the Court of Appeals (R. 36). The Court of Appeals acknowledged receipt of the Decision and Order on January 11, 2016 (R. 44). QUESTIONS PRESENTED The sole questions presented to this Court are whether, under C.P.L.R. §1601, the liability of the State of New York, who can only be sued in the Court of Claims, can be proven by this Defendant in the Supreme Court action and whether the fact-finder is to apportion liability between the named Defendant and the non- party State. Answers Below: The Appellate Division held that the Defendant- Respondent can submit proof tending to show the liability of the non-party State of New York and that the fact-finder should be allowed to apportion liability among the parties and non-party State. 3 NATURE OF THE CASE A. Statement of Facts On August 15, 2011 at approximately 4:30 p.m., Plaintiff Carol Artibee was traveling north on State Route 9N, also known as Lake Shore Drive (R. 11). As she traveled in front of the property known as the Bixby Estate, near the intersection with Mohican Road, in the Town of Bolton, a large branch or limb broke off a tree on the Bixby property that bordered Route 9N, fell through Mrs. Artibee’s soft top Jeep roof, and struck her in the head (R. 11-12). Plaintiff sustained a severe laceration to her forehead, which resulted in sutures and permanent scarring, and other significant injuries, which required surgeries for her neck and lower back (R. 12-13). Defendant Home Place Corporation is the owner of what is commonly known as the Bixby Estate, located adjacent to Route 9N, and the shores of Lake George, in the Town of Bolton (R. 10-11 and 15). Plaintiffs commenced an action against Defendant in Supreme Court, Warren County on January 12, 2012 (R. 9-14). Plaintiffs’ action alleged that the tree from which the branch fell, injuring Carol Artibee, was “devoid of leaves and appeared to be dead or diseased” and had “dead branches” (R. 11-13). The Complaint alleged, inter alia, that Defendant Home Place Corporation was negligent in failing to inspect, trim and remove the dead or diseased tree (R. 12). 4 Defendant Home Place Corporation answered the Complaint on January 31, 2012, and denied the substantive allegations (R. 15-16). Defendant asserted four affirmative defenses, including a defense under Article 16 whereby it alleged that there was negligence of a third-party that caused the accident, and that said third-party was not under the control of the Defendant (R. 16). In addition to the action against Defendant Home Place Corporation, the Plaintiffs Carol and James Artibee filed a claim against the State of New York in the Court of Claims (R. 18 and 20-21). The theory against the State of New York, and more specifically the Department of Transportation (DOT), was that State employees were negligent in their failure to monitor open and obvious hazards alongside the State highway (i.e. the dead tree) and to remedy this specific dangerous condition or warn the property owner or drivers of the hazard (R. 18 and 21). B. The Lower Court’s Ruling on Apportionment After a pre-trial conference, counsel for Defendant Home Place Corporation wrote to and identified the issue of Article 16 apportionment to the Trial Judge, as had been requested by the Trial Judge (R. 18-19). In arguing about the State’s potential involvement in a negligence claim, Defendant noted that, in deposition testimony, State DOT officials allegedly acknowledged its employees’ obligation to deal with dangerous trees or limbs adjacent to State highways (R. 18). 5 Therefore, Defendant sought to introduce evidence of the State’s negligence and to have the jury apportion fault between the potential tortfeasors Defendant Home Place Corporation and the non-party State of New York (R. 18-19). Counsel for the Plaintiffs objected to Defendant’s application for an apportionment charge to the jury (R. 20-21). On November 6, 2014, the Trial Judge, David B. Krogmann, decided the issue of apportionment and ruled that while the evidence of the State’s negligence would be admissible, the jury would not be allowed to apportion liability between Defendant Home Place Corporation and the non-party State of New York (R. 5-8). Justice Krogmann stated that the Defendant was, in essence, seeking “to have the jury apportion liability amongst itself and a constitutionally mandated empty chair” (R. 6) and specifically held that no apportionment charge would be given (R. 8). The Trial Judge, recognizing that it had in effect granted summary judgment dismissing Defendant’s claim for apportionment, stayed the trial, over the objections of Plaintiffs’ counsel, pending an Appellate Court’s review of this issue. (R. 25-33). The Appellate Division, Third Judicial Department, by a 3-1 vote, determined that evidence of the State’s negligence was admissible at trial in the Supreme Court and that the jury should be charged on the State’s liability so the 6 jury could apportion fault between Defendant Home Place Corporation and the non-party State of New York (R. 37-42). ARGUMENT POINT I THE LEGISLATURE DID NOT INTEND TO ALLOW APPORTIONMENT OF THE STATE’S LIABILITY IN A PERSONAL INJURY ACTION IN NEW YORK STATE TRIAL COURTS OUTSIDE THE COURT OF CLAIMS. A. The Plain Language of C.P.L.R. §1601 Allows The Court of Claims To Apportion A Non-Party’s Liability. Once again, this Court is faced with interpreting the highly compromised Article 16 of the C.P.L.R. dealing with limited liability of persons jointly liable. This Court has visited this Article on many occasions and has noted that it is not a paradigm of clarity, noting that “it has in practical application engendered difficulty.” Chianese v. Meyer, 98 N.Y.2d 270, 275 (2002). C.P.L.R. §1601(1) in its entirety reads: Notwithstanding any other provision of law, when a verdict or a 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 fifty percent or less of the total liability assigned to all persons liable, the liability of such defendant to the claimant for non-economic loss shall not exceed the defendant’s equitable share determined in accordance with the relative culpability of each 7 person causing or contributing to the total liability for non-economic 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 section eleven of the worker’s compensation law. Undoubtedly, the overall purpose of this Article is to modify the common law rule of joint and several liability. This Court has recognized that Article 16 was intended to remedy the inequities created by joint and several liability on low- fault, deep-pocket defendants (see e.g., Rangolan v. County of Nassau, 96 N.Y.2d 42, 46 [2001]). In drafting the statute, the Legislature, as will be more fully explained in this brief, recognized the practical and very real problems that would arise by virtue of the existence of two parallel and primary statewide trial courts: The Supreme Court and the Court of Claims. The Supreme Court has general jurisdiction over personal injury lawsuits against all tortfeasors (who are subject to the jurisdiction of the court). The Court of Claims is a creature of the State Constitution and an enabling statute (Constitution of the State of New York, Article VI, Section 9; Court of Claims Act 8 Section 8). By virtue of these sections, the State has waived its sovereign immunity, conditioning that immunity on claimant abiding by the limitations of the Court of Claims Act (see Court of Claims Act Section 8). The State is the only defendant subject to jurisdiction in the Court of Claims. Reality is such that another potential tortfeasor could be liable for the same injury but that other potential tortfeasor is not subject to the jurisdiction in that Court. The Legislature in C.P.L.R. §1601 specifically addressed this situation by allowing the Court of Claims to consider an apportionment of liability of non-party tortfeasors. The effect of this apportionment is to potentially reduce the liability of the State, as when the Court of Claims assesses liability against a non-party defendant, the State’s liability is reduced at the expense of the claimant. The non-party tortfeasor, not being a party to the Court of Claims action, is not bound by the Court of Claims’ decision and the claimant, in order to pursue recovery against the non- party tortfeasor must bring an action in Supreme Court. See e.g., O’Connor v. State, 70 N.Y.2d 914 (1987). This procedure could produce inconsistent results. Indeed, a consistent result would seem to be the rare exception. The Legislature clearly placed the burden on the claimant and did so specifically by using terms that are clear and unambiguous, so the court can readily give effect to the plain meaning of the words. Orens v. Novello, 99 N.Y.2d 180, 9 185 (2002), quoting Patrolmen’s Benevolent Assn. v. City of New York, 41 N.Y.2d 205, 208 (1976). Distilled to its relevant language, the statute provides: …[W]hen a … decision in [a] claim for personal injury is determined in favor of a claimant … in a claim against the State and the liability of a defendant [the State] is found to be fifty percent or less of the liability assigned to all persons liable, the liability of such a defendant [the State] to the claimant for non- economic loss shall not exceed that defendant’s [the State’s] equitable share determined in accordance with the relative culpability of each person causing or contributing to the total liability for non-economic loss...2 Since the State can only be sued for personal injury in the Court of Claims, and since the statute contemplates that the State should only be liable for its share as compared to other tortfeasors, then it is apparent that the Legislature, by virtue of the above cited language, directed the Court of Claims to apportion liability against non-State, non-party tortfeasor(s). This result is further underscored by the first proviso in the C.P.L.R. §1601 (1). That proviso states: …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 2 Reference to “the State” has been added for clarification and would only apply when relating to a claim in the Court of Claims. 10 unable to obtain jurisdiction over such person … (in a claim against the state, in a court of the state) (emphasis added). As that proviso notes, as long as a claimant in a Court of Claims action could have started an action against a non-State tortfeasor in any court in the State of New York, then the Court of Claims can consider the liability of that non-party tortfeasor in its decision and apply the limitations on joint and several liability prescribed in Article 16. B. The Legislature Did Not Intend To Allow The Fact-Finder In The Supreme Court To Apportion The Liability Of The Non-Party State of New York. 1. Significantly, C.P.L.R. §1601 is silent on whether the fact-finder in the Supreme Court may consider and apportion the liability of the non-party State of New York. The Court’s analysis should always begin with the language of the statute. “If the terms are clear and unambiguous, the court should construe it so as to give effect to the plain meaning of the words used”. Orens v. Novello, 99 N.Y.2d 180, 185 (2002) (quoting Patrolmen’s Benevolent Assn. v. City of New York, 41 N.Y.2d 205, 208 (1976). “The Court’s objective is to discern and apply the will of the legislature, not the Court’s own perception of what might be equitable.” Orens at 185 (quoting Sutka v. Conners, 73 N.Y.2d 395, 403 [1989]). 11 Here, the Legislature included specific, clear and unambiguous language which permits the Court of Claims to consider the liability of a non-party tortfeasor. It is apparent, therefore, that the Legislature was aware of the practicalities and problems posed by the existence of these two parallel paths, one in the Court of Claims and one in Supreme Court. Conversely, the Legislature did not use any language to allow the fact-finder in a Supreme Court action to consider the liability of the State. See e.g., Rezucha v. Garlock Mechanical Packing Co., 159 Misc. 2d 185, 189 (Sup. Ct. Broome Cty. 1993); Alexander’s Practice Commentaries McKinney's Cons. Laws of NY, Book 7B, C.P.L.R., C§ 1601:3 Shares of Nonparties: the State as a Tortfeasor; Siegel, New York Practice (5th Ed.), § 168C. The silence of the Legislature is resounding. The omission demonstrates the Legislature’s intent not to allow apportionment of the State’s liability in Supreme Court. (See McKinney’s Statutes § 363: Generally, omissions in a statute cannot be supplied by construction.) This Court’s decision in Morales v. County of Nassau, 94 N.Y.2d 218 (1999) is not only instructive but may be determinative of the issue before this Court. A review of the Morales case is warranted. In Morales, the plaintiff pulled her car into an area where Nassau County police officers were investigating an accident. She jumped out of her car, screaming for help, showing the officers an order of protection she had obtained against her husband and she advised the police 12 that her husband was in the car and threatening her with a knife. The officers removed the plaintiff’s husband from the vehicle and one of the officers assured the plaintiff that they would take care of her husband. The officers did not arrest the husband and the next day, while the plaintiff was leaving to go to work, her husband attacked her and inflicted severe injuries. Morales at 222. The plaintiff sued the County of Nassau but did not sue her husband and the County did not implead the husband. Morales at 222. The plaintiff did not plead any exemptions to Article 16. The Court addressed two issues raised under C.P.L.R. Article 16, but only the second issue, whether public policy favoring the enforcement of orders of protection overrides Article 16, is relevant to our appeal. The plaintiff, not having plead any of the exemptions to Article 16, argued that the strong public policy calling for the enforcement of orders of protection should make Article 16 inapplicable. Stated another way, Article 16 limited the application of joint and several liability and the plaintiff failed to plead any of the exemptions in the Article to avoid the limitations. Hence, plaintiff argued that the strong public policy of enforcing orders of protection should be recognized by the Court so as to make the limitations of article 16 inapplicable and to allow the common law rule of joint and several liability to carry the day. The Court of Appeals in Morales noted that there is indeed a strong public policy of encouraging enforcement of orders of protection, but that the Legislature, in enacting Article 16, 13 chose not to include such an exemption, and hence, the court refused to engraft into the statute such an exemption. Morales at 224. The rationale of the Morales Court is equally applicable in this appeal. Although this appeal does not involve the list of exemptions in C.P.L.R. §1602, this appeal does involve the interpretation of the same statute. The Morales Court specifically noted that the Legislature chose to include certain exemptions and not others. The Court’s rationale is as follows: This Court has repeatedly declined to interfere with the Legislature’s policy choices as beyond the realm of judicial authority (citations omitted). When the Legislature has spoken, indicating its policy preferences, it is not for courts to superimpose their own. Here, the Legislature has spoken. In section 1602, it has provided an extensive list of exemptions from the modified, joint and several liability rule. Relying on the standard canon of construction of expressio unius est exlusio (sic.) alterius, we can infer that the expression of these exemptions in the statute indicates an exclusion of others. This is especially true in the case of article 16, which as demonstrated by its legislative history, was the product of a painstaking balance of interests. These interests included, among many others, the burdens to be imposed on innocent plaintiffs as well as a concern that defendants at fault to a small degree were consistently paying a disproportionate share of damages awards, adversely affecting the availability and affordability of liability insurance. 94 N.Y.2d at 224-225. 14 Applying the very principles that this Court has previously applied to this Article, the Court should reach the ineluctable conclusion that the failure of the Legislature to provide for an apportionment of the State’s liability in a Supreme Court action was purposeful and intended. 2. C.P.L.R. Article 16 is a product of a painstaking balance of interests and the Court should not impose a result that is not justified by the language of the statute. Article 16 is “a product of a painstaking balance of interests.” Morales v. County of Nassau, 94 N.Y.2d 218, 224 (1999). Although it is true that the primary purpose of Article 16 is to modify the common law rule of joint and several liability, it is also true that the legislation is replete with exceptions and savings provisions. Indeed, as the Governor explained in approving this legislation: The crafting of these exceptions in savings provisions reflects careful deliberations over the appropriate situations for modified, joint and several liability rule … Governor’s Approval Mem, Bill Jacket, L 1986, ch. 682, reprinted 1986 NY LEGIS ANN, at 289. The Legislature had to make policy decisions in balancing these competing interests and those decisions are best-reflected and embodied in the language of the statute. By using language allowing the Court of Claims to consider and apportion liability between the State and the non-party tortfeasor(s), the Legislature was 15 obviously fully aware of the paradox posed by the parallel trial courts. Hence, the absence of language to address the converse situation can only be regarded as a deliberate and considered policy choice by the Legislature, a choice that this Court must not interfere with as beyond the realm of judicial authority. In Cruz v. TD Bank, 22 N.Y.3d 61 (2013), the Court of Appeals was faced with a question of statutory interpretation. The plaintiff in that case argued that a private cause of action had been created by a statute, but the Court found the statute did not have language to justify that conclusion. “[C]ourts typically do not rely on legislative silence to infer a significant alteration of existing law on the rationale that legislative bodies generally do not ‘hide elephants in mouse holes” (see generally, Whitman v. American Trucking Assn., 531 U.S. 457, 468 [2001])”. Here, Article 16 makes a significant alteration of the common law rules of joint and several liability. The Legislature spoke on the application of Article 16 as it specifically relates to cases in the Court of Claims. The statute, however, is silent in regard to the scenario before this Court. As this Court has previously noted, courts should not rely on legislative silence to infer a further significant alteration. In the case at bar, this Court should not infer that the Legislature intended, by its silence, such a significant alteration of the common law of joint and several liability by allowing an apportionment of the State of New York in a Supreme Court action. 16 3. The Legislature could easily have chosen language to make clear that apportionment in both instances was available. The Court should interpret the language used by the Legislature and give that language its ordinary meaning. It should not engraft language that is not reflected in the statute. Such an interpretation of the statute would be forced and artificial. “The legislative intent is to be ascertained from the words and language used, and the statutory language is generally construed according to its natural and most obvious sense, without resorting to any artificial or forced construction.” McKinney’s Cons Laws of NY, Book 1, Statutes, Section 94. POINT II CASE LAW ALLOWING APPORTIONMENT AGAINST NON-PARTY BANKRUPTS AND AGAINST EMPLOYERS OF INJURED PLAINTIFFS IS DISTINGUISHABLE AND NOT CONTROLLING. A. Case Law Relied Upon by Defendant-Respondent At The Appellate Division That Apportionment Against Non-Party Tortfeasors In Bankruptcy Is Allowable Is Not Relevant To This Appeal. Plaintiffs-Appellants anticipate that the Defendant-Respondent may, incorrectly, argue in support of its position that apportioning liability against tortfeasors who are in or have gone through bankruptcy is allowed, and therefore courts have recognized that such apportionment against non-parties is well- entrenched in New York jurisprudence and should be allowed in the case at bar. 17 These cases, however, are distinguishable and have no precedential value to the facts presented on this appeal. For example, in Matter of New York City Asbestos Litigation, 194 Misc. 2d 214 (Sup. Ct. N.Y. Cty. 2002), Supreme Court Justice Freedman was faced with a significant issue for asbestos litigation. By the time the motion was presented to Justice Freedman, many of the initial primary asbestos defendants had filed for bankruptcy thereby staying the personal injury actions in State Supreme Court (see also, In re Eastern and Southern Districts Asbestos Litigation, 772 F. Supp. 1380 (1991), aff’d. in part, rev’d. in part, 971 F2d 831 [2nd Cir. 1992]) (“the Brooklyn Navy Yard cases”). To circumvent this legal impediment to obtaining redress for their clients, plaintiffs’ attorneys commenced lawsuits against downstream users or distributors of asbestos containing products. In that group of cases, the issue of whether the liability of the primary target defendants, who were in bankruptcy, should be apportioned with the secondary defendants was of critical importance. Justice Freedman’s decision was that apportionment should be allowed and her decision and order was ultimately affirmed by the First Department. See Tancredi v. A.C.&S., Inc. (In re New York City Asbestos Litigation), 6 AD3d 352 (1st Dept. 2004). Based on the arguments made before the Appellate Division and the rationale of the Appellate Division, Plaintiffs-Appellants believe that the Defendant-Respondent will rely upon this line of cases in support of its position. 18 See also Zakshevsky v. City of New York, 149 Misc. 2d 52 (Sup. Ct. Kings Cty. 1990); Hendrickson v. Philbor Motors, Inc., 102 A.D.3d 251, 254 (2nd Dept. 2012); Kharmah v. Metro. Chiropractic Ctr., 288 A.D.2d 94 (1st Dept. 2001) citing Duffy v. County of Chautauqua, 225 A.D.2d 261, 266 (4th Dept. 1996). For the reasons set forth in the next point the Defendant-Respondent’s position is incorrect. B. Case Law Relied Upon by Defendant-Respondent In The Appellate Division That Apportionment Against The Employer Of The Plaintiff Is Allowable Is Not Relevant To This Appeal. Based upon arguments at the Appellate Division and the rationale of the Appellate Division, Plaintiffs-Appellants also believe the Defendant-Respondent may rely upon a line of cases holding that the liability of an employer of the injured plaintiff may be apportioned even though the plaintiff may not sue his employer directly due to the Workers’ Compensation Law Sections 11 and 29(6). See e.g., Duffy v. County of Chautauqua, 225 A.D.2d 261, 266 (4th Dept. 1996); Brown v. State of New York, 268 A.D.2d 548 (2nd Dept. 2000) These cases are inapposite. The cases finding that the liability of bankrupt non-party defendants should be considered by the Supreme Court are based upon the first proviso in C.P.L.R §1601 and more particularly, in regard to the definition of “jurisdiction.” Similarly, the cases that allow the Supreme Court fact-finder to 19 apportion liability of the plaintiff’s employer are premised on the issue of jurisdiction found in the first proviso. Another review of the language of the statute is warranted. The initial language of C.P.L.R §1601, the language that precedes the word “provided,” sets forth the new rule modifying the common law rule of joint and several liability. The first proviso, introduced by the word “provided,” states that the limitations thus created do not apply where the plaintiff or claimant was “unable to obtain jurisdiction” over another non-party tortfeasor. Simply stated, if the claimant can prove that he or she could not obtain jurisdiction over a potential tortfeasor, that tortfeasor’s liability would not be apportioned by the fact-finder. The common law rule of joint and several liability would apply. Case law has established that “jurisdiction” in C.P.L.R §1601 is personal jurisdiction, not subject matter jurisdiction. Hence, the Appellate Division, in the New York City Asbestos Litigation matter held: 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 C.P.L.R. Article 16. To the extent that such entity’s culpability is fifty percent or less, exposure for non-economic damages can still be calculated in apportioning liability. The lynchpin of the decision is the interpretation of “jurisdiction” in the first proviso. Defendant-Respondent’s argument in the case at bar has nothing to do 20 with that proviso or the concepts raised in those cases. Rather, Plaintiffs- Appellants argument is founded upon the Legislature’s intentional omission in the statute granting power to the fact-finder in Supreme Court actions to apportion the liability of the non-party State as contrasted with the intentional inclusion of the Court of Claims’ ability to apportion liability of a non-party tortfeasor who is otherwise subject to the jurisdiction of the courts of New York. C. The Case Of Rezucha v. Garlock Mechanical Packing Co. Inc. Does Not Accurately State the Legislature’s Intent. The reasoning that there is a significant difference between the Legislature’s silence, on one hand, while intentionally addressing the Court of Claims’ ability to apportion liability of a non-party party tortfeasor who is otherwise subject to the jurisdiction of the courts of New York on the other hand, applies to the case of Rezucha v. Garlock Mechanical Packing Co. Inc., et al, 159 Misc. 2d 855 (Sup. Ct. Broome Cty. 1993), the only other known case squarely dealing with the issue that is presented on this appeal. Supreme Court Justice Rose held that the State’s liability could be considered and apportioned in Supreme Court. Rezucha of course, being a Supreme Court case, is not binding on this Court. Justice Rose’s rationale was in large part premised on the jurisdictional issue. Rezucha at 859. Again, this is not the foundation of the Plaintiffs- Appellants’ argument, so the Rezucha case is not instructive much less determinative on the ultimate conclusion. 21 Justice Rose also noted that the statute does not consider expressly the converse situation where the State is a tortfeasor over whom jurisdiction cannot be obtained in Supreme Court. Significantly, although Justice Rose recognized the distinction in the statute, there is nothing in the decision to indicate the argument set forth by the Appellants-Plaintiffs’ herein, that the omission by the Legislature was intended, was raised or considered by Justice Rose.3 Rather, the opinion is founded on the jurisdictional arguments set forth in the proviso. The Rezucha decision is, quite obviously, not binding on this Court, and the decision did not address the primary argument propounded to this Court. POINT III EVIDENCE OF THE STATE’S LIABILITY SHOULD NOT BE PERMITTED IN SUPREME COURT AS THE DEFENDANT- RESPONDENT IS NOT WITHOUT RECOURSE IN THE EVENT IT BELIEVES IT HAS OVERPAID AS RESULT OF THE FACTFINDER’S VERDICT IN SUPREME COURT. C.P.L.R. §1601(1) allows the State to have the Court of Claims consider the fault of the absent tortfeasor; however, there is no statutory authority to allow the reverse, i.e., allowing a defendant to include the State as a co-tortfeasor in the 3 Appellant’s counsel attempted to obtain from the Broome County Clerk’s Office the underlying papers presented to Justice Rose on the motion in limine, but Appellant’s counsel was advised by the search company retained to retrieve the records that no such papers were filed in the Clerk’s Office. 22 Supreme Court action. Thus the prejudice to the Plaintiffs-Appellants, in permitting proof of the possible liability of an absent tortfeasor, the State, from which Plaintiffs- Appellants may never be able to recover, is too great (R. 7). Furthermore, should the Defendant-Respondent be found liable in the Supreme Court action, the Defendant-Respondent is not without recourse. If the Defendant- Respondent believes that the State is wholly or partially liable, and hence Defendant-Respondent believes it has overpaid its share, the Defendant- Respondent can seek contribution from the State for the verdict rendered against it, as the Defendant-Respondent can sue the State for contribution (R. 7 and C.P.L.R. §1401). In Walter v. White-Bonn, Inc., 8 A.D.3d 715 (3rd Dept. 2004) a project construction manager sued the State land owner in the Court of Claims and the general contractor in Supreme Court for injuries he sustained on the job site. The defendant general contractor sought a bar and a reduction of its liability based upon the Court of Claims’ findings of 50% comparative negligence. The Appellate Division, Third Department held that the “[d]efendant [general contractor] could not have been sued in the Court of Claims and . . . the negligence of the State [was] not equal to that of defendant.” (Id. at 716). As both O’Connor, 70 N.Y.2d 914 (1987), and Walter establish, the issues of liability between a plaintiff and the State and a plaintiff and a non-State defendant are “discreet and separate issues.” See 23 O’Connor, 70 N.Y.2d at 915-916; Walter, 8 A.D.3d at 716. Accordingly, the admission of the State’s alleged negligence in the Supreme Court action is wholly improper – as it plays no role in determining the comparative negligence of the parties to the Supreme Court action. Further, if evidence of the State is permitted in Supreme Court, Plaintiffs- Appellants, will be placed in the awkward and perhaps untenable situation of having either to “defend” the State of New York or to allow the Defendant to put in uncontested proof against the constitutionally-mandated empty chair. If Plaintiffs-Appellants opt for the first choice when Plaintiffs-Appellants then proceed to the Court of Claims, the transcript of the Supreme Court action could be used in the claimant’s action against the State with the potential for embarrassingly disastrous results to the Plaintiffs-Appellants and which could implicate the ethics of counsel. If the second choice is opted for, the potential for a disastrous result in Supreme Court is self-evident and the potential for inconsistent results in the two courts, to the prejudice of the innocent plaintiff, is manifest. Based upon the foregoing, evidence of such alleged negligence by the State is inadmissible in the Supreme Court action, as the State cannot be held liable therein, and the Appellate Division, Third Judicial Department improperly found that evidence of the State’s liability could be admitted at trial and be submitted for the jury’s consideration. CONCLUSION The Order of the Appellate Division, Third Judicial Department should be reversed and the Motion of the Defendant-Respondent denied by ordering that C.P .L.R. § 1601 does not permit apportionment of liability of the State of New York in Courts. Dated: March 7, 2016 By: TO: Thomas Johnson, Esq. Respectfully Submitted, , RYAN & PARTNERS, P.C. R bert H. oughr , Jr, f Counsel Attorneys for Plaintiffs-'Appellants Office and P.O. Address: 450 New Karner Road, P.O. Box 15072 Albany, New York 12212 Tel. No.: (518) 452-1800 Bailey, Kelleher & Johnson, P.C. Attorneys for Defendant-Respondent Pine West Plaza 5, Suite 507 Washington A venue Extension Albany, New York 12205 Tel. No.: 1-(866)-360-5650 24