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. REPLY 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: May 5, 2016 i STATUS OF RELATED LITIGATION The Supreme Court trial for this case has been rescheduled by Justice Robert J. Muller from May 9, 2016 to September 26, 2016. The Plaintiffs-Appellants also have an action arising from the same accident in the Court of Claims under Claim number 123050. The Court of Claims held a telephone conference on April 11, 2016 at which time the filing date for the Note of Issue was adjourned indefinitely to allow the parties to conduct remaining discovery. The Court scheduled a further telephone conference on May 26, 2016. ii TABLE OF CONTENTS Page No. STATUS OF RELATED LITIGATION .................................................................... i TABLE OF AUTHORITIES ................................................................................ iv-v ARGUMENT ............................................................................................................. 1 POINT I THE DEFENDANT-RESPONDENT’S ASSERTION THAT THE SOLE LIMITATION OF APPORTIONMENT IN CPLR 1601(1) RELATES TO PERSONAL JURISDICTION IS INCORRECT. ........................................... 1 POINT II THE LEGISLATIVE HISTORY DOES SUPPORT THE ARGUMENT THAT THE STATE’S LIABILITY CANNOT BE APPORTIONED IN STATE SUPREME COURT. ................................................................................... 6 POINT III THERE ARE REASONS THAT THE LEGISLATURE TREATED THE STATE DIFFERENTLY. ........................................................................................................ 7 POINT IV DEFENDANT-RESPONDENT’S ARGUMENT THAT PREVIOUS COURT OF APPEALS’ DECISIONS DO NOT SUGGEST THAT THE STATE’S LIABILITY CANNOT BE DETERMINED IN SUPREME COURT IS WITHOUT MERIT. .................................................... 9 POINT V THE CASE OF MORALES V. COUNTY OF NASSAU IS INDEED SIGNIFICANT.................................................................................. 10 iii POINT VI CONTRARY TO DEFENDANT-RESPONDENT’S POSITION, PLAINTIFFS-APPELLANTS’ INTERPRETATION WOULD NOT ELIMINATE TORTFEASORS BY VIRTUE OF BANKRUPTCY OR THE WORKERS’ COMPENSATION LAW. ................................................. 12 POINT VII DEFENDANT-RESPONDENT’S ARGUMENT THAT ITS POSITION HAS BEEN UPHELD BY OTHER COURTS IS IRRELEVANT AND INACCURATE. .......................................................................................................... 16 POINT VIII DEFENDANT-RESPONDENT’S ARGUMENT IN REGARD TO THE EMPTY CHAIR ARE UNAVAILING. .......................................................................................................... 20 POINT IX EVIDENCE OF THE STATE’S LIABILITY SHOULD NOT BE ADMITTED IN THE SUPREME COURT. .................................................................................................. 22 CONCLUSION ........................................................................................................... 23 iv TABLE OF AUTHORITIES CASE: PAGE NO. Cruz v. TD Bank 22 N.Y.3d 61 (2013) ................................................................................................. 3 Dole v. Dow Chemical 30 N.Y.2d 143 (1972) ....................................................................................... 13, 15 Engle v. Talarico 33 N.Y.2d 230 (1973) ....................................................................................... 18, 20 Majewski v. Broadalbin-Perth Central School District 91 N.Y.2d 577, 589 (1998)……………………………………………………….13 Morales v. County of Nassau 94 N.Y.2d 218 (1999) ............................................................................... 1, 8, 10, 11 O’Connor v. State of New York 70 N.Y.2d 914 (1987) ............................................................................................. 22 Patrolmen’s Benevolent Assn. v. City of New York 41 N.Y.2d 205 (1976) ............................................................................................. 11 Rangolan v. County of Nassau 96 N.Y.2d 42 (2001) ........................................................................................... 1, 10 Rezucha v. Garlock Mechanical Packing Co. 159 Misc. 2d 185 (Sup. Ct. Broome Cty. 1993) ........................................... 3, 17, 19 Walter v. White-Bonn, Inc. 8 A.D.3d 715 (3rd Dept. 2004) ............................................................................... 22 Whitman v. American Trucking Assn. 531 U.S. 457 (2001) .................................................................................................. 3 STATUTES CPLR §1601 ......................................................................................................passim v CPLR §1602 ......................................................................................................passim General Obligations Law 15-108 ............................................................................. 20 Workers’ Compensation Law Section 11 .................................................... 13, 14, 16 Workers’ Compensation Law Section 29(6) ........................................................... 13 TREATISES and COMMENTARIES Alexander's Practice Commentaries McKinney's Cons. Laws of NY, Book 7B, CPLR, C§ 1601:3 ............................................................................................... 17, 18 Governor’s Approval Memorandum, Bill Jacket L 1986, Ch. 682, reprinted 1986 NY LEGIS ANN at 289 ............................................................................................. 1 Memorandum of Attorney General to Governor Mario Cuomo (July 21, 1986), included in Bill Jacket 4 S. 99391-A .......................................... 6, 7 Session Laws Chapter 635, Assembly Bill 11331 found at 1996 N.Y. AN 11331 ................................................................................. 14 Siegel, New York Practice, (5th Ed.), § 168C. ........................................................ 17 1 ARGUMENT POINT I THE DEFENDANT-RESPONDENT’S ASSERTION THAT THE SOLE LIMITATION OF APPORTIONMENT IN CPLR 1601(1) RELATES TO PERSONAL JURISDICTION IS INCORRECT. The Defendant-Respondent properly acknowledges that the general purpose of CPLR Article 16 was to curb the common law principle of joint and several liability. The Defendant-Respondent improperly, however, draws the mistaken conclusion that the Plaintiffs-Appellants’ interpretation is incorrect because it is inconsistent with that general purpose. What is readily apparent by reading CPLR article 16 is that the article is not a wholesale elimination of joint and several liability. The article is a result of compromises among competing interests voiced during the legislative process: burdens to be imposed upon innocent plaintiffs as well as a concern that the defendants at fault to a small degree, were consistently paying a disproportionate share of damages and awards. See e.g., Morales v. County of Nassau, 94 N.Y.2d 218, 224 (1999); Governor’s Approval Memorandum, Bill Jacket L 1986, Ch. 682, reprinted 1986 NY LEGIS ANN at 289. Accordingly, to assure that the full intent of the statute is discerned the statute must be read as a whole. Rangolan v. County of Nassau, 96 N.Y.2d 42 (2001). The abstruse language of CPLR 1601 itself 2 demonstrates the difficulty the Legislature had in trying to achieve the delicate balance of these competing interests. The Defendant-Respondent’s position that the Plaintiffs-Appellants’ interpretation is not consistent with the general purpose of the statute is not the equivalent of stating that the Plaintiffs-Appellants’ interpretation is not consistent with the legislative intent. Indeed, the Plaintiffs-Appellants’ interpretation is consistent with the legislative intent which is the controlling methodological path this Court is to take. The Defendant-Respondent’s argument is primarily, if not solely, focused on the word “jurisdiction” in the first proviso of CPLR 1601. The Defendant- Respondent goes so far as to say that in interpreting the limitation in the first proviso to the general provision “…the Court must consider whether that limitation should be interpreted broadly, so as to exclude an entire class of tortfeasors from apportionment, or whether the limitation itself must be interpreted in light of the parenthetical clause which clearly narrows the limitation so as to permit apportionment to be applied to an entire class of tortfeasors that would have been eliminated in its absence.” Brief of Defendant-Respondent, pp.7-8. This direction to the Court as to how it must interpret the statute is without citation to case law or any rules of construction. 3 In any event, the Defendant-Respondent’s focus on the issue of personal jurisdiction as the sole limitation placed on the scope of joint and several liability of Section 1601 is simply wrong. Plaintiffs-Appellants’ argument is founded on the Legislature’s intentional omission in the statute to the Supreme Court’s ability to apportion the State’s liability as compared to 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 other courts in New York. There is no dispute among the parties and the State, which has filed an amicus curiae brief, that CPLR 1601, and more specifically the general provision referred to by the Defendant-Respondent, allows apportionment in the Court of Claims. Whether the statute is silent on the converse situation as noted Professors Alexander and Siegel and by the Supreme Court Justice in Rezucha v. Garlock Mechanical Packing Co., Inc., 159 Misc. 2d 855 (Sup. Ct. Broome Co. 1993) or whether the first proviso fills the gap, the result is the same. The State’s liability is not subject to apportionment outside of the Court of Claims. If the statute is silent then it must be assumed that the Legislature, having recognized the problems posed by the parallel trial courts, was silent for a reason: that the Legislature did not intend to effectuate such a radical change. Cruz v. TD Bank, 22 N.Y.3d 62 (2001); Whitman v. American Trucking Assoc., 531 U.S. 453, 4 468 (2001). The inclusion of the one circumstance without addressing the second circumstance was purposeful and intentional, the Legislature making a policy choice based on the competing interests. The Court should interpret the statute to effectuate that choice. If the statute is not silent then that silence is broken by the word, “said” in the first proviso, the proviso so heavily relied upon by the Defendant-Respondent. Once again that language, with emphasis added, is as follows: First Proviso: …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 Parenthetical (or in a claim against the state, in a court of this state); The parenthetical clause means and underscores that in a Court of Claims’ action (where the only defendant is the State of New York) if the absent tortfeasor can be sued in any other court in New York, then apportionment is available in the Court of Claims. There appears to be no controversy with this proposition. The issue then turns to the converse. Can the State’s liability be apportioned in Supreme Court? The first proviso, before the parenthetical, states that if a claimant in Supreme Court is unable to obtain jurisdiction over a tortfeasor in that Supreme Court action, then the liability of that absent tortfeasor is not to be considered. Stated the opposite way, in a Supreme Court action if the absent 5 tortfeasor can be sued in “said” action, then apportionment is available for that absent tortfeasor. The fact is, however, the State cannot be sued in “said” action, as it can never be made a party to a Supreme Court action. Therefore, the liability of the State can never be determined in Supreme Court. Hence, the statute may not be silent on whether the State’s liability can be determined in Supreme Court. In any event, it would have been a simple thing for the Legislature to say what Defendant-Respondent is arguing. If the Legislature omitted but a few words in CPLR 1601(1), as shown in the following language, it could have easily have achieved the position espoused by the Defendant-Respondent. …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);… Deletion added. With this language, the claimant can obtain jurisdiction of the State in a court of this state, the Court of Claims. Therefore, since the claimant could obtain jurisdiction then the culpable conduct of the absent tortfeasor could be considered in Supreme Court. But this is not the language chosen by the Legislature. As this Court is to give meaning to all the words of the statute, it is submitted that the Defendant-Respondent’s interpretation must be rejected. 6 Notably, in neither the Brief addressed to the Plaintiff-Appellant nor the Brief addressed to the State of New York does the Defendant-Respondent address the impact of the word “said” in the first proviso. This argument was made in the amicus brief submitted by the State of New York, on page 9 of that brief, and has been completely ignored by the Defendant-Respondent’s answering brief. POINT II THE LEGISLATIVE HISTORY DOES SUPPORT THE ARGUMENT THAT THE STATE’S LIABILITY CANNOT BE APPORTIONED IN STATE SUPREME COURT. The Memorandum of Attorney General to Governor Mario Cuomo ([July 21, 1986] at 4, included in Bill Jacket 4 S. 99391-A at 14) does support the proposition that the Attorney General sought to ensure that the State could take advantage of the modifications to the joint and several liability in the Court of Claims. The Defendant-Respondent focuses on the use of the term “technical changes” in that memorandum and insinuates that a technical change is not a substantive change, but when that term is read in context it is evident that the changes relate to the ability of the State to obtain apportionment of an absent tortfeasor in the Court of Claims. First, because the State, which is often perceived as having a “deep pocket” frequently pays more than its apportionment share of total liability in the cases brought against it in the Court of Claims, technical changes were made to ensure that 7 the State can take advantage of the modifications in joint and several liability contained therein. Memorandum of Attorney General to Governor Mario Cuomo ([July 21, 1986] at 4, included in Bill Jacket 4 S. 99391-A at 14). It is evident that the language can refer to nothing other than the State requesting and obtaining the right of having apportionment in the Court of Claims. If the statute were as clear as the Defendant-Respondent argues, that is there are no limitations on apportionment other than lack of personal jurisdiction, there would have been no need for any specific changes relating solely to the State. Hence, the Attorney General’s Memorandum shows that the State Department of Law considered it was necessary to request technical changes in the language of the statute to ensure that the State could take advantage of the modifications of the statute and since there would be no reason to make that request, if that right already existed, it is apparent that the Defendant-Respondent’s argument is without substance. POINT III THERE ARE REASONS THAT THE LEGISLATURE TREATED THE STATE DIFFERENTLY. Defendant-Respondent incorrectly argues that “there is virtually no reason why only the State would be permitted to demonstrate the culpability of non- parties in the Court of Claims while the defendants in Supreme Court actions 8 would not have the same rights.” Brief of Defendant-Respondent, p. 12. This position is untenable. First, as noted, the statute is a compromise, “the product of a painstaking balance of interest.” Morales v. County of Nassau, 94 N.Y.2d at 224. That statement alone provides the substance that destroys the Defendant-Respondent’s position because as was noted earlier, whether the position that the Plaintiffs- Appellants’ interpretation is consistent with the general purpose of the statute is not the same thing as saying that the Plaintiffs-Appellants’ interpretation is not consistent with the legislative intent. Also, as the State is often considered a deep pocket, perhaps the Legislature wanted to offer the State the same rights as other deep pocket defendants such as other municipalities who, sued in Supreme Court, have the right to seek apportionment against other tortfeasors, a right that otherwise would not be codified but for the statute. What is more, the Legislature was faced with the dilemma posed by the parallel trial courts, the Court of Claims and Supreme Court, and the Legislature may very well have wanted to preserve and not impinge upon the constitutionally mandated right of the State to have its liability solely considered in the Court of Claims. Accordingly, there are many factors which distinguish the State from other defendants and which provide ample reason for the Legislature to have made the distinction to allow the State to have apportionment 9 in the Court of Claims but not to have the State’s liability considered in Supreme Court. POINT IV DEFENDANT-RESPONDENT’S ARGUMENT THAT PREVIOUS COURT OF APPEALS’ DECISIONS DO NOT SUGGEST THAT THE STATE’S LIABILITY CANNOT BE DETERMINED IN SUPREME COURT IS WITHOUT MERIT. Defendant-Respondent claims that there is “virtually no reason why only the State would be permitted to demonstrate the culpability of non-parties in the Court of Claims while the defendants in Supreme Court actions would not have the same rights” (Brief of Defendant-Respondent, p.12). Defendant-Respondent then states that previous Court of Appeals’ decisions which have considered CPLR Article 16 do not suggest a different result (Brief of Defendant-Respondent, p.13). This argument however is unavailing and is really without meaning. The fact is this Court has never decided the issue before it, so the Defendant-Respondent’s argument is not particularly instructive. It is true that this Court has looked at Article 16 previously, particularly in regard to the exceptions found in Section 1602, but the fact that this Court has looked at other sections of the Article is hardly determinative of the result in this case. Indeed, the same extent that these unrelated decisions do not suggest that the Defendant-Respondent’s interpretation is correct, the same could be said of the Plaintiffs-Appellants’ argument. There is 10 nothing to suggest that in the previous Court of Appeals decisions that the Plaintiff’s position is not accurate. Accordingly, the Defendant-Respondent’s argument in regard to the previous Court of Appeals cases is simply meaningless. POINT V THE CASE OF MORALES V. COUNTY OF NASSAU IS INDEED SIGNIFICANT. Defendant-Respondent argues that Morales has no precedential value because that case addressed an exception in CPLR 1602, whereas the case at bar involves an interpretation of 1601 (Brief of Defendant-Respondent, pp.14-15). Immediately after dismissing Morales as being inapplicable because it relates to CPLR 1602, Defendant-Respondent cites Rangolan v. County of Nassau, 96 N.Y.2d 42 (2001) which also considered the interplay in the exceptions of CPLR 1602 as being able to providing “some assistance” to this Court (Brief of Defendant-Respondent, p. 15. The Defendant-Respondent’s argument that Morales is inapplicable is incorrect as well as abstruse. Defendant-Respondent’s attempt to claim that the statutory canon of construction of expressio unius est exclusio alterius is inapplicable is unsupported by any valid reasoning or precedent. Among other arguments, the Defendant-Respondent states, “…nor is the principle of exclusio unius est exclusio alterius referenced by the Court as a basis for the decision…” (Brief of Defendant-Respondent, p.15). This statement is to be contrasted to what 11 the Court said, “Relying on the standard canon of construction of expressio unius est exlusio alterius, we can infer that the expression of these exemptions in the statute indicates an exclusion.” Morales, 94 N.Y.2d at 224, emphasis added. To the extent that the Defendant-Respondent is arguing that the Legislative history precludes the application of that canon, suffice to say that Plaintiffs- Appellants disagree and, as set forth in our briefs, the Legislative history does not support Defendant-Respondent’s position. There is nothing that precludes the Court from utilizing the statutory canon of expressio unius est exclusio alterius. Indeed, this Court has said previously that this is a standard canon of construction and is applicable not only to the list of exceptions in CPLR 1602 but to Article 16 as a whole, stating, “Relying on the standard canon of construction of expressio unius est exlusio 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.” Morales, 94 N.Y.2d at 224, emphasis added. Notably, this canon of construction is not limited to lists, such as the list of exceptions contained in CPLR 1602 (See e.g., Patrolmen’s Benevolent Assn. v. City of New York, 41 N.Y.2d 706 [1976]). Accordingly, the fact that the Court in Morales was concerned with a list does not mean the canon cannot be applied to 12 concepts such as the clear dichotomy posed by the parallel courts and addressed in CPLR 1601. POINT VI CONTRARY TO DEFENDANT-RESPONDENT’S POSITION, PLAINTIFFS-APPELLANTS’ INTERPRETATION WOULD NOT ELIMINATE TORTFEASORS BY VIRTUE OF BANKRUPTCY OR THE WORKERS’ COMPENSATION LAW. On page 16 of the Defendant-Respondent’s brief, it takes the incorrect position that the Plaintiffs-Appellants’ interpretation would render meaningless the second proviso of the CPLR 1601(1) and the exception in 1602(4), both provisions dealing with the presence of a plaintiff’s employer in a Supreme Court action. Defendant-Respondent’s argument is based on a false premise: that Plaintiff- Appellants’ argument is based on the word “jurisdiction” found in the first proviso to include subject matter jurisdiction. Since our argument is not so based this entire section of Defendant-Respondent’s argument is meaningless and irrelevant. The Defendant-Respondent is rebutting an argument that Plaintiffs-Appellants have never made. Even still, the argument that the Plaintiffs-Appellants’ interpretation renders meaningless the second proviso in CPLR 1601(1) and CPLR 1602(4) is wrong. A background as to how and why these sections in the CPLR were incorporated is appropriate. 13 Both of these subdivisions were added to CPLR Article 16 in 1996 as part of an extensive amendment to the Workers’ Compensation Law in view of criticisms of the Court of Appeals’ decision in Dole v. Dow Chemical, 30 N.Y.2d 143 (1972). In Dole, the Court of Appeals allowed a third-party action to be brought against an employer, in spite of the exclusivity provisions of the Workers’ Compensation Law contained in Sections 11 and 29(6). Section 11 of the Workers’ Compensation Law provided that the liability of an employer shall be exclusive and in place of any other liability whatsoever. Workers’ Compensation Law 29(6) also provided that the right to compensation of benefits under this chapter shall be the exclusive remedy to an employee. Hence, in spite of the legislative dictate that workers’ compensation be the exclusive remedy to not only the employee but the employer, vis-à-vis each other, Dole allowed, not the plaintiff to bring a direct action against the employer, but a defendant to bring a third-party action against the employer for contribution or indemnification. However, in the mid-1990s, there were discussions in regard to whether this third-party employer liability, in addition to workers’ compensation liability, might be having a negative impact on the New York economy by discouraging employers from engaging in business in the State of New York. See e.g., Majewski v. Broadalbin-Perth Central School District, 91 N.Y.2d 577, 589 (1998). Efforts were made then to overturn Dole legislatively, but, similar to the attempts to 14 eliminate joint and several liability, there were vested interests competing against those seeking to change the law. The painstaking balance of interests resulted in the 1996 workers’ compensation reforms. A review of some of the statutes passed as part of that larger package evidence the balance. Indeed, the general purpose was to eliminate third-party actions against employers to preserve the exclusive remedy of the Workers’ Compensation Law, however, that general rule would not apply when the plaintiff has suffered a “grave injury” as that term was defined. Workers’ Compensation Law Section 11. Grave injury was defined as: “death, permanent and total loss of use or amputation of an arm, leg, hand, or foot, loss of multiple fingers, loss of multiple toes, paraplegia or quadriplegia, total or permanent blindness, total or permanent deafness, loss of nose, loss of ear, permanent and severe facial disfigurement, loss of an index finger or an acquired injury to the brain caused by an external physical force resulting in permanent, total disability.” To effectuate the changes wrought by the reform bill, multiple changes had to be made to various statutes throughout New York jurisprudence. As the Legislature noted in the preamble contained in Session Laws Chapter 635, Assembly Bill 11331 found at 1996 N.Y. AN 11331: Section 1 Legislative intent. When New York’s workers’ compensation law was enacted in 1914 it signified the culmination of an agreement between labor and management 15 designed to provide timely payments of disability and medical benefits to workers at a reasonable cost to employers. It is the intent of the Legislature that the workers’ compensation law be interpreted and implemented in the spirit in which it was first enacted so that a safe workplace is ensured and workers obtain necessary medical care benefits and compensation for workplace injuries, and employers obtain a degree of economic protection from devastating lawsuits. It is the specific intent of this legislature to enact a package of statutory provisions that are balanced and which seek to affirm the spirit of cooperation between labor and management that distinguished the workers’ compensation law’s enactment. It is the further intent of the legislature to create a system which protects injured workers and delivers wage replacement benefits in a fair, equitable and efficient manner, while reducing time-consuming bureaucratic delays and repealing Dole liability except in cases of grave injury. With that background it is apparent what CPLR 1602(4) and the second proviso of CPLR 1601 were intended to achieve. CPLR 1602(4) states that the limitations set forth in Article 16 “shall not apply not apply to claims under the workers' compensation law or to a claim against a defendant where claimant has sustained a ‘grave injury’… to the extent of the equitable share of any person against whom the claimant is barred from asserting a cause of action because of the applicability of the workers’ compensation law….” Simply stated, an employer may be subject to third-party liability in an action where the plaintiff suffered a grave injury, and in that case the limitations of liability imposed by Article 16 do not apply. 16 Its counterpart is found in the second proviso of 1601(1) which advises that the culpable conduct of any person should 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 11 of the Workers’ Compensation Law. In other words, where the plaintiff has not sustained a grave injury, the employer’s culpable conduct is not to be considered. In this light, it is apparent that the Defendant-Respondent’s claim that the Plaintiffs-Appellants’ interpretation of CPLR 1601(1) renders these sections meaningless is without merit. Neither of these 1996 amendments have any bearing on this case or the interpretation of CPLR 1601(1). These sections have nothing to do with personal jurisdiction in the first proviso. Nothing in our interpretation warrants a court to find these sections to be without meaning. Once again, the Defendant-Respondent is attempting to rebut an argument that was never made and is not the foundation of the Plaintiffs-Appellants’ position. POINT VII DEFENDANT-RESPONDENT’S ARGUMENT THAT ITS POSITION HAS BEEN UPHELD BY OTHER COURTS IS IRRELEVANT AND INACCURATE. Defendant-Respondent appropriately recognizes that none of the lower court cases have any binding effect upon the Court of Appeals. Once again Defendant- Respondent’s argument in this regard, beginning on page 18 of its brief, is 17 premised upon court interpretations that “jurisdiction” is personal jurisdiction and once again, Plaintiffs-Appellants must point out that that is not the gist of their argument. Accordingly, all the cases cited by the Defendant-Respondent related to personal jurisdiction are really irrelevant. The only case that is dealing with the issue before this Court, the question of whether the State’s liability can be apportioned in the Supreme Court, is the Rezucha case (159 Misc. 2d 185 [Sup. Ct. Broome Cty. 1993]) which does address the issue of jurisdiction. However, and significantly, no prior cases have raised the issues raised by the Plaintiffs-Appellants and State of New York in its amicus brief. What is more, there is nothing to indicate that Professor Alexander or Professor Siegel considered the arguments being set forth. Alexander’s Practice Commentaries, McKinney’s Cons. Laws of NY, Book 7B CPLR, C1601:3; Siegel, New York Practice, (5th Ed.), § 168C. It is also noted that although the Defendant-Respondent claims that these professors were “definitive” (Brief of Defendant-Respondent, p.21) endorsing the interpretation of the Rezucha case. Professor Alexander states: In such circumstances, however, the apparent purpose of the first proviso of the statute would be advanced by inclusion of the State’s share of culpability in the calculation of defendants’ liability inasmuch as the 18 plaintiff can readily obtain jurisdiction over the State in the Court of Claims. The correct result, therefore was probably reached in Rezucha v. Garlock Mechanical, Co., Inc., 159 Misc.2d 855… Alexander’s Practice Commentaries, McKinney’s Cons. Laws of NY, Book 7B CPLR, C1601:3; emphasis added. The commentator, whose comments are obviously not binding on this Court, appears to be postulating as to the proper result and his opinion can hardly be considered “definitive.” The Defendant-Respondent notes that these comments have been available for more than twenty (20) years (Brief of Defendant-Respondent, p.22). The brief then provides: “The Legislature enacted the second proviso to preclude apportionment further, yet left the interpretation of both ‘jurisdiction’ as being personal jurisdiction only undisturbed. (Brief of Defendant-Respondent, p.22). Defendant-Respondent concludes, citing Engle v. Talarico, 33 N.Y.2d 230 (1973) “…where the practical construction of the statute is well known, the legislature is charged with knowledge and its failure to interfere indicates acquiescence.” Hence, because the commentator’s version was around for several years and the Legislature never amended the statute, Defendant-Respondent argues, the Legislature must approve of that interpretation. This conclusion is ill-founded. First of all, there is no indication that there was any practical construction of the statute. One would think that whatever “practical” might mean it would mean 19 more than an academician theorizing. Moreso, one would think that “practical” might mean, in practice, in reality. The postulations of these academicians do not meet the threshold of “practical construction.” Second, there is no proof that any “practical construction” was well-known to the Legislature. The second proviso that the Defendant-Respondent is relying on was added in 1996. The Rezucha case, a Supreme Court case, was decided in 1993. There is no showing that the Rezucha case was followed, that there was any other court that construed the statute in that same manner, that the Rezucha case had any impact whatsoever on the Supreme Court’s apportionment of the liability of the State of New York. Accordingly, the threshold for this Court to even consider whether the Legislature acquiesced to the interpretation propounded by the Defendant-Respondent is lacking. What is more, as noted previously, the whole import of the addition of the second proviso had nothing to do with amending Article 16 of the CPLR to effectuate any changes in its interpretation. Rather the changes to Article 16 in 1996 were attributable solely to the Workers’ Compensation Tort Reform Act. There is nothing to indicate that the Legislature, by adding the second proviso, was attempting to address issues with Article 16. Defendant-Respondent’s position is based on pure speculation and should not be a basis for this Court’s de novo review. 20 Indeed, Defendant-Respondent cites Engle v. Talarico, (33 N.Y.2d 230 [1973]) for the standard relating to “acquiescence.” The Engle case is distinguishable from the case at bar. In Engle, the Court of Appeals was interpreting “income” in a real property tax law statute. Shortly after the enactment of the statute in question, the State Board of Equalization and Assessment issued an opinion letter addressing the very issue before the Court. The Court of Appeals noted that most municipal assessors were following the direction set forth in the opinion letter, and therefore practical construction of the statute was well known. Similar circumstances do not exist in our situation. Accordingly, the position that the Legislature concurred by virtue of its silence in the interpretation propounded by the Defendant-Respondent should be rejected. POINT VIII DEFENDANT-RESPONDENT’S ARGUMENT IN REGARD TO THE EMPTY CHAIR ARE UNAVAILING. Although it is true that courts have gone forward in trials whether there is an empty chair, in particular, with a settling tortfeasor or a bankrupt tortfeasor, those circumstances are distinguishable. For example, General Obligations Law 15-108 specifically provides that the trial is to go forward without the settling tortfeasor present. The statute specifically creates a formula on which the damages award is to be calculated. The 21 Legislature sanctioned the empty chair specifically in the statute. No such Legislative sanction appears in the Article 16. As for the bankrupt tortfeasor, Federal law precludes prosecution of a case against a bankrupt tortfeasor. Nonetheless, CPLR Article 16 provides that as long as personal jurisdiction can be obtained over the bankrupt tortfeasor, apportionment against that empty chair is allowed. In this case, however, personal jurisdiction cannot be obtained over the State of New York in Supreme Court, so this case is distinguishable from the situation involving the bankrupt tortfeasor. Defendant-Respondent’s examples provide no guidance. Defendant-Respondent also argues that adopting the interpretation propounded by the Plaintiffs-Appellants penalizes the defendant “which loses its opportunity to establish that it is a low-liability Defendant” (Brief of Defendant- Respondent, p.25). This is simply not true. The Defendant-Respondent has every right to seek contribution or indemnification from the State in the Court of Claims. The Defendant-Respondent’s response that “without the consideration of apportionment in the Supreme Court action it is highly speculative for the Defendant-Respondent to conclude that it may be entitled to contribution, so as to gauge whether an action against the State in the Court of Claims should be pursued. (Brief of Defendant-Respondent, p.27). This statement is contrary to 22 reality. Certainly, during the investigation of a personal injury accident at the earliest or during discovery at the latest, the defense attorney is paying attention to whether there are other potential tortfeasors who can share in the liability. Indeed, one could argue that that is one of defense counsel’s primary duties. To say that it is “highly speculative” for a defendant to know whether it is entitled to contribution from the State is troubling on many levels. Defendant-Respondent claims that the solution is for the plaintiff to proceed to conclusion in the State action before the Supreme Court action (Brief of Defendant-Respondent, pp.27-28). This “solution” presupposes the plaintiff or claimant has control over the respective courts’ calendars. Additionally, it is this author’s experience that the Court of Claims does not schedule a trial until a Supreme Court case has been resolved. POINT IX EVIDENCE OF THE STATE’S LIABILITY SHOULD NOT BE ADMITTED IN THE SUPREME COURT. As noted in the Plaintiffs-Appellants’ original brief, with citations to O’Connor v. State of New York, 70 N.Y.2d 914 (1987); and Walter v. Walt-Bonn, Inc., 8 A.D.3d 715 (3d Dept. 2004), the issues of liability between a plaintiff and the State and a plaintiff and a non-state defendant are “discreet and separate issues”. See O’Connor, 70 N.Y.2d at 915-916; Walter, 8 A.D.3d at 716. Accordingly, the admission of evidence of the State's alleged negligence in the Supreme Court action is improper and irrelevant as it plays no role in determining the comparative negligence of the parties to the Supreme Court action. CONCLUSION THE ORDER OF THE APPELLATE DIVISION, THIRD JUDICIAL DEPARTMENT, SHOULD BE REVERSED AND THE MOTION OF THE DEFENDANT-RESPONDENT DENIED BY ORDERING THAT THE CPLR SECTION 1601 DOES NOT PERMIT APPORTIONMENT OF LIABILITY OF THE STATE OF NEW YORK IN COURTS OTHER THAN THE COURT OF CLAIMS AND THAT NO EVIDENCE RELATED TO THE STATE'S LIABILITY BE ADMISSffiLE. Dated: May 5, 2016 Respectfully Submitted, By: TO: Thomas Johnson, Esq. 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 23 , RYAN & PARTNERS, P.C. 24 ERIC T. SCHNEIDERMAN Attorney General of the State of New York Attorney for Amicus Curiae Frederick A. Brodie, Esq. Assistant Solicitor General Of Counsel The Capitol Albany, New York 12224 Tel.: (518) 776-2317 Fax: (518) 915-7724