RAFAELOVA v. Domingo Corsino, et al., Defendants-Respondents-Appellants. (2006)

Order, Supreme Court, New York County (Salvatore R. Martoche, J.), entered April 16, 2004, which denied plaintiffs' motion to amend the pleadings to assert an exemption from the CPLR article 16 limitation on liability for damages, unanimously affirmed, without costs.

The motion was properly denied since plaintiff did not plead an exception to CPLR 1601, which operates to limit defendants' liability to their respective equitable shares of fault, and never sought leave to amend her pleadings to include such exception until after the verdict was rendered and the jury was discharged (see Cole v. Mandell Food Stores, 93 N.Y.2d 34, 39-40, 687 N.Y.S.2d 598, 710 N.E.2d 244 [1999];  Morales v. County of Nassau, 94 N.Y.2d 218, 224, 703 N.Y.S.2d 61, 724 N.E.2d 756 [1999] ).   The proposed amendment would not have availed plaintiffs in any event, since there is no support for their contention that Fire Department ambulances are among the motor vehicles coming within the exception set forth in CPLR 1602(6) (see Vehicle and Traffic Law § 311[2] ).

We have considered appellants' remaining contentions and find them unavailing.