BROWN v. STATE

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Supreme Court, Appellate Division, Second Department, New York.

Whitney BROWN, et al., appellants-respondents, v. STATE of New York, respondent-appellant.

Decided: January 31, 2000

FRED T. SANTUCCI, J.P., SONDRA MILLER, DANIEL F. LUCIANO and SANDRA J. FEUERSTEIN, JJ. Tantleff, Cohen & Tantleff, P.C., Brooklyn, N.Y. (Edward D. Tantleff of counsel), for appellants-respondents. Jones Hirsch Connors & Bull, P.C., New York, N.Y. (Kevin M. Ryan and Richard Imbrogno of counsel), for respondent-appellant.

In a claim to recover damages for personal injuries, etc., the claimants appeal from (1) a decision of the Court of Claims (Marin, J.), dated September 29, 1998, (2) an interlocutory judgment of the same court, dated October 27, 1998, which, after a nonjury trial on the issue of liability, found the defendant 15% at fault in the happening of the accident, and (3) an order of the same court, dated April 19, 1999, which denied their motion pursuant to CPLR 4404 to set aside the verdict, and the defendant cross-appeals, as limited by its brief, from so much of the interlocutory judgment as found it 15% at fault in the happening of the accident.

ORDERED that the appeal from the decision is dismissed, without costs or disbursements, as no appeal lies from a decision (see, Schicchi v. Green Constr. Corp., 100 A.D.2d 509, 472 N.Y.S.2d 718);  and it is further,

ORDERED that the interlocutory judgment and the order are affirmed, without costs or disbursements.

The claimants contend that the court erred when it considered the culpability of the injured claimant's employer in determining the defendant's liability.   The relevant statutory provisions, CPLR 1601 and 1602, were amended effective September 10, 1996, as part of the Omnibus Workers' Compensation Reform Act of 1996 (L 1996 ch 635).   The instant claim was commenced in 1994, before the effective date of the amendment.   Since the amendment applies prospectively only (see, Majewski v. Broadalbin-Perth Cent. School Dist., 91 N.Y.2d 577, 582, 673 N.Y.S.2d 966, 696 N.E.2d 978;  Maher v. Whitehead, 254 A.D.2d 263, 678 N.Y.S.2d 271;  Blessinger v. Estee Lauder Cos., 246 A.D.2d 363, 668 N.Y.S.2d 16), the pre-amendment provisions must be considered in resolving this issue.

 Under CPLR 1601(1), in an action or claim to recover damages for personal injuries, a defendant whose proportionate share of the fault is 50% or less is liable for the plaintiff's noneconomic loss only to the extent of such proportionate share.   Generally, the relative culpability of each person causing or contributing to the total liability for noneconomic loss was taken into account, not just the culpability of those persons who were made defendants in the action (see, Alexander, Practice Commentaries, McKinney's Cons. Laws of N.Y., Book 7B, CPLR C1601:2, at 606;  4 Weinstein-Korn-Miller, N.Y. Civ. Prac. ¶ 1601.01);  (see, e.g., Zakshevsky v. City of New York, 149 Misc.2d 52, 562 N.Y.S.2d 371).   Before the amendment to CPLR 1601(1), the statute provided that the culpable conduct of a nonparty tortfeasor was excluded from consideration only if the plaintiff proved that, despite due diligence, he or she was unable to obtain personal jurisdiction over that person in the action or claim against the State in a court of this State (see, Alexander, Practice Commentaries, McKinney's Cons. Laws of N.Y., Book 7B, CPLR C1601:2, at 606;  4 Weinstein-Korn-Miller, N.Y. Civ. Prac. ¶ 1601.01;  see, e.g., Zakshevsky v. City of New York, supra, at 54-55, 562 N.Y.S.2d 371).   Workers' Compensation Law § 11, which bars an employee from suing an employer to recover damages for an injury sustained in the course of employment, does not constitute inability to obtain jurisdiction within the meaning of the former CPLR 1601 (see, Duffy v. County of Chautauqua, 225 A.D.2d 261, 266, 649 N.Y.S.2d 297).   Moreover, the exception contained in the former CPLR 1602(4) is not applicable since it refers only to circumstances where the person protected by Workers' Compensation Law was impleaded in the action or claim (see, CPLR former 1602[4]);  (Alexander, Practice Commentaries, McKinney's Cons. Laws of N.Y., Book 7B, CPLR C1601:4, at 615;  4 Weinstein-Korn-Miller, N.Y. Civ. Prac. ¶ 1602.04;  Siegel, N.Y. Prac. § 168C, at 271-272 [3d ed].).

The court's finding that the defendant was 15% at fault in the happening of the accident for violating Labor Law § 200 is supported by legally sufficient evidence (see, Cohen v. Hallmark Cards, 45 N.Y.2d 493, 499, 410 N.Y.S.2d 282, 382 N.E.2d 1145;  Greenberg v. Behlen, 220 A.D.2d 720, 633 N.Y.S.2d 189;  Anderson v. Baker, 248 A.D.2d 572, 669 N.Y.S.2d 915).

MEMORANDUM BY THE COURT.

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