VAN VLACK v. Steven Martens, et al., Appellants.

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

Brian R. VAN VLACK, Respondent, v. Robert P. BAKER, et al., Defendants, Steven Martens, et al., Appellants.

Decided: September 29, 1997

Before PIZZUTO, J.P., and SANTUCCI, FRIEDMANN and LUCIANO, JJ. Shayne, Dachs, Stanisi, Corker & Sauer, Mineola (Jonathan A. Dachs, of counsel), for appellant Steven Martens. O'Connor & O'Connor, White Plains (Denise O'Connor, of counsel), for appellant Christopher Shultz. Gregory W. Bagen, Brewster, for respondent.

In an action to recover damages for personal injuries pursuant to General Obligations Law § 11-100, the defendant Steven Martens and the defendant Christopher Shultz separately appeal from an order of the Supreme Court, Putnam County (Hickman, J.), dated June 18, 1996, which denied their respective motions to apply CPLR article 16 to this action.

ORDERED that the order is reversed, on the law, with costs, and the defendants' motions are granted.

There is no merit to the plaintiff's contention that the defendants Steven Martens and Christopher Shultz, each of whom was found by a jury to be 15% at fault for the plaintiff's injuries under General Obligations Law § 11-100 (the social host statute), may not benefit from the protection afforded by CPLR 1601.  CPLR 1601 limits the liability of a defendant found to be 50% or less at fault in causing the plaintiff's noneconomic losses to that defendant's share of the fault (see, CPLR 1601;  Siler v. 146 Montague Assocs., 228 A.D.2d 33, 652 N.Y.S.2d 315).   Since the instant situation does not fall within any of the exceptions to CPLR 1601 that are enumerated in CPLR 1602, it was improper for the court to determine that CPLR 1601 did not apply to the appellants on the ground that the policies underlying the enactment of General Obligations Law § 11-100 outweighed the policies underlying the subsequent enactment of CPLR article 16 (see, McKinney's Cons.Laws of N.Y., Book 1, Statutes §§ 73, 74, 94;  see also, Arbegast v. Board of Educ. of S. New Berlin Cent. School, 65 N.Y.2d 161, 169, 490 N.Y.S.2d 751, 480 N.E.2d 365;  Easley v. New York State Thruway Auth., 1 N.Y.2d 374, 379, 153 N.Y.S.2d 28, 135 N.E.2d 572;  Schrader v. Carney, 180 A.D.2d 200, 586 N.Y.S.2d 687;  Robinson v. June, 167 Misc.2d 483, 637 N.Y.S.2d 1018).

MEMORANDUM BY THE COURT.

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