Marsala v. Weinraub

208 A.D.2d 689, 617 N.Y.S.2d 809, 1994 N.Y. App. Div. LEXIS 9955

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 17, 1994
• Status: Published

Opinions

In an action to recover damages for medical malpractice, the plaintiff appeals from an order of the Supreme Court, Suffolk County (Tanenbaum, J.), dated January 28, 1992, which, inter alia, denied his motion to preclude the respondents from offering evidence regarding CPLR article 16.

Ordered that the order is affirmed, with costs.

The plaintiff contends that CPLR article 16 must be pleaded as an affirmative defense and that the defendants are required to respond to a demand for a bill of particulars regarding the identity of possible codefendants. We disagree.

As a general rule, a statute should be construed according to the ordinary meaning of its words, and resort to extrinsic matter is inappropriate when the statutory language is unambiguous and the meaning unequivocal (see, Sega v State of New York, 60 NY2d 183, 190-191; Didner v Keene Corp., 188 AD2d 15, 20; Schrader v Carney, 180 AD2d 200, 205). Nowhere does CPLR article 16 provide that defendants must plead it as an affirmative defense. In fact, the language of CPLR 1601 (1) indicates that the statute automatically applies whenever a defendant’s share of the liability is 50% or less: "Notwithstanding any other provision of law, when a verdict or 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 * * * 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 that defendant’s equitable share determined in accordance with the relative culpability of each person causing or contributing to the total liability for non-economic loss”.

Moreover, it is clear from reading CPLR article 16 as a whole that whenever a plaintiff sues multiple defendants, CPLR article 16 will apply unless the plaintiff can show that one of the situations in CPLR 1602 applies. Accordingly, we conclude that there was no need for the respondents herein to specifically plead CPLR article 16.

The plaintiff’s argument that the respondents were required to plead CPLR article 16 as an affirmative defense based upon CPLR 1603, which provides that the defendant "shall have the burden of proving by a preponderance of the evidence its equitable share of the total liability”, is unpersuasive. As noted above, CPLR 1601 (1) clearly provides that whenever the liability of a defendant is found to be 50% or less of the total liability, the liability of that defendant "shall not exceed that defendant’s equitable share”. Since the respondents need not plead CPLR article 16 as an affirmative defense, it follows that the respondents need not provide a bill of particulars with regard to CPLR article 16 (contra, Ryan v Beavers, 170 AD2d 1045).

We note that the information sought by the plaintiff in this case was "palpably improper” and required no response, even if the respondents were required to respond to the plaintiff’s demand because they failed to move for a protective order within 10 days of the plaintiff’s demand for a bill of particulars, thereby waiving any objection to the demand (see, Gargano v Rosenthal, 100 AD2d 534; Lamb v Rochester Gen. Hosp., 130 AD2d 963, 964). Balletta, J. P., O’Brien and Florio, JJ., concur.