Rafaelova v. City of New York

Appellate Division of the Supreme Court of New York

Rafaelova v. City of New York

25 A.D.3d 442, 810 N.Y.S.2d 123

CourtAppellate Division of the Supreme Court of the State of New York

DecidedJanuary 17, 2006

StatusPublished

Cited by1 cases

This text of 25 A.D.3d 442 (Rafaelova v. City of New York) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Rafaelova v. City of New York, 25 A.D.3d 442, 810 N.Y.S.2d 123 (N.Y. Ct. App. 2006).

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Opinion

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 NY2d 34, 39-40 [1999]; Morales v County of Nassau, 94 NY2d 218, 224 [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. Concur—Tom, J.P., Mazzarelli, Sullivan, Nardelli and McGuire, JJ.

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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 NY2d 34, 39-40 [1999]; Morales v County of Nassau, 94 NY2d 218, 224 [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. Concur—Tom, J.P., Mazzarelli, Sullivan, Nardelli and McGuire, JJ.

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Bluebook (online)

25 A.D.3d 442, 810 N.Y.S.2d 123, Counsel Stack Legal Research, https://law.counselstack.com/opinion/rafaelova-v-city-of-new-york-nyappdiv-2006.

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