Morales v. County of NassauMorales v. County of Nassau
OPINION OF THE COURT
This case raises two questions under CPLR article 16, which in certain circumstances limits a tortfeasor’s joint liability. First, does plaintiff’s failure to plead statutory exemptions to article 16 prevent this Court from reviewing their applicability? We conclude that it does. Second, does the public policy favoring enforcement of orders of protection override article 16? We conclude that it does not. The Legislature has explicitly provided a list of exemptions in article 16, none relating to domestic violence or orders of protection. A policy decision to provide such an exemption rests with the Legislature.
On the evening of February 13, 1992, plaintiff pulled her car alongside an area where Nassau County police officers were investigating an auto accident and jumped out, screaming for help. Plaintiff informed the officers that her husband, Teodoro Morales, against whom she had obtained an order of protection, was in her car threatening her with a knife. Plaintiff showed the officers the order of protection and told them that there was a warrant for her husband’s arrest based on a previous violation of the order. The officers removed plaintiff’s
Plaintiff sued Nassau County for the negligence of its police officers in failing to take her husband into custody. Plaintiff did not join her husband as a defendant, nor was he impleaded by the County as a party, nor did plaintiff plead any exemptions to article 16. At the pre-charge conference, defendant County requested that Supreme Court charge the jury that liability for plaintiff’s injuries could be apportioned between itself and the husband. Defendant argued that CPLR article 16, which limits a tortfeasor’s joint liability for non-economic losses to its proportional share if its culpability is 50% or less, applied to this case. The Trial Judge declined to instruct the jury that they may apportion culpability between the County and the intentional tortfeasor, plaintiff’s husband, because of a “very strong issue of a public policy as established in the Family Court Act with respect to orders of protection.” The jury returned a $1.5 million verdict for non-economic losses against defendant.
On appeal to the Appellate Division, the County challenged the. trial court’s ruling barring article 16 from the case. In addition to defending the trial court ruling that there was a “domestic violence” exemption to article 16, plaintiff argued that apportionment did not apply both because the case involved an intentional tort (CPLR 1602 [5]) and because the County had violated a non-delegable duty (CPLR 1602 [2] [iv]). The Appellate Division reversed, holding that none of the proffered exemptions applied. Relying on
Siler v 146 Montague Assocs.
(
Lacking finality, an order of the Appellate Division granting a new trial typically would not be appealable to this Court, but plaintiff has stipulated that, upon affirmance, judgment absolute shall be entered against her, permitting an exceptional appeal as of right (see, CPLR 5601 [c]).
Plaintiff did not plead the intentional tort or non-delegable duty exemption and did not move to amend her complaint until now. Defendant therefore argues that the question of whether any exemptions embodied in CPLR 1602 (2) (iv) or 1602 (5) apply, is not reviewable here.
Absent prejudice, CPLR 3025 authorizes amendment to pleadings “at any time.” However, the procedural posture of this case prohibits our addressing plaintiff’s motion to amend. On an appeal taken pursuant to stipulation for judgment absolute, the only matter this Court may consider is whether the Appellate Division erred as a matter of law in granting the new trial
(Matter of Wilcox v Zoning Bd. of Appeals,
In
Cole v Mandell Food Stores
(
Finally, we reject the trial court’s reasoning that article 16 does not apply in cases alleging negligent enforcement of orders of protection because of public policy concerns. While there is a strong public policy of encouraging enforcement of orders of protection, the Legislature has not chosen to include such an exemption in article 16
(see,
Family Ct Act § 168; CPL 140.10 [4] [b], [c];
Sorichetti v City of New York,
This Court has repeatedly declined to interfere with the Legislature’s policy choices as beyond the realm of judicial authority
(Iazzetti v City of New York,
Here, the Legislature has spoken. In section 1602, it has provided an extensive list of exemptions from the modified joint and several liability rule. Relying on the standard canon of construction of
expressio unius est exlusio alterius,
we can infer that the expression of these exemptions in the statute indicates an exclusion of others. This is especially true in the case of article 16, which, as demonstrated by its legislative history, was the product of a painstaking balance of interests. These interests included, among many others, the burdens to be imposed on innocent plaintiffs as well as a concern that defendants at fault to a small degree were consistently paying a disproportionate share of damages awards, adversely affect
“The crafting of these exceptions and savings provisions reflects careful deliberations over the appropriate situations for a modified joint and several liability rule and demonstrates the benefits of addressing this important reform through the legislative process” (Governor’s Approval Mem, Bill Jacket, L 1986, ch 682, reprinted in 1986 NY Legis Ann, at 289).
An additional exemption for domestic violence, enacted by judicial fiat, would upset this careful balance struck by the Legislature.
Accordingly, the order of the Appellate Division should be affirmed, without costs, and judgment absolute dismissing the complaint granted upon plaintiffs stipulation. Plaintiffs motion to amend the complaint should be dismissed as academic.
Chief Judge Kaye and Judges Bellacosa, Smith, Levine, Wesley and Rosenblatt concur.
Order affirmed, etc.