By Michael Hoenig - New York Law
Journal - January 14, 2013
focuses on two Appellate Division, Second Department, rulings
issued in mid- and late December. In
Hendrickson v. Philbor Motors,1 the court
considered the effects upon a codefendant's CPLR Article 16
remedies to limit liability to the plaintiff after another
defendant has moved for dismissal of the complaint for failure
to state a cause of action, as opposed to a motion for summary
judgment. The precise nature of the motion matters greatly. In
Biscone v. JetBlue Airways,2 the court's
interesting analysis of federal preemption of suits by
disgruntled passengers against air carriers has potential to
obscure a major lesson for counsel who rely on e-filing
practices to omit annexing a copy of the original motion papers
when making a motion for leave to renew or reargue. Just because
the action was filed electronically does not mean counsel can
simply make reference to electronic docket entry numbers. CPLR
2214(c) requires complete copies of the initial supporting
papers to be filed with the new motion. If this step is not
taken the new motion can fail at the outset.
Hendrickson, the Second Department tackled an issue
addressed "for the first time at an appellate level," namely,
whether a defendant's failure to oppose a codefendant's motion
to dismiss a complaint and cross-claims pursuant to CPLR 3211
precludes the silent defendant from later asserting that its
liability is limited under CPLR article 16 governing relative
apportionment of liability among tortfeasors. CPLR 1601,
subdivision one, generally limits the liability to be imposed on
a defendant that is jointly and severally liable for
non-economic loss, for example an award of damages for pain and
suffering, where that defendant's liability is found to be 50
percent or less of the total liability assigned to all persons
liable. This is an attempt by the Legislature to make less
culpable tortfeasors pay only an equitable share of the total
"pain and suffering" damages in accordance with their relative
fault. Some exceptions exist in CPLR 1602 but they were not
involved in this case.
When a not-so-culpable
defendant is held jointly and severally liable with other
tortfeasors for noneconomic damages, that defendant's liability
shall not exceed its proportionate share of the total liability
for the noneconomic loss. Assessment of a defendant's equitable
share as a percentage of the total liability assigned to "all
persons liable" takes into account not only persons who are
parties to the action, but also nonparties over whom
jurisdiction could be obtained.
Because pain and suffering
damages can result in enormous jury awards, multiple defendants
often cross claim against each other seeking to establish as low
a proportionate share of the noneconomic loss as possible. Such
incentive for in-fighting creates tactical dilemmas for
codefendants who otherwise might prefer to present a common
front to the plaintiff. Pleading a cross-claim to preserve
rights of proportionately limited liability is a formal,
protective step which then permits strategic alliances by
codefendants in other aspects of the litigation.
The Hendrickson case
asks what happens when one codefendant moves to dismiss the
plaintiff's action but one cross-claiming defendant does not
and, further, does not even oppose in any way the motion of the
defendant seeking dismissal of the complaint. If the motion to
dismiss is granted and the moving defendants are out of the
case, does the liability-limiting defense of the cross-claiming
codefendant still remain viable? Can he still try to lessen his
proportionate share of liability for the noneconomic loss under
CPLR 1601? Or, as plaintiffs contended, does the dismissal of
the defendant tortfeasor end the quest of the cross-claiming
defendant to limit his liability.
The Appellate Division's answer
is: "it depends." If the motion to dismiss the pleading is made
under CPLR 3211(a)(7) for failure to state a cause of action,
then the article 16 rights of the cross-claiming defendant are
not extinguished. If the motion were one for summary judgment
under CPLR 3212, then the non-objecting tortfeasor's rights to
limit liability proportionately would be foreclosed. The reasons
why are detailed in Justice Mark Dillon's opinion for the Second
Department, an informative guide about the interface between
Article 16 relief, dismissal motions and factual "gray" areas
complicating the picture.
Here, in simplified form, is
how the issue got teed up for the Appellate Division's review.
Plaintiffs were the driver and occupants of a 1996 Ford Explorer
when the left rear tire suffered a tread separation. The vehicle
swerved, left the highway and rolled over several times.
Plaintiffs, in two actions, sued Ford Motor Company, the Ford
selling dealer and the tire manufacturer, Cooper Tire. In both
actions, Cooper asserted, as an affirmative defense, that its
liability should be limited pursuant to CPLR article 16. Dealer
moved for summary judgment in both actions. Ford cross-moved
pursuant to CPLR 3211(a)(7) to dismiss the complaints and all
cross-claims. Dealer's and Ford's motions were unopposed by any
party. Indeed, Ford's cross-motion to dismiss was supported with
plaintiffs' interrogatory responses, in which they conceded that
the Ford Explorer was not defective in a manner related to the
Plaintiffs trained their guns
on Cooper. While the foregoing motions were pending, plaintiffs
separately cross-moved to dismiss Cooper's affirmative defense
of limited liability under CPLR article 16, contending that any
dismissal of Dealer and Ford would terminate Cooper's defense.
The trial court granted Dealer's and Ford's motions and also
struck Cooper's affirmative defense seeking apportionment of
fault with Dealer or Ford. Adding to the confusion as to
precisely what Ford's cross-motion to dismiss was—a motion for
failure to state a claim under CPLR 3211(a)(7) or a motion for
summary judgment under CPLR 3212—was the trial court's
recitation that it had awarded "Rule 3211(a)(7) summary
judgment" to Ford.3 Cooper appealed the order
striking its affirmative defense.
Plaintiffs maintained that,
since Cooper failed to contest the award of "summary judgment"
to Ford, that defendant received the "functional equivalent of a
trial" that collaterally estops Cooper from attributing a
portion of liability to Ford in calculating the apportionment
otherwise required by CPLR article 16. Cooper argued that the
complaints and cross-claims were dismissed against Ford not via
summary judgment under CPLR 3212 but, rather, pursuant to CPLR
3211(a)(7), for plaintiffs' failure to state a cause of action
against Ford. Since CPLR 3211(a)(7) dismissals merely address
the adequacy of the complaint, and do not reach the substantive
merits of the cause of action or defenses, Cooper argued that
there never was the "functional equivalent" of a trial that
would bar Ford's inclusion in the calculus of CPLR 1601,
subdivision one, which is applicable to "all persons liable."
Ford's cross-motion presented
the issue that plaintiffs' complaint "failed to state a cause of
action upon which relief could be granted," seeking relief under
CPLR 3211(a)(7). However, Ford did not argue that the complaint
was deficient per se. Rather, Ford supported its cross-motion
with plaintiffs' interrogatory responses conceding "no defect"
or other basis for liability against the vehicle manufacturer.
In its totality, Ford's cross-motion "suggests a lack of
clarity" as to whether its cross-motion was addressed "only to
the four corners of the pleadings" or whether it was, in
reality, a CPLR 3212 cross-motion for summary judgment that
relied on substantive discovery responses, "and was merely
mischaracterized" by Ford as a motion governed by CPLR 3211. The
trial court's award of a "Rule 3211(a)(7) summary judgment" to
Ford was a disposition that was "a contradiction in terms," as a
successful CPLR 3211(a)(7) motion will result in the dismissal
of the complaint or other pleading "without addressing the
merits, while a successful CPLR 3212 motion awards judgment to
the moving party on the merits as a matter of law."4
Further, at no time did the
trial court notify the parties that it was treating Ford's
cross-motion as one for summary judgment, as courts are
statutorily required to do under CPLR 3211(c) when a motion to
dismiss is to be treated as a summary judgment motion. The
Second Department said the critical question was, what was
Ford's motion? If a motion to dismiss, "then there has been no
functional equivalent of a trial here, and Ford may be
considered to be among all persons liable." If the motion was
treated by the court and parties as one for summary judgment,
then Ford cannot be assessed liability for plaintiffs' damages
"to any degree." The court observed that, until now, no New York
appellate court has been called on to distinguish between the
effect of dispositions under the two types of motions in the
context of CPLR article 16 limitations on liability.
The Second Department analyzed
all the factors, pro and con, for one view or the other,
providing rich commentary on procedural niceties that litigators
would do well to study. For example, in discussing when a court
may be excused for failing to provide CPLR 3211(c) notice that
it was converting a motion to dismiss to one for summary
judgment, the court identified three circumstances: (1) when
CPLR 3211(c) treatment is specifically requested not by one
party, but by all of the parties (or at least by the party
aggrieved by the summary judgment determination); (2) when a
dispute involves no questions of fact but only issues of law
argued by all parties; and (3) when the respective submissions
of both parties demonstrate that they are laying bare their
proof and deliberately charting a summary judgment course.5
The foregoing is one informational nugget, among many, from
which litigators can learn valuable lessons.
None of these circumstances
could excuse failure to apply CPLR 3211(c) notice in this case.
Absent such notice from the court, Cooper "was never made aware"
that the disposition might later be argued as having been "on
the merits," or the "functional equivalent of trial." Indeed,
Cooper cannot be said to have charted a summary judgment course.
The content of plaintiffs' interrogatory responses merely
results, in effect, as a withdrawal of plaintiffs' causes of
action against Ford, further supporting a conclusion that the
order of dismissal was not the functional equivalent of a trial.
Accordingly, the "particular
facts of this case" warrant a conclusion that Ford's
cross-motion was one to dismiss rather than one seeking summary
judgment. Cooper's affirmative defense of limited liability
under CPLR Article 16 should not have been struck. Cooper may
seek to attribute any liability to Ford as part of the total
liability assigned to "all persons liable." Finally, the court
cautioned that some CPLR 3211 dismissals are considered to be on
the merits, such as dismissals under subdivision (a)(5) for
actions commenced beyond the statute of limitations and actions
barred by the statute of frauds. Therefore, the court limited
"the scope of our determination here to uncontested motions
brought under CPLR 3211(a)(7)."
In Biscone, the Second
Department held preempted by federal law a putative class action
suit alleging that the named plaintiff passenger and others were
confined in an airplane remaining on the tarmac for some 11
hours without adequate food, water, clean air and toilet
facilities. The plaintiff alleged intentional tort and fraud
claims. Issued on Dec. 26, Justice Leonard B. Austin's opinion
for the court is a thorough analysis of federal preemption law
applicable to a variety of claims filed against airlines. His
analysis explores a range of decisions in other jurisdictions.
The question usually is whether the state action or a lawsuit is
"related to a price, route, or service" of an air carrier as set
forth in the Airline Deregulation Act (ADA).
Plaintiff argued that the
confinement of passengers in a grounded aircraft for an 11-hour
period against their will is not related to the provision of
"services," since passengers do not bargain for or anticipate
such lengthy confinement against their will. She also contended
that the conduct underlying her tort claims are too attenuated
from the ADA's objective of ensuring economic deregulation of
the airline industry. The Second Department rejected these
arguments and held the claims preempted. Reflected in Austin's
comprehensive survey of case law are interesting tales of woe by
passengers. Consider, for example, the claim of a passenger
injured when a case of rum fell from an overhead bin. The Fifth
Circuit held against preemption of that claim.6 Other
factual scenarios are described. Those contemplating a suit
against air carriers or defending one should review the Biscone
Here we focus on a procedural
nicety tucked away in the opinion that has practical value to
litigators using electronic filing (e-filing) of an action. The
question is whether the failure to annex a complete set of the
originally submitted papers in support of a motion for leave to
renew or reargue a motion for class certification warrants
denial of that motion. In other words, does the advent of
e-filing of suits permit counsel, in a motion to renew or
reargue, to simply refer to e-filed documents in lieu of
annexing a complete set of the originally submitted motion
papers? The Second Department held that compliance with CPLR
2214(c) requires annexation of a complete set of the originally
submitted papers. Failure to do so warrants denial of the motion
for leave to renew or reargue the class certification motion.
Plaintiffs' counsel did not
attach exhibits to his affirmation, but simply referred to
documents by electronic docket entry numbers. When a document
has been filed and served electronically7 there is no
authority compelling a court to consider papers which were not
submitted in connection with the motion on which it is ruling.
E-filing does not dispense with the need to annex a copy of the
original motion papers. The motion court should not be compelled
to locate previously submitted documents in the electronic
is a member of Herzfeld & Rubin.
1. 2012 NY Slip
Op 08489 (2d Dept., Dec. 12, 2012).
2. 2012 NY Slip
Op 09019 (2d Dept., Dec. 26, 2012).
Hendrickson, 2012 NY Slip Op 08489, at p. 6.
5. Id. at p. 8.
Id. at p. 14 (citing
Hodges v. Delta Airlines, 44 F.3d 334, 336 (5th Cir.)).
7. 22 NYCRR
NY Slip Op 09019, at pp. 20-21.
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