Although it has been the law of this state for more than 15 years, it is only in recent years that the impact of CPLR Article 16 has begun to be felt. Hastily passed in the middle of the legislative morass of tort reform in the mid-1980s, Article 16 was posited as a limited encroachment on the common law rule of joint and several liability.[1]� Section 1601 provides that a defendant may only be held jointly and severally liable for noneconomic damages if he is held more than 50 percent liable. Defendants remain subject to full joint and several liability for all economic damages, regardless of their percentage of liability.
One of the problems posed by Article 16 is that it permits defendants to obtain apportionment as to persons who are not parties to the action. Whereas defendants had to commence third-party actions in order to obtain apportionment based on the fault of such persons, defendants can now obtain such apportionment to potentially reduce their liability for pain and suffering against anyone under the sun as to whom they can think of asserting blame, so long as the plaintiff could have obtained jurisdiction over them. As a result, plaintiffs have a strong incentive to bring suit against any person who could conceivably bear some degree of culpability. This could hardly have been one of the goals of the Legislature in passing the statute, but it is unquestionably an effect – and it should be reconsidered.
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