This column 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.
In 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.
