No Apportionment of Fault Where the State Occupies the "Empty Chair"

Under the rules of civil procedure governing New York courts, specifically CPLR § 1601, a defendant appearing in an action may seek an apportionment of fault which includes responsible parties not appearing in the action (the proverbial "empty chair"). If an appearing defendant's fault is apportioned at 50% or less of the total fault (including the "empty chair"), that defendant's share of the total damages awarded is matched to its percentage of fault.

CPLR § 1601 does not permit an allocation of fault to an "empty chair" defendant, however, where "the claimant proves that with due diligence he or she was unable to obtain jurisdiction over such person in said action (or in a claim against the state, in a court of this state)"¦." If the appearing defendant is unable to assign a percentage of fault to the "empty chair," the appearing defendant may be exposed for the entire judgment even if, arguably, its actual culpability was very low.

Under the recognized doctrine of "sovereign immunity," however, the State of New York (including its departments and agencies) could never be named as a defendant in New York's civil courts; only the Court of Claims may hear a case against the State (unless the State agreed to be sued in a civil court). In Artibee v. Home Place Corp., 2017 N.Y. LEXIS 116 (Ct. App. Feb. 14, 2017), the Court of Appeals looked at whether CPLR § 1601 permits apportionment of fault in a civil court action where the State is the "empty chair" defendant.

In that case, the plaintiff was injured when a branch from a tree overhanging a state highway fell through her Jeep and hit her on the head. She sued the landowner in Supreme Court, but was prevented by sovereign immunity from impleading the State on a claim that it failed to protect her from a hazard on the highway. (She did pursue a separate action against the State Department of Transportation in the Court of Claims.) The landowner defendant asked for a jury instruction that fault be apportioned between itself and the State. The trial court refused to give the jury instruction; the Appellate Division held that this was an error.

The Court of Appeals, after reviewing analogous case law and the legislative history of the statute, decided in a 4-2 decision (with one justice not participating) that apportionment to the State is not permitted under CPLR § 1601. The majority took the position that "jurisdiction," in the statutory language quoted above, could mean either personal jurisdiction or subject matter jurisdiction, which includes the civil courts' lack of jurisdiction over any action against the State. The opinion noted that a defendant which gets stuck paying the entire judgment in the civil court action could bring an action against the State for contribution in the Court of Claims.

The dissenters argued that, since the doctrine of sovereign immunity always divests the civil courts of subject matter jurisdiction in actions against the State, the provision in CPLR § 1601 that the claimant exercise "due diligence" to obtain jurisdiction "over such person" is meaningless unless jurisdiction in the context of the statute was intended to mean personal jurisdiction.

An intriguing discussion in footnote 5 of the opinion raised the question of CPLR § 1601's application where the "empty chair" defendant is the claimant's employer, and an action for damages by the claimant employee against the employer would be barred by the "exclusive remedy" provisions of New York's workers' compensation law. The majority dismissed the concern by noting that an appearing third-party defendant would be permitted to implead the employer if the claimant employee suffered a "grave injury." Arguably, though, that begs the question of whether a third-party defendant would be allowed under CPLR § 1601 to apportion fault to an "empty chair" employer where the claimant suffered less than a "grave injury." We will watch with great interest as future cases attempt to apply the Artibee holding in workers' compensation cases.

For now, though, the takeaway for defense counsel seeking to assign a portion of fault to the State is to be prepared to fight two lawsuits – one in the civil court and one in the Court of Claims.