Bill S7673-2009

Provides that limited liability for persons held jointly liable shall not apply to parties held liable for failing to provide reasonable security

Provides that limited liability for persons held jointly liable shall not apply to parties held liable for failing to provide reasonable security or failing to provide security required by federal, state or local law, rules or regulations.

Details

Actions

  • Jun 10, 2010: ADVANCED TO THIRD READING
  • Jun 9, 2010: 2ND REPORT CAL.
  • Jun 8, 2010: 1ST REPORT CAL.852
  • Apr 30, 2010: REFERRED TO CODES

Votes

VOTE: COMMITTEE VOTE: - Codes - Jun 8, 2010
Ayes (8): Schneiderman, Breslin, Parker, Huntley, Sampson, Klein, Perkins, Squadron
Ayes W/R (1): Duane
Nays (7): Volker, Saland, DeFrancisco, Bonacic, Golden, Lanza, Flanagan

Memo

 BILL NUMBER:  S7673

TITLE OF BILL : An act to amend the civil practice law and rules, in relation to limited liability of persons jointly liable

PURPOSE : To provide that limited liability for persons held jointly liable shall not apply to parties held liable for failing to provide security as required by law, rule or regulation

SUMMARY OF PROVISIONS : Section one amends section 1602 of the civil practice law and rules by adding a new subdivision (14) to provide that limitations on liability will not apply to any person who owns, manages, and/or controls property or provides security for said property who fails to provide security as required by law, rule or regulation.

Section two provides the effective date and that the law shall apply to causes of action commenced or pending on or after such date.

JUSTIFICATION : Where a tenant is raped by an intruder who gained access to the tenant's building. through a defect in the building's security, New York is among a small number of states that asks a jury to apportion liability between the rapist and the negligent landlord who failed to keep the building secure. This leads to an unintended and bizarre result when the victim attempts to recover damages from the negligent landlord for the personal injury suffered at the hands of the rapist.

Under current law, if the negligent landlord is found to be 50% or less liable for the injury, the landlord's liability is limited to his "equitable share" based on the "relative culpability" of each person contributing to the total liability. The only time this limitation, on liability of the landlord is not imposed is when the other person contributing to the liability, i.e. the rapist, cannot be found.

Accordingly, in the case of the raped tenant, a jury will likely find the rapist to be more than 50%, if not 100%, liable for the victim's injury, freeing the landlord from liability, even though the landlord failed to maintain adequate security at the time of the assault.

There is another curious consequence that results, from the application of this limitation on liability. Current law provides that the limitation on liability is not applied where the other person responsible for the victim's injury cannot be found. So in the case of the raped tenant, if the rapist cannot be found, the limitation on liability of the landlord will not be imposed and the victim may be able to recover fully for damages against the landlord for his failing to provide reasonable security. If, on the other hand, the rapist is found, the victim will likely recover little, if any, damages from the landlord since the limitation of liability will be applied based on the landlord's "relative culpability." The landlord's relative culpability will likely be deemed to be small as compared to the rapist's culpability, and almost all of the liability imposed, on the rapist. One may surmise that the odds of recovering damages from the rapist are slim.

Current law, then, forces the victim to choose between cooperating with law enforcement to find her attacker and bring him to justice and not seeking to identify her assailant so that she can recover damages 100% from the landlord in her personal injury action. Prior to 2002, New York courts generally held that the law requiring apportionment of liability did not apply to personal injury actions involving a negligent actor(i.e. a landlord) and an intentional wrongdoer (i.e. a criminal who commits assault). Yet the Court of Appeals in 2002 required allocation of liability, noting that the legislature would need to modify the law to clarify its intent regarding apportionment in these types of cases.

This bill will make clear that allocation of liability will not apply to person who owns, manages, and/or controls property or provides security for said property for failing to provide security as required by law, rule or regulation.

LEGISLATIVE HISTORY : This is a, new bill.

FISCAL IMPLICATIONS : None.

EFFECTIVE DATE : This act shall take effect immediately.

Text

STATE OF NEW YORK ________________________________________________________________________ 7673 IN SENATE April 30, 2010 ___________
Introduced by Sen. PERALTA -- read twice and ordered printed, and when printed to be committed to the Committee on Codes AN ACT to amend the civil practice law and rules, in relation to limited liability of persons jointly liable THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM- BLY, DO ENACT AS FOLLOWS: Section 1. Section 1602 of the civil practice law and rules is amended by adding a new subdivision 14 to read as follows: 14. NOT APPLY TO ANY PERSON WHO OWNS, MANAGES, AND/OR CONTROLS PROPER- TY OR PROVIDES SECURITY FOR SAID PROPERTY WHO FAILS TO PROVIDE SECURITY AS REQUIRED BY LAW, RULE OR REGULATION. S 2. This act shall take effect immediately and shall apply to causes of action commenced or pending on or after such date.

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