1. Whether a plaintiff's failure to timely plead statutory exemptions to N.Y. C.P.L.R. 16, which in certain circumstances limits a tortfeasor's joint liability, prevents a court from reviewing their applicability.

2. Whether a public policy of favoring enforcement of orders of protection, especially in situations of domestic violence, overrides N.Y. C.P.L.R. 16.

1. Yes. Where a plaintiff has failed to plead statutory exemptions to N.Y. C.P.L.R. 16, a court may not review their applicability.

2. No. The public policy favoring enforcement of orders of protection does not trump the legislative intent of N.Y. C.P.L.R. 16.

Plaintiff summoned police officers who were investigating an auto accident as she jumped from her car screaming for help. She informed the officers that her husband was threatening her with a knife, showed the officers an order of protection she had obtained against her husband, and notified the officers that a warrant had been issued for her husband's arrest based upon a previous violation of the order. The officers removed her husband from the car but did not arrest him. The next morning, Plaintiff's husband attacked her with a machete and caused serious injuries.

Plaintiff sued Nassau County for the negligence of its police officers in failing to take her husband into police custody. Plaintiff neither joined her husband as a defendant, nor pleaded any exemptions to N.Y. C.P.L.R. 16, which limits a tortfeasor's joint liability for non-economic losses to its proportional share, if its culpability is 50% or less. The statute was enacted as part of a larger package of tort law reform, and in modifying the traditional rules of joint and several liability, it allowed for apportionment unless a personal injury case fell into a specific set of exemptions, in which case the traditional rules would apply.

At the pre-charge conference, Defendant requested that the trial court charge the jury that liability for Plaintiff's injuries could be apportioned between itself and Plaintiff's husband, since, Defendant asserted, N.Y. C.P.L.R. 16 applied in this case. The trial court declined Defendant's requested instruction because of the strong public policy as established in the Family Court Act favoring enforcement of orders of protection. The jury returned a $1.5 million verdict against Defendant.

On appeal to the Appellate Division, Defendant challenged the trial court's ruling that N.Y. C.P.L.R.16 did not apply to the case. Plaintiff, however, defended the trial court's holding by asserting that there was a "domestic violence" exception to the statute and further argued that the apportionment did not apply because this case involved an intentional tort, under N.Y. C.P.L.R. 1602(5), or because the County had violated a non-delegable duty under N.Y. C.P.L.R. 1602(2)(iv). The Appellate Division reversed, holding that none of statutory exceptions applied, and that the apportionment between a negligent and intentional tortfeasor was appropriate. Further, it held that the officers were not under a non-delegable duty, it rejected the trial court's holding that public policy prohibited such an apportionment, and finally, granted a new trial.

The Court of Appeals was able to hear this appeal, despite the lack of finality of the Appellate Division's order granting a new trial, because Plaintiff permitted an exceptional appeal as of right by stipulating that, upon affirmance, judgment absolute would be entered against her. Furthermore, the Court noted that Plaintiff did not plead the intentional tort or non-delegable exemption to N.Y. C.P.L.R. 16, nor move to amend her complaint, until the appeal.

Although N.Y. C.P.L.R. 3025 authorizes amendments to pleadings "at any time," absent prejudice, the Court held that the procedural posture of this case prohibited the Court from addressing the motion to amend. Because of Plaintiff's stipulation for appeal, the review was confined to the question of whether the Appellate Division erred as a matter of law in granting a new trial and whether the reversal was proper.

In affirming the Appellate Division's order, the Court relied upon its holding in Cole v. Mandell Foods, 93 N.Y.2d 34 which held that a defendant potentially subject to the full weight of a judgment must have notice provided by the pleadings as to why N.Y. C.P.L.R. 16 might not apply. This case was indistinguishable in that Plaintiff here failed to comply with the statutory mandate of N.Y. C.P.L.R. 16 which required her to affirmatively plead any exemption she wanted considered. Therefore, in keeping with N.Y. C.P.L.R. 3025, Plaintiff would have been allowed, and indeed should have requested for an amendment of her original complaint, once the County requested an apportionment jury charge.

Finally, the Court rejected the trial court's reasoning that a strong public policy favoring enforcement of orders of protection prohibits the application of N.Y. C.P.L.R. 16. Because the Legislature chose not to include such an exemption, the Court cannot create one by judicial fiat. Instead, the Court must respect the Legislature's intent and the statute as a product as a painstaking balance of interests. Accordingly, the judgment absolute dismissing the complaint upon Plaintiff's stipulation was granted.