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Petitioner Sues Police in Domestic Violence Incident


On the evening of February 13, 1992, plaintiff pulled her car alongside an area where Nassau County police officers were investigating an auto accident and jumped out, screaming for help. Plaintiff mother (PM) informed the officers that her husband, TM, against whom she had obtained an order of protection, was in her car threatening her with a knife. A New York Family Lawyer said the plaintiff showed the officers the order of protection and told them that there was a warrant for her husband’s arrest based on a previous violation of the order. The officers removed plaintiff’s husband from the car and one of them assured her that they would take care of him. After plaintiff left, however, the officers did not arrest her husband. The next morning, as plaintiff left home for work, her husband, who had been hiding outside, attacked her with a machete, inflicting serious injuries.

A New York Family Lawyer said the plaintiff sued Nassau County for the negligence of its police officers in failing to take her husband into custody. Plaintiff did not join her husband as a defendant, nor was he impleaded by the County as a party. At the pre-charge conference, defendant County requested that Supreme Court charge the jury that liability for plaintiff’s injuries could be apportioned between itself and the husband. Defendant argued that CPLR article 16, which limits a tortfeasor’s joint liability for non-economic losses to its proportional share if its culpability is 50% or less, applied to this case. The Trial Judge declined to instruct the jury that they may apportion culpability between the County and the intentional tortfeasor, plaintiff’s husband, because of a “very strong issue of a public policy as established in the Family Court Act with respect to orders of protection.” The jury returned a $1.5 million verdict for non-economic losses against defendant.

On appeal to the Appellate Division, the County challenged the trial court’s ruling. In addition to defending the trial court ruling, plaintiff argued that apportionment did not apply both because the case involved an intentional tort and because the County had violated a non-delegable duty. The Appellate Division reversed, holding that none of the proffered exemptions applied. The
Court held that apportionment between a negligent and an intentional tortfeasor was appropriate. It also held that the officers were not under a non-delegable duty. Finally, the Appellate Division rejected the trial court’s holding that public policy prohibited apportionment. In ordering a new trial, the Appellate Division concluded that the County’s negligence stood in stark contrast to the act of intentional and criminal violence committed by TM.

Lacking finality, a Bronx Family Lawyer said an order of the Appellate Division granting a new trial typically would not be appealable to the Supreme Court, but plaintiff has stipulated that, upon affirmance, judgment absolute shall be entered against her, permitting an exceptional appeal as of right .

Enacted in 1986 as part of a larger package of tort law reform legislation, CPLR article 16 modified the traditional rules of joint and several liability. Before article 16, a plaintiff could hold any one tortfeasor liable for the entire loss, even though it may have been only partially responsible. After article 16, a joint tortfeasor can now limit its liability for non-economic losses to its proportional share upon proof that it is 50% or less culpable for a personal injury. The modified rules, however, do not apply in all personal injury cases as the Legislature enacted a set of exemptions that preserved the traditional rule. CPLR requires a party asserting an exemption to article 16 to allege and prove [it] by a preponderance of the evidence.

A Bronx Custody Lawyer said the plaintiff did not plead the intentional tort or non-delegable duty exemption and did not move to amend her complaint until now. Defendant therefore argues that the question of whether any exemptions embodied in CPLR apply, is not reviewable in the subject case.

CPLR authorizes amendment to pleadings “at any time.” However, the procedural posture of this case prohibits our addressing plaintiff’s motion to amend. On an appeal taken pursuant to stipulation for judgment absolute, the only matter this Court may consider is whether the Appellate Division erred as a matter of law in granting the new trial. After the stipulation, which confines our review to the question whether the Appellate Division’s reversal was proper, the time to amend had passed.

It was held in a similar case that CPLR required that a defendant potentially subject to the weight of a full judgment must have appropriate notice provided by pleadings. Under CPLR, plaintiff was required to affirmatively plead any exemption under article 16 she wished to have considered.

Having failed to plead the exemptions in her original complaint, once the County requested an apportionment charge, plaintiff should have moved to amend her pleading to include any possible article 16 exemptions. Plaintiff did not do so then or at any time prior to the presentation of the appeal to this Court. We therefore cannot review plaintiff’s claims that the intentional tort and non-delegable duty exemptions to article 16 apply.

The Supreme Court held that the trial court’s reasoning that article 16 does not apply in cases alleging negligent enforcement of orders of protection because of public policy concerns. While there is a strong public policy of encouraging enforcement of orders of protection, the Legislature has not chosen to include such an exemption in article 16. Plaintiff asked the Court to create an entirely new exemption that is not suggested by the language of the statute or its history. The Court cannot allow this.

Where the Legislature has spoken, indicating its policy preferences, it is not for the Court to superimpose its own.

An additional exemption for domestic violence, enacted by judicial fiat, would upset this careful balance struck by the Legislature.

Accordingly, the order of the Appellate Division is affirmed by the Court and judgment dismissing the complaint granted upon plaintiff’s stipulation. Plaintiff’s motion to amend the complaint was dismissed as academic.

Domestic violence is a complicated issue. It often has legal, civil and medical implications. Innocent lives are usually at stake. A Nassau County Family Lawyer can help you sort out these issues and guide you of the available remedies in your quest to protect those involve and put a stop to the cycle of violence.

Stephen Bilkis & Associates with its group of competent Nassau County Domestic Violence Attorneys has convenient offices throughout the Nassau County area. Our Nassau County Family Attorneys can provide with the needed assistance to obtain a protective order against the offending party. Lives will be saved with the help of a Nassau County Domestic Violence Lawyer,
In addition to Nassau County Law, Stephen Bilkis and Associates can recommend a Nassau County Criminal Lawyer in your area to argue your case.

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