Acosta v Xinna Lu

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[*1] Acosta v Xinna Lu 2019 NY Slip Op 51826(U) Decided on November 15, 2019 Civil Court Of The City Of New York, Bronx County Gomez, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on November 15, 2019
Civil Court of the City of New York, Bronx County

Wendy Acosta, Petitioner(s),

against

Xinna Lu and Altagracia Mejia, Respondent(s).



300078/18



Attorney for Plaintiff: Law Offices of Edmund J. Pryor

Attorney for Mejia: Law Offices of John Trop
Fidel E. Gomez, J.

In this action for personal injuries, defendant ALTAGRACIA MEJIA (Mejia) moves seeking an order retraining plaintiff from collecting any sums from defendant XINNA LU (Lu) or alternatively directing plaintiff to tender to Mejia, any funds for damages arising from the accident giving rise to this action and which she collected from Lu's insurance carrier. Mejia avers that insofar as subsequent to the jury's verdict in this action she paid plaintiff $100,000, $37,500 of which was in excess of her proportionate share of the liability in this action, Mejia should recover any sums up to $37,000 from Lu before plaintiff can recover any sums from Lu. Plaintiff opposes the instant motion, asserting that insofar as the sums that plaintiff recovered from Mejia are substantially less than the jury's verdict, plaintiff has to be made whole before Mejia recovers any sums from Lu.

For the reasons that follow hereinafter, Mejia's motion is denied.

The instant action is for alleged personal injuries arising from a motor vehicle accident. The complaint alleges that on December 4, 2011, plaintiff was involved in a motor vehicle accident on Bruckner Boulevard near its intersection with East 140th Street, in Bronx County in the City of New York. Specifically, plaintiff alleges that while a passenger in a vehicle owned and operated by Mejia, a vehicle owned and operated by Lu collided with the same. Plaintiff alleges that defendants were negligent in the operation and ownership of their vehicles, said negligence proximately causing the accident and the injuries arising therefrom. Mejia interposed an answer in which she asserted a cross claim against Lu, alleging that Lu was liable to Mejia in contribution for any sums awarded to plaintiff and which Mejia was forced to pay.

On May 3, 2016, the Supreme Court (L. Gonzalez, J.) granted plaintiff's motion seeking [*2]the entry of a default judgment against Lu for her failure to appear and interpose an answer to the complaint. On March 29, 2018, the Supreme Court (D. Gonzalez, J.) transferred this case to this Court pursuant to CPLR § 325(d). Sometime before or thereafter, the parties executed a stipulation transferring this case to the Summary Jury Trial Program (SJT Program). While no one submits, and the Court cannot locate the stipulation, it is undisputed that the parties agreed to a high/low of $0-100,000, thus capping the jury's verdict as against Mejia at $100,000.

On January 29, 2019, this case was tried via a Summary Jury Trial (SJT) and the jury returned a verdict in plaintiff's favor. Specifically, after the Court instructed the jury that by virtue of Lu's default they had to find that she was liable for this accident, the jury found that Mejia was also liable. The jury apportioned the liability between Lu and Mejia, finding that Mejia was 25 percent liable and that Lu was 75 percent liable. On the issue of damages, the jury awarded plaintiff $250,000, $75,000 for past pain and suffering and $175,000 for future pain and suffering.

On February 21, 2019, the Court received the first of a legion of email correspondence regarding the sum Mejia was obligated to pay in satisfaction of the jury's verdict. In essence, it was plaintiff's position that although the jury only found Mejia 25 percent liable for the accident, pursuant to the doctrine of joint and several liability, CPLR §§ 1601 and 1602(6), and the limitations of Mejia's liability pursuant to the high/low, Mejia was obligated to pay $100,000 to plaintiff. Specifically, plaintiff urged that Mejia was required to pay $62,500 which represented her proportionate share (25 percent) of the total damages award ($250,000) plus an additional $37,500 representing a portion of the damages ascribed to Lu but which given Lu's default, plaintiff could not collect. While the Court issued no orders, it did inform the parties that under the doctrine of joint and several liability, since it appeared that Lu could not satisfy her portion of the verdict, Mejia would be required to pay the additional $37,500 and that Mejia's remedy was to recoup the same in an action for contribution against Lu pursuant to CPLR §§ 1401 and 1402. Mejia paid plaintiff the additional $37,500.

On June 12, 2019, plaintiff, via email, apprised Mejia that it had been contacted by Lu's insurance carrier who indicated that it was willing to pay $30,000 on behalf of Lu to satisfy Lu's portion of the verdict. Based on the foregoing, Mejia made the instant motion, seeking to either restrain plaintiff from collecting the foregoing sum from Lu's carrier or in the event such sum has been collected, compelling plaintiff to tender said sum to Mejia's insurance carrier.

Preliminarily, before delving into the substance of the instant application, the Court must determine, given that the instant action was resolved after an SJT, whether it can entertain the instant motion. The Court determines that the instant motion is one it can indeed entertain and determine insofar as it is not proscribed by the rules governing the SJT Program in Bronx County.

A stipulation between parties and/or their attorneys in an action is a binding contract (CPLR § 2104 ["An agreement between parties or their attorneys relating to any matter in an action, other than one made between counsel in open court, is not binding upon a party unless it is in a writing subscribed by him or his attorney or reduced to the form of an order and entered."]; (Chae Shin Oh v Jeannot, 160 AD3d 701, 702 [2d Dept 2018] ["The stipulation, signed by counsel for each party in this action during a court appearance, is a binding contract."]; Daibes v Kahn, 116 AD3d 994, 995 [2d Dept 2014]; Kirkland v Fayne, 78 AD3d 660, 660 [2d [*3]Dept 2010]). Thus, when parties agree to submit an action into the SJT Program, they are bound by the stipulation executed in furtherance thereof (Chae Shin Oh at 702 [Court held that stipulation executed by counsel transferring action in to the Summary Jury Trial Part was a binding contract which could only be vacated under circumstances governing principles of contract law.]).

Here, the parties executed a stipulation wherein they elected to resolve this case via an SJT. Thus, pursuant to relevant stipulations used in Bronx County, the parties bound themselves to the rules governing the SJT Program. To be sure, in Bronx County, the stipulation in Supreme Court which transfers an action to the SJT Program states that the parties to an action, through counsel "voluntarily agree to transfer [a] matter for final disposition to the Summary Trial Program (SJT) subject to the Rules of the SJT Program." In Civil Court such stipulation similarly states that a "matter is transferred to the Summary Jury Trial Program for trial in accordance with the procedures thereof." In Bronx County, the rules require that "[t]he parties agree . . . to waive the right to appeal from the determination of this matter" (The Summary Jury Trial Process: Bronx Rules and Procedure, (September 23, 2008), available at https://www.nycourts.gov/LegacyPDFS/courts/12jd/bronx/civil/pdfs/THE%20SUMMARY%20JURY%20TRIAL%20PROCESS.pdf). With respect to motion practice the rules only address two kinds of motions, which the parties agree to waive - motions for directed verdict and motions to set aside a verdict. To be sure, the rules state that"[p]arties agree to waive any motions for directed verdicts as well as any motions to set aside the verdict or any judgment rendered by said jury" (id.). Thus, while parties in the SJT Program are prohibited from making those motions expressly proscribed by the rules (Rodriguez v Baranek, 140 AD3d 407, 407 [1st Dept 2016] ["Plaintiff's posttrial motion, although framed as a motion for a mistrial based on an inconsistent verdict, in essence sought to set aside the jury's verdict as against the weight of the evidence, and is therefore prohibited by the summary jury trial rules, which the parties agreed to follow."]; Conrad v Alicea, 117 AD3d 560, 560 [1st Dept 2014]), they can make and the court can determine those motions not expressly prohibited by the rules and/or the applicable stipulation (White v Winter, 28 AD3d 1148, 1149 [4th Dept 2006] ["Were we to reach the merits of the appeal, we would reject defendant's contention that the court erred in ruling on plaintiff's motion for a directed verdict. The parties' stipulation does not address CPLR 4401 motions, and the Judge's Bench Manual for the Eighth Judicial District's Summary Jury Trial Program contains no provision precluding the court from ruling on such a motion."]; Griffin v Yonkers, 26 Misc 3d 917, 920 [Sup Ct, Bronx County 2009] ["Accordingly, as collateral source motions are not specifically excluded by the rules under which the parties stipulated to submit the action to a summary jury trial, defendants' motion may be entertained."]). Here, where the instant motion is neither one to set aside or direct a jury verdict, the Court can hear and determine the instant motion.

Mejia's motion seeking to restrain plaintiff from collecting any sums from defendant Lu and/or her insurance carrier or alternatively compelling plaintiff to turn over any funds collected from Lu and/or her insurance carrier is denied. A review of the controlling law evinces that while Mejia does indeed have a vested right to collect from Lu all sums she paid in excess of her proportionate share of fault as determined by the jury at trial, that right does not limit plaintiff's right to collect all sums due to her from Lu.

"Joint and several liability, primarily a tort law concept, imposes on each wrongdoer responsibility for the entire damages awarded, even though a particular wrongdoer's conduct may have caused only a portion of the loss" (Matter of Seagroatt Floral Co., Inc., 78 NY2d 439, 448 [1991]). Thus, a jury's apportionment of fault does not limit a plaintiff's ability to collect a jury award from one defendant when they are jointly and severally liable (Ravo by Ravo v Rogatnick, 70 NY2d 305, 313 [1987] ["The jury's apportionment of fault, however, does not alter the joint and several liability of defendants for the single indivisible injury. Rather, that aspect of the jury's determination of culpability merely defines the amount of contribution defendants may claim from each other, and does not impinge upon plaintiff's right to collect the entire judgment award from either defendant."]). Notably, however, CPLR § 1601(1), enacted "to address the inequity which occurs [under the common law] when the disparity between minor fault and major financial punishment becomes extreme" (Silter v 146 Montague Associates, 228 AD2d 33, 40 [2d Dept 1997]), alters the doctrine of joint and several liability by limiting recovery by a plaintiff of pain and suffering damages from a defendant whose proportionate share of fault is 50 percent or less (CPLR § 1601 ["Notwithstanding any other provision of law, when a verdict or decision in an action or claim for personal injury is determined in favor of a claimant in an action involving two or more tortfeasors jointly liable or in a claim against the state and the liability of a defendant is found to be fifty percent or less of the total liability assigned to all persons liable, the liability of such defendant to the claimant for non-economic loss shall not exceed that defendant's equitable share determined in accordance with the relative culpability of each person causing or contributing to the total liability for non-economic loss."]; Morales v County of Nassau, 94 NY2d 218, 223 [1999]; Van Vlack v Baker, 242 AD2d 704, 704 [2d Dept 1997] ["CPLR 1601 limits the liability of a defendant found to be 50% or less at fault in causing the plaintiff's noneconomic losses to that defendant's share of the fault."]). Thus, provided a defendant's proportionate share of the liability is 50 percent or less, CPRL § 1601 essentially makes said defendant severally liable for noneconomic loss (Silter at 38 ["Public calls for reform of the joint and several liability rule and concerns about other issues affecting the liability insurance industry were addressed by an Advisory Commission formed by then Governor Cuomo. CPLR article 16 emerged as a modified version of the Advisory Commission's recommendation to make defendants severally liable for noneconomic loss."]).

CPLR § 1602, however, limits the applicability of CPLR § 1601 by excluding the latter's applicability to certain cases enumerated by the former (Morales at 223; Silter at 38). As relevant here, CPLR § 1602(6) renders a defendant's several liability for noneconomic damages, where said defendant's share of fault does not exceed fifty percent, inapplicable in cases involving motor vehicle accidents (Shaw v Carolina Coach, 82 AD3d 98, 103 [2d Dept 2011]). To be sure, CPLR § 1602 states that the limitations prescribed by CPLR § 1601 shall not apply

to any person held liable by reason of his use, operation, or ownership of a motor vehicle or motorcycle, as those terms are defined respectively in sections three hundred eleven and one hundred twenty-five of the vehicle and traffic law.

Thus, in an action involving multiple defendants and arising from the use and ownership of motor vehicles by those defendants, CPLR § 1601 is rendered inapplicable by CPLR § 1602(6). In those instances, any defendant is jointly and severally liable for more than just his/her/its share of the fault giving rise to noneconomic damages even if such share is less than 50 percent. Stated [*4]differently, a plaintiff can collect all sums representing noneconomic loss from any one defendant even if that defendant's share of the liability is less than 50 percent.

Notably, a defendant who pays a disproportionate share of noneconomic damages because another culpable defendant cannot satisfy a verdict and because of the doctrine of joint and several liability, can avail himself of the common law remedy of contribution. A cause of "action for contribution is based upon the fiction of an implied contract to ameliorate any inequity which results when a tort-feasor pays more than his share of the common liability" (Blum v Good Humor Corp., 57 AD2d 911, 911 [2d Dept 1977]; see Johnson v Harvey, 84 NY 363, 367 [1881] ["contribution was not founded upon contract, it was further said that the law following equity will imply a promise to contribute in order to afford a remedy."]). Moreover, contribution is a remedy which this State has codified in Article 14 of the CPLR. To be sure, CPLR § 1401 states that

two or more persons who are subject to liability for damages for the same personal injury, injury to property or wrongful death, may claim contribution among them whether or not an action has been brought or a judgment has been rendered against the person from whom contribution is sought.

Pursuant to CPLR § 1402, the amount of such claim is "the excess paid by him over and above his equitable share of the judgment recovered by the injured party. Moreover, "no person shall be required to contribute an amount greater than his equitable share" (id.), and "[t]he equitable shares shall be determined in accordance with the relative culpability of each person liable for contribution" (id.).

Thus, "CPLR article 14, enables a joint tortfeasor who has paid more than his or her equitable share of damages to a plaintiff to recover the excess from the other tortfeasor" (O'Gara v Alacci, 67 AD3d 54, 57 [2d Dept 2009]; see Sommer v Fed. Signal Corp., 79 NY2d 540, 556 [1992] ["Any tortfeasor who pays more than its fair share of a judgment—as apportioned by the factfinder in terms of relative culpability—may recover the excess from the others."]). A cause of action for contribution may be asserted by separate action or by a cross-claim in the same action (CPLR § 1403 ["A cause of action for contribution may be asserted in a separate action or by cross-claim, counterclaim or third-party claim in a pending action."]).

While a claim for contribution under Article 14 of the CPLR can be enforced in the same action giving rise to a verdict in favor of a plaintiff (Ohlquist v Nordstrom, 143 Misc 502, 504 [Sup Ct 1932], affd, 238 AD 766 [4th Dept 1933], affd, 262 NY 696 [1933]), it is well settled that the claim does not accrue until payment is made (Tetens v Elston Realty Corp., 108 AD2d 981, 982 [3d Dept 1985]; Blum v Good Humor Corp., 57 AD2d 911, 911 [2d Dept 1977]). Thus, no recovery on a claim for contribution may be obtained until a defendant pays more than its proportionate share of the damages to the plaintiff (Klinger v Dudley, 41 NY2d 362, 369 [1977] ["Although a main defendant may assert his claim for contribution prior to the payment of any amount to the plaintiff, this Claim does not entitle a main defendant to contribution until Payment by such defendant to plaintiff of an amount in excess of his proportionate share of the judgment" (internal citations omitted).]; Mogil v Gorgone, 225 AD2d 674, 675 [2d Dept 1996] ["we find that the judgment must be modified since the defendants third-party plaintiffs are not entitled to contribution from the third-party defendant until they have paid the plaintiff an amount in excess of their share of the judgment."]; McCabe v Queensboro Farm Products, Inc., [*5]22 NY2d 204, 208 [1968]).

Notably, however, pursuant to CPLR § 1404(a), the right to contribution shall not "impair the rights of any person entitled to damages under existing law." Stated differently, the fact that a defendant is entitled to contribution from another defendant for sums paid over the former's proportionate share of the fault in no way limits a plaintiff's ability to recover all sums permitted by law from a defendant jointly and severally liable (Kelly v Long Is. Light. Co., 31 NY2d 25, 30 [1972] ["It should, of course, be understood that this refinement of the rule of contribution does not apply to or change the plaintiff's right to recover against any joint tort-feasor in a separate or common action the total amount of his damage suffered and not compensated. We are only concerned here with the right of contribution between two or more joint or concurrent tort-feasors. Nor, for example, are we concerned with issues involving vicarious liability, to which the active-passive dichotomy classically and appropriately belonged."]).

Based on the foregoing, the resolution of the instant motion is relatively uncomplicated. That said, given the post-verdict history of this action - in particular the voluminous number of emails between the parties and the Court - the Court must first address the applicability of the doctrine of joint and several liability to cases, like this one, resolved by SJT.

As noted above, when parties agree to submit their cases to the SJT Program, they agree to be bound by the rules governing the program. That said, it stands to reason that absent an agreement to the contrary, any principle of law not addressed by the rules or proscribed thereunder, remain applicable, irrespective of the fact that a case is tried by SJT. Here, shortly after the jury's verdict, the parties asked this Court to intervene when plaintiff sought to collect from Mejia sums exceeding her proportionate share of the liability ascribed to her by the jury. As conveyed to the parties then and as reiterated now, it is the Court's holding that nothing in the rules governing the SJT Program nor agreed to by the parties renders the doctrine of joint and several liability or CPLR §§ 1601 and 1602 inapplicable to the jury's verdict simply because the verdict resulted from a SJT.

Thus, as noted above, while the stipulation between the plaintiff and Mejia, specifically the high/low setting the low to $0 and the high to $100,000, did cap Mejia's monetary liability at $100,000, here, where Lu defaulted and could not satisfy her portion of the verdict, Mejia was required to pay plaintiff more than Mejia's proportionate share of the damages up to the cap of $100,000. To be sure, joint and several liability imposes on each wrongdoer responsibility for the entire damages awarded, even though a particular wrongdoer's conduct may have caused only a portion of the loss (Matter of Seagroatt Floral Co., Inc. at 448). As such, a jury's apportionment of fault does not limit a plaintiff's ability to collect a jury award from one defendant when they are jointly and severally liable (Ravo by Ravo at 313). Moreover, while CPLR § 1601(1) alters the doctrine of joint and several liability by limiting recovery by a plaintiff of pain and suffering damages from a defendant whose proportionate share of fault is 50 percent or less (Morales at 223; Van Vlack at 704), essentially making said defendant severally liable for noneconomic loss (Silter at 38), CPLR § 1602 limits the applicability of CPLR § 1601 by excluding the latter's applicability to certain cases enumerated by the former (Morales at 223; Silter at 38). As relevant here, where the injuries alleged arose from the use and operation of motor vehicles, CPLR § 1602(6) renders a defendant's several liability for noneconomic damages inapplicable (Shaw at 103), such that any defendant is liable for all noneconomic damages even if [*6]only 1 percent at fault.

Thus, in the case at bar, where the jury's verdict was $250,000 and Mejia was only found to be 25 percent at fault, she was only responsible to pay $62,500. However, because Lu defaulted, plaintiff opted to collect an additional $37,500 from Mejia, which under the doctrine of joint and several liability, was plaintiff's right.

Common law and the statutes of this State, however, provide Mejia with a remedy for having paid plaintiff more than her proportionate share of the jury's verdict. Indeed, not only does Mejia have a remedy available under the common law (Blum at 911; Johnson at 367), but she has a remedy under Article 14 of the CPLR. Significantly, CPLR § 1401 creates a statutory right for contribution and CPLR § 1402 defines the amount thereunder as "the excess paid by him over and above his equitable share of the judgment recovered by the injured party."

The issue which Mejia now seeks to have the Court resolve is not whether she has a right to seek contribution from Lu in the amount of $37,500, representing the excess above Mejia's proportionate share of the damages which Mejia paid plaintiff (it is clear that Mejia has such a claim). Instead, here, the issue is whether Mejia's right to contribution under Article 14 of the CPLR is superior to plaintiff's right to collect damages from Lu, who is jointly and severally liable for plaintiff's injuries, pursuant to the common law and Article 16 of the CPLR. The Court holds that here, Mejia's right is not superior. Instead, the contribution claim is at best equal to plaintiff's claim for damages against Lu, such that it cannot subvert plaintiff's right to collect sums in satisfaction of the jury's verdict from Lu.

To be sure, it is well settled that Article 14 of the CPLR "enables a joint tortfeasor who has paid more than his or her equitable share of damages to a plaintiff to recover the excess from the other tortfeasor" (O'Gara at 57; Sommer at 556). Such cause of action may be asserted by separate action or by the assertion of a cross-claim in the same action (CPLR § 1403), and when brought by cross-claim, can be enforced in the same action giving rise to verdict in favor of the plaintiff (Ohlquist at 504). The foregoing assumes, of course, that payment in excess of a tortfeasor's proportionate share of the damages has been made (Klinger at 369; Mogil at 675; McCabe at 208).

In the case at bar, to the extent that Mejia asserted a cross-claim against Lu in the answer Mejia interposed in this action and because Mejia paid plaintiff $37,500, representing sums in excess of Mejia's proportionate share of the jury's verdict, there exists no procedural impediment barring the instant motion seeking, in essence, to enforce Mejia's contribution claim against Lu. However, as a matter of substance, the law warrants denial of the instant motion because the relief sought by Mejia would subvert plaintiff's right to collect damages owed to her from Lu, a torfeasor, who here, is jointly and severally liable for the jury's verdict comprised solely of noneconomic loss.

Significantly, pursuant CPLR § 1404(a), the right to contribution shall not "impair the rights of any person entitled to damages under existing law." Stated differently, and as noted above, the fact that a defendant is entitled to contribution from another defendant for sums paid over the former's proportionate share of the fault in no way limits a plaintiff's ability to recover all sums permitted by law from a defendant joint and severally liable (Kelly at 30). As the Court of Appeals noted in Kelly, when discussing the effect that Dole v Dow Chem. Co. (30 NY2d 143 [1972]), had on the interplay between the now recognized claim for contribution and the doctrine [*7]of joint and several liability, "[i]t should, of course, be understood that this refinement of the rule of contribution does not apply to or change the plaintiff's right to recover against any joint tort-feasor in a separate or common action the total amount of his damage suffered and not compensated" (Kelly at 30).

Here, because Lu defaulted by failing to timely interpose an answer, she was not bound by the limits of the parties' high/low. Thus, given her liability at trial, which was 75 percent, Lu's proportionate share of the $250,000 verdict is $187,500. Thus, plaintiff has yet be made whole by any of the sums collected, including the $100,000 from Mejia. More importantly, the $30,000 at issue here, when paid to plaintiff, taking into account the $37,500 paid by Mejia to plaintiff, still leaves Lu liable to plaintiff in the sum of $120,000. Because plaintiff has an absolute right to collect sums in furtherance of the jury award from Lu, directing that those sums be paid to Mejia in furtherance of her contribution claim would subvert plaintiff's right. CPLR § 1404(a) and case law clearly proscribe such a result. Accordingly the instant motion is denied. It is hereby

ORDERED that plaintiff serve a copy of this Order with Notice of Entry upon all parties within thirty (30) days hereof.

This constitutes this Court's decision and Order.



Dated: November 15, 2019

FIDEL E. GOMEZ, JCC