4 No. 48
Paul Faragiano, &c., et al.,
Respondents,
v.
Town of Concord,
Appellant, et al.,
Defendants.
_________________________________________________________________
2001 NY Int. 35
March 29, 2001
This memorandum is uncorrected and subject to revision before
publication in the New York Reports.
Michael J. Willett, for appellant.
John M. Curran, for respondents.
_________________________________________________________________
_________________________________________________________________
MEMORANDUM:
The order of the Appellate Division should be reversed, with costs,
plaintiffs' motion to amend their amended complaint denied, defendant
Town's cross motion for partial summary judgment on its second
affirmative defense for apportionment under CPLR article 16 granted
and the certified question answered in the negative.
Seventeen-year-old plaintiff Paul Faragiano was injured when a Jeep in
which he was a passenger veered off the road, rolled over several
times and struck a camper parked nearby. Faragiano, by his guardian,
commenced this action against, among others, the driver of the Jeep,
the owner of the camper, the contractor that resurfaced the road and
the Town of Concord. As relevant here, plaintiffs allege that the Town
negligently constructed and maintained its road and that its
contractor, defendant Midland Asphalt, negligently permitted a
build-up of oil or tar on the road. The Town asserted, as an
affirmative defense, that its liability for any noneconomic losses
should be apportioned among the other tortfeasors pursuant to CPLR
article 16. Plaintiffs moved to amend their pleadings to allege that
CPLR 1602 (2)(iv) precluded apportionment. The Town then cross-
moved for partial summary judgment on its article 16 defense, arguing
that CPLR 1602 (2)(iv) is not an exception to apportionment under
article 16, but a savings provision that preserves vicarious
liability. Supreme Court granted plaintiffs' motion to amend their
SNIPPETS:
Paul Faragiano, &c., et al., Respondents, v.
This memorandum is uncorrected and subject to revision before publication in the New York
The order of the Appellate Division should be reversed, with costs, plaintiffs' motion to
Seventeen-year-old plaintiff Paul Faragiano was injured when a Jeep in which he was a
As relevant here, plaintiffs allege that the Town negligently constructed and maintained its
The Town asserted, as an affirmative defense, that its liability for any noneconomic losses
Plaintiffs moved to amend their pleadings to allege that CPLR 1602 precluded apportionment.
The Town then crossmoved for partial summary judgment on its article 16 defense, arguing that
Supreme Court granted plaintiffs' motion to amend their pleadings and denied the Town's cross
The court concluded that because the Town's liability arose from a breach of a non- delegable
The Appellate Division affirmed and held that CPLR 1602 bars a defendant from seeking
Based on our decision in Rangolan v County of Nassau (__ NY2d __ (decided today)), we answer
In Rangolan, we rejected the argument that CPLR 1602 bars apportionment of noneconomic
we held that CPLR 1602 is a savings provision that ensures that a defendant under a non-
However, to the extent plaintiffs allege that the Town is vicariously liable for the
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