BENITA NICASIO MORALES, APPELLANT, v. COUNTY OF NASSAU, RESPONDENT.
94 N.Y.2d 218 (1999).
December 2, 1999
2 No. 171
(99 NY Int. 0167)
Decided December 2, 1999
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This opinion is uncorrected and subject to revision before publication
in the New York Reports.
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David Samel, for appellant.
L. Kevin Sheridan, for respondent.
My Sister's Place, et al.; City of New York, amici
curiae.
CIPARICK, J.:
This case raises two questions under CPLR article 16, which in certain
circumstances limits a tortfeasor's joint liability. First, does
plaintiff's failure to plead statutoryexemptions to article 16 prevent
this Court from reviewing their applicability? We conclude that it
does. Second, does the public policy favoring enforcement of orders of
protection override article 16? We conclude that it does not. The
Legislature has explicitly provided a list of exemptions in article
16, none relating to domestic violence or orders of protection. A
policy decision to provide such an exemption rests with the
Legislature.
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 informed the officers that her husband, Teodoro Morales,
against whom she had obtained an order of protection, was in her car
threatening her with a knife. 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.
SNIPPETS:
This opinion is uncorrected and subject to revision before publication in the New York
The Legislature has explicitly provided a list of exemptions in article 16, none relating to
On the evening of February 13, 1992, plaintiff pulled her car alongside an area where Nassau
Plaintiff informed the officers that her husband, Teodoro Morales, against whom she had
Plaintiff sued Nassau County for the negligence of its police officers in failing to take her
Plaintiff did not join her husband as a defendant, nor was heimpleaded by the County as a
defendant County requested that Supreme Court charge the jury that liability for plaintiff's
Defendant argued that CPLR article 16, which limits a tortfeasor's joint liability for
The trial judge declined to instruct the jury that they may apportion culpability between the
On appeal to the Appellate Division, the County challenged the trial court's ruling barring
Relying on Siler v 146 Montague Associates (228 AD2d 33 app dsmd 90 NY2d 927), the court held
It also held that the officers were not under a non-delegable duty.
Lacking finality, an order of the Appellate Division granting a new trial typically would not
Plaintiff did not plead the intentional tort or non-delegable duty exemption and did not move
On an appeal taken pursuant to stipulation for judgment absolute, the only matter this Court
After the stipulation, which confines our review to the question whether the Appellate
In Cole v Mandell Foods, we held that CPLR 1603 required that "a defendant potentially
In Cole, plaintiff sought to have the question whether defendant had breached a non-delegable
Having failed to plead the exemptions in her original complaint, once the County requested an
Relying on the standard canon of construction of expressio unius est exlusio alterius, we can
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