NY State Senate Bill 2017-S412A

Senate Bill S412A

2017-2018 Legislative Session

Permits a plaintiff to recover directly against a third party defendant found to be liable to the defendant in certain actions

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Archive: Last Bill Status - In Senate Committee Judiciary Committee

Introduced
- In Committee Assembly
- In Committee Senate
- On Floor Calendar Assembly
- On Floor Calendar Senate
- Passed Assembly
- Passed Senate
Delivered to Governor
Signed By Governor

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Actions

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	Assembly Actions - Lowercase Senate Actions - UPPERCASE
Apr 11, 2018	print number 412a
Apr 11, 2018	amend and recommit to judiciary
Jan 03, 2018	referred to judiciary
Jan 04, 2017	referred to judiciary

Bill Amendments

Original

A (Active)

2017-S412 - Details

Current Committee:: Senate Judiciary
Law Section:: Civil Practice Law and Rules
Laws Affected:: Add §1405, CPLR
Versions Introduced in Other Legislative Sessions:: 2009-2010: S2392
2011-2012: S3761
2013-2014: S555
2015-2016: S563
2019-2020: S6552
2021-2022: S5152
2023-2024: S5188

2017-S412 - Summary

Permits a plaintiff to recover directly against a third party defendant found to be liable to the defendant in certain actions.

2017-S412 - Sponsor Memo

                                 BILL NUMBER:  S412

 TITLE OF BILL :  An act to amend the civil practice law and rules, in
relation to permitting a plaintiff to recover against a third party
defendant in certain cases

 PURPOSE :

This bill would add a new Section 1405 to the Civil Practice Law and
Rules (CPLR) to expressly permit a plaintiff, as judgment creditor
against defendant, to recover and collect an unsatisfied judgment or
portion of a judgment directly against a third-party defendant found
liable for contribution or indemnification.

 SUMMARY OF PROVISIONS :

Section 1: Adds a new Section 1405 to the CPLR to permit a plaintiff
to recover and collect an unsatisfied judgment or a portion of a
judgment against a third-party defendant or co-defendant, when a
plaintiff has entered judgment against a defendant which is
unsatisfied thirty days after service on the defendant-judgment
debtor, and where judgment has been entered in favor of the
defendant-judgment debtor against a co-defendant or third-party
defendant on a cause of action for contribution or indemnification.
Under certain circumstances where the plaintiffs judgment remains
unsatisfied thirty days after it has been served on the

defendant-judgment debtor, and where the defendant-judgment debtor has
a cause of action for contribution or indemnification which has not
been reduced to judgment, then the plaintiff-judgment creditor may
attach, or take an assignment from the defendant-judgment debtor of
the cause of action for contribution or indemnification and prosecute
the action in the plaintiffs own name or in the name of the
defendant-judgment debtor. Direct recovery, however, is not authorized
against a third-party defendant in those circumstances in which the
third-party claim would have been barred by Section 11 of the Workers
Compensation Law.

Section 2: The effective date for this Act is immediately, and shall
apply to all judgments entered by plaintiffs on or after such date.

 EXISTING LAW :

Section 1401 of the CPLR provides, with certain exceptions under the
General Obligations Law and the Workers' Compensation Law, 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. Section 1403 of the CPLR provides that a cause of action
for contribution may be asserted in a separate action or by
cross-claim, counter-claim or third-party claim in a pending action.

 JUSTIFICATION :

A plaintiffs recovery on a judgment that ultimately comes from a
third-party defendant should not depend on the fortuity of the
solvency of the defendant/third party plaintiff. Accordingly, this
measure would allow a plaintiff to recover on a judgment for
contribution or indemnification directly against the third-party
defendant, whether or not the defendant/third-party plaintiff has
satisfied the underlying judgment for which contribution or
indemnification is sought. Thus, in the case where a
defendant/thirdparty plaintiff is insolvent and is unable to pay the
judgment to the plaintiff: the plaintiff could still seek to recover
directly that portion of the judgment, as determined by the principles
of contribution and indemnification, owed by the third-party defendant
to the defendant/third-party plaintiff. This measure would not alter
in any way the substantive law of Workers' Compensation. The 1996
Omnibus Worker's Compensation Reform Act already limits claims for
contribution and indemnification against an employer to only those
cases involving "grave injuries." In cases where there are not grave
injuries the employer is not liable as a matter of substantive law,
and therefore this measure would not affect such employers at all.

 LEGISLATIVE HISTORY :

2015-2016 - S563/A.251;
2013-2014 - S.555A/A.1002A;
2011-2012 S.3761/A.630;
2009-2010 S.2392/A.2576;
2007-2008 S.2065/A.6310;
2005-2006 S.7487/A.11076;
2003-04 S.5006/A.7493;

 FISCAL IMPLICATIONS :

None

 EFFECTIVE DATE :
This act will take effect immediately and shall apply to all judgments
entered by plaintiffs on or after such date.

2017-S412 - Bill Text download pdf

                            
 
                     S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                    412
 
                        2017-2018 Regular Sessions
 
                             I N  S E N A T E
 
                                (PREFILED)
 
                              January 4, 2017
                                ___________
 
 Introduced  by  Sen.  DeFRANCISCO -- read twice and ordered printed, and
   when printed to be committed to the Committee on Judiciary
 
 AN ACT to amend the civil practice law and rules, in relation to permit-
   ting a plaintiff to recover against a third party defendant in certain
   cases

   THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
 BLY, DO ENACT AS FOLLOWS:
 
   Section 1. The civil practice law and rules is amended by adding a new
 section 1405 to read as follows:
   §  1405. PERMITTING PLAINTIFF, AS JUDGMENT CREDITOR AGAINST DEFENDANT,
 TO RECOVER AND COLLECT  UNSATISFIED  JUDGMENT  OR  PORTION  OF  JUDGMENT
 AGAINST THIRD-PARTY DEFENDANT OR CO-DEFENDANT LIABLE FOR CONTRIBUTION OR
 INDEMNIFICATION.  (A) WHERE A PLAINTIFF HAS ENTERED A JUDGMENT AGAINST A
 DEFENDANT AND THE JUDGMENT REMAINS UNSATISFIED THIRTY DAYS AFTER IT  HAS
 BEEN  SERVED  ON  THE  DEFENDANT-JUDGMENT DEBTOR, AND WHERE JUDGMENT HAS
 BEEN ENTERED IN FAVOR OF THE DEFENDANT-JUDGMENT DEBTOR AGAINST A  CO-DE-
 FENDANT  OR  THIRD-PARTY DEFENDANT ON A CAUSE OF ACTION FOR CONTRIBUTION
 OR FOR CONTRACTUAL OR COMMON LAW INDEMNIFICATION, THE PLAINTIFF-JUDGMENT
 CREDITOR MAY COLLECT ANY UNSATISFIED AMOUNT OF THE PLAINTIFF'S  JUDGMENT
 AGAINST  THE DEFENDANT FROM THE CO-DEFENDANT OR THIRD-PARTY DEFENDANT UP
 TO THE AMOUNT AWARDED ON THE CAUSE OF ACTION FOR CONTRIBUTION OR  INDEM-
 NIFICATION.
   (B)  WHERE  THE  PLAINTIFF'S  JUDGMENT REMAINS UNSATISFIED THIRTY DAYS
 AFTER IT HAS BEEN SERVED ON THE DEFENDANT-JUDGMENT DEBTOR, AND WHERE THE
 DEFENDANT-JUDGMENT DEBTOR HAS A CAUSE OF ACTION FOR CONTRIBUTION OR  FOR
 CONTRACTUAL  OR COMMON LAW INDEMNIFICATION WHICH HAS NOT BEEN REDUCED TO
 JUDGMENT, THE PLAINTIFF-JUDGMENT CREDITOR MAY ATTACH, OR TAKE AN ASSIGN-
 MENT FROM THE DEFENDANT-JUDGMENT DEBTOR OF,  THE  CAUSE  OF  ACTION  FOR
 CONTRIBUTION  OR  INDEMNIFICATION,  AND PROSECUTE THE CAUSE OF ACTION IN
 THE PLAINTIFF'S OWN NAME  OR  IN  THE  NAME  OF  THE  DEFENDANT-JUDGMENT
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets

                       [ ] is old law to be omitted.
                                                            LBD02845-01-7

 S. 412                              2
 
 DEBTOR,  AND  RECOVER A JUDGMENT THEREIN FOR THE SAME AMOUNT OF CONTRIB-
 UTION OR INDEMNIFICATION AS WOULD BE AWARDED TO  THE  DEFENDANT-JUDGMENT
 DEBTOR  IF  THE  DEFENDANT-JUDGMENT  DEBTOR  HAD  SATISFIED  PLAINTIFF'S
 ORIGINAL JUDGMENT IN FULL. SUCH REMEDY IS IN ADDITION TO ANY OTHER MEANS
 AVAILABLE  TO THE PLAINTIFF-JUDGMENT DEBTOR FOR ENFORCEMENT OF THE JUDG-
 MENT. THIS SECTION SHALL NOT AUTHORIZE DIRECT RECOVERY AGAINST A  THIRD-
 PARTY  DEFENDANT  IN  THOSE CIRCUMSTANCES IN WHICH THE THIRD-PARTY CLAIM
 AGAINST THAT  THIRD-PARTY  DEFENDANT  WOULD  HAVE  BEEN  BARRED  BY  THE
 PROVISIONS  OF SECTION ELEVEN OF THE WORKERS' COMPENSATION LAW, AND DOES
 NOT OTHERWISE PERMIT A PLAINTIFF TO BRING A CAUSE OF  ACTION  AGAINST  A
 THIRD  PARTY IF SUCH THIRD PARTY WAS THE PLANTIFF'S EMPLOYER AT THE TIME
 OF THE INCIDENT OR INJURY.
   § 2. This act shall take effect immediately, and shall  apply  to  all
 judgments entered by plaintiffs on or after such date.

2017-S412A (ACTIVE) - Details

Current Committee:: Senate Judiciary
Law Section:: Civil Practice Law and Rules
Laws Affected:: Add §1405, CPLR
Versions Introduced in Other Legislative Sessions:: 2009-2010: S2392
2011-2012: S3761
2013-2014: S555
2015-2016: S563
2019-2020: S6552
2021-2022: S5152
2023-2024: S5188

2017-S412A (ACTIVE) - Summary

Permits a plaintiff to recover directly against a third party defendant found to be liable to the defendant in certain actions.

2017-S412A (ACTIVE) - Sponsor Memo

                                
 
BILL NUMBER: S412A

SPONSOR: DEFRANCISCO
 
TITLE OF BILL:  An act to amend the civil practice law and rules, in
relation to permitting a plaintiff to recover against a third party
defendant in certain cases

 
PURPOSE:

This bill would add a new Section 1405 to the Civil Practice Law and
Rules (CPLR) to expressly permit a plaintiff, as judgment creditor
against defendant, to recover and collect an unsatisfied judgment or
portion of a judgment directly against a third-party defendant found
liable for contribution or indemnification.

 
SUMMARY OF PROVISIONS:

Section 1: Adds a new Section 1405 to the CPLR to permit a plaintiff to
recover and collect an unsatisfied judgment or a portion of a judgment
against a third-party defendant or co-defendant, when a plaintiff has
entered judgment against a defendant which is unsatisfied thirty days

after service on the defendant-judgment debtor, and where judgment has
been entered in favor of the defendant-judgment debtor against a co-de-
fendant or third-party defendant on a cause of action for contribution
or indemnification.  Under certain circumstances where the plaintiffs
judgment remains unsatisfied thirty days after it has been served on the
defendant-judgment debtor, and where the defendant-judgment debtor has a
cause of action for contribution or indemnification which has not been
reduced to judgment, then the plaintiff-judgment creditor may attach, or
take an assignment from the defendant-judgment debtor of the cause of
action for contribution or indemnification and prosecute the action in
the plaintiffs own name or in the name of the defendant-judgment debtor.
Direct recovery, however, is not authorized against a third-party
defendant in those circumstances in which the third-party claim would
have been barred by Section 11 of the Workers Compensation Law. Protects
the ability of a plaintiff-judgment creditor to enforce their rights
against a third-party pursuant to this legislation by preserving the
ability for plaintiff-judgement creditor to pursue a judgment or cause
of action against a third-party even if such claim or cause of action is
extinguished in the bankruptcy of a defendant-judgment debtor.

Section 2: This act shall take effect immediately, and shall apply to
all unexpired judgments that have not been fully satisfied as of the
date of enactment.

 
EXISTING LAW:

Section 1401 of the CPLR provides, with certain exceptions under the
General Obligations Law and the Workers' Compensation Law, 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. Section 1403 of the CPLR provides that a cause of action for
contribution may be asserted in a separate action or by cross-claim,
counter-claim or third-party claim in a pending action.

 
JUSTIFICATION:

A plaintiffs recovery on a judgment that ultimately comes from a third-
party defendant should not depend on the fortuity of the solvency of the
defendant/third party plaintiff. Accordingly, this measure would allow a
plaintiff to recover on a judgment for contribution or indemnification
directly against the third-party defendant, whether or not the
defendant/third-party plaintiff has satisfied the underlying judgment
for which contribution or indemnification is sought. Thus, in the case
where a defendant/third party plaintiff is insolvent and is unable to
pay the judgment to the plaintiff: the plaintiff could still seek to
recover directly that portion of the judgment, as determined by the
principles of contribution and indemnification, owed by the third-party
defendant to the defendant/third-party plaintiff. The bill also seeks to
protect the ability of an injured plaintiff to collect a judgment in the
event a defendant-judgment debtor's cause of action or judgement against
a 3rd party wrongdoer is extinguished in bankruptcy, leaving the plain-
tiff with no remedy to collect their judgment.

This measure would not alter in any way the substantive law of Workers'
Compensation. The 1996 Omnibus Worker's Compensation Reform Act already
limits claims for contribution and indemnification against an employer
to only those cases involving "grave injuries."  In cases where there
are not grave injuries the employer is not liable as a matter of
substantive law, and therefore this measure would not affect such
employers at all.

 
LEGISLATIVE HISTORY:

2015-2016 - S563/A.251;
2013-2014 - S.555A/A.1002A;
2011-2012 S.3761/A.630;
2009-2010 S.2392/A.2576;
2007-2008 S.2065/A.6310;
2005-2006 S.7487/A.11076;
2003-04 S.5006/A.7493;

 
FISCAL IMPLICATIONS:

None

 
EFFECTIVE DATE:
This act shall take effect immediately, and shall apply to all unexpired
judgments that have not been fully satisfied as of the date of enact-
ment.

2017-S412A (ACTIVE) - Bill Text download pdf

                            
 
                     S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                  412--A
 
                        2017-2018 Regular Sessions
 
                             I N  S E N A T E
 
                                (PREFILED)
 
                              January 4, 2017
                                ___________
 
 Introduced  by  Sen.  DeFRANCISCO -- read twice and ordered printed, and
   when printed to be committed to the Committee on Judiciary  --  recom-
   mitted to the Committee on Judiciary in accordance with Senate Rule 6,
   sec.  8  --  committee  discharged, bill amended, ordered reprinted as
   amended and recommitted to said committee
 
 AN ACT to amend the civil practice law and rules, in relation to permit-
   ting a plaintiff to recover against a third party defendant in certain
   cases
 
   THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
 BLY, DO ENACT AS FOLLOWS:
 
   Section 1. The civil practice law and rules is amended by adding a new
 section 1405 to read as follows:
   §  1405. PERMITTING PLAINTIFF, AS JUDGMENT CREDITOR AGAINST DEFENDANT,
 TO RECOVER AND COLLECT  UNSATISFIED  JUDGMENT  OR  PORTION  OF  JUDGMENT
 AGAINST THIRD-PARTY DEFENDANT OR CO-DEFENDANT LIABLE FOR CONTRIBUTION OR
 INDEMNIFICATION.  (A) WHERE A PLAINTIFF HAS ENTERED A JUDGMENT AGAINST A
 DEFENDANT AND THE JUDGMENT REMAINS UNSATISFIED THIRTY DAYS AFTER IT  HAS
 BEEN  SERVED  ON  THE  DEFENDANT-JUDGMENT DEBTOR, AND WHERE JUDGMENT HAS
 BEEN ENTERED IN FAVOR OF THE DEFENDANT-JUDGMENT DEBTOR AGAINST A  CO-DE-
 FENDANT  OR  THIRD-PARTY DEFENDANT ON A CAUSE OF ACTION FOR CONTRIBUTION
 OR FOR CONTRACTUAL OR COMMON LAW INDEMNIFICATION, THE PLAINTIFF-JUDGMENT
 CREDITOR MAY COLLECT ANY UNSATISFIED AMOUNT OF THE PLAINTIFF'S  JUDGMENT
 AGAINST  THE DEFENDANT FROM THE CO-DEFENDANT OR THIRD-PARTY DEFENDANT UP
 TO THE AMOUNT AWARDED ON THE CAUSE OF ACTION FOR CONTRIBUTION OR  INDEM-
 NIFICATION.
   (B)  WHERE  THE  PLAINTIFF'S  JUDGMENT REMAINS UNSATISFIED THIRTY DAYS
 AFTER IT HAS BEEN SERVED ON THE DEFENDANT-JUDGMENT DEBTOR, AND WHERE THE
 DEFENDANT-JUDGMENT DEBTOR HAS A CAUSE OF ACTION FOR CONTRIBUTION OR  FOR
 CONTRACTUAL  OR COMMON LAW INDEMNIFICATION WHICH HAS NOT BEEN REDUCED TO
 JUDGMENT, THE PLAINTIFF-JUDGMENT CREDITOR MAY ATTACH, OR TAKE AN ASSIGN-
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets

                       [ ] is old law to be omitted.
                                                            LBD02845-02-8

 S. 412--A                           2
 
 MENT FROM THE DEFENDANT-JUDGMENT DEBTOR OF,  THE  CAUSE  OF  ACTION  FOR
 CONTRIBUTION  OR  INDEMNIFICATION,  AND PROSECUTE THE CAUSE OF ACTION IN
 THE PLAINTIFF'S OWN NAME  OR  IN  THE  NAME  OF  THE  DEFENDANT-JUDGMENT
 DEBTOR,  AND  RECOVER A JUDGMENT THEREIN FOR THE SAME AMOUNT OF CONTRIB-
 UTION OR INDEMNIFICATION AS WOULD BE AWARDED TO  THE  DEFENDANT-JUDGMENT
 DEBTOR  IF  THE  DEFENDANT-JUDGMENT  DEBTOR  HAD  SATISFIED  PLAINTIFF'S
 ORIGINAL JUDGMENT IN FULL. SUCH REMEDY IS IN ADDITION TO ANY OTHER MEANS
 AVAILABLE TO THE PLAINTIFF-JUDGMENT DEBTOR FOR ENFORCEMENT OF THE  JUDG-
 MENT.  THIS SECTION SHALL NOT AUTHORIZE DIRECT RECOVERY AGAINST A THIRD-
 PARTY DEFENDANT IN THOSE CIRCUMSTANCES IN WHICH  THE  THIRD-PARTY  CLAIM
 AGAINST  THAT  THIRD-PARTY  DEFENDANT  WOULD  HAVE  BEEN  BARRED  BY THE
 PROVISIONS OF SECTION ELEVEN OF THE WORKERS' COMPENSATION LAW, AND  DOES
 NOT  OTHERWISE  PERMIT  A PLAINTIFF TO BRING A CAUSE OF ACTION AGAINST A
 THIRD PARTY IF SUCH THIRD PARTY WAS THE PLAINTIFF'S EMPLOYER AT THE TIME
 OF THE INCIDENT OR INJURY.
   (C) THE PLAINTIFF-JUDGMENT CREDITOR MAY ENFORCE THE RIGHTS PROVIDED IN
 SUBDIVISIONS (A) AND (B) OF THIS SECTION NOTWITHSTANDING THAT THE PLAIN-
 TIFF-JUDGMENT CREDITOR'S JUDGMENT AGAINST DEFENDANT-JUDGMENT DEBTOR  HAS
 BEEN  OR  MAY  BE DISCHARGED IN BANKRUPTCY AND/OR THE DEFENDANT-JUDGMENT
 DEBTOR'S CAUSE OF ACTION  FOR  INDEMNITY  OR  CONTRIBUTION  AGAINST  THE
 THIRD-PARTY DEFENDANT OR CO-DEFENDANT HAS BEEN OR MAY BE EXTINGUISHED BY
 A  DISCHARGE  IN  BANKRUPTCY  GRANTED  TO THE DEFENDANT-JUDGMENT DEBTOR;
 PROVIDED, HOWEVER, THAT IF A PLAINTIFF-JUDGMENT  CREDITOR  IS  ENFORCING
 THE RIGHTS PROVIDED IN SUBDIVISIONS (A) AND (B) OF THIS SECTION PURSUANT
 TO  THIS  SUBDIVISION,  HE OR SHE DOES NOT NEED ATTACHMENT OR ASSIGNMENT
 FROM THE DEFENDANT-JUDGMENT DEBTOR OF THE CAUSE OF ACTION  FOR  CONTRIB-
 UTION OR INDEMNIFICATION.
   (D)  WHERE  THE  PLAINTIFF'S  JUDGMENT REMAINS UNSATISFIED THIRTY DAYS
 AFTER IT HAS BEEN SERVED ON THE DEFENDANT-JUDGMENT DEBTOR, AND WHERE THE
 DEFENDANT-JUDGMENT DEBTOR'S CAUSE OF  ACTION  FOR  CONTRIBUTION  OR  FOR
 CONTRACTUAL OR COMMON LAW INDEMNIFICATION CAN NO LONGER BE PROSECUTED OR
 REDUCED  TO  JUDGMENT,  THE  PLAINTIFF-JUDGMENT CREDITOR MAY ENFORCE ITS
 JUDGMENT AGAINST  THE  DEFENDANT-JUDGMENT  DEBTOR  IN  A  DIRECT  ACTION
 AGAINST  THE  THIRD-PARTY  DEFENDANT OR CO-DEFENDANT LIABLE FOR CONTRIB-
 UTION OR INDEMNIFICATION, AND RECOVER A JUDGMENT THEREIN  FOR  THE  SAME
 AMOUNT  OF  CONTRIBUTION  OR  INDEMNIFICATION AS WOULD BE AWARDED TO THE
 DEFENDANT-JUDGMENT DEBTOR IF THE DEFENDANT-JUDGMENT DEBTOR HAD SATISFIED
 PLAINTIFF'S ORIGINAL JUDGMENT IN FULL.
   § 2. This act shall take effect immediately, and shall  apply  to  all
 unexpired judgments that have not been fully satisfied as of such effec-
 tive date.

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