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Limitations of the “Empty Chair” Defense

July 30, 2013 • Posted By Jenna E. Elkind • Trial Practice

Article 16 of the CPLR permits the culpable conduct of non-parties to be considered in apportioning liability among various tort feasors.  These non-parties, who are not represented at trial and may have never appeared in the action are commonly referred to as “empty chair” defendants.  It becomes the burden of plaintiff’s counsel to prove that the “empty chair” defendants do not bear liability for plaintiff’s injuries in order to obtain full recovery against the appearing defendant.

One interesting question with regard to an “empty chair” defendant is whether a defendant may obtain an apportionment of fault as to defendants who have been dismissed on summary judgment.  Recent case law has answered that question in the negative where the summary judgment determination has found that no issue of fact exists as to either negligence or causation as to the dismissed defendant.

One of the earlier cases addressing this issue is Drooker v. South Nassau Community Hosp., 175 Misc.2d 181 (Sup. Ct. Nassau Cty. 1998).  Drooker held that defendants were precluded from seeking apportionment as to the dismissed defendant.  Subsequently, in Johnson v. Peloro, the Second Department found that the remaining defendants were precluded from asserting Article 16 with respect to defendants dismissed on summary judgment.  Johnson v. Peloro, 62 A.D.3d 955 (2d Dept. 2009).

More recently, in Brash v. Richards, the court, citing Drooker, noted that a defendant cannot “sit[] idle while a co-defendant successfully pursues summary judgment” and then attempt to limit its own liability by relying on the conduct of the dismissed party.  Brash v. Richards, 30 Misc.3d 436 (Sup. Ct. Kings Cty. 2010).  However, the court in Brash found that because the motion for summary judgment was made under CPLR 3211, as to which no evidence was submitted relative to the fault of the dismissed defendant, the defendant left in the action could not be faulted for failing to submit evidence of fault.  It appears, therefore, that a remaining defendant may be able to utilize an “empty chair” defense if summary judgment is not granted on the merits.  Additionally, from the language in Brash, an argument may be made that if the remaining defendant unsuccessfully opposed the summary judgment motion of a defendant, he did not sit idly and should be allowed to invoke Article 16. 

Most recently, the First Department has further limited the “empty chair” defense in Carmona v. Mathisson, 92 A.D.3d 492 (1st Dept. 2012).  The Carmona court applied the law of the case doctrine to hold that a remaining defendant cannot attempt to shift liability to a defendant who has been let out on summary judgment.  The Carmona court held that “[a]      n appellate court’s resolution of an issue on a prior appeal constitutes the law of the case and is binding on the Supreme Court as well as on the appellate court” and precludes parties from “relitigating an issue decided in an ongoing action where there previously was a full and fair opportunity to address the issue.”  The court applied the law of the case doctrine to rule that defendants have an opportunity to litigate the merits of a claim on a motion for summary judgment and a determination on summary judgment precludes the issues from being re-litigated at trial for the purposes of apportionment.

Therefore, as case law currently stands, if a defendant is dismissed on a motion for summary judgment on the merits and the remaining defendants had the opportunity to oppose the motion, the dismissed defendant cannot be used as an “empty chair” for Article 16 apportionment.