Supreme Court, Kings County

Decided on April 21, 2026

Index No. 506287/2018

Aaron D. Maslow, J.

[*1]

The following numbered papers were used on this motion: NYSCEF Document Numbers 868-869 (filed by movant defendant 216 Bedford Kings Corp.), 870-878 (opposition filed by plaintiff); NYSCEF Document Numbers 1-7, in motion to App Div, 2d Dept, for stay, in Docket Nos. 2026-00435 & 2025-13226.

Upon the foregoing papers, having heard oral argument, and due deliberation having been had, the motion by defendant 216 Bedford Kings Corp. ("216 Bedford") made on April 17, [*2]2026 (Motion Seq. No. 26), seeking

An Order, pursuant to motion to require the jury to determine the equitable share of fault borne by Defendants Joe's Pizza Bedford, LLC ("Joe's Pizza"), Manjula Mukhopadhyay ("Manjula"), and Sherri Builders, Inc. ("Sherri Builders") for the purpose of determining the setoff to which 216 Bedford is entitled under NY Gen. Oblig. Law § 15-108(a) prior to damages trial; and 216 Bedford requests a brief adjournment of trial, until such time as the Second Department resolves its stay application (NYSCEF Doc No. 868, notice of motion),

is determined as hereinafter set forth.^FN1

I. Background^FN2

On January 10, 2018, the lead plaintiff, Hilary Sheryl Sloan ("plaintiff Sloan"), was allegedly injured when she slipped and fell on a patch of ice while walking on the sidewalk [*3]abutting 216 Bedford Avenue in Brooklyn. Defendant 216 Bedford was the owner of the property at that address. The portion of the sidewalk where plaintiff Sloan allegedly slipped abutted a pizzeria operated by defendant Joe's Pizza Bedford, LLC ("Pizza") on the ground floor of the property. Defendant Manjula Mukhopadhyay ("MM") was the owner of the adjacent attached property at 214 Bedford Avenue. Plaintiff Sloan alleged that the icy condition on the sidewalk in front of the 216 Bedford Avenue property was caused by a disconnected drainpipe which was discharging water, collected from the roof, onto the sidewalk in front of it.

Four years prior in 2014, 216 Bedford leased the ground floor of the property to Pizza. The following year in 2015, Pizza contracted with Sherri Builders, Inc. ("Builders") to renovate the property before it opened its restaurant there on August 15, 2015. As part of the renovations, Pizza's contractor, Builders, was to re-route the drainpipe running from the roof of the property to a pipe in the basement of the property. The drainpipe, as re-routed by Builders, had been disconnected at its bottom from the basement pipe for at least several years before the accident. Builders' president conceded that either one of his employees or a plumber to whom work had been subcontracted had disconnected that re-routed drainpipe from the basement pipe and failed to re-connect it to a drainage outlet before the accident. Because the drainpipe was not re-connected to the basement pipe, it terminated at the ground (sidewalk) level.

Plaintiff Sloan alleged that at least a portion of the drainpipe was situated in front of MM's property at 214 Bedford Avenue, although from the Court's review of various documents previously filed it may have been only to a minimal extent.

As a result, plaintiff Sloan claims injuries to her left wrist, left shoulder, and left arm. Most notably, plaintiff Sloan claims a comminuted fracture of the distal left humerus that required multiple surgeries and resulted in associated nerve pain, neuropathy, and Complex Regional Pain Syndrome. Plaintiff Sloan has treated extensively with a variety of physicians in the years following the accident and, to date, the plaintiff claims to have undergone ten surgeries as a result of the accident. She claims to be permanently disabled and asserts economic damages (both past and future) totaling $25,956,905.00.

Plaintiff Noah Shulman, husband of plaintiff Sloan, sues derivatively for loss of consortium and services.

The plaintiffs commenced their action against the defendants on March 28, 2018. Numerous motions have ensued. In fact, as of around midnight Saturday, April 18, 2026, into early Sunday morning, April 19, 2026, during which period of time this Court began writing this decision and order, 878 documents had been filed on NYSCEF. This does not take into account the various filings made on NYSCEF with the Appellate Division, Second Department, in various appeals and motions.^FN3 Other motions which are relevant to determination of the within motion of defendant 216 Bedford are discussed hereinafter.

On September 14, 2022, the Appellate Division, Second Department, issued a decision and order in this action, in which it modified an order of the IAS Court (Hon. Francois A. Rivera, J.) determining the plaintiffs' motion for summary judgment on liability against defendants 216 Bedford and MM. The IAS Court, on March 13, 2020, had denied the plaintiffs' motion entirely. The Appellate Division sustained the IAS Court's denial of summary judgment against MM. With respect to defendant 216 Bedford, however, the Appellate Division held that the branch of the plaintiffs' motion which was for summary judgment on the issue of liability against that defendant should have been granted:

"[A] landowner has a duty to exercise reasonable care in maintaining his [or her] own property in a reasonably safe condition under the circumstances" (Galindo v Town of Clarkstown, 2 NY3d 633, 636 [2004]). "In order for a landowner [or a party in possession or control of real property] to be liable . . . [for a] defective condition upon property, it must be established that a defective condition existed and that the landowner affirmatively created the condition or had actual or constructive notice of its existence" (Chang v Marmon Enters., Inc., 172 AD3d 678, 678 [2019] [internal quotation marks omitted]).

Here, the plaintiffs demonstrated their prima facie entitlement to judgment as a matter of law on the issue of liability against 216 Corp. The plaintiffs made a prima facie showing, through video and photographic evidence, as well as expert affidavits, that the drain pipe was unlawfully left unconnected to the sewer system in such a manner that allowed for the discharge of water onto the sidewalk (see NY City Building Code [Administrative Code of City of NY, title 28, ch 7] § BC 3201.4), which water then froze on the day of the accident, causing Sloan to slip and fall. The plaintiffs further demonstrated, prima facie, that 216 Corp. had constructive notice of the defective condition of the drain pipe through photographs showing that the drain pipe was disconnected from the sewer system for a lengthy period of time, spanning years (see Dougherty v 359 Lewis Ave. Assoc., LLC, 191 AD3d 763 [2021]). In opposition, 216 Corp. failed to raise a triable issue of fact, including, as to whether it was an out-of-possession landlord without a duty imposed by statute or regulation (see Nieves v Pennsylvania, LLC, 165 AD3d 1155, 1156 [2018]; Yehia v Marphil Realty Corp., 130 AD3d 615, 617 [2015]). Therefore, the Supreme Court should have granted that branch of the plaintiffs' motion which was for summary judgment on the issue of liability against 216 Corp. (Sloan v 216 Bedford Kings Corp., 208 AD3d 1192, 1194 [2d Dept 2022].)

In a decision and order dated November 25, 2024, dealing with various motions seeking summary judgment with respect to liability and indemnification, the IAS Court (Hon. Richard J. Montelione, J.) granted summary judgment to the plaintiffs on the issue of liability against defendants Pizza and Builders. It also granted to the plaintiffs dismissal of defendants' affirmative defenses of comparative negligence. It denied MM's motion to dismiss the complaint.

Therefore, as matters stood in terms of the plaintiffs having obtained summary judgment on liability, they were successful against three defendants — 216 Bedford, Pizza, and Builders — [*4]and unsuccessful against MM.

The note of issue in this matter was filed on April 12, 2023.

A review of the UCMS case management platform reveals that the first entry in this action with respect to it being assigned to the Jury Coordinating Part ("JCP") indicated that on May 23, 2025, a conference was continued to June 25, 2025.

On October 8, 2025, the IAS Court (Hon. Richard J. Montelione, J.) denied motions by defendants 216 Bedford and Builders seeking reconsideration^FN4 of its November 25, 2024 decision and order.

On October 29, 2025, defendant 216 Bedford served and filed a notice of appeal from the October 8, 2025 order of the IAS Court; the notice of appeal was transmitted to the Appellate Division, Second Department, on October 30, 2025.

Also occurring on October 29, 2025, was that a motion by defendant 216 Bedford concerning discovery, brought on by order to show cause, was determined by the JCP Court (Hon. Kenneth P. Sherman, J.). In its order of that date, the Court directed that certain discovery take place by specified deadlines. An issue concerning trial authorizations was referred to a referee to hear and determine. The parties were ordered to appear for jury selection on April 8, 2026, on a "marked final" basis. Another UCMS entry, for October 29, 2025, indicates that jury selection was to take place on April 8, 2026, and that there was motion practice.

JHO Hon. Michael Gerstein issued a decision and order on December 22, 2025, in which he determined the matter concerning the trial authorizations which was referred by the JCP Court on October 29, 2025. The Hon. JHO limited the defendants to ten trial subpoenas. Although not specifically referred in the JCP order, the Hon. JHO directed limited discovery of plaintiff Sloan's tax return information. In his decision, the Hon. JHO noted that the case was on the trial calendar, with jury selection to commence April 8, 2026, marked final, and that there had been a lengthy period of pre-trial discovery.

On April 15, 2026, this Court was advised by chambers of the Administrative Judge that the trial in the within action was assigned to it to conduct. On the morning of April 16, 2026, this Court's chambers staff contacted counsel for the parties and informed them that a late afternoon pre-trial conference would be held that day.

Meanwhile, on April 16, 2026, the parties' attorneys appeared before the JCP Court (Hon. Kenneth P. Sherman, J.). The JCP Court determined another motion, seeking certain discovery. [*5]The request for additional discovery was denied. The only permitted discovery was that allowed in the October 29, 2025 and December 22, 2025 orders. (Counsel informed this Court later in the day that the discovery allowed in those two orders had been provided.)

At the late afternoon conference of April 16, 2026, this Court was informed by counsel of several developments. Insofar as is here pertinent, the most important development was that three defendants had settled with the plaintiffs, and there was now a dispute between the plaintiffs and defendant 216 Bedford Street concerning the latter's right under General Obligations Law § 15-108 (a) to a trial on the apportionment of the released defendants' equitable shares of the damages. Moreover, defendant 216 Bedford sought to delay the trial due to counsel's personal reasons ^FN5 and scheduling difficulties with respect to certain witnesses. There was also the matter of a motion before IAS Part 99 (Hon. Richard J. Montelione, J.), which was scheduled for argument on June 17, 2026; the motion was by defendant Pizza and it related to claims of contribution and indemnification made by co-defendants.

The April 16, 2026 conference culminated in this Court indicating it was not inclined to adjourn the trial inasmuch as the action had been before JCP since October last year, and directing defendant 216 Bedford to file on NYSCEF by 5:00 p.m. the next day, April 17, 2026, a motion in support of its applications. It was agreed that defendants Pizza, MM, and Builders were relieved of appearing at any trial in this action inasmuch as they had been released by the plaintiffs. Defendant Pizza was offered the option of withdrawing its motion scheduled on IAS Part 99's June 17, 2026 calendar and substituting in place thereof a new motion which would be determined by this Court.^FN6

On April 17, 2026, 216 Bedford filed an order to show cause to bring on a motion before the Appellate Division, Second Department, seeking to stay the trial in this action; compel complete, unrestricted trial authorization from the plaintiffs; reversing and remanding the motion appurtenant to the October 8, 2025 order of the IAS Court which denied its motion for reconsideration of the November 25, 2024 order; staying all proceedings; and for other and further relief. This motion was brought within the confines of 216 Bedford's appeal from the October 8, 2025 order and MM's appeal from the November 25, 2024 order. The order to show cause was signed by Hon. Donna-Marie E. Golia, Associate Justice of the Appellate Division, [*6]and it was made returnable on April 27, 2026 (to be determined on submission). Hon. Justice Golia struck a requested temporary restraining order staying the trial.

In the late afternoon of Friday, April 17, 2026, defendants 216 Bedford and Pizza filed the motions referred to hereinabove in the discussion of what transpired at the April 16, 2026 conference. The Court will separately determine Pizza's motion, which seeks relief as follows:

1. Pursuant to CPLR 3211(a)(1), CPLR 3211(a)(5), CPLR 3211(a)(7), and General Obligations Law §15-108(b) to dismiss all remaining claims against JOE'S PIZZA BEDFORD LLC, including, but not limited all cross-claims by defendants of common law contribution, common law indemnification, and contractual indemnification;

2. Pursuant to CPLR 603 severing all cross-claims, both dismissed and not dismissed, by 216 BEDFORD KINGS CORP. as against JOE'S PIZZA BEDFORD LLC from this action and/or from plaintiffs' trial; . . . (NYSCEF Doc No. 649, notice of motion, at 1.)

As indicated above (supra at 1), defendant 216 Bedford's motion seeks

An Order, pursuant to motion to require the jury to determine the equitable share of fault borne by Defendants Joe's Pizza Bedford, LLC ("Joe's Pizza"), Manjula Mukhopadhyay ("Manjula"), and Sherri Builders, Inc. ("Sherri Builders") for the purpose of determining the setoff to which 216 Bedford is entitled under NY Gen. Oblig. Law § 15-108(a) prior to damages trial; and 216 Bedford requests a brief adjournment of trial, until such time as the Second Department resolves its stay application (NYSCEF Doc No. 868, notice of motion).

II. 216 Bedford's Contentions

216 Bedford contends that, in light of the three co-defendants — Pizza, MM, and Builders — having settled with the plaintiffs, it is entitled, pursuant to General Obligations Law section 15-108 (1), to an apportionment of their equitable shares of the damages under CPLR article 14, so that said equitable shares or the specific settlement amounts, whichever are greater, can be applied to reduce 216 Bedford's liability to the plaintiffs as determined by the jury. The reduction is a setoff.

Presently, 216 Bedford lacks knowledge of the total dollar amount in settlements reached by its three co-defendants with the plaintiffs. It will not be disclosed until a verdict is rendered. Therefore, the collective settlement payment, if higher than the equivalent monetary value of their collective proportionate shares would be used to reduce 216 Bedford's liability. Hence a trial to determine equitable shares is necessary, maintains 216 Bedford. 216 Bedford also advances a public policy argument: awareness by the remaining parties in this lawsuit (the plaintiffs and it) of the percentages of fault attributable to the settling defendants would enhance the prospect of settlement without the need for a damages trial.

216 Bedford acknowledges that a trial of this action must take place at some point. [*7]However, it seeks to have the jury determine the apportionment of equitable shares of the damages prior to a determination of the amount of damages to which the plaintiffs are entitled. In a bifurcated trial, liability issues are tried first, argues 216 Bedford. Apportionment is a liability issue states 216 Bedford, who cites to Bryant v State (7 NY3d 732 [2006]).

The right to contribution is not precluded by virtue of the fact that it has been held liable by the Appellate Division for violating the nondelegable duty of leaving the drainpipe unconnected to the sewer system, argues 216 Bedford. (The plaintiffs argued otherwise at the April 16, 2026 conference.) 216 Bedford cites Rangolan v County of Nassau (96 NY2d 42 [2001]) in support of its position.

Separately, 216 Bedford urges this Court to briefly delay the trial pending determination of the stay motion made to the Appellate Division.

III. The Plaintiffs' Contentions

The plaintiffs oppose 216 Bedford's motion to this Court, based on several arguments.

First, it is argued that since 216 Bedford violated a nondelegable duty, it is not entitled to a CPLR article 16 cap on liability for non-economic damages. It cited to a prior decision of this Court: Mendoza v Gold (80 Misc 3d 1215[A], 2023 NY Slip Op 51002[A] [Sup Ct, Kings County 2023]).

Second, the plaintiffs claim that CPLR article 16 and General Obligations Law § 15-108 do not apply to economic damages; the amount sought by plaintiffs exceeds $25 million.

In fact, the plaintiffs contend that defendant 216 Bedford is not even entitled to a General Obligations Law § 15-108 (a) apportionment. Among the cases they cite are Velazquez v Mosdos Meharam Brisk of Tashnad (234 AD3d 893 [2d Dept 2025]); Chase Manhattan Bank v Akin, Gump, Strauss, Hauer & Feld (309 AD2d 173 [1st Dept 2003]); and Cover v Cohen (113 AD2d 502 [2d Dept 1985]).

Finally, while 216 Bedford seeks an apportionment trial first, it is not even ready to pursue it due to witness scheduling issues, maintain the plaintiffs. The plaintiffs accuse 216 Bedford of delay tactics and of employing a backhanded method to implicate plaintiff Sloan in comparative negligence, whereas the IAS Court already struck affirmative defenses sounding in comparative negligence.

216 Bedford relies heavily on Matter of Steam Pipe Explosion at 41st St. & Lexington Ave. (128 AD3d 493 [1st Dept 2015]) to support its argument that an apportionment trial should not be held before the damages trial.

IV. Discussion

A. Delay of Trial

This Court first addresses the branch of defendant 216 Bedford's motion which seeks to adjourn or delay the trial.

During the April 16, 2026 afternoon conference, personal reasons and scheduling difficulties with respect to certain witnesses were the stated grounds for 216 Bedford's application to delay the trial into May. 216 Bedford's owner had a planned vacation and would not return until May 1. Several of its expert witnesses for the damages trial are unavailable in mid-May. In counsel's affirmation in support of the within motion, the basis for adjourning the trial is to await the Second Department's determination of the stay application made on April 17.

Case law in the Second Department is to the effect that the matter of adjournment of a trial at the request of party lies within the court's discretion.

As a general rule, the granting or refusing of a continuance is within the sound discretion of the trial court (Balogh v H.R.B. Caterers, 88 AD2d 136, 143). The record indicates that the defendant failed to exercise due diligence in obtaining the testimony of Dr. Capobianco. Although the defendant had notice more than a year before trial that Dr. Capobianco was Ms. Herbert's private physician, the defendant took no steps until the trial on the issue of damages to subpoena Dr. Capobianco's records or to secure his presence at the trial. Accordingly, we cannot conclude that the court's refusal to adjourn the trial on the issue of damages was an improvident exercise of discretion (see, Zavurov v City of New York, 241 AD2d 491; Paulino v Marchelletta, 216 AD2d 446; Rogers v Corbin, 204 AD2d 616; Matter of Housing Dev. Fund Co. of Carpenters & Joiners v County of Rockland, 134 AD2d 594; Vogelhut v Waldbaum's Supermarket, 127 AD2d 590). (Herbert v Edwards Super Food Stores-Finast Supermarkets (253 AD2d 789, 789 [2d Dept 1998].)

In general, the granting or denying of a continuance is within the sound discretion of the trial court (see Byrnes v Varlack, 17 AD3d 616, 616-617 [2005]; Herbert v Edwards Super Food Stores-Finast Supermarkets, 253 AD2d 789 [1998]). However, it is an improvident exercise of discretion to deny a continuance where the application is properly made, is not made for purposes of delay, the evidence is material, and the need for a continuance does not result from the failure to exercise due diligence (see Byrnes v Varlack, 17 AD3d at 617; Romero v City of New York, 260 AD2d 461 [1999]; Evangelinos v Reifschneider, 241 AD2d 508, 509 [1997]). Here, the defendant failed to show that a continuance would produce evidence that was material to the issue of the value of the legal services rendered by Post or that her requests for a continuance were not the result of her successor counsel's failure to exercise due diligence in preparing for the hearing. Accordingly, the Supreme Court did not improvidently exercise its discretion in denying the defendant's applications for a continuance of the hearing. (Kadanoff v Kadanoff, 46 AD3d 626, 627 [2d Dept 2007].

"An application for a continuance or adjournment is addressed to the sound discretion of the trial court, and the grant or denial thereof will be upheld on appellate review if the trial court providently exercised its discretion" (Nieves v Tomonska, 306 AD2d 332 [*8][2003]). Contrary to the appellant's contention, the Family Court, which had previously granted an application of the appellant for an adjournment and, in fact, had given the parties approximately four additional months to prepare for a hearing, did not improvidently exercise its discretion in denying the request for an adjournment made by the appellant on the date set for the hearing (see Matter of Anthony M., 63 NY2d 270, 283 [1984]; Atwater v Mace, 39 AD3d 573 [2007]; Matter of Steven B., 24 AD3d 384, 385 [2005]). (Matter of Winfield v Gammons, 105 AD3d 753, 754 [2d Dept 2013].)

"In making such a determination, the court must undertake a balanced consideration of all relevant factors" (Matter of Daniel K.L. [Shaquanna L.], 138 AD3d 743, 744-745 [2d Dept 2016]).

"It is well settled that a court has broad discretion to grant a stay in order to avoid the risk of inconsistent adjudications, application of proof and potential waste of judicial resources" (Zonghetti v Jeromack, 150 AD2d 561 [2d Dept 1989], cited in Doc 7, Anthony Heck affn in support of motion to App Div, 2d Dept for stay in Docket Nos. 2026-00435 & 2025-13226).

The Court denies 216 Bedford's application for a delay (whether characterized as a continuance or an adjournment) in the trial. It was in October of last year that the case was scheduled for trial on April 8 of this year. On April 8, it was adjourned to April 16. It is unreasonable to delay the trial due to the absence of 216 Bedford's owner, who presumably knew last October that the trial would take place this April. It is unreasonable for 216 Bedford to invoke the unavailability of its expert witnesses in May when it was not prepared to go to trial at the beginning of April.^FN7 Moreover, the Court is puzzled by the shifting reasons provided for delaying the trial: first, counsel's personal reasons and the unavailability of witnesses, and now, the pending application to the Second Department.

It was in November 2024 that the IAS Court ruled against 216 Bedford on the issue of comparative negligence. An appeal could have been perfected on an expedited basis. (216 Bedford did not file a notice of appeal, according to the Court's review of NYSCEF-filed documents.) Appeals from the October 8, 2025 and December 25, 2025 orders could also have been perfected expeditiously. They were not. This action has been pending in court for eight years. The plaintiffs have prepared for and are ready for trial. They are entitled to an adjudication of their claims by a jury. The JCP Court denoted April 8, 2026 as final for jury selection. The law reflects society's interest in giving repose to human affairs, and this is furthered by deadlines which lead to stability and predictability when enforced (see Freedom Mtge. Corp. v Engel, 37 NY3d 1, 20 [2021]). One's ability to defend claims diminishes with the passage of time (see Blanco v American Tel. & Tel. Co., 90 NY2d 757, 773 [1997]; Martin v Edwards Labs., Div. of Am. Hosp. Supply Corp., 60 NY2d 417, 425 [1983]). The plaintiffs should not be subjected to further delays in relating to a jury what they claim has transpired over [*9]the years since January of 2018.

Moreover, as described supra at 1 n1, defendant 216 Bedford has not acted timely in pursuing its rights vis-à-vis compelling discovery.

Accordingly, that branch of 216 Bedford's motion seeking further delay of the instant trial is denied.

B. Apportionment of Liability

There are three relevant statutory mandates relevant to this action wherein the plaintiffs sued four defendants.

CPLR article 14 contains the statutory provisions governing contribution among tortfeasors.

Dole v. Dow [30 NY2d 143 (1972)], and its subsequent codification as CPLR article 14, reformed the contribution rules, making them more equitable. 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 (CPLR 1401, 1402). Moreover, a defendant may implead another wrongdoer and claim contribution in the main action, or may seek contribution in a separate action (CPLR 1403). Although plaintiffs' rights are generally unaffected (see, CPLR 1404[a]), the loss is more equitably distributed among the culpable parties, according to their degree of fault. The goal of contribution, as announced in Dole and applied since, is fairness to tortfeasors who are jointly liable. (Sommer v Federal Signal Corp., 79 NY2d 540, 556-557 [1992].)

CPLR article 16 provides for limited liability of persons jointly liable for non-economic damages. A tortfeasor's liability is limited to its equitable share if its liability is found to be 50% or less of the total liability assigned to all liable persons. There are certain exceptions. The Court rejects the plaintiffs' argument that article 16's cap does not apply to 216 Bedford on the ground that the latter violated a nondelegable duty. The provision in CPLR 1602 (2) (iv) that "any liability arising by reason of a non-delegable duty" is not to be construed as being impaired, altered, limited, modified, enlarged, abrogated, or restricted by article 16's cap does not provide an exception to its applicability. So held the Court of Appeals in Rangolan v County of Nassau (96 NY2d 42). "Given the precise 'shall not apply' language chosen by the Legislature to describe the exceptions, the absence of such language in CPLR 1602(2)(iv) indicates that the Legislature never intended to include an exception for liability based on a breach of a non-delegable duty" (id. at 47-48). Thus, in Rangolan, a county sued by an inmate assaulted by another inmate despite a file note stating that he was not to be housed with him could seek apportionment of damages under article 16 between it and the assaulting inmate.

General Obligations Law § 15-108 provides:

(a) Effect of release of or covenant not to sue tortfeasors. When a release or a covenant [*10]not to sue or not to enforce a judgment is given to one of two or more persons liable or claimed to be liable in tort for the same injury, or the same wrongful death, it does not discharge any of the other tortfeasors from liability for the injury or wrongful death unless its terms expressly so provide, but it reduces the claim of the releasor against the other tortfeasors to the extent of any amount stipulated by the release or the covenant, or in the amount of the consideration paid for it, or in the amount of the released tortfeasor's equitable share of the damages under article fourteen of the civil practice law and rules, whichever is the greatest.

(b) Release of tortfeasor. A release given in good faith by the injured person to one tortfeasor as provided in subdivision (a) relieves him from liability to any other person for contribution as provided in article fourteen of the civil practice law and rules.

(c) Waiver of contribution. A tortfeasor who has obtained his own release from liability shall not be entitled to contribution from any other person.

(d) Releases and covenants within the scope of this section. A release or a covenant not to sue between a plaintiff or claimant and a person who is liable or claimed to be liable in tort shall be deemed a release or covenant for the purposes of this section only if:

(1) the plaintiff or claimant receives, as part of the agreement, monetary consideration greater than one dollar;

(2) the release or covenant completely or substantially terminates the dispute between the plaintiff or claimant and the person who was claimed to be liable; and

(3) such release or covenant is provided prior to entry of judgment.

The purpose underlying the enactment of General Obligations Law § 15-108 has been related as follows:

General Obligations Law § 15-108 was enacted in 1972 to encourage settlements by abrogating the common-law rule that a release of one joint tortfeasor automatically released all others--a rule perceived as trapping litigants who would naturally assume that settlement with one party would have no effect on their ability to pursue another (see, Hill v St. Clare's Hosp., 67 NY2d 72, 83; 1972 NY Legis Doc No. 65[K], reprinted in 1972 McKinney's Session Laws of NY, at 3237- 3239). Abrogation of the rule encouraged plaintiffs to settle by ensuring preservation of their cause of action against others. To address the specter of double recovery by plaintiffs, the statute as originally enacted codified the rule that a release would reduce the plaintiff's claim against the other tortfeasors "to the extent of any amount stipulated by the release or the covenant, or in the amount of the consideration paid for it, whichever is the greater" (see, L 1972, ch 830; 1972 McKinney's Session Laws of NY, at 3239).

At common law, there was no right to contribution from wrongdoers not part of the [*11]lawsuit, including defendants who settled (see, Fox v Western NY Motor Lines, 257 NY 305, 308). General Obligations Law § 15-108 did not change this rule, and thus the statute did not need to include any inducement for defendants to settle--release from further liability and freedom from contribution was inducement enough. (12th Ann Report of Jud Conf on CPLR, reprinted in 1974 McKinney's Session Laws of NY, at 1816-1817.)

General Obligations Law § 15-108, however, failed to take into account our decision in Dole v Dow Chem. Co. (30 NY2d 143)--decided just as the statute was enacted--which significantly changed the law of contribution by requiring apportionment of liability among all tortfeasors. While encouraging settlements remained an important goal of the judicial system, Dole-Dow announced another important goal: equitable loss-sharing among wrongdoers (Dole v Dow, 30 NY2d at 153). To further this goal, Dole-Dow was interpreted to allow defendants who proceeded to judgment to obtain contribution from all tortfeasors, even those who had settled (see, Codling v Paglia, 32 NY2d 330, 344).

The Judicial Conference thereafter commissioned a study on the effects of Dole-Dow, including its effects on settlement. The study concluded that Dole-Dow provided a disincentive for defendants to settle since they could no longer be assured that a settlement would include immunity from liability, and recommended amending General Obligations Law § 15-108 to foreclose actions for contribution against settling defendants. That objective was accomplished with the addition of General Obligations Law § 15-108 (b).

Consistent with the goals of Dole-Dow, however, the study concluded that the statute also should ensure that nonsettling defendants did not bear more than their equitable share of a plaintiff's damage (see, Occhialino, Contribution, reprinted in 19th Ann Report of NY Jud Conf, at 217, 224). That objective was accomplished by amendment to subdivision (a) (see, Report on Right of Contribution, 1974 NY Legis Ann, at 15-17). Under the amended subdivision (a), even if the settlement amount is less than the settling tortfeasor's equitable share, the nonsettling defendants pay no more than their equitable share of the verdict. If the settlement amount exceeds the settling defendant's equitable share, the benefit inures to the nonsettling defendants, who are credited with the larger amount actually paid (1974 NY Legis Ann, at 17; see also, Killeen v Reinhardt, 71 AD2d 851; Werner v Our Lady of Lourdes, 60 AD2d 791).

This rule has been criticized as a disincentive to settlement because it can result in undercompensation to a settling plaintiff and a windfall to a nonsettling defendant (see, Carbone, Repealing New York's Post- Settlement Equitable Share Reduction Scheme: An Idea Whose Time Has Come, 49 Alb L Rev 856, 864-867; Green, General Obligations Law Section 15-108: An Unsettling Law, 55 [No. 6] NY St BJ 28, 29-30; Occhialino, op. cit., at 224). It is clear, however, that in amending subdivision (a), the Legislature was well aware of such concerns (see, Occhialino, op. cit., at 219), but saw the risk of chilling plaintiff's desire to settle as largely outweighed by the benefits of early settlement, and the potential windfall to defendants as necessary to ensure that plaintiffs do not in effect [*12]have a double recovery against nonsettling defendants (1974 McKinney's Session Laws of NY, at 1818 [citing Kelly v Long Is. Light. Co, 31 NY2d 25, 30]; see also, Purcell v Doherty, 102 Misc 2d 1049, affd 80 AD2d 755, affd 55 NY2d 985).

Thus, while the general purpose of General Obligations Law § 15-108 (a) is to encourage settlements, the statute is concerned as well with assuring that a nonsettling defendant does not pay more than its equitable share. This consideration is particularly pertinent in evaluating the three proffered methods, to which we next turn. (Williams v Niske, 81 NY2d 437, 442-444 [1993].)

As a nonsettling defendant, 216 Bedford is entitled to the benefits provided through the application of General Obligations Law § 15-108 (a). This is consistent with the purpose underlying its adoption. The Court is not certain that 216 Bedford is correct in arguing that from the perspective of possible settlement, application of General Obligations Law § 15-108 (a) would be salutary. This is based on the plaintiffs claiming over $25 million in economic damages alone. However, it matters not whether it will make settlement more likely. The fact is that the provisions of the statute mandate its applicability to the action at bar.

While the plaintiffs accurately argue that CPLR article 16 applies only to non-economic damages, i.e., pain and suffering, the Court rejects their contention that General Obligations Law § 15-108 (a) does not apply to economic damages. No authority for that proposition has been demonstrated. In fact, Dominguex v Fixrammer Corp. (172 Misc 2d 111 [Sup Ct, Bronx County 1997]) provides a roadmap for applying the General Obligations Law § 15-108 (a) setoff where a plaintiff is awarded both economic and non-economic damages by a jury: the total award (including both) is reduced by the greater of the settling defendants' proportionate share or the amount actually paid for the releases. The arithmetic difference is then divided into proportionate economic and non-economic amounts for the purpose of applying CPLR article 16's cap on non-economic damages. The decision relates further steps in the calculations.

The plaintiffs incorrectly state that this Court reached a decision concerning the concept of non-delegable duty in Mendoza v Gold (80 Misc 3d 1215[A], 2023 NY Slip Op 51002[U] [Sup Ct, Kings County 2023]). That decision, where the Court merely summarized a party's argument referencing CPLR article 16, involved the submission of an English language affidavit by a non-English speaker. No determination was made concerning the non-delegable duty doctrine.

The plaintiffs cite Bailer v Perez-Veridiano (266 AD2d 249 [2d Dept 1999]) for the proposition that 214 Bedford is jointly and severally liable to them for violating a non-delegable duty. Bailer held that the appellant could not seek contribution from its employee. There is no employer-employee relationship between 214 Bedford and any other defendant. For similar reasons, Faraginao v Town of Concord (96 NY2d 776 [2001]) does not support the plaintiffs' position. That case held that apportionment was not precluded; the town was still vicariously liable for the actions of its contractor by virtue of CPLR 1602 (2) (iv). It appears that the plaintiffs are attempting to import CPLR article 16 case law into the ambit of General Obligations Law § 15-108 (a). It is noted that CPLR 1601 (2) expressly provides, "Nothing in [*13]this section shall be construed to affect or impair any right of a tortfeasor under section 15-108 of the general obligations law."

Velazquez v Mosdos Meharam Brisk of Tashnad (234 AD3d 893) was cited by the plaintiffs in support of their argument that 216 Bedford is not entitled to a General Obligations Law § 15-108 (a) setoff based on apportionment among the defendants. That case actually held that the third-party defendant could obtain contribution from the defendant/third-party plaintiff. The analysis involved noting that since both the defendant/third-party plaintiff and the third-party defendant settled with the plaintiff after summary judgment had been awarded, subdivision (c) of section 15-108 did not apply. That subdivision protects a settling tortfeasor from having to contribute to any other party. This has nothing to do with reduction of a nonsettling tortfeasor's liability to the plaintiff. In any event, the facts are that everyone settled, as opposed to the facts in the instant action.

The Court does not view Chase Manhattan Bank v Akin, Gump, Strauss, Hauer & Feld (309 AD2d 173)^FN8 and Cover v Cohen (113 AD2d 502) as governing the instant situation.^FN9 While liability has been determined against 216 Bedford through summary judgment, no actual judgment has been entered against it in an amount of damages. The amount would be determined at a damages trial. The jury has not spoken on that issue. One of the purposes of General Obligations Law § 15-108 (a) was to ensure that "nonsettling defendants did not bear more than their equitable share of a plaintiff's damage" (Williams v Niske, 81 NY2d at 443 [1993]). Another purpose was to ensure "that plaintiffs do not in effect have a double recovery against nonsettling defendants" (id.). As the situation exists today, 216 Bedford has not been found liable for any specific amount. Neither was any other defendant. Insofar as subdivision (a) is concerned with respect to reduction of the nonsettling 216 Bedford's liability to the plaintiff, the Court construes "prior to entry of judgment" in General Obligations Law § 15-108 (d) (3) as referring to a judgment embodying a final jury verdict whereby a defendant's liability can be calculated based upon an amount of damages. Therefore, the releases received by the three settling defendants (Pizza, MM, and Builders), which presumably contain specific amounts [*14]of money to be paid as consideration are deemed releases for the purpose of 216 Bedford obtaining the reduction prescribed in subdivision (a).

Neither does Matter of Steam Pipe Explosion at 41st St. & Lexington Ave. (128 AD3d 493) support the plaintiffs' position. All it held was that a defendant tortfeasor could not obtain discovery pre-jury verdict of a confidential settlement agreement. It did not bar the application of General Obligations Law § 15-108 (a). A two-phase trial (damages and apportion liability) can certainly be held without 216 Bedford being informed of the settlement agreement payment amounts. After the jury's final verdict is in, at that point, before a judgment is entered, disclosure of settlements would take place and 216 Bedford can move the Court for whatever relief it seeks in terms of reducing its ultimate liability to be reflected in the judgment.

Having rejected the plaintiffs' arguments that 216 Bedford is not entitled to the benefit of General Obligations Law § 15-108 (a)'s reduction of damages assessed by the jury apportionment of the amount of damages for which it will be liable, and having concluded that indeed said section bestows upon 216 Bedford such a reduction, the Court is now faced with the procedural predicament of when to conduct a trial on the apportionment of damages.

Normally, in a bifurcated trial, liability issues are tried first. 216 Bedford is indeed correct on that. Apportionment is a liability issue (see Bryant v State (7 NY3d 732 [2006]). Nonetheless, a court maintains discretion with respect to the conduct of a trial (see Radosh v Shipstad, 20 NY2d 504 [1967]). "The court may determine the sequence in which the issues shall be tried and otherwise regulate the conduct of the trial in order to achieve a speedy and unprejudiced disposition of the matters at issue in a setting of proper decorum" (CPLR 4011).

In the instant case, summary judgment resulted in liability having already been found against 216 Bedford, Pizza, and Builders. In light of that, the Court finds that the trial herein should commence with the damages phase inasmuch as 216 Bedford was already found liable. Upon its conclusion of the damages phase, the jury can then perform its role in making findings as to the equitable shares of those liable. " '[C]ulpability . . . is expressed in terms of percentages, and the allocation is a task for the jury' (Alexander, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR 1402, at 543; see Schipani v McLeod, 541 F3d 158, 163 [2d Cir 2008, Wesley, J.]; 1B NY PJI3d 2:275C)" (Brunetti v Musallam, 59 AD3d 220, 227 [1st Dept 2009, McGuire, J., concurring]).

Since summary judgment on liability was not found against MM, the jury would also have to consider whether it was negligent and whether negligence was a substantial factor in producing the accident. If MM is included in determining equitable shares of liability the jury would have to apportion liability among the four defendants. If MM is not included in determining equitable shares of liability, the jury would have to apportion liability among three defendants: 216 Bedford, Pizza, and Builders. With the jury's verdict on apportionment in hand and their role completed, the post-jury trial process of applying the alternate methods for calculating the setoff deduction 216 Bedford is entitled to pursuant to General Obligations Law § 15-108 [a]) can be made.

The foregoing manner of proceeding is deemed permissible in light of what transpired in Matter of New York City Asbestos Litig. [Brooklyn Nav. Shipyard Cases] (82 NY2d 342, 346 [1993]): "The trial was conducted in two stages, with the jury considering damages first and questions of liability, including apportionment of fault, second. On June 27, 1990, the jury returned a damages verdict totaling $5,867,353, later reduced by the trial court to $3,917,353. The liability phase commenced the next day, June 28, 1990."

It is noted that in calculating the two alternative methods for determining the setoff deduction, all parties' equitable shares or settlement amounts must be aggregated (see Matter of New York City Asbestos Litig. [Brooklyn Nav. Shipyard Cases], 82 NY2d 342; Pollicina v Miseracordia Hosp. Med. Ctr., 82 NY2d 332 [1993]).

The burden of proof at the apportionment phase of the trial is on 216 Bedford (see Maione v Pindyck, 32 AD3d 827 [2d Dept 2006] ["burden shifts to that defendant to establish the equitable share attributable to the settling tortfeasor so as to reduce the portion of damages for which the non-settling defendant is responsible"]; McNally v Corwin, 30 AD3d 482, 485 [2d Dept 2006] ["Where a tort claim is discontinued or remains unasserted against a former or potential defendant, but the remaining defendant seeks to apportion his own liability with that of the former or potential defendant, the remaining defendant has the burden of establishing that the former or potential defendant breached a duty to the plaintiff, and that the breach proximately caused the plaintiff's injuries."]; Zalinka v Owens-Corning Fiberglass Corp., 221 AD2d 830, 831 [2d Dept 1995] ["Where, as here, plaintiffs demonstrate liability on the part of a nonsettling defendant, the burden shifts to that defendant to establish the equitable share of culpability attributable to each of the settling defendants."]).

In a situation where there was a separate trial on apportionment of damages due to a remand by the Appellate Division, it was held, "With respect to the question of the burden of proof on the issue of apportionment, we find that that burden was properly placed on defendant Celotex. While plaintiff had the burden of proof, in the first instance, of establishing liability on the part of the non-settling defendant Celotex, once that liability was established, as it concededly was on the original trial, Celotex bore the burden of establishing the equitable shares attributable to the settling defendants for purposes of reducing the amount of Celotex's own responsibility for the damages [citations omitted]." (Bigelow v Acands, Inc., 196 AD2d 436, 438 [1st Dept 1993].) Similarly, in the instant case, following the damages phase of the trial, the parties shall proceed to trial on the apportionment of damages, with the burden of proof properly being placed on 216 Bedford.

V. Conclusion

Accordingly, it is hereby ORDERED as follows:

(1) That branch of the motion filed by defendant 216 Bedford Kings Corp. on April 17, 2026, which seeks an order adjourning the trial in this action until such time as the Appellate Division, Second Department, resolves said defendant's stay application is DENIED.

(2) That branch of the motion filed by defendant 216 Bedford Kings Corp. on April 17, 2026, which seeks an order to require the jury to determine the equitable share of fault borne by Defendants Joe's Pizza Bedford, LLC, Manjula Mukhopadhyay, and Sherri Builders, Inc. for the purpose of determining the setoff to which 216 Bedford is entitled under General Obligations Law § 15-108 (a) is GRANTED TO THE EXTENT that the jury shall proceed to make such determination following their determination of the amount of damages to be awarded to the plaintiffs.

(3) The parties shall proceed to Jury Empaneling to commence the picking of the jury for the trial in this action forthwith following their appearances before this Court on April 21, 2026.