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COLE v. MANDELL FOOD STORES

93 N.Y.2d 34 (1999)

710 N.E.2d 244

687 N.Y.S.2d 598

CHARLES E. COLE, Appellant-Respondent, v. MANDELL FOOD STORES, INC., Respondent and Third-Party Plaintiff-Respondent. UNITED STEEL PRODUCTS, Third-Party Defendant-Respondent-Appellant.

Court of Appeals of the State of New York.

Decided February 16, 1999.

Attorney(s) appearing for the Case

Seligson, Rothman & Rothman, New York City (Alyne I. Diamond, Martin S. Rothman and Eugene A. Tomei of counsel), for appellant-respondent.

Steve S. Efron, New York City, for respondent and third-party plaintiff-respondent.

Melito & Adolfsen, P. C., New York City (Ignatius John Melito of counsel), for third-party defendant-respondent-appellant.

Chief Judge KAYE and Judges BELLACOSA, CIPARICK and WESLEY concur; Judges LEVINE and ROSENBLATT taking no part.

OPINION OF THE COURT

SMITH, J.

In this personal injury action, the primary issue is whether a plaintiff seeking to recover noneconomic damages from a defendant whose liability is less than 50% may claim an exemption set forth in CPLR 1602 without pleading the exemption or seeking leave to amend the pleadings to include the allegation at any stage of the action. We answer this question in the negative. Plaintiff...

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