CPLR 1601(1) does not address situations, such as here, where the alleged non-party tortfeasor is the State of New York which cannot be joined as a co-defendant in the Supreme Court. The prevailing view, however, is that apportionment against a state joint tortfeasor, subject to suit in the Court of Claims, is appropriate in a Supreme Court action.
In addition, CPLR 1601 (1) permits a state defendant, in the Court of Claims, the benefit of Article 16 apportionment against a non-state, joint tortfeasor by exempting the State from the rule which excludes a non-party’s share when jurisdiction cannot be obtained over that non-party. In this case, the plaintiff has sued Downstate Hospital in the Court of Claims and the hospital in that action has raised as an affirmative defense the protection of CPLR, Articles 15 and 16. Thus, the state hospital may well seek apportionment against Dr. BK in the pending Court of Claims action.
It is noted that when two tort-feasors neither act in concert nor contribute concurrently to the same wrong, they are not joint tort-feasors; rather, their wrongs are independent and successive. Although the original wrongdoer is liable for all the proximate results of his or her own tortious act, including aggravation of injury by a successive tortfeasor, the successive tort-feasor is liable only for the aggravation caused by his own conduct. However, in order for a defendant to be considered an independent and successive tortfeasor and therefore liable only for such aggravated or additional injury caused by it there must be demonstrated two separate injuries, with the second injury not necessarily resulting from the first, and further, there must be demonstrated the capability of delimiting the injures caused by the successive tort-feasor.