Recitation, as required by CPLR 2219(a), of the papers considered in the review of defendants’ motion to dismiss Papers NYSCEF Doc. Notice of Motion, Affirmations, Affidavits, and Exhibits Annexed 53-70 Affirmation in Opposition and Exhibits Annexed 77-80 Reply Affirmation 104-106 DECISION/ORDER Upon the foregoing cited papers, the Decision/Order on this application is as follows: Defendants move, in motion sequence #2, to dismiss the plaintiff’s complaint, pursuant to CPLR 3211 (a)(5), on the ground that the plaintiff’s action may not be maintained because his claims are barred by the doctrine of collateral estoppel. After oral argument, the motion is denied. This is an action for personal injury. Plaintiff claims he was employed by non-party Aircraft Air Conditioning Corp. as an air conditioning installer,1 and was lawfully upon the premises known as 1932 Bryant Avenue, Bronx, NY, owned by defendant Boston Bryant Housing Development Fund Corporation on March 6, 2020, when he was struck by a falling object and was seriously injured. He claims that defendants violated Labor Law §§240 (1), 241 (6), 200, and were also negligent under the common law in New York. In his Bill of Particulars, plaintiff claims he sustained injuries to his right hand from this accident, as well as injuries to his lumbar spine, his right shoulder, his right ankle, and his right knee. Plaintiff filed for Workers’ Compensation benefits in March of 2020, and he commenced this action on or about July 2, 2020. On or about April 23, 2021, the Workers’ Compensation Board issued a decision on plaintiff’s claims, [Doc 63] and found that for purposes of Workers’ Compensation, he had injured his right hand and wrist in the accident, but that the other injuries he claimed to have sustained were not in fact the result of this accident. The decision [Doc 63] states “The case can be established for a right hand only all other sites disallowed.” On December 1, 2022, defendants moved, in motion sequence #1, for leave to amend their answer to assert an additional affirmative defense, collateral estoppel. This branch of the motion was granted, as pleadings are freely amendable, and defendants electronically filed their amended answer the next day, March 31, 2023, as Document 51. However, the branch of defendants’ motion which sought an order granting defendants dismissal of the complaint, on the basis that it is barred by collateral estoppel, was denied without prejudice. The court stated, in the order dated March 30, 2023, that “this relief, based upon a proposed amended answer, cannot be made at the same time as a motion for leave to amend.” In this motion, filed on April 19, 2023, defendants claim that they are entitled to have the complaint dismissed, as the plaintiff is barred from asserting claims in this Labor Law action for injuries that are in addition to those determined to have been caused by this accident in his Workers’ Compensation proceeding. Defendants do not explain how this would also bar the action as regards his hand and wrist injuries. Plaintiff opposes the motion and argues that after this action was commenced, the NY Legislature enacted a new statute, titled the Justice for Injured Workers Act, which makes it clear that this action and his personal injury claims are not barred. Specifically, Chapter 835 of the Laws of 2022, signed and effective December 30, 2022, amended the Workers’ Compensation Law to add a brand new section and to also add a new subsection to Section 11, to clarify what had become an unsettled issue. The new statute, §118-a states as follows: “With respect to an action for a workers’ compensation claim permissible under this chapter, no finding or decision by the workers’ compensation board, judge or other arbiter shall be given collateral estoppel effect in any other action or proceeding arising out of the same occurrence, other than the determination of the existence of an employer employee relationship.” In addition, the new law amended §11 of the Workers’ Compensation Law to add a new subsection 2, which states “Determination by the board shall not be given collateral estoppel effect in any other action or proceeding arising out of the same occurrence, other than the determination of the existence of an employer employee relationship.” What had happened prior to the enactment of this statute was a line of cases that found that collateral estoppel applied to bar such claims. Until this recent line of cases, there was no bar for some time. In Auqui v. Seven Thirty One LP, 22 NY3d 246 [2013]), the Court of Appeals held that the claims in a personal injury lawsuit could not be barred by an administrative law judge in a workers’ compensation decision, as “we find that there is no identity of issue and that collateral estoppel therefore should not be applied.” The court reasoned that: “The quasi-judicial determinations of administrative agencies are entitled to collateral estoppel effect where the issue a party seeks to preclude in a subsequent civil action is identical to a material issue that was necessarily decided by the administrative tribunal and where there was a full and fair opportunity to litigate before that tribunal. Whether collateral estoppel should be applied in a particular case turns on general notions of fairness involving a practical inquiry into the realities of the litigation. We have also recognized that collateral estoppel, a flexible doctrine, is applied more flexibly in the context of the determinations of administrative agencies. To that end, ‘among the factors bearing on whether an administrative decision is ‘quasi-judicial’ are ‘whether the procedures used in the administrative proceeding…were sufficient both quantitatively and qualitatively, so as to permit confidence that the facts asserted were adequately tested, and that the issue was fully aired.’ ‘ Here, defendants have failed to meet their burden of establishing that the issue decided in the workers’ compensation proceeding was identical to that presented in this negligence action. We have observed that the Workers’ Compensation Law ‘is the State’s most general and comprehensive social program, enacted to provide all injured employees with some scheduled compensation and medical expenses, regardless of fault for ordinary and unqualified employment duties.’ The purpose of awarding such benefits is to provide funds on an expedited basis that will function as a substitute for an injured employee’s wages…We have observed that the term ‘disability,’ as used in the Workers’ Compensation Law, ‘generally refers to inability to work’ In addition, the Board uses the term ‘disability’ in order to make classifications according to degree (total or partial) and duration (temporary or permanent) of an employee’s injury. The focus of the act, plainly, is on a claimant’s ability to perform the duties of his or her employment. [internal citations omitted]. By contrast, a negligence action is much broader in scope. It is intended to make an injured party whole for the enduring consequences of his or her injury — including, as relevant here, lost income and future medical expenses. Necessarily, then, the negligence action is focused on the larger question of the impact of the injury over the course of plaintiff’s lifetime. Although there is some degree of overlap between the issues being determined in the two proceedings, based on the scope and focus of each type of action, it cannot be said that the issues are identical.” This remained the law until the courts changed their analysis and decisions were issued which found that the issues were identical, and thus if the administrative law judge in the workers’ compensation hearing found that an injury was not caused by the accident, the injuries could not be claimed in a subsequent court proceeding. For example, in Douglas v. Tishman Constr. Corp., 205 AD3d 570, 571 [1st Dept 2022] the court said, “Plaintiff is collaterally estopped from litigating his allegation that he sustained traumatic brain injury and cognitive disorder, since the allegation was previously raised and conclusively decided against him in a Workers’ Compensation Board proceeding, where plaintiff had a full and fair opportunity to litigate the issue”. In Valverde v. Occam Suy LLC, 204 AD3d 626 [1st Dept 2022] the court found that defendants “established their prima facie entitlement to judgment as a matter of law by submitting evidence … [which] demonstrated that the issue resolved at the workers’ compensation hearing, i.e., that plaintiff did not sustain a work-related injury or the accident did not occur as described, was identical to that presented in this negligence and Labor Law action seeking damages for personal injuries.” Similarly, in the Second Department, in Lennon v. 56th and Park (NY) Owner, LLC, 199 AD3d 64 [2d Dept 2021], the court found that where the plaintiff filed “a claim for workers’ compensation benefits” arising from an alleged accident in which the subject hoist purportedly “rose and dropped ‘a bunch of times’ while he and several others were upon it,” and where the ALJ denied the claim on the stated ground that he “did ‘not believe that the hoist elevator malfunctioned in any way, much less in the drastic and dramatic way described by the plaintiff”…the ruling collaterally estopped plaintiff with respect to his personal injury action since, (1) he “personally testified at his workers’ compensation hearing,” and was “represented at the hearing by counsel” and received a “detailed and thorough” hearing. See also Denisco v. 405 Lexington Ave., 203 AD3d 1025 [2d Dept 2022]. Now that the Justice for Injured Workers Act has been enacted, its application to this action must be determined. Defendants argue that since the law states that “this act shall take effect immediately” but does not say “this act shall take effect immediately and apply to all pending actions,” that it is not retroactive to plaintiff’s complaint, which was filed before the law was enacted. Defendants are incorrect. The analysis is simple, and is not novel. First, in the Bill Memo, provided by plaintiff at Document 80, Senate Sponsor Gounardes states: “The Justice for Injured Workers Act (“JIWA”) will bar determinations made in Worker Compensation proceedings from having preclusive effect in trials by a worker whose injuries are caused by negligence or wrongful conduct of third parties (i.e., parties other than the worker’s employer.) Over 100 years ago, New York enacted a Worker’s Compensation hearing System with a ‘grand bargain’ to address the plague of on-the-job injuries suffered by workers. The bargain: workers surrendered their constitutional rights to sue their employer for causing workplace injuries and, in exchange, employers provided insurance that guaranteed medical care and cash benefits for such injuries, regardless of fault. To ensure that this ‘no fault’ system provided quick and consistent benefits, disputes between an employer and an employee to the existence or extent of an alleged workplace injury are resolved in lightning-fast administrative hearings before a Worker’s Compensation Law Judge (“WCLJ”). These hearings sacrifice basic procedures and evidentiary rules of trials to swiftly decide the claims. The hearings do not address fault; do not allow the parties to take depositions; do not provide a way to compel witnesses to testify; do not allow for exchanges of documents before a hearing; do not afford workers the right to order medical tests or elicit testimony from physicians; and do not give credence to injured workers’ descriptions of their alleged injuries. Hearsay is allowed as evidence, and witnesses have strict time limits in which to provide testimony. Worker’s Compensation hearings often consist of a cursory examination of medical records, and they do not consist of a searching review for truth, which occurs in a jury trial. This is why, for almost 80 years, when an injured worker filed a ‘third-party action’ against someone other than the employer for wrongfully causing a workplace injury, courts rejected attempts by defendants to apply collateral estoppel. Courts refused to use, as purportedly conclusive ‘facts’ for purposes of the third-party litigation, the ‘findings’ from Worker’s Compensation hearings. But in 1989, this all changed. The New York Appellate Division for the Second Department held that a Worker’s Compensation hearing determination collaterally estopped the worker from pursuing a subsequent action against a non-employer third-party and dismissed the action. In the wake of this decision, other New York courts began to apply the collateral estoppel doctrine to findings by WCLJs to dismiss third-party actions. Workers suffered. In 2013, the New York Court of Appeals held that the collateral estoppel doctrine was being used to deny an injured worker his right to a fair trial. This ruling, in Auqui v. Seven Thirty One Ltd. Partnership, 22 NY3d 246, 255-57 (2013), reinforced the concept that the party responsible for causing an injured worker’s injuries remains obligated to pay for lost wages and medical expenses. Unfortunately, Auqui left open the possibility that courts could apply the collateral estoppel doctrine to a prior Worker’s Compensation decision and deny injured workers the right to have a jury rule on their claims. This legislation is needed to ensure that findings from cursory Worker’s Compensation Board hearings do not prevent workers from exercising their constitutional right to a jury trial.” An understanding of the reasons for enacting the new statute is essential to a determination whether it must be applied prospectively or retroactively. The wording at the end of the statute is not the end of the analysis, contrary to defendants’ argument. Statutory interpretation is an art in and of itself. In a recent Second Department decision, Matter of Posillico v. Southold Town Zoning Bd. of Appeals, 219 AD3d 885 [2d Dept 2023], the court provides the appropriate manner to make this determination. The court states: “[T]wo axioms of statutory interpretation are relevant in determining whether a statute should be given retroactive effect. ‘Amendments are presumed to have prospective application unless the Legislature’s preference for retroactivity is explicitly stated or clearly indicated’. However, ‘remedial legislation should be given retroactive effect in order to effectuate its beneficial purpose’ ‘Remedial statutes are those designed to correct imperfections in prior law, by generally giving relief to the aggrieved party.’ While these principles serve as guides, ultimately, the court must attempt to discern the legislative intent either from the particular words used or, barring that, from the nature of the legislation. Here, the legislation did not include any express directive as to whether the amendment was to be applied retroactively. However, Local Law No. 10-2007, which amended the merger law, was clearly a remedial law, intended to correct the unjust consequences of the merger law as it had previously existed. The legislative history that is a part of the record also supports retroactive application of the amendment. Further, retroactive application of the amendment would not result in unfairness or impair substantive rights. [internal citations omitted]. It is the opinion of this court that the New York State Legislature intended the new statute to be remedial, and was enacted to reinstate the analysis in the Court of Appeals’ decision in Auqui v. Seven Thirty One Ltd. Partnership, 22 NY3d 246, 255-57 (2013), which had found that an action against a third party, such as the property owner and general contractor in a Labor Law action, was an entirely different sort of proceeding from a workers’ compensation hearing convened solely to determine if an employer’s insurer, that is, its workers’ compensation carrier, should provide living expenses and medical expenses to an injured worker. Accordingly, it is ORDERED that the defendants’ motion is denied. This constitutes the decision and order of the court. Dated: December 7, 2023
