Johnson v. Space Saver Corp.

• Decision Date: 27 February 1997
• Citation: 172 Misc.2d 147,656 N.Y.S.2d 715
• Parties: Deborah JOHNSON, Plaintiff, v. SPACE SAVER CORPORATION, Also Known as The Space Saver Group, et al., Defendants. SPACE SAVER CORPORATION, Third-Party Plaintiff, v. WESTCHESTER COUNTY DEPARTMENT OF CORRECTIONS et al., Third-Party Defendants.
• Court: New York Supreme Court

Page 715

656 N.Y.S.2d 715

172 Misc.2d 147

Deborah JOHNSON, Plaintiff, v. SPACE SAVER CORPORATION, Also Known as The Space Saver

Group, et al., Defendants.

SPACE SAVER CORPORATION, Third-Party Plaintiff, v. WESTCHESTER COUNTY DEPARTMENT OF CORRECTIONS et al.,

Third-Party Defendants.

Supreme Court, Westchester County.

Feb. 27, 1997.

Marilyn J. Slaatten, County Attorney of Westchester County, White Plains, for third-party defendants.

Stern, King, Hoey, Toker & Levine, New York City, for Space Saver Corporation, defendant and third-party plaintiff.

Jacob D. Fuchsberg, New York City, for plaintiff.

Hayes & Ryan, New York City, for Inner Space Systems, Inc., defendant.

O'Connor O'Connor Hintz & Deveney, Garden City, for Modern Office Systems, Inc., defendant.

JOHN P. DiBLASI, Justice.

On September 10, 1996, New York State Governor George Pataki signed the Omnibus Workers' Compensation Reform Act, Ch. 635 of the Laws of 1996 (the Act), which he proclaimed as legislation which will "fulfill our government's obligation to business and labor by substantially reducing the costs of th[e] [workers' compensation] system on our State's employers while protecting the interests of injured workers" (Governor's Approval Mem., L.1996, ch. 635, 1996 McKinney's Session Laws of NY, at 1912). The issue before this Court is whether the centerpiece of the Act, which repeals the right to contribution recognized by the Court of Appeals in Dole v. Dow Chem. Co., 30 N.Y.2d 143, 331 N.Y.S.2d 382, 282 N.E.2d 288 [1972], retroactively bars the third-party action commenced in this case.

FACTUAL BACKGROUND

Plaintiff, a Corrections Officer employed by third-party defendant Westchester County Department of Corrections (the Corrections Department), was injured on December 1, 1994 when a bookshelf manufactured by defendant Space Saver Corp. (Space Saver), and distributed to the Corrections Department by defendant Modern Office Systems, Inc. (Modern Office), fell on her at the second floor library of the Westchester County Correctional Facility. As a result of the accident and the injuries sustained by her, plaintiff received benefits pursuant to General Municipal Law § 207-c. On or about April 13, 1995, plaintiff commenced this action in New York County against Space Saver, Modern Office and Inner Space Systems, Inc. Subsequently, this action was transferred to Westchester County.

On or about September 9, 1996, Space Saver instituted a third-party action against the Corrections Department and the County of Westchester, seeking contribution and indemnification. On the present motion, the County of Westchester and the Corrections Department (hereinafter referred to collectively as "the County") seek dismissal of the third-party complaint on the ground that it fails to state a cause of action against them. More particularly, they contend that the recent amendment to Workers' Compensation Law § 11 (the Alternative Remedy provision) bars the claims made against them by Space Saver. The determination of this motion requires this Court to decide whether this recent amendment, set forth in § 2 of the Act (Section 2), is retroactive in its effect, and bars such claims which arise from accidents that occurred prior to the date of its enactment. ¹

AMENDMENT OF THE WORKERS' COMPENSATION LAW

Section 2 amends the Alternative Remedy provision by declaring, in relevant part, that:

An employer shall not be liable for contribution or indemnity to any third person based upon liability for injuries sustained by an employee acting within the scope of his or her employment for such employer unless such third person proves through competent medical evidence that such employee has sustained a "grave injury".... (Worker's Compensation Law § 11, as amended by L.1996, ch. 635, sec. 2).

After the date upon which this statutory immunity to employers is effective, no third-party actions against employers may be brought unless the source of the employer's obligation to contribute to or indemnify the third-party arises from "a written contract entered into prior to the accident or occurrence by which the employer had expressly agreed to" such contribution or indemnification (ibid.).

Section 2 also defines a "grave injury" which will support a third-party action for contribution or indemnification as only one or more of the following:

... death, permanent and total loss of use or amputation of an arm, leg, hand or foot, loss of multiple fingers, loss of multiple toes, paraplegia or quadriplegia, total and permanent blindness, total and permanent deafness, loss of nose, loss of ear, permanent and severe facial disfigurement, loss of an index finger or an acquired injury to the brain caused by an external physical force resulting in permanent total disability.

Since the existence of a grave injury is the key element of Space Saver's potential claim against the County, it is necessary to examine the extent of injury asserted by plaintiff.

PLAINTIFF'S INJURY

In her complaint, plaintiff states that as a result of the accident at the Westchester County Correctional Facility, she was:

... rendered sick, sore, wounded, and bruised about her body and limbs by the impact of the shelving upon her body, and has suffered and will continue to suffer severe, permanent injuries to her head, neck and back, causing plaintiff continuing physical pain, disability and mental anguish. (Complaint, par. 12).

On the present motion, the County contends that the complaint, "although vague, alleges no injury which could be deemed 'grave' as defined by the amended section 11 of the Workers' Compensation Law" (Davey Affirm., par. 11). The Court agrees with the County as to this issue.

While plaintiff may have suffered serious injuries as a result of the accident, a determination which must in the end be left to the finder of fact at a trial, it is plain that none of the injuries claimed by her in the complaint fall within the restricted definition of "grave injury" which now applies to third-party actions against employers. Indeed, as to this issue, neither plaintiff nor, more significantly, Space Saver, takes an opposing position. Consequently, the Court concludes that no grave injury was sustained by plaintiff, and that the third-party complaint must be dismissed unless the amendment to the Alternative Remedy provision does not apply to accidents occurring, and suits commenced, prior to September 10, 1996, when the Act was signed into law. Thus, the Court must now turn to the issue of the effective date of the amendment to Section 11 of the Workers' Compensation Law.

RETROACTIVITY OF THE ACT

The Court is aware of five decisions, four of which have been reported, which have addressed the retroactivity issue. Three of those decisions, Gleason v. Holman Contract Warehousing, Inc., 170 Misc.2d 668, 649 N.Y.S.2d 647 [Sup.Ct.Albany Co.1996], Flynn v. New York Life Ins. Co. (NYLJ, 10/24/96, p. 31, col. 3 [Sup.Ct.Suffolk Co.1996] ), and Materna v. ZCWK Associates, L.P. (NYLJ, 2/12/97, p. 31, col. 1 [Sup.Ct.Kings Co.1997] ) concluded that the amendment has prospective application only. However, in Majewski v. Broadalbin-Perth Central School District, 169 Misc.2d 429, 653 N.Y.S.2d 822 [Sup.Ct.Fulton Co.1996], the court held that the amendment is retroactive, and applies to all pending as well as future actions. The holding of Majewski was followed by the court in an unreported decision in the case of Ciampitti v. Perennially Green, Inc. (Index No. 19139/93 [Sup.Ct.Queens Co.1996] ). For the reasons that follow, this Court agrees with the Majewski court that the amendment to Section 11 of the Workers' Compensation Law is retroactive in its application.

The rules to which the Court may turn in order to determine the retroactivity issue have been oft-stated and were thoroughly analyzed by the courts in Gleason and Majewski. "Statutes are generally applied prospectively in the absence of express or necessarily implied language allowing retroactive effect" (Dorfman v. Leidner, 76 N.Y.2d 956, 959, 563 N.Y.S.2d 723, 565 N.E.2d 472 [1990] ) or "a clear legislative indication to the contrary" (Matter of Rudin Management Company, Inc. v. Commissioner of Dept. of Consumer Affairs of the City of New York, 213 A.D.2d 185, 623 N.Y.S.2d 569 [1st Dept.1995] ). "An exception to the general rule is that, to the extent they do not impair vested rights or bestow additional rights, remedial statutes are to be given retroactive construction". (Matter of the City of New York [Long Is. Sound Realty Co.], 160 A.D.2d 696, 697, 553 N.Y.S.2d 789 [2d Dept.1990] ). Remedial statutes are those whose purpose is to correct imperfections in prior law. Cady v. County of Broome, 87 A.D.2d 964, 965, 451 N.Y.S.2d 206 (3d Dept.1982), lv. den. 57 N.Y.2d 602, 454 N.Y.S.2d 1027, 440 N.E.2d 798 (1982).

In this case, Space Saver argues that the Act is "a non-remedial piece of legislation, represent[ing] an economic decision designed to make New York State a more enticing climate for business." (Memo. of Law in Opp. p. 4). The Court disagrees with that position. Clearly, the amendment to the Alternative Remedy provision is designed to lessen the impact of the decision in Dole, later codified in CPLR Article 14, which recognized the right to contribution in actions such as the one at bar. Since its evident purpose is remedial, retroactive construction may be granted to it if it does not impair vested rights. See, Cady v. County of Broome, supra, 87 A.D.2d at 965, 451 N.Y.S.2d 206. Consequently, the Court must determine as a preliminary matter whether the right to contribution is one which is vested.

A right is vested if it is one which is complete and consummated (Sochor v. International Bus. Machs. Corp., 90 A.D.2d 442, 445, 457 N.Y.S.2d 317 [2d Dept.1982], revd. on other grounds 60 N.Y.2d 254, 469 N.Y.S.2d 591, 457 N.E.2d 696 [1983] ), i.e., that it is "fixed or established and no longer open to controversy" (ibid.). Rather than...