Majewski v. Broadalbin-Perth Cent. School Dist., BROADALBIN-PERTH

Citation661 N.Y.S.2d 293,231 A.D.2d 102
Decision Date10 July 1997
Docket NumberBROADALBIN-PERTH
PartiesThomas MAJEWSKI, Appellant, v.CENTRAL SCHOOL DISTRICT, Defendant and Third-Party Plaintiff-Appellant; Adirondack Mechanical Corporation, Third-Party Defendant-Respondent.
CourtNew York Supreme Court Appellate Division

Caputo, Aulisi & Skoda (Robert F. Doran of Thorn & Gershon, Albany, of counsel), Gloversville, for appellant.

Maynard, O'Connor, Smith, Catalinotto & D'Agostino, L.L.P. (Christine K. Krackeler, of counsel), Albany, for defendant and third-party plaintiff-appellant.

James P. O'Connor, and Thuillez, Ford, Gold & Conolly, New York City (Michael J. Hutter, of counsel), Albany, for third-party defendant-respondent.

Menagh, Trainor, Mundo & Falcone, P.C. (Christopher A. Bacotti, of counsel), New York City, for Electrical Employees Self Insurance Safety Plan, amicus curiae.

Edward B. Flink & Associates (Edward B. Flink, of counsel), Latham, for Peerless Insurance Company, amicus curiae.

Dennis C. Vacco, Attorney General (Michael S. Buskus, of counsel), Albany, for the State of New York, amicus curiae.

Schneider, Kleinick, Weitz, Damashek & Shoot (Brian J. Shoot, of counsel), New York City, for New York State Trial Lawyers Association, amicus curiae.

Before MIKOLL, J.P., and MERCURE, CREW, YESAWICH and PETERS, JJ.

MERCURE, Justice.

Appeal from an order of the Supreme Court (Ferradino, J.), entered January 10, 1997 in Fulton County, which granted third-party defendant's motion for summary judgment dismissing the third-party complaint.

The sole issue presented on this appeal is whether sections 2 through 9 of the Omnibus Workers' Compensation Reform Act of 1996 (see, L. 1996, ch. 635, eff. Sept. 10, 1996) (hereinafter the Omnibus Act) should be applied to claims pending but not yet reduced to final judgment on the effective date of the Omnibus Act. For the reasons that follow, we hold that these sections should not be so applied. Accordingly, we reverse the order appealed from.

In October 1994, plaintiff allegedly fell from a ladder and sustained personal injuries while employed by third-party defendant for the purpose of performing repair work at defendant's premises. In December 1995, plaintiff commenced this action against defendant to recover for his personal injuries and defendant, in turn, commenced a third-party action seeking contribution and/or indemnification from third-party defendant. Third-party defendant thereafter moved for summary judgment dismissing the third-party complaint on the basis of the amendment to Workers' Compensation Law § 11 by the Omnibus Act, which eliminates, except in cases of "grave injury"--a statutorily defined threshold for catastrophic injuries which plaintiff concedes he has not met (see, L. 1996, ch. 635, § 2)--an employer's liability "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" (Workers' Compensation Law § 11, as amended by L. 1996, ch. 635, § 2). Supreme Court, expressly finding that the Omnibus Act applied to pending claims and impliedly finding that plaintiff had not sustained a grave injury, granted the motion(169 Misc.2d 429, 653 N.Y.S.2d 822). Plaintiff and defendant appeal.

Before reaching our dispositive analysis, we pause briefly to discuss Workers' Compensation Law § 11. Although Workers' Compensation Law § 11 ordinarily bars an injured employee from suing his or her employer for common-law tort damages, it had long been the rule in New York, "plac[ing] it in a distinct minority among the states" (Alexander, 1996 Supp. Practice Commentaries, McKinney's Cons. Laws of N.Y., Book 7B, CPLR C1401:4, 1997 Pocket Part, at 153), that a defendant in a personal injury action arising out of a workplace-related accident had an unlimited ability to bring a separate action or a third-party action against the injured employee's employer for contribution or indemnification with respect to the damages recovered or sought by the injured employee (see, Dole v. Dow Chem. Co., 30 N.Y.2d 143, 331 N.Y.S.2d 382, 282 N.E.2d 288; Westchester Light. Co. v. Westchester County Small Estates Corp., 278 N.Y. 175, 15 N.E.2d 567). In Dole v. Dow Chem. Co. (supra ), the Court of Appeals concluded that the sued tortfeasor had the right to interpose a contribution claim against any other alleged tortfeasor and, if necessary, to join other tortfeasors as parties (see, id., at 152-153, 331 N.Y.S.2d 382, 282 N.E.2d 288). The right to apportionment of liability among parties involved in causing damage by negligence rested on relative responsibility and was determined by the jury (see, id., at 153, 331 N.Y.S.2d 382, 282 N.E.2d 288). Article 14 of the CPLR, enacted in 1974, codified Dole.

The Omnibus Act greatly restricted the occasions when an employer could be liable for contribution or indemnification as a result of a personal injury action commenced by one of its employees against a third party (see, L. 1996, ch. 635). Workers' Compensation Law § 11, as amended, permits third-party claims against employers only when (1) the defendant proves, through competent medical evidence, that the plaintiff sustained a "grave injury", or (2) the defendant's right to contribution or indemnification for the type of loss suffered is preserved in a written agreement which was entered into prior to the accident (see, Workers' Compensation Law § 11, as amended by L. 1996, ch. 635, § 2). Sections 3 through 8 of the Omnibus Act enact necessary conforming changes to Workers' Compensation Law § 29(6) and CPLR 1401, 1601(1), 1602(4), (12) and 1603 (see, L. 1996, ch. 635, §§ 3-8). Section 9 of the Omnibus Act adds a new article 18-A to the General Obligations Law, inter alia, protecting fellow employees as well as employers from third-party Dole claims (see, L. 1996, ch. 635, § 9). Section 90 of the Omnibus Act states nothing about retroactive application of sections 2 through 9, providing only that those sections "shall take effect immediately" (L. 1996, ch. 635, § 90).

At the outset, we note our agreement with the Second Department's determination in Morales v. Gross, 230 A.D.2d 7, 657 N.Y.S.2d 711 that the relevant sections of the Omnibus Act are inapplicable to third-party actions pending on its effective date. We agree with the Second Department that the text of the Omnibus Act, as well as the greater weight of its legislative history, support the conclusion that the subject amendments should be accorded a prospective application.

We begin, and essentially conclude, our analysis with a consideration of the actual language used by the Legislature. Whether, and to what extent, a statute is to be applied retroactively generally requires a determination of legislative intent (see, Longines-Wittnauer Watch Co. v. Barnes & Reinecke, 15 N.Y.2d 443, 453, 261 N.Y.S.2d 8, 209 N.E.2d 68, cert. denied 382 U.S. 905, 86 S.Ct. 241, 15 L.Ed.2d 158; see also, McKinney's Cons. Laws of N.Y., Book 1, Statutes § 51[b], [d] ). Numerous cases restate and apply the classic canons of statutory construction and these principles provide helpful guideposts for our analysis. "[T]he reach of the statute ultimately becomes a matter of judgment [however] made upon review of the legislative goal" (Matter of Duell v. Condon, 84 N.Y.2d 773, 783, 622 N.Y.S.2d 891, 647 N.E.2d 96, citing Becker v. Huss Co., 43 N.Y.2d 527, 540-541, 402 N.Y.S.2d 980, 373 N.E.2d 1205).

It is useful to state the familiar principles. It is axiomatic that amendments are prospective only unless there is a clear indication that retroactive application was intended (see, Matter of Duell v. Condon, supra, at 783, 622 N.Y.S.2d 891, 647 N.E.2d 96; Dorfman v. Leidner, 76 N.Y.2d 956, 959, 563 N.Y.S.2d 723, 565 N.E.2d 472; Becker v. Huss Co., supra, at 540, 402 N.Y.S.2d 980, 373 N.E.2d 1205; Matter of Deutsch v. Catherwood, 31 N.Y.2d 487, 489-490, 341 N.Y.S.2d 600, 294 N.E.2d 193; Jacobus v. Colgate, 217 N.Y. 235, 240, 111 N.E. 837; see also, McKinney's Cons. Laws of N.Y., Book 1, Statutes § 51[b], [c]; § 52). Put another way, substantive statutes are presumed to have only prospective effect (see, Jacobus v. Colgate, supra, at 240, 111 N.E. 837), while the rule is exactly the opposite if the statutory amendment merely effects a procedural change (see, Longines-Wittnauer Watch Co. v. Barnes & Reinecke, supra, at 453, 261 N.Y.S.2d 8, 209 N.E.2d 68; see also, McKinney's Cons. Laws of N.Y., Book 1, Statutes § 55). The principle requiring a clear expression that retroactive application was intended is important because "such a statement constitutes evidence that the Legislature has affirmatively assessed the potential for unfairness created by retroactivity and concluded that it is an acceptable price to pay for the anticipated benefits" (Morales v. Gross, supra, 657 N.Y.S.2d at 713).

Third-party defendant concedes that the Legislature did not expressly provide for retroactivity of sections 2 through 9 of the Omnibus Act, but, relying upon Becker v. Huss Co., supra, at 539-542, 402 N.Y.S.2d 980, 373 N.E.2d 1205 and Matter of Cady v. County of Broome, 87 A.D.2d 964, 451 N.Y.S.2d 206, lv. denied 57 N.Y.2d 602, 454 N.Y.S.2d 1027, 440 N.E.2d 798, asserts that the language "shall take effect immediately" (L. 1996, ch. 635, § 90) and the statutory presumption of prospective application relied on by plaintiff and defendant did not preclude a determination of retroactive legislative intent. We disagree. We note first that the language "shall take effect immediately" has been held to provide "a clear indication that prospective application is appropriate" (Matter of Moynihan v. New York State Empls. Retirement Sys., 192 A.D.2d 913, 914, 596 N.Y.S.2d 570; see, Matter of Lusardi v. Lusardi M.D., P.C., 167 A.D.2d 3, 4, 570 N.Y.S.2d 376; Fuerst v. Fuerst, 131 A.D.2d 426, 428, 515 N.Y.S.2d 862; County of Rensselaer v. City of Troy, 120 A.D.2d 796, 797-798, 501 N.Y.S.2d 534; ...

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