Santangelo v. State, s. 81400

• Decision Date: 07 November 1990
• Docket Number: Nos. 81400,81401,s. 81400
• Parties: Joseph SANTANGELO, Claimant, v. The STATE of New York, Defendant. Fred KIRSCHENHEITER, Claimant, v. The STATE of New York, Defendant.
• Court: New York Court of Claims

Page 597

563 N.Y.S.2d 597

149 Misc.2d 171

Joseph SANTANGELO, Claimant, v. The STATE of New York, Defendant.

Fred KIRSCHENHEITER, Claimant, v. The STATE of New York, Defendant.

Claim Nos. 81400, 81401 Court of Claims of New York.

Nov. 7, 1990.

[149 Misc.2d 173] Kelly, Luglio & Arcuri (Andrew A. Arcuri, of counsel), Deer Park, for claimants.

Robert Abrams, Atty. Gen. (Ronald Glickman, Asst. Atty. Gen., of counsel), Albany, for defendant.

MEMORANDUM DECISION AND ORDER

LOUIS C. BENZA, Judge.

Claimants, police officers, instituted this action to recover for injuries sustained as the result of attempting to arrest a mental patient escapee. The instant claims were filed on August 27, 1990 and assigned Claim Nos. 81400 and 81401. A claim was previously filed by each claimant on August 20, 1979, and the claims were assigned Nos. 63380 and 63381. For the purposes of the instant motions, the present claims will be referred to as Santangelo II, as opposed to Santangelo I for the previous claims. The cause of action for both Santangelo I and Santangelo II accrued on July 15, 1979. This Court, following a full trial on the issue of liability, dismissed Santangelo I (see, Santangelo v. State of New York, 129 Misc.2d 898, 494 N.Y.S.2d 49, affd. 127 A.D.2d 647, 511 N.Y.S.2d 666, affd. 71 N.Y.2d 393, 526 N.Y.S.2d 812, 521 N.E.2d 770). Subsequent to entry of final judgment, the Legislature enacted General Municipal Law (hereinafter GML) section 205-e (L.1989, ch. 346 [effective July 12, 1989]) which created a right of action for police officers who are injured in the line of duty as a direct or indirect result of a person's violation of a rule, a law, a statute or an ordinance. The Courts of this State have held that said legislation was not intended by the Legislature to be retroactively applied (Ruotolo v. State of New York, 157 A.D.2d 452, 549 N.Y.S.2d 22, appeal denied 75 N.Y.2d 710, 556 N.Y.S.2d 247, 555 N.E.2d 619; Guadagno v. Baltimore & Ohio R.R. Co., 155 A.D.2d 981, 548 N.Y.S.2d 966; Brown v. Ellis, 145 Misc.2d 1085, 548 N.Y.S.2d 841; O'Sullivan v. Fischo Entertainment Corp., 145 Misc.2d 401, 546 N.Y.S.2d 914). In July 1990 the Legislature amended section 205-e (L.1990, ch. 762), which amendment provides that:

[N]otwithstanding any other provision of law, including sections 50-e and 50-i of the general municipal law, section 3813 of the education law, section 10 of the court of claims act and the provisions of any general, special or local law or charter requiring as a condition precedent to commencement of an action or special proceeding that a notice of claim be filed or presented, every cause of action for the personal injury or wrongful death of a police officer which was pending on or after January 1, 1987, or which was dismissed on or after January 1, 1987 because this section was not yet effective, or which would have been actionable on or after January 1, 1987 had this section been effective is hereby revived and an action thereon may be commenced at any time provided that such action is commenced on or before June 30, 1991.

As a result of this legislation, the claims in Santangelo II were filed.

Subsequent to the filing of Santangelo II, the defendant moved to dismiss the claims as res judicata. From a reading of the defendant's original motion papers, it is apparent that the Attorney General was not aware of the amendment to GML section 205-e (see, defendant's supplemental affidavit). The claimants cross-moved for summary judgment on the grounds that section 205-e revives Santangelo I and, in effect, creates an absolute liability on the defendant for injuries to police officers sustained as a result of a finding by the courts of any violation of a statute, ordinance or existing regulation. The claimants contend that in its decision in Santangelo I, the Court held that the defendant had violated its own regulations and that the mental patient's escape and continuing elopement was due to the State's negligence (Santangelo v. State of New York, 129 Misc.2d 898, supra, at 902, 494 N.Y.S.2d 49). The defendant contends that issue was never decided.

The defendant, in its reply affirmation (see, defendant's answering reply affirmation, para. 5, pp. 3 & 4) directly raises the issue of whether the 1990 amendment to GML 205-e can constitutionally revive Santangelo I. In the absence of any prohibition, constitutional or otherwise, this Court, in a cause of action created by statutory legislation, for money damages against the State, has the authority to determine whether the cause of action, as stated, is sustainable when tested against constitutional limitations imposed upon the Legislature.

The determinative issue before the Court is whether the Legislature, through chapter 762 of the Laws of 1990, intended to revive cases wherein final judgment had been entered and, if so, whether legislation can constitutionally retroactively affect parties' rights which have been vested by decision of courts of competent jurisdiction. GML section 205-e, as amended, states three different categories of cases to which the remedy added by that section could be applied retrospectively:

1. Cases which were pending on or after January 1, 1987;

2. Cases dismissed on or after January 1, 1987 because "this section was not yet effective" [emphasis supplied];

3. Cases which would have been actionable on or after January 1, 1987 had the section been effective.

Retroactive Applicability of the Statute

Clear legislative intent is required in order to give retroactive application to an act of the Legislature when said act creates a cause of action where none previously existed (McKinney's Statutes sec. 53, p. 104 n. 86, citing Hastings v. H.M. Byllesby & Co., 293 N.Y. 413, 57 N.E.2d 737; Shielcrawt v. Moffett, 294 N.Y. 180, 61 N.E.2d 435; Jacobus v. Colgate, 217 N.Y. 235, 111 N.E. 837; Matter of Hodes v. Axelrod, 70 N.Y.2d 364, 369, 520 N.Y.S.2d 933, 515 N.E.2d 612; Gleason v. Gleason, 26 N.Y.2d 28, 308 N.Y.S.2d 347, 256 N.E.2d 513). Said retroactive application of a statute, which creates a cause of action where none previously existed, is not unconstitutional because of the retroactive effect (Jacobus v. Colgate, supra, 217 N.Y. at 242, 111 N.E. 837; see also, Matter of Hodes v. Axelrod, supra, 70 N.Y.2d at 369, 520 N.Y.S.2d 933, 515 N.E.2d 612; Gleason v. Gleason, supra ).

The history, as well as the literal words of the 1990 enactment clearly express that the statute be retroactively applied; therefore, no court interpretation of legislative intent is required (McKinney's Statutes sec. 76; Matter of Hodes v. Axelrod supra, 70 N.Y.2d at 369, 520 N.Y.S.2d 933, 515 N.E.2d 612).

What exactly does the statute mandate as to the instant claims? The window in the statute sucks into its sphere of influence all cases "which [were] pending on or after January 1, 1987, or which [were] dismissed on or after January 1, 1987 because this section was not yet effective, or which would have been actionable on or after January 1, 1987 had this section been effective" (L.1990, ch. 762, § 1).

Was Santangelo I revived by that provision of Laws of 1989 (ch. 346) as amended by Laws of 1990 (ch. 762, § 1) which revives cases "which [were] pending on or after January 1, 1987"? It is claimants' contention that their cases were pending as of January 1, 1987 as appeals were not completed as of that date. Such an application, although metaphysically arguable and subject to logistical formulation, requires total obfuscation of existing facts, necessitating a "quantum leap" possible only in the make-believe world of television. "Remedies may be modified even as to pending actions, but no action can be regarded as pending when it has expanded into a judgment and the time to appeal has expired, or the only appeal allowed by law has been taken and decided" (Germania Sav. Bank v. Village of Suspension Bridge, 159 N.Y. 362, 368, 54 N.E. 33; see also, Matter of Chrysler Props. v. Morris, 23 N.Y.2d 515, 297 N.Y.S.2d 723, 245 N.E.2d 395).

As previously noted, the last category of cases to which the remedy derived by the amendment of GML section 205-e can be retrospectively applied comprises cases which "would have been actionable on or after January 1, 1987 had [the statute] been effective" (Laws 1990, ch. 762, § 1). The language of the statute waived the notice provision required by section 10 of the Court of Claims Act and prospectively extended the three-year time limitation for commencing an action, as required by article 2 of the CPLR, only to those cases which otherwise would have been actionable on or after January 1, 1987. The instant claims do not fall within that category. The cause of action upon which the claims in Santangelo II are based occurred on July 15, 1979, and the statute of limitations expired on July 15, 1982 and would have acted as a bar to any action started in 1987, notwithstanding the existence of the effect of the cause of action created by the amendment of GML section 205-e.

As it appears to this Court, the pertinent provision in chapter 762 of the Laws of 1990 applicable to the instant case is "or which was dismissed on or after January 1, 1987 because this section was not yet effective * * * is hereby revived and an action thereon may be commenced at any time provided that such action is commenced on or before June 30, 1991" [emphasis supplied]. The Court agrees with claimants' contention that in its decision following the trial of Santangelo I, the Court found that the defendant had violated regulations of the Department of Mental Hygiene in the discharge of Mr. Bordes and in contravention of its own rules regarding the apprehension of Mr. Bordes after being advised of his presence in Maine and Florida (Santangelo v. State of New York, 129 Misc.2d 898, supra, at 899-900, 494 N.Y.S.2d 49). Said violations would have constituted a viable cause of action on behalf of claimants had the statute under consideration been in...