New York Civil Law

Breaking News - Justice Whelan of New York Supreme Court, Suffolk County Grants New York Senator Palumbo's Motion for a Declaration Concerning New York Court of Appeals Nominees

New York Supreme Court Justice Thomas F. Whelan handed down his decision today granting Plaintiff New York Senator  Anthony  H. Palumbo's motion for a declaration concerning requiring a full floor vote by the Senate on a judicial appointment to the New York Court of Appeals (Decision and Order Download). The Court ordered and declared that pursuant to Article VI sec. 2 (e) of the New York State Constitution, the plaintiff Hon. Anthony H. Palumbo is entitled to a full floor vote before the Senate on a gubernatorial nominee for the Court of Appeals. The Court denied the defendants' motion to dismiss the complaint and rejected their mootness argument, discussing that the same issue will arise with the upcoming nomination process for the Chief Judge vacancy.

Notably, the Court declared unconstitutional the Senate procedure of having the Senate Standing Committee on the Judiciary first vote whether to advance the appointee before the full Senate floor.

A more detailed analysis will follow.

Update on New York State Senate's Vote on Justice Hector LaSalle's Nomination to the New York Court of Appeals

Last week was a busy one for the New York State Senate and New York Court of Appeals (see here and here). New York Senator Rob Rolison wrote this letter about the Senate vote on Governor Kathy Hochul's nomination of Justice Hector LaSalle for the chief judge position of the Court. The Times Union published this article about the history of the nomination process. Commentators expect Supreme Court, Suffolk County Justice  Whelan to hand down a decision today on Senator Anthony Palumbo's declaratory judgment action against the Senator. New York Civil Law will provide an update if and when Justice Whelan hands down a decision later today.

Update (12:46 p.m.) - Here is the Commission on Judicial Nomination's recent posting for the Chief Judge Vacancy. Applications are due no later than March 7, 2023.

Clerk of New York Court of Appeals Contacts Counsel for the Commission of Judicial Nomination Regarding Vacancy of New York Chief Judge Position

Today, New York Court of Appeals Clerk Lisa Le Cours wrote ) the Counsel for the Commission on Judicial Nomination indicating that (1) the Governor's office notified the Court that the New York Senate rejected Governor Kathy Hochul's nomination, and (2) the office of Chief Judge remains vacant. Notably, the Commission recommended six other potential nominees for the chief judge position. (see letter below

Question: Because the Commission deemed six potential nominees in addition to Justice LaSalle qualified for the position, does the Commission now recommend one new potential nominee and include the six other potential nominees from the first go around of the selection process? If the Commission recommends an entirely new slate of potential nominees, how does that square with its original recommendation of the other six potential nominees? h/t to Nick Reisman

 

New York State Senate Rejects Governor Kathy Hochul's Nomination of Justice Hector LaSalle for Chief Judge Position of the New York State Court of Appeals

Earlier today, seemingly out-of-nowhere, the New York State Senate moved Governor Kathy Hochul's nomination of Justice Hector LaSalle to a full vote. The Senate rejected the Governor's nominee, with 39 senators voting against Justice LaSalle and 20 voting in his favor. Perhaps the looming hearing of an Order to Show Cause (Download signed OTSC) in a declaratory judgment action scheduled for this upcoming Friday in a lawsuit Senator Anthony Palumbo commenced against the New York State Senate provoked the vote. (see supporting affirmation of OTSC Download Affirmation)

Notably, the attorney for Senator Palumbo has commented to the press that the vote does not render the declaratory judgment action moot. (see Bloomberg Law)

How did we get here? Justice LaSalle has been a public servant for, at least, 20 years, and heads one of the busiest appellate courts in the entire country -- i.e., the Appellate Division, Second Department. The chief judge position of the New York Court of Appeals supervises the seven-judge Court of Appeals panel and has a sizable administrative role as the chair of the Administrative Board of the Courts. Justice LaSalle's experience and demeanor appeared to be a natural fit for the chief judge position. A majority of senators thought otherwise. Is it a defeat for Governor Hochul, the question many commentators are claiming or a defeat for New Yorkers?

I have aggregated some relevant news articles here: New York Times; New York Magazine; The Hill; Politico; New York Post; New York Daily News; and The Wall Street Journal. Here is a statement from Chairman of Committee of Judiciary, Senator Hoylman-Sigal.

New York's Justice for Injured Workers Act - New York Workers' Compensation Law

New York Governor Kathy Hochul signed a bill at the end of 2022 that impacts workers’ compensation and personal-injury lawsuits in New York. “The Justice for Injured Workers Act” adds a new section of New York’s Workers Compensation Law that bars a court or other forum from granting preclusive or collateral estoppel effect to decisions by the Workers’ Compensation Board in any other action or proceeding. The Act will impact construction-site/Labor Law personal-injury lawsuits.

Consider a litigant who claims he was injured at a construction site as an employee of a concrete subcontractor. The litigant claims he fell from a height because he was not provided with appropriate safety devices. The subcontractor has no record of the litigant’s employment or his presence at the jobsite, and has no record or report of the claimed accident. The Workers’ Compensation Board determines in the litigant’s workers’ compensation claim that he was not the subcontractor’s employee and was not present at the jobsite.

Prior to the Act, the owner, general contractor, or employer could argue in the litigant’s personal-injury action (separate from the workers’ compensation claim) that the Board’s findings precluded the litigant from arguing he was the subcontractor’s employee and was injured at the jobsite. The Act now bars a court from granting preclusive effect to the Board’s decisions except on a determination of whether there was an employer/employee relationship.

The Act cuts both ways for the plaintiffs’ and defense bar. The Act’s stated intent was to protect workers and the “no fault” nature of workers’ compensation claims, thereby favoring plaintiffs in personal-injury actions. The Act’s justification notes the “lightning-fast administrative hearings before a Worker’s Compensation Law Judge” were designed to provide quick and consistent benefits for injured workers. It also notes that the hearings “sacrifice[d]” basic procedures and evidentiary rules of  trials “to swiftly decide the claims.” Thus, the Act seeks to protect workers from having less-formal, quick administrative determinations impinge on a workers personal-injury action. As opposed to workers’ compensation claims, personal-injury actions abide by rules of evidence and allow for discovery to flesh out the issues.

The glass is half full for the defense bar, however. The Act now prevents alleged injured workers from arguing in their personal-injury lawsuits that the Board’s determination on whether the work-related accident happened or how it happened precludes the defense from proffering evidence to demonstrate otherwise. The Act’s unintended effect benefits the defense bar in the construction litigation realm, where there are frequent fraudulent claims of unwitnessed, gravity-related accidents. The plaintiffs’ bar can no longer argue that the Board’s findings on the foregoing issues are final.

The Act certainly gives the plaintiffs’ bar a boon. A plaintiff can now argue that the Board’s determination on the existence of an employer/employee relationship precludes the Supreme Court from ruling on the same issue in the plaintiff’s personal-injury lawsuit. Considering the large number of fraudulent construction-site claims in New York, many of them are questionable on the employer/employee relationship issue. In that respect, the Act helps the plaintiffs’ bar.

The Act’s impact on personal-injury lawsuits is one more reason for the insured (owner, general contractor, and subcontractors), the general liability defense attorney, and the workers’ compensation defense attorney to work closely with each other at the early stages of the litigant’s claim. The defense can stem a fraudulent claim at its inception by proving to the Board that there was no employer/employee relationship between the litigant who is claiming injuries at a construction site and the general contractor or subcontractor. Considering the plaintiff-friendly protections under Labor Law §§ 240 (1) and 241 (6), disputing every meritorious issue counts.

The Act is effective immediately.

Photo credit: Arne Hoel / World Bank (license)