Pacheco v P.V.E. Co., LLC

[*1] Pacheco v P.V.E. Co., LLC 2023 NY Slip Op 23279 Decided on September 6, 2023 Supreme Court, Kings County Rothenberg, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the printed Official Reports.

Decided on September 6, 2023
Supreme Court, Kings County

Oscar Rene Pacheco, Plaintiff,

against

P.V.E. Co., LLC, P.V.E. II, Co., LLC, 70 Nardozzi LLC, et al., Defendants.



P.V.E. Co., LLC, P.V.E. II Co., LLC, and 70 Nardozzi LLC, Third-Party Plaintiffs,

against

Builder Services Group, Inc. d/b/a Truteam Commercial Services, Third-Party Defendant.



Suffolk Construction Company, Inc., Second Third-Party Plaintiff,

against

Builder Services Group, Inc. d/b/a Truteam Commercial Services, Second Third-Party Defendant.



P.V.E. Co., LLC, P.V.E. II Co., LLC, and 70 Nardozzi LLC, Third Third-Party Plaintiffs,

against

Employer Solutions Services, Inc., Third Third-Party Defendant.



Suffolk Construction Company, Inc., Fourth Third-Party Plaintiff,

against

Employer Solutions Services, Inc., Fourth Third-Party Defendant.



Index No. 522742/2020


Counsel for plaintiff: Curt J. Schiner, Wingate, Russotti, Shapiro, Moses & Halperin, LLP, 420 Lexington Avenue, Suite 2700, New York, New York 10170

Counsel for defendants: Erik E. Harris, Cullen and Dykman LLP, One Battery Park Plaza, 34th Floor, New York, New York 10005
Karen B. Rothenberg, J.

Recitation, as required by CPLR § 2219(a), of the papers considered in defendants' [*2]motion for leave to amend its verified answer and plaintiff's cross-motion for costs and sanctions against defendants,

Papers NYSCEF Doc. Nos.
Order to Show Cause/Motion and Affidavits Annexed 97-98, 100-107
Cross-motion and supporting papers 108-110
Answering Affidavits 111-112
Reply paper
Memoranda of Law 99

Upon the foregoing cited papers, the Decision/Order on these motions is as follows:

In this action to recover damages for personal injuries, defendants/third-party plaintiffs/third third-party plaintiffs P.V.E. CO., LLC, P.V.E. II CO., LLC, and 70 NARDOZZI LLC [PVE/Nardozzi] move [seq. no. 1] pursuant to CPLR. § 3025 (b) and (c) granting it leave to amend its verified answer to assert a proposed affirmative defense of collateral estoppel. Plaintiff Oscar Rene Pacheco cross-moves [seq. no. 2] pursuant to 22 NYCRR 130-1.1(c)(1) for the imposition of costs and sanctions against PVE/Nardozzi for interposing a frivolous motion.

In November 2020, Plaintiff commenced this action against PVE/Nardozzi and Suffolk Construction Company, Inc., alleging that he sustained injuries as a result of an accident that occurred on June 15, 2020, at a construction site located at 70 Nardozzi Place, New Rochelle, New York. On or about March 17, 2021, PVE/Nardozzi filed its answer to the complaint. Subsequently, the parties received a Notice of Decision from the Workers' Compensation Board [Board decision] filed on August 23, 2022, in which, inter alia, Workers' Compensation Board Judge Abisodun Balogun determined that treatment for plaintiff's neck injury had not been established and disallowed the neck injury claim.

PVE/Nardozzi now moves for leave to amend its verified answer to assert a proposed affirmative defense of collateral estoppel based upon the Board decision. In opposition, plaintiff argues that the Justice for Injured Workers Act [NY WORK COMP § 118-a], enacted on December 30, 2022, warrants the denial of PVE/Nardozzi's motion for leave to amend. Under NY WORK COMP § 118-a, "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." Plaintiff further cross-moves for the imposition of costs and sanctions against defendants for refusing to withdraw its motion and for willfully interposing a frivolous motion. PVE/Nardozzi, opposing the cross-motion, argues that NY WORK COMP § 118-a is not applicable in the instant matter as it should be applied prospectively to actions filed post-enactment.

In determining whether a statute should be given retroactive effect, there are two axioms of statutory interpretation that are relevant. "'Amendments are presumed to have prospective application unless the Legislature's preference for retroactivity is explicitly stated or clearly indicated'" (Posillico v Southold Town Zoning Bd. of Appeals, 2023 NY Slip Op 04424 [2d Dept Aug. 30, 2023], quoting Matter of Gleason [Michael Vee, Ltd.], 96 NY2d at 122, 726 N.Y.S.2d 45, 749 N.E.2d 724). "However, 'remedial legislation should be given retroactive effect in order to effectuate its beneficial purpose'" (id.). Nevertheless, these principles are "merely navigational tools to discern legislative intent" (see Majewski v Broadalbin-Perth Cent. School Dist., 91 NY2d 577, 584 [1998]) and "the reach of the statute ultimately becomes a matter of judgment made upon review of the legislative goal" (see Marrero v Crystal Nails, 114 AD3d [*3]101, 112 [2d Dept 2013]). "Other factors to consider include 'whether the Legislature has made a specific pronouncement about retroactive effect or conveyed a sense of urgency; whether the statute was designed to rewrite an unintended judicial interpretation; and whether the enactment itself reaffirms a legislative judgment about what the law in question should be'" (id.).

Here, while there is no express directive as to whether NY WORK COMP § 118-a should be applied retroactively, it is clear that it is a remedial law intended to "correct recent court decisions that granted preclusive effect to decisions of the Workers' Compensation Board (WCB), barring injured workers from seeking justice through the courts because of an administrative decision of the WCB" (2021 NY Senate Bill S9149). The legislative history, specifically the sponsor memorandum, highlights that administrative hearings before a Worker's Compensation Law Judge sacrifice basic procedures and evidentiary rules of trials to swiftly decide the claims and that NY WORK COMP § 118-a 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" (id.). Additionally, the statute took effect immediately, which evinced a sense of urgency (In re Gleason (Michael Vee, Ltd.), 96 NY2d 117, 122 [2001]). Furthermore, retroactive application will not result in unfairness or impair substantive rights. Contrary to PVE/Nardozzi's contentions, retroactive application will not increase their liability but rather will provide plaintiff with an opportunity to exercise his right to a fair trial. These factors together weigh in favor of the finding that the remedial purpose of NY WORK COMP § 118-a should be effectuated through retroactive application (id.).

Therefore, upon finding that NY WORK COMP § 118-a applies retroactively, PVE/Nardozzi's motion for leave to amend its answer is denied in its entirety. Plaintiff's cross-motion for the imposition of costs and sanctions is also denied in its entirety.

This constitutes the decision and order of the Court.

Dated: September 6, 2023
Karen B. Rothenberg
J.S.C.