Supreme Court, Kings County, September 6, 2023

Cullen and Dykman LLP, New York City (Erik E. Harris of counsel), for defendants/third-party plaintiffs/third third-party plaintiffs.

Wingate, Russotti, Shapiro, Moses & Halperin, LLP, New York City (Curt J. Schiner of counsel), for plaintiff.

The decision/order on the 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) for leave to amend its verified answer to assert a proposed affirmative defense of collateral{**80 Misc 3d at 1111} 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 (Workers' Compensation Law § 118-a), enacted on December 30, 2022, warrants the denial of PVE/Nardozzi's motion for leave to amend. Under NY Workers' Compensation Law § 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 Workers' Compensation Law § 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' " (Matter of Posillico v Southold Town Zoning Bd. of Appeals, 219 AD3d 885, 888 [2d Dept 2023], quoting Matter of Gleason [Michael Vee, Ltd.], 96 NY2d 117, 122 [2001]). "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 [*2]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 Workers' Compensation Law § 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{**80 Misc 3d at 1112} of the Workers' Compensation Board (WCB), barring injured workers from seeking justice through the courts because of an administrative decision of the WCB" (Senate Introducer's Mem in Support of 2022 NY Senate Bill S9149, enacted as L 2022, ch 835). The legislative history, specifically the sponsor memorandum, highlights that administrative hearings before a workers' compensation law judge sacrifice basic procedures and evidentiary rules of trials to swiftly decide the claims and that NY Workers' Compensation Law § 118-a is "needed to ensure that findings from cursory Workers' 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 (Matter of 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 its 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 Workers' Compensation Law § 118-a should be effectuated through retroactive application (id.).

Therefore, upon finding that NY Workers' Compensation Law § 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.