A Silver Bullet

By Henry J. Stern
June 14, 2006

An event occurred yesterday in Albany which to us is so egregious that we want to set it out in full, for you to read and digest its significance.  

A New York Times story by Jennifer Medina describing the event was published on page B2 Wednesday morning.  Most people, who do not have the time to read the entire newspaper, are likely to miss it.  We believe that as many New Yorkers as possible should be aware of the situation she depicts, and the light it casts on the workings of the New York State Assembly.
 
Rather than paraphrase, truncate or summarize Ms. Medina's account, we proceed directly to the Times' headline and the complete text of her story.
 
 
By Jennifer Medina
 
For the last four years, officials from New York and other cities and towns around the state have urged lawmakers in Albany to change the way public employees are awarded money in personal injury lawsuits against municipalities.

After several false starts, lobbyists for the city were confident they had finally lined up enough support to win passage of the measure in the Assembly's Judiciary Committee.

But just as the committee was scheduled to meet in Albany yesterday morning, Sheldon Silver, who leads the Democratic-controlled Assembly, added three new members.

All three voted against the bill, and it failed by one vote.

City officials called it a political move, saying aggressive lobbying by trial lawyers might have scuttled the bill. But they stopped short of directly criticizing Mr. Silver, the Assembly speaker, who opposes the legislation and is a trial lawyer.

A spokeswoman for Mr. Silver said that Assembly members are routinely asked to fill in for committee vacancies and that Mr. Silver had had "no knowledge" of how the members would vote.

Under current law, a municipal worker who is disabled in a work-related accident can receive an accident disability pension, which is paid for by the city. But the worker can also sue for lost future earnings and significantly increase the amount of money he or she receives.

City officials criticized those secondary payments as "double dipping," noting that private companies are not subject to the same regulations.

The city estimates that it loses $11 million annually because of the loophole. And it says it could potentially save $160 million by settling pending cases if the legislation passed this year. Statewide, state officials said the current law costs municipalities hundreds of millions of dollars annually, though they did not give a precise number.

In 2003, for instance, a city sanitation worker took disability retirement after he hurt his back and received three-quarters' pay, or $1.1 million, based on his life expectancy. He later sued the city and was awarded $1.2 million for lost future earnings.

"This bill made total sense, because it would have closed that loophole," said Michael A. Cardozo, the city's corporation counsel, who noted that the legislation had been supported by Gov. George E. Pataki and Attorney General Eliot Spitzer. "We had the support from the governor — and the person who hopes to be the governor — on down. The only people who oppose it are the trial lawyers."

The trial lawyers are a powerful lobbying group in the State Capitol. On Monday, the New York State Trial Lawyers Association began circulating an opposition memo to the bill, saying that it would unfairly limit the amount of money public employees could receive.

Mr. Silver has said that the current law protects labor unions and that rules governing disability pensions should be determined through collective bargaining. "He has some concerns about the issue," said Eileen Larrabee, a spokeswoman for Mr. Silver. "If they want to change it, they should do it when contracts are negotiated."

Although each of the new appointees to the committee— Catherine T. Nolan, Ron Canestrari and Deborah Glick — voted against the bill, Ms. Larrabee insisted that Mr. Silver's views had nothing to do with the vote. She said that although the committee had vacancies for much of the legislative session, it would be "pretty typical" to ask members to stand in on short notice.

"He had no knowledge of how the members would vote on this or the 64 other bills they considered in the committee," she said of Mr. Silver.

Mr. Cardozo said that his office had spoken to nearly every member of the committee in recent days.

"All I know is we had the votes this morning," Mr. Cardozo said yesterday. "Three people were added to the committee and we lost 11 to 10. That's the math."

Mr. Cardozo said he was confident the bill had enough support to pass in the Republican-controlled State Senate, though it has not been brought up for a vote this year.

Richard Rifkin, a deputy state attorney general, said the legislation was unlike other attempts at changing tort law because it did not put a strict limit on the amount of money an injured worker could receive. "This is a simple measure, really," he said.

The Times' story is illustrated by a picture of the Speaker on page B2. 
To appreciate the photograph, you must buy or borrow the newspaper.

If any of you who are not lawyers cannot follow precisely what the dispute is about, you may call 212-564-4441 and we will explain it to you.  

Comments on this issue, pro or con, are welcome.  Unless obscene or libelous, they will be posted on our website, www.nycivic.org.