Maria Auqui,, et al., Respondents,v.Seven Thirty One Limited Partnership, et al., Appellants.

Brief

N.Y.January 8, 2013

Court of Appeals FOR THE STATE OF NEW YORK Echo Appellate Press, Inc. • 30 West Park Avenue • Long Beach, New York 11561 • (516) 432-3601 Printed on Recycled Paper 20205 MARIA AUQUI, as Guardian of the Property of JOSE VERDUGO, and MARIA VERDUGO, Plaintiffs-Respondents, -against- SEVEN THIRTY ONE LIMITED PARTNERSHIP, BOVIS LEND LEASE LMB, INC. and NORTH SIDE STRUCTURES, INC., Defendants-Appellants. AMICUS CURIAE BRIEF On Behalf Of COUNTY OF SUFFOLK DENNIS M. BROWN, Suffolk County Attorney COUNTY OF SUFFOLK Attorneys for Proposed Amicus Curiae Suffolk County H. Lee Dennison Building 100 Veterans Memorial Highway, PO Box 6100 Hauppauge, New York 11788-0099 (631) 853-4049 Fax: (631) 853-5169 By: CHRISTOPHER A. JEFFREYS Assistant County Attorney October 3, 2013 TABLE OF CONTENTS TABLE OF AUTHORITIES ................................................................................................. ii INTEREST OF THE AMICUS CURIAE ............................................................................. 1 QUESTIONS PRESENTED ................................................................................................. 3 ARGUMENT ......................................................................................................................... 4 THE NECESSARY FINDINGS OF THE WORKERS' COMPENSATION BOARD AND WORKERS' COMPENSATION APPEAL COLLATERALLY ESTOP A WORKERS' COMPENSATION CLAIMANT FROM RELITIGATING THOSE NECESSARY FINDINGS IN A SUBSEQUENT PERSONAL INJURY ACTION ........................................................................................................................... 4 CONCLUSION ...................................................................................................................... 14 CERTIFICATION ................................................................................................................. 15 TABLE OF AUTHORITIES STATE CASES Matter of Abady, 22 A.D.3d 71,800 N.Y.S.2d 651 (1st Dep't 1985) ....................... : ................................ 9 Ashcraft Excavating Co. v. Clark, 79 A.D.2d 722 ................................................................................................................ 8 Auqui v. Seven Thirty One ltd. Partnership, 20N.Y.3d 1035, 1036, 1037 985 N.E.2d 889, 962 N.Y.S.2d 579 (2013) .......................................................... .4, 5, 6 Brugman v. City of New York, 102 A.D.2d 413,477 N.Y.S.2d 636 (1st Dept 1984) .................................................... 7 Clemens v. Apple, 65 N.Y.2d 746, 481 N.E.2d 560, 492 N.Y.S.2d 20 (1985) .......................................... 11 D'Arata v. New York Central Mutual Fire Insurance Co., 76 N.Y.2d 659,564 N.E.2d 634,563 N.Y.S.2d 24 (1990) ............................................ 8 ELRAC, Inc. v. Masara, 96 N.Y.2d 847, 753 N.E.2d 855, 729 N.Y.S.2d 60 (2011) .......................................... 13 Engel v. Calgon Corp., 114 A.D.2d 108,498 N.Y.S.2d 877 (3d Dep't 1986) affd 69 N.Y.2d 753, 505 N.E.2d 244,512 N.Y.S.2d 801 (1987) .......................................................................... 9 Matter of Evans, 306 N.Y. 312, 118 N.E.2d 452 (1954) ......................................................................... 10 Hinchey v. Sellers, 7 N.Y.2d 287, 165 N.E.2d 156, 197 N.Y.S.2d 129 (1959) ............................................ 8 Lee v. Jones, 230 A.D.2d 435,659 N.Y.S.2d 549 (3d Dep't) Iv:denied, 91 N.Y.2d 802, 689 N.E.2d 534, 666 N.Y.S.2d 564 (1997) ................................................ 9 Liss v. Trans Automobile Systems, Inc., 68 N.Y.2d 15,496 N.E.2d 851, 505 N.Y.S.2d 831 (1986) .......................................... 10 Maresco v. Rozzi, 162 A.D.2d 534, 556 N.Y.S.2d 731 (2d Dep't 1990) .................................................... 9 11 O'Connor v. Midiria, 55 N.Y.2d 538, 435 N.E.2d 1070,450 N.Y.S.2d 455 (1982) ...................................... 10 Rigopolous v. American Museum of Natural History, 297 A.D.2d 728, 747 N.Y.S.2d 566 (2d Dep't 2002) .................................................... 9 Ryan v. New York Telephone Co., 62 N.Y.2d 494, 467 N.E.2d 487,500-01,478 N.Y.S.2d 823 (1984) ............................ 9 Werner v. State, 53 N.Y.2d 346, 424 N.E.2d 541, 441 N.Y.S.2d 654 (1981) ........................................ 10 111 INTEREST OF THE AMICUS CURIAE / Suffolk County, located on the east end of Long Island, is one of the twelve original counties in New York State. It is the largest county on Long Island with more than 900 square miles within its borders. According to 2010 census data, I Suffolk County is hometo approximately 7.7 percent of New York State's population with 1,493,350 residents. As germane to the issues presented on the within appeal, the County of Suffolk is presently ready for trial in Supreme Court, Suffolk County, on a case entitled Jason Kowalsky v. The County of Suffolk, The Suffolk County Department of Parks, Recreation & Conservation and Raymond M Rancourt, Suffolk County Index Number 41227/2009. In the final pre-trial conference in the Kowalsky case, the parties discussed the motions in limine that would be submitted at the time of trial. One of those motions concerned the collateral estoppel effect that would be given to a Workers' Compensation determination and the appeal of that determination that found that the plaintiffs claimed injuries were pre-existing and not the result of the motor vehicle accident that is the subject of the Kowalsky litigation. As the parties argued the collateral estoppel issue, there was a prolonged discussion concerning this Court's February 13,2013 decision in the case at bar. Counsel for Kowalsky advised the presiding justice in Supreme Court, Suffolk 1 County, that this Honorable Court had granted reargument in the case at bar on June 27,2013, and that oral argument of the reargument was scheduled for November 12,2013. The Supreme Court, Suffolk County, adjourned the trial of the Kowalsky matter pending this Court's determination in the case at bar. A decision on the pending appeal may significantly affect the County of Suffolk's legal rights without the County ever having the opportunity to be heard. Since the County of Suffolk is actively involved in litigation involving the precise issues presented in the case at bar, leave was granted by this Court for Suffolk County to appear as amicus curiae. 2 QUESTION PRESENTED WHETHER THIS COURT'S FEBRUARY 14,2013 ORDER PROPERLY STATED THE LAW CONCERNING COLLATERAL ESTOPPEL EFFECTS OF WORKERS' COMPENSATION BOARD FINDINGS IN SUBSEQUENT LEGAL PROCEEDINGS? Brief Answer: The majority opinion of this Court's February 14, 2013 order properly stated the law concerning the collateral estoppel effects of Workers' Compensation Board findings in subsequent legal proceedings. 3 • ARGUMENT THE NECESSARY FINDINGS OF THE WORKERS' COMPENSATION BOARD AND WORKERS' COMPENSATION APPEAL COLLATERALLY ESTOP A WORKERS' COMPENSATION CLAIMANT FROM RELITIGATING THOSE NECESSARY FINDINGS IN A SUBSEQUENT PERSONAL INJURY ACTION Early this year, this Court rendered its determination in the case at bar. The decision is reported at Auqui v. Seven Thirty One Ltd. Partnership, 20 N.Y.3d 1035,985 N.E.2d 889, 962 N.Y.S.2d 579 (2013). This Court's determination affirmed long-standing principles of collateral estoppel that have assisted the County of Suffolk in the administration of workers' compensation and personal injury claims. The facts of this case are similar to scores of claims that are presented to the County ~fSuffolk on an annual basis. The plaintiff, Jose Verdugo, was injured in the course and scope of his employment. The plaintiff made an application for Workers' Compensation benefits as a result of the injuries allegedly sustained in this incident. While receiving his Worker's Compensation benefits, the plaintiff commenced a personal injury action against the entities allegedly responsible for the plaintiffs injuries. During the course of the personal injury litigation, the 4 plaintiff's Workers' Compensation insurer made an application to the Workers' Compensation Board to discontinue benefits on the grounds that the plaintiff was no longer disabled as a result Qf the accident. Apparently, there were no stays issued concerning the Workers' Compensation proceeding, and in January, 2006, an Administrative Law Judge from the Workers' Compensation Board reviewed all of the evidence submitted on behalf of the plaintiff and the Workers' Compensation insurer. The Administrative Law Judge determined that the plaintiff was no longer disabled as of the date of the determination. The plaintiff appealed the Administrative Law Judge's determination, and a full panel of the Workers' Compensation Board "affirmed the finding that plaintiff's disability ended on January 24, 2006, and that the plaintiff required no further medical treatment thereafter, other than for post-traumatic stress disorder." Id. at 1036. In the pending personal injury action, the defendants moved to preclude the plaintiff from relitigating the duration of his work related disability, since that issue was conclusively determined in the contested Workers' Compensation Board proceedings. The majority of this Court determined that the plaintiff had a full and fair opportunity to contest the determination of the Workers' Compensation Board finding the following: "Plaintiff was represented by counsel, submitted medical 5 reports, presented expert testimony, and cross-examined defendants' experts regarding the issue of whether or not there was an ongoing disability." Id. at 1037. Thus, collateral estoppel principles precluded the plaintiff from relitigating the issue of his alleged continuing disability in any other proceeding. In reaching its determination, this Court relied upon precedent that has formed the cornerstone of administrative agency collateral estoppel claims for decades. The doctrine of collateral estoppel is applicable to determinations of quasi-judicial administrative agencies such as the WCB. Collateral estoppel applies if the identical issue sought to be precluded was necessarily decided in an earlier action, and which the party opposing preclusion had a full and fair opportunity to contest the issue. Although legal conclusions and conclusions of mixed law and fact are not entitled to preclusive effect, findings of fact that are necessary for an administrative agency to reach are entitled to such effect. Id. at 1037 (citations omitted). Issues concerning the length of claimed disability following any incident are presented on a daily basis to the County of Suffolk and the Workers' Compensation Board. Municipalities rely upon the determinations of quasi- judicial administrative agencies to conclusively resolve issues between parties. As long as all parties have a full and fair opportunity to litigate the issue presented before the quasi-judicial administrative agency, the determinations of those bodies 6 should be binding upon the parties, and preclude further potential litigation on the point. After analysis of all determinations rendered in this action, and all applicable precedent on the issue, it is the position of the County of Suffolk, as amicus curiae, that this Court's order dated February 14,2013 concerning the application of collateral estoppel principles to Workers' Compensation Board proceedings should be affirmed its entirety. Collateral estoppel principles were analyzed by the Appellate Division in Brugman v. City of New York, 102 A.D.2d 413,477 N.Y.S.2d 636 (1 st Dept 1984), where an issue was presented concerning the cause of a plaintiff s injury. In Brugman, the plaintiff claimed that he tripped and fell over a tree stump and injured his back: other evidentiary proof submitted to the reviewing administrative agency established that the injury was caused as a routine part of the plaintiff s employment which required heavy lifting on a daily basis. Three different administrative determinations found that the plaintiffs injury was not from \ tripping over a tree stump, but was, instead, a pre-existing condition. In determining that the factual determination concerning the cause of the plaintiffs claimed injury was subject to collateral estoppel principles, the Court held the following: 7 Here, the issue is factual, whether the plaintiff fell over a tree stump. All of the information and records were before the Medical Board three times, the Board of Trustees twice, followed by review at Special term and this court in the prior action and proceeding. No rights were denied to the plaintiff. He was examined by the Medical Board twice and his attorney made detailed submissions to that Board and to the Board of Trustees. He was afforded every opportunity to be heard and he was heard. He also had and utilized the opportunity for judicial review. Thiswas sufficient for collateral estoppel Ashcraft Excavating Co. v. Clark, 79 AD2d 722) .... The single dispositive issue here is whether the plaintiff fell over the tree stump. Plaintiff having been afforded an opportunity to prove that fact, it has been found against him. He is not entitled to relitigate the same issue, albeit against a diffe~ent adversary. Id. at 419. The collateral estoppel principles discussed in the case at bar, have been well-established for decades. For example, in Hinchey v. Sellers, 7 N.Y.2d 287, 165 N.E.2d 156, 197 N.Y.S.2d 129 (1959), there was a discussion concerning the binding effect of a prior factual determination in a subsequent legal proceedings. This Court determined that once a party has been given an opportunity to be heard on an issue, that same party should not be given an opportunity to relitigate that same issue in a different forum in an attempt to achieve a different result. As this Court concluded, "[t]he doctrine of collateral estoppel 'is essentially a rule of justice and fairness', and the essence of the rule is 'that a question once tried out should not be relitigated between the same parties or their privies. '" Id. at 294 (citations omitted). See also D' Arata v. New York Central Mutual Fire 8 Insurance Co., 76 N.Y.2d 659,564 N.E.2d 634,563 N.Y.S.2d 24 (1990)(it is fair for the doctrine of collateral estoppel to preclude a plaintiff from relitigating factual issues that were previously presented in a different forum). It is well recognized that the doctrine of collateral· estoppel is applicable where the issue in current litigation is identical to a material issue decided in a prior proceeding, and a party precluded had a full and fair opportunity to litigate the issue that that proceeding. Ryan v. New York Telephone Co., 62 N.Y.2d 494, 500-01,467 N.E.2d 487,478 N.Y.S.2d 823 (1984); Matter of Abady, 22 A.D.3d 71,81,800 N.Y.S.2d 651 (1 st Dep't 1985). Similarly, it has been repeatedly . determined that decision of the Workers' Compensation Board, a quasi-judicial administrative agency, may be accorded preclusive effect. See Rigopolous v. American Museum of Natural History, 297 A.D.2d 728, 747 N.Y.S.2d 566 (2d Dep't 2002); Lee v. Jones, 230 A.D.2d 435, 659 N.Y.S.2d 549 (3d Dep't) Iv. denied 91 N.Y.2d 802, 689 N.E.2d 534, 666 N.Y.S.2d 564 (1997); Maresco v. Rozzi, 162 A.D.2d 534,556 N.Y.S.2d 731 (2d Dep't 1990). The preclusive effect accorded to determinations of the Workers' Compensation Board applies to determinations of specific evidentiary facts essential to the conclusion of the Board's determination. See generally Engel v. Calgon Corp., 114 A.D.2d 108, 111,498 N.Y.S.2d 877 (3d Dep't 1986) affd 69 N.Y.2d 753,505 N.E.2d 244, 512 N.Y.S.2d 801 (1987). Thus, where the issue 9 presented to the Workers' Compensation Board is the continuing disability of the claimant, an evidentiary determination that the claimant is no longer disabled is entitled to collateral estoppel effect since it is a fact that must necessarily be determined in the proceeding. For decades, this Court has held that factual determinations made by quasi- judicial bodies are entitled to collateral estoppel effect. See Ryan, 62 N.Y.2d at 500-01; Matter of Evans, 306 N.Y. 312, 323-24, 118 N.E.2d 452 (1954). It has also held on multiple occasions that collateral estoppel can be applied to Workers' Compensation proceedings. See Liss v. Trans Auto Systems, Inc., 68 N.Y.2d 15, 21,496 N.E2d 85.1,505 N.Y.S.2d 831 (1986); O'Connor v. Midiria, 55 N.Y.2d 538,541,435 N.E.2d 1070,450 N.Y.S.2d 455 (1982); Werner v. State, 53 N.Y.2d 346,353,424 N.E.2d 541, 441 N.Y.S.2d 654 (1981). There is no reason to alter that decades old rule in the case at bar. Of note, in Liss, this Court held that "any party to the hearing who had required notice and opportunity to be heard (Workers' Compensation Law § 25 [3][b]) will be precluded from relitigating issues necessarily decided by the administrative Judge." It is the understanding of amicus curiae that this general principle has.not been challenged in the case at bar, and should not be disturbed on reargument. 10 A factual determination made by an Administrative Law Judge that has been the subject of a full and fair opportunity for the Workers' Compensation claimant to be heard, should be binding on the Workers' Compensation claimant in all subsequent legal proceedings. This Court considered the collateral estoppel effect of the prior determination of the cause of a plaintiffs claimed injury in Clemens v. Apple, 65 N.Y.2d 746, 481 N.E.2d 560, 492 N.Y.S.2d 20 (1985). In Clemens, the plaintiff was involved in a motor vehicle accident and was receiving no-fault insurance benefits. Two years after the accident, the plaintiff underwent surgery for removal of a herniated disk condition. The no-fault insurance carrier denied the request to pay for the surgery, and the plaintiff pursued no-fault arbitration. The no-fault arbitration panel determined that the there was no evidence of a causal relationship between the herniated disc and the automobile accident. Thereafter, the plaintiff commenced a negligence suit and alleged that the surgery for the herniated disc was causally related to the automobile accident. This Court determined that the findings of the no-fault arbitration collaterally estopped the plaintiff from relitigating the causation of the alleged surgery for the herniated disk. As this court stated, "plaintiffs ... should have been aware of the possibility that the result of the arbitration would affect a pending court proceeding addressing, in part, the identical issue presented at the arbitration." Id. at 749. 11 F or decades, issues of the collateral estoppel and res judicata have been within the exclusive province of the judiciary. Municipalities that are self-insured, such as the County of Suffolk, have relied upon determinations of the judiciary in formulating its policies and procedures. If there are to be any alterations in the rules of the New York State Workers' Compensation Law concerning the preclusive effect of findings of the Workers' Compensation Board in subsequent proceedings, that statutory change remains vested with the duly elected legislative representatives in the State. Two legislative bills were proffered in direct response to this Court's initial determination in the case at bar. S5754, A7757. Both of these proposed bills seek to eliminate decades of precedent by noting that "determinations by the [workers' compensation] board as to cause of injury, degree of disability, lost earnings, need for future medical eare, andiorpermanency of injury shall not be given preclusive effect in any other forum, court or proceeding." Neither of these bills have been enacted into law. These unenacted bills have no application to the case at bar since they do not represent the public policy of the State of New York as enacted legislation does. This Court has consistently enforced its own precedent, as it should in the case at bar in the field of collateral estoppel on Workers' Compensation determinations. If there is to be a prospective change in the law, such a change 12 should be made by the legislature. See ELRAC, Inc. v. Masara, 96 N.Y.2d 847, 753 N.E.2d 855, 729 N.Y.S.2d 60 (2011). 13 CONCLUSION As demonstrated above, the order of the majority of this Court dated February 14,2013 properly reflects the application of collateral estoppel principles to the necessary factual findings of the Workers' Compensation Board. Therefore, upon reargument, it is respectfully submitted that this Honorable Court should reaffirm its February 14,2013 majority determination. DATED: Hauppauge, New York October 3,2013 Respectfully Submitted, DENNIS M. BROWN Suffolk County Attorney Attorney for Amicus Curiae, County of Suffolk 100 Veterans Memorial Highway Hauppauge, New York 11788 (631) 853-4049 BY: ______ -++-____ -r~~--7_- Assistant County Attorney 14 CERTIFICATION CHRISTOPHER A. JEFFREYS certifies that the following statements are true: The word processing program used in the production of the within brief is Microsoft Word which has determined that the within Brief of Amicus Curiae contains 2,663 words. The type font for the text of the brief is Times New Roman and the point size is 14 points. The type font for the footnotes is Times New Roman and the point size is 12 points. All text, except block quotations that are more than two lines are in double space type. Christop Assistant County A omey 15