Maria Auqui,, et al., Respondents,v.Seven Thirty One Limited Partnership, et al., Appellants.BriefN.Y.January 8, 2013New York County Index No. 100232/04 ~ourt of ~peal~ ~tate of .fiew ~ork __ ., __ MARIA AU QUI, as Guardian of the Property of JOSE VERDUGO, and MARIA VERDUGO, Plaintiffs-Respondents, -against- SEVEN THIRTY ONE LIMITED PARTNERSHIP, BOVIS LEND LEASING LMB, INC., and NORTH SIDE STRUCTURES, INC., Defendants-Appellants. BRIEF FOR AMICI CURIE REAL ESTATE BOARD OF NEW YORK, GENERAL CONTRACTORS ASSOCIATION OF NEW YORK, INC., ASSOCIATED GENERAL CONTRACTORS OF NEW YORK STATE, LLC, LONG ISLAND CONTRACTORS ASSOCIATION, INC., CONSTRUCTION INDUSTRY COUNCIL OF WESTCHESTER AND HUDSON VALLEY, INC., BUILDING CONTRACTORS ASSOCIATION OF WESTCHESTER AND MID-HUDSON, INC., CONSTRUCTION CONTRACTORS ASSOCIATION OF THE HUDSON VALLEY, INC., ALLIED BUILDING METAL INDUSTRIES, INC., BUILDING CONTRACTORS ASSOCIATION, INC., NEW YORK CITY DEMOLITION CONTRACTORS ASSOCIATION, INC. and INTERIOR DEMOLITION CONTRACTORS ASSOCIATIONS, INC. Of Counsel: Mark A. Rosen October 4, 2013 MCELROY, DEUTSCH, MULVANEY & CARPENTER, LLP 88 Pine Street New York, New York 10005 (212) 483-9490 TABLE OF CONTENTS STATEMENT OF INTEREST ........................................................................ . PRELIMINARY STATEMENT ..................................................... . QUESTION PRESEN"l.ED .............................................................................. . STATEMENT OF FACTS ........................................................... . /\RGU1\t1FN·r .......................................................................... . POINT ONE .......................................................................... . TliFJr.·Nl)IX....... .. . . .. .. . .... .. . . .. . . . . . . . . . . . . . . . . . . .. . . . . . . ....... .. . . . . . .. . . . . . . .... 25 ii TABLE OF AUTHORITIES Fcdenll Cases Parklanc I losicry Co. v Shore, 439U.S.322[l979]........................................................... 18 University of Tennessee v. Elliott, 478 u.s. 788 [ 1986]........................................................ ... 19 State Cases Auqui v. Seven Third One Ltd. Partnership, 3, 10 20 N.Y.3d 1035 [2013] ....................................................... . Harrinu.ton v. L.C. Whitford Co. Inc .. --~~~__._.._ ~=--:=;:..::..___:_~=.:;_::::__=~= 302 A.D.2d 645 [3d Dept. 2003]......................................... ... 10 Kaufman v. Eli Lilly and Co., 65 N.Y.2d 449 [1985j......................................................... 12 Liss v. Trans. Auto Sys., Inc., 68 N.Y.2d 15 [1986].......................................................... 10 Matter of F\'<:ms v. Monaghan, 306N.Y.312[1954].......................................................... 9 O'Connor v. MidiriaJ 55N.Y.2d538[1982]........................................................ 10 Ryan v. New York Telephone Co., 62 N.Y.2d 494 [1984]........... .... ....... ... ......................... ..... .. 20 Sillitti v. Liberty TraveL Inc., 83 A.D.3d 1169 [3d Dept. 2011].......................................... 10 \Verner v. State of New York, 53 N.Y.2d 346ll98lj ........................................................ 10, 19 iii Statutes CPLI{ 321 1........................................................................... .. 19 CPLf{3212.............................................................................. 19 \\i orkers Compensation Law § 123................................................. 19 IV STATEMENT OF INTEREST Amici, Real Estate Board of New York, General Contractors Association of Nev. '{ ork, Inc .. Associated General Contractors of New York State, LLC, Long Island Contractors Association, Inc., Construction Industry Council of Westchester and Hudson Valley, Inc., Building Contractors Association of Westchester and Mid-Hudson, Inc., Construction Contractors Association of the Hudson Valley, Inc., Allied Building Metal Industries, Inc., Building Contractors Association, Inc., Nevv' York City Demolition Contractors Association, Inc. and Interior Demolition Contractors Associations, Inc., arc trade associations representing companies and individuals involved in the real estate and construction industries. Collectively, their memberships comprise thousands of property owners, developers, landlords, architects, engineers, construction contractors and other industry professionals throughout New York State. In addition to providing a forum for industry collaboration, education, research and public aff~lirs, amici also ad\·ocate on behalf of their members in matters of labor relations, regulation, legislation and litigation. A more detailed description of the individual amici is contained in the Appendix. As crnployers, most of amici's members regularly purchase \vorkers' compensation insurance or participate in group self-insured trusts for the protection of their respective employees. Amici's members are also frequently named as defendants in personal injury lawsuits involving, inter alia, claims that arise out of workplace injuries. Alternatively. and sometimes additionally, amici's members are called upon to indemnify and/or provide additional insured coverage to municipalities and other owners/developers who are sued by injured workers. As a consequence, amici's members routinely find themselves either directly or indirectly defending against claims in lawsuits for future damages (including lost earnings and medical expenses) by plaintiffs alleging permanent disability while contemporaneously addressing the identical claims in companion workers' compensation proceedings. Clearly, the rights and obligations, both legal and financiaL of amici's members are directly affected by this Court's pnor determination of Defendants-Appellants' ("Defendants") appeal in this matter and this Court's forthcoming determination on reargument. Amici submit this brief urging this Court to adhere to its Memorandum Decision und Order dated February 14. :2013 (the "February 14, 2013 Decision"). Amici find it necessary to highlight that there was no misapprehension of any relevant facts or misapplication of the controlling law by this Court in reaching the prior determination. Amici also find it necessary to address the fundamentally unfair and unduly prejudicial impact a reversal would have on its members in pending and future litigation, the dangerous and unintended precedent reversal would likely establish and to address the unsubstantiated policy arguments and hypothetical concerns raised in the reargument motion submitted by Plaintiffs and the briefs submitted by other amici in support of Plaintiffs' motion. PRELIMINARY STATE!\1ENT Atnici submit this brief in opposition to the motion submitted by Plaintiffs for reargument of this Court's February 14, 2013 Decision so as to reinstate the Decision of the Appellate Division, First Department, dated April 15, 2011. The February 14, 2013 Decision correctly held that Plaintiffs are precluded from litigating the issue of the duration of Mr. Verdugo's alleged ongoing disability, based on the prior, necessary factual determination by the New York State Workers' Compensation Board (WCB) that Mr. Verdugo's accident-related disability and need for corresponding medical treatment ended on January 24, 2006; a determination which Plaintiffs had a full and fair opportunity to (and did in fact albeit. unsuccessfully) contest. Partnership, 20 N.Y.3d 1035 [2013]. See Auqui~v_. _)even Thirtv One Ltd. Respectfully, there is no basis tor reargument, let alone for disturbing this Court's prior determination, as there \Vas no misapprehension or tact or misapplication of law underlying the February 14, 20 I 3 Decision. This Court did not break new ground, but simply applied long-standing and well-established rules regarding the application of the collateral estoppel doctrine to a determination 3 by the \VCB which addressed the degree and duration of a claimant's alleged disability. Not only is reversal ofthe February 14, 2013 Decision unwarranted based on the application of clear-cut legal principles to the facts of this case, but same would be fundamentally unfair and unduly prejudicial to Defendants and similarly situated defendants as it would undermine the very principles and rationale of fairness and efficiency that underpin the doctrine of collateral estoppel. Indeed, disturbing the prior Decision on reargument would be the first step down a slippery slope that would likely establish dangerous and unintended precedent which could be used to nullify the collateral estoppel effect of all determinations by the WCB and perhaps, all other quasi-judicial administrative agencies as well. Plaintiffs and the other amici supporting Plaintiffs' motion provide no foundation for the policy arguments and hypothetical concerns they now raise in support of their request for reargument; nor is Plaintiffs' motion the appropriate vehicle for addressing these issues. Rather, the argument of the Plaintitfs' supporting amici, while ostensibly cloaked in concepts of disparate and adverse economic impact, violations of due process and general inequity, are really about litigation strategy and tactics, or more precisely, avoiding the consequences of adverse factual findings in the workers' compensation forum so as to maximize the best possible damages a\\ ard in tort litigation. This Court is respectfully urged to 4 recognize the Plaintiffs' reargument motion and the suppmting amici briefs for what the\ trulv are - - a concerted effort to alter the law of collateral estoppel to carve out the right of injured workers to proceed on two separate tracks while retaining the right to prove the very same claims with no fear that the outcome in one forum might impact the other. QUESTION PRESENTED Did the Court of Appeals correctly apply long-standing and well-established rules regarding the collateral estoppel ef!h:t in related lawsuits of determinations by quasi-judicial administrative agencies such as WCB, in holding that Plaintiffs are precluded from rclitigating the issue of Mr. Verdugo's alleged ongoing accident-related disability beyond January 24, 2006 given the prior, necessary factual determination by the WCB that Mr. Verdugo's disability and need for medical treatment ended on January 24, 2006. where Plaintiffs had a full and fair opportunity to participate in and contest the WCB's determination? It is respectfully submitted that this question must be answered if the affirmative. STATEMENT OF FACTS In the interests of brevity and economy, amici hereby adopt and incorporate by reference the Statement of Facts from Defendants' Brief filed in this Court on April 26, 2012 and the Court's recitation of the facts as stated in the February 14. 2013 Decision, '"'ith the exception highlighted in Defendants' motion to reargue. Brieily, Plaintiff Jose Verdugo, a restaurant deliveryman, alleges that he was injured on December 24, 2003 when he was struck by a sheet of plywood that fell from a building under construction. Mr. Verdugo tiled a claim and was awarded workers' compensation benefits for head, neck and back injuries, as well as for post-traumatic stress disorder and depression. In 2004, Mr. Verdugo commenced the underlying action seeking the recovery of money damages (including compensation for lost earnings and medical expenses) for bodily injuries allegedly sustained in the accident. In December of 2005, the insurance can1er for Mr. Verdugo's employer moved before the WCB to discontinue the workers' compensation benefits on the ground that Mr. Verdugo was no longer disabled as a result of the accident. In a June 30. 2006 decision, a WCB administrative law judge (ALl) determined that Mr. Verdugo no longer suffered any disability and required no future medical treatment as of January 24, 2006. His benefits were therefore terminated. PlaintitTs appealed that decision to a full panel of the WCB. On February l. 2007, the \VCB affirmed the determination that Mr. Verdugo's disability ended as of January 24, 2006. Mr. Verdugo, \vho was represented by counsel, fully participated in the proceedings before the ALJ and WCB by submitting medical evidence and expert 6 tcstimon\ in his favor and by cross-examining the exj!crts hired by the employer's . . msurancc earner. In light of the determination by the WCB, Defendants moved in this action to preclude Plaintiffs from n.:litigating the issue of Mr. Verdugo's alleged ongoing accident-related disability on the grounds that the identical issue had already been fully litigated and decided in the workers' compensation proceedings where Plaintiffs had a full and fair opportunity to participate in and contest the prior determination. The Supreme Court granted Defendants' motion, and then upon granting Plaintiffs leave to reargue and renew, adhered to its prior determination. The Appellate Division, First, Department later reversed. This Court's February 14, 2013 Decision re\ersed the Appellate Division and reinstated the Supreme Court's determination. 7 ARGlJMENT POINT ONE THERE WAS NO MISAPPREHENSION OF FACT OR MISAPPLICATION LA \VAS THIS COURT APPLIED LONG-STANDING AND \YELL- ESTABLISHED RULES REGARDING THE COLLATERAL ESTOPPEL EFFECT OF FACTUAL DETERl\1INATIONS BY THE WCB AND CORRECTLY HELD THAT PLAINTIFFS ARE PRECLUDED FROM RELITIGATING THE ISSUE OF AN ONGOING DISABILITY There is no basis for vacating this Court's February 14, 2013 Decision, as the same involved the simple application of existing law to the pertinent facts without misapprehension or mistake. Nor did this Court do anything out of the ordinary. Rather, it merely applied the doctrine of collateral estoppel to factual determinations by quasi-judicial administrative agencies as it has consistently done in the past. There were no noted issues of first impression. The Court did not create new law, depart from precedent, enunciate new or different standards or do anything else that would warrant the alleged concerns of, or justify the level of scrutiny now being advanced by, Plaintiffs and the other amici supporting the Plaintiff.,. This Court only reinforced the well-rooted principle that factual determinations in an administrative proceeding (in this case, by the WCB regarding the degree and duration of an injured worker's alleged disability) may have a collateral estoppel effect on damages issues in related litigation, provided the issues can be characterized as "identical". The Decision did not alter the framework of workers' compensation claims or tort litigation. Injured workers are 8 still able to prosecute claims for workers' compensation benefits and litigate their tort claims against potentially liable parties. Frankly, the notion advanced by Plaintiffs - - that they should not be bound in this lawsuit by an adverse ruling in their workers· compensation case (or stated another way, that they should be entitled to two bites of the apple), is unabashedly and inherently unreasonable. The workers· compensation system is already weighted heavily in f~wor of the injured worker. If such worker attempts to prove an ongoing disability in that forum (being afforded the opportunity to introduce evidence and even medical testimony) hut fails, why should he be permitted to advance the same claim in his corresponding lawsuit? There is no valid justification for such a proposition. In reaching its Decision, this Court relied upon long-standing and well- established law regarding the collateral estoppel effect of factual determinations by quasi-judicial administrative agencies, such as the WCB, in subsequent litigation. Since at least the 1950s. this Court has recognized that factual determinations made by quasi-judicial administrative agencies are entitled to collateral estoppel effect in subsequent civil proceedings, where the identical issue sought to be precluded was necessarily decided in an earlier proceeding and the party opposing preclusion had a full and fair opportunity to contest the prior determination. See Matter of Evans v. Monaghan, 306 N.Y. 312 [1954]. This is in keeping with the holdings of both federal and other state courts throughout the 9 country. Sc>e, e.g., University of Tennessee v. Elliott, 478 U.S. 788 [1986]. Indeed, on multiple prior occasions, this CoUJi expressly acknowledged that the WCB is a quasi-judicial administrative agency whose factual determinations are entitled to collateral estoppel effect. s·ee Liss v. Trans. Auto Svs .. Inc., 68 N.Y.2d 15 [1986]; O'Connorv. Midiria, 55 N.Y.2d 538 [1982]; Wernerv. State ofNew York. 53 N.Y.2d 346 [1981]. The Courts of this State have also held, on numerous occasions, that the degree and duration of a workers' compensation claimant's disability is a factual issue for the WCB to resolve along with the resolution of any conflicting evidence in connection with that issue. See Sillitti v. Liberty Travel, Inc., 83 A.D.3d 1169, 1171 [3d Dept. 2011]; Harrington v. L.C. Whitford Co. Inc .. 302 /\.D.2d 645, 64 7 [3d Dept. 2003]. This Court correctly applied the aforementioned law to the facts of this case, holding that "[t]he issue of continuing benefits before the [WCB] necessarily turned upon \\hether Jose Verdugo had an ongoing disability after a certain date, which is a question of fact, as distinguished from a legal conclusion and a conclusion of mixed law and fact". t\tt_qui, 20 N.Y.3d at 581. It also properly determined that the identical factual issue - Mr. Verdugo's ongoing disability - would be presented to a jury in the context of his damages claim in the lawsuit. !d. Finally, the Court was presented with evidence that Plaintiffs had a full and fair opportunity to be heard on, submit evidence against and to contest the issue in the 10 workers' compensation proceedings, and that the ALJ and WCB carefully evaluated the medical evidence and assessed the credibility of the testimony that was presented. This Court noted that, "Plaintiff was represented by counsel, submitted medical reports, presented expert testimony, and cross examined the defendants' experts regarding the issue of whether or not there was an ongoing disability". !d. Based on the foregoing, the Decision holding that the WCB's determination must be given preclusive effect was sound and proper. Contrary to what Plaintiffs argue. there is absolutely no legal basis Cor reargument or for disturbing this Court's prior determination. POINT TWO REVERSAL OF THIS COURT'S FEBRUARY 14,2103 DECISION WOULD BE FUNDAI\1ENTALLY UNFAIR AND UNDULY PRE.JUDICIAL TO DEFENDANTS AND SIMILARLY SITUATED DEFENDANTS AND \VOULD LIKELY ESTABLISH DANGEROUS PRECEDENT Inasmuch as the February 14, 2013 Decision is well-supp011ed by the law and the facts, reversal on the grounds suggested by Plaintiffs and the other amici supporting the Plaintiff" \vould be fundamentally unfair and result in undue prejudice to Defendants and similarly situated defendants including amici's members. Reversal vvould completely undermine the principles and rationale underlying the collateral estoppel doctrine which is a body of law deep rooted in concepts of fairness and efficiency. The doctrine is designed to promote f~nality; II promote certainty by avoiding inconsistent factual findings; consen e judicial and litigant n:sources by avoiding the re-litigation of issues of fact that have already been actually litigated and determined on their merits; and to protect litigants from the inequity of having to continually prosecute or defend an issue, especially an issue that has already been decided in their favor. See Kaufman v. Eli Lilly and £;'o., 65 N. Y .2cl 449 (1985). Here, Plaintiff Jose Verdugo submitted a claim for workers' compensation benefits alleging that he was permanently disabled due to a work-related injury and was subsequently awarded wage benefits and compensation for medical expenses. He also commenced a tort action against Defendants setting forth the exact same allegation (that he was rendered permanently disabled) in the context of his claim for damages and fw1her alleging that he should be compensated for future lost earnings and medical expenses due to his permanent disability. The ALJ and \VCB determined that Plaintiff was not disabled after January 24, 2006. This was a purely factual detennination based on a careful evaluation of the medical evidence and an assessment of the credibility of the testimony that was presented. Plaintiffs had a full and fair opportunity to contest those determinations. ·rhere is no valid reason why Plaintiffs should be allowed to re-litigate the same question in this tort action when the WCB has already found the assertion of an ongoing disability beyond January 24, 2006 to be without merit. Defendants are 12 justified in relying upon that determination, not only because the issue was determined against Plaintiffs, but because it was determined by a competent body that was well-qualified to evaluate the medical evidence. Plaintiffs were voluntary participants in the workers' compensation proceeding. They hired counsel of their choosing and were afforded every opportunity to prove their claims. Unfortunately, they failed to prove an ongoing, continuous disability and then balked at the notion that this failure might have a more global application. Respectfully, a reversal of the February 14, 2013 Decision (as the Plaintiffs now urge) would operate to afford Plaintiffs and those similarly situated with an undeserved "second bite of the apple" by permitting a de novo litigation of an already-defeated claim. Reversal would also frustrate the concept of finality by allowing Plaintiffs' mcritless claim of an ongoing disability to conti nuc in a eli fferent forum. Aclditionallv, reversal would create a vcrv real threat of inconsistent factual ~ . determinations in that Plaintiffs would be sanctioned in their endeavor to prove to a jury what a sophisticated ALJ has already found to be untrue. It should be noted that Plaintiffs and the supporting amici dedicate portions of their briefs to erroneously arguing that this Court's prior determination serves to undermine one of the tort system's fundamental concepts - that is - making an injured person whole by compensating him or her with an amount of money equal to the losses suffered. However, contrary to what has been suggested by Plaintiffs and other amici, it is reversal of_ and not adherence to, the prior determination that would violate this basic concept. Indeed, the issue here is not the extent to which Mr. Verdugo is entitled to money damages but rather, the period over where those damages can be awarded. It makes no sense to argue that an injured person is denied the opportunity to be made whole in the eyes of the law if he is not permitted to recover damages beyond the point \Vhere he was no longer disabled. Respectfully, if Mr. Verdugo and similarly situated plaintiffs are able to obtain damages awards from juries for ongoing disabilities where said disabilities were already found to have ended, that would represent a windfall and pervert the stated purpose behind our tort system. Forcing Defendants and similarly situated defendants to compensate injured plaintiffs beyond the date the disabilitv was found to have ended is fundamentally unLlir. Reversal is also a slippery slope for the judiciary and would likely establish dangerous and unintended precedent. As discussed in greater detail below, .._ Plaintiffs and the supporting amici take issue with assigning preclusive effect to the WCB's determination for a number of reasons including the different evidentiary standard between workers' compensation proceedings and jury trials and certain hypothetical social and economic concerns (for which they provide no substantiation). Although not explicitly stated in their respective motion and !4 briefs, Plaintiffs and the supporting amici are essentially asking this Court to carve out a wholesale exception from the collateral estoppel doctrine for determinations made in workers' compensation proceedings. If this Court adopts that position, however, and provides an exception for WCB determinations, it would be in direct conflict with decades of precedent already holding that collateral estoppel applies to determinations by quasi-judicial administrative agencies, generally, and to necessary 1~1ctual determinations by the \VCB, specifically. The unintended consequence of such a ruling would be to establish a framework that would allow and encourage dissatisfied claimants in all administrative agency quasi-judicial proceedings (who are also litigants in related litigation involving identical issues) to argue that similar exceptions apply where a quasi-judicial administrative agency has issued a factual determination that is adverse to their position in the other litigation. This would effectively nullif~,c the doctrine of collateral estoppel regarding f~1ctual determinations by all quasi-judicial administrative bodies. Clearly, this is not precedent that this Court should establish. The "legal" consequence of this Court's prior determination is that Plaintiffs here \\ill be rightfully precluded from litigating the issue of an alleged ongoing disability based on the fact that the WCB has already found the disability to have ended almost eight years ago. The consequence of this CoUJi's prior determination is to limit the recovery of damages by Plaintiffs to the period during which the l :i disability was found to exist. Given that such limitation impacts the "value" ofthe claim, it comes as no surprise that an inordinate number of politically motivated and financially self-interested amici have submitted briefs raising unfounded policy concerns to exert pressure on what they perceive to be a sympathetic Court to reverse itself. Because this Court's February 14, 2013 Decision correctly applied clear cut, straightforward law to the facts of this case, there is no legal or factual basis to disturb that determination. POINT THREE THE HYPOTHETICAL CONCERNS RAISED BY PLAINTIFFS AND OTHER AMICI HAVE NO FOUNDATION NOR IS THE PLAINTIFFS' MOTION THE APPROPRIATE VEHICLE TO ADDRESS THESE ISSUES Policy arguments may sometimes be useful in deciding a case when there are multiple. plausible interpretations of the law. Here, however, there are no multiple, plausible interpretations. The law regarding the collateral estoppel effect of factual determinations by quasi-judicial administrative agencies (such as WCB) is clear cut and straightforward. Nevertheless, Plaintiffs and the supporting amici urge this Court to consider and comport with certain social and economic policy arguments and hypothetical concerns in determining the outcome of this otherwise very "vanilla" appeal. Setting aside the fact that these pol icy arguments were never raised in the motion practice before the Supreme Court or in the appellate practice before the Appellate Division, r:irst Department, the positions advocated 16 by Plaintiffs and the supporting amici are completely unfounded. Furthermore, a motion to reargue before the Court of Appeals is not the appropriate vehicle in which to raise such issues. Indeed, the contentions set forth by Plaintiffs and the supporting amici, while rife with hyperbole and couched in terms of avoiding supposed disparate economic impact, due process violations and general legal inequity, are really about I itigation strategy and tactics, or more precisely, avoiding the consequences of adverse f~lctual findings and securing the best possible damages mvard even if it is not supported by the evidence. A. The Arguments Regarding the Supposed Disparate and Adverse Economic Impact of the Decision arc Speculative and Unsubstantiated and Better Addressed by the Legislature. Plainti fTs and the supporting amici contend that this Court's February 14, 20 J 3 Decision would result in disparate and adverse economic impact on injured workers. especially workers who arc members of certain socio-economic groups. Additionally, they contend that these injured workers will now be forced to "opt out" of workers' compensation in order to give themselves a better likelihood of success or a better result in their tort litigation, thus supposedly resulting in inordinate strain on the health and social welfare systems while injured workers wait for the litigation to resolve. These contentions are completely unfounded and fairly outrageous. Indeed, to suggest that an injured worker must choose between workers' compensation benefits and tort damages rather than be bound by the factual determinations made in the workers' compensation forum is absurd on its face. Plaintiffs and the supporting amici offer no empirical data or results of recognized, competent studies to support their nom1ative, economic and corrective justice arguments or qualitative reasoning. Furthermore, this is an improper forum to raise these concerns. A change in the law regarding the application of such a long-standing and well-established doctrine of applying collateral estoppel to determinations by quasi-judicial administrative agencies, based on concerns such as those raised by Plainti fTs and other amici, should be made by the Legislature and not the Court. Respectfully, the Legislature is the institutional body better suited to investigate and gather information about and evaluate the legitimacy and merit of these concerns and further legislate in this area if appropriate and necessary. B. The Decision Does Not Deprive Plaintiffs and Similarly Situated Plaintiffs of their Constitutional Right to Trial by Jury. The Courts, including the United States Supreme Court, have already held that the collateral estoppel doctrine does not violate the constitutional right to trial by jury simply because it removes an issue of t:act from jury consideration See, e.g., Parklane Hosiery Co. v Shore, 439 U.S. 322 [ 1979]. In fact, the procedural law of this State routinely removes Issues from jury consideration during 18 litigation. For example, a successful motion for summary judgment pursuant to CPLR 3212 or motions to dismiss pursuant to CPLR 3211, routinely remove factual issues from jury consideration in favor of an immediate judicial determination and have never been held to violate the right to trial by jury. The argument raised by the Plaintiffs and supporting amici on this issue is dramatic but entirely unfounded. C. The WCB's Determination is Final. Plaintiffs' and other amici's arguments that the WCB determination lacks finality because the WCB may change or modify its determination, even after the tort litigation is concluded is incorrect and a classic "red betTing." In Werner, supra, this Court held that unless and until the \VCB exercises its powers under Workers Compensation Law § 123 to re-open a case and change or modify a prior determination, ''its decision is final and conclusive" and "stands as a bar" to relitigating the same issues in a different forum. See Werner, 53 N.Y.2d at 354. D. The Arguments Regarding the Purported Inequity of the Workers' Compensation System are Completely Unfounded. Rather incredibly, Plaintiffs and the supporting amici attempt to paint the picture of a workers' compensation system which is designed and implemented to disadvantage injured workers. However, nothing could be turther from the truth. Contrary to what has been suggested, the workers' compensation system in this ]l) State provides immediate and meaningful wage replacement and unlimited medical benefits to employees injured in the course of employment, regardless of fault. The system obviates the need for injured employees to sue their employers in tort and removes from the injured v,rorker the burden of having to litigate or negotiate his entitlement to benef~ts. It also removes the uncertainty of litigation which might leave the \Yorker with absolutely no recmTry (compare the no-fault- based workers' compensation model with fault-based tort litigation). Plaintiffs' and the supporting amici's contentions regarding the supposed due process violations and general inequity derived rrom the fact that workers' compensation proceedings employ procedures and evidentiary standards different than a conventional jury trial are without merit. The application of collateral estoppel to a determination by a quasi-judicial administrative agency does not require that the agency proceeding employ the exact same procedures and evidentiary standards as a jury trial. All that is required is that the agency's proceeding be "substantially similar" to a trial. See Rvan v. New YorkTelcphone Co., 62 N. Y.2cl 494 fl984] [" ... it should be made clear that the doctrines of res judicata and collateral estoppel are applicable to give conclusive elTect to the quasi-judicial determinations of administrative agencies ... when rendered pursuant to the adjudicatory authority of an agency to 20 decide cases brought before its tribunals employing procedures substantially similar to those used in a court of lmv''](internal citations omitted). The workers' compensation proceeding is substantially similar to a trial and the workers' compensation system contains adequate safeguards to ensure the proper adjudication of claims. In these proceedings, claimants are entitled to submit medical evidence and provide testimony by their physicians. They are also permitted to challenge through cross-examination the evidence and testimony submitted in opposition. ALJs make determinations based on the totality of the evidence submitted. Workers may appeal an ALJ decision to a three judge panel of the WCB, who may affirm, modify or rescind the ALJ's decision or restore the case to the ALJ for further development of the record. In the event the panel is not unanimous, any interested party may make application in writing for a full Board review. Injured vvorkers may also appeal Board panel decisions to the Appellate Division. whose decision, in turn, may be appealed to the Court of Appeals. Clearly, there are substantial procedural similarities between workers' compensation proceedings and lawsuits. Plaintiffs' argument to the contrary is unfounded. 21 CONCLUSION It is respectfully submitted that this Court should adhere to its original determination as set forth in its February 14, 2013 Decision. In its Decision, the Court correctly concluded that Plaintiffs are precluded from litigating the issue of the duration of Jose Verdugo's alleged ongoing disability in the underlying lawsuit based on the prior factual determination by the WCB that his disability and need for medical treatment ended on January 24, 2006, a determination which Plaintiffs had a full and fair opportunity to contest. This Court's Decision was not the result of the misapprehension of any of the L1ctual issues in the record. Moreover, the reasoning behind the Court's determination was consistent \Vith longstanding legal precedent, and there was no misapplication of the law. As such, there is no valid legal justification for a reversal of the Decision on the instant application tor reargument. In the absence of anv cognizable leu_al rationale for reversal. the amici herein ~ ~ ~· . urge the Court to refrain hom succumbing to the purported public policy justifications for upsetting the Decision as urged by the Plaintiffs and their supporting amici. As set forth above. these policy arguments are nothing more than a thinly veiled attempt to further the goals of certain special interests that stand to benefit from carving out the right of a personal injury litigant to avoid adverse decisions by the \VCB that may potentially reduce the amount of any jury 22 award in a concurrent bodily injury suit. The amici herein represent the interests of companies and individuals who serve a !~tr broader spectrum of residents of New York State. Indeed, as set forth above, amici's members are comprised of thousands of property owners, developers, landlords, architects, engineers and construction contractors. These industry professionals build and manage the prope11ies that house the State's residents; employ thousands of our State's workers; and help to serve the State and its various municipalities in the construction and maintenance of vital inhastructure. a function that touches the lives of nearly every resident of the State. In view of the foregoing, amici respectfully urge the Court on re-argument to affirm its previous Decision as there are no legitimate legal or public policy justifications for reversal. Dated: New York, New York October 4, 2013 Respectfully submitted, MCELROY, DUJTSCI I, MULVANEY & CARPENTER, LLP 1. .. . . I 'I ) }Ill(. tA. Ld~'' 4!L '. ~7.~,~-------------- By: Mark A. Rosen 88 Pine Street New York, New York 10005 (212) 483-9490 Counsel f(H amici: Real Estate Board ofNew York, General Contractors Association (dNew York, Inc., Associated General Contractors ofNc.,v York State, LLC, Long island Contractors As:wciation, Inc., Construction industry Council of Westchester and Hudson Valley, inc., Building Contractors Association of Westchester and Mid-Hudson, Inc., Construction Contractors Association o('the Hudson Valley, inc .. Allied Building Metal industries, Inc., Building Contractors Association, inc., New York City Demolition Contractors Association Inc. and Interior Demolition Contractors Associations. Inc. APPENI>IX Real Estate Board of New York (IZEBNY) was created in 1896 as the State's first real estate trade association. Its membership consists of over 13,000 owners, builders, brokers, managers, banks, insurance companies. pension funds, real estate investment trusts, utilities, attorneys, architects, marketing professionals and many other individuals and institutions invohed in realty. REBNY works on behalf of its members to promote public and industry policies and frequently speaks before government bodies to, among other things, expand New York's economy, encourage the development and renovation of commercial and residential real property, enhance the City's appeal to investors and residents and facilitate property management. General Contractors Association of New York, Inc. (GCA) is a trade association formed in 1909. GCA negotiates and interprets collective bargaining agreements; provides in formation about Labor Law, manning requirements, union jurisdictions and contract compliance requirements; guides members in ensuring compliance with federal, state and municipal laws and regulations; assists members in resolving their bidding and contracting concerns \vith government agencies and private owners; advances fair policies for members by local, state and federal government; advocates for increased infrastructure investment in federal, state and city budgets: promotes the role of the heavy construction industrv in New York 25 State and New York City's economic development; and provides the latest news and most recent developments on capital funding projects that \viii impact the industrv ' -' Associated General Contractors of New York State, LLC (AGCNYS), founded approximately 80 years ago, is a trade association and is the New York State Chapter of the Associated General Contractors of America. AGCNYS represents approximately 250 general contractors and construction managers as well as 85 subcontractors and 300 associate members conducting business throughout the State. AGCNYS' members are responsible for performing the majority of the State's private and public sector contracts for the construction, deconstruction, and abatement of highways, bridges, and buildings, including highrises, heavy industrial sites, and municipal utility facilities. AGCNYS is the principal state\vide construction industry spokesman on economic development issues in 'le'vv York. On behalf or its members, AGCNYS undertakes activities encompassmg government representation, legal advocacy. education, safety, workforce development and training related to the construction industry. Long Island Contractors Association, Inc. (LICA) was formed in the 1920s as the Nassau-Suffolk Sand and Gravel Association. LICA represents the interests of over 100 of Long Island's premier heavy construction general contractors, subcontractors, suppliers and industry supporters. Focused primarily in the infrastructure construction industry, such as highways, bridges, sewers, other public \Vorks and private site development, LICA's member companies play a signi tic ant role in sustaining the economy of Nassau and Suffolk Counties. Construction Industry Council of Westchester and Hudson Valley, Inc. (CIC) is a professional trade organization of construction contractors and suppliers. Organized in 1978, ClC represents more than 500 businesses specializing in heavy, highway, utility and site construction and building material supply in Westchester, Putnam, Dutchess, Columbia, Ulster, Orange and Sullivan counties. CIC members employ over 20,000 workers at peak seasonal periods. CIC is a collective bargaining agent for industry employers negotiating and administering trade labor agreements. CIC also provides industry perspective for local, state and national funding for public infrastructure improvements and private development. Building Contractors Association or \Vestchester and Mid-I-Judson, Inc. (BCA) is a professional trade organization of general building contractors and sub- contractors. Organized in 193 7 as the Building Trades Employers Association of \Vestchester and Putnam Counties, Inc. and affiliated with CIC since 2001, BCA no\v represents over 600 firms im oh cd in construction in the Yonkers, Mt. Vernon, New Rochelle, White Plains and Peekskill areas. BCA's members employ approximately 10,000 workers. BCA is a collective bargaining agent for industry employers negotiating and administering trade labor agreements. BCA also provides industry perspective for locaL state and national funding for public infrastructure improvements and private development. Construction Contractors Association of the Hudson Valley. Inc. (CCA), founded in 1957, is a trade association of commercial and industrial building contractors and construction support services in Delaware, Dutchess, Orange, Ulster, Rockland, Putnam, Sullivan, Columbia and Greene counties. CCA is dedicated to the advancement of the construction industry in the Hudson Valley Region. Over the last five decades, CC/\ members have played a leading role in every major construction project in I Iudson Valley. In working closely with owners and developers, local labor, municipalities, and governmental agencies, the CCA seeks to promote the continued orderly development of the Hudson Valley by encouraging a business-friendly environment. CCA works to strengthen the ability of each member to be successful in a highly competitive field. Allied Building Metal Industries, Inc. (ABMI), formed in 1922, is a trade association consisting of the New York City metropolitan area's leading contractors engaged in, among other things, the fabrication and erection of structural steeL architectural, ornamental and miscellaneous metal products used in both building and heavy construction projects. On behalf of its members, Allied takes an active role in collective bargaining, labor matters initiated by various governmental agencies such as the Department of Labor, the National Labor Relations Board. the New York City Comptroller's office and in actively representing the steel industry's positions before governmental agencies as well as industry leaders to provide a single voice for professional and trade issues. Building Contractors Association, Inc. (BCA), which originated in 1933, consists of approximately 170 construction companies. The projects these contractors perfom1 encompass every aspect of the construction process, in both the public and private sectors, including high-rise office buildings. residential structures, hospitals and schools. In addition, BCA members have extensive experience in the fields of restoration, renovation, alteration and tenant changes. New York City Demolition Contractors Association, Inc. (NYCDCA) was formed in 1978. The association, which has approximately 10 members, represents nearly every major unionized demolition contractor performing work in Nevv York City. The largest demo! it ion projects throughout Ne\V York City have been performed by the association's members. The association's mission is to promote the interests of the demolition industry, negotiate on behalf of its members and help its clients ensure the performance of safe, on-schedule jobs throughout the City. The Interior Demolition Contractors Association, Inc. (IDCA) was formed in 1997. The association, which has approximately 20 members, represents nearly every major union interior demolition contractor in New York City. The 29 association's members have performed interior demolition work for and inside some or the most prestigious buildings in l'\ew York City. The association's mission is to promote the interests or the demolition industry, negotiate on hehalf of its members and help its clients ensure the performance of safe, on-schedule jobs throughout the City. 30