LEGISLATIVE REVIEW COMMITTEE
UPDATE
May, 2003
J. David Eldridge, Esq. & Matthew E. Pachman, Esq., Co-Chairs
(A02106) Sponsor: Budget Bill
Same as: (S1406-B)
The bill so many have waited so long for, has been passed by both chambers of the State Legislature and (based upon its similarities to the Governor's version) will likely be signed by Pataki (as of this writing it had not yet been approved by the Governor). Here's what you can expect:
• Rates for court-appointed attorneys are to be increased to $75 per hour for all cases, including appellate work, excluding misdemeanors and lesser offenses (which will be $60 per hour) for all work performed (in-court time and time "reasonably" expended out of court - except for appellate counsel whose out-of-court fee is limited to $40 per hour), including reimbursement for expenses "reasonably" incurred.
• Just a few examples of how you and your clients are going to be paying for this increase:
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1 Note that CPLR §2104 (Stipulations) is amended to specifically require any Stipulation of Settlement in an action be filed with the County Clerk - by the DEFENDANT; CPLR §3217 (Voluntary Discontinuance) is amended to require "all notices, stipulations, or certificates" under this section be filed with the County Clerk - by the DEFENDANT.
(Be careful what you ask for!)
The following Bills are pending in either the Assembly (A) or the Senate (S):
(A 00135) Sponsor: Morelle
Status: referred to Labor
PURPOSE OF BILL :
Establishes a safety program for the prevention of gravity related accidents at construction sites. It also provides that a recalcitrant worker who completed the safety course for gravity related accidents would not be relieved of their own culpable conduct in a work site related accident.
SUMMARY:
Amends Labor Law Sections 240 and 241; requires the Commissioner of Labor to develop a safety program on the prevention of gravity-related accidents at construction sites. It provides that a person injured on a job site covered by Labor Law Sections 240-241, who has completed a safety course on gravity related accidents shall not be relieved of their culpable conduct, which relates to commission of a criminal act or use of drugs or alcohol, failure to use safety devices furnished at the job site, or failure to comply with employer instructions regarding the use of safety devices at the job site. This measure also expands the current exemption for owners of one and two family dwellings to include owners of three to six family dwellings who reside on the premises and contract for but do not direct or control the work.
JUSTIFICATION:
Amendments are based upon the Legislature's perception that "the construction industry is currently facing a liability insurance crisis" (e.g., contractors are receiving insurance cancellation notices; insurance carriers are citing the high costs associated with the absolute liability of the so-called "safe place to work law", etc.). In response, this bill recognizes the need to provide safety training for workers engaged in work covered by Labor Law Sections 240-241. The Commissioner of Labor is required to develop a safety program on the prevention of gravity related accidents at construction sites, which would enable employers to make this course available to their workers on a non-mandatory basis. This proposal provides that in the case of a worker who has completed the safety course if that worker has engaged in prescribed recalcitrant conduct, such as use of drugs or alcohol, the worker would not be relieved of their culpable conduct. This proposal does not take away the right of the worker to sue. Rather it makes a recalcitrant worker, who has completed a safety course, responsible for their own culpable conduct. This purportedly promotes workplace safety by not only encouraging safety training for workers, but also by encouraging workers to take responsibility for their own safety. There are conflicting court cases on the application of recalcitrant worker liability, and this bill is an attempt to establish a uniform standard for such liability.
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(3) An act to amend the Civil Rights Law in relation to the privacy of public records sought in connection with purposes other than for which they exist
(A06230) Sponsor: Sanders
Status: referred to Governmental Operations
PURPOSE OF BILL:
This bill is a (poor) attempt to protect members of the public and crime victims by limiting disclosure of records with personal information when they are sought for purposes other than the purpose for which they exist. The bill is purportedly designed to address the problem of inmates and others securing personally identifiable information, thereby allowing them the opportunity to harass, intimidate or pester "innocent" New Yorkers.
SUMMARY:
The bill amends the civil rights law to provide that notwithstanding any other law, where a record contains personal information, an agency in receipt of a request for that record shall reject the request if the agency determines that the record sought would, if disclosed, be used for a purpose unrelated to any of the purposes for which the agency maintains the record. This restriction shall not be construed to prohibit disclosure of records when the agency determines that the request was made by: public officers and employees seeking access to records pursuant to their duties; attorneys of parties involved in civil or criminal litigation to which the record being sought relates; professional journalists where the request relates to news gathering or investigation; or a person requesting a record to ensure accountability of government or that laws and regulations are being observed.
A person may challenge an agency determination by commencing an article 78 proceeding (nothing new there). Any person aggrieved by the improper disclosure of an agency record due to the agency`s failure to take reasonable measures to comply with these provisions shall have a right of action against such agency for damages. Further, any person aggrieved by the improper disclosure of a record due to a willful misrepresentation by the person requesting the record shall also have a right of action against the requester for damages.
JUSTIFICATION:
News accounts have highlighted the increasing abuse of the state`s laws by inmates and others to obtain sensitive information. The New York Times, for example, reported the successful efforts of a convicted killer to secure the home address of a mother of three from Brooklyn. The inmate obtained the address of this woman, his ex-girlfriend, whom he blamed for his conviction, from the New York City Board of Elections. In another recent case, an inmate from Buffalo filed a FOIL request for copies of crime-scene photos and a videotape of his victim`s body. A judge ruled in the inmate`s favor despite the opposition of the victim`s family and ordered the police department to release over fourteen crime scene photos depicting his girl friend`s body. By using "loopholes" in the law, inmates and others circumvent federal anti-stalking regulations that restrict access to home addresses and other sensitive data in motor vehicle records. New York State laws are "ripe for abuse" by prisoners and others. The Legislature enacted FOIL to make government documents available so that the public can learn about the functioning of government and the direction and scope of governmental activities and spending. Additionally, other statutes making public voter registration records and real property tax rolls were intended to prevent fraud and allow for real estate assessment challenges to prevent unequal taxation. These are legitimate fact-finding purposes. None of these statutes were intended to allow inmates and others to gain access to sensitive information in order to threaten or intimidate the citizens of this state. Forbidding inmates from using FOIL, which has been suggested by some, is an overly simplistic response that would not achieve the goals of protecting New York State residents. This proposal does not take that direction. It also does not ban access based on status, which could invite litigation. It does however, ensure that where there is personally identifiable information in a record, the agency can reject the request for access if there is no nexus to the purpose for which the record was established.
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(S01484) Sponsor: DeFrancisco
Same as: (A1064)
Status: Ordered to Third Reading
PURPOSE OF BILL:
Provides that actions by the attorney general for unlawful practice of law shall be construed to include both civil and criminal actions
SUMMARY:
This Bill would allow the attorney-general to bring an action upon his OR HER own information (or upon the complaint of a private person or bar association) against any person, partnership, corporation, or association, and any employee, agent, director, or officer thereof who commits any act or engages in any conduct prohibited by law as constituting the unlawful practice of law. The term "action" as used herein is expressly defined to include both civil and criminal actions. The Bill also provides that such an action may also be maintained by a bar association, upon an application to the supreme court, for leave to bring the same by such bar association, on good cause shown therefor and proof that a written request was made upon the attorney-general, to bring such an action, and that more than twenty 20 days have elapsed since the making of such request and he has failed or refused to bring such an action. The Bill also provides for temporary and permanent injunctions to restrain a defendant from the unlawful practice of law.
Matthew E. Pachman and J. David Eldridge are partners in the firm of Pachman, Pachman & Eldridge, of Commack, NY. Together they co-chair the Bar's Legislative Review Committee.