Supreme Court, New York County, August 30, 2024

Newman Law Associates PLLC, New York City (Jon E. Newman of counsel), for defendants.

Segan, Nemerov, Singer, Sonin & Tancer, P.C., New York City (Jeffrey Singer of counsel), for plaintiff.

This action arises from injuries suffered by plaintiff, Bartlomiej Wojtaszek, while he was working on construction of the{**85 Misc 3d at 232} Second Avenue Subway. Plaintiff has brought claims against defendants under Labor Law §§ 200, 240 (1), and 241 (6). This court previously granted plaintiff summary judgment on liability on his sections 240 (1) and 241 (6) claims and denied defendants' cross-motion for summary judgment dismissing plaintiff's section 200 claim.^[FN1] (See NY St Cts Elec Filing [NYSCEF] Doc No. 141 [order memorializing oral decision delivered on the record]; NYSCEF Doc No. 145, tr at 19-28 [transcript of decision].) The remaining issues in the case are currently scheduled to be tried in January 2025.

Several months after this court ruled on the parties' motion and cross-motion for summary judgment, defendants brought this motion under CPLR 3025 (b), seeking leave to amend their answer to add an issue-preclusion defense with respect to plaintiff's claimed injuries to his left hand. (See NYSCEF Doc No. 149.)

Defendants' proposed amendment is based on an earlier administrative proceeding in which plaintiff sought workers'-compensation benefits. In 2019, a Workers' Compensation Board ALJ held, and the Board's Administrative Review Division affirmed, that plaintiff should not be permitted to amend his workers'-compensation claim to seek benefits for injuries to his left hand because plaintiff had not shown by a preponderance of the evidence that the claimed injuries were causally related to the underlying workplace accident. (See NYSCEF Doc No. 155 [ALJ decision]; NYSCEF Doc No. 156 [administrative-appeal decision].) Defendants argue that this [*2]administrative decision is entitled to issue-preclusive effect in this action with respect to any claim relating to plaintiff's left hand; and that they should therefore be permitted to add an issue-preclusion affirmative defense to their answer. (See NYSCEF Doc No. 161 at 9-15.)

The motion for leave to amend is denied.

Leave to amend under CPLR 3025 (b) is freely granted: Absent prejudice or surprise, leave should be denied only if the nonmovant establishes that the proffered amendment is "palpably insufficient or clearly devoid of merit." (Fairpoint Cos., LLC v Vella, 134 AD3d 645, 645 [1st Dept 2015] [internal quotation marks omitted].){**85 Misc 3d at 233}

1. In opposing amendment, plaintiff relies first on defendants' multi-year delay in moving for leave to amend following the workers'-compensation decision. (NYSCEF Doc No. 159 ¶ 6.) This argument is without merit: Delay alone is insufficient reason to deny amendment absent a showing also of prejudice or surprise. (See Fairpoint, 134 AD3d at 645.) Plaintiff does not attempt to make that showing.

2. Plaintiff also argues, in effect, that defendants' proposed amendment is clearly devoid of merit under Workers' Compensation Law § 118-a. That statute, enacted and effective in 2022, provides that in "an action for a workers' compensation claim permissible under this chapter, 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."^[FN2] Given this statute, plaintiff contends, no basis exists to raise an issue-preclusion defense predicated on a "finding[ ] in the Workers' Compensation forum." (NYSCEF Doc No. 159 ¶ 2.)

Defendants, on the other hand, contend that construing section 118-a as foreclosing them from raising an issue-preclusion defense would constitute a retroactive application of that statute. (See NYSCEF Doc No. 158 ¶¶ 38-39.) And they argue that absent a "clear expression of the legislative purpose" supporting retroactivity, affording section 118-a retroactive effect would be improper and unfair. (See NYSCEF Doc No. 167 ¶¶ 6-13.)

Several trial-court decisions have held that section 118-a may properly be applied retroactively.^[FN3] But no appellate court has yet construed the statute. Considering the question for itself, this court concludes that in the circumstances of this case, applying section 118-a to defendants' motion for leave to{**85 Misc 3d at 234} amend would not be retroactive in the first place. Given that conclusion, the court does not reach the question whether it would be proper, under different circumstances, to give the statute retroactive effect.

Defendants effectively assume that because section 118-a became effective three years after the Workers' Compensation Board decisions at issue, applying the statute to those decisions would necessarily be retroactive. This court disagrees.

A "statute does not operate 'retrospectively' merely because it is applied in a case arising from conduct antedating the statute's enactment." (Gottwald v Sebert, 40 NY3d 240, 258 [2023], quoting Landgraf v USI Film Products, 511 US 244, 269 [1994].) Rather, a statute has "retroactive effect if 'it would impair rights a party possessed when he acted, increase a party's liability for past conduct, or impose new duties with respect to transactions already completed,' thus impacting 'substantive' rights." (Matter of Regina Metro. Co., LLC v New York State Div. of Hous. & Community Renewal, 35 NY3d 332, 365 [2020], quoting Landgraf, 511 US at 278-280.) [*3]If, on the other hand, the statute "affects only . . . the nonsubstantive provisions governing the procedure for adjudication of a claim going forward," the statute "has no potentially problematic retroactive effect even when the liability arises from past conduct." (Id.)

Here, section 118-a does not affect the parties' rights and obligations under Labor Law §§ 200, 240 (1), or 241 (6), nor the remedies that plaintiff may obtain in an action against defendants brought under those statutes. It thus does not affect "substantive" rights, in the sense meant by Regina Metro. and Landgraf. Instead, it affects the procedural implications of a prior administrative determination for the future adjudication of some of the claims and defenses in this action. That effect is not "retroactive," properly speaking. Rather, it is an application of the basic principle that "procedural changes are, in the absence of words of exclusion, deemed applicable to 'subsequent proceedings in pending actions.' " (Simonson v International Bank, 14 NY2d 281, 289 [1964] [emphasis omitted], quoting Lazarus v Metropolitan El. Ry. Co., 145 NY 581, 585 [1895].)

It is immaterial here that this procedural change, by stripping the Workers' Compensation Board decision of preclusive effect, would directly and substantially affect the resolution of plaintiff's claims relating to his left hand. The Court of Appeals has held that a statute affecting whether a given determination{**85 Misc 3d at 235} is given issue-preclusive effect in later proceedings is "procedural" for retroactivity purposes. Under an earlier version of Public Health Law § 230, a state agency's post-hearing determination that a licensed medical provider had violated a state statute or regulation, in a way that would also constitute professional misconduct under the medical-licensing statute, was entitled to issue-preclusive effect in a later proceeding brought by the Board of Regents to suspend or revoke the provider's license. (See Matter of Hee K. Choi v State of New York, 74 NY2d 933, 935-936 [1989].) A provider subjected to this expedited determination argued, in challenging the suspension of his license, that the disciplinary proceeding was unfair "because at the time of the [first] hearing," the relevant statutory provision "giving the determination of one agency preclusive effect in a proceeding by another agency . . . had not yet been passed." (Matter of Camperlengo v Barell, 78 NY2d 674, 679-680 [1991].) The Court of Appeals rejected this argument on the ground that "the procedure in an action is governed by the law regulating it at the time any question of procedure arises." (Id. at 680.) The same rule governs here.

To be sure, procedural changes will ordinarily apply only to "future steps and stages" in a pending action, rather than "reach backward . . . and nullify by relation the things already done." (Matter of Berkovitz v Arbib & Houlberg, Inc., 230 NY 261, 270 [1921, Cardozo, J.].) Affording the latter effect to a procedural amendment would be "retroactive" in the ordinary sense. It would have to be justified by a "clear expression of the legislative purpose." (Simonson, 14 NY2d at 289.) That is not an issue in this case, though. Defendants did not bring the current motion for leave to amend their answer until a year after Workers' Compensation Law § 118-a had gone into effect. And the proposed amendment would serve simply to permit defendants to assert their proposed issue-preclusion defense at some point in the future, most likely at trial in 2025.^[FN4] Defendants' motion, therefore, is governed by the default rule that "procedure in an action is governed by the law regulating it at the time any question of procedure arises"—without need to conduct any further retroactivity analysis. (Matter of Clayton v{**85 Misc 3d at 236} Clement, 33 NY2d 386, 390 [1974] [internal quotation marks omitted].)

Workers' Compensation Law § 118-a, effective December 30, 2022, bars a Workers' Compensation Board determination about the causes of a worker's injury from being afforded issue-preclusive effect in a later action arising out of the same occurrence. Given this statutory bar, defendants' November 2023 motion for leave to amend, seeking to raise an issue-preclusion defense relating to the cause of plaintiff's claimed injuries to his left hand, is devoid of merit.[*4]

Accordingly, it is ordered that defendants' motion for leave to amend is denied.