Late-session flurry of NY bills includes easing appeals of insurance claims
A measure to ease insurance claims for serious personal injury was OK'd over the objections of those who said it would create a "fourth bite at the apple."
The New York State Assembly approved a broad range of bills that stand to impact the legal system—including one affecting insurance appeals—with the proposals now headed to Gov. Kathy Hochul.
In a 101-40 vote, the chamber, which is controlled by Democrats, passed the “fairness for accident victims act” meant to amend §5106 of the Insurance Law. It potentially eliminates the doctrine of collateral estoppel in the context of insurance claims involving serious personal injury.
Assemblyman Andy Goodell, R-Chautauqua, objected, arguing it gives claimants a fourth appeal avenue.
“Why would we open it up to what would appear to be the fourth bite at the apple: arbitrator, master arbitrator, court decision? Why would we throw all that out and allow the parties to relitigate it from scratch?”
Goodell, an attorney, added: “It just doesn’t really make sense, unless, of course, you’re a litigator, which is why this is supported by the trial lawyers—surprise. But as noted by the New York Insurance Association, this legislation will result in dramatically expanded civil litigation all across New York, together with skyrocketing insurance rates that reflect the fact that you’ll now have not three, but four opportunities to sue your insurance company.”
Assemblymember Jen Lunsford, D-Rochester, countered that insurance customers are required to carry no-fault insurance, and “the circumstance we’re dealing with here is very unlikely to be one where someone has been to court many times.”
In fact, there’s going to be a circumstance where that claimant was never heard it all, Lunsford, a personal injury and workers’ compensation attorney, said of the Leroy Comrie, D-Queens, sponsored bill.
Language services
In a 98-43 vote in the lower house, it approved a measure meant to ensure that deponents who aren’t fully proficient in English will have their statements in support of an accusatory instrument certified as accurately taken and translated.
Bill backers say the proposal aims to account for what they say is the New York Court of Appeals’ failure to account for English not being the primary language of New Yorkers in a recent trio of criminal appeals involving the use of translators for documenting statements from witnesses.
“We all want to make sure that whatever is given to the district attorney (and) to the police as part of the accusatory instrument does not result in overturning a case and actually taking justice away from a victim,” bill sponsor, said Assemblymember Catalina Cruz, D-Queens, a Colombian-American attorney.
Speaking against the bill, which passed in the Senate on May 17, Assemblyman Angelo Morinello, R-Niagara Falls, suggested enactment might tax the system, given the latest estimates of more than 600 languages spoken in New York, not including various dialects.
A former city court judge and assistant prosecutor, Morinello said that his tourist district draws many visiting Asians who struggle with English. If one of them is, for instance, robbed, Morinello suggested the certification element might make prosecution more difficult.
Cruz pushed back, stating that a telephonic translator could provide the affidavit.
Morinello said the bill’s merit was outweighed by what will be its unintended consequences.
“I’ve had witnesses that have come back or stayed around to support their information that are now testifying, and under cross-examination, it’s going to be impossible to get an interpreter of an obscure language from another part of the state, and the concern there is how do you complete the trial?”
Parents’ rights
Another bill aiming to grant a parent post-termination contact, if a family court deems it’s in a child’s best interest, was also hotly debated amongst Democrats and Republicans before passing in the Assembly, 96-45.
Assemblymember Mary Beth Walsh, R-Ballston, spoke at length in opposition, stating the bill was unchanged since governor vetoes in 2019 and 2021.
A family court attorney who said she’s prosecuted abuse and neglect cases, Walsh said that much goes into a court’s termination of parental rights as a result of abandonment, permanent neglect, repeated or severe abuse of a child, or an inability to parent due to mental illness or intellectual ability.
With New York already ranked 48th of 50 states in the placement of children in foster care for two years or more, Walsh said the bill may make it more challenging for foster parents who had intended to only temporarily provide foster care, but now want to adopt.
If the court grants even just a little bit of contact, it perpetually opens the door for repeated petitions to expand that contact, resulting in adoptive and biological parents constantly embroiled in the family court system,” Walsh said.
Assemblyman Andrew Hevesi, D-Queens, disagreed, stating that opposition to the bill belied the majority’s belief in judicial discretion in other circumstances.
“The judge may find out for whatever the circumstances that the parent has turned their life around, and they are now able to participate in a productive way with their kid’s life,” he said.
Bill sponsor Latoya Joyner, D-Bronx, said the bill simply focuses on the best interest of the child, while recognizing families no longer meet “a one-size-fits-all model or approach.”
She said it also “creates parity because otherwise what is happening is that a lot of these biological parents are surrendering their rights and foregoing a child because they want to continue to have that contact with their child.”
Wrongful convictions
After a nearly two-week adjournment, the Assembly reconvened on Tuesday to close out a litany of bills, including a revised proposal it sent to the governor aimed at challenging supposed “wrongful” convictions of those seeking to vacate convictions under statutes that were later decriminalized or found to be unconstitutional.
Of that bill, Assembly Speaker Carl Heastie, D-Bronx, said “far too many New Yorkers are sitting behind bars for crimes they did not commit,” and the legislation “will put into place the mechanisms to review cases of those who have been wrongly convicted and for them to present evidence of their innocence.”
The District Attorney Association of New York State is asking Hochul to veto the bill, saying no conviction or plea would ever be final if she passes it.
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