In Part 5, we looked at a couple of majority opinions then-Judge Rowan Wilson had authored in divided criminal cases. Now we'll take a look at a couple of his majorities in divided civil cases.
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| Credit: Hans Pennink, AP |
Let's look at two such cases:
Borelli v. City of Yonkers, 39 N.Y.3d 138 (2022)
This case involved a dispute between firefighters who retired as a result of disability or work-related injuries and the city for which they worked. The question before the Court of Appeals was the meaning of “regular salary or wages” for the purpose of calculating retirement benefits under the state's General Municipal Law. The specific issue that divided the Judges was whether the firefighters' holiday pay and check-in pay [Showing up for roll call, etc.] should be included in the calculation.
The city argued that holiday and check-in pays are "special" compensation. As such, they should not be included in calculating the retirees' benefits, unless they were specifically included in the collective bargaining agreement. They were not. Judge Garcia, in his dissenting opinion joined by then-Acting Chief Judge Cannataro, agreed with the city:
There is no dispute that the Retirees here suffered injuries while serving as firefighters and that General Municipal Law § 207–a provides for these Retirees to receive an award totaling the equivalent of their regular salary or wages when serving as active firefighters in compensation...The definition of “regular salary or wages”...is critical; any unwarranted expansion of the definition undermines the goals of the legislation, forcing municipalities to spend more on disability payments and less on active fire protection.Where a collective bargaining agreement ... is entirely silent regarding the status of disabled fire[fighters] as employees of the city[, it] should not therefore be construed to implicitly expand whatever compensation rights are provided petitioners under the statute. [Citations and quotation marks omitted.]
Writing for the majority and siding with the retirees, Wilson interpreted the statute and the Court's precedents differently:
The dissent interprets “regular salary or wages” differently than the enacting legislature did. It argues that regular salary or wages only includes “ ‘regular,’ ‘base’ or ‘annual’ salary as defined in the CBA [collective bargaining agreement]” along with several other types of payments previously recognized by our doctrine. The dissent's approach, which seemingly looks solely to the placement of labels and headings in a CBA, would allow municipalities and unions to advantage current active firefighters at the expense of retirees disabled in the line of duty—something the statute was originally designed to prevent.
Moreover, Wilson explained that the CBAs in question did include the two types of pay at issue by necessary implication:
Under the CBAs, the Retirees would have been legally entitled to the holiday pay and the check-in pay for performing their regular job duties. Consequently, those pays are part of the “regular salary or wages” to which they are entitled by General Municipal Law § 207–a (2)....It is clear from the CBAs that all firefighters are entitled to receive holiday pay and check-in pay based solely on the performance of regular job duties. The provisions of the CBAs governing check-in pay require that firefighters be present for duty 12 minutes prior to the commencement of their tours of duty [and] specify, without qualification, that each employee “shall receive an additional [5½] days [of pay]” per year. The provisions governing holiday pay provide that firefighters shall be paid for 12 holidays, “whether worked or not.” Hence, all active-duty firefighters performing their regular job duties are contractually entitled to receive both check-in pay and holiday pay. [Emphasis added.]
And contrary to the city and dissenters' argument that it was unfair to treat inactive firefighters as generously as those who are active, Wilson responded:
Including holiday and check-in pay does not pose the risk of unfairness we [have previously] cautioned against. [W]e noted that it would not be appropriate to “imply a right to vacation benefits under section 207–a because disabled fire[fighters] do not have to work at all"...[But i]f compensation is provided in exchange for the performance of an employee's regular job duties, it would not be unfair to provide that payment to a disabled firefighter because, but for their injury, they would be entitled to receive that compensation....Because the CBAs plainly entitle all active-duty firefighters to holiday and check-in pay, Yonkers's determination that these did not constitute “regular salary or wages” under General Municipal Law § 207–a (2) was based on an error of law. [Emphasis added.]
It would seem that the Court legitimately could have decided the case either way. Strong arguments supported each side. But Wilson, as he typically does, sided with the workers where the competing arguments were well-balanced, or even closely so. The next case we look at demonstrates the same.
Matter of New York City Asbestos Litigation, 33 N.Y.3d 20 (2019)
This case involved a claim for damages by a worker for mesothelioma resulting from his employment aboard ships owned by the defendant corporation. The issue to be resolved was whether the settlement and release previously agreed to by the worker precluded the lawsuit. Chevron--the successor in interest to Texaco, which had settled with this and other workers--contended that the release included claims for any and all asbestos-related diseases.
The Court of Appeals split 4-3 in favor of the worker. Judge Garcia--this time in a dissenting opinion joined by then-Chief Judge DiFiore and Judge Stein--agreed with Chevron that it was entitled to summary judgment against the worker. Garcia stated his view of the case succinctly in his opening paragraph:
More than twenty years ago, plaintiff, a merchant marine, sued a ship owner for injuries related to alleged asbestos exposure sustained while serving aboard the owner's vessel. The parties swiftly settled and, in exchange for compensation, plaintiff executed a comprehensive release, agreeing to forfeit “any and all” claims for known or potential injuries suffered as a result of his alleged exposure. Despite that release, the same seaman, with the same counsel, is again suing the same ship owner for injuries sustained from that same asbestos exposure. The majority declines to enforce the parties' agreement, holding that defendant failed to meet its burden of demonstrating the validity of the release.
Quoting the release itself, Garcia argued that the worker had specifically forfeited all claims for harm "known or unknown, present or future." As noted in Garcia's opinion:
Less than two months after filing [the original] suit, plaintiff and Texaco reached an agreement to settle plaintiff's claim. In exchange for $ 1,750, plaintiff agreed to release Texaco from “any and all claims for damages as alleged, or which could be alleged, for the injuries, sickness and/or disease allegedly caused as a result of the exposure to asbestos, silica, asbestos fibers, and asbestos dusts, and/or silica or asbestos-containing products, smoke and carcinogenic chemicals (not including benzene or products containing benzene).”
Writing for the majority and rejecting summary judgment for Texaco's successor, Wilson saw the case differently. The release should be read more narrowly than Chevron and the dissenters contended:
Chevron has not met its burden to demonstrate the absence of any material question of fact. The 1997 release does not unambiguously extinguish a future claim for mesothelioma. The release itself does not mention mesothelioma. It does say that [plaintiff] “is giving up the right to bring an action against the Released Parties, or any of them, in the future for any new or different diagnosis that may be made about Claimant's condition as a result of exposure to any product[.]” But “claimant's condition” may cabin the “new or different diagnosis” to ones that related to his nonmalignant asbestos-related pulmonary disease—the “condition” both parties agree was the only one he suffered at the time.[Emphasis added.]
Next, Wilson addressed the significance of plaintiff's original complaint against Texaco, which did mention mesothelioma:
The complaint [against Texaco] does not assist Chevron in resolving the release's ambiguity. [It] at most demonstrates that both Texaco and [plaintiff] were aware that all of the [mentioned] conditions, including mesothelioma, might result from exposure to asbestos, but the absence of mesothelioma (and the other cancers) from the release could readily support the conclusion that the omission of mesothelioma (and the other cancers) from the language of the release was deliberate. The dissent complains that we have set an [“impossibly high”] burden for employers to settle with mariners, but that is not so. It would hardly have been “impossible” for Texaco to insist on including mesothelioma in the release.
Wilson also noted the paltry sum that Texaco paid the worker for signing the release, which Chevron argued had extinguished all claims for any possible asbestos-related disease:
As to the adequacy of the consideration, nothing in Chevron's summary judgment proffer established the amount paid by Chevron in exchange for Mr. South's settlement and release, although the parties agree that Mr. South received $ 1,750 from some omnibus amount paid by Texaco to settle his and other claims.
Finally, Wilson made clear that, at this point in the litigation, the majority was not rendering a final judgment but, rather, was denying Chevron's request for a summary dismissal in order to allow the worker a full evidentiary hearing:
To be clear, it is possible that additional evidence could be developed that would validate the release and extinguish [the worker's] claims. However, applying [the] heightened standard in the summary judgment posture, the record is presently insufficient to demonstrate the effectiveness of the 1997 release as a matter of law.
At the risk of beating the drum, both the Borelli and Asbestos Litigation cases discussed here--just like the Cutaia, Ferreira, and Howell cases discussed previously--illustrate pretty clearly the new Chief Judge's inclinations in disputes between, on the one hand, workers injured on the job or other persons injured through no fault of their own, and on the other hand, employers or negligent public officials. In cases that are obviously close, where arguments on both sides are strong, where the Court could fairly decide the case either way, and where, consequently, his colleagues are deeply divided, he typically chooses those legitimate arguments that favor the injured party.
As with the criminal cases, we shall see whether, with Wilson now in the center seat, there will be some movement away from the more conservative direction the Court took over the past several years in civil cases--i.e., less sympathetic than Wilson to workers and injured parties and more favorable than him to employers and municipalities. We'll keep an eye on that.
