January 4th, 2024

Hochul Vetoes Grieving Families Act Again

I’ve written before about the Grieving Families Act, a badly needed update to New York’s wrongful death statute that dates to 1847. My first post was in 2017, but a version of the bill has bounced around Albany for 30 years.

By way of brief background, for those too lazy to hit the link above, in a wrongful death case in New York there is a claim for monetary loss – be it lost wages or even the economic value of cooking and cleaning that one household member might perform.

But there is little monetary claim over the loss of a child, or a retired parent, or a disabled family member. If you are rich, the pecuniary claim may be large, but if you are not, then you may be as we lawyers like to say, shit out of luck. This restriction obviously has a disproportionate effect on those with low incomes.

Enter, the Legislature, which in 2022 finally passed a bill after long efforts that allowed for family members to make claims for grief, as can now be done in 48 out of 49 other states. Gov. Kathy Hochul should have signed that bill, passed by large majorities of both legislative houses. But she vetoed it.

So last year the Legislature tried again, and passed a more limited bill (restricting the definition of family members), again with overwhelming support. The new bill offered several modifications to win the Governor’s support:

“These narrowed the pool of family members eligible for damages, reduced the statute of limitations from three-and-a-half years to three years, removed a provision that would have covered disorders resulting from grief and limited retroactivity only to incidents that occurred on or after July 1, 2018.”

But on December 29th, she vetoed that one also.

An article in City & State New York, gives the background of that veto: Hochul wanted to lard it with so many poison pills it would be completely neutered:

In her counter-proposal, a copy of which was shared with City & State, Hochul suggested limiting the law only to deaths of New Yorkers 18 and under, completely removing retroactivity for existing lawsuits, lowering the statute of limitations from three years to two (which is the current law), rejecting any expansion of family members eligible for damages under the statute and setting a sunset date of three years after the law took effect.

These restrictions simply gut the whole point of the bill.

Her complaint that the bill would wreak havoc on businesses is belied by the evidence. As an op-ed in Albany’s Times Union notes:

In 2019, plaintiffs filed approximately 77,427 tort cases in New York. Of those, only 126 cases involved claims for wrongful death — a microscopic .15% of all cases — according to state Office of Court Administration data. This statistic exposes the absurdity of any prediction that the act would cause even a 1% increase in losses.

Since both the Senate and the Assembly are both currently governed by the Democrats, and the Governor is a Democrat, they are loathe to override her veto. Making enemies within one’s own party is not necessarily the secret sauce of success on a wide range of other issues that confront legislators and demand negotiation. As per NY Assembly leader Carl Heastie:

“Even though he is disappointed with the governor’s vetoes, Heastie is not ready to discuss veto overrides.

“[Veto overrides] are always…nuclear options and you would hope to never get to that point,” Heastie said.

He pointed to the Legislature’s historic cooperation with Hochul over the past few years.”

On the other hand, given Hochul’s extreme position that she will only a wholly ineffective bill, then override is the only alternative.

January 31st, 2023

Hochul Chooses Profits Over People; Vetos Grieving Families Act

The bill had sailed through New York’s Assembly for three decades. Then in June 2022, it finally passed the state Senate 57-6.

Late last night, seven months after it finally passed, Gov. Kathy Hochul vetoed the bill. There wasn’t enough time to study it, she said.

Seriously. That was an excuse.

That bill is the Grieving Families Act, an update to New York’s first-in-the-nation wrongful death law, in 1847.

The law, as it currently stands — and has stood since the time that southern states still allowed people to own other humans and work them to death — gave the immediate families of those killed by negligence the right for recompense for pecuniary loss. Essentially, the lost wages of the family breadwinner.

The bill Hochul vetoed, which I wrote about in 2017 and again in July 2022 after it finally passed, is an update to bring New York into line with 48 other states, including the deep red south. It would permit recompense for grief to close family members in addition to the lost wages.

Now no one would ever pretend that money is a perfect solution to the lost life of a loved one, as nothing in this world would be. But we use money as a yardstick to measure accountability as it is the best tool we have. And I know from firsthand experience that the overwhelming majority of New Yorkers agree with this as I, and every other personal injury attorney, ask this as a standard question during jury selection. Rare is the person that says no, even though they know that this would be the ticket to getting bounced from the jury panel.

In addition, the Grieving Families Act extends the statute of limitations from its current dismal two years to three and one-half years.

Why is two years dismal? Aside from trying to recover from the grief, a family must also petition the Surrogate’s Court for letters of administration. Because without letters, you don’t have a proper party under our Estates Powers and Trusts law to bring suit. No standing.

Think that’s easy? The two years is not measured from the time letters are issued by the Surrogate, but from death. I currently have a petition pending in one county for 16 months. 16 months! Do the math.

Hochul tried to claim that she wanted a reasonable bill. She said so in an op-ed in yesterday’s Daily News. The Governor, and it dismays me to use this language as I voted for her, is full of shit.

Allow me to deconstruct the lousy excuses — bearing in mind that when one makes bad arguments it means that they don’t have good ones:

First, she claimed, as I opened in this piece, that there wasn’t enough time:

This bill passed at the very end of the legislative session; the bill was approved in committee and voted on by both the Assembly and Senate, in full, on the very same day. What was missing was a serious evaluation of the impact of these massive changes on the economy, small businesses, individuals, and the state’s complex health care system.

Assemblywoman Helene Weinstein carried this bill for 29 years. Then there was another seven months after Senate approval. So this was not an honest excuse. As we say in other contexts, res ipsa loquitur. The thing speaks for itself. Or in this case, the calendar.

Hochul pretended to offer a compromise, which wasn’t a compromise at all, but completely eviscerated the bill. She said it should only apply to those under 18.

So who does this exclude? Well, everyone that is retired. Because families don’t feel grief over the negligent death of a retired parent?

It excludes the families of those that are unemployed or underemployed, which affects minority and immigrant communities more than white ones. Do they not feel grief over loss due to negligence?

It excludes stay at home, child rearing parents. Does the child of such a victim not feel grief? The spouse and the parents?

It excludes — get this — victims of medical malpractice. Do these families not feel grief when someone dies from medical negligence? Gosh, I wonder how that snuck into her “compromise?”

Hochul was not tinkering around the edges of the bill. She was completely neutering it.

So who was left? Kids killed in auto accidents? Is that about it? And the vast majority of those won’t have sufficient insurance anyway, with insurance policies ranging from an unconscionable 25K to 100K?

And more excuses: She claims that she needs ” time to look at data and grapple with complex issues, such as our state’s unique constitutional prohibition against limits on damages.“

Well, Governor, we don’t have a “unique prohibition against limits on damages.” That is utter nonsense. New York has had limits on damages since at least 1812: See: How New York Caps Personal Injury Damages. It’s kinda on point.

But this excuse may be the one that really takes the cake: “It is reasonable to think that the legislation as drafted will drive up already-high health insurance premiums;

Well, there’s no easy way to say this, so here goes: Dead people don’t drive up healthcare costs. Sick people do. The insurance industry benefits when sick people die as healthcare payments stop. The insurance industry, oddly enough, doesn’t like to talk about that.

So yeah, I call bullshit on the Governor. Her attempts to claim she cares about the issue are empty, and she will embarrass herself by further repeating it.

It can never be said enough times: When people make bad arguments it means they don’t have good ones.

June 8th, 2022

NY’s New Social Media Reporting Law

New York Gov. Kathy Hochul turned a few heads when she said, during a speech regarding new gun safety laws:

“And in the state of New York we are now requiring social media networks to monitor and report hateful conduct on their platforms.”

Say what? Require a social media company to “report” “hateful conduct?”

Report to whom? And what, exactly, is “hateful conduct?”

From the bill jacket, we’ll start with the “definition” of hateful conduct:

Specifically, this legislation defines hateful conduct to mean the use of a social media network to vilify, humiliate, or incite violence against a group, or a class of persons on the basis of race, color, religion, ethnicity, national origin, disability, sex, sexual orientation, gender identity or gender expression.

Vilify? Humiliate? According to who? Such vague language is the hallmark of legislation struck down on First Amendment grounds. So this is not an auspicious start.

But on reading it I saw that all the law actually required, contrary to what the Governor said, is that there must be an easily accessible mechanism for a user to report the issue to the social media site owner. Which, as far as I know, all of them already have.

There is no mechanism within that new statute for Facebook or Twitter to report to the government, or report to anyone else for that matter.

It also requires the social media company have a policy in place to deal with the situation. But the law does not (and could not on First Amendment grounds) tell the social media network how to handle those complaints.

So the network could have a policy of “Our company deals with these complaints on a case by case basis, and does so totally and unapologetically on whim.” Hey, it’s a policy, isn’t it?

In essence, the law does nothing.

Here’s the Governor’s brief (and erroneous) remarks on the subject: