pending at the time of enactment. Id. at 825. Justice DiBlasi's decision in Johnson v. Space Saver Corp., N.Y.L.J., March 14, 1997, at 35 (Sup. Ct. Westchester County March 14, 1997) and Justice Lockman's decision in Weiner v. Lincoln/A. Pentair Co., N.Y.L.J., March 25, 1997, at 30 (Sup. Ct. Nassau County March 25, 1997) reflect this reasoning as well.
While this argument has some appeal, it is not persuasive to this Court. Under New York law, the general rule is that statutes are construed as prospective only, with a retroactive construction to be determined based upon legislative intent and language which expressly or by necessary implication requires such construction. Massella v. Partners Industrial Products, 171 Misc. 2d 812, 1997 N.Y. Misc. LEXIS 63, 655 N.Y.S.2d 823 1997 WL 131993, at *2 (N.Y. Sup. Ct. Monroe County, 1997) (citing McKinney's Statutes § 51(b)). With respect to § 90 of the Act, the express language refers to taking immediate effect, not retroactive effect. New York courts construing identical language in other statutory amendments have overwhelmingly found that such language indicates that only prospective application is appropriate. Moynihan v. New York State Employees' Retirement System, 192 A.D.2d 913, 596 N.Y.S.2d 570 (3d Dep't 1993); Lusardi v. Lusardi, 167 A.D.2d 3, 570 N.Y.S.2d 376 (3d Dep't 1991); County of Rensselaer v. City of Troy, 120 A.D.2d 796, 797, 501 N.Y.S.2d 534 (3d Dep't 1986); Murphy v. Board of Educ., 104 A.D.2d 796, 797, 480 N.Y.S.2d 138 (2d Dep't 1984), aff'd, 64 N.Y.2d 856, 487 N.Y.S.2d 325, 476 N.E.2d 651 (1985). The few cases which involve retroactive application of amendments to the Workers' Compensation Law extended the rights of injured claimants, thereby furthering the legislative objective of compensating injured employees. Lusardi, 570 N.Y.S.2d at 377. In Lusardi, the court found that an amendment that restricted the right of any employee to gain compensation, on the other hand, was prospective. In keeping with these holdings, the express language of the Act providing for "immediate" effectiveness indicates that only prospective application of the law is warranted.
This conclusion is bolstered by comparing the language of immediate effectiveness with the effectiveness provisions of other portions of the statute. Specifically, as noted in Flynn v. New York Life Insur., N.Y.L.J., Oct. 24, 1996, at 31 (Sup. Ct. Suffolk County, March 24, 1996), §§ 49 through 51 of the Act were deemed "to have been in full force and effect on and after April 1, 1996." Id. Similarly, other sections were not deemed to be effective until months after enactment, such as § 57 to take effect 180 days after enactment and § 59 to take effect September 1, 1997. The lack of any such specific qualifying language pertaining to § 2 indicates that retroactivity was not intended for § 2 as it was explicitly provided for in §§ 49-51. Rather, the language means what it says: § 2 is effective from the date of enactment forward.
Likewise, retroactivity does not arise by necessary implication, as argued in the decisions noted above. In Knapp v. Consolidated Rail Corp., 655 N.Y.S.2d 732, 1997 N.Y. Misc. LEXIS 34, 1997 WL 88039, at *4 (N.Y. Sup. Ct. Albany County, 1997), the only case on this issue currently under appeal to the Appellate Division, Justice Harris addressed the concerns set forth in the other cases regarding the seeming conflict between § 88 of the Act and prospective application. The court in Knapp suggested that § 88 merely provides a "mechanism to transfer the 'windfall' profits of a retroactive interpretation to the State's general fund in the event the courts, applying the rules of statutory construction, ultimately hold the new statute retroactive." Id. at *4.
Moreover, the Court does not find that prospective application and the efficacy of § 88 of the Act are necessarily at odds. Section 88 apparently anticipates that insurance carriers will be able to reduce their reserve funds for "losses or claims" by the end of 1996. According to the courts in favor of retroactive application, such a reduction would not be possible if the Act was only given prospective application. This reasoning begs the question, however, of why such a reduction would be impossible given the nearly four remaining months of 1996 after the effective date in which claims or losses could accrue. Required reserves and premiums after the enactment date may indeed be altered as a result of the legislation. Moreover, the court in Quito v. Cannon U.S.A., N.Y.L.J. March 25, 1997, at 35 (Sup. Ct. Suffolk County March 25, 1997) points out that the audit procedure also protects against the possibility the insurers may overly reduce their reserves in 1996 in light of the amendments, a tactic which the State has an important interest in protecting against in the wake of the enactment.
Finally, other indicia of legislative intent do not point in the direction of retroactive application. In Gleason v. Holman Contract Warehousing, Inc., 170 Misc. 2d 668, 649 N.Y.S.2d 647 (Sup. Ct. Albany County 1996), Justice Harris noted that during the debate over the passage of the Act, it was estimated that the Dole portion of all workers' compensation premiums in the State of New York was approximately 6.2% of the premiums. Id. at 655. If the Act were given retroactive effect, insurance carriers would receive this portion of the premiums as a windfall on claims they would no longer have to pay, a windfall amounting to nearly $ 1 billion. Id. As such, the court in Gleason determined that the Legislative intent could not have required retroactive application where such a windfall would result without an additional mechanism to provide refunds for such overpayments. Id.
Accordingly, the Court finds that the express language of the Omnibus Workers' Compensation Reform Act of 1996 and the legislative intent favor a finding that the repeal of Dole is prospective, beginning September 10, 1996. For the foregoing reasons, therefore, Waldorf's motion to dismiss is denied.
Joanna Seybert, U.S.D.J.
Dated: Uniondale, New York
April 1, 1997