Monday, May 9, 2005

1 NEW YORK STATE SENATE 2 3 4 THE STENOGRAPHIC RECORD 5 6 7 8 9 ALBANY, NEW YORK 10 May 9, 2005 11 3:10 p.m. 12 13 14 REGULAR SESSION 15 16 17 18 LT. GOVERNOR MARY O. DONOHUE, President 19 STEVEN M. BOGGESS, Secretary 20 21 22 23 24 25

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(518) 371-8910 1 P R O C E E D I N G S 2 THE PRESIDENT: The Senate will 3 please come to order. 4 I ask everyone present to please 5 rise and repeat with me the Pledge of 6 Allegiance. 7 (Whereupon, the assemblage recited 8 the Pledge of Allegiance to the Flag.) 9 THE PRESIDENT: In the absence of 10 clergy, may we bow our heads in a moment of 11 silence, please. 12 (Whereupon, the assemblage 13 respected a moment of silence.) 14 THE PRESIDENT: Reading of the 15 Journal. 16 THE SECRETARY: In Senate, 17 Sunday, May 8, the Senate met pursuant to 18 adjournment. The Journal of Saturday, May 7, 19 was read and approved. On motion, Senate 20 adjourned. 21 THE PRESIDENT: Without 22 objection, the Journal stands approved as 23 read. 24 Presentation of petitions. 25 Messages from the Assembly.

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(518) 371-8910 1 Messages from the Governor. 2 ACTING PRESIDENT MEIER: Reports 3 of standing committees. 4 Reports of select committees. 5 Communications and reports from 6 state officers. 7 Motions and resolutions. 8 Senator Fuschillo. 9 SENATOR FUSCHILLO: Thank you, 10 Mr. President. 11 On behalf of Senator Volker, on 12 page number 37 I offer the following 13 amendments to Calendar Number 468, Senate 14 Print Number 918, and ask that said bill 15 retain its place on Third Reading Calendar. 16 ACTING PRESIDENT MEIER: The 17 amendments are received and adopted, and the 18 bill will retain its place on the Third 19 Reading Calendar. 20 Senator Fuschillo. 21 SENATOR FUSCHILLO: Mr. 22 President, on behalf of Senator Maziarz, I 23 wish to call up Senate Print Number 976, 24 recalled from the Assembly, which is now at 25 the desk.

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(518) 371-8910 1 ACTING PRESIDENT MEIER: The 2 Secretary will read. 3 THE SECRETARY: Calendar Number 4 120, by Senator Maziarz, Senate Print 976, an 5 act to amend the Highway Law. 6 ACTING PRESIDENT MEIER: Senator 7 Fuschillo. 8 SENATOR FUSCHILLO: I now move to 9 reconsider the vote by which the bill was 10 passed. 11 ACTING PRESIDENT MEIER: Call the 12 roll on reconsideration. 13 (The Secretary called the roll.) 14 THE SECRETARY: Ayes, 55. 15 SENATOR FUSCHILLO: I now offer 16 the following amendments. 17 ACTING PRESIDENT MEIER: The 18 amendments are received. 19 Senator Bruno. 20 SENATOR BRUNO: Mr. President, 21 are there any substitutions at the desk? 22 ACTING PRESIDENT MEIER: Yes, 23 there are. 24 SENATOR BRUNO: I move we accept 25 the substitutions.

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(518) 371-8910 1 ACTING PRESIDENT MEIER: The 2 Secretary will read the substitutions. 3 THE SECRETARY: On page 4, 4 Senator Morahan moves to discharge, from the 5 Committee on Mental Health and Developmental 6 Disabilities, Assembly Bill Number 2972 and 7 substitute it for the identical Senate Bill 8 Number 2704, First Report Calendar 800. 9 ACTING PRESIDENT MEIER: 10 Substitution ordered. 11 Senator Bruno. 12 SENATOR BRUNO: Mr. President, I 13 believe there's a resolution at the desk by 14 Senator Morahan. I would ask that the title 15 be read and move for its immediate adoption. 16 ACTING PRESIDENT MEIER: The 17 Secretary will read. 18 THE SECRETARY: By Senator 19 Morahan, Legislative Resolution Number 1767, 20 honoring Marie Solange Francois upon the 21 occasion of her designation as recipient of 22 the 2005 Outstanding Contribution by a Senior 23 Citizen Award. 24 ACTING PRESIDENT MEIER: On the 25 resolution, all those in favor signify by

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(518) 371-8910 1 saying aye. 2 (Response of "Aye.") 3 ACTING PRESIDENT MEIER: Those 4 opposed, nay. 5 (No response.) 6 ACTING PRESIDENT MEIER: The 7 resolution is adopted. 8 Senator Bruno. 9 SENATOR BRUNO: Mr. President, I 10 believe there's a Resolution 1748, by Senator 11 Golden. I would ask that the title be read 12 and move for its immediate adoption. 13 ACTING PRESIDENT MEIER: The 14 Secretary will read. 15 THE SECRETARY: By Senator 16 Golden, Legislative Resolution Number 1748, 17 honoring Clarence and Jeannie Soule upon the 18 occasion of their designation as recipients of 19 the 2005 Senior Citizens of the Year Award. 20 ACTING PRESIDENT MEIER: The 21 question is on the resolution. All those in 22 favor signify by saying aye. 23 (Response of "Aye.") 24 ACTING PRESIDENT MEIER: Those 25 opposed, nay.

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(518) 371-8910 1 (No response.) 2 ACTING PRESIDENT MEIER: The 3 resolution is adopted. 4 Senator Bruno. 5 SENATOR BRUNO: Mr. President, I 6 believe there's another resolution by Senator 7 Golden, Number 1749. I ask that the title be 8 read and move for its immediate adoption. 9 ACTING PRESIDENT MEIER: The 10 Secretary will read. 11 THE SECRETARY: By Senator 12 Golden, Legislative Resolution Number 1749, 13 memorializing Governor George E. Pataki to 14 proclaim May 2005 as Older Americans Month in 15 the State of New York. 16 ACTING PRESIDENT MEIER: Senator 17 Golden. 18 SENATOR GOLDEN: Thank you, 19 Acting Chairman. 20 I rise today to speak with pride 21 about the resolution proclaiming May as Older 22 Americans Month. 23 For over forty years, the month of 24 May has been recognized as Older Americans 25 Month, to honor and celebrate the merits and

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(518) 371-8910 1 achievements of our nation's senior citizens. 2 Older Americans Month is celebration of our 3 past, our present and our future. It is a 4 time to commemorate the exceptional 5 contributions that older Americans have made 6 and continue to make to the welfare and 7 achievements of our nation. 8 In 1963, there were 17 million. 9 Today, that number has doubled. And as 10 77 million baby boomers approach retirement 11 age, Older Americans Month serves as a 12 reminder to all of us of the challenges that 13 the future holds. In New York, older 14 Americans will soon outnumber children, for 15 the first time ever in this great state. 16 Older Americans Month is our 17 opportunity to celebrate the changing face of 18 aging and to pay tribute to senior citizens 19 for all they have done to strengthen our 20 state, our nation, and our world. 21 It is my honor to commemorate 22 May 2005 as Older Americans Month in the State 23 of New York, and I'd like to also open up that 24 resolution to all of my colleagues. 25 And there are some of New York

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(518) 371-8910 1 State's best sitting up above us here. Two of 2 New York State's six interstate commissions 3 dealing with water pollution and water supply 4 are here today. They are the Interstate 5 Environmental Commission, IEC, and the 6 Delaware River Basin Commission, DRBC. 7 From the IEC, we have Chairperson 8 Judith Baron, who is a New York commissioner 9 of IEC; Executive Director Howard Golub; and 10 Assistant Executive Director Boris Rukovets. 11 From the DRBC, we have the 12 secretary and assistant general counsel Pam 13 Bush. 14 Thank you for being here today. 15 ACTING PRESIDENT MEIER: The 16 question is on the resolution. All those in 17 favor signify by saying aye. 18 (Response of "Aye.") 19 ACTING PRESIDENT MEIER: Those 20 opposed, nay. 21 (No response.) 22 ACTING PRESIDENT MEIER: The 23 resolution is adopted. 24 Senator Bruno. 25 SENATOR BRUNO: Mr. President,

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(518) 371-8910 1 can I suggest to Senator Golden, if there be 2 no objections, that we put the members in the 3 chamber on this resolution. 4 SENATOR GOLDEN: No objection, 5 sir. 6 SENATOR BRUNO: Thank you, 7 Senator Golden. 8 And if anyone would like not to be 9 on it, please let the desk know at your own 10 discretion. 11 ACTING PRESIDENT MEIER: Those 12 members wishing not to be on the resolution 13 please inform the desk. 14 Senator Bruno. 15 SENATOR BRUNO: Mr. President, I 16 move to take from the table Senate Bill 17 Number 2, as vetoed by the Governor. 18 ACTING PRESIDENT MEIER: So 19 ordered. 20 SENATOR BRUNO: Mr. President, I 21 now move to override the veto of the Governor 22 of Senate Bill Number 2. 23 ACTING PRESIDENT MEIER: The 24 Secretary will read. 25 THE SECRETARY: Calendar Number

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(518) 371-8910 1 1, by Senator Bruno, Senate Print Number 2, an 2 act to amend the State Finance Law and others. 3 ACTING PRESIDENT MEIER: The bill 4 is before the house. 5 Senators, ought the same become a 6 law notwithstanding the veto of the Governor? 7 The Secretary will read the last 8 section. 9 THE SECRETARY: Section 39. This 10 act shall take effect immediately. 11 ACTING PRESIDENT MEIER: The 12 Secretary will call the roll. 13 (The Secretary called the roll.) 14 ACTING PRESIDENT MEIER: The 15 Secretary will announce the results. 16 THE SECRETARY: Those recorded in 17 the negative on Calendar Number 1 are Senators 18 Andrews, Breslin, Diaz, Duane, 19 Hassell-Thompson, L. Krueger, Montgomery, 20 Parker, Savino, Schneiderman, Serrano and 21 Stavisky. 22 Ayes, 47. Nays, 12. 23 ACTING PRESIDENT MEIER: The 24 motion to override the Governor's veto is 25 carried.

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(518) 371-8910 1 Senator Bruno. 2 SENATOR BRUNO: Mr. President, 3 can we at this time take up the 4 noncontroversial reading of the calendar. 5 ACTING PRESIDENT MEIER: The 6 Secretary will conduct the noncontroversial 7 reading of the calendar. 8 THE SECRETARY: Calendar Number 9 203, by Senator LaValle, Senate Print 685A, an 10 act to amend the State Finance Law, in 11 relation to commodities. 12 ACTING PRESIDENT MEIER: Read the 13 last section. 14 THE SECRETARY: Section 3. This 15 act shall take effect immediately. 16 ACTING PRESIDENT MEIER: Call the 17 roll. 18 (The Secretary called the roll.) 19 THE SECRETARY: Ayes, 59. 20 ACTING PRESIDENT MEIER: The bill 21 is passed. 22 THE SECRETARY: Calendar Number 23 266, by Senator Morahan, Senate Print 2751A, 24 an act to amend the Mental Hygiene Law, in 25 relation to patients.

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(518) 371-8910 1 ACTING PRESIDENT MEIER: Read the 2 last section. 3 THE SECRETARY: Section 2. This 4 act shall take effect on the 180th day. 5 ACTING PRESIDENT MEIER: Call the 6 roll. 7 (The Secretary called the roll.) 8 THE SECRETARY: Ayes, 59. 9 ACTING PRESIDENT MEIER: The bill 10 is passed. 11 THE SECRETARY: Calendar Number 12 318, by Senator Fuschillo, Senate Print 3344, 13 an act to amend the General Business Law, in 14 relation to proceedings. 15 ACTING PRESIDENT MEIER: Read the 16 last section. 17 THE SECRETARY: Section 3. This 18 act shall take effect immediately. 19 ACTING PRESIDENT MEIER: Call the 20 roll. 21 (The Secretary called the roll.) 22 THE SECRETARY: Ayes, 59. 23 ACTING PRESIDENT MEIER: The bill 24 is passed. 25 THE SECRETARY: Calendar Number

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(518) 371-8910 1 343, by Senator Volker, Senate Print 3117, an 2 act to amend the Penal Law, in relation to 3 unlawful operation. 4 ACTING PRESIDENT MEIER: Read the 5 last section. 6 THE SECRETARY: Section 2. This 7 act shall take effect on the first of 8 November. 9 ACTING PRESIDENT MEIER: Call the 10 roll. 11 (The Secretary called the roll.) 12 THE SECRETARY: Ayes, 58. Nays, 13 1. Senator Duane recorded in the negative. 14 ACTING PRESIDENT MEIER: The bill 15 is passed. 16 THE SECRETARY: Calendar Number 17 387, by Senator Balboni, Senate Print 3095A, 18 an act authorizing the assessor of the County 19 of Nassau. 20 ACTING PRESIDENT MEIER: Read the 21 last section. 22 THE SECRETARY: Section 2. This 23 act shall take effect immediately. 24 ACTING PRESIDENT MEIER: Call the 25 roll.

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(518) 371-8910 1 (The Secretary called the roll.) 2 THE SECRETARY: Ayes, 58. Nays, 3 1. Senator Bonacic recorded in the negative. 4 ACTING PRESIDENT MEIER: The bill 5 is passed. 6 THE SECRETARY: Calendar Number 7 389, by Senator Winner, Senate Print 1387, an 8 act to amend the Parks, Recreation and 9 Historic -- 10 SENATOR SCHNEIDERMAN: Lay it 11 aside. 12 ACTING PRESIDENT MEIER: Lay the 13 bill aside. 14 THE SECRETARY: Calendar Number 15 456, by Senator Larkin, Senate Print 2348A, an 16 act to amend the Penal Law, in relation to 17 cemetery desecration. 18 ACTING PRESIDENT MEIER: Read the 19 last section. 20 THE SECRETARY: Section 10. This 21 act shall take effect on the 180th day. 22 ACTING PRESIDENT MEIER: Call the 23 roll. 24 (The Secretary called the roll.) 25 THE SECRETARY: Ayes, 59.

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(518) 371-8910 1 ACTING PRESIDENT MEIER: The bill 2 is passed. 3 THE SECRETARY: Calendar Number 4 521, by the Senate Committee on Rules, Senate 5 Print Number 3644, an act to amend the Tax 6 Law, in relating to extending. 7 ACTING PRESIDENT MEIER: Read the 8 last section. 9 THE SECRETARY: Section 3. This 10 act shall take effect immediately. 11 ACTING PRESIDENT MEIER: Call the 12 roll. 13 (The Secretary called the roll.) 14 THE SECRETARY: Ayes, 59. 15 ACTING PRESIDENT MEIER: The bill 16 is passed. 17 THE SECRETARY: Calendar Number 18 572, by Senator Marcellino, Senate Print 3764, 19 an act in relation to granting active-duty 20 status. 21 ACTING PRESIDENT MEIER: Read the 22 last section. 23 THE SECRETARY: Section 2. This 24 act shall take effect immediately. 25 ACTING PRESIDENT MEIER: Call the

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(518) 371-8910 1 roll. 2 (The Secretary called the roll.) 3 THE SECRETARY: Ayes, 59. 4 ACTING PRESIDENT MEIER: The bill 5 is passed. 6 THE SECRETARY: Calendar Number 7 579, by Senator Spano, Senate Print 3282, an 8 act to amend the Labor Law, in relation to 9 lists of independent contractors. 10 ACTING PRESIDENT MEIER: Read the 11 last section. 12 THE SECRETARY: Section 2. This 13 act shall take effect immediately. 14 ACTING PRESIDENT MEIER: Call the 15 roll. 16 (The Secretary called the roll.) 17 ACTING PRESIDENT MEIER: Senator 18 Montgomery, to explain her vote. 19 SENATOR MONTGOMERY: Yes, Mr. 20 President, briefly to explain my vote. 21 This is a very important bill. I'm 22 very happy to see this on the calendar. I 23 hope that it becomes law. 24 And to the sponsor, it's not only a 25 problem for union -- trades union people, but

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(518) 371-8910 1 it's a huge problem for minority- and 2 women-owned businesses. 3 And so if the contractor is forced 4 to list the subcontractors and independent 5 contractors, that I think would be helpful to 6 keep them from hiding and providing false 7 information as it relates to minority- and 8 women-owned contractors. 9 So I fully support this and 10 certainly will be voting yes. Thank you. 11 ACTING PRESIDENT MEIER: Senator 12 Montgomery will be recorded in the 13 affirmative. 14 The Secretary will announce the 15 results. 16 THE SECRETARY: Ayes, 59. 17 ACTING PRESIDENT MEIER: The bill 18 is passed. 19 THE SECRETARY: Calendar Number 20 580, by Senator Trunzo, Senate Print 3358, an 21 act to amend the Labor Law, in relation to 22 requiring employers. 23 ACTING PRESIDENT MEIER: Read the 24 last section. 25 THE SECRETARY: Section 3. This

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(518) 371-8910 1 act shall take effect on the 30th day. 2 ACTING PRESIDENT MEIER: Call the 3 roll. 4 (The Secretary called the roll.) 5 THE SECRETARY: Ayes, 59. 6 ACTING PRESIDENT MEIER: The bill 7 is passed. 8 THE SECRETARY: Calendar Number 9 596, by Member of the Assembly O'Donnell, 10 Assembly Print Number 7254, an act to amend 11 the Estates, Powers and Trusts Law, in 12 relation to the effect of dispositions. 13 ACTING PRESIDENT MEIER: Read the 14 last section. 15 THE SECRETARY: Section 2. This 16 act shall take effect immediately. 17 ACTING PRESIDENT MEIER: Call the 18 roll. 19 (The Secretary called the roll.) 20 THE SECRETARY: Ayes, 59. 21 ACTING PRESIDENT MEIER: The bill 22 is passed. 23 THE SECRETARY: Calendar Number 24 608, by Member of the Assembly Bing, Assembly 25 Print Number 4762, an act to amend the

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(518) 371-8910 1 Executive Law, in relation to posting. 2 ACTING PRESIDENT MEIER: Read the 3 last section. 4 THE SECRETARY: Section 2. This 5 act shall take effect immediately. 6 ACTING PRESIDENT MEIER: Call the 7 roll. 8 (The Secretary called the roll.) 9 THE SECRETARY: Ayes, 59. 10 ACTING PRESIDENT MEIER: The bill 11 is passed. 12 THE SECRETARY: Calendar Number 13 620, by Senator Volker, Senate Print 3822, an 14 act to amend the Penal Law, in relation to the 15 causing of death. 16 ACTING PRESIDENT MEIER: Read the 17 last section. 18 THE SECRETARY: Section 6. This 19 act shall take effect on the 90th day. 20 ACTING PRESIDENT MEIER: Call the 21 roll. 22 (The Secretary called the roll.) 23 THE SECRETARY: Ayes, 59. 24 ACTING PRESIDENT MEIER: The bill 25 is passed.

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(518) 371-8910 1 THE SECRETARY: Calendar Number 2 644, by Senator Robach, Senate Print 4131, an 3 act to authorize Joseph Palermo to transfer 4 certain prior service. 5 ACTING PRESIDENT MEIER: Read the 6 last section. 7 THE SECRETARY: Section 3. This 8 act shall take effect immediately. 9 ACTING PRESIDENT MEIER: Call the 10 roll. 11 (The Secretary called the roll.) 12 THE SECRETARY: Ayes, 59. 13 ACTING PRESIDENT MEIER: The bill 14 is passed. 15 THE SECRETARY: Calendar Number 16 651, by Senator Maziarz, Senate Print 23, an 17 act to amend the Correction Law, in relation 18 to authorizing. 19 ACTING PRESIDENT MEIER: Read the 20 last section. 21 THE SECRETARY: Section 3. This 22 act shall take effect immediately. 23 ACTING PRESIDENT MEIER: Call the 24 roll. 25 (The Secretary called the roll.)

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(518) 371-8910 1 THE SECRETARY: Ayes, 59. 2 ACTING PRESIDENT MEIER: The bill 3 is passed. 4 THE SECRETARY: Calendar Number 5 660, by Senator Nozzolio, Senate Print Number 6 507, an act to authorize the Village of Victor 7 to convey certain parklands. 8 ACTING PRESIDENT MEIER: There is 9 a home-rule message at the desk. 10 Read the last section. 11 THE SECRETARY: Section 5. This 12 act shall take effect immediately. 13 ACTING PRESIDENT MEIER: Call the 14 roll. 15 (The Secretary called the roll.) 16 THE SECRETARY: Ayes, 59. 17 ACTING PRESIDENT MEIER: The bill 18 is passed. 19 THE SECRETARY: Calendar Number 20 664, by Senator Morahan, Senate Print 3350, an 21 act to amend the Real Property Tax Law, in 22 relation to providing. 23 ACTING PRESIDENT MEIER: Read the 24 last section. 25 THE SECRETARY: Section 2. This

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(518) 371-8910 1 act shall take effect on the first of January. 2 ACTING PRESIDENT MEIER: Call the 3 roll. 4 (The Secretary called the roll.) 5 THE SECRETARY: Ayes, 59. 6 ACTING PRESIDENT MEIER: The bill 7 is passed. 8 THE SECRETARY: Calendar Number 9 665, by Senator Golden, Senate Print 3543, an 10 act to authorize the Muslim American Society 11 to file an application. 12 ACTING PRESIDENT MEIER: Read the 13 last section. 14 THE SECRETARY: Section 2. This 15 act shall take effect immediately. 16 ACTING PRESIDENT MEIER: Call the 17 roll. 18 (The Secretary called the roll.) 19 THE SECRETARY: Ayes, 58. Nays, 20 1. Senator Bonacic recorded in the negative. 21 ACTING PRESIDENT MEIER: The bill 22 is passed. 23 Senator Skelos, that completes the 24 noncontroversial reading of the calendar. 25 SENATOR SKELOS: Thank you, Mr.

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(518) 371-8910 1 President. If we could go to the 2 controversial reading at this time. 3 ACTING PRESIDENT MEIER: Members 4 are asked to come to the chamber for the 5 controversial reading of the calendar. 6 The Secretary will sound the bells. 7 The Secretary will conduct the 8 controversial reading of the calendar. 9 THE SECRETARY: Calendar Number 10 389, by Senator Winner, Senate Print 1387, an 11 act to amend the Parks, Recreation and 12 Historic Preservation Law and the General 13 Municipal Law. 14 SENATOR SCHNEIDERMAN: 15 Explanation. 16 ACTING PRESIDENT MEIER: Senator 17 Winner, an explanation has been requested by 18 Senator Schneiderman. 19 SENATOR WINNER: Thank you, Mr. 20 President. 21 This is a very simple bill that 22 provides for expansion of the current law 23 regarding the ability of volunteers to 24 participate in adopt-a-park municipal 25 activities, whereby they can clean up

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(518) 371-8910 1 municipal parks for the benefit of the 2 taxpayers and those that would like to utilize 3 those parks. 4 The bill would also authorize, with 5 regard to the existing adopt-a-park 6 legislation or law, which went into effect in 7 1991, it would allow volunteers to enter into 8 a -- 9 ACTING PRESIDENT MEIER: Excuse 10 me, Senator Winner. 11 Can we have some quiet in the 12 chamber. It is very difficult to hear Senator 13 Winner. 14 Senator Winner. 15 SENATOR WINNER: Thank you, Mr. 16 President. 17 It would allow municipalities to 18 enter into agreements with volunteers for the 19 purposes of maintaining and enhancing 20 municipal-owned parks, including remediating 21 vandalism, preserving wetlands, cleaning and 22 maintaining park property, and establishing 23 and maintaining access to nature trails, dog 24 runs, planting and maintaining flower beds and 25 other, you know, all-American-type activities

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(518) 371-8910 1 that I'm sure that I would be absolutely 2 astonished that anybody could be opposed to. 3 So with those great purposes in 4 mind, the only thing that this wouldn't allow 5 would be to allow somebody to sue somebody, 6 sue one of the municipalities if they happen 7 to fall down in the park. And I'm sure that's 8 why there's great consternation on the part of 9 those that would have opposition to this bill, 10 because, you know, we all know that those 11 targets of opportunities to get thirds are 12 diminishing all the time. 13 And so under those circumstances, 14 for the purposes of establishing increased 15 volunteerism, preserving and enhancing our 16 municipal parks, and all those other good 17 government purposes, I would urge the adoption 18 of this measure, which has passed in the last 19 legislative session. 20 ACTING PRESIDENT MEIER: Senator 21 Schneiderman. 22 SENATOR SCHNEIDERMAN: Thank you, 23 Mr. President, on the bill. 24 We've debated this bill. Senator 25 Winner is new here, but this bill is not.

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(518) 371-8910 1 And, I guess, you know, as the old expression 2 goes, you have to take the bitter with the 3 sweet when you inherit things. 4 The reason that many of us have 5 opposed this bill in the past is very simple. 6 Section 3, on the second page of this bill, 7 essentially creates a two-tier system of civil 8 liability for the parks of the State of 9 New York. It states that no city, town or 10 village which would ordinarily be responsible 11 for maintaining a park shall be liable for 12 damages suffered by any persons resulting from 13 the actions or activities of volunteers or 14 groups that Senator Winner has identified. 15 So in other words, if you're in a 16 park and you're walking along and a parks 17 department employee has negligently left their 18 chainsaw running and you're injured by it, 19 then you could sue the municipality. If you 20 walk through and a volunteer has negligently 21 left their chainsaw running and you're injured 22 by it, you couldn't sue. 23 So it creates a two-tier system 24 which really just doesn't make any sense, 25 frankly. It's something that I don't think is

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(518) 371-8910 1 going to become law, because it's of this sort 2 of provision which is not really so much an 3 anti-civil justice provision as it is an 4 irrational provision. 5 If anything, I would think that we 6 would be more concerned that volunteers might 7 be negligent, might do things that might cause 8 injury because they're volunteers, they're not 9 professional employees, they don't have the 10 training, they're not subject to the 11 jurisdiction that public employees would be in 12 performing their duties. 13 And yet this law would 14 counterintuitively set up a situation in 15 which, if volunteers commit negligence acts 16 and you're injured -- the public should not 17 have to worry about whether their park is 18 maintained by parks employees or by 19 volunteers. If you're injured and there is 20 fault, you should have the same right to sue. 21 I personally -- and we may have a 22 disagreement over whether the civil justice 23 system is a good thing, whether it helps make 24 the world a safer place to have securities 25 lawsuits and to have tort actions against

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(518) 371-8910 1 people who commit negligent acts. I happen to 2 think the civil justice system is an important 3 part of our economic structure and the system 4 of justice in this country, and Senator Winner 5 may disagree. 6 But I don't think there's a 7 coherent argument that we should have a 8 two-tier system of justice in parks where your 9 right to recovery depends on whether a 10 particular act was performed by a volunteer or 11 a park worker, which would be the effect of 12 this bill. 13 So I think it's -- I think that 14 this is not a bill that's going to become law 15 soon. And I would suggest that if we want to 16 move forward with adopt-a-park programs and 17 other programs like this, that we take out 18 this sort of irrational poison pill and move 19 ahead. 20 In the absence of that, Mr. 21 President, I will once again be voting no on 22 this piece of legislation. 23 Thank you. 24 ACTING PRESIDENT MEIER: Any 25 other Senator wish to be heard?

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(518) 371-8910 1 Senator Hassell-Thompson. 2 SENATOR HASSELL-THOMPSON: Thank 3 you, Mr. President. 4 Each year that this bill has come 5 to the table, I have stood and perhaps said 6 the same thing, and that is that in principle 7 I am very supportive of adopt-a-park projects. 8 But I continue to have the same concern as my 9 colleague Senator Schneiderman that there is 10 no liability coverage for volunteers. 11 I remember being involved in a 12 community organizational project for our 13 community, and one of our volunteers got his 14 hand -- lost a couple of fingers in helping us 15 to set up this amusement area that we were 16 preparing for the children. And we had no 17 coverage for the volunteers, and we had to 18 sustain a lawsuit. And of course we had to 19 encourage the lawsuit, because the person 20 didn't -- he was not insured. 21 I'm not only a proponent of 22 adopt-a-parks, but I have created them in my 23 own community in the past, and they are very 24 important for the involvement of 25 public/private sector participation. And

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(518) 371-8910 1 certainly it takes the weight off of 2 government in terms of how we fund different 3 projects that we do, whether it's 4 adopt-a-highway or adopt-a-park. 5 I would like to hope that the 6 sponsor of this bill would look at the 7 liability issues so that we can all support 8 this bill and make sure that there is passage, 9 because there are too many good things in this 10 bill for us to lose it based upon the issue of 11 liability. 12 Thank you, Mr. President. 13 ACTING PRESIDENT MEIER: Senator 14 Hannon. 15 SENATOR HANNON: Yes, Mr. 16 President. 17 I think the provision of the bill 18 that the floor leader for the Minority has 19 pointed out, which he articulated very well, 20 points out an essential flaw in his argument. 21 He talks about two-tier. The point is that 22 there is activity that is not going on now 23 because people will not volunteer because 24 they're afraid of liability. 25 So to anybody who's worried about

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(518) 371-8910 1 what's happening now, they don't have to 2 worry; it's not taking place. But by giving 3 people a status that if they volunteer, come 4 in and benefit society in general and the 5 people who are users of this facility, then 6 the activity will occur. But you're not going 7 to have it unless you give them some type of 8 protection. 9 So, yes, it may not happen, but the 10 trouble is, who will suffer? It will be the 11 residents of this state who won't have the 12 help, won't have the volunteers that go out 13 there to try to better the facilities for the 14 rest. 15 Thank you. 16 ACTING PRESIDENT MEIER: Senator 17 Connor. 18 SENATOR CONNOR: Thank you, Mr. 19 President. 20 You know, I've debated over the 21 years all these various little twists and 22 exemptions and carve-outs that different 23 legislation has attempted with respect to the 24 liability of tortfeasors. 25 And the reality is that, and I've

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(518) 371-8910 1 said it before, any exception that doesn't 2 relate to the duty of care owed to the public, 3 the relationship between the tortfeasor and 4 the injured person and the conduct, the actual 5 conduct, whether it was negligent or not, 6 ought not be allowed. 7 The old example for years and years 8 and years in New York City, when Mayor Koch 9 was mayor, he pushed very, very hard for 10 municipal liability exemptions. And the 11 classic example was we then, and until 12 recently, had private buses operating under 13 franchise in New York City as well as the City 14 Transit Authority buses. 15 And I've said it before, to the 16 person who got run over by the negligent 17 driving of a bus, what does it really matter 18 whether the person behind the wheel was a 19 public employee or a private employee? It 20 should be the conduct, it should be the duty 21 of care anyone driving a bus or operating it 22 owes to the public, and that particular 23 conduct. 24 In terms of the insuring the 25 volunteers, as Senator Hannon pointed out, or

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(518) 371-8910 1 getting volunteers to volunteer, there's a 2 simple answer to all this. It's called 3 insurance. It's called indemnification. The 4 municipality, if they want the program, can 5 indemnify and they can buy insurance. 6 Now, you say is such insurance 7 available. Well, once upon a time, about ten 8 years ago when I became leader in this 9 conference, we had a campaign committee. And 10 when I started, we had no insurance policies, 11 and when I left we had half a dozen of them. 12 And one of them, I recollect -- and 13 I assume it's still in effect; I would hope 14 so -- insured volunteers in campaigns and 15 their conduct. I.e., if a campaign volunteer 16 injured someone, it covered that. 17 So there is insurance you can buy. 18 If you're going to be responsible about 19 running the program -- and I would think any 20 municipality with a parks department would -- 21 you buy insurance. And then you go ahead. 22 That way you protect the public, just as 23 they're protected if it were a municipal 24 employee's negligence, by the fact that the 25 municipality probably self-insures in those

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(518) 371-8910 1 cases. It may not. They may have insurance. 2 The answer is insurance, Mr. 3 President. 4 ACTING PRESIDENT MEIER: Senator 5 Sabini. 6 Senator Sabini waives. 7 Any other Senator wish to be heard? 8 The debate is closed, then. 9 The Secretary will ring the bells. 10 Members are asked to come to the 11 chamber for a vote. 12 Read the last section. 13 THE SECRETARY: Section 3. This 14 act shall take effect on the 180th day. 15 ACTING PRESIDENT MEIER: Call the 16 roll. 17 (The Secretary called the roll.) 18 ACTING PRESIDENT MEIER: Senator 19 Winner, to explain his vote. 20 SENATOR WINNER: Very briefly, 21 Mr. President. 22 The arguments in opposition to this 23 bill with regard to opening up the whole 24 liability debate is precisely not really what 25 this bill is about. That debate is already

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(518) 371-8910 1 over. That's been in the law since 1991 and 2 1985, when we had the adopt-a-highway program. 3 All this is doing is adding the State of 4 New York and its parks to the existing 5 statutory scheme of escaping from liability. 6 And the argument with regard to 7 insurance is just as specious. The reason why 8 we don't have anybody doing this is because 9 they can't afford the insurance. And 10 therefore, that's the reason why the 11 volunteers who want to participate in this 12 good government opportunity are being 13 foreclosed by municipalities who don't have 14 and can't afford the insurance to cover those 15 activities. 16 So, Mr. President, this legislation 17 ought to be passed, due to the fact that all 18 it does is add the state park system into the 19 already existing municipal parks that are 20 already allowed to have these adopt-a-park 21 programs. 22 ACTING PRESIDENT MEIER: Senator 23 Winner will be recorded in the affirmative. 24 Senator DeFrancisco, to explain his 25 vote.

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(518) 371-8910 1 SENATOR DeFRANCISCO: I think the 2 older you get, the -- you start losing some 3 brain cells. Because I've voted consistently 4 against this bill, and I find my name as a 5 cosponsor. 6 (Laughter.) 7 SENATOR DeFRANCISCO: And it must 8 have been one of those late evenings. 9 So I'd like to vote no. And if 10 there's a procedural way to remove myself as 11 cosponsor, I would like that to happen too. 12 ACTING PRESIDENT MEIER: Senator 13 DeFrancisco will be recorded in the negative. 14 Senator Volker, to explain his 15 vote. 16 SENATOR VOLKER: Mr. President, 17 to explain my vote. 18 I just do want to say that anyone 19 who leaves a running chainsaw has got another 20 problem. 21 (Laughter.) 22 SENATOR VOLKER: So I think that 23 might be an intentional tort. I don't think 24 you can escape liability from that. So I 25 think that maybe that's a little specious.

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(518) 371-8910 1 But in any case, I happen to agree 2 with Senator Winner. And I certainly 3 understand the reason for the opposition to 4 this. 5 But I have to say that the cost of 6 insurance would drop a ton if we could get rid 7 of some of these situations that I think lend 8 more to trial lawyers' importance than 9 anything else. 10 I vote aye. 11 ACTING PRESIDENT MEIER: Senator 12 Volker will be recorded in the affirmative. 13 The Secretary will announce the 14 results. 15 THE SECRETARY: Those recorded in 16 the negative on Calendar Number 389 are 17 Senators Andrews, Brown, Connor, DeFrancisco, 18 Duane, Gonzalez, Hassell-Thompson, Klein, 19 L. Krueger, Onorato, Parker, Sabini, Savino, 20 Schneiderman, Serrano, A. Smith, Stachowski, 21 and Stavisky. Also Senator Montgomery. 22 Ayes, 40. Nays, 19. 23 ACTING PRESIDENT MEIER: The bill 24 is passed. 25 Senator Skelos, that completes the

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(518) 371-8910 1 controversial reading of the calendar. 2 SENATOR SKELOS: Mr. President, 3 is there any further business to come before 4 the Senate? 5 ACTING PRESIDENT MEIER: There's 6 no further business at the desk. 7 SENATOR SKELOS: There being no 8 further business to come before the Senate, I 9 move we stand adjourned until Tuesday, 10 May 10th, at 3:00 p.m. 11 ACTING PRESIDENT MEIER: On 12 motion, the Senate stands adjourned until 13 Tuesday, May 10th, at 3:00 p.m. 14 (Whereupon, at 3:48 p.m., the 15 Senate adjourned.) 16 17 18 19 20 21 22 23 24 25

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