April 15, 2008

Top of Form 1
Date: 04/15/2008
Session: Regular
1534
1 NEW YORK STATE SENATE
4 THE STENOGRAPHIC RECORD
9 ALBANY, NEW YORK
10 April 15, 2008
11 3:14 p.m.
12
13
14 REGULAR SESSION
15
16
17
18 SENATOR JOSEPH A. GRIFFO, Acting President
19 STEVEN M. BOGGESS, Secretary
20
21
22
23
24
25
Candyco Transcription Service, Inc.

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1 P R O C E E D I N G S
2 ACTING PRESIDENT GRIFFO: The
3 Senate will come to order.
4 I ask all present to rise and join
5 with me as we recite the Pledge of Allegiance
6 to our Flag.
7 (Whereupon, the assemblage recited
8 the Pledge of Allegiance to the Flag.)
10 invocation today will be offered by the
11 Reverend Richard Klueg, pastor of the Baptist
12 Church of Northville.
13 REVEREND KLUEG: Thank you.
14 Please bow with me.
15 Our gracious Father in heaven, we
16 want to thank You so much for being here today
17 for these men and women serving our state,
18 serving You. We ask for Your wisdom for them.
19 We ask You to give them courage, ask You to
20 give them insight.
21 We pray for their personal lives,
22 Father, that You will bless them, their
23 families, all their loved ones, give them good
24 health and strength.
25 Father, we pray for our state. We

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1 thank You for it, for the prosperity we enjoy,
2 the peace we enjoy. We pray that will
3 continue and abound. And I pray that the work
4 that's done here today will help us to
5 progress even further in those directions.
6 We thank You so much. And I pray
7 in the name of my savior, Jesus Christ.
8 Amen.
9 ACTING PRESIDENT GRIFFO: Thank
10 you, Reverend Klueg.
11 The reading of the Journal.
12 THE SECRETARY: In Senate,
13 Monday, April 14, the Senate met pursuant to
14 adjournment. The Journal of Sunday, April 13,
15 was read and approved. On motion, Senate
16 adjourned.
17 ACTING PRESIDENT GRIFFO: Without
18 objection, the Journal stands approved as
19 read.
20 Presentation of petitions.
21 Messages from the Assembly.
22 Messages from the Governor.
23 Reports of standing committees.
24 Reports of select committees.
25 Communications and reports from

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1 state officers.
2 Motions and resolutions.
3 Senator Seward.
4 SENATOR SEWARD: Yes,
5 Mr. President. On behalf of Senator
6 DeFrancisco, on page number 30 I offer the
7 following amendments to Calendar Number 545,
8 Senate Print Number 1829A, and ask that the
9 said bill retain its place on the Third
10 Reading Calendar.
12 amendments are received and adopted, and the
13 bill will retain its place on the Third
14 Reading Calendar.
15 Senator Skelos.
16 SENATOR SKELOS: Mr. President, I
17 believe there are two substitutions at the
18 desk. If we could make them at this time.
19 ACTING PRESIDENT GRIFFO: Yes, we
20 do. The Secretary will read.
21 THE SECRETARY: On page 41,
22 Senator Saland moves to discharge, from the
23 Committee on Codes, Assembly Bill Number 614
24 and substitute it for the identical Senate
25 Bill Number 2452, Third Reading Calendar 752.

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1 And on page 42, Senator Volker
2 moves to discharge, from the Committee on
3 Codes, Assembly Bill Number 5513C and
4 substitute it for the identical Senate Bill

5 Number 3845C, Third Reading Calendar 757.
6 ACTING PRESIDENT GRIFFO:
7 Substitutions so ordered.
8 Senator Skelos.
9 SENATOR SKELOS: Mr. President,
10 if we could adopt the Resolution Calendar,
11 with the exception of Resolution 5284.
12 ACTING PRESIDENT GRIFFO: All in
13 favor of adopting the Resolution Calendar,
14 with the exception of Resolution 5284, signify
15 by saying aye.
16 (Response of "Aye.")
18 Opposed, nay.
19 (No response.)
21 Resolution Calendar is adopted.
22 Senator Skelos.
23 SENATOR SKELOS: I believe,
24 Senator Connor, you wanted to make a comment.
25 ACTING PRESIDENT GRIFFO: Senator

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1 Connor.
2 SENATOR CONNOR: Yes, thank you,
3 Mr. President. Just briefly.
4 This resolution recognizes the
5 achievements of Dr. Frank Macchiarola, who I
6 think many of us know. He has served in many
7 positions over the years, including as

8 chancellor of the New York City Board of
9 Education. He's served on various commissions
10 and governmental bodies. He served as the
11 dean of Cardoza Law School. And for these
12 last so many years, he has been the president
13 of St. Francis College.
14 He is now retiring from that
15 position, and this resolution recognizes his
16 many accomplishments, both his scholarly
17 accomplishments as well as the public service
18 he has rendered from time to time over a long
19 and wonderful career.
20 There is an event where he will be
21 recognized and honored and where the
22 resolution will be presented to benefit
23 St. Francis College, which I'm privileged to
24 have in my district, a mere two or three
25 blocks away from my home -- a wonderful

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1 institution that's graduated many, many
2 distinguished alumni, including Dr. Frank
3 Macchiarola.
4 And I would ask if any of my
5 colleagues would like to join on the
6 resolution -- I suspect perhaps Brooklyn
7 colleagues or others would like to -- that I
8 would open it up.
9 Thank you, Mr. President.

11 you, Senator Connor, for your comments on
12 Resolution 5204.
13 Senator Skelos.
15 if we could have Resolution 5284, by Senator
16 Marcellino, read in its entirety at this time.
18 Skelos, without objection, will we open up the
19 Connor resolution, 5204?
20 SENATOR SKELOS: Before we read
21 that, I believe Senator Connor wanted to have
22 his resolution opened up for sponsorship. If
23 anybody wishes not to cosponsor it, they
24 should notify the desk.
25 ACTING PRESIDENT GRIFFO: So

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1 noted. If you choose not to be a cosponsor,
2 please notify the desk on Resolution 5204 by
3 Senator Connor.
4 The Secretary will now read
5 Resolution 5284, from Senator Marcellino.
6 THE SECRETARY: By Senator
7 Marcellino, Legislative Resolution Number
8 5284, commemorating the 38th Anniversary of
9 Earth Day on April 22, 2008.
10 "WHEREAS, It is the sense of this
11 Legislative Body to recognize and pay tribute
12 to those organizations dedicating their
13 purposeful work to increasing public awareness

14 of, and appreciation for, the natural
15 resources of New York, recognizing the role
16 all citizens have in protecting the
17 environment and the quality of life in this
18 Empire State; and
19 "WHEREAS, On April 22, 1970,
20 approximately 5 million Americans participated
21 in the first Earth Day demonstration to
22 express their concerns over the environment
23 and the fate of the planet; and
24 "WHEREAS, In the past 38 years that
25 have passed since the original Earth Day, the

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1 planet has been subjected to the continuing
2 burdens of world population growth, increasing
3 commercial and residential development, ocean
4 pollution, increasing stores of toxic and
5 nuclear waste, and the other similar assaults
6 that have exacerbated the growing dangers of
7 global climate change, ozone depletion, toxic
8 poisoning deforestation, and mass species
9 extinctions; and
10 "WHEREAS, Following the first Earth
11 Day and the demonstrations of the concerns of
12 over 20 million Americans, a collective
13 national action has resulted in the passage of
14 sweeping new laws to protect the invaluable
15 resources of air, land and water; and
16 "WHEREAS, April 22, 2008, marks the

17 38th anniversary of Earth Day, a day set aside
18 to celebrate the beauty and bounty of our
19 environment and to revitalize the efforts
20 required to protect and maintain respect for
21 the environment and its resources; and
22 "WHEREAS, Earth Day 2008 activities
23 and events will educate all citizens on the
24 importance of acting in an environmentally
25 sensitive fashion by recycling, conserving

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1 energy and water, using efficient
2 transportation, and adopting more ecologically
3 sound lifestyles; and
4 "WHEREAS, Earth Day 2008 activities
5 and events will educate all citizens on the
6 importance of supporting the passage of
7 legislation that will help protect the
8 environment, and will highlight the importance
9 of a heightened awareness of environmental
10 concerns amongst our state's leaders; and
11 "WHEREAS, The goal of Earth Day
12 2008 is not to plan only one day of events and
13 activities, but to continue worldwide efforts
14 to protect all aspects of the environment;
15 now, therefore, be it
16 "RESOLVED, That this Legislative
17 Body pause in its deliberations to commemorate
18 the 38th Anniversary of Earth Day on April 22,
19 2008; and be it further

20 "RESOLVED, That this Legislative
21 Body congratulate all the concerned citizens
22 of New York State who have embraced the
23 responsible work of protecting and preserving
24 the environment for future generations."

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1 Marcellino.
2 SENATOR MARCELLINO: Thank you,
3 Mr. President. I rise because Senator
4 Morahan, my seatmate over here, urged me to do
5 so today to remind everyone we're
6 commemorating the 38th anniversary of Earth
7 Day, and to also remind us that we should
8 never, ever take for granted what we have on
9 this planet, and that only one day a year
10 should not be the only day we think about the
11 earth and our environment.
12 They ain't making any more planets
13 like this. This is the only one we're going
14 to have. This is the only one our children
15 and our grandchildren and future generations
16 are going to have. We owe it to them to leave
17 this place better than we found it and to make
18 sure we preserve and protect the natural
19 resources. And amongst those natural
20 resources are the critters, the wildlife,
21 plants and any other things that inhabit this
22 planet that we share.

23 We have many challenges ahead of
24 us. We have mountains of tires; no one knows
25 what to do with them. We have mountains of

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1 electronic equipment that goes out of date --
2 almost two days after you buy something,
3 there's a new one on the market. What are we
4 going to do with the old stuff? We call it
5 e-waste. That's a fancy term for garbage.
6 We've got to learn how to handle
7 what we generate and what we produce. We've
8 got to learn how to protect the species that
9 we, because of our ability to take, are taking
10 faster than they can reproduce and replenish
11 themselves.
12 There are several bills going to
13 come up during the year where we're going to
14 ask to preserve and limit the take on catch on
15 certain types of fish and other wildlife. We
16 need to do that to preserve and protect them
17 and make sure that they can maintain
18 themselves on this planet. We're just too
19 good at taking. We've got to learn how to put
20 back and leave alone.
21 We need to go into new directions
22 and new technologies to generate power. We've
23 got to get away from fossil fuel. We need a
24 strong energy policy not only in New York
25 State but in the United States of America. We

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1 need an energy policy.
2 I am calling upon all the young
3 people that I spoke to today and everyone in
4 this chamber and everyone you can reach: Go
5 out there, talk about this issue, talk about
6 our planet and make sure we keep it and
7 preserve it and protect it. It is the most
8 important thing we will be doing and that we
9 can do for our children, our grandchildren,
10 and future generations to follow. This is an
11 imperative.
12 Mr. President, I ask that this
13 resolution be opened to all members of the
14 chamber. Anyone wishing not to be on it,
15 please notify the desk. It is for everyone,
16 it should be for everyone.
17 And I thank you and urge everyone
18 to remember, not only one day a year but every
19 day of the year should be Earth Day.
22 you, Senator Marcellino.
23 Senator Skelos, shall we apply the
24 usual consideration?
25 SENATOR SKELOS: Yes. If anybody

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1 wishes not to sponsor the resolution, they

2 should contact the desk.
4 you.
5 The question is on the resolution.
6 All in favor signify by saying aye.
9 Opposed, nay.
10 (No response.)
12 resolution is adopted.
13 If you choose not to be on, please
14 notify the desk.
15 Senator Skelos.
16 SENATOR SKELOS: If we could go
17 to the noncontroversial reading of the
18 calendar.
20 Secretary will read.
21 THE SECRETARY: Calendar Number
22 130, by Senator Farley, Senate Print 6751, an
23 act to amend the Civil Service Law and the
24 Public Authorities Law, in relation to civil
25 service status.

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1 ACTING PRESIDENT GRIFFO: Read
2 the last section.
3 THE SECRETARY: Section 3. This
4 act shall take effect immediately.

5 ACTING PRESIDENT GRIFFO: Call
6 the roll.
7 (The Secretary called the roll.)
8 THE SECRETARY: Ayes, 59.
10 bill is passed.
12 723, by Senator Skelos, Senate Print 4055, an
13 act to amend the General Business Law, in
14 relation to authorizing collateral loans.
16 the last section.
18 act shall take effect on the 30th day.
20 the roll.
24 bill is passed.

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1 739, by Senator Leibell, Senate Print 3643, an
2 act to amend the Executive Law, in relation to
3 powers and duties.
5 the last section.

9 the roll.
13 bill is passed.
15 741, by Senator Leibell, Senate Print 3811, an
16 act to amend the Penal Law, in relation to
17 establishing --
18 SENATOR SKELOS: Lay it aside for
19 the day, please.
20 ACTING PRESIDENT GRIFFO: Lay it
21 aside for the day.
23 746, by Senator Maziarz, Senate Print 500, an
24 act to amend the Penal Law, in relation to the
25 crime of obstructing firefighting operations.

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2 the last section.
4 act shall take effect on the first of
5 November.
7 the roll.

11 bill is passed.
13 747, by Senator Marcellino, Senate Print 610,
14 an act to amend the Penal Law, in relation to
15 establishing the crime of terrorism
16 recruitment.
21 November.
23 the roll.
25 THE SECRETARY: Ayes, 57. Nays,

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1 2. Senators Hassell-Thompson and Montgomery
2 recorded in the negative.
4 bill is passed.
6 748, by Senator Skelos, Senate Print 640, an
8 possession of disguised knives.
13 November.
15 the roll.
17 THE SECRETARY: Those recorded in
18 the negative on Calendar Number 748 are
19 Senators Duane, Hassell-Thompson, Montgomery,
20 Perkins, Schneiderman and Serrano.
21 Ayes, 53. Nays, 6.
23 bill is passed.
25 749, by Senator Padavan, Senate Print 1600, an

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1 act to amend the Criminal Procedure Law and
2 the Penal Law, in relation to aggravated crime
3 conduct.
5 the last section.
9 the roll.
12 Announce the results.
15 Senators Adams, Dilan, Duane,
16 Hassell-Thompson, Huntley, L. Krueger,

17 Montgomery, Perkins and Schneiderman. Also
18 Senator Gonzalez.
19 Ayes, 50. Nays, 10.
21 bill is passed.
23 750, by Senator Winner, Senate Print 2123, an
24 act to amend the Penal Law, in relation to the
25 imposition of driver's license suspensions.

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2 the last section.
5 November.
7 the roll.
13 Senators Adams, Connor, Diaz, Dilan, Duane,
14 Gonzalez, Hassell-Thompson, Huntley,
15 L. Krueger, Montgomery, Perkins, and
16 Schneiderman.
17 Ayes, 48. Nays, 12.
19 bill is passed.
21 751, by Senator Libous, Senate Print 2146, an
23 provision of large quantities.

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3 November.
5 the roll.
9 bill is passed.
11 752, substituted earlier today by Member of
12 the Assembly Paulin, Assembly Print Number
13 614, an act to amend the Penal Law, in
14 relation to criminal mischief.
20 the roll.

24 bill is passed.

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1 754, by Senator Flanagan, Senate Print 3329,
3 payment of restitution.
5 the last section.
9 the roll.
12 1. Senator Duane recorded in the negative.
14 bill is passed.
16 756, by Senator Volker, Senate Print 3566, an
17 act to amend the Criminal Procedure Law, in
18 relation to waiver of pre-sentence
19 investigations.
25 the roll.
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3 1. Senator Perkins recorded in the negative.
5 bill is passed.
7 757, substituted earlier today by Member of
8 the Assembly Paulin, Assembly Print Number
9 5513C, an act to amend the Penal Law, in
10 relation to changing the threshold of age.
15 November.
17 the roll.
20 1. Senator Montgomery recorded in the
21 negative.
23 bill is passed.
25 759, by Senator Libous, Senate Print 4096, an

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2 increasing penalties.
4 the last section.
7 November.
9 the roll.
13 bill is passed.
15 760, by Senator Golden, Senate Print 4270, an
17 intentional damage.
23 the roll.

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4 Senators Duane, Hassell-Thompson, Huntley,

5 Montgomery and Perkins.
6 Ayes, 55. Nays, 5.
8 bill is passed.
10 761, by Senator Nozzolio, Senate Print 4330,
12 expanding the definition.
18 the roll.
22 bill is passed.
24 765, by Senator Volker, Senate Print 5452, an
25 act to amend the Criminal Procedure Law, in

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1 relation to notifying certain crime victims.
3 the last section.
7 the roll.
11 bill is passed.
13 766, by Senator Lanza, Senate Print 5551, an
15 arson in the first degree.
21 the roll.
25 bill is passed.

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1 Senator Skelos, that completes the
2 noncontroversial reading of the calendar.
3 SENATOR SKELOS: Thank you,
4 Mr. President.
5 If you would please recognize
6 Senator Dilan.
7 ACTING PRESIDENT GRIFFO: May we
8 have some order in the house, please.
9 Senator Dilan.
10 SENATOR DILAN: Mr. President,

11 there will be an immediate meeting of the
12 Minority conference in the Minority Conference
13 Room.
14 ACTING PRESIDENT GRIFFO: There
15 will be an immediate meeting of the Minority
16 conference in the Minority Conference Room.
17 Senator Skelos.
19 I'm informed that the conference will last
20 15 minutes. So there will be a Rules
21 Committee meeting at five to 4:00 in the
22 Majority Conference Room.
23 ACTING PRESIDENT GRIFFO: At 3:55
24 there will be a meeting of the Rules Committee
25 in the Majority Conference Room.

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1 The Senate will stand at ease.
2 (Whereupon, the Senate stood at
3 ease at 3:39 p.m.)
4 (Whereupon, the Senate reconvened
5 at 4:05 p.m.)
7 Senate will come to order.
8 Senator Skelos.
10 if we could return to reports of standing
11 committees for the report of the Rules
12 Committee.
13 ACTING PRESIDENT GRIFFO: May we

14 have order in the chamber, please.
15 We will return to the reports of
16 standing committees.
17 The Secretary will read.
18 THE SECRETARY: Senator Bruno,
19 from the Committee on Rules, reports the
20 following bills:
21 Senate Print 6793, by Senator
22 Oppenheimer, an act to amend the Tax Law;
23 And Senate Print 7038, by Senator
24 Flanagan, an act to amend Chapter 266 of the
25 Laws of 1986.

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1 Both bills ordered direct to third
2 reading.
4 Skelos.
5 SENATOR SKELOS: Move to accept
6 the report of the Rules Committee.
7 ACTING PRESIDENT GRIFFO: All in
8 favor of accepting the report of the Rules
9 Committee signify by saying aye.
12 Opposed, nay.
13 (No response.)
15 report is accepted.
16 Senator Skelos.
17 SENATOR SKELOS: If we could take
18 up Calendar Number 868, by Senator Flanagan.
23 an act to amend Chapter 266 of the Laws of
24 1986, amending the Civil Practice Law and
25 Rules.

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2 the last section.
3 SENATOR DUANE: Lay it aside,
4 please.
5 ACTING PRESIDENT GRIFFO: Lay it
6 aside.
7 There is a substitution at the
8 desk. The Secretary will read.
9 THE SECRETARY: In relation to
10 Calendar Number 867, Senator Oppenheimer moves
11 to discharge, from the Committee on
12 Investigations and Government Operations,
13 Assembly Bill Number 9679 and substitute it
14 for the identical Senate Bill Number 6793,
15 Third Reading Calendar 867.
17 Substitution so ordered.
19 please lay that bill aside.

20 ACTING PRESIDENT GRIFFO: And the
21 bill is laid aside.
23 if we could take up Calendar Number 868,
24 controversial.

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1 Secretary will ring the bell.
2 The Secretary will read Calendar
3 Number 868.
6 an act to amend Chapter 266 of the Laws of
7 1986, amending the Civil Practice Law and
8 Rules and others.
9 SENATOR PARKER: Explanation.
11 Flanagan, an explanation has been requested.
12 SENATOR FLANAGAN: Thank you,
13 Mr. President.
14 This bill is actually fairly
15 straightforward. I just want to make sure I'm
16 getting the name right. It extends the excess
17 medical malpractice liability insurance
18 program for three years, through 2011.
19 And it provides what I think most
20 people would agree is the first real
21 opportunity for a reduction in malpractice
22 premiums across the state, roughly between 6

23 and 8 percent, a real reduction to practicing
24 physicians in New York State.

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1 you, Senator Flanagan.
2 Is there any other Senator wishing
3 to be heard?
4 Then the debate is closed.
5 The Secretary will ring the bell.
6 The Secretary will read the last
7 section.
11 the roll.
14 DeFrancisco, to explain his vote.
15 SENATOR DeFRANCISCO: Earlier
16 this year Superintendent Dinallo of the
17 Insurance Department appointed a commission to
18 study the issue of malpractice insurance and
19 medical malpractice in general. That report
20 has not been issued as yet, and it was a
21 comprehensive study that involved all
22 stakeholders, not only people of the medical
23 profession, the insurance industry, as well as
24 those who represent the consumers of medical
25 services.
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1 And this was one of the proposals
2 that was suggested. But there were many, many
3 other proposals made by all the --
5 DeFrancisco, excuse me.
6 Can we have order, please, so we
7 can hear the speaker.
8 Thank you, Senator DeFrancisco.
9 SENATOR DeFRANCISCO: So there
10 were many other proposals that could cut down
11 the cost of medical malpractice insurance
12 other than simply changing the amount of
13 coverage that you would need -- real,
14 substantive changes that would not hurt the
15 consumer as well.
16 So I'm going to vote aye on this
17 bill as a partial measure but would hope that
18 the commission report would come out and we'd
19 do a more comprehensive study that would cut
20 the cost of litigation not just by
21 artificially changing the amount of money that
22 the policies would cost a doctor, but also
23 taking into account many cost-saving measures
24 that people who protect consumers have
25 suggested that would cut the cost of

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1 litigation, so that those who are injured can

2 get due recovery and doctors can get the
3 relief that they are arguing for.
4 So I'll vote yes for this, but I am
5 looking forward to some more balanced approach
6 that covers all sides of this issue so that a
7 more permanent, better solution can be
8 constructed.
9 Thank you, Mr. President. I vote
10 aye.
12 DeFrancisco to be recorded in the affirmative.
13 Senator Flanagan, to explain his
14 vote.
15 SENATOR FLANAGAN: Thank you,
16 Mr. President. Just briefly to explain my
17 vote.
18 I appreciate the cooperation of all
19 the members. And I want to join in the
20 remarks of Senator DeFrancisco, who I think
21 takes a very principled and reasoned approach
22 on these issues, even though we don't always
23 necessarily agree with each other.
24 I think this a first step in
25 something that needs a real serious look and a

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1 tremendous amount of work. The task force was
2 put together, but the task force has not
3 finished its work. The task force was
4 supposed to do a report, but that report has

5 not been issued.
6 There were representations from the
7 prior administration that we would see
8 legislation in the form of a program bill, but
9 that didn't happen. Now we have
10 representations from the new administration,
11 and in deference to them, they probably
12 deserve a little bit of time.
13 But the whole idea was that we
14 would see a report. Now there may not be a
15 report. And now we're not sure we're going to
16 see a program bill.
17 And the reality is that it doesn't
18 really matter what part of the state you're
19 from, this is a public health crisis. I'll
20 just give you one or two examples.
21 On Long Island, the average OB-GYN
22 pays $183,000 in malpractice premiums. That's
23 over $15,000 a month net -- before you turn on
24 a light, before you buy a paperclip, before
25 you pay anyone in your office, and before you

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1 deliver one iota of healthcare.
2 A neurosurgeon pays $300,000.
3 That's $6,000 a week, $24,000 a month. None
4 of us would want to be in that situation.
5 There's something drastically
6 wrong, and we -- the Legislature and the
7 Executive -- have failed to properly address

8 this issue. Now we're coming to the point
9 where at the end of June we can either start
10 dealing with this now in a serious and
11 reasoned way, or we can do it in crisis mode
12 at the end of June.
13 I'm not suggesting that this a
14 cure-all. But this is a piece of legislation
15 that gives everybody an opportunity to make a
16 real vote to actually reduce -- not increase,
17 but reduce -- malpractice premiums across the
18 State of New York.
19 So frankly I think anybody who
20 votes against this is sending a clear message
21 to their doctors that you're not listening or
22 you're not getting it. And the public. This
23 has to do about access to healthcare and
24 access to quality healthcare and affordable
25 healthcare.

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1 Now, do we have to talk about
2 reimbursement and other aspects of the system?
3 You bet we do. But if we don't start
4 somewhere and start here and start now, we are
5 absolutely missing the boat. We owe this to
6 our folks in the medical profession, but
7 frankly we owe it more to our constituents,
8 who are going to be looking for that quality
9 healthcare.

11 Flanagan to be recorded in the affirmative.
12 Senator Winner, to explain his
13 vote.
14 SENATOR WINNER: I rise in
15 support of this measure and vote
16 enthusiastically for it.
17 I'm frankly astonished that anyone
18 from -- in particular, from any upstate area
19 would ever vote for this bill. This is a bill
20 to provide relief to our physician community
21 that is in desperate straits, particularly in
22 the upstate areas where there are shortages of
23 physicians, there are shortages of
24 specialists.
25 And during the debate on the

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1 budget, it seemed to be that this was a
2 measure that was moving forward, there were
3 funds identified to pay for it through the
4 HCRA pools and, therefore, this was going to
5 provide the type of relief that the physician
6 community was certainly looking for.
7 So, you know, frankly I think
8 anybody that would vote against this is really
9 making not only a dumb vote on the policy but,
10 really, certainly a pretty dumb vote
11 politically, because there can be really no
12 explanation.
13 There's nobody against this bill.

14 The bill can be paid for, again, through the
15 HCRA pools. It provides immediate relief.
16 And for those of you who supported the program
17 of Doctors Across New York to provide for
18 scholarship relief, it's not going to help a
19 whole lot to provide for scholarship relief if
20 we don't have any doctors, and particularly in
21 our upstate regions.
22 So I would suggest that anyone from
23 the upstate regions who are facing any kind of
24 physician shortages that would vote against
25 this bill that does not hurt anyone but only

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1 helps the physician community that is
2 admittedly in dire straits due to this
3 malpractice crisis, I just find that to be an
4 absolutely unsupportable position.
5 So I enthusiastically vote yes.
7 Winner to be recorded in the affirmative.
8 Senator Hannon, to explain his
9 vote.
10 SENATOR HANNON: Thank you,
11 Mr. President.
12 This is a very important measure.
13 The malpractice problems, which are almost on
14 the point of a crisis, have two parts to it.
15 They originate, obviously, with what's taking
16 place in medical care. But we had hoped we

17 would have addressed it during the budget,
18 because it's both hospitals and individual
19 physicians that need to be addressed, need to
20 have different approaches taken.
21 This is the approach that will say
22 to the individual physician: We want you to
23 continue to practice.
24 I come from Long Island. The
25 numbers on Long Island in regard to costs for

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1 medical malpractice are incredible. It's five
2 times the cost to be an obstetrician in Nassau
3 County than it is to be in Monroe County. We
4 have the same standard of care, we have the
5 same quality of physicians. Five times the
6 cost.
7 We're finding that physicians are
8 quietly but surely leaving the practice of
9 obstetrics. They're moving, they'll just do
10 gynecological practice, they're leaving
11 obstetrics to somebody associated with the
12 hospital.
13 What's going to happen in the
14 future I don't know. It's been continually
15 reported -- I've been to a huge meeting with
16 Superintendent Dinallo before the Nassau
17 County Medical Society. There was an
18 incredible amount of quiet anger present in
19 that room. There were people who actually

20 stomped out of that room saying: "Look, you
21 haven't given us a sure-fire solution. We're
22 still going to be facing the problems next
23 year that we're facing today. I'm leaving the
24 state."
25 Superintendent Dinallo has done a

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1 very good job at trying to marshall all of the
2 different forces that are involved in this.
3 There are no people at fault, but we do have a
4 system that's not working. And we do not have
5 the same momentum behind this malpractice task
6 force that we had just two months ago.
7 So what we are trying to do here is
8 address the part of the malpractice problem
9 that's related to the delivery of services to
10 the individuals by the physicians. There's
11 much more to be done, that's obvious. But
12 this is a concrete solution.
13 Senator Winner has pointed out the
14 funding is there, it's existent, so we can
15 pass this bill without someone saying where
16 are you going to get the money.
17 I think that it is a very solid
18 bill to pass. I can't see why anybody would
19 oppose it. And I think I would just sit down
20 by saying I'll vote yes, Mr. President.
22 Hannon to be recorded in the affirmative.

23 Senator LaValle, to explain his
24 vote.
25 SENATOR LaVALLE: Thank you,

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1 Mr. President.
2 Senator Hannon, Senator Winner,
3 Senator Flanagan, I think their remarks were
4 very much on target.
5 But I want to say I live in a
6 physician community. A lot of docs live in
7 Port Jefferson, Belle Terre and the
8 surrounding area. So wherever I go, I hear
9 about this issue and whether physicians at
10 many different levels can continue to practice
11 in this state.
12 The one thing that I want people to
13 remember from my remarks here is that many
14 times we get so involved here in Albany with
15 insider baseball, whether we want a bill to
16 be -- language to be included in the budget or
17 a freestanding bill, whether we want to do it
18 in April or we want to do it in May or June.
19 Doctors have are very much involved
20 with their patients. They're not involved in
21 all of this insider baseball. They want to be
22 able to practice with a free mind and be able
23 to deliver services to our constituents.
24 So it is -- as someone said,
25 Senator Winner, people voting no on this bill,

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1 I can't possibly understand that, because
2 people want certainty in their lives. They
3 want to be able to count on something. And
4 this continues uncertainty in people's minds.
5 So I vote for certainty. I vote
6 for my constituents who want access to
7 affordable care and for the physicians to be
8 able to give that care and understand that
9 there's some stability in their lives.
10 I vote yes, Mr. President.
12 LaValle to be recorded in the affirmative.
13 Senator Klein, to explain his vote.
14 SENATOR KLEIN: Thank you,
15 Mr. President.
16 I vote no on this legislation, and
17 I think have a pretty good reason.
18 This is doing absolutely nothing to
19 really benefit those doctors who pay an awful
20 lot of medical malpractice insurance because
21 of the specialty in which they practice and in
22 the locality where they practice. This is a
23 broad stroke where everyone is going to be
24 benefiting whether or not they have a
25 high-yield or a high-need practice.

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1 One of the things I say time and

2 time again is we don't have a medical
3 malpractice crisis. We do have a problem if
4 you're a doctor practicing in a specific
5 specialty in a specific locality. Well, what
6 do I mean by that? If you do obstetrics, if
7 you do neurosurgery, if you do orthopedic
8 surgery and you happen to practice downstate,
9 yeah, you pay an awful lot of money in medical
10 malpractice insurance.
11 But under this legislation, we're
12 not only benefiting those high-need or
13 high-risk doctors, we're also benefiting those
14 who have no risk.
15 I have some statistics in front of
16 me which I'd like to go over. As I said
17 earlier, Suffolk County, if you practice
18 obstetrics, you're paying, on average,
19 $177,000 a year. That's an awful lot of
20 money. That person deserves to be helped.
21 However, if you're also a dermatologist in
22 Suffolk County, you're only paying about
23 $8,000 a year. That should be considered a
24 cost of doing business.
25 One of the things that I've

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1 proposed for a couple of years now is I think
2 the way to go about this, it would be a tax
3 credit. If you pay more than 25 percent of
4 your total income in medical malpractice

5 insurance, then you should be involved in some
6 type of sliding scale where you would benefit
7 and get up to $25,000 to alleviate the high
8 cost of medical malpractice insurance. That's
9 the way to do it, by surgically -- and excuse
10 the pun -- helping those people who really
11 need help.
12 The other reason why I oppose this
13 legislation is that we're drawing from a pool,
14 the high-risk pool, which I think most of us
15 know here has absolutely no money. It's
16 $700 million in the hole. It was raided by
17 previous administrations. And there's
18 certainly no money to actually be able to help
19 these doctors under this plan.
20 One of the things that I think we
21 need to do if we're really going to get
22 serious about helping doctors who have very
23 high medical malpractice insurance, and I
24 think really benefiting the entire medical
25 industry, is to have a very comprehensive

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1 approach. Which means punishing those bad
2 doctors who time and time again commit the
3 same medical malpractice over and over again.
4 The stats that are out there. You
5 have 8 percent of the doctors are committing
6 the same medical malpractice over and over
7 again. Why should we actually hurt the other

8 doctors who go through a whole career without
9 having a medical malpractice verdict against
10 them?
11 So I think we certainly need to do
12 something, but I think it has to be a
13 comprehensive approach, not just a very broad
14 stroke to hand doctors money whether or not
15 they're guilty of malpractice and whether or
16 not they did the right thing to reduce medical
17 malpractice premiums.
18 So I vote no, Mr. President.
20 Klein to be recorded in the negative.
21 Senator Schneiderman, to explain
22 his vote.
23 SENATOR SCHNEIDERMAN: Thank you,
24 Mr. President. I also am voting against this
25 measure.

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1 This proposal, which essentially
2 just requires -- it reduces the amount of
3 malpractice insurance that doctors have to
4 cover and substitutes in its place public
5 funds, taken supposedly from HCRA, which
6 doesn't have the money and needs the money.
7 So this is essentially just a blanket subsidy
8 for every doctor in the state.
9 As Senator Klein has pointed out,
10 it doesn't distinguish by specialty. It

11 doesn't distinguish by region. So it's a
12 blanket subsidy.
13 I think even more offensive to me,
14 frankly, is the fact that it doesn't
15 distinguish good doctors from bad doctors.
16 This was rejected in the budget negotiations
17 because it is really not a good solution of
18 any kind to the malpractice problem. The
19 problem with malpractice in this state
20 primarily is that 4 percent of the doctors are
21 responsible for 50 percent of the malpractice
22 payouts. We do not regulate bad doctors.
23 And what is really offensive about
24 this proposal is that this provides subsidies
25 to even the doctors who are so bad they can't

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1 buy insurance in the open market, that they're
2 forced to get insurance from the New York
3 State Medical Malpractice Insurance Program.
4 That is a high-risk pool of doctors.
5 This provides a subsidy, takes
6 state dollars to subsidize the practice of
7 Dr. Harvey Finkelstein and every other bad
8 doctor out there. This is a part of the
9 problem, not a part of the solution. It is
10 absolutely clear that the Office of
11 Professional Medical Conduct has not been
12 doing its job. We are not disciplining the
13 bad doctors.
14 And you know what you're doing?
15 You force every good doctor in this state, the
16 overwhelming majority of doctors in this state
17 who are decent and hardworking and provide the
18 best healthcare in the world, to subsidize the
19 bad doctors, because every licensed carrier of
20 medical malpractice insurance is required to
21 carry a certain portion of the MMIP doctors,
22 the high-risk-pool doctors. How are these bad
23 docs subsidized? By the premiums of the good
24 doctors.
25 You are hurting good doctors with

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1 this bill. You are not distinguishing between
2 good and bad doctors. You want to vote for
3 this bill? Fine. Let's call it Harvey's Law
4 and name it after Harvey Finkelstein, because
5 I know you guys like to name laws after
6 people.
7 This bill to subsidize every doctor
8 no matter how bad they are, regardless of
9 their medical situation, their specialty or
10 their region, is a bad solution to the
11 problem. It will never pass the Assembly.
12 And if we had integrity, it would never pass
13 this house.
14 I vote no.
16 Schneiderman to be recorded in the negative.

17 Senator Breslin, to explain his
18 vote.
19 SENATOR BRESLIN: Thank you,
20 Mr. President.
21 I couldn't agree more with both
22 Senator Schneiderman, Senator Klein. This is
23 a bad bill.
24 When we took this up during the
25 budget process, it was rejected. It was

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1 rejected because there wasn't a thorough
2 analysis at the same time that a commission is
3 operating, as Senator Hannon pointed out.
4 It's estimated that this will cost
5 $65 million. What does that do? It allows,
6 as Senator Schneiderman has pointed out, to
7 let doctors who haven't been policed, haven't
8 been disciplined, to continue to practice
9 medicine in this state. Four percent of the
10 doctors in this state take 50 percent of the
11 dollars. That's wrong.
12 And we also have to analyze the
13 professions. As Senator Klein pointed out,
14 you can't put dermatology as the same as
15 neonatal care, brain care, or other
16 specialized areas of medicine.
17 It's not a very well thought out
18 bill. It's a bill that needs a comprehensive
19 review by both houses. We all know that this

20 is a one-house bill. We all know that it's
21 not going anyplace beyond here. So let's look
22 at the commission report from Superintendent
23 Dinallo. Let's do it on a bipartisan basis,
24 to make sure that good doctors have
25 malpractice insurance at a reasonable rate,

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1 that bad doctors are weeded out, and that the
2 process comes together as a whole to provide
3 better medicine in this state at a lower cost.
4 I vote no.
6 Breslin to be recorded in the negative.
7 Senator Young, to explain her vote.
8 SENATOR YOUNG: Thank you,
9 Mr. President.
10 I've listened intently to the
11 arguments from the other side of the aisle as
12 far as why they think this is a bad bill. I
13 will say to you I think this is a great bill,
14 and I wholeheartedly support it.
15 I come from a part of the state
16 that suffers from a severe physician crisis.
17 And yes, we have to help the doctors in the
18 specialties. I agree with that. But we also
19 have to help primary care physicians.
20 And when you say that we shouldn't
21 help, for example, primary care physicians,
22 that's wrong. I have primary care physicians

23 that have caseloads of 5,000 to 10,000 people
24 that they have to take care of because we do
25 not have enough doctors. We don't have enough

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1 obstetricians, we don't have enough of the
2 specialties.
3 And for the characterization to say
4 that this only addresses a problem and it's
5 not a crisis, that's wrong. And I think
6 that's out of touch with the needs of this
7 state and especially upstate.
8 If we don't take some kind of
9 action and we don't do something now, we will
10 end up driving, I believe, every single doctor
11 out of the state. And that's why passing this
12 bill, making a statement, standing up for
13 accessible, affordable healthcare is the way
14 to go.
15 And so I would urge all of my
16 colleagues to vote yes.
18 Young to be recorded in the affirmative.
19 Senator Krueger, to explain her
20 vote.
21 SENATOR LIZ KRUEGER: Thank you,
22 Mr. President.
23 I also rise to explain my vote and
24 why I'm voting no on this bill. We need an
25 institutional and systemic resolution to a

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1 number of the issues that were raised today.
2 In respect to my colleagues from
3 upstate who have highlighted the shortage of
4 doctors, I've gone to hearings where I heard
5 the Health Commissioner and the Insurance
6 Commissioner explain that the medical
7 malpractice costs in upstate New York are
8 one-fifth of what they are in my district.
9 It's not medical malpractice costs
10 that are causing a doctor shortage in New York
11 State, it is other problems. And in fact, the
12 Doctors Across New York program that we did
13 support in the budget was one step in the
14 right direction.
15 But this bill will not do anything
16 to resolve the upstate doctor shortage
17 problem. So we need to make sure that our
18 bills match our problems.
19 And I am waiting for the
20 recommendations of the task force to come up
21 with a holistic approach to what we do about
22 medical malpractice, because I share my
23 colleagues' concerns. It's not one problem
24 statewide, there are different issues in
25 different specialties. This attempts to be a

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1 one-size-fits-all bill. I feel it's a one-

2 size-fits-none bill.
3 I also note that there is no
4 explanation in the bill of the fiscal impact
5 or how we're going to pay for it. The answer
6 appears to be we're going to pay for it out of
7 the HCRA funds. But for the record, we didn't
8 move it through the budget through the HCRA
9 funds.
10 I personally am concerned that too
11 much of the HCRA funds actually are dependent
12 on an expectation of a $5 billion sale of
13 GHI-HIP that is not clear in today's market
14 will ever come through. So I would argue we
15 actually already have a problem in actually
16 having adequate HCRA funds. I believe it is
17 one of the reasons why this didn't get
18 included in the budget.
19 It's one size doesn't fit all. We
20 don't have the money. It doesn't address the
21 problems we need to address. And I'm hoping
22 that very soon we will come back together with
23 answers from the task force that has been
24 created to address this issue.
25 And so, today, not the right bill,

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1 won't give us the answers we're looking for,
2 won't give the doctors the answers they're
3 looking for. And so I vote no.

6 Liz Krueger to be recorded in the negative.
7 Senator Marcellino, to explain his
8 vote.
9 SENATOR MARCELLINO: Thank you,
10 Mr. President.
11 I want to congratulate Senator
12 Flanagan for taking on this issue. It's not
13 easy. It's complicated. If it was easy, it
14 would have been done already a long time ago.
15 Senator Flanagan has courage, brought it out.
16 This is the first step in a
17 process. If I heard him correctly when he
18 explained his vote, he understands this is the
19 first step. We've got to get the process
20 moving. Sitting back, waiting for it to
21 happen hasn't worked. It just hasn't worked.
22 There have been no serious negotiations at any
23 level on this problem.
24 Doctors are leaving certain
25 specialty professions, they're leaving certain

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1 parts of the state, they're leaving the state
2 as a whole. We're losing. We're losing.
3 We're going to wake up one day and not going
4 to find any obstetricians out there. We're
5 not going to find any doctors willing to do
6 neurosurgery, the high-risk specialties.
7 We've got to start a process, get the

8 negotiations moving, and deal with this.
9 I keep hearing this from the other
10 side: Oh, it's only a one-house bill,
11 therefore we should vote against it. Well,
12 gee whiz, every bill that has ever passed this
13 chamber and become law was a one-house bill to
14 begin with. I don't know of too many bills
15 that were done before we started.
16 Nothing moves the process of
17 negotiation like a bill on the floor. Senator
18 Flanagan is to be congratulated for putting
19 this bill out front, getting negotiations
20 started, and making the process move forward.
21 The process will go now better than before
22 because you've got something to work from, as
23 opposed to nothing but talk. And that's what
24 we're getting from some people in this
25 chamber.

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1 Mr. President, I vote aye.
3 Marcellino to be recorded in the affirmative.
4 Senator Seward, to explain his
5 vote.
6 SENATOR SEWARD: Thank you,
7 Mr. President.
8 I rise in support of this
9 legislation. I do so for a number of reasons.
10 Even though there are members that

11 disagree on this particular piece of
12 legislation, I think all of us can agree that
13 we do have a medical malpractice problem, and
14 some would say even crisis, in this state.
15 The high costs are driving physicians out of
16 New York State, and that is hurting those
17 citizens of this state that require medical
18 care.
19 Now, there's a lot of talk about
20 the task force that the Superintendent of
21 Insurance has been heading up in terms of
22 dealing with the medical malpractice issue.
23 Now, as chair of the Insurance Committee, I've
24 been involved in that task force. I know
25 Senator DeFrancisco from Judiciary, Senator

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1 Hannon from Health. There have been
2 stakeholders involved on all sides of this
3 issue on many, many meetings last year.
4 And we have been expecting, from
5 the department, a departmental bill. We
6 expected it at the end of the year. We
7 expected it at the end of January, at the end
8 of February, at the end of March. And here we
9 are in April, and we have yet to see a product
10 from the administration on this issue.
11 Meantime, Senator Flanagan has
12 developed a partial answer. No one is saying
13 it's the total answer. He has provided us

14 with a piece of legislation that provides some
15 relief to the medical community, some relief
16 to those in this state that require medical
17 care. It is a step in the right direction.
18 And no one disagrees that the money
19 is in HCRA to pay for this, as we do with the
20 previous coverage for our doctors. This just
21 expands a bit what the state, through HCRA,
22 will be picking up.
23 Now, some would say this isn't an
24 upstate problem. Well, I am from upstate, and
25 I say it is an upstate problem. We feel it

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1 first. Because, Senator Krueger and others,
2 the income of doctors upstate is not that of,
3 shall we say, a Park Avenue practice. That
4 even though the medical malpractice premiums
5 may be less upstate in many cases, also the
6 income and the revenue to support the medical
7 malpractice costs is also less.
8 So on a percentage basis, the
9 problem is the same. And we feel it greater
10 upstate because the income coming in to pay
11 for those med-mal premiums is less.
12 So, Mr. President, I vote in favor
13 of this bill. We still await the report from
14 the Insurance Department. We hope we get it.
15 But if we don't, I know that Senator
16 Flanagan's bill will provide some immediate

17 relief to the medical community. That's why
18 the Medical Society has filed a memorandum in
19 support of this legislation. I think they
20 know best what is in the best interests of the
21 physician community of New York State. They
22 support this bill, as do I.
23 I vote aye.
25 Seward to be recorded in the affirmative.

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1 Senator Rath, to explain her vote.
2 SENATOR RATH: Thank you,
3 Mr. President. I rise with my colleagues who
4 are supporting the measure.
5 I would like to point out that
6 yesterday a report came from Dr. John W. Rowe,
7 a professor of health policy, Columbia
8 University. He headed a committee for the
9 Institute of Medicine, which is an arm of the
10 National Academy of Sciences. The report
11 pointed out clearly that we need to be
12 concerned about the crisis in healthcare. The
13 crisis, much of which has been pointed out,
14 clearly stemming from lack of physicians and
15 hopefully not having lack of physicians in the
16 future.
17 And Senator Flanagan's bill gives
18 us an opportunity to say to the medical
19 community that we are going to support you, we

20 know your circumstances, and we know you need
21 help.
22 But the most telling point in the
23 report was that 78 million baby boomers are
24 about to turn 65. If there isn't anything
25 else that would frighten us into knowing that

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1 we need to support the health system, I think
2 that number in itself says to us we have got a
3 problem facing New York State. We know how
4 much the aging population needs support from
5 the medical professionals. We know how
6 important it is for the medical professionals
7 to be there for them so that they can avoid
8 serious problems and hopefully have some
9 preventive measures in place.
10 If the doctors aren't there, the
11 older folks are just going to ignore the
12 problems, and it's going to become even a more
13 serious problem than we're facing now.
14 Seventy-eight million baby boomers about to
15 start turning 65.
16 I vote aye.
18 Rath to be recorded in the affirmative.
19 Senator Parker, to explain his
20 vote.
21 SENATOR PARKER: Mr. President,
22 briefly to explain my vote.

23 First let me thank Senator Flanagan
24 for bringing this up. I think certainly this
25 is an issue that we ought to take up and

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1 continue to fight for. And I know that he has
2 been working hard on this issue, and I'm
3 looking forward to us continuing to work hard
4 to resolve this issue.
5 I think this is the right issue; I
6 think this is the wrong approach. I think
7 that, you know, many of my colleagues have
8 gotten up and said we're eagerly awaiting the
9 report, eagerly awaiting the report from the
10 superintendent and the task force. And that's
11 great. But right now we're putting the cart
12 before the horse.
13 How can we in fact put forward a
14 recommendation without having seen the report,
15 without knowing what the report is? We don't
16 know where this recommendation is within the
17 context of the report. I haven't seen the
18 report; you said you haven't seen the report.
19 So how do we know whether this is in fact one
20 of the recommendations from the
21 superintendent?
22 And so I'm voting no because I'm
23 unclear, from my perspective -- now, if the
24 superintendent says something different, then
25 let's have that debate. But right now I'm

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1 clear that this is not the right thing. If
2 we're going to do the right thing, let's look
3 at reimbursement rates, which no one has
4 talked about. Let's look at the fact that,
5 you know, this is really an insurance problem
6 and not a malpractice problem.
7 I mean, the reality is that we also
8 have a responsibility here to protect our
9 constituents, who are oftentimes the victims
10 of malpractice, and their ability to recoup
11 loss when they have been injured. So that's
12 going to be also important.
13 The other thing is that we also
14 don't do a good job in this state of
15 regulating the industry such that good doctors
16 and bad doctors are not in fact paying, you
17 know, around the same rates. We ought to make
18 sure that we deal with that.
19 And, lastly, I think this bill is
20 bad because this then tells taxpayers, out of
21 the fund that we're paying it out of -- which
22 really there's no money in it. But if there
23 was money, that would be taxpayer money. So
24 why are we having taxpayers pay for the
25 malpractice suits of bad doctors? I'm not for

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1 that. I don't know why my colleagues across

2 the aisle are for that.
3 So I'm voting no.
5 Parker to be recorded in the negative.
6 Senator Saland, to explain his
7 vote.
8 SENATOR SALAND: Thank you,
9 Mr. President.
10 Mr. President, I'd like to commend
11 Senator Flanagan for bringing this bill before
12 us.
13 I was in the Insurance Committee
14 earlier today, heard his explanation, which
15 was similar to the explanation that he gave
16 here on this floor. At no time did he in any
17 way, shape, or form propose this, as some have
18 alluded to, as a comprehensive approach. He
19 proposed it for what it is. It's an effort to
20 try and deal with a problem that is burgeoning
21 out of control, a problem which has brought
22 more doctors to Albany this year than I have
23 seen in any number of years, brought more
24 doctors to see me in my district than I have
25 seen in any number of years.

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1 And the simple fact of the matter
2 is, I would have, had I not known better, been
3 led to believe by some of the comments from
4 the other side of the aisle that in fact the

5 Medical Society opposed this bill. We've
6 heard from a couple of members already, and
7 I'm aware, that in fact the Medical Society
8 supports the bill.
9 Should there be a more
10 comprehensive approach? Sure, that would be
11 absolutely wonderful. But really the missing
12 ingredient that has not been alluded to at any
13 time during the course of any of the comments
14 is that there won't be a comprehensive
15 approach until the very people who provided
16 you with some of the material that you used
17 for some of your comments, the trial bar, is
18 willing to acknowledge the existence of the
19 problem, not walk away from it, and try and
20 deal with it.
21 The medical malpractice system
22 should not be a lottery system. And doctors
23 should not be punished for bad results when in
24 fact they've proceeded and proceeded by the
25 book and done everything right.

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1 So are there bad doctors?
2 Certainly there are bad doctors. Are there
3 doctors who are willing to take risks because
4 their profession requires them to do so and
5 take on challenging surgeries that many would
6 be unwilling to do? Yes. Are those doctors
7 part of the so-called malpractice problem

8 because they don't get perfect results and
9 they get sued? Yes. Notwithstanding the fact
10 that they may have proceeded with absolute
11 perfection.
12 Let me suggest to you too that
13 there are some demographic or cultural
14 differences that were certainly apparent to
15 me. Many of you who rose have the good
16 fortune of coming from the city, where there
17 is an abundance of physicians. Perhaps not in
18 all areas, some areas are underserved. But
19 you look at the raw data per capita, the city
20 has physicians in numbers far greater than
21 either the national or the state average.
22 And as you go away from the city,
23 you'll find still greater numbers in the inner
24 suburbs. As you go further beyond that
25 periphery, you suddenly find what has been

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1 alluded to by several of my upstate
2 colleagues -- a significant shortage of
3 physicians. Not merely specialists, but
4 physicians.
5 Something which none of you or
6 those of you who rose could possibly
7 comprehend, because you never have a problem
8 finding a physician. You don't have the kinds
9 of -- you have choices. In many of these
10 communities, they have no choice. Or they

11 have to travel God only knows how many miles
12 to find a physician. So you come from a world
13 apart from the world that my colleagues were
14 alluding to.
15 So I would merely suggest to you
16 that as important as it is to deal with the
17 specialties, believe it or not, folks, it's
18 important to keep internists and general
19 practitioners upstate, because in many
20 instances they're it. And why in the world
21 would they want to continue to pay these kinds
22 of premiums?
23 I see a difference in the two
24 counties that I represent. My colleagues
25 further upstate in Central New York and out

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1 west I'm sure see even more dramatic
2 differences. This bill would help those
3 doctors.
4 So let's not live in a makeup world
5 of comprehensive solutions when one of the
6 players doesn't want to be part of a
7 comprehensive solution. This is, as many have
8 mentioned, a good first step. It's not the
9 answer. But maybe we should just throw the
10 baby out with the bathwater simply because
11 it's not the perfect solution.
12 I vote aye.

14 Saland to be recorded in the affirmative.
15 The Secretary will announce the
16 results.
17 Senator Oppenheimer, why do you
18 rise?
19 SENATOR OPPENHEIMER: I'm voting
20 yes.
23 Senators Adams, Aubertine, Breslin, Connor,
24 Dilan, Duane, Gonzalez, Hassell-Thompson,
25 Huntley, Klein, L. Krueger, Montgomery,

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1 Onorato, Parker, Perkins, Sabini, Sampson,
2 Savino, Schneiderman, Serrano, Smith,
3 Stachowski, Stavisky, Stewart-Cousins,
4 Thompson and Valesky.
5 Absent from voting: Senator C.
6 Kruger.
7 Ayes, 35. Nays, 26.
9 bill is passed.
10 The Secretary will read Calendar
11 Number 867.
13 867, substituted earlier by Member of the
14 Assembly Bradley, Assembly Print Number 9679,
15 an act to amend the Tax Law.
16 ACTING PRESIDENT GRIFFO: There

17 is a local fiscal impact notice at the desk.
18 Read the last section.
22 the roll.

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1 bill is passed.
2 Senator Skelos.
3 SENATOR SKELOS: Thank you,
4 Mr. President. Is there any further business
5 at the desk?
6 ACTING PRESIDENT GRIFFO: No,
7 Senator, there is no further business at the
8 desk.
9 SENATOR SKELOS: Please recognize
10 Senator Craig Johnson.
12 you, Senator Skelos.
13 In accordance with Rule 11,
14 Section 2(e), the chair recognizes and allots
15 10 minutes to Senator Craig Johnson.
16 SENATOR CRAIG JOHNSON: Thank you
17 very much, Mr. President.
18 I have a motion at the desk at this
19 time. I would like to have it called up at

20 this time, please.
23 THE SECRETARY: Senate Print
24 3936, by Senator C. Johnson, an act to amend
25 the Labor Law.

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2 Johnson.
3 SENATOR CRAIG JOHNSON: Thank you
4 very much.
5 As I've said before and I say it
6 again, there is no excuse why, 40 years after
7 the Equal Pay Act, equal pay is not being paid
8 for equal work in New York State. According
9 to the U.S. Department of Labor, in a study
10 issued in September 2007, women earned
11 81 cents for every dollar earned by their male
12 counterparts in 2006.
13 Study after study after study after
14 study undeniably and unequivocally establishes
15 this point. In fact, since yesterday we have
16 located more studies that clearly demonstrate
17 that women and minorities are paid less for
18 equal work. All these studies clearly prove
19 that a gender and minority pay gap has become
20 a fixture throughout the workforce and is so
21 common that many view it as simply business as
22 usual.
23 This wage gap reflects a sex and
24 racial discrimination that pervades our
25 state's economy. One must truly wonder why we

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1 need yet another study to outlaw paying
2 welcome and minorities unequal wages.
3 The losses to women, minorities,
4 and their families due to this wage gap are
5 large and can be devastating, not only
6 financial but emotional. It is unacceptable
7 in this state or anywhere else for pay
8 inequity to exist.
9 That is why I am proud to be the
10 sponsor of Senate Bill 3936, the Fair Pay Act.
11 Present law has not and does not adequately
12 address the issue of pay equity. And the need
13 for state enforcement of a prohibition on such
14 inequities is warranted right now.
15 I have no objection to another
16 study. But frankly, it is redundant and not
17 necessary to prove what we already know, that
18 pay inequity exists in our state. Just speak
19 to your constituents, members of this body, or
20 speak to the persons in the gallery or outside
21 on the street. They will tell you that pay
22 inequity is here and we need to eradicate it
23 now.
24 Under the Fair Pay Act, it will be
25 unlawful practice for an employer to

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1 discriminate between employees on the basis of
2 sex, race, and/or national origin by paying
3 employees at a rate less than the rate paid to
4 employees of the opposite sex or a different
5 race or national origin for work in equivalent
6 jobs.
7 The act also protects employees by
8 prohibiting an employer from taking adverse
9 action against an employee who seeks to
10 protect his or her rights under this law.
11 Critically, the act also requires
12 employers to establish records that document
13 wages paid to employees and to document and
14 support the methods, systems and calculations
15 used to establish and adjust wage rates. The
16 continuing pay disparity that exists in our
17 state is due chiefly to a lack of salary
18 information that employers are require to
19 keep.
20 This is a good bill. This is a
21 sound bill. It's a bill that has a same-as
22 bill in the Assembly sponsored by
23 Assemblywoman Susan John, a bill that has
24 passed the Assembly every year since 2002.
25 I am proud to see and to know that

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1 my colleagues in the Senate Democratic

2 conference are here to support my legislation.
3 I wish more members of the Senate Republican
4 conference were here today to listen and to
5 perhaps maybe join us in supporting a motion
6 to petition this bill. I wish more Senators
7 were here than the two, four, six, eight, 10
8 members that have joined me in the conference.
9 And I thank you for at least participating and
10 sitting in.
11 Last week, during session, one
12 Republican Senator expressed a sentiment on
13 the floor that's when addressing an issue
14 involving a person's pay, he remarked that we
15 should have a "good debate in front of the TV
16 with families of these people and then find
17 out how families feel." I wholeheartedly
18 agree. We should have a debate on those
19 issues and the issue of pay equity.
20 We started to have one yesterday,
21 that the public in every conceivable medium
22 should have been able to witness. But
23 incredibly, the Senate Majority ordered a
24 local news reporter to shut off her video
25 camera while recording the debate I was having

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1 with another Senator about pay equity.
2 I never thought I would see the day
3 in the Senate chamber or in the Capitol or in
4 this state when Senate Republicans would

5 trample upon the First Amendment. Clearly, I
6 was proven wrong.
7 So now is the opportunity for the
8 Senate Republicans to allow for this debate to
9 go forward, a real debate. So I ask you, join
10 the members of my conference, join the Senate
11 Democrats in taking care of the countless
12 female and minority employees who in this
13 state suffer daily from pay inequity.
14 To all my colleagues, I urge you to
15 vote in favor of my petition. Move my bill,
16 the Fair Pay Act, to the floor of this great
17 Senate and make pay equity in New York State a
18 reality.
19 I thank you, Mr. President.
20 ACTING PRESIDENT GRIFFO: All
21 those Senators in favor of the petition out of
22 committee please signify by raising your
23 hands.

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1 agreement are Senators Aubertine, Breslin,
2 Connor, Diaz, Duane, C. Johnson, Klein,
3 L. Krueger, Montgomery, Onorato, Oppenheimer,
4 Parker, Perkins, Sabini, Sampson, Savino,
5 Schneiderman, Serrano, Smith, Stachowski,
6 Stavisky, Stewart-Cousins, Thompson and
7 Valesky. Also Senator Dilan.

9 petition is not agreed to.
10 Senator Skelos.
12 there being no further business to come before
13 the Senate, I move we stand adjourned until
14 Wednesday, April 16th, at 11:00 a.m.
15 ACTING PRESIDENT GRIFFO: On
16 motion, the Senate stands adjourned until
17 Wednesday, April 16th, at 11:00 a.m.
18 (Whereupon, at 5:09 p.m., the
19 Senate adjourned.)
20
21
22
23
24
25

(518) 371-8910

April 15, 2008

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1 NEW YORK STATE SENATE

4 THE STENOGRAPHIC RECORD

9 ALBANY, NEW YORK

10 April 15, 2008

18 SENATOR JOSEPH A. GRIFFO, Acting President

19 STEVEN M. BOGGESS, Secretary

Candyco Transcription Service, Inc.

2 ACTING PRESIDENT GRIFFO: The

3 Senate will come to order.

4 I ask all present to rise and join

5 with me as we recite the Pledge of Allegiance

7 (Whereupon, the assemblage recited

8 the Pledge of Allegiance to the Flag.)

9 ACTING PRESIDENT GRIFFO: The

10 invocation today will be offered by the

11 Reverend Richard Klueg, pastor of the Baptist

13 REVEREND KLUEG: Thank you.

14 Please bow with me.

15 Our gracious Father in heaven, we

16 want to thank You so much for being here today

17 for these men and women serving our state,

18 serving You. We ask for Your wisdom for them.

19 We ask You to give them courage, ask You to

20 give them insight.

21 We pray for their personal lives,

22 Father, that You will bless them, their

23 families, all their loved ones, give them good

24 health and strength.

25 Father, we pray for our state. We

1 thank You for it, for the prosperity we enjoy,

2 the peace we enjoy. We pray that will

3 continue and abound. And I pray that the work

4 that's done here today will help us to

5 progress even further in those directions.

6 We thank You so much. And I pray

7 in the name of my savior, Jesus Christ.

9 ACTING PRESIDENT GRIFFO: Thank

10 you, Reverend Klueg.

11 The reading of the Journal.

12 THE SECRETARY: In Senate,

13 Monday, April 14, the Senate met pursuant to

14 adjournment. The Journal of Sunday, April 13,

15 was read and approved. On motion, Senate

17 ACTING PRESIDENT GRIFFO: Without

18 objection, the Journal stands approved as

21 Messages from the Assembly.

22 Messages from the Governor.

23 Reports of standing committees.

24 Reports of select committees.

25 Communications and reports from

Candyco Transcription Service, Inc.

4 SENATOR SEWARD: Yes,

5 Mr. President. On behalf of Senator

6 DeFrancisco, on page number 30 I offer the

7 following amendments to Calendar Number 545,

8 Senate Print Number 1829A, and ask that the

9 said bill retain its place on the Third

11 ACTING PRESIDENT GRIFFO: The

12 amendments are received and adopted, and the

13 bill will retain its place on the Third

16 SENATOR SKELOS: Mr. President, I