Regular Session - March 23, 2004
1275
NEW YORK STATE SENATE
THE STENOGRAPHIC RECORD
ALBANY, NEW YORK
March 23, 2004
3:05 p.m.
REGULAR SESSION
LT. GOVERNOR MARY O. DONOHUE, President
STEVEN M. BOGGESS, Secretary
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P R O C E E D I N G S
THE PRESIDENT: The Senate will
please come to order.
I ask everyone present to please
rise and repeat with me the Pledge of
Allegiance.
(Whereupon, the assemblage recited
the Pledge of Allegiance to the Flag.)
THE PRESIDENT: With us this
afternoon to give the invocation is Pastor
David Thomason, from South-West Oswego Baptist
Church in Oswego, New York.
PASTOR THOMASON: Let me start by
quoting the second inaugural address of
President Grover Cleveland, who served as
mayor of Buffalo and also as governor of the
great state of New York. On March 4, 1893, he
said this: "I know there is a Supreme Being
who rules the affairs of men and whose
goodness and mercy have always followed the
American people, and I know He will not turn
from us now if we humbly and reverently seek
His powerful aid."
Let's do that.
Heavenly Father, we pray for Your
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blessings on this group. We pray that Your
power, Your love, Your comfort and Your grace
might be extended to these folks; Lord, that
Your will might be made known, that it might
be made clear, and that we might follow it.
Please bless, we pray, in Jesus'
name. Amen.
THE PRESIDENT: Reading of the
Journal.
THE SECRETARY: In Senate,
Monday, March 22, the Senate met pursuant to
adjournment. The Journal of Saturday,
March 20, was read and approved. On motion,
Senate adjourned.
THE PRESIDENT: Without
objection, the Journal stands approved as
read.
Presentation of petitions.
Messages from the Assembly.
Messages from the Governor.
Reports of standing committees.
The Secretary will read.
THE SECRETARY: Senator
Fuschillo, from the Committee on Consumer
Protection, reports:
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Senate Print 3118, by Senator
Morahan, an act to amend the General Business
Law;
5010, by Senator Fuschillo, an act
to amend the General Business Law;
5154, by Senator Little, an act to
amend the General Business Law;
5533, by Senator Little, an act to
amend the General Business Law;
And Senate Print 6409, by Senator
Fuschillo, an act to amend the General
Business Law.
Senator Maltese, from the Committee
on Cities, reports:
Senate Print 2043, by Senator
Padavan, an act to amend the General City Law;
4373A, by Senator Leibell, an act
to make certain parents;
5352, by Senator Padavan, an act to
amend the Administrative Code of the City of
New York;
5353, by Senator Padavan, an act to
amend the Administrative Code of the City of
New York;
And Senate Print 5816, by Senator
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Golden, an act to amend the Administrative
Code of the City of New York.
Senator Kuhl, from the Committee on
Transportation, reports:
Senate Print 1054, by Senator
Padavan, an act to amend the Vehicle and
Traffic Law;
1117A, by Senator LaValle, an act
to amend the Vehicle and Traffic Law;
1272, by Senator Meier, an act to
amend the Vehicle and Traffic Law;
1355, by Senator Marchi, an act to
amend the Vehicle and Traffic Law;
3596, by Senator Hoffmann, an act
to amend the Vehicle and Traffic Law;
5075, by Senator Kuhl, an act to
amend the Highway Law;
5117, by Senator Padavan, an act to
amend the Vehicle and Traffic Law;
5479A, by Senator Bonacic, an act
to amend the Vehicle and Traffic Law;
5502A, by Senator Trunzo, an act to
amend the Public Authorities Law;
5746, by Senator Trunzo, an act to
amend the Vehicle and Traffic Law;
1280
6129, by Senator Rath, an act to
amend the Vehicle and Traffic Law;
6131, by Senator Rath, an act to
amend the Vehicle and Traffic Law;
6136, by Senator McGee, an act to
amend the Highway Law;
6161, by Senator Marchi, an act to
amend the Public Authorities Law;
6175, by Senator Johnson, an act to
amend the Transportation Law;
6321, by Senator Volker, an act to
amend the Highway Law;
6331, by Senator Little, an act to
amend the Highway Law;
6336, by Senator Little, an act to
amend the Highway Law;
And Senate Print 6542, by Senator
Kuhl, an act to amend the Public Authorities
Law.
Senator Little, from the Committee
on Local Government, reports:
Senate Print 825, by Senator
LaValle, an act in relation to authorizing;
956, by Senator Larkin, an act to
amend the Real Property Tax Law;
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5584A, by Senator Padavan, an act
to amend the Real Property Tax Law;
5895, by Senator Johnson, an act to
authorize;
5920, by Senator Trunzo, an act to
amend the Town Law;
5932, by Senator Balboni, an act to
amend Chapter 354 of the Laws of 2003;
5972, by Senator Morahan, an act to
authorize;
5981A, by Senator LaValle, an act
designating state-owned lands;
6109A, by Senator Trunzo, an act to
authorize;
6116, by Senator Marcellino, an act
to authorize;
6144A, by Senator Saland, an act to
amend Chapter 208 of the Laws of 1983;
6158, by Senator Flanagan, an act
to authorize;
6179, by Senator Skelos, an act to
amend the Real Property Tax Law;
6183, by Senator McGee, an act to
amend the General Municipal Law;
6258, by Senator Little, an act to
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change the name;
And Senate Print 6386A, by Senator
Wright, an act to relation to creating.
All bills ordered direct to third
reading.
THE PRESIDENT: All bills are
ordered direct to third reading.
Reports of select committees.
Communications and reports from
state officers.
Motions and resolutions.
Senator Skelos.
SENATOR SKELOS: Madam President,
I believe there are substitutions at the desk,
if we could make them at this time.
THE PRESIDENT: Yes, there is.
The Secretary will read.
THE SECRETARY: On page 11,
Senator Seward moves to discharge, from the
Committee on Transportation, Assembly Bill
Number 1154C and substitute it for the
identical Senate Bill Number 697C, Third
Reading Calendar 248.
On page 14, Senator Maziarz moves
to discharge, from the Committee on Commerce,
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Economic Development and Small Business,
Assembly Bill Number 9701 and substitute it
for the identical Senate Bill Number 5857,
Third Reading Calendar 285.
On page 33, Senator Paterson moves
to discharge, from the Committee on Higher
Education, Assembly Bill Number 9837 and
substitute it for the identical Senate Bill
Number 6241, Third Reading Calendar 537.
And on page 34, Senator LaValle
moves to discharge, from the Committee on
Higher Education, Assembly Bill Number 10125
and substitute it for the identical Senate
Bill Number 6364, Third Reading Calendar 540.
THE PRESIDENT: Substitutions
ordered.
Senator Skelos.
SENATOR SKELOS: Madam President,
at this time I'd like to move that we adopt
the Resolution Calendar, with the exception of
Resolution 4014.
THE PRESIDENT: All in favor of
adopting the Resolution Calendar, with the
exception of Resolution 4014, please signify
by saying aye.
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(Response of "Aye.")
THE PRESIDENT: Opposed, nay.
(No response.)
THE PRESIDENT: The Resolution
Calendar is so adopted.
Senator Skelos.
SENATOR SKELOS: Madam President,
at this time if you would read Resolution
4014, by Senator Balboni, in its entirety,
which will be open for cosponsorship.
THE PRESIDENT: The Secretary
will read.
THE SECRETARY: By Senator
Balboni, Legislative Resolution Number 4014,
expressing condolences for the victims, their
families and friends, and the people of the
Kingdom of Spain for the loss suffered during
the terrorist attacks on Madrid on March 11,
2004.
"WHEREAS, The people of the State
of New York know firsthand that the suffering
caused by ruthless acts of terrorism is never
forgotten in the hearts of the families who
suffer the greatest pain of losing loved ones
to terrorism; and
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"WHEREAS, On March 11, 2004, a
violent, massive, and coordinated series of
bombing attacks were directed against the
commuter rail network in Madrid at the height
of morning rush hour, marking one of the worst
terrorist attacks in the history of the
Kingdom of Spain; and
"WHEREAS, The cowardly attacks
consisted of ten bomb explosions at the Santa
Eugenia and El Pozo stations in Madrid and
aboard a train entering Madrid's crowded
central Atocha station; and
"WHEREAS, Tragically, at least 200
individuals were killed, and at least 1,200
individuals were injured in the terrorist
attacks; and
"WHEREAS, These acts of murder were
a cowardly and brutal manifestation of
international terrorism; and
"WHEREAS, The atrocious acts of
violence committed on March 11, 2004, against
the people of Spain show yet again that
terrorism knows no borders; and
"WHEREAS, We stand together with
the people of Spain during this time of
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mourning, recognizing our unity with the
people of Spain in our mutual hope for the
world to be free from the fear and destruction
of terrorism; now, therefore, be it
"RESOLVED, That this Legislative
Body pause in its deliberations to express its
condolences to the families of the individuals
killed in the terrorist bombing attacks in
Madrid that occurred on March 11, 2004, and
express its deepest sympathy to the
individuals injured in such attacks and to the
people of the Kingdom of Spain; and be it
further
"RESOLVED, That copies of this
resolution, suitably engrossed, be transmitted
to the Ambassador of the Kingdom of Spain to
the United States, His Excellency Javier
Ruperez, and to the Consul General of the
Kingdom of Spain in New York City, Juan Manuel
Egea Ibanez."
THE PRESIDENT: Senator Balboni.
SENATOR BALBONI: Madam
President, as is so often the case in this
Capitol and in this Legislature, we tend to
perhaps lose sight of the reasons for why we
1287
do things. And last week when we passed a
package of bills on terrorism, I felt that it
was important to bring the discussion back to
the motivation behind the passage of those
bills. And that is that the bombings in
Madrid remind us of that horrific day of
September 11th. And indeed, the nexus is very
clear -- exactly 911 days after
September 11th, they struck in Madrid,
striking at innocence.
You know, perhaps in this day and
age we become so callous, so desensitized by
all the images we see on television that we
become disconnected from the actual pain and
terror that occurs as a result of an act of
violence on these scales. But we should
never, ever accept the fact that a message of
whatever kind should be perpetrated through
the killing of innocent men and women on their
way to work. That's what happened in New
York. That's what happened in Madrid.
Two million people took to the
streets after the bombings in Madrid,
2 million. Our hearts and our prayers go out
to the people of Madrid as they seek to
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recover, just as we did after September 11th.
And let us never forget that we are all under
this terrible scourge of terrorism.
Thank you, Madam President.
THE PRESIDENT: The question is
on the resolution. All in favor please
signify by saying aye.
(Response of "Aye.")
THE PRESIDENT: Opposed, nay.
(No response.)
THE PRESIDENT: The resolution is
adopted.
Senator Skelos.
SENATOR SKELOS: Madam President,
if we could put every member on the
resolution. If somebody wishes not to sponsor
it, they should notify the desk.
THE PRESIDENT: Any member who
does not want to be a sponsor of the last
resolution, please notify the desk.
Senator Skelos.
SENATOR SKELOS: Madam President,
if we could go to the reading of the
noncontroversial calendar.
THE PRESIDENT: The Secretary
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will read.
THE SECRETARY: Calendar Number
41, by Senator Volker, Senate Print 3508A, an
act to amend the Penal Law, in relation to the
possession and sale of firearms.
SENATOR SCHNEIDERMAN: Lay it
aside.
THE PRESIDENT: The bill is laid
aside.
THE SECRETARY: Calendar Number
119, by Senator Kuhl --
SENATOR SKELOS: Lay it aside for
the day, please.
THE PRESIDENT: The bill is laid
aside for the day.
THE SECRETARY: Calendar Number
413, by Senator Saland, Senate Print 1279A, an
act to --
SENATOR SCHNEIDERMAN: Lay it
aside.
THE PRESIDENT: The bill is laid
aside.
THE SECRETARY: Calendar Number
467, by Senator Nozzolio, Senate Print 433, an
act to amend the Vehicle and Traffic Law, in
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relation to the application for court orders.
THE PRESIDENT: Read the last
section.
THE SECRETARY: Section 3. This
act shall take effect on the 30th day.
THE PRESIDENT: Call the roll.
(The Secretary called the roll.)
THE SECRETARY: Ayes, 50.
THE PRESIDENT: The bill is
passed.
THE SECRETARY: Calendar Number
473, by Senator McGee, Senate Print 2861, an
act to amend the Vehicle and Traffic Law, in
relation to requiring suspension and
revocation.
THE PRESIDENT: Read the last
section.
THE SECRETARY: Section 2. This
act shall take effect on the first of
November.
THE PRESIDENT: Call the roll.
(The Secretary called the roll.)
THE SECRETARY: Ayes, 52.
THE PRESIDENT: The bill is
passed.
1291
THE SECRETARY: Calendar Number
492, by Senator Velella, Senate Print 3134, an
act to amend the Penal Law, in relation to
impersonation or misrepresentation to gain
access to a dwelling.
THE PRESIDENT: Read the last
section.
THE SECRETARY: Section 3. This
act shall take effect on the first of
November.
THE PRESIDENT: Call the roll.
(The Secretary called the roll.)
THE SECRETARY: Ayes, 52.
THE PRESIDENT: The bill is
passed.
THE SECRETARY: Calendar Number
509, by Senator Maziarz, Senate Print 930A --
SENATOR SCHNEIDERMAN: Lay it
aside.
THE PRESIDENT: The bill is laid
aside.
THE SECRETARY: Calendar Number
518, by Senator Meier, Senate Print 6358, an
act to amend Chapter 534 of the Laws of 2000
relating to clarifying the definition of work
1292
activities.
THE PRESIDENT: Read the last
section.
THE SECRETARY: Section 2. This
act shall take effect immediately.
THE PRESIDENT: Call the roll.
(The Secretary called the roll.)
THE SECRETARY: Ayes, 52.
THE PRESIDENT: The bill is
passed.
THE SECRETARY: Calendar Number
534, by Senator McGee, Senate Print 6240, an
act to amend the Alcoholic Beverage Control
Law, in relation to the forfeiture of the
registration deposit on kegs.
THE PRESIDENT: Read the last
section.
THE SECRETARY: Section 2. This
act shall take effect immediately.
THE PRESIDENT: Call the roll.
(The Secretary called the roll.)
THE SECRETARY: Ayes, 52.
THE PRESIDENT: The bill is
passed.
THE SECRETARY: Calendar Number
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536, by Senator Padavan, Senate Print 2073B,
an act to amend the Education Law and the
Insurance Law, in relation to the practice of
physical therapy.
THE PRESIDENT: Read the last
section.
THE SECRETARY: Section 9. This
act shall take effect on the 180th day.
THE PRESIDENT: Call the roll.
(The Secretary called the roll.)
THE SECRETARY: Ayes, 52.
THE PRESIDENT: The bill is
passed.
THE SECRETARY: Calendar Number
540, substituted earlier today by Member of
the Assembly Paulin, Assembly Print Number
10125, an act to amend Chapter 253 of the Laws
of 2002, relating to temporarily allowing.
THE PRESIDENT: Read the last
section.
THE SECRETARY: Section 2. This
act shall take effect immediately.
THE PRESIDENT: Call the roll.
(The Secretary called the roll.)
THE SECRETARY: Ayes, 52.
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THE PRESIDENT: The bill is
passed.
Senator Skelos, that completes the
reading of the noncontroversial calendar.
SENATOR SKELOS: Thank you, Madam
President. If we could go to the reading of
the controversial calendar.
THE PRESIDENT: The Secretary
will read.
THE SECRETARY: Calendar Number
41, by Senator Volker, Senate Print 3508A, an
act --
SENATOR SCHNEIDERMAN:
Explanation.
THE PRESIDENT: Senator Skelos,
an explanation has been requested of Senator
Volker's bill.
SENATOR SKELOS: Madam President,
if we could just lay that aside temporarily
and take up Senator Saland's bill, Calendar
Number 413.
THE PRESIDENT: The bill is laid
aside temporarily.
The Secretary will continue to
read.
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THE SECRETARY: Calendar Number
413, by Senator Saland, Senate Print 1279A, an
act to amend the Insurance Law and the General
Obligations Law, in relation to the use of
lands for recreational activities.
SENATOR SCHNEIDERMAN:
Explanation.
THE PRESIDENT: Senator Saland,
an explanation has been requested.
SENATOR SALAND: Thank you, Madam
President.
This bill does basically two
things. On the one hand, the first section of
the bill directs the Superintendent of
Insurance to, within 18 months of the
effective date of this legislation, to
effectively determine the cost of property and
liability coverage for those landowners who
make their land and water areas available to
the public for recreational and conservation
purposes and, more appropriately, how we go
about controlling those costs.
Secondly, and perhaps more at issue
here, is the expansion of this bill, of the
portion of Section 9-103 of the General
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Obligations Law. What that section does, it
enumerates some 18 or 19 specific categories
of recreational activity for which a
landowner, if he or she permits the use of
their premises, doesn't charge a fee, is not
willful or malicious in attempting to secret
dangerous conditions, will otherwise be free
of liability.
What this is all about is perhaps
best stated in the legislative intent section,
which reads as follows: "The Legislature
reaffirms the purpose of this section, which
is to encourage property owners to make land
and water areas available to the public for
recreational or conservation purposes by
limiting their potential liability exposure
towards persons entering thereon for such
purposes. Its provisions should be construed
to accomplish those objectives."
And that's, in essence, the long
and the short of the purpose of this
legislation, to encourage private landowners
to let others avail themselves of the
opportunity to seek recreational opportunities
on their premises without being concerned
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about being sued in some court of law in the
event that something should occur to somebody
who avails themselves of that opportunity.
THE PRESIDENT: Senator
Schneiderman.
SENATOR SCHNEIDERMAN: Thank you,
Madam President. If the sponsor would yield
for a few questions.
THE PRESIDENT: Senator, do you
yield?
SENATOR SALAND: Yes, Madam
President.
THE PRESIDENT: Go ahead, Senator
Schneiderman, with a question.
SENATOR SCHNEIDERMAN: Thank you.
This legislation refers to an
owner, lessee or occupant of premises and
provides that the owner, lessee or occupant of
premises essentially has liability for
everything other than malicious acts removed
when the premises are made open for any
recreational use.
Are premises in any way limited in
this legislation to outdoor areas, wild areas,
wilderness areas, or in any other way limited?
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SENATOR SALAND: I would think,
if one takes a look at the existing language,
if you look up above in Section 2 where there
already is reference to keeping the premises
safe for entry for others, whatever the law
currently is, the law currently is.
And I'm not quite sure any issues
have been raised with regard to what shall
constitute premises. If that should be a
problem, I would be very happy to attempt to
address it. But I'm not aware of any case law
that has raised that issue.
And the case law that I have seen
has generally dealt with outdoor recreational
activities. And I'm assuming it's outdoor
recreational activities.
SENATOR SCHNEIDERMAN: Through
you, Madam President, if the sponsor would
continue to yield.
THE PRESIDENT: Senator Saland,
do you continue to yield?
SENATOR SALAND: Yes, Madam
President.
THE PRESIDENT: You may proceed,
Senator Schneiderman.
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SENATOR SCHNEIDERMAN: I think
the concern I'm raising is that the earlier
version of the law limited this provision by
listing a certain number of activities that
only can really take place in outdoor
wilderness recreation areas. Once you change
that and provide for any recreational use --
where I come from, that could mean
skateboarding in an empty lot.
And if "premises" is as broadly
defined as it is in this legislation, the way
I read it, this would allow someone who owns
an industrial site, a commercial site, an
empty lot with broken bottles and lumps of
concrete in it to be exempt from liability if
they simply say it's open for recreational
purposes.
SENATOR SALAND: I would think
not. I would certainly think that if somebody
invited somebody to use premises that were
littered with, as you describe, broken bottles
or whatever, there would be certainly an
element of willfulness or wantonness that
would in effect get whomever would make such
an offer outside the parameters of this
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legislation.
SENATOR SCHNEIDERMAN: Well, if
someone in a wilderness area were to invite
someone into property for hiking and camping
and there was a broken bottle lying on a trail
because someone who'd just used it had left it
there, would that then subject the owner of
the premises who invited people on for hiking
or camping to liability under this bill?
SENATOR SALAND: I would think
that would be a question of fact different
from the one in which you talked about a lot
that was littered with bottles, broken
bottles. You're talking about somebody who
left the bottle on a trail. I'm not quite
sure, there might not be an element of
assumption of risk there. But again, I think
vastly different on the facts from, you know,
a lot strewn with broken bottles.
There is, incidentally, an
Appellate Division case, a First Department
case which would certainly seem to imply that
this is outdoor recreational property. And
I'm referring to Russo v. The City of New
York. I won't read you the particulars of the
1301
analysis of the fact pattern, but the court
states -- and here I'll quote -- "The narrow
strip of land on which the plaintiff was
injured is located in a densely populated and
highly developed area not within the purview
of General Obligations Law 9-103, and the
ordinary standards of negligence should
apply."
SENATOR SCHNEIDERMAN: Thank you.
Through you, Madam President, if
the sponsor would continue to yield.
THE PRESIDENT: Senator, do you
continue to yield?
SENATOR SALAND: Yes, Madam
President.
THE PRESIDENT: You may proceed,
Senator Schneiderman, with a question.
SENATOR SCHNEIDERMAN: I
appreciate that.
My concern is that a subsequent
amendment of the law such as you're proposing
today certainly could result in new case law.
And as I read it -- and maybe let's
take away the litter of bottles and
concrete -- is there anything here that
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restricts the application of this law to
wilderness areas or would preclude an owner
from asserting this as a defense if they, in a
suburban area or an urban area or any other
area of the state, had some open concrete
space, an old parking lot or any other
premises that was open to use for recreational
purposes?
SENATOR SALAND: Well, certainly
I don't want to be so provincial as to say
that this legislation is limited to wilderness
areas. That may reflect a view of New York
that I don't subscribe to. I don't exactly
live in a wilderness area. And there are a
number of opportunities for people in the
suburbs to access, under the existing law,
opportunities for open space.
The bottom line here is that there
is nothing that has been done that in any way,
shape or form changes the interpretation of
"premises." And if in fact the courts have
ruled -- which I think they should rule --
that this generally applies to open space
areas, then that's in fact what it is.
If the courts have decided that
1303
there are other recreational opportunities
that people might avail themselves to or of to
which this applies, then that goes to the
existing law. Because the existing law
enumerates these 18 or 19 categories. I
propose to expand that by prefacing that with
the language "including, but not limited to."
And so the base remains the same: the
premises.
SENATOR SCHNEIDERMAN: Thank you.
Through you, Madam President, on
the bill.
THE PRESIDENT: You may proceed
on the bill, Senator Schneiderman.
SENATOR SCHNEIDERMAN: I'd like
to thank the sponsor for his answers.
I have voted against this bill in
the past. I will vote against it again for
several reasons. The issue that I was just
raising I think is something that probably can
be corrected, but I think it is a serious
problem.
The old form of the law made it
clear by delineating certain types of
activities that really take place in exurban
1304
settings, primarily -- I hope people aren't
involved in hunting in urban areas -- but
gleaning, canoeing, boating, trapping, hiking,
cross-country skiing, tobogganing, sledding,
and things like that. I think the
interpretation of the old law was clear.
Once you broaden it to say any
recreational use, I'm afraid that that really
is too broad. I mean, that includes -- I hope
"recreational use" includes other types of
activities such as playing basketball or
skateboarding or other things that people are
more likely to do in areas of my district --
and, now that I know Senator Saland's district
is a center of more urban activity, in his
district as well.
I think this particular problem is
something that probably is easily remedied by
language, but it is an issue. But the reason
it's an issue is that -- relates to another
problem with this legislation, which is that
this is a broad exemption from liability for
people who open their premises up for any
recreational purpose and are thereby exempt
from liability for any sort of negligence.
1305
They're no longer responsible for taking the
care that all the rest of us are responsible
for in our premises, the duty of reasonable
care to keep property safe.
The only circumstances under which
a property owner who opens it for recreational
purposes under this bill would be liable is
for willful or malicious acts. And as
indicated by the colloquy we just had, the
question of whether or not broken bottles
lying around is a willful or malicious act
might, you know, be subject to a different
interpretation by a court in any of a number
of cases.
The fact of the matter is you
shouldn't be able to exempt yourself from
liability for allowing an area to get into
disrepair, for negligence in maintaining
areas, for allowing broken bottles to lie
around, for allowing bridges to become unsafe.
Even if you know there are dangerous
circumstances here because you haven't taken
the care required to maintain the premises in
a safe condition, you could be exempt from
liability. That's a fundamental problem.
1306
We shouldn't allow people to exempt
themselves from taking care for their property
when you're opening it up to children, you're
opening it up to senior citizens, you're
opening it up to people who easily could be
injured by any of a number of circumstances
that could present themselves, and you're
essentially providing a blank check to a
negligent property owner. That is another
problem with the bill, and a more fundamental
problem.
And, finally, I would suggest that
the notion that we have a piece of legislation
that directs the Superintendent of the
Insurance Department to study and make
recommendations to the Governor on the issue
of insurance liability under these
circumstances, but then doesn't wait for that
study to be conducted to propose a dramatic
change in the law relating to property that
the study presumably would address, is really
very peculiar anywhere except in Albany.
I believe that this is a study that
is probably a very good idea. If this was
stripped out of the bill, I think it would
1307
pass overwhelmingly in both houses. Report to
the Governor and the Legislature, and let's
have the experts in the Insurance Department
collect the facts and make recommendations to
lawmakers.
There's no reason to relieve a
landowner of their duty of care simply because
they permit public access on their property.
The list of potential tragedies is very long.
One death or serious injury is simply, in my
view, too great a price to pay for an increase
in lands available for recreational use.
But as long as we're talking about
studying the issue, let's do the study before
we make a dramatic proposal that could
potentially put people at risk. I've voted no
on this before, I will vote no on it again, I
urge everyone also to vote in the negative.
Thank you, Madam President.
THE PRESIDENT: Senator Diaz.
SENATOR DIAZ: I yield to Senator
Krueger.
THE PRESIDENT: Senator Krueger.
SENATOR LIZ KRUEGER: Thank you,
Madam President. If the sponsor would yield,
1308
please.
THE PRESIDENT: Senator Saland,
will you yield for a question?
SENATOR SALAND: Yes, Madam
President.
THE PRESIDENT: You may proceed
with a question, Senator.
SENATOR LIZ KRUEGER: Thank you,
Madam President.
Under the current law, if I am a
landowner and I don't give permission for you
to use my property so you trespass to use it,
and you get hurt on my land -- let's say there
is a walking bridge that is in disrepair and
it collapses and you fall into a gorge --
under current law, am I, the landowner, liable
for someone who trespasses being hurt?
SENATOR SALAND: There is nothing
in the current law or in the proposed
amendment that in any way, shape, or form
changes or alters the existing common law with
respect to whatever the duty might be owed to
a trespasser. There's nothing here that
changes that.
And I won't begin to propound what
1309
I think the law is, because some of my more
active colleagues at the bar might correct me
and I'd merely be embarrassed. But suffice it
to say that the bottom line is that there's
nothing here that changes whatever currently
is the law with respect to someone who
trespasses upon property.
SENATOR LIZ KRUEGER: Thank you.
Madam President, on the bill
briefly.
THE PRESIDENT: Go ahead on the
bill, Senator Krueger.
SENATOR LIZ KRUEGER: Thank you,
Madam President.
Well, my understanding or what I've
been advised on common law and existing law is
that if I don't open my property, someone
trespasses and they get hurt, that there is
liability on me as a property owner. And you
didn't disagree with that. You said that
perhaps we should leave it to others to debate
it. But it's my understanding that I would be
liable.
But under your proposed law, if I
open up my land so that you are not a
1310
trespasser because I have given a de facto
permission to you or anyone to use my land,
and they get hurt on the same walking bridge
in the example I gave before, then I would not
be liable.
And so my concern with this
legislation, in addition to the concerns that
were raised by Senator Schneiderman earlier,
is that in an odd way, with this piece of law,
we would actually be, under the rubric of
encouraging people to open up their lands to
make them available for public recreation,
setting up a scenario where somebody who makes
their land available is not liable for
anything that happens on their land, while
someone who chooses perhaps the more cautious
approach of saying: No, it's my private land
and I don't think it's a good idea for people
to trespass on it, and I'm not sure about all
the conditions" -- and it could be very large
tracts of land, as you know -- so I'm not sure
about the safety, so I'm going to not allow
people to trespass -- excuse me, I'm going to
mandate it is a trespass, not open my land, so
I'll be liable, when somebody who opens up
1311
their land is not liable -- that seems, to me,
to fly in the face of protecting the public
good, and it seems to set up a very
inconsistent and, I might add, sort of odd
structure of liability.
So I don't think that I could
support this bill, because I'm not sure that I
think most of us would agree with the answer
that this bill would lead us to, that people
who say "No, you can't use my property" have
liability and people who say "Yes, you can use
my property" don't have any liability. And I
don't think that's in the best interests of
the public, so I'll be voting no.
Thank you, Madam President.
THE PRESIDENT: Senator Diaz.
SENATOR DIAZ: Thank you, Madam
President. Through you, would the sponsor
yield for a question?
THE PRESIDENT: Senator Saland,
will you yield for a question?
SENATOR SALAND: Yes, Madam
President.
THE PRESIDENT: You may proceed,
Senator.
1312
SENATOR DIAZ: Senator Saland,
there are many religious organizations and
not-for-profit groups who happens to have big
portion of lands, and they would like to open
those properties for the use of the public.
Some of them, they are afraid of a big lawsuit
if something happens.
How would this bill help a
religious institution that would like to open
their property for the use of the public?
SENATOR SALAND: One of the
purposes of this bill, if not the principal
purpose, is to encourage the opening of those
types of large parcels or other parcels, by
saying as long as you're not charging a fee,
as long as you're not being willful or
malicious in, in effect, hiding a condition
that would otherwise be dangerous, you would
not have to concern yourself with liability.
This is about encouraging people
with the protection of not being sued as long
as they avoided those particularly
proscribed -- I'll call them things not to do
which are already in the existing law, then
that, I would think, would be an inducement to
1313
an organization such as that.
And again, that's what the bill is
about. And there's nothing that we're doing
here that is that dramatic. We are saying
that the law already says that there are some
18 or 19 categories. And they're in the bill.
I'm not going to bother to put my glasses back
on and read what they are. But they're listed
in the bill, in 9-103. And we're saying we
want other recreational opportunities, that
that 18 or 19 is just to be an example and not
be the end-all.
And I'm not aware and no one has
ever pointed out that somehow or other the
existing 9-103 is being abused. And I would
just think what this, again, would do would be
to encourage the kinds of folks that you're
talking about to open up their property and
encourage people to recreate on that property.
SENATOR DIAZ: Thank you.
On the bill.
THE PRESIDENT: You may proceed
on the bill, Senator.
SENATOR DIAZ: I think that --
referring to Senator Krueger's comment on the
1314
inaccuracies of both issues, I think that if a
person trespasses a property and he or she
gets hurt in that trespassing accident, the
landlord, the owner of the property should not
be liable because someone trespassed without
permission to that property. I think that the
law should be changed that relieves the
homeowner or the landowner from being liable
if someone trespasses and gets hurt on the
property.
On the other hand, the bill that
Senator Saland is proposing is opening the
door for Jewish organizations, Catholic
organizations, evangelical organizations, many
other not-for-profit groups that would like to
open and give the opportunity to the community
to use their property.
And I think that I will support
this bill, and I'm asking that we try to
change the law in protecting the homeowner
when someone trespasses on their property.
Thank you.
THE PRESIDENT: Does any other
member wish to be heard on this bill?
Then the debate is closed.
1315
Read the last section.
THE SECRETARY: Section 3. This
act shall take effect on the 180th day.
THE PRESIDENT: Call the roll.
(The Secretary called the roll.)
THE SECRETARY: Those recorded in
the negative on Calendar Number 413 are
Senators Andrews, Breslin, Brown, Connor,
DeFrancisco, Dilán, Duane, Hassell-Thompson,
L. Krueger, C. Kruger, Lachman, Montgomery,
Morahan, Onorato, Parker, Paterson, Sabini,
Sampson, Schneiderman, M. Smith, and Stavisky.
Ayes, 38. Nays, 21.
THE PRESIDENT: The bill is
passed.
THE SECRETARY: Calendar Number
509, by Senator Maziarz, Senate Print 930A, an
act to amend the Environmental Conservation
Law --
SENATOR LIZ KRUEGER:
Explanation.
THE PRESIDENT: Senator Maziarz,
an explanation has been requested.
SENATOR MAZIARZ: Yes, thank you
very much, Madam President.
1316
This legislation lowers the age
from 14 to 12 that is required to obtain a
junior archery license. By lowering the age
to 12, we are keeping the minimum age
consistent with obtaining a junior small-game
license.
A junior archery license allows a
holder to hunt with a longbow during both
archery and the regular hunting season. An
individual who has a junior archery license
must be accompanied by a parent or legal
guardian or by a person age 18 or over who has
had at least one year's experience in hunting
by longbow, and such person holds a license to
hunt big game.
There are numerous criteria that an
individual must pass before becoming eligible
for a junior archery license. Included among
this is the passage of a hunting and safety
responsibility course.
Thank you, Madam President.
THE PRESIDENT: Senator Krueger.
SENATOR LIZ KRUEGER: Thank you,
Madam President. If the sponsor will yield,
please.
1317
THE PRESIDENT: Senator Maziarz,
will you yield for a question?
SENATOR MAZIARZ: Yes, Madam
President.
THE PRESIDENT: You may proceed
with a question, Senator.
SENATOR LIZ KRUEGER: Thank you,
Madam President.
Do we know what the average weight
of a 12- and 13-year-old is?
SENATOR MAZIARZ: Do I know what
the average weight of a 12- or 13-year-old is?
No, I do not know what the average weight is.
SENATOR LIZ KRUEGER: If the
sponsor will continue to yield, Madam
President.
THE PRESIDENT: Senator Maziarz,
will you --
SENATOR MAZIARZ: Yes, I do,
Madam President.
THE PRESIDENT: He continues to
yield, Senator.
SENATOR LIZ KRUEGER: Do we know
what the average weight of a bear is?
SENATOR MAZIARZ: No, I don't
1318
know what the average weight of a bear is.
SENATOR LIZ KRUEGER: Madam
President, if the Senator would continue to
yield.
THE PRESIDENT: Senator, do you
continue to yield?
SENATOR MAZIARZ: Yes, I do,
Madam President.
THE PRESIDENT: You may proceed
with a question, Senator Krueger.
SENATOR LIZ KRUEGER: Could we
agree that bears are larger than 12- and
13-year-olds?
SENATOR MAZIARZ: We would agree
that bears are much larger than 12- and
13-year-olds.
SENATOR LIZ KRUEGER: Thank you.
Madam President, on the bill.
THE PRESIDENT: You may proceed
on the bill, Senator.
SENATOR LIZ KRUEGER: Thank you.
And thank you, Sponsor, for your
comments.
We had this debate last year, and
so I -- and I know and people are welcome to
1319
be critical of my position yet again. But I'm
just going to lay out the arguments as I see
them against this bill.
I have no problem with 12- and
13-year-olds practicing archery in a variety
of different places to train to learn to be
better and safer hunters when they are older.
However, I will continue to argue
that from a child-welfare perspective we
should not be allowing 12- and 13-year-olds,
most of whom have not even gone through
puberty or had a growth spurt, to be in the
woods attempting to hunt large game, bear and
deer -- and deer can be quite large also, but
obviously the argument was for bear in this
case.
This is an unsafe sport. It puts
children at risk. It puts relatively
physically small children at risk. There are
other activities they can participate in in
learning how to be safe hunters later in life.
But that changing the age from 14 to 12 puts
our children at risk.
The statistics on casualties from
hunters are disproportionately higher for
1320
children hunters, both two-party casualties,
self-inflicted casualties, and casualties
where the animal, so to speak, wins in the
fight -- particularly bears, when being hunted
by bow and arrow.
I heard the arguments last year,
and I respect them, that hunting can be a
bonding experience and a valuable sport for
parents and children to participate in
together. And they can start that at 14 when
we're talking about hunting big game. There
are many other activities for children to be
participating in with their families, physical
activities in the great outdoors.
I urge my colleagues to rethink
both their own children and what size they
were when they were 12 and 13 versus 14, the
dangers that are inherent in dealing with a
child versus a bear in the woods.
For the record, the argument that
children are hunting bear for food is not an
acceptable argument. Yet again, I will say on
the floor of the Senate if your constituents
are sending their children out in the woods at
the age of 12 and 13 to hunt for food, I would
1321
be happy to go over eligibility for the food
stamp program with each and every one of you,
an underutilized program in the state of
New York.
This is not good public policy. We
should not be encouraging our 12- and
13-year-olds from participating in sports that
in fact can be dangerous and put their lives
at risk. Fourteen is a young enough age.
There are other activities, including other
sports activities and training with bow and
arrow, that can take place, and we should not
allow this law to be lowered to the age of 12.
Thank you, Madam President. I'll
be voting against the bill.
THE PRESIDENT: Senator Stavisky.
SENATOR STAVISKY: Madam
President, if the sponsor would yield to one
or two questions.
THE PRESIDENT: Senator Maziarz,
will you yield for one or two questions?
SENATOR MAZIARZ: Yes, Madam
President.
THE PRESIDENT: You may proceed
with a question, Senator.
1322
SENATOR STAVISKY: Are there any
statistics that show an increase in accidents
involving the 12-to-14-year age group? Has
there been an increase perhaps nationwide or
in those states that permit 12-to-14-year-olds
to participate in this program under this
license?
SENATOR MAZIARZ: In the states
that permit it? I'm not aware of any in the
states that permit it. Of course there
haven't been any in New York, because in
New York 12- and 13-year-olds are not licensed
to do this activity.
SENATOR STAVISKY: I'm referring
to the states that do permit junior archery
licenses.
SENATOR MAZIARZ: No. No.
I think most of the statistics that
Senator Krueger cited are statistics involving
firearms, not involving archery, if she's
citing the same statistics that she cited last
year during this debate.
SENATOR STAVISKY: That's the
purpose of my question.
The second part of the question,
1323
then, is I know that firearms are permitted
for that age category. Has there been an
increase in accidents involving children
between the ages of 12 and 14?
SENATOR MAZIARZ: No. Not that
I'm aware of, Senator, no.
SENATOR STAVISKY: Thank you.
SENATOR MAZIARZ: Thank you.
THE PRESIDENT: Does any other
member wish to be heard on this bill?
Then the debate is closed.
Read the last section.
THE SECRETARY: Section 5. This
act shall take effect on the 90th day.
THE PRESIDENT: Call the roll.
(The Secretary called the roll.)
THE PRESIDENT: Senator Hoffmann,
to explain your vote?
SENATOR HOFFMANN: Yes, thank
you.
I am very happy to support this
bill. And I want to compliment the sponsor
once again for raising it and speaking to it
in such a reasoned way.
Those of us who know families that
1324
are involved in archery think that it is a
wonderful way for families to enjoy quality
time together. There's really no age at which
someone is too young to enjoy learning about
the outdoors. And for many families, archery
has become a way of life and a great shared
experience.
It's always distressing to hear
statistics misused on the floor. Statistics
regarding guns have no merit on this
particular discussion. And statistics,
unattributed, relating to injuries involving
children also have no merit.
There really is very little
statistical evidence to indicate that there is
any danger to young people who would engage in
archery hunting for small game accompanied by
a parent or a guardian who is duly licensed to
engage in bow hunting.
THE PRESIDENT: The Secretary
will announce the results.
THE SECRETARY: Those recorded in
the negative on Calendar Number 509 are
Senators Diaz, Duane, L. Krueger, Morahan,
Onorato, Padavan, Parker, Sampson,
1325
Schneiderman, A. Smith, and Stavisky. Ayes,
49. Nays, 11.
THE PRESIDENT: The bill is
passed.
THE SECRETARY: Calendar Number
41, by Senator Volker, Senate Print 3508A, an
act to amend the Penal Law, in relation to the
possession and sale of firearms.
SENATOR SCHNEIDERMAN:
Explanation.
THE PRESIDENT: Senator Volker,
an explanation has been requested.
SENATOR VOLKER: Madam President,
this is a bill -- a Governor's program bill.
And in keeping with my new policy of total
truth, I want to say -- having read the memo,
I want to assure my friends from upstate
New York that this bill does not exactly do
what the memo says it does.
It is a bill that, frankly,
increases the penalties substantially for the
sale of illegal firearms. The statement in
this memo that says that the 2000 anti-gun
violence legislation has brought the crime
rate down -- personally, I'd like to see the
1326
evidence. I know of no evidence of that. And
I certainly realize that in New York City it's
popular to say that, but there's just no
evidence that it has had any impact. But
illegal sale of weapons is illegal sale of
weapons. And it's wrong.
This has no impact on honest
citizens who have legal weapons, who use them
in an honest way, just as -- you know, there
are many people that run around and say if you
could just get rid of every gun in the state,
everything would be fine. Well,
unfortunately, no state that's ever done that
has ever found that that works. But that's
beside the point.
This is a Governor's program bill
2004. And it dramatically increases
penalties, in one case from a D felony to a
B felony. And one of the things that the
New York City people have told us is the
difficulty is that the highest penalty relates
to a large number of firearms. And because of
the difficulties in dealing with some of these
illegal firearms dealers, they have asked the
Governor and asked us to reduce numbers from
1327
20 or more firearms, illegal sale, to 10 or
more. And the idea is that sometimes it's
difficult to keep track of all the guns that
are involved.
There are gun dealers, there's no
question -- traditionally, they may deal with
more terrorist organizations than regular
criminals, but they still should be penalized
severely. They should be gotten off the
streets.
And -- so that's basically what
this bill does. I frankly think that the
illegal gun trafficking is overdone. Although
New York City gets a tremendous amount of
illegal firearms from the South, and that's
true. But most of those are used for
different activities than in the streets. But
they are used, and some of them end up in
Europe. I know that. And the FBI knows that,
and we all do.
And that was the problem with the
New Jersey Turnpike, which is -- not only did
drugs come down the New Jersey Turnpike to
New York City, but guns and tobacco and all
sorts of things. And resulted in the death of
1328
a whole bunch of New Jersey state troopers.
And then allegations of racial targeting and
all that stuff. But a lot of people died in
that. And thankfully that has decreased
dramatically, as has the crime rate in
New York City, by the way.
Except that, as I was going to
point out to Senator Parker, since the Diallo
case, the murder rate in his area has
increased because the numbers of New York City
police in the special squads, once that
decreased, the murder rate increased almost
immediately. And unfortunately, that's one of
the results of some of the things that we do
unwittingly.
Senator Schneiderman?
SENATOR SCHNEIDERMAN: Well,
thank you, Senator.
SENATOR VOLKER: You're welcome.
ACTING PRESIDENT FUSCHILLO:
Senator Schneiderman, why do you rise?
SENATOR SCHNEIDERMAN: Thank you,
Mr. President. I believe that there is an
amendment at the desk. I'd like to waive its
reading and ask to be heard on the amendment.
1329
ACTING PRESIDENT FUSCHILLO:
Senator Schneiderman, we've reviewed your
amendment and found it to be germane. The
reading is waived, and you may speak on the
amendment.
SENATOR SCHNEIDERMAN: Thank you.
Today we're going to be talking a
great deal about the illegal sale of guns.
And we have had scheduled for today for some
time a motion to petition to try and bring to
the floor the most critical piece of
legislation that we could possibly enact in
order to stop the flow of guns from the legal
market into the illegal market, which we will
deal with somewhat later.
Senator Volker has -- who I know
has to balance his support of gun ownership
with his support for tough law enforcement; in
this case, I'm pleased that tough law
enforcement has won out -- has acknowledged
that the sale of illegal guns is a problem.
We may disagree about the magnitude.
But I think that it is fair to say
that in the last two or three years, through a
series of lawsuits by cities and by
1330
individuals injured by guns and by public
interest organizations, a record has been
developed clearly documenting the illegal
market in guns.
What we know now that we didn't
know several years ago is the following. And
I will read to you from the affidavit of
Robert A. Ricker, who was the distributor of
government affairs and then executive
distributor of the American Shooting Sports
Council, a trade association promoting guns.
He stated, under oath, in one of
these cases: "The firearm industry, including
the defendants in this action, has long known
that the diversion of firearms from legal
channels of commerce to the illegal black
market occurs principally at the distributor
level. Many of those firearms pass quickly
from licensed dealers to juveniles and
criminals through avenues such as straw sales,
large-volume sales to gun traffickers, and
various other channels by corrupt dealers and
distributors who go to great lengths to avoid
detection by law enforcement authorities.
Leaders in the industry" -- referring to the
1331
gun industry -- "have long known that greater
industry action to prevent illegal
transactions is possible and would curb the
supply of firearms to the illegal market.
However, until faced with the serious threat
of civil liability for past conduct, leaders
in the industry have consistently resisted
taking constructive voluntary action to
prevent firearms from ending up in the illegal
gun market and have sought to silence others
within the industry who have advocated
reform."
So before us today is an
opportunity to do something about this
diversion of guns from the legal market to the
illegal market. We all know there is a legal
market in guns where millions of Americans buy
and sell guns, use them safely. No one is
arguing about that today. What we're talking
about is the fact that we also know there is a
vast illegal market that the gun industry has
refused to cut off even though they know that
they could.
My amendment today would add to
Senator Volker's bill -- which seeks to close
1332
a loophole whereby savvy gun dealers have been
able to evade prosecution -- a provision
requiring that federally licensed firearm
dealers be the only people in New York State
who can buy and sell any type of firearms.
This adds long guns, rifles and shotguns to
the same provisions that we have passed in
this house not so long ago to cover handguns.
And the point is very simple. If
you don't have a federally licensed dealer
selling a firearm, there's no background
check. If you don't have a federally licensed
dealer, you don't have the tracing of the
weapon that is possible through the Bureau of
Alcohol, Tobacco and Firearms, because there's
no way to trace the trail by which the weapon
was bought and sold.
This is a loophole that should be
closed, just as Senator Volker is seeking to
close a loophole whereby people would sell two
illegal guns and then two more and then two
more and thus evade prosecution under the
existing statute.
But the fundamental issue before us
today on this amendment on Senator Volker's
1333
bill and on our motion to petition is this.
We know that there are thousands of people
dying from illegal guns. We're not talking
about legal weapons or hunting accidents or
anything else. We're talking about the
illegal market that, according to a study by
the Violence Policy Center, now represents at
least 15 percent of the guns produced or
imported for sale in the United States.
Now, that's a lot of gun sales and
that's a lot of profits. It is clear the gun
industry does not want to voluntarily take
action to stop the illegal market, so it's up
to us.
Let's take that step. I'm going to
support Senator Volker's bill today. But I
would urge that we make it better by plugging
a second loophole and adding my amendment
requiring federally licensed gun dealers to be
the only people who can sell guns in New York
State.
And I would also urge that the same
applies to the motion to petition which we
will bring shortly to impose civil liability
on gun dealers who refuse to take simple,
1334
voluntary steps to stop the flow of illegal
weapons, to stop their legally produced
weapons from entering the illegal market, and
to stop the well-documented death and
devastation that's caused.
I don't think Senator Volker would
argue with us when we say that there are many
thousands of people injured by guns in crimes
every year. There are many people killed by
guns in crimes every year. And stopping the
illegal market in guns is something we should
all agree on, whatever our view of hunting
with bows or guns or other illegal uses of
guns is.
So I would urge the adoption of
this amendment, Mr. President, and then would
seek to be heard on the bill.
Thank you.
ACTING PRESIDENT FUSCHILLO:
Senator Krueger, why do you rise?
SENATOR LIZ KRUEGER: Thank you,
Mr. President. I rise to speak on the bill.
ACTING PRESIDENT FUSCHILLO: On
the amendment or the bill?
SENATOR LIZ KRUEGER: Excuse me,
1335
on the amendment to the bill. Excuse me.
Thank you.
Although I will say, for the
record, that I am happy to support Senator
Volker's bill. It is an approach to dealing
with the out-of-control situation of too many
guns on our streets, too many illegal
possessions of guns. But again, Senator
Volker's bill deals with penalizing people who
already possess the guns.
Senator Schneiderman's amendment --
and why I feel that it is such an excellent
and complementary approach to the
bigger-picture issue of too many illegal guns
out there is that Senator Schneiderman's
amendment and his own bill that he'll be
talking about later today in fact is an
attempt at a prevention model. Let's stop
those guns from getting out there, being in
the hands of people who then might be found
guilty under new criminal charges under
Senator Volker's bill.
So that I see this as a continuum
where Senator Schneiderman's proposal for a
standard of conduct on gun manufacturers is,
1336
to some degree, an approach of preventive
medicine on the issue of too many guns in the
hands of the wrong people in the state of
New York.
That again, having criminal charges
to apply to people who illegally have guns or
use guns, is the end of the story. The
beginning of the story would be better served
for the people of New York if we could ensure
that no one had these guns in the first place,
that they were not illegally in possession of
guns and they were not then, in fact,
potentially reselling them illegally.
And I also view this not just as a
prevention model but, if you look through what
the standards of conduct are, it's parallel to
sometimes we talk in this chamber about issues
of fraud in government programs -- health care
fraud, Medicaid insurance fraud. You can't
participate in Medicaid fraud unless you have
a provider involved, somebody who's authorized
to process that illegal Medicaid
reimbursement.
The same is true in guns. If we
don't have penalties and we don't have
1337
standards applied that make sure that people
can't get these guns and sell them without any
penalty on themselves for not following the
laws or not following the correct standards,
you increase the chance that these guns are
going to be out there.
So the fact is that under Senator
Schneiderman's amendment, which is his bill
5730, it prohibits the sale of weapons to bad
dealers. It's preventive medicine. It's
saying: Bad dealers, you aren't going to be
allowed to get access to these guns, because
we know what happens down the road when you do
have them.
It prohibits gun-show sales without
a background check. Because we know that that
has been a major loophole in the law. And we
should all be concerned that in certain
locations in the state of New York or in other
states you have easier access to buy guns
without a background check than in other
locations.
It only permits firearm sales to
dealers who maintain a fixed address for their
store and an electronic database, including
1338
the specifications of the guns in inventory or
for sale and the names and the numbers of all
gun buyers. That's just smart.
We require the DMV to keep track of
who you are and where you are when we let you
have a license to drive a car, because we
recognize that it can be a dangerous vehicle.
We should have the same standards for allowing
somebody to have a gun, which we know is a
dangerous implement.
It limits the purchases by one
person to one weapon per 30 days. Seems
pretty reasonable. It requires the
implementation of a security plan for securing
weapons in transit. It requires gun
manufacturers to provide full access of
records to law enforcement and government
regulators.
Senator Balboni started off today
talking about the fact that we are living in a
different world, a world with higher security
needs and risks. Senator Volker's bill
ensures an increase in criminal penalties when
you have these guns. It seems not only the
logical step but the right step for us to be
1339
taking in ensuring that we are applying this
same model of preventive health care in the
state of New York to make sure that bad people
don't get guns and aren't allowed to sell
guns.
So I urge my colleagues to support
Senator Schneiderman's amendment to Senator
Volker's bill.
Thank you, Mr. President.
ACTING PRESIDENT FUSCHILLO:
Those Senators in agreement with the amendment
please signify by raising your hand.
THE SECRETARY: Those recorded in
agreement are Senators Andrews, Breslin,
Duane, Hassell-Thompson, L. Krueger, Lachman,
Montgomery, Onorato, Parker, Paterson, Sabini,
Sampson, Schneiderman, A. Smith, M. Smith, and
Stavisky.
ACTING PRESIDENT FUSCHILLO: The
amendment is lost.
Read the last section.
THE SECRETARY: Section 8. This
act shall take effect on the first of
November.
ACTING PRESIDENT FUSCHILLO:
1340
Senator Schneiderman, why do you rise?
SENATOR SCHNEIDERMAN: Thank you,
Mr. President. Very briefly on the bill.
ACTING PRESIDENT FUSCHILLO:
Senator Schneiderman, on the bill.
SENATOR SCHNEIDERMAN: I think
that eventually we are going to have to do
something about the illegal market in guns. I
note that this piece of legislation Senator
Volker has been carrying has been around for a
while.
Very recently, the mayor of the
City of New York has chosen to raise this as
an issue and call on us to tighten up the
loophole that is addressed by Senator Volker's
legislation. I hope that the mayor will
strengthen his efforts to deal with the sale
of illegal guns. There is a lot of work
before us, as indicated by my amendment and by
the aspects of law that are addressed in our
motion to petition.
Senator Volker's bill is a good
step. But let's acknowledge that tightening
up the prohibitions, just requiring that
someone can be prosecuted for having a few
1341
illegal guns, is really not that great a step
forward. I'm glad we're reducing the
requirement from 20 to three, but there's a
lot more that needs to done if we're going to
deal with the problem of the market in illegal
guns in New York City and elsewhere in the
state.
I support the legislation,
Mr. President. Thank you.
ACTING PRESIDENT FUSCHILLO: Read
the last section.
THE SECRETARY: Section 8. This
act shall take effect on the first of
November.
ACTING PRESIDENT FUSCHILLO: Call
the roll.
(The Secretary called the roll.)
THE SECRETARY: Ayes, 60.
ACTING PRESIDENT FUSCHILLO: The
bill is passed.
Senator Morahan, that completes the
controversial reading of the calendar.
SENATOR MORAHAN: Any
housekeeping at the desk, Mr. President?
ACTING PRESIDENT FUSCHILLO: No.
1342
SENATOR MORAHAN: Will you
recognize Senator Schneiderman, please.
ACTING PRESIDENT FUSCHILLO:
Senator Schneiderman, why do you rise?
SENATOR SCHNEIDERMAN: Thank you,
Mr. President. I have a motion at the desk,
and I would like to have it called up at this
time.
ACTING PRESIDENT FUSCHILLO: The
Secretary will read.
THE SECRETARY: By Senator
Schneiderman, Senate Print 5730, an act to
amend the General Obligations Law.
ACTING PRESIDENT FUSCHILLO:
Senator Schneiderman.
SENATOR SCHNEIDERMAN: Thank you,
Mr. President.
This is a motion to put on the
Senate calendar Senate Bill 5730, which would
establish a code of conduct for gun
manufacturers, for safe marketing practices of
their firearms.
It would address an issue that was
recently raised in Congress when the National
Rifle Association and their allies tried to
1343
pass federal legislation to prevent states, to
prevent state legislatures and state courts
from imposing any civil liability on gun
manufacturers, no matter how irresponsible
their practices, for death and injury caused
by their firearms.
Our colleagues in Washington
defeated the NRA's effort to grant this
unprecedented federal immunity. This gives us
the opportunity here in the State of New York
to take action. But if we don't take action,
our federal colleagues' good work will have
been in vain.
It is absolutely clear that under
the law in the State of New York, legislative
action is required before gun manufacturers
can be held liable for the use of their
weapons once they fall into the hands of
criminals. And that was most clearly stated
in the case of NAACP v. Accusport, in a
detailed decision issued last July by federal
Judge Weinstein, where he stated: "The
evidence presented at trial demonstrated that
the defendants, the gun industry, are
responsible for the creation of a public
1344
nuisance and could, voluntarily and through
easily implemented changes in marketing and
more discriminating control of the sales
practices of those to whom they sell their
guns, substantially reduce the harm occasioned
by the diversion of guns to the illegal market
and by the criminal possession and use of
those guns."
Now, the judge went on to find the
Court of Appeals held that New York law does
not provide for suits against gun
manufacturers for their improper marketing
practices but invited, the Court of Appeals
invited legislative action to correct that.
My bill that I'm seeking to bring
to the floor today, and that we will continue
to seek to bring to the floor, would fill that
requirement set forth by the Court of Appeals.
What would the bill do? It would
provide that if you're a gun manufacturer and
you follow a code of safe marketing practices,
no one can sue you for the illegal use of your
firearms, for injury or death caused by the
illegal use of your firearms.
But if you don't follow a code of
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safe marketing practices, if you're one of
those manufacturers that continues to sell to
dealers even though their guns keep showing
up, keep showing up as being guns used in
crimes, then you are subject to liability.
Keep in mind the fact that -- and I
believe that our good mayor again has weighed
in on this issue, although perhaps not as
strongly as on the last one -- in an article
that the mayor wrote, he identified the fact
that 1.2 percent of the gun dealers in this
country are responsible for 57 percent of the
guns used in crimes. Think about that:
1.2 percent of the dealers are responsible for
57 percent of the guns used in crimes.
We know who the bad dealers are.
Gun manufacturers know who the bad dealers
are. They can cut them off.
So our code of conduct would
require that gun manufacturers stop selling
weapons to dealers who have sold more than
20 weapons in any 12-month period in the past
five years that have been used in crimes.
That's a pretty broad standard, 20 weapons.
It could be smaller, but we're trying to be
1346
reasonable.
It prohibits the sale of weapons at
gun shows -- it has to require that
manufacturers stop selling arms through gun
shows -- and requires manufacturers to sell to
dealers only who maintained a fixed address
for their store. Now, think about that.
There are major gun manufacturers who sell to
dealers operating out of their cars. This all
prevents us from stopping the flow of illegal
weapons.
This would require also
manufacturers and the dealers they sell to to
provide full access of records to law
enforcement. Well, that is hard to argue
with.
And it also prohibits manufacturers
from selling to dealers who do not limit a
purchase by persons to one weapon for 30 days,
stopping the phenomenon of straw-man sales,
people buying weapons over and over again to
sell to people who aren't allowed to buy
weapons under our current law.
And, finally, it requires
manufacturers to implement a security plan for
1347
securing weapons in transit.
These are totally reasonable steps.
And as stated in the Accusport litigation and
as stated by Mr. Ricker, the former gun
industry executive, these could easily be
voluntarily undertaken by the gun industry.
They refuse to do so, so we have to act
legislatively.
I respectfully submit that the
citizens of our state should not be barred by
technicalities of law from suing a gun
manufacturer that disregards all safe
practices, sells guns repeatedly to dealers
who they know are selling guns to criminals.
We should allow people to sue those
manufacturers.
And it is acknowledged by the gun
industry that the threat of civil liability is
the one thing that could get them to adopt
safe practices. So that's what this motion is
about. This bill, 5730, would impose that
code of conduct and open the door to civil
liability for manufacturers who do not follow
the code of conduct.
I would urge everyone that we
1348
should support this and move forward to
protect our citizens and to give back an
advantage to responsible gun owners and gun
manufacturers and gun dealers vis-a-vis those
who sell to the illegal market.
Thank you, Mr. President.
ACTING PRESIDENT FUSCHILLO:
Thank you, Senator Schneiderman.
All those in favor of the petition
out of committee please signify by raising
your hand.
THE SECRETARY: Those recorded in
agreement are Senators Andrews, Diaz, Dilán,
Duane, Hassell-Thompson, L. Krueger,
Montgomery, Onorato, Oppenheimer, Paterson,
Sabini, Sampson, Schneiderman, A. Smith,
M. Smith, Stavisky. Also Senator Brown. Also
Senator Lachman.
ACTING PRESIDENT FUSCHILLO: The
petition is lost.
Senator Skelos.
SENATOR SKELOS: Mr. President,
there being no further business to come before
the Senate, I move we stand adjourned until
Wednesday, March 24th, at 11:00 a.m.
1349
ACTING PRESIDENT FUSCHILLO: On
motion, the Senate stands adjourned until
Wednesday, March 24th, at 11:00 a.m.
(Whereupon, at 4:20 p.m., the
Senate adjourned.)