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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

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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.)

9 ACTING PRESIDENT GRIFFO: The

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.

11 ACTING PRESIDENT GRIFFO: The

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.")

17 ACTING PRESIDENT GRIFFO:

18 Opposed, nay.

19 (No response.)

20 ACTING PRESIDENT GRIFFO: The

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.

10 ACTING PRESIDENT GRIFFO: Thank


11 you, Senator Connor, for your comments on

12 Resolution 5204.

13 Senator Skelos.

14 SENATOR SKELOS: Mr. President,

15 if we could have Resolution 5284, by Senator

16 Marcellino, read in its entirety at this time.

17 ACTING PRESIDENT GRIFFO: Senator

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."

25 ACTING PRESIDENT GRIFFO: Senator

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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.

20 Thank you, Mr. President.

21 ACTING PRESIDENT GRIFFO: Thank

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.

3 ACTING PRESIDENT GRIFFO: Thank

4 you.

5 The question is on the resolution.

6 All in favor signify by saying aye.

7 (Response of "Aye.")

8 ACTING PRESIDENT GRIFFO:

9 Opposed, nay.

10 (No response.)

11 ACTING PRESIDENT GRIFFO: The

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.

19 ACTING PRESIDENT GRIFFO: The

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.

9 ACTING PRESIDENT GRIFFO: The

10 bill is passed.

11 THE SECRETARY: Calendar Number

12 723, by Senator Skelos, Senate Print 4055, an

13 act to amend the General Business Law, in

14 relation to authorizing collateral loans.

15 ACTING PRESIDENT GRIFFO: Read

16 the last section.

17 THE SECRETARY: Section 3. This

18 act shall take effect on the 30th day.

19 ACTING PRESIDENT GRIFFO: Call

20 the roll.

21 (The Secretary called the roll.)

22 THE SECRETARY: Ayes, 59.

23 ACTING PRESIDENT GRIFFO: The

24 bill is passed.

25 THE SECRETARY: Calendar Number

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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.

4 ACTING PRESIDENT GRIFFO: Read

5 the last section.

6 THE SECRETARY: Section 2. This

7 act shall take effect immediately.


8 ACTING PRESIDENT GRIFFO: Call

9 the roll.

10 (The Secretary called the roll.)

11 THE SECRETARY: Ayes, 59.

12 ACTING PRESIDENT GRIFFO: The

13 bill is passed.

14 THE SECRETARY: Calendar Number

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.

22 THE SECRETARY: Calendar Number

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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1 ACTING PRESIDENT GRIFFO: Read

2 the last section.

3 THE SECRETARY: Section 2. This

4 act shall take effect on the first of

5 November.

6 ACTING PRESIDENT GRIFFO: Call

7 the roll.

8 (The Secretary called the roll.)

9 THE SECRETARY: Ayes, 59.

10 ACTING PRESIDENT GRIFFO: The


11 bill is passed.

12 THE SECRETARY: Calendar Number

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.

17 ACTING PRESIDENT GRIFFO: Read

18 the last section.

19 THE SECRETARY: Section 2. This

20 act shall take effect on the first of

21 November.

22 ACTING PRESIDENT GRIFFO: Call

23 the roll.

24 (The Secretary called the roll.)

25 THE SECRETARY: Ayes, 57. Nays,

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1 2. Senators Hassell-Thompson and Montgomery

2 recorded in the negative.

3 ACTING PRESIDENT GRIFFO: The

4 bill is passed.

5 THE SECRETARY: Calendar Number

6 748, by Senator Skelos, Senate Print 640, an

7 act to amend the Penal Law, in relation to

8 possession of disguised knives.

9 ACTING PRESIDENT GRIFFO: Read

10 the last section.

11 THE SECRETARY: Section 3. This

12 act shall take effect on the first of

13 November.
14 ACTING PRESIDENT GRIFFO: Call

15 the roll.

16 (The Secretary called 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.

22 ACTING PRESIDENT GRIFFO: The

23 bill is passed.

24 THE SECRETARY: Calendar Number

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.

4 ACTING PRESIDENT GRIFFO: Read

5 the last section.

6 THE SECRETARY: Section 5. This

7 act shall take effect immediately.

8 ACTING PRESIDENT GRIFFO: Call

9 the roll.

10 (The Secretary called the roll.)

11 ACTING PRESIDENT GRIFFO:

12 Announce the results.

13 THE SECRETARY: Those recorded in

14 the negative on Calendar Number 749 are

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.

20 ACTING PRESIDENT GRIFFO: The

21 bill is passed.

22 THE SECRETARY: Calendar Number

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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1 ACTING PRESIDENT GRIFFO: Read

2 the last section.

3 THE SECRETARY: Section 2. This

4 act shall take effect on the first of

5 November.

6 ACTING PRESIDENT GRIFFO: Call

7 the roll.

8 (The Secretary called the roll.)

9 ACTING PRESIDENT GRIFFO:

10 Announce the results.

11 THE SECRETARY: Those recorded in

12 the negative on Calendar Number 750 are

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.

18 ACTING PRESIDENT GRIFFO: The

19 bill is passed.
20 THE SECRETARY: Calendar Number

21 751, by Senator Libous, Senate Print 2146, an

22 act to amend the Penal Law, in relation to

23 provision of large quantities.

24 ACTING PRESIDENT GRIFFO: Read

25 the last section.

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1 THE SECRETARY: Section 2. This

2 act shall take effect on the first of

3 November.

4 ACTING PRESIDENT GRIFFO: Call

5 the roll.

6 (The Secretary called the roll.)

7 THE SECRETARY: Ayes, 60.

8 ACTING PRESIDENT GRIFFO: The

9 bill is passed.

10 THE SECRETARY: Calendar Number

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.

15 ACTING PRESIDENT GRIFFO: Read

16 the last section.

17 THE SECRETARY: Section 2. This

18 act shall take effect on the 60th day.

19 ACTING PRESIDENT GRIFFO: Call

20 the roll.

21 (The Secretary called the roll.)

22 THE SECRETARY: Ayes, 60.


23 ACTING PRESIDENT GRIFFO: The

24 bill is passed.

25 THE SECRETARY: Calendar Number

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1 754, by Senator Flanagan, Senate Print 3329,

2 an act to amend the Penal Law, in relation to

3 payment of restitution.

4 ACTING PRESIDENT GRIFFO: Read

5 the last section.

6 THE SECRETARY: Section 2. This

7 act shall take effect on the 90th day.

8 ACTING PRESIDENT GRIFFO: Call

9 the roll.

10 (The Secretary called the roll.)

11 THE SECRETARY: Ayes, 59. Nays,

12 1. Senator Duane recorded in the negative.

13 ACTING PRESIDENT GRIFFO: The

14 bill is passed.

15 THE SECRETARY: Calendar Number

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.

20 ACTING PRESIDENT GRIFFO: Read

21 the last section.

22 THE SECRETARY: Section 3. This

23 act shall take effect on the 30th day.

24 ACTING PRESIDENT GRIFFO: Call

25 the roll.
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1 (The Secretary called the roll.)

2 THE SECRETARY: Ayes, 59. Nays,

3 1. Senator Perkins recorded in the negative.

4 ACTING PRESIDENT GRIFFO: The

5 bill is passed.

6 THE SECRETARY: Calendar Number

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.

11 ACTING PRESIDENT GRIFFO: Read

12 the last section.

13 THE SECRETARY: Section 3. This

14 act shall take effect on the first of

15 November.

16 ACTING PRESIDENT GRIFFO: Call

17 the roll.

18 (The Secretary called the roll.)

19 THE SECRETARY: Ayes, 59. Nays,

20 1. Senator Montgomery recorded in the

21 negative.

22 ACTING PRESIDENT GRIFFO: The

23 bill is passed.

24 THE SECRETARY: Calendar Number

25 759, by Senator Libous, Senate Print 4096, an

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1 act to amend the Penal Law, in relation to


2 increasing penalties.

3 ACTING PRESIDENT GRIFFO: Read

4 the last section.

5 THE SECRETARY: Section 5. This

6 act shall take effect on the first of

7 November.

8 ACTING PRESIDENT GRIFFO: Call

9 the roll.

10 (The Secretary called the roll.)

11 THE SECRETARY: Ayes, 60.

12 ACTING PRESIDENT GRIFFO: The

13 bill is passed.

14 THE SECRETARY: Calendar Number

15 760, by Senator Golden, Senate Print 4270, an

16 act to amend the Penal Law, in relation to

17 intentional damage.

18 ACTING PRESIDENT GRIFFO: Read

19 the last section.

20 THE SECRETARY: Section 2. This

21 act shall take effect on the 90th day.

22 ACTING PRESIDENT GRIFFO: Call

23 the roll.

24 (The Secretary called the roll.)

25 ACTING PRESIDENT GRIFFO:

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1 Announce the results.

2 THE SECRETARY: Those recorded in

3 the negative on Calendar Number 760 are

4 Senators Duane, Hassell-Thompson, Huntley,


5 Montgomery and Perkins.

6 Ayes, 55. Nays, 5.

7 ACTING PRESIDENT GRIFFO: The

8 bill is passed.

9 THE SECRETARY: Calendar Number

10 761, by Senator Nozzolio, Senate Print 4330,

11 an act to amend the Penal Law, in relation to

12 expanding the definition.

13 ACTING PRESIDENT GRIFFO: Read

14 the last section.

15 THE SECRETARY: Section 2. This

16 act shall take effect on the 90th day.

17 ACTING PRESIDENT GRIFFO: Call

18 the roll.

19 (The Secretary called the roll.)

20 THE SECRETARY: Ayes, 60.

21 ACTING PRESIDENT GRIFFO: The

22 bill is passed.

23 THE SECRETARY: Calendar Number

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.

2 ACTING PRESIDENT GRIFFO: Read

3 the last section.

4 THE SECRETARY: Section 2. This

5 act shall take effect on the 180th day.

6 ACTING PRESIDENT GRIFFO: Call

7 the roll.
8 (The Secretary called the roll.)

9 THE SECRETARY: Ayes, 60.

10 ACTING PRESIDENT GRIFFO: The

11 bill is passed.

12 THE SECRETARY: Calendar Number

13 766, by Senator Lanza, Senate Print 5551, an

14 act to amend the Penal Law, in relation to

15 arson in the first degree.

16 ACTING PRESIDENT GRIFFO: Read

17 the last section.

18 THE SECRETARY: Section 2. This

19 act shall take effect on the 30th day.

20 ACTING PRESIDENT GRIFFO: Call

21 the roll.

22 (The Secretary called the roll.)

23 THE SECRETARY: Ayes, 60.

24 ACTING PRESIDENT GRIFFO: The

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.

18 SENATOR SKELOS: Mr. President,

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.)

6 ACTING PRESIDENT GRIFFO: The

7 Senate will come to order.

8 Senator Skelos.

9 SENATOR SKELOS: Mr. President,

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.

3 ACTING PRESIDENT GRIFFO: Senator

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.

10 (Response of "Aye.")

11 ACTING PRESIDENT GRIFFO:

12 Opposed, nay.

13 (No response.)

14 ACTING PRESIDENT GRIFFO: The

15 report is accepted.

16 Senator Skelos.
17 SENATOR SKELOS: If we could take

18 up Calendar Number 868, by Senator Flanagan.

19 ACTING PRESIDENT GRIFFO: The

20 Secretary will read.

21 THE SECRETARY: Calendar Number

22 868, by Senator Flanagan, Senate Print 7038,

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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1 ACTING PRESIDENT GRIFFO: Read

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.

16 ACTING PRESIDENT GRIFFO:

17 Substitution so ordered.

18 SENATOR SKELOS: Mr. President,

19 please lay that bill aside.


20 ACTING PRESIDENT GRIFFO: And the

21 bill is laid aside.

22 SENATOR SKELOS: Mr. President,

23 if we could take up Calendar Number 868,

24 controversial.

25 ACTING PRESIDENT GRIFFO: The

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1 Secretary will ring the bell.

2 The Secretary will read Calendar

3 Number 868.

4 THE SECRETARY: Calendar Number

5 868, by Senator Flanagan, Senate Print 7038,

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.

10 ACTING PRESIDENT GRIFFO: Senator

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.

25 ACTING PRESIDENT GRIFFO: Thank

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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.

8 THE SECRETARY: Section 2. This

9 act shall take effect immediately.

10 ACTING PRESIDENT GRIFFO: Call

11 the roll.

12 (The Secretary called the roll.)

13 ACTING PRESIDENT GRIFFO: Senator

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 --

4 ACTING PRESIDENT GRIFFO: Senator

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.

11 ACTING PRESIDENT GRIFFO: Senator

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.

10 ACTING PRESIDENT GRIFFO: Senator


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.

6 ACTING PRESIDENT GRIFFO: Senator

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.

21 ACTING PRESIDENT GRIFFO: Senator

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.

11 ACTING PRESIDENT GRIFFO: Senator

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.

19 ACTING PRESIDENT GRIFFO: Senator

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.

15 ACTING PRESIDENT GRIFFO: Senator

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.

5 ACTING PRESIDENT GRIFFO: Senator

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.

17 ACTING PRESIDENT GRIFFO: Senator

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.

4 Thank you, Mr. President.


5 ACTING PRESIDENT GRIFFO: Senator

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.

2 ACTING PRESIDENT GRIFFO: Senator

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.

24 ACTING PRESIDENT GRIFFO: Senator

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.

17 ACTING PRESIDENT GRIFFO: Senator

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.

4 ACTING PRESIDENT GRIFFO: Senator

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.

13 ACTING PRESIDENT GRIFFO: Senator


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.

21 THE SECRETARY: Those recorded in

22 the negative on Calendar Number 868 are

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.

8 ACTING PRESIDENT GRIFFO: The

9 bill is passed.

10 The Secretary will read Calendar

11 Number 867.

12 THE SECRETARY: Calendar Number

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.

19 THE SECRETARY: Section 2. This

20 act shall take effect immediately.

21 ACTING PRESIDENT GRIFFO: Call

22 the roll.

23 (The Secretary called the roll.)

24 THE SECRETARY: Ayes, 62.

25 ACTING PRESIDENT GRIFFO: The

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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.

11 ACTING PRESIDENT GRIFFO: Thank

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.

21 ACTING PRESIDENT GRIFFO: The

22 Secretary will read.

23 THE SECRETARY: Senate Print

24 3936, by Senator C. Johnson, an act to amend

25 the Labor Law.

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1 ACTING PRESIDENT GRIFFO: Senator

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.

24 Announce the results.

25 THE SECRETARY: Those recorded in

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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.


8 ACTING PRESIDENT GRIFFO: The

9 petition is not agreed to.

10 Senator Skelos.

11 SENATOR SKELOS: Mr. President,

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

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