STATE OF NEW YORK
       ________________________________________________________________________
 
                                          125
 
                              2001-2002 Regular Sessions
 
                    IN SENATE
 
                                      (Prefiled)
 
                                    January 3, 2001
                                      ___________
 
       Introduced  by  Sen.  SKELOS -- read twice and ordered printed, and when
         printed to be committed to the Committee on Codes
 
       AN ACT to amend the civil practice law and rules,  in  relation  to  the
         timing  of disclosure of films, photographs, video or audio recordings
         created after the commencement of the action
 
         The People of the State of New York, represented in Senate and  Assem-
       bly, do enact as follows:
 
    1    Section  1.  Subdivision (i) of section 3101 of the civil practice law
    2  and rules, as added by chapter 574 of the laws of 1993,  is  amended  to
    3  read as follows:
    4    (i)  In  addition  to any other matter which may be subject to disclo-
    5  sure, there shall be full disclosure of any  films,  photographs,  video
    6  [tapes]  or audio [tapes] recordings in whatever medium, including tran-
    7  scripts or memoranda thereof, involving a person referred  to  in  para-
    8  graph  one of subdivision (a) of this section. There shall be disclosure
    9  of all portions of such material, including out-takes, rather than  only
   10  those portions a party intends to use. A party shall not be compelled to
   11  disclose  any  such  material  created  after commencement of the action
   12  until such party has had a full  and  fair  opportunity  to  depose  the
   13  person depicted therein unless the court orders otherwise for good cause
   14  shown.  The  provisions of this subdivision shall not apply to materials
   15  compiled for law enforcement purposes which are exempt  from  disclosure
   16  under section eighty-seven of the public officers law.
   17    §  2.  This  act  shall take effect immediately and shall apply to all
   18  actions pending or commenced on and after such date.
 
 
        EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                             [ ] is old law to be omitted.
                                                                  LBD03186-01-1

 
BILL NUMBER: S125
 
SPONSOR: SKELOS

 
TITLE OF BILL:  An act to amend the civil practice law and rules, in
relation to the timing of disclosure of films, photographs, video or
audio recordings created after the commencement of the action
 
 
JUSTIFICATION:
 
In  
DINARDO VS. KORONOWSKI, A.D.2d, N.Y.S.2d (Case # 1409, 4th Dept
12/30/98), the Fourth Department was asked to determine the right of a
defendant, who had obtained videotape surveillance of a plaintiff in a
personal injury action, to postpone disclosure of the videotape until
the deposition of the plaintiff had been completed.  The Fourth Depart-
ment Appellate Court first reviewed the well-reasoned and balanced
approach to disclosure of surveillance material adopted by the Court of
Appeals in the case of  
DIMICHEL VS. SOUTH BUFFALO RAILWAY COMPANY, 80
N.Y.2d 184,590 N.Y.S. 2d 1 (1992) prior to the enactment of CPLR 3101
(i). The DiMichel rule required disclosure of surveillance materials;
but the Court of Appeals held that such disclosure was to be made after
the conduct of a deposition testimony which was tailor-made to explain
away the events portrayed in the surveillance materials.
 
The DiNardo Court then reviewed CPLR 3101 (I), which requires the
disclosure of "films, photographs, video tapes or audio tapes, including
transcripts or memoranda thereof."  Observing that CPLR 3101(I) was
enacted after the decision of the Court of Appeals in DiMichel, the
Court noted that CPLR 3101(I) was silent concerning the timing of the
disclosure. In reviewing the legislative history of CPLR 3101(I) the
Fourth Department also noted that the advisory committee in Civil Prac-
tice Law and Rules, as well as the Division of the State Police, disap-
proved of the bill when it was pending before the legislature, in part
because there was nothing in the bill that would limit the timing of the
disclosure until after plaintiff had been deposed. The holding in DiMi-
chel and therefore concluded that, had the legislature wanted to limit
the disclosure of surveillance tapes until after depositions, it would
have included language to that effect. It consequently held that the
party under surveillance was entitled to absolute disclosure of the
surveillance materials even before his or her deposition.
 
Nevertheless, since the enactment of CPLR 3101 (I), other courts have
reached contrary decisions.   
APREA V. SONN, Misc.2d(Sup.Ct.,Bronx Co.
NYLj 9/23/99 QDS:32701572) ("adhering to the principle announced by the
Court of Appeals in  
DIMICHEL that such deposition");  
RANKIN VS.
WALSBAUM INC., 176 Misc. 2d 184, 670 N.Y.S.2d 1023 (Sup. Ct.  Nassau
Co.,  
1998; LE VS. PUTNAM, 240 A.D.2d 784, 657 N.Y.S. 2d 849 (3rd Dept
1997) (allowed an audiotaped statement of a party that was demanded
pursuant to CPLR 3101 (e) to be withheld pending a deposition of the
party);  
BOULWARE V. TRIBOROUGH BRIDGE AND TUNNEL AUTHORITY, ET AL.,
161 Misc.2d 435 (Sup. Ct., N.Y. County 1994).
 
The current proposal attempts to forge a method for the disclosure of
photographic, video and audio recordings made after the commencement of
the action, in almost every case, these will fit within the genre of
surveillance materials or materials created for the purposes of liti-
gation. Rather than rely upon a case by case adjudication of the respec-
tive rights of the parties to seek disclosure or withhold these materi-
als, the Committee believed that it would be productive to create a rule
that would allow a party possessing such materials to withhold them
until that party had an opportunity to test the credibility and/or
impeach the persons depicted therein a deposition. Only after the hold-
ing of a deposition would these materials be disclosed.
 
Since the rule suspends disclosure until after a party has had a "full
and fair opportunity" to depose the person depicted therein, such depo-
sition should proceed without delay, otherwise, a dilatory party could
be found to have relinquished its right to continue to withhold such
materials even if the deposition has not been held.  Furthermore,
notwithstanding the procedure immediate disclosure of these materials
"for good cause shown." In this way, the Committee believes that the
rule enunciated in  
DIMICHEL is codified and that the resultant effect
will reduce the need to repeatedly address the issue in court.
 
 
PRIOR LEGISLATIVE HISTORY:
 
S.6822 of 2000 -- Senate Codes/Assembly Judiciary
 
 
FISCAL IMPLICATIONS:
 
None.
 
 
EFFECTIVE DATE:
 
This act shall take effect immediately and shall be effective as to all
actions then pending and all actions commenced on that date or thereaft-
er.