STATE OF NEW YORK
       ________________________________________________________________________
 
                                        1082--A
 
                              2001-2002 Regular Sessions
 
                    IN SENATE
 
                                   January 16, 2001
                                      ___________
 
       Introduced  by  Sen.  VOLKER -- read twice and ordered printed, and when
         printed to be committed to the Committee on Codes  --  recommitted  to
         the  Committee  on  Codes  in accordance with Senate Rule 6, sec. 8 --
         committee discharged, bill amended, ordered reprinted as  amended  and
         recommitted to said committee
 
       AN ACT to amend the civil practice law and rules, in relation to simpli-
         fied  case resolution; and providing for the repeal of such provisions
         upon expiration thereof
 
         The People of the State of New York, represented in Senate and  Assem-
       bly, do enact as follows:
 
    1    Section 1. The civil practice law and rules is amended by adding a new
    2  article 30-A to read as follows:
    3                                 ARTICLE 30-A
    4                  PROCEDURES FOR SIMPLIFIED CASE RESOLUTION
    5          3050. Simplified case resolution; where authorized.
    6          3051. Commencement of action; pleadings.
    7          3052. Preliminary proceedings.
    8          3053. Dispositional conferences.
    9          3054. Appeal.
   10          3055. Waiver of jury trial.
   11          3056. Rules.
   12    §  3050.  Simplified case resolution; where authorized. The procedures
   13  authorized by this article shall be available in  an  action  for  money
   14  only,  with  the  exception  of  actions to recover damages for personal
   15  injury, injury to property or wrongful death, provided:
   16    (a) The amount sought to be recovered  does  not  exceed  seventy-five
   17  thousand dollars, exclusive of interest and costs; and
   18    (b)  The  action is commenced in a county that the chief administrator
   19  of the courts, with the advice and consent of the administrative  board,
   20  has designated as a county in which such procedures may be utilized.
 
        EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                             [ ] is old law to be omitted.
                                                                  LBD03099-04-2

       S. 1082--A                          2
 
    1    §  3051.  Commencement  of  action;  pleadings. (a) 1. A plaintiff who
    2  elects to use the procedures authorized by this article  shall  commence
    3  an  action  by  filing  a  summons and complaint in accordance with this
    4  section and section three hundred four  of  this  chapter.  The  summons
    5  shall  prominently  display  at  the top thereof the words "NOTICE: This
    6  action is brought under the New York simplified case  resolution  proce-
    7  dure, as set forth in the civil practice law and rules article thirty-A.
    8  If  you  do not affirmatively exercise your right not to use this proce-
    9  dure by serving a "notice of election not to proceed under this  article
   10  thirty-A"  within  the  time required for you to file your appearance in
   11  this action, you will waive your rights to a jury  trial,  certain  pre-
   12  trial  disclosure  of  relevant  documents  and information, and certain
   13  rights to present evidence and appeal an adverse determination."
   14    2. Within the time required for an appearance, the defendant may serve
   15  "notice of  election  not  to  proceed  under  this  article  thirty-A";
   16  provided,  however,  the time to serve notice of election not to proceed
   17  may be extended either by stipulation or upon application to  the  court
   18  upon  a showing of reasonable cause for the extension. When a "notice of
   19  election not to proceed under this article thirty-A" is served, the case
   20  shall proceed under other applicable provisions of this chapter  without
   21  reference to this article.
   22    (b)  All pleadings in an action under this article shall have attached
   23  thereto available  documentary  proof  in  support  of  the  allegations
   24  contained  therein,  and  may include affidavits by persons having know-
   25  ledge of the material facts, and a statement of the attorney of control-
   26  ling legal authority and legal argument that is alleged to  be  disposi-
   27  tive of one or more issues in the action.
   28    (c)  Pre-answer motions are not permitted, but matters appropriate for
   29  such motions may be raised at the preliminary conference.
   30    § 3052. Preliminary proceedings. There shall be a preliminary  confer-
   31  ence  in  an action not later than ninety days after issue is joined. It
   32  shall be scheduled by the court on at least twenty days' notice  to  the
   33  parties  and,  unless  the  court directs otherwise, it shall be held by
   34  telephone or video conference call.  The  purposes  of  the  preliminary
   35  conference shall include, but not be limited to, encouraging settlement,
   36  simplifying  or limiting issues, establishing a timetable for the prompt
   37  completion of any additional proceedings that are required and, general-
   38  ly, to insuring the just, speedy, and inexpensive determination  of  the
   39  action.    In  furtherance  of  these  purposes,  the  court  by a judge
   40  personally acting, at such preliminary conference or at any time  there-
   41  after, may:
   42    (a) Order or permit any party to serve an additional or amended plead-
   43  ing;
   44    (b)  Direct and, where appropriate, limit pre-trial disclosure author-
   45  ized by article thirty-one of this chapter, and the taking of the testi-
   46  mony of any person, which may be by video deposition;
   47    (c) Direct in an appropriate case the testimony and examination of any
   48  person at the dispositional conference;
   49    (d) Clarify and define the issues to be determined;
   50    (e) Consolidate the action with another action or sever  one  or  more
   51  claims  in the action, as appropriate, in accordance with article six of
   52  this chapter; provided that any party to an action  in  which  there  is
   53  asserted  a counterclaim seeking damages in excess of seventy-five thou-
   54  sand dollars, excluding interest and costs, shall be entitled to  sever-
   55  ance  of  such  counterclaim  upon  application therefor and no judgment

       S. 1082--A                          3
 
    1  shall be awarded in the action authorized by this  article  until  final
    2  resolution of the severed counterclaim;
    3    (f) Grant a motion for or render judgment in favor of any party on the
    4  basis of the pleadings and proofs presented;
    5    (g) Order that the procedures authorized by this article not be avail-
    6  able in the action; and
    7    (h)  Schedule a dispositional conference to be held in such action not
    8  later than nine months from the filing of the complaint.
    9    § 3053. Dispositional conferences. (a) At least seven,  but  not  more
   10  than  fourteen  days  prior to the date of the dispositional conference,
   11  each party shall file a written submission reciting  the  party's  final
   12  offer  of settlement or disposition and a brief statement of the reasons
   13  why settlement or disposition of the action in accordance with the terms
   14  of such offer would be just.
   15    (b) At the dispositional conference, the court by a  judge  personally
   16  shall  hear argument, render a decision in writing or on the record, and
   17  award judgment in accordance with the rules and principles  of  substan-
   18  tive law. Such award may include interest and costs, as appropriate.
   19    (c)  Any  award  of  judgment  made by a court in accordance with this
   20  section shall promptly be served upon the parties. It shall constitute a
   21  judgment for all purposes under this chapter.
   22    § 3054. Appeal. Except for an appeal to the court of appeals as may be
   23  authorized by law, there shall be no appeal from any order  or  judgment
   24  in  an  action  subject  to  the  procedures authorized by this article,
   25  except that a party may take an appeal in accordance with the provisions
   26  of this chapter:
   27    (a) As of right from an  order  granting  a  motion  for  judgment  or
   28  dismissal  of  the  action  or any award of final judgment following the
   29  dispositional conference, on the  sole  grounds  that:  the  disposition
   30  either  lacks a rational foundation so as to be arbitrary and capricious
   31  or is the result of a mistake of law; the judge's failure to follow  the
   32  procedures  authorized  by this article materially prejudiced a substan-
   33  tial right of a party, or
   34    (b) By permission of the court from or to which such appeal is  taken,
   35  in any other case.
   36    §  3055.  Waiver  of jury trial. Any party to an action which is heard
   37  and determined in accordance with  the  procedures  authorized  by  this
   38  article  shall  be  deemed to have waived a trial by jury of any and all
   39  claims asserted in such action.
   40    § 3056. Rules. The chief administrator of the courts, with the  advice
   41  and  consent  of  the administrative board of the courts, may promulgate
   42  such rules, not inconsistent with this article, as may be necessary  for
   43  the effective implementation of this article.
   44    §  2.  This  act  shall  take  effect on the first day of January next
   45  succeeding the date on which it shall have become a law and shall  apply
   46  to  actions  commenced  on  or  after such date until December 31 of the
   47  third calendar year following the effective date when,  upon  such  date
   48  the  provisions of this act shall be deemed repealed, but it shall apply
   49  to any proceedings commenced by filing a summons  and  complaint  on  or
   50  before such date.

 
BILL NUMBER: S1082A
 
SPONSOR: VOLKER

 
TITLE OF BILL:  An act to amend the civil practice law and rules, in
relation to simplified case resolution; and providing for the repeal of
such provisions upon expiration thereof
 
 
SUMMARY OF PROVISIONS:  Article 30-a is added to the Civil Practice
Law and Rules to provide for simplified case resolution. Sections are
added to provide procedures for simplified case resolution, commencement
of action, preliminary proceedings, dispositional conferences, appeals,
waiver of jury trials and additional rules.
 
 
JUSTIFICATION:  Middle income consumers in New York sometimes have
legal problems that go unresolved because of economic considerations
related to the litigation. This legislation would help in cases involv-
ing amounts under $75,000. It would provide an alternative procedure in
appropriate cases to keep dispute resolution within the court system and
encourage the pursuit of claims which might not otherwise be adjudicated
through ordinary litigation or arbitration procedures.
 
 
LEGISLATIVE HISTORY:  S.6870/A.9897 of 2000.
 
 
EFFECTIVE DATE:  This act shall take effect on the first day of Janu-
ary next succeeding the date on which it shall have become a law and
shall apply to actions commenced on or after such date until December 31
of the third calendar year following the effective date when, upon such
date, this act, unless extended, shall be deemed repealed, but it shall
apply to any proceedings commenced by filing a summons and complaint on
or before such date.