STATE OF NEW YORK
       ________________________________________________________________________
 
                                         4340
 
                              2001-2002 Regular Sessions
 
                    IN SENATE
 
                                    April 10, 2001
                                      ___________
 
       Introduced by Sen. SKELOS -- (at request of the Judiciary) -- 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 tapes or audio tapes
 
         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,  including  transcripts  or  memoranda thereof,
    7  involving a person referred to in paragraph one of  subdivision  (a)  of
    8  this  section,  after  a  deposition of that person has been held. There
    9  shall be disclosure of all portions of  such  material,  including  out-
   10  takes,  rather  than  only  those  portions  a party intends to use. The
   11  provisions of this subdivision shall not apply to materials compiled for
   12  law enforcement purposes which are exempt from disclosure under  section
   13  eighty-seven of the public officers law.
   14    §  2.  This  act  shall take effect immediately and shall apply to all
   15  pending actions and all actions commenced on or after such date.
 
 
 
 
        EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                             [ ] is old law to be omitted.
                                                                  LBD09788-01-1

 
BILL NUMBER: S4340                Revised
 
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 tapes
or audio tapes
 
 
PURPOSE:  This is one of a series of measures being introduced at the
request of the Chief Administrative judge upon the recommendation of his
Advisory Committee on Civil Practice. It would amend CPLR 31 01(i)
relating to the timing of the disclosure of films, photographs, video
tapes or audio tapes (together, "surveillance evidence").
 
 
SUMMARY OF PROVISIONS:  This bill would add a provision to section
3101(i) expressly prohibiting disclosure of surveillance evidence until
after the party against whom the evidence is proffered has been deposed.
 
 
JUSTIFICATION:  Prior to enactment of CPLR 3101(i) in 1993, the Court
of Appeals, in  
DIMICHEL V. SOUTH BUFFALO RAILWAY COMPANY (80 N.Y.2d 1
84 (1992)), had clearly established that disclosure of surveillance
evidence was to be made after the deposition of the party who was the
subject of surveillance. This would safeguard the truth-finding process
by avoiding tailor-made responses to deposition examination regarding
the surveillance evidence. As enacted, however, CPLR 3101(i) is silent
concerning the timing of disclosure of such evidence.  Accordingly,
courts have since divided on the question whether the  
DIMICHEL rule
survives. Those who say no, including the Appellate Division, Fourth
Department, in Dinardo v. Koronowski (252 A.D.2d 69 (1998)), have
reasoned that, had the Legislature wished to limit disclosure of
surveillance evidence until after depositions, it would have so provided
in CPLR 3101(i).
 
Our Advisory Committee recommends that the situation be clarified and
that the  
DIMICHEL rule be codified. Hence, this measure would express-
ly require depositions to be completed before surveillance evidence is
revealed. This will help minimize the potential for tailor-made testimo-
ny and support New York's preference for more in-depth discovery of
honest and forthright explanations of the evidence rather than gamesman-
ship.
 
This measure, which would have no fiscal impact on the State, would take
effect immediately and would apply to all pending actions and all
actions commenced on that date or thereafter.
 
 
LEGISLATIVE HISTORY:  New Bill.
 
 
FISCAL IMPLICATIONS:  None.
 
 
EFFECTIVE DATE:  Immediately.