S T A T E O F N E W Y O R K ________________________________________________________________________ 5193 1997-1998 Regular Sessions I N A S S E M B L Y March 3, 1997 ___________ Introduced by M. of A. ROBACH -- Multi-Sponsored by -- M. of A. GALEF, MAGEE, SIDIKMAN -- read once and referred to the Committee on Codes AN ACT to amend the executive law and the civil practice law and rules, in relation to frivolous lawsuits against crime victims The People of the State of New York, represented in Senate and Assem- ______________________________________________________________________ bly, do enact as follows: _________________________ 1 Section 1. Subdivision 5 of section 621 of the executive law, as 2 amended by chapter 543 of the laws of 1995, is amended to read as 3 follows: 4 5. "Victim" shall mean (a) a person who suffers personal physical 5 injury as a direct result of a crime; [or] (b) a person who is the 6 victim of either the crime of (1) unlawful imprisonment in the first 7 degree as defined in section 135.10 of the penal law, (2) kidnapping in 8 the second degree as defined in section 135.20 of the penal law, or (3) 9 kidnapping in the first degree as defined in section 135.25 of the penal 10 law; or a person who has had a frivolous lawsuit filed against them. ________________________________________________________________ 11  2. Section 621 of the executive law is amended by adding a new 12 subdivision 12 to read as follows: 13 12. "Frivolous lawsuit" shall mean a lawsuit brought by the individual ______________________________________________________________________ 14 who committed a crime against the victim of the crime, found to be friv- ________________________________________________________________________ 15 olous, meritless and commenced to harass, intimidate or menace the ________________________________________________________________________ 16 victim by a court and costs were imposed upon the plaintiff pursuant to ________________________________________________________________________ 17 section eighty-three hundred three-a of the civil practice law and ________________________________________________________________________ 18 rules. ______ 19  3. Subdivision 2 of section 625 of the executive law, as amended by 20 chapter 688 of the laws of 1985, is amended to read as follows: 21 2. A claim must be filed by the claimant not later than one year 22 after the occurrence or discovery of the crime upon which such claim is 23 based, one year after a court finds a lawsuit to be frivolous, or not ________________________________________________________ 24 later than one year after the death of the victim, provided, however, 25 that upon good cause shown, the board may extend the time for filing. EXPLANATION--Matter in italics (underscored) is new; matter in brackets _______ [ ] is old law to be omitted. LBD04999-01-7 A. 5193 2 1  4. Section 631 of the executive law is amended by adding a new 2 subdivision 1-a to read as follows: 3 1-a. No award shall be made for a frivolous lawsuit unless the board ______________________________________________________________________ 4 or board member, as the case may be, finds that the victim has been ________________________________________________________________________ 5 awarded costs pursuant to section eighty-three hundred three-a of the ________________________________________________________________________ 6 civil practice law and rules and the individual responsible for the ________________________________________________________________________ 7 payment of costs is unable to pay such costs provided, however, that in ________________________________________________________________________ 8 no event shall the amount of such costs exceed two thousand five hundred ________________________________________________________________________ 9 dollars. ________ 10  5. Section 8303-a of the civil practice law and rules, as amended by 11 chapter 485 of the laws of 1986, the section heading and subdivision (a) 12 as separately amended by chapter 220 of the laws of 1986, is amended to 13 read as follows: 14  8303-a. Costs upon frivolous claims and counterclaims in actions to 15 recover damages for personal injury, injury to property or wrongful 16 death. 17 (a) If in an action to recover damages for personal injury, injury to 18 property or wrongful death, [an] or an action brought by the individual _______________________________________ 19 who committed a crime against the victim of the crime, and such action _________________________________________________________________ 20 or claim is commenced or continued by a plaintiff or a counterclaim, 21 defense or cross claim is commenced or continued by a defendant [that] 22 and is found, at any time during the proceedings or upon judgment, to be ___ 23 frivolous by the court, the court shall award to the successful party 24 costs and reasonable attorney's fees not exceeding ten thousand dollars. 25 (b) The costs and fees awarded under subdivision (a) of this section 26 shall be assessed either against the party bringing the action, claim, 27 cross claim, defense or counterclaim or against the attorney for such 28 party, or against both, as may be determined by the court, based upon 29 the circumstances of the case. Such costs and fees shall be in addition 30 to any other judgment awarded to the successful party. 31 (c) In order to find the action, claim, counterclaim, defense or cross 32 claim to be frivolous under subdivision (a) of this section, the court 33 must find one or more of the following: 34 (i) the action, claim, counterclaim, defense or cross claim was 35 commenced, used or continued in bad faith, solely to delay or prolong 36 the resolution of the litigation or to harass or maliciously injure 37 another; 38 (ii) the action, claim, counterclaim, defense or cross claim was 39 commenced or continued in bad faith without any reasonable basis in law 40 or fact and could not be supported by a good faith argument for an 41 extension, modification or reversal of existing law. If the action, 42 claim, counterclaim, defense or cross claim was promptly discontinued 43 when the party or the attorney learned or should have learned that the 44 action, claim, counterclaim, defense or cross claim lacked such a 45 reasonable basis, the court may find that the party or the attorney did 46 not act in bad faith. 47  6. This act shall take effect November 1, 1997 and shall apply only 48 to cases in which a final judgment has been ordered on or after such 49 date.