COMMITTEE ON CIVIL PRACTICE LAW AND RULES
MINUTES OF FALL MEETING
October 2, 1998
MEETING called to order at 12:15 p.m.
PRESENT: Paul H. Aloe, Chair, Sharon Stern Gerstman,
Co-Chair, Steven Critelli, Secretary, and Joseph Einstein, Kim Steven Juhase, Maurice
Chayt, Ray Bragar, Jim Gacioch, Susan English, James Blair, David Ferstendig, Hon. Myriam
J. Altman, David Goldstein, Mathew Kreinces, Michael Schmidt, Christopher Garvey, John
Jablonski, Robert Kaplan, and Hon. Michael D. Stallman.
I. Introduction to Meeting
The Chair opened the first meeting of the 1998-1999 term by giving an introduction of the
officers, the principal mission and past work of the committee, noting the committee's web
presence, its effective work to create, advocate and monitor CPLR legislation. Of the
eight CPLR measures adopted into law in the last legislative session, three of the bills
were the creation of our committee.
II Review of the 1998 Legislative Session. The
Committee then reviewed the results of the 1998 legislative sessions with respect to CPLR
bills. Specifically discussed were the following:
- A. CPLR Bills enacted
- 1. New CPLR 4547 -
Electronic communications bill (Chapter 156)
2. New CPLR 4548 - Settlement
discussion (Chapter 317) [now erroneously denominated "4547", but to be
3. Amended CPLR 3122 -
responses to document request, produce documents as kept in the ordinary course of
business or organized accordance to request. (Chapter 295)
- B. Other CPLR bills
- 1. CPLR 5205(c),
S7007, Ch. 206 (Roth IRA)
2. S6665, Ch.
448 (agents for service of process)
3. S6423, Ch 80
(clarifies duties of city marshals on execution of money judgments)
4. CPLR 311 Ch
202 (commencement by filing (Gerstman)
5. A9759 Ch 98
(agent orange statute of limitations) S6423 -
4. CPLR 311 Ch
202 (eliminates reference to proof of service and therefore brings corporate
service in line with revised CPLR 306-b.
5. A9759 Ch 98
(agent orange statute of limitations)
III After a brief reference to the OCA bill on electronic filing which did not pass,
the Chair and the committee discussed the following proposals which did not pass during
the last legislative session.
- A. Committee proposals
- 1. Motion practice bill(S2211/A2620), which proposed a
change in timing of motions and passed Senate, but failed in the Assembly. The
Committee agreed to defer the measurre in the last legislative session at the request of
OCA. At this point, the OCA has not made comments on the bill. It was agreed
that the Chair would contact the OCA again to obtain their consent to the bill or to make
appropriate changes at their request, but that in any event, the Commitee should have the
bill (or a version based on OCA's comments) introduced into the next legislative session.
2. Parent child privilege - S180/A7763 Add
S4502-a,Kim Steven Juhase reported on the status of the proposed revision advocated by the
Committee. Tom Gleason (of the OCA Advisory Committee) has apparently drafted an
alternative provision to permit either parent or child to waive privilege in
contrast with the Committee's bill, which would require both the parent and the child to
agree to a waiver. After extended discussion, it was agreed that although the
Committee prefers the original measure ( S180/A7763) the OCA's
bill might have a better chance of passage. After discussion, the Commitee voted to
seek permission from the Executive Commitee to co-sponsor, with the OCA Advisory
Committee, the OCA version of the bill, but without withdrawing the endorsement and
sponsorship of S180/A7763.Vote in
favor: 16; opposed: 0; and abstentions: 1. See Common Interest Privilege
Proposal of the Council on Judicial Administration of the Association of the Bar of
the City of New York.
3. Bill to clarify service on limited liability companies: with the techinical amendment
should remedy problem with bill and should pass.
4. Commencement by filing in election law proceedings (A624)- The bill was
revised to reflect recent legislative changes in CPLR 306-b. OCA Advisory Committee
is looking into the matter. Sharon Stern Gerstman to report later in meeting
on issue of commencement..
B. Other CPLR bills that failed to pass
WEINSTEIN. Amends CPLR 6313 to require prior notification of TRO applications. An OCA
proposed bill. We issued Report
No. 70 (Kaye) on June 10, 1997 in favor of the bill, and lobbied for the bill in the
last session, bu due to opposition in the Senate, the bill failed. The Chair poined
out that this bill has been around for many years and it does not appear it has any hope
of passage due to opposition in the Senate. The Committee discuss a number of court
rules, including the Rules of the Second Department, which require notification prior to
applications. The Committee concluded that it should explore proposing rule to be
adopted as part of the Uniform Rules for Trial Courts to require such notification.
Michael Schmidt agreed to draft such a proposed rule for consideration by the Committee at
its January, 1999 meeting.
SCHIMMINGER -- amd §3213, CPLR -- Expands basis upon which a motion for summary judgment
in lieu of filing a complaint may be made so as to include additional commercial causes of
action. The bill was originally proposed by the Commercial and Federal Litigation
Section of the NYSBA and was endorsed by the Committee. The Chair addressed passage
of the Bill in the Assembly, but learned that there was opposition by members of the
Assembly. The concern is apparently for small business people who might be
deprived of a right to trial on routine collection matters. M. Chayt agreed to
contact Assemblywoman Weinstein concerning the bill.
- S06803 VOLKER
-- Amends §2305, amd R3120 & 3122, add R3122-a, CPLR. Simplifies the method by which
documents are obtained for discovery from non-party witnesses and procured into
evidence. Bill based on work originally done by members Critelli and Blair for the
Commercial and Federal Litigation Sectoin. We filed Report 142 (Blair) on
June 11, 1998, approving the bill. Although there was some early indication that the
bill might receive passage, Steve Critelli advised the Committee that the trial lawyers
wanted more time to review the bill.
VOLKER Amends R2217 & S5701, rpld R2221, add R2221-a, CPLR. Clarifies procedural law
pertaining to reargument and renewal of motions in court proceedings. This was an
OCA Advisory Committee bill. The Chair reported that substantial revisions were made
to the bill in response to the concerns raised in a report by this Committee and based on
those revisions, the Committee had supported the bill. The bill, however, failed to
pass, principally because slightly different versions were passed in the Assembly and the
- Court Reorganization. The Chair reported that the comments of the Committee had
been transmitted to the NYSBA Task force and incorporated in their report. The Court
Reorganization measure, however, failed in the Assembly, and because it is a
constitutional amendment which must be passed by two successive legislatures, it is
unlikely that there will be such a reorgniazation in the near future.
- S07457 VOLKER,
WEINSTEIN. Amends §304 and Rules 2101 & 2103, and adds §8023, CPLR; and amends
§212, Judiciary L. Authorizes pilot program for use of facsimile transmission or
electronic means to commence an action or special proceeding. We filed Report No. 146 (Aloe) on
June 12, 1998, approving the bill. Bill failed in the Assembly, apparently out of
concern for the amount of discretion being vested in OCA in connection with the project.
- S06813 VOLKER/
KLEIN-- OCA Advisory Committee bill to limit speaking objections at
depositions. The Committee had endorsed the bill. After discussion, a number
of members commented that the balance has swung to favor those attorneys who abuse of the
deposition process. Discussion by Jim Blair as to background of legislation. Ray Bragar
and Mathew Kreinces discussed present practice and what reforms may be required to address
abuse by attorneys who seek to inquire into tangential matters not material - protective
order motions not felt to adequately address issue . Joe Einstein will report on this
and propose legislation to address this issue.
- Tort Reform. Tort Reform did not pass in the last session. The Tort Reform
Task Force still studying our report and others
- Medical Malpractice statute of limitations. Mathew Kreices discussed various bills to
amend the medical malpractice statute of limitations that he had addressed in Report 214A. None
of the bills passed.
IV. New Proposals
- A. Expert Disclosure. The Committee discussed a proposal by member John
Jablonski to amend CPLR 3101 to adopt in substance Fed. R. Civ. P. 34 with respect to
expert witnesses and the need to for them to provide reports and to submit to
depositions. After extended discussion, it was agreed taht the bill should
be refashion the proposal to create a disclosure rule that balanced the
obligation to disclose and the economic and administrative burdens attendant on expert
disclosure. A subcommittee composed of John Jablonski, Susan English and Steven
Critelli will draft a report and proposed legislation to be acted upon by the Committee..
- B. Commencement by Filing. Sharon Stern Gerstman brought commencement by filing
and the fact that in Special Proceedings, clerks around the state have divergent practices
concerning the obligaiton of the parties. The problem appears to stem from the fact
that many proceedings are commenced by an order to show cause, which must be issued by a
judge, and cannot be sought untilt he proceeding has been commenced. In other
proceedings, the return date is not provided until after the papers are filed. The
Commitee considered having special proceedings commenced by service, but after discussion,
it was agreed that special proceedings should continue to be commenced by filing but the
filing should be of the petition rather than the notice of petition or order to show
cause. Sharon Gerstman agreed to write a report and proposed legislation on the
VI. Mr. Aloe then raised the subject of proposed legislation that was debated in the
Executive Committee in spring; viz., (A) David Ferstendig drafted legislation to
explicitly provide that a proposed appellant who serves notice of entry is entitled to 5
extra days to take an appeal if the service of the notice of entry is made by mail,
thereby resolving a conflict among the Departments and (B) Joseph Einstein drafted
legislation to provide that an order will be effective upon notice of the signing of the
order. (rather than notice of entry). Because of some questions raised by the Trial
Lawyers Section, the Committee will attempt to address those concerns and prepare
legislation for submission to the Executive Committee.
VII. The Chair also discussed our work with the NYSBA Commission on Providing Access to
Middle Income Consumers in connection with the draft of the Simplified Case Resolution
proposal. Our Committee made recommendations to the Commission with respect to their
proposal. Mr. Aloe is expected to communicate with the Commission to determine the
progress of their proposal.
VIII. Other existing CPLR Committee projects: Jim
Gacioch will propose a repeal of both "CPLR 8303-a" sections in deference to
Uniform Court Rule 130.1.
IX. The Committee also decided not to seek to extend the commencement by filing rule to
the lower courts.
Whereupon, all business being concluded, the meeting was adjourned at 3:10 p.m.