COMMITTEE ON CIVIL PRACTICE LAW AND RULES

MINUTES OF THE APRIL14, 2000 MEETING

AT THE ASSOCIATION OF THE BAR OF THE CITY OF NEW YORK

NEW YORK, NY

MEETING called to order at 12:30 p.m.

PRESENT (in person or by telephone) : Steven M. Critelli, Chair, Sharon Stern Gerstman, Vice Chair, Susan English - Secretary Pro Tem, Paul Aloe, James N. Blair, Raymond A. Bragar, Prof. Oscar Chase, Michael Greenspan, Maurice Chayt,  David L. Ferstendig, Joseph Einstein, James C. Gacioch, David Hamm, Ron Kennedy, Richard Laudor, Burton Lipshie, Jill Nagy, Michael Schmidt, John Jablonski, and Michael McClaren..

The chair began by encouraging members to submit their proposals for legislation at the earliest time.  Three committee proposals have passed the Executive Committee and have now been introduced.

Sharon and Ron Kennedy met, in what they described as a "fruitful meeting" with Martin Connor - Minority Leader Senate, regarding the proposal concerning commencement of special proceedings (A6393-B/S3069-B).  At this juncture, any Election Law issue may be resolved by taking out the works "Article 16" in our legislation.  Sharon and Ron reported that they also met with Assembly representatives from Bronx County to convince them there indeed was a problem to be fixed with special proceedings.  There was also discussion concerning Joe Einstein's proposal for taking an appeal from a signed, but not entered order, which was approved at the last meeting.  The legislative representatives thought this was a good idea.  It was noted that our arbitration venue bill had been redrafted to address the arguments raised in the Governor veto. There was also discussion concerning our proposed redraft of 3101(i) concerning decisions in the 3rd and 4th Departments which held that DiMichel did not apply. The proposed legislation was a fix of that and it was necessary to explain mechanics.  However, they reported that the representatives were receptive   Also, discussed was the Art. 30(a) bill for a simplied procedure for middle income consumers. 

Steve reported that NYS Trial Lawyers are opposing our amendment are opposing our amendment to CPLR 3101(i).   Ron Kennedy has spoken to to lobbyists of Trial Lawyer Association.  Their position is that 3101(i) is fine the way it is.  We can expect memo in opposition to arbitration bill as well. They are opposed to the redraft of 7502.  Paul has spoken to President of Trial Lawyers already and thought they were on board. Paul will speak to him again.

Michael Greenspan's proposal for a revision to  8301(a)(9) to increase allowable disbursements for deposition transcripts from $250.00 to $1,000.00.  Michael reported that he believed the $1000 was appropriate in light of the increase in inflation; it will strike a balance, cover reasonable transcript costs in the average case.  Maurce Chayt recommended a revision to increase the allowable amount to $1500 that would all for the cost of one original and two copies of the transcript.  Sharon thinks insurance company may be opposed to bill since they are the ones most likely to pay costs.  There were also proposed modifications to the draft language, offered by Joe Einstein, Paul Aloe, David Hamm, Richard Laudor, John Jablonski, and Michael McClaren.

UPON MOTION, THE COMMITTEE UNANIMOUSLY APPROVED THE PROPOSAL WITH AN AMENDED AMOUNT OF $1,250.

There was recommendation to include in the supporting memo the fact that inflation was a factor justifying the increase.  The proposal will be submitted to the Executive Committee at its June meeting.

Regarding OCA Advisory Committee proposal for amendment of CPLR §3101 [Advisory Committee proposal provides for the preclusion of the testimony of an expert witness where the identification and testimony thereof is not disclosed in a timely manner; requires prosecution to provide notice of expert witness testimony at least 60 days prior to the starting date of the trial and requires defense to provide 30 days notice.] and more comprehensive disclosure bill has been introduced under S.5905 which is the subject of a Proposed Committee Report. (Jablonski/Garvey).  Steve reported that he had discussion with Amy Vance, Counsel to OCA.  Jon Jablonski reported that three bills had been introduced S.5905 [bill has been introduced they want to see how far it goes]; 7144 - "unless court orders otherwise" and 1941.  Jon will review other matters in 5905 and will report.  Proposed Committee Report. (Jablonski/Garvey).  David and Steve commented that there would be no firm rule if the "court orders otherwise".  Need more court structure.  Paul - flaw in statute - scope of discovery - no mechanism or vehicle for how to get information.  OCA feels this is the way it is. Their proposal will only fly if there are not a lot of changes.  Gacioch: sending wrong message - unless the court orders otherwise.  Sharon made a suggestion for memo.  Committee agreed that these bills should be disapproved.  Discussion ensued regarding possible amendment of Rule 3406. 

Joe Einstein commented that the  stay of discovery while motion is pending is abused.   See  3214(b).  Committee members questioned whether dispositive motions should be allowed after note of issue - except if court orders otherwise.

Jury selection was also discussed.  The Committee discussed whether there was a need to eliminate judge time limits on jury selections.  Also, whether jury selection rules should not be in CPLR and more appropriate in the Rules

David Hamm reported on proposed amendments to GML 50(e). Committee Report (Hamm). After, some discussion, the Committee approved the report.

David Hamm also redrafted his report on amendments to CPLR  4532-a.  His report, as amended, was approved unanimously.  Committe Report (Hamm) concerning admissibility of X-rays, MRI, CAT scans, etc.  

The OCA Advisory Committee proposed amendment to CPLR 1405.  Jim Blair spoke in favor of the proposal.  The Chair requested comments from opponents.

The Committee also discussed the proposed changes to CPLR 1009, concerning enforcement of 3rd party claim as a direct claim - even though not able to bring direct claim.   OCA Advisory Committee Proposal to add CPLR 1405 to permit plaintiff to execute on judgment against third party defendant. (Blair Report).  It was felt that the Feldman, upon which the amendment is based, is a bad decision and a bad case - codifying bad decision.  Sharon - plaintiff must get judgment against defendant - so not direct action. Plaintiffs are subject to the fortunes of a solvent defendant.  Paul Aloe spoke in opposition.  Michael Schmidt spoke in favor.  David Hamm stated that the policy behind workers’ compensation Dole v. Drew not to reimburse plaintiff, but the defendant.  Statute of limitations eliminated for 3rd party defendant. There is an opportunity for collusion between defendant and plaintiff under proposal.  Michael Stallman thought there were due process issues by allowing plaintiff to recover against someone he couldn’t have sued.  The Committee not in favor of proposal for many reasons.

TICL Section proposed revision on 2306 and Public Health Law Sec. 18 was discussed.  The CPLR Committee commented and the TICL revised their draft in response.

Sharon said the Executive Committee was concerned about subpoena duces tecum.  Reviewed addition TICL revision regarding 2303 exception so no $.75 charge per page.  Sharon stated subpoena duces tecum has to stay in Public Health Law Section 18 - contest regarding discoverable records. See TICL proposal to amend CPLR 2306 and Public Health Law Section 18. See Draft Memorandum. (Critelli).  Revised TICL Proposal.

The Chair discussed the Governor’s Program Bill for cameras in the courtroom.  Senate and Assembly - two different bills - Governors catalyst to get bill moving. Ron Kennedy doesn’t know when this bill will be taken up.  The members of the Committee were asked to comment.

The Committee assignments are out.

New business - Dave Hamm questioned whether all draft reports are circulated to obtain comment and then sent in.  The Chair made note that this will be done and final report will mailed to each committee member by Bar Association

Motion for adjournment at 2:45