COMMITTEE ON CIVIL PRACTICE LAW AND RULES
MINUTES OF THE DECEMBER 10, 1999 MEETING
AT THE N.Y.C. BAR ASSOCIATION,
NEW YORK, NY
MEETING called to order at 12:27 p.m.
PRESENT (in person or by telephone) : Steven M. Critelli, Chair, Sharon Stern Gerstman, Vice Chair, Kim Juhase, Secretary, Paul Aloe, James N. Blair, Raymond A. Bragar, Prof. Oscar Chase, Maurice Chayt, David L. Ferstendig, James C. Gacioch, Michael Evan Greenspan, Ron Kennedy, Richard Laudor, Ed Mevec, Harry Mooney, Harold B. Obstfeld, Hon. Michael Stallman, Gail Nackley Uebelhoer
I. General announcements
The chairman announced that the fax vote on Paul Aloe's proposal amending CPLR 7502(a) regarding the venue of applications in special proceedings was 26 Yes and 1 No. The proposal was passed. It will now be submitted to the Executive Committee. The only negative vote was Steve Curvin. The chairman read Mr. Curvin's statement regarding his vote.
II. Affirmative Legislation Proposals of the CPLR Committee.
Sharon Proposed language that would incorporate this proposal. Paul Aloe objected to providing that video tapes be delayed until after the deposition. Paul said it is a mistake to legislatively mandate the order of discovery. It could be a disaster. He said tat maybe it was time to back off and let the Court of Appeals rule on it. There then ensued a discussion of the DiMichel vs. South Buffalo Railway Company, 80 N.Y.2d 184, 590 N.Y.S.2d 1 (1992) and DiNardo vs. Koronowski , __ A.D.2d __, ___ N.Y.S.2d ___ decisions.
Jim Blair raised the issue of whether we should wait until the Trial Lawyers expressed an opinion. Sharon said they probably would not approve our proposal. She said we should do something today so that we will have a proposal out there for the January meeting.
Maurice Chayt said that although disclosure before depositions favors plaintiffs, he does not favor fraudulent plaintiffs and therefore wants disclosure after depositions only in tort cases. In any case, he suggested that we also update CPLR 3101(i) to indicate that it does not just deal with tapes but recordings in whatever media. This was accepted by all by consensus. Sharon then proposed the following amendment to the current CPLR 3101(i):
(i). In addition to any other matter which may be subject to disclosure, there shall be full disclosure of any films, photographs, video [tapes] or audio [tapes] recordings in whatever medium . . . . A party shall not be compelled to disclose any such material created after commencement of the action until such party has had a full and fair opportunity to depose the person depicted therein unless the court orders otherwise for good cause shown.. . . .
Ray Bragar moved the question and it was seconded.
MOTION: SHOULD THE COMMITTEE APPROVE THE PROPOSED BILL?
Motion passed: 10 Yes, 6 No and 1 Abstention.
David Ferstendig noted that §3 does not state whether the effective date applied to pending appeals or new appeals. He proposed the following amendment to the proposal:
§3. This act shall [take effect on the first day of January next succeeding the date on which it shall become a law.] take effect immediately and shall apply to all orders and judgments signed on or after the date on which it shall become law.
This amendment was accepted by all by consensus. Ray Bragar move the question which was seconded.
MOTION: SHOULD THE COMMITTEE APPROVE THE REVISED PROPOSED BILL?
Motion passed: 12 Yes, 1 No and 1 Abstention.
Prof. Chase said he had reservations about the proposal because the defendant had to affirmatively object within the time for an appearance or he will have to proceed under the simplified system. A wavier should be knowingly and affirmatively given. He said that a defendant should have a certain time to consent to it.
Ray Bragar claimed that the main problem was that it will almost never be used because defendants will easily say no. Ray said there should be some penalty for refusing to agree. Prof. Chase said that it appears that what is being said is that people won't use it because they don't like it so we shall trick them into it. That does not address my concerns, he argued. Ray said that the professor's concerns are misplaced. If a party goes to a lawyer, the lawyers should tell him what to do. It is his job.
Sharon Gerstman said that she would have a problem, if the opt out was not tied to the time to make an appearance. If a defendant makes an appearance, he should know what to do. An extension of time can always be obtained. David Ferstendig pointed out that 95% of the time, this will not be used since one or the other party will not want it. Sharon said the idea is that we should try it as an experiment for a few years. If it does not work out, then get rid of it. Prof. Chase argued that this was not just waiving a jury trial but waiving a trial in its entirety. This is worse than arbitration, he claimed.
Maurice Chayt said he favored the proposal because alternate dispute resolution should be kept within the Court system, rather than outside of it. Paul Aloe pointed out that no state has done this before. It is highly experimental and we should give it a try.
SHOULD THE COMMITTEE APPROVE THE PROPOSAL OF THE COMMISSION?
Motion passed: 12 Yes, 2 No.
III. New Business
Proposal to Amend CPLR 3102(d) concerning pretrial disclosure of expert witnesses. The chairman said that he will send out an e-mail to set up a subcommittee to deal with this. Anyone interested should e-mail the chairman.
The chairman announced that the next meeting will be on January 28, 2000 at the N.Y.S.B.A. annual meeting between 12:30 p.m. and 3:30 p.m.
The meeting ended at 2:45 p.m.