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

    a.   Introduction.

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.

  1. Proposal to CPLR 3101(i) with respect to timing of disclosure - Sharon Gerstman reported that our proposal went to the Executive Committee, the General Practice Section, The Trial Lawyers and the Torts and Insurance Section. The Trial Lawyers requested that consideration be put off until January, 2000 to give them more time to consider it. The Torts Section and General Practice Section opposed our proposal. The Executive Committee was against any change requiring a court order for every surveillance situation as our proposal called for. They felt that our bill would create havoc. They felt that the proposal of the Torts Section that surveillance tapes be discovered after depositions was, as a general rule, the best approach.

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.

  1. Revised Proposal concerning the effectiveness of orders, upon signature or entry by clerk-This is Joe Einstein's proposal but he could not make the meeting. The chairman explained that this was a substantially revised proposal from our last meeting. It deals only with making appeals permissible before entry of a decision, order or judgment. Mike Greenspan said that this will take away the problem in Southern New York State where there has been a delay sometimes in entry by the clerks. Paul Aloe pointed out that under the proposal, service of the order or judgment before entry does not start the 30 day period to appeal to run.

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.

  1. Proposal of the Commission on Providing Access to Legal Services for Middle Income Consumers (Simplified Case Resolution)- The chairman explained that this is a revised proposal from what was submitted to the Executive Committee in November. He said that the ultimate goal was to resolve disputes at a cost savings. It will be considered by the Executive Committee in January. The Commission is now reaching out to us for comments.

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.

MOTION: 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.