COMMITTEE ON CIVIL PRACTICE LAW AND RULES
MINUTES OF THE JANUARY 26, 2001 MEETING
AT THE MARRIOTT MARQUIS HOTEL
NEW YORK, NY
MEETING called to order at 12:50 p.m. by the Vice Chair, Sharon Stern Gerstman in the temporary absence of the Chairman.
PRESENT: Steven M. Critelli, Chair, Sharon Stern Gerstman, Vice Chair, Kim Juhase, Secretary, Paul Aloe, James N. Blair, David Burke, Prof. Oscar Chase, Maurice Chayt, Joe Einstein, David L. Ferstendig, Hon. Evelyn Frazee, James C. Gacioch, Michael Evan Greenspan, Rob Knapp, John Jablonski, Matthew R. Kreinces, Richard Laudor, Steven Lester, Burton Lipshie, Harold Obstfeld, Michael Schmidt, Steven Sonkin, Mike Stallman, Gail Nackley Uebelhoer, Allan Young
I. Report on proceedings before the Executive Committee regarding CPLR 2303.
Paul reported on the actions of the Executive Committee. The proposal has a lot of support but people had concerns. Therefore the proposal was moved to their March 30 meeting for further consideration. Based on some of the comments made at the meeting, some minor changes were made.
a) Serve was changes to issue
b) the following was added at the end: so that it is received by such parties promptly after service on the witness and before the attendance of the witness or production of books, papers or other things.
Sharon stated that there may be opposition from the Trial Lawyer to this proposal.
Anyone who has comments must submit them by March 15, 2001. Paul said that if we can reconsider the proposal after comments are received. Judge Stallman raised the question of whether the proposal is too limited. He notes we did not need the word pending. Paul said pending is in there because once judgment is entered, CPLR 5234 would apply.
By a vote of 25-0, the changes to the proposal were accepted. It was agreed that we would review it in March.
II. Report on amend CPLR 3216
Mike Schmidt reported. He stated that the current CPLR 3216 does nothing for defendants who want the case to move along yet have no reason to file a note of issue. Based on previous comments of the committee, he removed from his proposal the requirement for an affidavit of merit and added some additional requirements. A dismissal under this section would not be on the merits.
Sharon stated that it would be a mistake to remove the affidavit of merit since there is some case law which states that no matter what the statute states, an affidavit of merit may be required. Paul said that the legislative report can make it clear that an affidavit of merit is not required. Steve Critelli wondered that if the affidavit of merit is not required, how would the courts determine whether a case is viable. Sharon stated that there should not be an inquiry into the merits under the proposal. She also pointed out that a court may not know or be able to determine when a last act occurred in order to act in its own discretion.
It was moved that Mike would rewrite statute based on the comments he received. The motion was seconded and was agreed to by all.
III. Proposal on pre-trial orders and court conferences.
Paul Aloe reported. He stated that pre-trial conferences are becoming very important. Parties should have a right at these conferences to be heard and make a record. At a final pre-trial conference the parties can obtain rulings on admissibility of evidence and direct the sequence of presentation of proofs at trial. Since an order made at a conference is deemed an order given on notice, this would give a party a right to make an appeal. The law is now that you cannot appeal from an order issued at a conference. The proposal allows the CPLR to be the frame work for conferences rather than the court rules.
Paul accepted as friendly amendments the following:
a) Subdivision c) first sentence, change the shall to may.
b) Subdivision c) third sentence, change shall to should.
c) Subdivision c) added that the parties shall have the right to have the conference recorded
The proposal, as amended was approved by a vote of 24-0.
A motion to adjourn the meeting was made and seconded. The meeting adjourned at 2:43 p.m.
Kim Steven Juhase, Secretary