ON CIVIL PRACTICE LAW AND RULES
MINUTES OF WINTER MEETING JANUARY 30, 1998
MEETING called to order at 12:25 p.m.
PRESENT: Paul H. Aloe, Harry F. Mooney, J. David Burke, Joe Einstein,
Rob Knapp, Sharon Stern Gerstman, Kim Steven Juhase, Maurice Chayt, Ray Bragar, David
Hamm, Jim Gacioch, Jill Nagy, Susan English, Steve Critelli, Jim Blair, David Ferstendig,
Burt Lipshie, Prof. Oscar Chase, Hon. Myriam J. Altman
I. The Chair reported that the NYSBA Executive Committee
considered five of our affirmative legislation proposals and took the following action:
- Approved proposed legislation precluding the admission of settlement
discussions into evidence.
- Approved proposed legislation regarding the service of process upon
LLP's, LLC's and PLLC's.
- Approved proposed legislation to clarify application of commencement by
filing to election law proceedings
- Committee deferred consideration on proposal to amend CPLR 306-b by
establishing an outside date for the filing of the service. The Committee, by a vote of
11-4, approved a motion to table at the present time. Committee will recommend to the
Matrimonial section that appropriate amendments to equitable distributation statute be
made to make equitable distribution commence on service rather than commencement of the
- Disapproved proposal to codify 22 NYCRR 130.1. The Committee
formed a subcommittee (Jim Gacioch, David Ferstendig, Rob Knapp, Ray Bragar) to review the
sanctions problem and present recommendations at our next meeting.
II. Affirmative Legislation From the Committee:
- Pharmacy Privilege. Committee had extensive debate on proposal to
create a pharamasist privilege. After discussion, the proposal was moved, and by a
vote of 6 to 9, the Committee disapproved this proposal. There was general agreement that
the there should be notice to non-parties whose private records (such as pharmacist
records) are sought in litigation. The Committee formed a subommittee (David Hamm,
Jill Nagy, and Harry Mooney) to consider the issue of the discovery of non-party records.
- Entry of Order. The Committee considered Joe Einstein's proposal
notice of entry proposal. Certain concerns were raised, and subject to those
concerns being addressed, the committee approved the legislation.
- CPLR 5519(a) (governmental stay). Burt Lipshie proposed again
advancing the proposal to limit the governmental stay to 10 days. After discussion,
it was concluded that the measure would not likey go anywhere. The Committee was in
agreement that the proposal of the OCA Advisory Committee codifying the Second Department
approach on CPLR 5519(a) was sound. Burt Lipshie will prepare a report of the
Committee on the propsal.
III. Affirmative Legislation Proposed by others
- The Commissionon Middle Income Legislation has prepared a proposal that
would create a procedure for cases under $75,000. Steve Critelli and Jim Blair
prepared a report on the proposal, and following the report, they, along with Paul Aloe,
met with Evan Davis, Frank Headly and Judge Crane. The Commission asked the Exec.
Committee to defer consdieration of the matter to April so they could work with the
concerns of the CPLR Committee. Frank Headly attended the CPLR Committee
meeting. He explained the proposal, circulated a new draft of the proposal
(available in the CPLR web site private area), and advised that the Commission had
determined to eliminate the attorneys fees provision on trials de novo. General
discussion ensued. The Committee was in agreement that aims of the proposal
were worthy and that something needs to be done to enable smaller cases to be handled in a
cost effective matter, although it was pointed out that what might be considered a small
case may vary depending on the part of the state (i.e. in some upstate counties, $75,000
would be considered a substantial amount of money). Some Committee members
expresed the view that arbitration procedures, similar to those now in place in federal
court, should be adquate and an entirely new system had too many problems. Other
members pointed out that provision giving the plaintiff the choice to use the procedure,
but defendant did not have an opt out provision, was both unfair, and created the
undesirable situation where the defendant had to be given the right to a trial de
novo. The Committee, by consensus, felt that the defendant should have the
opportunity opt out and the trial de novo provision should be eliminated. The Chair
announced that the Committee would continue to work with the Commission to develop the
best proposal possible.
- Proposal to amend CPLR 3113/3115 was deferred. The Chair will
appoint a member to report on proposal. Steve Critelli was subsequently appointed.
IV. Status Reports:
- Maurice Chayt reported on the status of Committee's Proposal to
codify a parent/child privilege. It was reported that the matter is currently being
considered by the Law Law Revision Commission.
- The Chair reported on the efforts to advance the motion practice
bill. The Chair has met with representatives of the OCA's task force on the subject,
and the OCA is planning to roll out pilot projects shortly to test out the idea. The
Chair is hopeful of gaining the support of the OCA on the Committee's motion practice
- The Chiar also reported on the Committee's e-mail privilege bill.
The Chair is hopeful of passage this year..
MEETING adjourned at 3:30 p.m.