COMMITTEE ON CIVIL PRACTICE LAW AND RULES
MINUTES OF THE JUNE 3, 1999 TELEPHONIC MEETING
MEETING called to order at 5:10 p.m.
PRESENT: Steven M. Critelli, Chair, Sharon Stern Gerstman, Vice Chair,
Kim Juhase, Secretary, Paul Aloe, Raymond A. Bragar, James N. Blair, Maurice Chayt, James
C. Gacioch, David L. Ferstendig, Christopher J. Garvey Michael Evan Greenspan, David B.
Hamm, Robert P. Knapp, III, Edward R. Mevec, Harold B. Obstfeld, Michael C. Schmidt
- Introduction to meeting by chairman.
- Status report on current bills.
- CPLR Committee Bills
Paul Aloe reported on the current status of the committee's proposed
bills. The legislature will adjourn next week. Since the budget has not been passed, the
legislature will probably be called back -- but the extended session will be devoted
exclusively to budget matters.
- Parent/Child Privilege- S0156 and A3604 - We
have received support but there are competing bills from the OCA Advisory Committee and
the Law Revision Committee. The Law Revision proposal would give the court the power to
override the privilege. Our committee has rejected this approach. Today, we received
formal opposition from the District Attorney Association. Therefore, the bill is unlikely
to pass the Assembly. Maurice Chayt said that the bill has not yet passed the Senate. If
it reaches the Assembly floor, it may be pushed through -- but it is touch and go.
- Motion Practice Bill, A3319 - We have
received opposition from the OCA and its advisory committee. Their main objection is the
extra time alloted for motions and they believe this would delay standard and goals. They
conducted a survey of clerks of the court which reported that the clerks had no problem
with the current law. Our position is that this proposal establishes a more realistic time
frame and will avoid unnecessary adjournments. It appears that the bill will not move in
face of the opposition of OCA.
- Judicial Applications in Connection with Arbitrations, A5937 - The
bill has passed the Senate and was on the verge of passing the Assembly today. The Trial
Lawyer's Association has proposed an amendment to exempt any proceeding relating to a
claim for personal injury or property damage under a policy of automobile liability
insurance. See attached.
If we can get our Senate and Assembly sponsors to amend thesebills, we should consent to
the Trial Lawyer's proposed language. Sharon Stern Gerstman said she had a problem about
carving out specific narrow exceptions. Paul Aloe pointed out that we had done that before
for landlord-tenant proceedings. He said that if we do not agree to the amendment, the
bills will not pass.
MOTION: SHOULD THE COMMITTEE AGREE TO THE PROPOSED AMENDMENT
FROM THE TRIAL LAWYER'S ASSOCIATION?
Motion passed: 10 Yes; 3 No; 2 abstain
- Service on Limited Liability Partnerships, S01206 - We
anticipate that the bill will pass with the OCA and Attorney General's suggested
- Commencement of Special Proceedings, A6393 - We are
Association of the Bar of the City of New York Bills- report by Paul Aloe.
- Joint Interest Privilege
- The measure is not likely to move.
- Telephonic Deposition Bill, S3524 - Jim Blair
is working on a report on this bill.
- Reports discussed by the committee.
- A07118 -
Amends CPLR 208 regarding the toll of infancy- David Hamm gave a summary of his comments (Comments by David Hamm) and
objections to Sue English's report (Draft Report By Sue English)
on this issue. There is a split among the Appellate Divisions whether the infancy toll is
absolute or is lost when some type of legal guardian is appointed for the infant. David
Hamm said that it would be unfair for defendants to be sued years after an accident took
place. But he also said, on the other hand, a child should not lose a cause of action. It
is not clear under the recent court ruling (Henry v. City of New York, 249 AD2d
93) whether the mere fact that a child has a parent would automatically eliminate the
toll. He pointed out that one the Henry case is scheduled to be argued before the
Court of Appeals and could be decided by the Fall.
MOTION: WHETHER A DECISION ON THIS ISSUE SHOULD BE PUT OVER
TO NEXT MEETING.
Motion was approved by a voice vote by acclamation.
David Ham will make a formal report for next meeting.
- S05289 -
Amends CPLR 3012-a relating to the filing of certificates of merit in medical, etc.
malpractice actions. If such certificate is not filed within the specified time, the case
will be dismissed with prejudice. Maurice Chayt filed a draft report disapproving it. He
stated that current law permits a court to allow a late filing, irrespective of the time
limits stated in CPLR 3012-a. Certain revisions in the report were suggested by Paul
Aloe, Steven Critelli and Jim Blair. See
proposed Revision of Chayt Draft Report.
MOTION: WHETHER TO APPROVE MAURICE CHAYT'S REVISED REPORT.
Motion was approved 10 Yes, 0 No.
- S3398/A07679 -
Amends Judiciary Law §2-b to allow service of subpoenas outside of New York State.
Committee Report No. 29
by Michael Schmidt disapproved the bills. The OCA has proposed amendments to the bills to
state that a court can compel a party who has appeared in the action to appear in court
for any purpose, even for supplemental proceedings. After discussions, the committee
informally decided to tell OCA that it had problems with the amended version of the bill.
Paul Aloe will propose new language for the OCA to consider but he is to make clear it is
his own and has not been endorsed by the committee.
A motion to adjourn the meeting was made and seconded. The meeting
adjourned at 8:22 p.m.
Kim Steven Juhase, Secretary