COMMITTEE ON CIVIL PRACTICE LAW AND RULES
MINUTES OF THE OCTOBER 6, 2000 MEETING AT THE N.Y.C. BAR ASSOCIATION,
NEW YORK, NY
MEETING called to order at 12:01 p.m.
PRESENT: Steven M. Critelli, Chair, Sharon Stern Gerstman, Vice Chair, Kim Juhase, Secretary, Paul Aloe, Prof. Oscar Chase, David Commender, Joe Einstein, David L. Ferstendig, David Hamm, Richard Lauder, Ron Kennedy, Robert P. Knapp, III, Harold B. Obstfeld, Mike Schmidt, Seth Schaffer, Steven Sorkin, Tom Valet.
- The bill passed the Senate but Assemblyman Kaufman stopped it being passed in the Assembly.
Commencement of Special Proceedings
- It still has a problem with the District Attorneys. They refuse to negotiate. OCA has a bill in play. However, nothing has passed. Senator Skelos would like to push the bill but will do nothing until the Assembly acts first.
- This bill amends CPLR 7502. This was our one success. It has been signed into law.
- The chairman stated that the N.Y.S. Trial Lawyers have opposed this bill. Paul Aloe will contact them to point out that their opposition is meritless.
Appealing Unentered Orders
Paul Aloe discussed a new method of advancing our legislative agenda. He pointed out that nobody ever lost an election because he failed to pass a CPLR bill. If anyone in the legislature objects to the CPLR bill, it will probably not pass. Sometimes the objection is based on a misconception of the legislator.
There is software developed by the Environmental Defense League. It gives groups the ability to track legislation. When there is an issue that comes up requiring communication with the legislature, the software will notify the user and will produce an e-mail letter to the legislature. It allows groups to generate communications.
For example, the Special Proceedings bill. We could target Assemblyman Kaufman or the whole Assembly. We can notify members and have them notify their legislators. We could select a couple of issues and target certain legislation. The Bar Association is interested in having our committee work on it on a trial basis. We could pick a couple of issues a year and try to advance or stop bills. The chairman said that we are going to pursue it. Paul noted that it will not come out of our budget.
This is Joe Einstein's proposal. He decided to amend the proposal to provide that a motion for summary judgment could be made at any time after service of pleadings rather than after issue is joined. Paul Aloe stated that the Court of Appeals has ruled that summary judgment cannot be brought until issue is joined. This could cause problems in cases like mortgage foreclosures. The defendant can delay joinder of issue in many ways. It was pointed out, however, that this bill does not solve this problem because it only allows the defendant to move for summary judgment before joinder, not the plaintiff. It does not fix something that is broken since the defendant can always serve an answer and make his motion. Joe said that he found many cases where defendant will delay service of an answer in order to avoid a summary judgment motion he know is coming. He suggested that a subcommittee be formed to study this matter. The chairman appointed the following to the subcommittee: Joe, Paul, Burt, and Harold.
David Hamm spoke on possible legislative responses to this Court of Appeals case. CPLR 3212(a) states that a motion for summary judgment may not be made after 120 days after the filing of a note of issue except on good cause shown. The Gonzalez case held that it was not an abuse of discretion to entertain a motion after the 120 days since discovery was still open. However, since leave is discretionary with the court, it might leave some parties in a Catch-22 situation where they want discovery but do not want to lose their right to make a summary judgment motion. After some discussion, David said that he would propose that if there is outstanding discovery when a note of issue is filed, a motion to strike must be granted. The chairman asked David to draft a proposal. Paul Aloe said we should leave this area alone since practice is evolving and notes of issue are becoming less important. It would be a mistake to write note of issue back into the law. The chairman said he will appoint a subcommittee to study this matter. He appointed David, Sharon and Steven Sorkin.
Rob Knapp reported that the proposal would increase mandatory arbitration from $6,000 to $10,000. Burt reported that the OCA has a task force on this and that nothing will get done until they issue a report.
VII. FORMATION OF SUBCOMMITTEE ON PRE-TRIAL ORDER INITITATIVE.
There was a proposal last year in the legislature that would have mandated pre-trial orders for jury trials but Paul Aloe felt that it was not a good bill. However, it raised the issue that pre-trial conferences and pre-trial orders have become a regular feature on how trials work. The CPLR does not really deal with this issue and there is nothing in the CPLR about pretrial conferences and orders. The idea is to try to create a provision dealing with this. We can look at F.R.C.P. as a model. The following members were appointed to the committee: Paul Aloe, Steve Critelli, Tom Valet, Mike Schmidt, Richard Lauder. Evelyn Frazee will be asked to volunteer.
A motion to adjourn the meeting was made and seconded. The meeting adjourned at 3:05 p.m.
Kim Steven Juhase, Secretary