COMMITTEE ON CIVIL PRACTICE LAW AND RULES<big>

MINUTES OF THE SEPTEMBER 21,  2001 MEETING

AT THE ASSOCIATION OF THE BAR OF THE CITY OF NEW YORK

NEW YORK, NY

MEETING called to order at 12:28 p.m. by the Chairman, Steven M. Critelli

PRESENT: Steven M. Critelli, Chair, Sharon Stern Gerstman, Vice Chair, Kim Juhase, Secretary, Paul Aloe, James N. Blair, Raymond Brager, Maurice Chayt, Joe Einstein, David L. Ferstendig, James C. Gacioch, David Commender, Michael Evan Greenspan, David Hamm, Ron Kennedy, Richard Laudor, Harold Obstfeld, Michael Schmidt, Mike Stallman, Allan Young

I.                    Introduction- The Chairman thanked everyone who devoted time to this meeting despite distractions.  He then asked everyone to introduce themselves.  The Chair raised the issue of whether this committee should meet more frequently or were telephone conferences sufficient to keep up with the workload.  Jim Gacioch, a former chairman of this committee, stated that when he attempted to call more meetings, he lost attendance.  His opinion was that telephone conferences have worked and we should continue with them.  Sharon stated that telephone conferences work when the agenda is small.  The chairman concluded that the consensus of the committee was that people are happy with the frequency of the meetings so they will not be increased.

II.                 Brief Review of CPLR Measures Passed by Legislature during the 2000-2001 Session

1.      Deferred Compensation plans exempt from Article 52 enforcement proceedings- S05491/ A09113.  This bill has passed.

2.      Commencement of Special Proceedings- S00077 / A01437.  This has passed both houses.

3.      Admissibility of graphical and pictorial representations of medical or diagnostic tests- S03485 / A07344.  This passed both houses although our committee originally opposed it.  The Chair stated that upon a reconsideration, the Committee should not issue its report disapproving the bill.  The Chair proposed further comment among the Committee via the e-mail list.  Ron Kennedy advised the Chair that the bill may have already been submitted for signature, in which event comment will be too late.

4.      Remedial Legislation Affecting Arbitration Awards- S04341 / A07755.  Paul Aloe stated that this was a good bill when proposed by the OCA.  Since then, the Court of Appeals has ruled that the amendment to the law was remedial and therefore there may not be need for this legislation anymore. However, the bill does no harm and has passed both houses of the legislature.

5.      Trial Subpoena Procedure- S03484 / A08723.  It was agreed that the bill does not merit further comment.  The bill has passed both houses of the legislature.

III.               Affirmative Legislation Proposals-

1.      Revised Proposal to Amend CPLR 3216.  Mike Schmidt reported on his revised version of the bill. He added in subdivision (b) a provision that the neglect to proceed must be unreasonable.  He also added in subdivision (c) (3) that before the motion could be made, an attempt must have been made to confer in good faith in person over the telephone in an attempt to resolve the dispute.

After much discussion, the following amendments were accepted –

Subdivision (a) – “or render judgment” was removed from the next to the last sentence.

Subdivision (b)(ii)- amended to read “an identification of the last activity by the party against whom the dismissal is sought has occurred prior to. .  .

Subdivision (c) (2)- amended to read – Nine months must have elapsed since the last activity by the party against whom the dismissal is sought constituting the basis for  . . .

Subdivision (c)(3)- was rewritten to state- A good faith attempt to reactivate the case must have been made in writing at least 60 days prior to bringing of the motion.

MOTION- SHOULD THIS PROPOSAL BE ACCEPTED AS AMENDED

            The motion passed Yes-11, No-1 and Abstentions- 2.

2.      Proposals on Pretrial orders and court conferences- Sharon reported that the Executive Committee of the State Bar Association voted it down.  They felt that allowing the trial judge to set a trial date at the beginning of the case could lead to abuse. The court might consider the date etched in stone and might make you beg for an adjournment.  This is already happening in some upstate counties.  They also did not like the idea of law secretaries presiding over the conferences and having to go back to the court for late filings of the note of issue.  They also stated that there are too many conferences and did not like the idea of listing what the court can do during a conference.

Maurice Chayt moved to remove subdivision (b)(12) of the proposal which provides that a judge at a conference can direct that the action be tried on a date certain.

MOTION- SHOULD SUBDIVISION (b)(12) BE ELIMINATED

            The motion passed Yes-11, No-1, Abstention- 1

            It was finally agreed that the proposal will be revised by Paul Aloe to meet some of the objections of the Executive Committee.

IV.              Old Business

1.      S04293/ A07073- Amending CPLR 7502- This bill was not passed by the legislature.

V.                 New Business

1. Written letters of engagement.  This is an OCA proposal.  Steve asked the committee to e-mail their comments on this to him.

A motion to adjourn the meeting was made and seconded. The meeting adjourned at 4:00 p.m.

Kim Steven Juhase, Secretary