PROPOSED AMENDMENT TO CPLR 8301(a)

AN ACT to amend the Civil Practice Law and Rules, in relation to increasing the maximum permissible disbursement for taking and making two transcripts of testimony on an examination before trial.

THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEMBLY, DO ENACT AS FOLLOWS:

Section 1.  Subdivision (a) of Section 8301 of the Civil Practice Law and Rules as amended by chapter 308 of the laws of 1962 is amended to read as follows:

(a) Disbursements in action or on appeal. A party to whom costs are awarded in an action or on appeal is entitled to tax his THE PARTY’S necessary disbursements for:

1. the legal fees of witnesses and of referees and other officers;

2. the reasonable compensation of commissioners taking depositions;

3. the legal fees for publication, where publication is directed pursuant to law;

4. the legal fees paid for a certified copy of a paper necessarily obtained for use on the trial;

5. the expense of securing copies of opinions and charges of judges;

6. the reasonable expenses of printing the papers for a hearing, when required;

7. the prospective charges for entering and docketing the judgment;

8. the sheriff`s fees for receiving and returning one execution;

9. the reasonable expense of taking, and making two transcripts of testimony on an examination EXAMINATIONS before trial, not exceeding two hundred fifty TWO THOUSAND FIVE HUNDRED dollars in any one action;

10. the expenses of searches made by title insurance, abstract or searching companies, or by any public officer authorized to make official searches and certify to the same, or by the attorney for the party to whom costs are awarded, taxable at rates not exceeding the cost of similar official searches;

11. the reasonable expenses actually incurred in securing an undertaking to stay enforcement of a judgment subsequently reversed; and

12. such other reasonable and necessary expenses as are taxable according to the course and practice of the court, by express provision of law or by order of the court.

§ 2. This act shall take effect immediately and shall apply to all judgments and bills of costs entered on or after the effective date of this act.

MEMORANDUM IN SUPPORT OF LEGISLATION

INTRODUCED AT THE REQUEST OF: The New York State Bar Association Committee on Civil Practice Law and Rules.

TITLE OF BILL:

AN ACT to amend the Civil Practice Law and Rules, in relation to increasing the maximum permissible disbursement for taking and making two transcripts of testimony on an examination before trial.

PURPOSE OF BILL:

To assure that the party to whom costs are awarded can tax as a disbursement a sum reflecting the actual costs incurred for obtaining a deposition transcript.

SUMMARY OF SPECIFIC PROVISIONS:

Amends subparagraph 9 of Section 8301(a) so as to increase the permissible amounts of costs of obtaining an original and two copies of a deposition transcript from $250 to $2,500. The proposal also changes the language of Section 8301(a) to make it gender neutral.

JUSTIFICATION:

It has long been recognized by commentators and practioners alike that one of the most significant expenses in litigation is the deposition transcript. The present statute limits disbursement to $250 "even though the actual expenditure is likely to be well beyond that." See, Siegel, N.Y. Practice 3d Edition, Section 415, Disbursements, p. 678. The Appellate Division has interpreted this section narrowly in the rare cases that have addressed this issue. In Hartmann v Fox, 87 A.D.2d 885 (2d Dept. 1982) the defendant’s attempt to recover a fee in excess of paragraph nine by resorting to CPLR 8301(a)(12) was rebuffed by the Court as being contrary to the expressed intention of the legislature to limit the amount of stenographic fees which could be taxed as a disbursement. To rule as the defendant had requested would "defeat the limitation imposed under paragraph nine and render said paragraph a nullity." Id. Accord: Ruthosky v John Deere Co., 235 A.D.2d 620, 623 (3d Dept. 1997)

It is respectfully submitted that whatever economic sense a $250 cap made in 1962, the same hardly applies to expenses in the 21st century. An informal survey of stenographic costs in Westchester and New York Counties revealed that the present $250 cap covers, at best, a portion of a charge for one deposition transcript original and two copies thereof. Deposition in a garden variety negligence case, lasting half a day, will result in a charge of approximately $400 in Westchester County. New York County rates varied from $4.50 to $5.00 per page and also included appearance fees of $50 per session, morning and afternoon, and potentially $2.50 per page for a copy of an already completed transcript.

The purpose of this amendment is to increase this cap to reflect the actual modern day costs of deposition transcripts as set forth above.

PRIOR LEGISLATIVE HISTORY:

Section 8301(a) is derived from Section 1518 of the former Civil Practice Act. Subparagraph 9 represented "the only change of significance" to the statute upon its amendment in 1962 as stated by the fourth report to the legislature. This amendment increased the maximum disbursement for obtaining a deposition transcript from $25 in former subparagraph 8-a to $250. Interestingly enough the 1962 amendment addressed what the committee considered to be "a totally unrealistic limit in light of the actual charges made by stenographic reporters at examinations before trial." The 1962 amendment increased the maximum costs from $25 specified in former subparagraph 8-a of Civil Practice Act, Section 1518 to $250.

FISCAL IMPLICATIONS:

None.

EFFECTIVE DATE: