COMMITTEE ON CIVIL PRACTICE LAW AND RULES

MINUTES OF THE JANUARY 28, 2000 MEETING

AT THE PALACE ROOM, MARRIOTT HOTEL

NEW YORK, NY

MEETING called to order at 12:30 p.m.

PRESENT (in person or by telephone) : Steven M. Critelli, Chair, Sharon Stern Gerstman, Vice Chair, Kim Juhase, Secretary, Paul Aloe, James N. Blair, Raymond A. Bragar, David Burke, Prof. Oscar Chase, Maurice Chayt, Susan English, David L. Ferstendig, Hon. Evelyn Frazee, James C. Gacioch, Christopher Garvey, Michael Evan Greenspan, David Hamm, John Jablonski, Ron Kennedy, Richard Laudor, Burton Lipshie, Jill Nagy, Michael Schmidt, Gail Nackley Uebelhoer

I.                    Discussion by Prof. Oscar Chase regarding decision of A.J. to limit trial of government cases to select judges.

Because Prof. Chase had to leave the meeting early, it was agreed to allow him to bring up this topic out of turn.  The Chief Administrative Judge has set up five experimental administrative parts to hear cases against the City of New York (excluding personal injury & property damage cases) and four judges who sit in the Appellate Term will preside over these.  The reason we should  be concerned is that these cases are important issue cases and politically sensitive, Prof. Chase argued.  The supreme court justices oppose the creation of these new parts as an interference with judicial independence and the policy of keeping the courts free from political influence.  He stated that there is not sufficient justification for this.  It is wrong when political cases are taken out of the ordinary stream and given to specially selected judges.  This is not like specialized court parts already set up, such as matrimonial, since challenging the constitutionality of statutes goes to the heart of what the judiciary does.   The judges are not randomly selected from all Supreme Court judges.  They are pre-selected and this is troubling.

The committee agreed that this problem was not within our jurisdiction. A resolution was proposed as follows:

MOTION:  THAT  THE CHAIRMAN IS AUTHORIZED TO WRITE A LETTER TO THE PRESIDENT OF THE NYSBA TO INDICATE OUR COMMITTEE'S CONCERN ABOUT THE ACTION OF THE CHIEF ADMINISTRATIVE JUDGE. 

The motion was approved unanimously.

II.                 Report on the Executive Committee meeting.

Sharon Gerstman reported on the meeting of the Executive Committee.  The NYSBA Assembly passed a resolution approving the Proposal on Providing Access to Legal Services for Middle Income Consumers.

Our proposal regarding CPLR 7502- Venue involving arbitration- was passed by the Executive Committee without question.  Joe Einstein's Revised Proposal Concerning the Effectiveness of Orders, upon signature or entry by clerk was passed with the proviso that the Committee on Appellate Practice had 2 weeks to register objections and if they did, a telephonic conference of the Executive Committee would be held to discuss them.

Our Proposal to CPLR 3101(i) With Respect To Timing Of Disclosure- It was controversial.  It was pointed out that the phrase "until full and fair opportunity to depose" gave the impression that a party had the right to a second deposition.  We will have to make clear that this is not the case.  There was a debate on the merits also.  In the end, the Executive Committee passed our version.

III.              Report by Ron Kennedy of Status of NYSBA CPLR measures currently before the              legislature.

1.      Commencement of Special Proceedings by Filing-  The bill was introduced in both houses last year and voted out of committee.  Toward the end of the session, it was decided  that no one wanted it to affect the Election Law and so the bills were amended.  During the off session, Kennedy met with counsels of persons who had the most concern and they finally gave their blessings. The last word is that there is no problem and so the bill has a good chance of passage.

2.      Motion Practice Reform Bill-   When this was introduced two years ago, it was stopped by the OCA.   Currently, there is no meeting of the minds by anyone on the bill and therefore it has been stifled.  It has only been introduced on the Assembly.  Paul Aloe suggested that maybe someone should write a column in the NYLJ about the issue and argue that the changes should be made.  Ron stated that letters and contacts can help the political process.

3.      Motion for Summary Judgment in Lieu of Complaint- This is not our bill but we endorsed it.  Nothing is happening on it.

4.      Parent- Child Privilege - There are several competing interests here.  There is the OCA version, our version, and the Law Revision Committee (LRC) version.  The District Attorneys are very much opposed to the concept.   Maurice Chayt said out bill passed the Senate a couple of years ago.  Ours is bilateral and the OCA's version is unilateral so does not need exceptions, he pointed out. The LRC version is what the DA's want, which is to give judges the power to override the privilege.  Last year, we agreed to go along with the OCA version.  Senator Skelos has introduced both our version and OCA's in the Senate.  They are in committee.  The Assembly will not pass any version until the Senate passes one first.  Maurice argued that we should push the OCA version in the Senate first.

Ron hopes that the bill might be reported out of committee. The LRC is meeting today and will take up the issue.

Maurice asked for the consensus of the committee to support the OCA this year.   Sharon argued that we agreed to back the OCA for one year only.  She stated that we should back our own bill and instruct Ron to feel how it should go and give him flexibility.  Paul stated that an effort should be made to get OCA and Law Revision together with us to come up with a common bill.

MOTION:  THAT RON KENNEDY BE GIVEN FLEXIBILITY TO DETERMINE WHAT PARENT - CHILD BILL IS MOST LIKELY TO PASS THAT MEETS WITH THE COMMITTEE'S VIEWS AND TO BACK SAID BILL ACCORDINGLY.

The motion was passed by acclamation.

IV.               New Business

1.      Discussion by Sharon Gerstman regarding perceived conflict between motion practice in the Appellate Divisions and CPLR 2214.- Sharon pointed out that the 4^th Department specifies time to make motions but no time for replies.   Someone had argued that, therefore, there is no time to respond.  Do we want to do something about this?

Steve Critelli said he had an experience where he told the App.Div. clerk that he did not have enough time to reply and the clerk said don't worry about it, "we do what we want here".  Steve said that the App.Div. apparently does not feel constrained by the CPLR in regard to motion practice.   They are very flexible.

David Hamm said that he is not sure that this is a big problem since there are only a limited number of motions you can make to the App.Div.  His opinion was that the App.Div. actions do not disadvantage anyone.

Paul Aloe stated that this may not be within our jurisdiction and the App.Dov. should run its own motion practice.

No action was taken regarding this issue.

2.      Report of David Hamm concerning the case of Henry v. City of New York and proposal for legislative action- The Court of Appeals ruling in Henry clearly states that infancy is an absolute toll, irrespective of whether the infant is represented by a guardian or an attorney.  David said he did not wish to discuss whether Henry was right or wrong but that the law should be changed.  He felt that an absolute infancy toll ignores the public policy of statute of limitations.   It is impossible to defend against ten year old slip and fall cases.  These claims are frequently made, he pointed out.  David proposed that the law should state that if an infant has a capable guardian or lawyer, able to protect the infant's rights, as determined by a court the statute of limitations should not be tolled.

Sharon argued that this proposal would make things worst for diligent parents as opposed to totally incompetent parents.  The diligent parents get punished. 

No action was taken on David's proposal.

3.  Discussion of bill A563 which would eliminate the requirement of filing a notice of claim for infants until majority.

A general discussion was held in which a proposal was made to rescind Susan English's report which approve the bills. 

MOTION:  TO RESCIND THE REPORT OF SUSAN ENGLISH APPROVING BILL A563.

The motion passed by a vote of Yes- 16, No- 4.

David Hamm will revise his report regarding this bill and issue a new one.

3.      Report of David Hamm concerning the admissibility of X-rays, MRI, CAT scans, etc.- The case of Schozer v. William Penn Life Ins. Of N.Y., 84 N.Y. 2d 639 (1994) is the focal point.  Prior to this case, the law clearly prohibited the introduction into evidence of testimony or reports concerning X-rays and the like if the original was not in evidence. Schozer changed this and said that absence is not enough and it could be admissible.  David said it is very hard to contradict an expert who saw the X-rays by an expert who did not.  The best evidence rule should not be applicable to X-rays because a jury cannot see anything in an X-rays.  

One approach to solve this problem is like S5145, which  David disapproved as written.  This bill would just forbid it.  The other approach is to state that the failure to produce the X-rays may result in a preclusion order or charge to the jury.  A motion was made to approve David's report and exclude therefrom the statement "as written."

MOTION:  SHOULD WE APPROVE DAVID HAMM'S REPORT DISAPPROVING S5145?

The motion passed unanimously with 2 abstentions.

4.      A01941, Proposed amendment to CPLR 3101 providing for preclusion of testimony of expert witness. - Judge Frazee was asked her opinion.  She said she cannot speak for other judges but she finds all the scrambling around about experts as a waste of time.  It seems that at almost every trial the is preclusion motions when it is perceived that the expert information was provided late.  There should be a statutory time frame about expert exchange before trial.  Therefore, she agrees with A01941.  John Jabonsky said his proposal followed the consensus of the committee that there was a problem with expert disclosure.  N.Y.S. is getting further and further behind on expert witness disclosure as compared to the rest of the country.

John stated that it is sound to tie everything to the filing of the note of issue.   Disclosure of the expert must be done before filing the note of issue.  John said he liked the City Bar proposal which says that no note of issue can be filed until 60 days after expert witness disclosure.

Jim Blair pointed out that the OCA has its own proposal but a copy was not available to us right now.  David Hamm said it is unwise to decide this bill until we see the OCA bill. Joe Einstein's Report 37 (April 25, 1997) disapproved a similar bill.  A motion was made to withdraw Joe Einstein's report pending reconsideration of the OCA proposal. 

MOTION:  SHOULD WE WITHDRAW JOE EINSTEIN'S REPORT?

The motion was passed unanimously and the Einstein Report was withdrawn.  The Chairman said he will send out the OCA proposal to the committee for review and comment.

5.      Pre-Trial Evidentiary Determinations in Civil Jury Trials, S04364 - The Chairman will e-mail the committee on this. 

A motion to adjourn the meeting was made and seconded. The meeting adjourned at 3:20 p.m.

Kim Steven Juhase, Secretary