COMMITTEE ON CIVIL PRACTICE LAW AND RULES
MINUTES OF JANUARY 29, 1999 MEETING

MEETING called to order at 12:15 p.m.

PRESENT: Paul Aloe, Chair, Sharon Stern Gerstman, Co-Chair, Steven Critelli, Secretary, and Joseph Einstein, Kim Juhase, Steven Curvin, David Burke, Maurice Chayt, Harry Mooney, Rob Knapp, Ray Bragar, Jim Gacioch, Susan English, James Blair, David Ferstendig, Hon. Myriam J. Altman, Matthew Kelly, Hon. Evelyn Frazee, Michael Schmidt, Richard Lauder, Christopher Garvey, John Jablonski, Jill Nagy and William Rand.

     Introduction to Meeting

• Report on Executive Committee Meeting, held January 28, 1999.  The Executive Committee approved the following three proposals of the CPLR Committee:
1. Amendment to CPLR 5513 concerning the timing of notice of appeal where appellant services order with notice of entry by mail.
2. Amendment to CPLR 304, 306-a and 306-b with respect to commencement of special proceedings.
3. Amendment to CPLR 7502 to require that all applications made in connection with an arbitration be brought in the same proceeding.

The Executive Committee disapproved the following proposal: Amendment to CPLR 2220 to permit parties to serve orders prior to entry.  One of the chief objections was the fact that one party could possess a signed (and therefore "effective") order even before the other party knew about its existence.   Paul Aloe and Joe Einstein will attempt to rework the proposal to address some of the objections and resubmit same to the Executive Committee at a later time.

Sharon Gerstman also reported that the House of Delegates defeated the proposal by the NYSBA Commission on Providing Access to Middle Income Consumers in connection with its draft of the Simplified Case Resolution Procedure.  The Committee had supported this proposal, but as it is a novel concept, the House of Delegates was not ready to embrace it without further refinement.

• Matters in Progress
1. Status Report on Parent Child Privilege [the current bill in the legislature S156 is the Committeee's].  Following the introduction of the Committee's bill in the current legislative session, the Chair reported that the OCA Advisory Committee had inquired with respect to the Committee's intentions on parent-child legislation.  The Chair had advised the Advisory Committee that the Committee's bill had been introduced as a matter of standard procedure for outstanding/approved proposals of the NYSBA and that the Committee was prepared to endorse the OCA parent-child privilege.  Maurice Chayt reported that he had met with the Law Revision Committee and that proposal might be subject to an opinion that it was "soft on crime."  Following a general discussion of the decisional law whereby the courts have adopted similar privileges, the Committee unaminously voted to revise its bill to conform to the OCA proposal introduced in the last legislative session.  The OCA proposal is a "less restrictive proposal" and the Committee general agreed that endorsement by both the OCA and the NYSBA would give the bill a greater chance for successful passage.  [See also the minutes concerning the "Common Interest Privilege," infra.]
2. Proposing Rule Changes for Ex Parte Applications on TROs.   Mike Schmidt reported that he will soon submit for discussion a proposed court rule on the subject of Temporary Restraining Orders, which will build a notice provision into rules governing the application for TRO's.  This follows unsuccessful attempts by the Committee to get legislation through the Senate.
3. CPLR 3101(d) Proposal with respect to Expert Disclosure.  John Jablonski reported that he was soliciting further comments on his report.  Chris Garvey and Harry Mooney were added to the subcommittee (now consisting of Jablonski, chair, Critelli, English, Garvey and Mooney).  The debate generally centers on the question of when expert disclosure must be disclosed.   Current proposed legislation A1941 requires parties to disclose experts 60 and 30 days, respectively, before trial.  The question arises whether that is a workable deadline across the state, especially in the New York City-Long Island area where court congestion makes the trial date unpredictable.  The Jablonski proposal uses the filing of the note of issue as the measuring time when disclosure should be made.
4. Sanctions - should there be further efforts to amend the CPLR at this time. Jim Gacioch reported on the current status of the interplay between Uniform Rule 130.1 and CPLR 8303-a.   There are currently four proposals now before the legislature dealing with sanctions:
1.  S544  Provides for sanctions and costs in civil litigation
2.  S498  Authorizes the collection of expenses, and imposition of penalties and additional interest for  frivolous actions or  procedures;
3.  A1356 Awards attorney`s fees and costs to prevailing defendants in false and groundless suits
4.  A1191  Provides that court may sanction plaintiff and counsel for failure to accept fair and equitable offer.

The current bill closest to the present version of Uniform Rule 130.1 is S544 and Jim Gacioch's report is expected to reflect an endorsement of this bill rather than the other proposals.

5. Medical Malpractice Statute of Limitations - Bill recently introduced in 1999 Legislative Session. A1724* .   Matthew Kreinces is expected to present his Report on last year's bills at the next meeting of the Committee.
• New Matters (affirmative legislation projects)
1. William Rand of the Association of the Bar of the City of New York, Council on Judicial Administration, presented the Council's Report on the "Common Interest Privilege."   The Committee unanimously voted to endorse the the Council's Report.  However, it was observed that a new CPLR rule would control criminal procedure also and that this was outside the scope of the Council's report.   Mr. Rand stated that he would pursue the question of what impact the proposal might have on criminal procedure.
2. CPLR 4519 Deadman Rule - Harry Mooney, Jim Gacioch and David Burke have formed a subcommittee to look into the present day need for CPLR 4519 and whether it should be amended or repealed as a CPLR provision.  Jim Blair reported that the OCA Advisory Committee is also proposing action in this regard.  The issue was raised that if this evidentiary protection was needed in relation to estate contests, it should be better handled in the Surrogates Court Procedure Act.
3. Deposition Reform. Joe Enstein reported to the Committee of his observation that often deposition questions stray into clearly irrelevant matters and that there are no limits presently on the length of depositions.  The Committee general favors stemming abuse of discovery.  Justice Altman proposed a bench and bar convention on the issue.  Joe Einstein will look into the possibility of supplementing present preliminary conference rules so as to encompass mutually agreen upon deposition limits.
4. Default Judgment Issue. Joe Einstein has brought to the attention of the Committee the need for improvements in the method by which default judgments may be entered, especially in the scheduling of inquests where damages are not for a sum certain.  The present process requires a motion and usually a long wait.  Further information is expected to be heard at the Committee's next meeting.
5. Surveillance tapes under CPLR 3101(i).  Steve Curvin and Sharon Gerstman led a discussion concerning the Fourth Department's ruling in DiNardo v. Koronowski (4th Dep't Dec. 31, 1998).  See also Dimichel v. South Buffalo Railway Co, 80 N.Y.2d 184, 604 N.E.2d 63, 590 N.Y.S.2d 1 (1992), Hoenig, Timing of Disclosure of Surveillance Films, NYLJ 8/10/88 Barker, NEW YORK PRACTICE: The Use of Surveillance Tapes, NYLJ 10/19/98.   It was perceived by the Committee (on a vote of 9 in favor and 2 against) that an amendment of CPLR 3101(i) should be proposed to restore the procedure outlined by the Court of the Appeals in Dimichel, so as to preserve the timing of the disclosure of the existence of and production of surveillance tapes until after depositions had taken place.
6. Other Potential Projects:  Chris Garvey proposed inquiry into whether uniform judges' rules could be streamlined to eliminate redundant and stale practices.   Further discussion was heard by the Committee into the practice of the court clerks to reject papers for insubstantial defects.  The Chair agreed to entertain proposals in the future after the members have had a chance to reflect on the discussion.
• Other New Bills in 1999 Legislature - The Committee was requested to review the following proposals and e-mail comments to the Committee so that we may be able to discuss them at the next meeting:
1.  S330 Expands prohibition against pleading specific amount of damages to all negligence actions (now limited to medical and dental malpractice and actions against muncipalities).  See Report* on similar bills in 1995/96 Legislative Session (S3864/S944/A7540/A4947).  See also S3864Memo/S944Memo/4540Memo.  Paul Aloe's report disapproves the proposal and recommends that modifications be made.
2. A566  Provides for Prejudment Interest
3. A1395  Creates statute of limitations for actions relating to antenuptual and postnuptial agreements
4. A563 Tolls for the period of infancy of a claimant the requirement that a notice of tort claim against a public corporation be served within 90 days after claim arises
5. A024  Service on Doormen.

Whereupon, all business being concluded, the meeting was adjourned at 3:15 p.m.