COMMITTEE ON CIVIL PRACTICE LAW AND RULES

MINUTES OF THE JANUARY 25, 2002 MEETING

AT THE HART ROOM, MARRIOTT HOTEL

NEW YORK, NY

MEETING called to order at 12:55 p.m.

PRESENT: Steven M. Critelli, Chair, Kim Juhase, Secretary, Paul Aloe, Jim Blair, Raymond Bragar, David Burke, Oscar Chase, Maurice Chayt, Joe Einstein, David L. Ferstendig, Evelyn Frezee, Jim Gacioch, Michael E. Greenspan, David Hamm, Robert P. Knapp, III, Matthew R. Kreinces, Steven M. Lester, Burt Lipshie, Harold B. Obstfeld, Phil Schatz, Michael Schmidt, Steven Sorkin, Gail Nackley Uebelhoer, Allan Young.

I.                   Report on the Executive Committee meeting.

Paul Aloe  reported on the presentation of Committee proposals before the Executive Committee.  The Pretrial Conference proposal drew a fair amount of opposition within the Executive Committee.  There was a lot of frustration about the pretrial conference procedure in general.  The majority of the Executive Committee voice the opinion that codification by statute made modification of the rules very difficult, preferring instead that these be implemented and amended by court rule. 

The proposal to amend the summary judgment statute, CPLR 3212 was also defeated because it was felt that it could be used to the disadvantage of those involved in consumer transactions.  At the Executive Committee, Tom Levin suggested that the time for making such a motion should be delayed until the time to answer expired or after an answer had been served.  Therefore, the Committee is revising the proposal along the lines suggested at the Executive Committee meeting.  A provision was also added stating that cross-motions for summary judgment would not be allowed in the context of this type of summary judgment motion.  After discussion, Paul Aloe moved the amend the proposal by adding that the time to move for summary judgment would be the "earlier of the defendant's appearance" or the time for defendant to answer.

MOTION- SHOULD THE AMENDMENT BE PASSED

The motion was approved by a vote of 23 yes and 0 no.

II.  Proposal of the Commission on Providing Access to Legal Services for Middle Income Consumers

        There was a consensus that the Commission's proposal on the Unbundling of Legal Services was not recommended for litigated matters.  Our Chairman sent a letter to the Commission consolidating the Committee's e-mail comments and offering to consider amendments of the proposal.

III.                New Business

A. Proposed Rule Limiting the Length of Depositions.-  Joe Einstein stated that his proposal is modeled on the federal rule.  There should only be 7 hours per deposition with the need to get court approval for a longer examination.  Jim Gacioch stated that upstate there are no problems with lengthy depositions.  The consensus seemed to be that this was not a proposal we would support and Joe decided not to do anything further with it.

B. Codification of Uniform Rules for Trial Courts, �202.7[a](2) and [c]- Mike Greenspan explained his proposal.  Under the Uniform Rules, before you make a motion for disclosure, you have to submit a good faith affidavit that you tried to solve the discovery problem with your adversary.  Many lawyers ignore the court rule.  If you put it into the CPLR, lawyers may make more of an effort to follow it and many discovery issues might be solved.

            Some members pointed out that whether such a rule is found in the court rules or the CPLR, the practice probably would not improve in this area.  Paul Aloe pointed out that the OCA does not want the rules codified, because of the same problems mentioned in the Executive Committee.  The CPLR Committee has tried this in the past and it has not worked.

            The Chairman noted that the majority of the Committee would probably oppose such a measure, but nevertheless did not discourage Mr. Greenspan from submitting a writing proposal if he wished to have formal consideration of this proposal.

C. Examination of court rule requiring pre-motion conferences.  This issue was raised by David Hamm in light of the Bronx Co. court practice of requiring pre-motion conferences before allowing a party to proceed on motion.  However, after some discussion, David declined to pursue a proposal in relation to the current practice in Bronx Co.

IV.               Old Business

A. Preserving the Testimony of Party's Own Medical Witness for Use at Trial.  This is an OCA proposal.  Paul Aloe stated that CPLR 3101 is about disclosure not preserving testimony.  The better approach would be to look at the whole issue and put it somewhere else rather than placing it into CPLR 3101 which is long enough already.  A motion to table was approved unanimously pending the development of an alternative proposal.

B. Committee project assessing the relevance of the CPLR in today's practice.  The Chairman stated that we should think of coming up with some reports on the relation of Court rules to the CPLR and about the future of the CPLR.   Anyone interested in working on this project should e-mail Steve.

A motion to adjourn the meeting was made and seconded. The meeting adjourned at 2:45 p.m.

Kim Steven Juhase, Secretary