COMMITTEE ON CIVIL PRACTICE LAW AND RULES

MEETING called to order at 12:40 p.m.

PRESENT: Steven M. Critelli, Chair, Sharon Stern Gerstman, Vice Chair, Kim Juhase, Secretary, Paul Aloe, James N. Blair, Raymond A. Bragar, Prof. Oscar Chase, Maurice Chayt, David L. Ferstendig, Thomas Fini, James C. Gacioch, Michael Evan Greenspan, David B. Hamm, Ron Kennedy, Robert P. Knapp, III, Harold B. Obstfeld, Michael C. Schmidt

1. General Announcements

a. Introduction.

The chairman discussed future meeting schedules. He recommended that everyone should have or use E-mail since we may have E-mail balloting especially when time is of the essence. He introduced Ron Kennedy, our committee's staff liaison. He is on the staff of the N.Y.S.B.A. Governmental Relations unit. He described what he does. He stated that once we issue a report, it is cataloged and then distributed to the key committees of the legislature, usually the Code and Judiciary Committees. It is also distributed to some key legislators. Paul Aloe pointed out that Ron has been very helpful.

2. Multi-Disciplinary Practice.

Sharon Gerstman, who is a member of the Executive Committee of  N.Y.S.B.A.and the A.B.A. House of Delegates, described the current status of the Multi-Disciplinary Practice (MDP) put forth by a committee of the A.B.A. Both the A.B.A. and the N.Y.S.B.A. eventually decided that until the time it is shown that there is a need for MDP and certain safeguards are installed, there should be no change in the rules. The N.Y.S.B.A. has appointed a committee to find out what businesses really wants regarding MDP.

2. Status report on legislation.

1. Amendments to the CPLR passed by the last legislature..

Paul Aloe reported that we have had two of our bills passed at the past legislature. Chap. 94, L. 1999, S03070- Time for Service of Notice of Appeal and Chap. 341, L. 1999, S01206- Service on Limited Liability Companies.

Two other CPLR bills were also passed in the past legislature that were not our bills. One was S03521, Chap. 281, L.1999, which amends CPLR 2221 and 5701 to provide a statutory framework to govern motions to reargue and renew.. The other was S04135, Chap. 367, L. 1999, which amends CPLR 304, 2101 and 2103. It authorizes pilot programs for the use of facsimile transmission or electronic means to commence and action or special proceeding and for the electronic service of papers.

There was a discussion regarding the new law regarding motions to reargue and renew. Paul stated that the drafters of the law thought they were merely codifying the current law. Sharon Gerstman pointed out that this law may have substantially changed the law and it may cause problems. Steve Critelli said that we should wait and see what the courts do with the language.

The committee also discussed the problem when new laws take effect. It was felt that the legislature was not seriously considering appropriate transition periods on CPLR bills. Paul Aloe said we should just emphasize in our reports when it is a serious problem with a particular bill.

b. Status report on current bills.

Parent/Child Privilege-(S0156/A3604). Paul Aloe reviewed that history of our bill and the competing proposals from the OCA and the Law Revision Committee of the State Legislature. Even the District Attorneys have weighed in stating that they want to give the courts the power to ignore the privilege if good cause is shown. No version passed last year. The big stumbling block is the DAs. Paul said that maybe we should say that the privilege only applies to civil proceedings.

Sharon Gerstman felt that we should go ahead and introduce our own bill. Maurice Chayt said this was already done. Maurice felt that there was a good chance of a bill passing if we agreed with OCA's position on a unilateral privilege since this is what Law Revision wants. Steve Critelli suggested that our committee have a plan of action. Paul recommended that we should attempt to set up a conference with OCA, Law Revision and maybe the DAs in order to hash something out. Steve moved to have this meeting. Maurice moved to amend the proposal to state the meeting should just be with OCA and Law Revision initially and that then it could be decided whether to invite the DAs.

MOTION: THAT THE CPLR COMMITTEE MEET WITH THE OCA AND THE LAW REVISION COMMITTEE TO TRY TO REACH A COMPROMISE REGARDING PARENT-CHILD PRIVELIGE.

Motion was approved unanimously. Paul Aloe, Kim Juhase and Maurice Chayt were appointed as delegates to the meeting.

Motion Practice Bill, A3319 - Paul Aloe stated that OCA has opposed the bill but not the OCA Advisory Committee. OCA fears that the proposal will slow down the wheels of justice. They conducted a survey of clerks of the court which reported that the clerks had no problem with the current law but they did not do a survey of practitioners. It has been very difficult to get OCA to sit down and work with us on the bill. We should continue to push the bill. Sharon Gerstman suggested that we should recruit the Supreme Court Justice's Association to back our bill. They will probably do so. Its not even worth sitting down with the OCA on this.

Commencement of Special Proceedings, A6393-A - Sharon Gerstman reported good news. There were conversations with various legislative people to amend the Senate version to reflect the Assembly version and so we may have a new law.

Discovery of Non-Party Business Records, S03412 - Jim Blair reported. There was general enthusiasm for this bill until the Trial Lawyers took a look at it. They did not like the provision for attorney's fees. We may agree to a possible modification to take out the allowance of attorney fees. Paul Aloe stated that he feels that if the Trial Lawyers really opposes a bill, it will not pass.

3. Affirmative Legislation Proposals of the CPLR Committee.

Proposal to CPLR 3101(i) with respect to timing of disclosure - This proposal was drafted by Steven Curvin. It would give the courts discretion as to the timing of disclosure under CPLR 3101(i). The Committee has already approved the language of this bill. Sharon Gerstman stated that the bill will now go before the Executive Committee for approval and then will be submitted to the legislature.

MOTION: SHOULD THE COMMITTEE APPROVE THE PROPOSED BILL?

Motion passed: 16 Yes; 0 No.

Revised Proposal concerning the effectiveness of orders, upon signature or entry by clerk - Sharon Gerstman reported. This bill would amend CPLR 2220, 5513 and 5515 which would allow certain actions to be taken on an order or judgment upon signature rather than upon entry. The original proposal went to the Executive Committee which did not like orders becoming effective upon signature but did not oppose it if the bill only dealt with appeals. The Executive Committee's greatest concern was the tendency in some counties to have two orders signed. The County Clerk would insure that two orders were not entered. The revised proposal, drafted by Joseph Einstein, now only deals with appeals.

Prof. Chase said that we should find out what the purpose of entry really is. Jim Blair said it may not be significant now that there are good copying machines. Paul Aloe said we should go with the lighter version of the bill, that while you can immediately appeal upon a signed order, the outside date would be service of an order with notice of entry. Sharon moved to amend the proposed bill. However, Prof. Chase then moved to table consideration of the proposed bill and Sharon then withdrew her motion to amend. The motion was seconded.

MOTION: SHOULD CONSIDERATION OF THE PROPOSED BILL BE TABLED?

Motion passed: 13 Yes; 3 No.

4. Legislative Reports

A07118- Amends CPLR 208 regarding toll infancy- David Ham reported that the issue is no longer before the Court of Appeals. Steve Critelli said we should review this issue at our next meeting.

Proposal to Amend CPLR 3101(d) concerning pretrial disclosure of expert witnesses - Steve Critelli said we should review this issue at our next meeting.

Revised Proposal converning the venue of applications in special proceedings - Paul Aloe reported that the original bill was vetoed by the Governor. In that bill, we carved out an exception to the venue requirements that was opposed by the insurance industry. It was decided that a committee be appointed to review all venue provisions for arbitration. The Chairman appointed Maurice Chayt, Jim Gacioch, Michael Greenspan, Paul Aloe, and Steve Critelli to the committee.

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

Kim Steven Juhase, Secretary