Senate Bill S5960

                                 BILL NUMBER:  S5960

 TITLE OF BILL :
An act to amend the civil practice law and rules, in relation to the
time of service, the time in which a defect in form must be raised, a
copy of a proposed amended pleading, the use of subpoenas duces tecum,
and the time of voluntary discontinuances


This is one in a series of measures being introduced at the request of
the Chief Administrative Judge upon the recommendation of her Advisory
Committee on Civil Practice.

This measure would make several technical amendments to the CPLR, in
relation to time of service; time in which a defect in form may be
raised; amended pleadings; use of a subpoena duces tecum; and the time
in which a voluntary discontinuance may be obtained without court
order or stipulation.

I. Time of service. We recommend amendment of CPLR 306-b to correct a
time of service problem that can occur when a court order extending
time for filing is granted pursuant to CPLR section 304. CPLR section
306-b presently requires service of the summons and complaint, summons
with notice, third-party summons and complaint, petition with notice
of petition or order to show cause within 120 days after filing, with
appropriate modifications where the statute of limitations is four
              

months or less. With but one exception, this is fully consistent with
the provision of section 304 that an action or proceeding be commenced
by filing, since valid service cannot be made until the action has
been commenced and that occurs upon filing.

The exception occurs when, pursuant to section 304, a court finds that
circumstances prevent immediate filing and signs an order requiring
the subsequent filing at a specific time and date not later than five
days thereafter. In this instance it is the signing of the order, and
not the filing of the pleading that commences the action or
proceeding. This exception can be and often is utilized in situations
where a party requires a restraining order to prevent the occurrence
of an event on a holiday, weekend or after business hours, when filing
cannot occur but immediate service is critical. In this limited
situation, although the action or proceeding has been commenced,
service often must be made before the order can be filed.  At least
one court has held that, under these circumstances, service was
ineffective because section 306-b mandates service after filing, not
after commencement of the action.

A simple amendment to section 306-b, to provide that service be made
within 120 days "after commencement of the action or proceeding,"
should rectify the problem created by the section 304 exception,
without having any adverse effect upon the more usual situation where
the action is commenced by filing of the pleading. In either event,
whether the action is commenced by filing or by the signing of an
order which extends the time for filing, post commencement service
will occur.

II. Time in which a defect in farm may be raised. We propose an
amendment to CPLR rule 2101(f) to increase the time for raising
objections to defects in form. Currently, the time in which objection
to a defect in form must be raised is only two days from receipt of
the paper objected to. We believe that the two-day period is an
unreasonably short period of time for counsel to review a paper served
and raise objections to it where necessary. Accordingly, we urge that
the period of time be amended from "two" to "fifteen" days.  The
effect of this change will be that the focus of any debate over the
form of a paper will concern solely the proper form and the underlying
facts, not the number of days allowed for objection.
III. Amended pleadings. We recommend amendment of CPLR rule 3025(b) to
require a party moving to amend its pleadings to attach a copy of the
proposed amended pleading to its motion to amend that pleading,
clearly showing the proposed changes to the pleading. Many federal
courts by local rule require the movant to attach the proposed
pleading and to show by redline the changes in the complaint or answer
that the movant proposes.

IV. Use of a subpoena duces tecum. We recommend amendment of CPLR
3122(a) to a court's authority to order production of medical records.
In 2002, on our Advisory Committee's recommendation, CPLR 3122 was
amended, together with several other related CPLR provisions, CPLR
2305(b), 3120, and 3122-a (L.2002,c.575), to make it easier to obtain
discovery documents from a non-party witness and admit them into
evidence.

Designed to become effective on September 1, 2003, the legislation
eliminated the requirement that a party seeking documents from a
non-party witness obtain a court order and a new, less cumbersome
procedure was substituted. Among the changes made to CPLR 3122, which
governs the use of subpoenas duces tecum, was the inclusion, at the
request of the Medical Society, of language protecting non-party
physicians who were served with disclosure subpoenas seeking medical
records. This language was inserted in CPLR 3122 in 2002 to help
protect medical providers from unwittingly violating the
physician-patient privilege by releasing medical records sought by a
subpoena without a patient's approval.

Shortly thereafter, a New York City Civil Court judge in Richmond
County, in Campos v. Payne (2 Misc.3d 921, (2003), held that the
limitations imposed by CPLR 3122 left the Court without authority to
order production of medical records pursuant to a trial subpoena on
the eve of trial without the patient's signed authorization. That was
not our Committee's intent in recommending amendment of CPLR 3122 and
we do not believe the Legislature had that intent in adopting the
Committee's recommendation then. We believe the result in Campos is
inadvisable since courts must always have the authority to order
production of records (including medical records) to resolve
litigation.

Under this measure, the problem would be redressed by directing that a
medical provider served with a subpoena duces tecum must respond if
served with a demand and either an accompanying authorization for the
release of the medical record or a court order.

V. Time in which a voluntary discontinuance may be obtained without
court order or stipulation. Lastly, this measure would amend CPLR
3217(a)(1) to extend the time period in which, at the outset of a
case, a voluntary discontinuance may be obtained without need for a
court order or a stipulation of settlement. This change would give
maximum flexibility to parties who may want to settle claims very
early in the litigation process.

The need for flexibility becomes particularly acute in the early stage
of a case. At present, a party alleging a cause of action in a
complaint, counterclaim, cross-claim, or petition may only
unilaterally discontinue it without court order or stipulation by
serving and filing the requisite notice on all parties "at any time
before a responsive pleading is served or within twenty days after
service of the pleading asserting the claim, whichever is earlier..."
CPLR 3217(a)(1). The proponent of the claim has a very limited period
of time to exercise his or her unlimited right to discontinue the
cause of action. The 20-day limitation applies even: (1) if the
responsive pleading has not yet been served; and (2) if the time to
respond is 30 days. See CPLR 3012(c). In addition, the service of an

amended pleading pursuant to CPLR 3012(c) will not preclude the
application of the 20-day period.

See Fox v. Fox, 85 A.D.2d 653 (2d Dept. 1981). Effectively, no party
may unilaterally discontinue an action by notice beyond 20 days after
service of the pleading asserting the claim.

We recommend that CPLR 3217(a)(1) be amended to permit a voluntary
discontinuance without court order or stipulation before the
responsive pleading is served or within 20 days after service of the
pleading of the claim, whichever is later.

This modification will also bring the CPLR into line with the Federal
Rules of Civil Procedure, which permits a party to discontinue any
time before an answer is due. See Federal Rules of Civil Procedure
41(a). Apparently, when the Civil Practice Act in New York was
modified by the enactment in 1962 of the CPLR the flexibility of the
prior practice was eliminated. That flexibility should be reinstated.

It is necessary to retain the provision of the rule which permits a
voluntary discontinuance without court order or stipulation "...
within 20 days after service of a pleading asserting a claim" to
address the scenario reflected in CPLR 3011 by which a cross-claim may
be asserted, the defendant/proponent does not demand a reply and no
responsive pleading is required. Without the 20 day language, there
would be no provision for the voluntary discontinuance of a
cross-claim.

This measure would take effect January first next after it shall have
become a law.

 2008 LEGISLATIVE HISTORY :
None. New proposal.