NY State Senate Bill 2011-S4459

Archive: Last Bill Status - In Senate Committee Judiciary Committee

Introduced
- In Committee Assembly
- In Committee Senate
- On Floor Calendar Assembly
- On Floor Calendar Senate
- Passed Assembly
- Passed Senate
Delivered to Governor
Signed By Governor

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Date of Action	Assembly Actions - Lowercase Senate Actions - UPPERCASE
Jan 04, 2012	referred to judiciary
Apr 06, 2011	referred to judiciary

2011-S4459 (ACTIVE) - Details

Current Committee:: Senate Judiciary
Law Section:: Civil Practice Law and Rules
Laws Affected:: Amd R3406, CPLR

2011-S4459 (ACTIVE) - Summary

Relates to the notice of medical, dental or podiatric malpractice action.

2011-S4459 (ACTIVE) - Sponsor Memo

                                BILL NUMBER:S4459

TITLE OF BILL:
An act
to amend the civil practice law and rules, in relation to the notice of
medical, dental or podiatric malpractice action

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 eliminate the "notice of medical malpractice
action", now required by CPLR 3406 and Uniform Rule 202.56 (22
NYCRR §202.56), while retaining the current requirement that, in
medical malpractice and similar actions, the Request for Judicial
Intervention be filed within 60 days of joinder of issue.

CPLR 3406 was enacted in 1985 (L. 1985, c. 294) as part of a series of
reforms applicable to tort and medical malpractice actions. As
subsequently amended, it requires the filing of a "notice of dental,
medical or podiatric malpractice action" in those types of actions
and authorizes the Chief Administrator to adopt special calendar
rules for such actions. Following this mandate, the Chief
Administrator has adopted Uniform Rule 202.56, which contains
detailed provisions setting forth the requirements of the notice and
attachments to the notice, as well as a requirement that in such

cases a Request for Judicial Intervention be filed within sixty days
of joinder of issue. The rule also sets forth detailed requirements
for a preliminary conference to be held shortly after the filing, and
provides for penalties for failure to comply.

The notice of medical malpractice action is an anachronism, serving no
discernible purpose today. Its elimination will end an unnecessary
burden upon attorneys without in any way affecting this type
of litigation. However, requiring the early filing of a Request for
Judicial Intervention assures that courts will begin to oversee and
supervise these
cases at an early stage. We believe that this is useful, and, in fact,
would like to see this early supervision extended to other cases at
such time as the courts have the resources to increase their workload.

To achieve these objectives, we propose amendment of CPLR 3406 to
eliminate an of the provisions of that section except those that
authorize that Chief Administrator to adopt special calendar rules
for dental, medical or podiatric malpractice actions, to prescribe
the time for filing a Request for Judicial Intervention and to
provide for a preliminary conference as soon as practical following
such filing. We also propose amendment of the statute to grant the
same authority for such other actions as the Chief Administrator may
deem appropriate, thereby giving her the discretion to expand the
requirements beyond the cases now covered.

Should this measure be enacted, our Advisory Committee has proposed
that Uniform Rule 202.56 be amended to eliminate all of the
requirements for a notice of medical malpractice action and all of
the rules governing the preliminary conference, leaving those rules


to the more general rules contained in Rule 202.6. The amended rule
should be substantially narrowed so as to provide only that, in
dental, medical or podiatric malpractice actions, the Request for
Judicial Intervention must be filed, as it is now, within sixty days
of joinder of issue, and that this filing result in assignment to a
judge.
Current provisions dealing with the need for motions on missing the
deadline and sanctions for late filing should be eliminated, as the
Committee believes that this causes unnecessary side issues to be
brought into the litigation.

In sum, we propose that the essentials of current calendar practice in
dental, medical and podiatric malpractice actions be retained while
those requirements that are burdensome and unnecessary be eliminated.

This measure would have no fiscal impact on the State. It would take
effect the first of January next succeeding the date it becomes a law.

Legislative History:
OCA 2010-57

2011-S4459 (ACTIVE) - Bill Text download pdf

                            
                    S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                  4459

                       2011-2012 Regular Sessions

                            I N  S E N A T E

                              April 6, 2011
                               ___________

Introduced by Sen. HANNON -- (at request of the Office of Court Adminis-
  tration)  --  read  twice  and ordered printed, and when printed to be
  committed to the Committee on Judiciary

AN ACT to amend the civil practice law and rules,  in  relation  to  the
  notice of medical, dental or podiatric malpractice action

  THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:

  Section 1. Rule 3406 of the civil practice law and rules, as added  by
chapter  294 of the laws of 1985, the rule heading as amended by chapter
184 of the laws of 1988, subdivision (a) as amended by  chapter  485  of
the  laws of 1986, subdivision (b) as amended by chapter 165 of the laws
of 1991, is amended to read as follows:
  Rule 3406. [Mandatory filing and pre-calendar] PRE-CALENDAR conference
in dental, podiatric and medical  malpractice  actions.  [(a)  Mandatory
filing. Not more than sixty days after issue is joined, the plaintiff in
an  action  to recover damages for dental, medical or podiatric malprac-
tice shall file with the clerk of the  court  in  which  the  action  is
commenced  a  notice of dental, medical or podiatric malpractice action,
on a form to be specified by the  chief  administrator  of  the  courts.
Together  with  such  notice,  the  plaintiff  shall  file: (i) proof of
service of such notice upon all other parties to the action; (ii)  proof
that,  if  demanded, authorizations to obtain medical, dental, podiatric
and hospital records have been served upon the defendants in the action;
and (iii) such other papers as may be required to be filed  by  rule  of
the  chief  administrator of the courts. The time for filing a notice of
dental, medical or podiatric malpractice action may be extended  by  the
court  only  upon a motion made pursuant to section two thousand four of
this chapter.
  (b) Pre-calendar conference.] The chief administrator of  the  courts,
in  accordance with such standards and administrative policies as may be
promulgated pursuant to section  twenty-eight  of  article  six  of  the

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD09321-02-1

S. 4459                             2

constitution,  shall adopt special calendar control rules for actions to
recover damages for dental, podiatric or medical  malpractice,  AND  FOR
SUCH  OTHER  ACTIONS  AS  THE  CHIEF ADMINISTRATOR MAY DEEM APPROPRIATE.
Such  rules  shall [require a pre-calendar conference in such an action,
the purpose of which shall include, but not be limited  to,  encouraging
settlement,  simplifying or limiting issues and establishing a timetable
for disclosure, establishing a  timetable  for  offers  and  depositions
pursuant  to  subparagraph  (ii)  of paragraph one of subdivision (d) of
section thirty-one hundred one of this chapter, future conferences,  and
trial.  The timetable for disclosure shall provide for the completion of
disclosure not later than twelve months  after  the  notice  of  dental,
podiatric  or  medical  malpractice  is filed and shall require that all
parties be ready for the trial of  the  case  not  later  than  eighteen
months  after  such notice is filed. The initial pre-calendar conference
shall be held after issue is joined in a case but before a note of issue
is filed. To the extent feasible, the justice convening the pre-calendar
conference shall hear and decide all subsequent pre-trial motions in the
case and shall be assigned the trial of the case. The chief  administra-
tor  of  the  courts  also  shall provide for the imposition of costs or
other sanctions, including imposition  of  reasonable  attorney's  fees,
dismissal  of an action, claim, cross-claim, counterclaim or defense, or
rendering a judgment by default for failure of  a  party  or  a  party's
attorney  to  comply  with  these  special calendar control rules or any
order of a court made thereunder. The chief administrator of the courts,
in the exercise of  discretion,  may  provide  for  exemption  from  the
requirement  of  a pre-calendar conference in any judicial district or a
county where there exists no demonstrated  need  for  such  conferences]
PRESCRIBE  A  TIME  FOR  FILING  A REQUEST FOR JUDICIAL INTERVENTION AND
REQUIRE A PRELIMINARY CONFERENCE AS SOON  AS  PRACTICAL  FOLLOWING  SUCH
FILING.
  S  2. This act shall take effect on the first of January next succeed-
ing the date on which it shall have become a law.

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Senate Bill S4459

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Archive: Last Bill Status - In Senate Committee Judiciary Committee

Actions

2011-S4459 (ACTIVE) - Details

2011-S4459 (ACTIVE) - Summary

2011-S4459 (ACTIVE) - Sponsor Memo

2011-S4459 (ACTIVE) - Bill Text download pdf

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Sponsored By

Kemp Hannon

Archive: Last Bill Status - In Senate Committee Judiciary Committee

Actions

2011-S4459 (ACTIVE) - Details

2011-S4459 (ACTIVE) - Summary

2011-S4459 (ACTIVE) - Sponsor Memo

2011-S4459 (ACTIVE) - Bill Text download pdf

Comments