Assembly Bill A4993B

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

                                  4993

                       2013-2014 Regular Sessions

                          I N  A S S E M B L Y

                            February 14, 2013
                               ___________

Introduced  by M. of A. FARRELL -- read once and referred to the Commit-
  tee on Judiciary

AN ACT to amend the civil practice law and rules,  in  relation  to  the
  undertaking required during the pendency of a stay of enforcement of a
  judgment  against  a  participating  or non-participating manufacturer
  under the master settlement agreement

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

  Section  1.  This  act  shall  be known and may be cited as "state and
local government master settlement agreement proceeds safeguard act."
  S 2. Legislative intent. New York state,  New  York  city  and  county
governments  throughout  the  state  are  the  recipients of hundreds of
millions of dollars each year under the master settlement agreement. The
total of all master settlement payments to these  governments  over  the
years has so far exceeded eleven billion dollars. These funds are vital-
ly  important and any disruption in these payments would put the recipi-
ents at financial risk. The legislature hereby finds that it is  in  the
public  interest to enact the "state and local government master settle-
ment agreement proceeds safeguard act" in order to continue the flow  of
these  funds  to  the  state  and local governments which depend on this
revenue during the appeal of a judgment against master settlement agree-
ment signatories, affiliates, successors and non-participating  manufac-
turers.
  S  3.  The  civil  practice  law  and rules is amended by adding a new
section 5519-a to read as follows:
  S 5519-A. STAY OF ENFORCEMENT FOR MASTER SETTLEMENT AGREEMENT  PARTIC-
IPATING OR NON-PARTICIPATING MANUFACTURERS OR THEIR SUCCESSORS OR AFFIL-
IATES.  (A)  IN  CIVIL  LITIGATION  UNDER  ANY  LEGAL THEORY INVOLVING A
PARTICIPATING MANUFACTURER OR NON-PARTICIPATING MANUFACTURER,  AS  THOSE
TERMS  ARE  DEFINED  IN THE MASTER SETTLEMENT AGREEMENT, OR ANY OF THEIR
SUCCESSORS OR AFFILIATES, THE UNDERTAKING REQUIRED DURING  THE  PENDENCY

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD08897-01-3
              

A. 4993                             2

OF ALL APPEALS OR DISCRETIONARY REVIEWS BY ANY APPELLATE COURTS IN ORDER
TO STAY THE EXECUTION OF ANY JUDGMENT OR ORDER GRANTING LEGAL, EQUITABLE
OR  OTHER RELIEF DURING THE ENTIRE COURSE OF APPELLATE REVIEW, INCLUDING
REVIEW  BY THE UNITED STATES SUPREME COURT, SHALL BE SET PURSUANT TO THE
APPLICABLE PROVISIONS OF LAW OR COURT RULES; PROVIDED, HOWEVER, THAT THE
TOTAL UNDERTAKING REQUIRED OF  ALL  APPELLANTS  COLLECTIVELY  SHALL  NOT
EXCEED TWO HUNDRED FIFTY MILLION DOLLARS, REGARDLESS OF THE VALUE OF THE
JUDGMENT  APPEALED.  THIS LIMITATION SHALL APPLY ONLY IF APPELLANTS FILE
AT LEAST THIRTY PERCENT OF THE TOTAL AMOUNT OF THE  UNDERTAKING  IN  THE
FORM  OF  CASH,  A  LETTER OF CREDIT, A CERTIFICATE OF DEPOSIT, OR OTHER
CASH EQUIVALENT WITH THE COURT. THE CASH OR  CASH  EQUIVALENT  SHALL  BE
DEPOSITED BY THE CLERK OF THE COURT IN THE ACCOUNT OF THE COURT, AND ANY
INTEREST EARNED SHALL BE UTILIZED AS PROVIDED BY LAW.
  (B) NOTWITHSTANDING THE PROVISIONS OF SUBDIVISION (A) OF THIS SECTION,
UPON  PROOF  BY A PREPONDERANCE OF THE EVIDENCE, BY AN APPELLEE, THAT AN
APPELLANT IS DISSIPATING ASSETS OUTSIDE THE COURSE OF ORDINARY  BUSINESS
TO  AVOID  PAYMENT  OF  A JUDGMENT, A COURT MAY REQUIRE THE APPELLANT TO
POST A BOND IN AN AMOUNT UP TO THE TOTAL AMOUNT OF THE JUDGMENT.
  (C) AS USED IN THIS SECTION, "MASTER SETTLEMENT AGREEMENT" SHALL  HAVE
THE  SAME  MEANING  AS SET FORTH IN SUBDIVISION FIVE OF SECTION THIRTEEN
HUNDRED NINETY-NINE-OO OF THE PUBLIC HEALTH LAW.
  S 4. This act shall take effect on the thirtieth day  after  it  shall
have  become a law, and shall apply to any cause of action pending on or
filed on or after such effective date.

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

                                 4993--A

                       2013-2014 Regular Sessions

                          I N  A S S E M B L Y

                            February 14, 2013
                               ___________

Introduced  by  M. of A. FARRELL, ORTIZ, WRIGHT, MAGNARELLI -- read once
  and referred to the Committee on Judiciary  --  committee  discharged,
  bill  amended,  ordered  reprinted  as amended and recommitted to said
  committee

AN ACT to amend the civil practice law and rules,  in  relation  to  the
  undertaking required during the pendency of a stay of enforcement of a
  judgment  against  a  participating  or non-participating manufacturer
  under the master settlement agreement

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

  Section 1.  Legislative intent. The legislature hereby finds that this
amendment  of the laws governing the security necessary to stay enforce-
ment of a judgment while on appeal is necessary to preserve the  revenue
stream to the state provided under the master settlement agreement.
  S  2.  The  civil  practice  law  and rules is amended by adding a new
section 5519-a to read as follows:
  S 5519-A. STAY OF ENFORCEMENT FOR MASTER SETTLEMENT AGREEMENT  PARTIC-
IPATING  AND NON-PARTICIPATING MANUFACTURERS OR THEIR SUCCESSORS. (A) IN
CIVIL LITIGATION UNDER ANY LEGAL THEORY THAT INVOLVES A PARTICIPATING OR
NON-PARTICIPATING MANUFACTURER, AS THOSE TERMS ARE DEFINED IN THE MASTER
SETTLEMENT AGREEMENT, OR ANY OF THEIR PARENTS OR SUCCESSORS, THE  UNDER-
TAKING  REQUIRED  DURING  THE  PENDENCY  OF ALL APPEALS OR DISCRETIONARY
REVIEWS BY ANY APPELLATE COURTS IN ORDER TO STAY THE  EXECUTION  OF  ANY
JUDGMENT  OR  ORDER GRANTING LEGAL, EQUITABLE OR OTHER RELIEF DURING THE
ENTIRE COURSE OF APPELLATE REVIEW, INCLUDING REVIEW BY THE UNITED STATES
SUPREME COURT, SHALL BE SET PURSUANT TO THE APPLICABLE PROVISIONS OF LAW
OR COURT RULES; PROVIDED, HOWEVER, THAT THE TOTAL  UNDERTAKING  REQUIRED
OF  ALL  APPELLANTS  COLLECTIVELY  SHALL  NOT  EXCEED  TWO HUNDRED FIFTY
MILLION DOLLARS, REGARDLESS OF  THE  VALUE  OF  THE  JUDGMENT  APPEALED.
WHERE  THE  COURT  SETS THE UNDERTAKING IN AN AMOUNT LESS THAN THE JUDG-
MENT, THE APPEAL SHALL BE DILIGENTLY PROSECUTED IN GOOD FAITH.   IF  THE

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD08897-03-3
              

A. 4993--A                          2

APPEAL  IS  NOT  DILIGENTLY PROSECUTED IN GOOD FAITH, THE COURT MAY LIFT
THE STAY OF ENFORCEMENT. IN ADDITION, IF A DEFENDANT FAILS TO  MAKE  ANY
PAYMENTS  TO  THE STATE OR ITS POLITICAL SUBDIVISIONS AS MAY BE REQUIRED
UNDER  THE  MASTER  SETTLEMENT  AGREEMENT,  EXCEPT FOR PAYMENTS THAT ARE
DISPUTED IN GOOD FAITH, THE COURT SHALL HAVE DISCRETION TO LIFT THE STAY
OF ENFORCEMENT.
  (B) NOTWITHSTANDING THE PROVISIONS OF SUBDIVISION (A) OF THIS SECTION,
UPON A FINDING BY THE COURT THAT  AN  APPELLANT  IS  DISSIPATING  ASSETS
OUTSIDE  THE COURSE OF ORDINARY BUSINESS TO AVOID PAYMENT OF A JUDGMENT,
THE COURT MAY LIFT THE STAY OF ENFORCEMENT OR REQUIRE THE  APPELLANT  TO
POST A BOND IN AN AMOUNT UP TO THE TOTAL AMOUNT OF THE JUDGMENT.
  (C)  UPON A SHOWING OF GOOD CAUSE THAT THE APPELLANT IS NOT DILIGENTLY
PROSECUTING THE APPEAL IN GOOD FAITH AS SET FORTH IN SUBDIVISION (A)  OF
THIS SECTION OR IS DISSIPATING ASSETS AS SET FORTH IN SUBDIVISION (B) OF
THIS  SECTION,  AN  APPELLATE  COURT MAY LIFT THE STAY OF ENFORCEMENT OR
REQUIRE APPELLANT TO POST A BOND IN AN AMOUNT UP TO THE TOTAL AMOUNT  OF
THE JUDGMENT.
  (D)  AS USED IN THIS SECTION, "MASTER SETTLEMENT AGREEMENT" SHALL HAVE
THE SAME MEANING AS SET FORTH IN SUBDIVISION FIVE  OF  SECTION  THIRTEEN
HUNDRED NINETY-NINE-OO OF THE PUBLIC HEALTH LAW.
  (E)  NOTHING  CONTAINED  IN  THIS SECTION SHALL BE READ TO ALLOW:  (I)
SUCH PARTICIPATING MANUFACTURER  TO  CURTAIL  ITS  FINANCIAL  OBLIGATION
UNDER  THE  MASTER  SETTLEMENT AGREEMENT; OR (II) SUCH NON-PARTICIPATING
MANUFACTURER TO CURTAIL ITS OBLIGATION TO PLACE THE AMOUNTS SPECIFIED IN
SUBDIVISION TWO OF SECTION THIRTEEN HUNDRED NINETY-NINE-PP OF THE PUBLIC
HEALTH LAW INTO A QUALIFIED ESCROW FUND AS DEFINED IN SUBDIVISION SIX OF
SECTION THIRTEEN HUNDRED NINETY-NINE-OO OF THE PUBLIC HEALTH LAW.
  S 3. This act shall take effect on the thirtieth day  after  it  shall
have  become a law, and shall apply to any cause of action pending on or
filed on or after such effective date.