senate Bill S4763

2013-2014 Legislative Session

Relates to broadening expert disclosure in commercial cases

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Archive: Last Bill Status - In Committee


  • Introduced
  • In Committee
  • On Floor Calendar
    • Passed Senate
    • Passed Assembly
  • Delivered to Governor
  • Signed/Vetoed by Governor

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Actions

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Assembly Actions - Lowercase
Senate Actions - UPPERCASE
Jun 20, 2014 committed to rules
Feb 11, 2014 advanced to third reading
Feb 10, 2014 2nd report cal.
Feb 04, 2014 1st report cal.109
Jan 08, 2014 referred to judiciary
returned to senate
died in assembly
Jun 21, 2013 referred to judiciary
Jun 20, 2013 delivered to assembly
passed senate
Jun 10, 2013 ordered to third reading cal.1203
committee discharged and committed to rules
Apr 23, 2013 referred to judiciary

Votes

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Feb 4, 2014 - Judiciary committee Vote

S4763
22
0
committee
22
Aye
0
Nay
0
Aye with Reservations
0
Absent
0
Excused
0
Abstained
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Jun 10, 2013 - Rules committee Vote

S4763
23
0
committee
23
Aye
0
Nay
2
Aye with Reservations
0
Absent
0
Excused
0
Abstained
show Rules committee vote details

S4763 - Bill Details

Current Committee:
Law Section:
Civil Practice Law and Rules
Laws Affected:
Amd §3101, CPLR

S4763 - Bill Texts

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Relates to broadening expert disclosure in commercial cases.

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BILL NUMBER:S4763

TITLE OF BILL: An act to amend the civil practice law and rules, in
relation to broadening expert disclosure in commercial cases

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.

One of the main objectives of the Commercial Division is to provide "a
world class forum for the resolution of commercial disputes."{1} Chief
Judge Kaye, Commercial Litigation in New York State Courts § 1.7, at
p.16 (Haig 4B West's NY Prac Series). To attain that objective, the
State must relax certain restrictions on expert disclosure imposed by
the CPLR (see id. at pp. 3-4) to address the special needs of
substantial commercial cases. Accordingly, we believe that limited
amendments to the expert disclosure statute, CPLR 3101, would promote
more efficient and thorough preparation by attorneys in commercial
actions and speedier resolution of those actions, thereby encouraging
commercial litigants to use our court system. Thus, we promote this
amendment to CPLR 3101(d)(1)(i) that would allow for greater expert
disclosure in commercial actions. CPLR 3101(d)(1)(i) provides for the
furnishing, upon request of a party, of a statement regarding an
expert whom the adversary intends to call at trial. That provision
authorizes further disclosure concerning the expected testimony of an
expert only by court order "upon a showing of special circumstances."
The courts have interpreted "special circumstances" narrowly,
generally confining it to instances in which the critical physical
evidence in a case has been destroyed after its inspection by an
expert for one side but before its inspection by the expert for the
other, and certain other, similarly limited situations. E.g., Adams
Lighting Corp. v First Central Ins. Co., 230 AD2d 757 (2d Dept. 1996);
The Hartford v Black & Decker, 221 AD2d 986 (4th Dept. 1995); Rosario
v General Motors Corp., 148 AD2d 108 (1st Dept. 1989); Connors,
Practice Commentaries, McKinney's Cons Laws of NY, Book 713,
C:3101:29A.

We believe that, on balance, the current rules governing expert
disclosure work reasonably well in cases other than commercial cases.
Therefore, we propose that CPLR 3101(d)(1)(i) be modified to permit
additional expert disclosure in substantial commercial cases only.
The issues addressed by experts in commercial cases often are complex,
touching on nuanced economic, financial and corporate principles, such
as how stock or other securities should be valued; how a business
should be valued; or whether the financial analysis of a board of
directors was sound under the circumstances. In addition to presenting
difficult legal and factual issues, commercial cases often involve
substantial sums of money or impact corporate governance. Generous
expert disclosure is available in virtually all other forums,
including all other state courts and the Federal courts, see Federal
Rules Civil Procedure 26. A modern forum for the resolution of
commercial disputes is essential for New York to maintain its
prominence as an international financial center; and, unless
meaningful expert disclosure is routinely available in commercial
actions, New York's efforts to maintain its financial dominance may be
seriously compromised. Accordingly, we believe that additional expert
disclosure in commercial cases should be permitted to provide the


world class forum for the resolution of commercial disputes the State
needs.

Under this measure, CPLR 3101(d)(1)(iii) would be divided into two
subparts. The first, subpart (A), would retain the existing provisions
of (d)(1)(iii), which would apply to most cases, including smaller
commercial cases. These commercial cases usually are less complex than
those involving larger sums, and more extensive disclosure of experts
would be disproportionately costly. However, in commercial cases in
which $250,000 or more is found by the court to be in controversy, the
amendment, in the form of a new subpart (B), would expressly authorize
the court to allow further disclosure of experts expected to testify
at trial. Under this proposal, the applicant would be obliged to show
that the need for that disclosure outweighs the concomitant expense
and delay to any party; and to demonstrate that traditional expert
discovery as provided for by CPLR 3101(d)(1)(i) would not suffice.
However, the applicant would not have to demonstrate "special
circumstances" as currently construed by the case law, which would
remain the standard for all cases other than this group of substantial
commercial cases. Because this measure would require the court to
weigh the risk that the proposed disclosure might be unduly expensive
or cause unreason able delay, the court should normally inquire, if
further disclosure is found necessary, whether a particular form of
disclosure would be more appropriate, including less expensive and
time-consuming, than another.

"Commercial action" is defined so as to include the most common forms
of such disputes, and a measure of flexibility is provided for. The
definition expressly excludes personal injury, wrongful death,
matrimonial and certain other matters.

Under this measure, if the court determined that a deposition were in
order, it could set reasonable boundaries on the breadth of the
matters to be inquired into and the length of the deposition. The
measure provides that unless it is unreasonable, the court shall
require that the inquiring party pay a reasonable fee to the expert in
the case of deposition disclosure, since this seems the fairest
approach in most instances.

The measure provides that the further disclosure of experts authorized
by the court shall take place at such time as the court deems
appropriate. In contrast with the practice in most personal injury
matters, experts in commercial cases are often retained at an early
point, In large commercial cases, many of which are litigated in the
Commercial Division around the state, the court is expected to, and
does, engage in extensive supervision of disclosure proceedings and
establish a comprehensive disclosure schedule, which would include an
appropriate deadline for further expert disclosure, if ordered.

This measure, which would have no fiscal impact on the State, would
take effect immediately.

2009 Legislative History: OCA 2009-43
2011-12 Legislative History: OCA 2011-7 Senate 4592 (Bonacic)
Judiciary


{1} The Commercial Division consists of special parts of Supreme Court
established in selected venues around the State for the dual purpose
of improving the efficiency with which commercial litigation is
resolved and enhancing the quality of judicial treatment of such
litigation.

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

                                  4763

                       2013-2014 Regular Sessions

                            I N  S E N A T E

                             April 23, 2013
                               ___________

Introduced  by Sen. BONACIC -- (at request of the Office of Court Admin-
  istration) -- 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 broad-
  ening expert disclosure in commercial cases

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

  Section  1.  Subparagraph  (iii)  of paragraph 1 of subdivision (d) of
section 3101 of the civil practice law and rules, as amended by  chapter
184 of the laws of 1988, is amended to read as follows:
  (iii)  (A) Further disclosure concerning the expected testimony of any
expert may be obtained only by court order upon  a  showing  of  special
circumstances   and  subject  to  SUCH  restrictions  as  to  scope  and
provisions concerning fees and expenses as the court may deem  appropri-
ate.  However, a party, without court order, may take the testimony of a
person authorized to practice medicine, dentistry or podiatry who is the
party's treating or retained expert, as described in paragraph three  of
subdivision (a) of this section, in which event any other party shall be
entitled  to the full disclosure authorized by this article with respect
to that expert without court order.
  (B) NOTWITHSTANDING ANY  OTHER  PROVISION  OF  THIS  SECTION,  IN  ANY
COMMERCIAL  ACTION  IN  WHICH  THE  AMOUNT IN CONTROVERSY APPEARS TO THE
COURT TO BE TWO HUNDRED FIFTY THOUSAND DOLLARS OR MORE, THE COURT, WITH-
OUT REQUIRING A SHOWING OF SPECIAL CIRCUMSTANCES BUT UPON A  SHOWING  BY
ANY PARTY THAT THE NEED OUTWEIGHS THE RESULTING EXPENSE AND DELAY TO ANY
PARTY,  MAY  AUTHORIZE SUCH FURTHER DISCLOSURE OF AN EXPERT, INCLUDING A
DEPOSITION, SUBJECT TO SUCH RESTRICTIONS  AS  TO  SCOPE  AND  PROVISIONS
CONCERNING  FEES  AND  EXPENSES  AS  THE COURT MAY DEEM APPROPRIATE. FOR
PURPOSES OF THIS SUBPARAGRAPH, A "COMMERCIAL ACTION" IS AN ACTION ALLEG-
ING BREACH OF CONTRACT, BREACH OF FIDUCIARY DUTY,  OR  MISREPRESENTATION
OR  OTHER TORT, ARISING OUT OF, OR RELATING TO, BUSINESS TRANSACTIONS OR

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD10096-01-3

S. 4763                             2

THE AFFAIRS OF  BUSINESS  ORGANIZATIONS;  OR  INVOLVING  OTHER  BUSINESS
CLAIMS  DETERMINED  BY THE COURT TO BE COMMERCIAL, BUT SHALL NOT INCLUDE
PERSONAL INJURY, WRONGFUL DEATH, MATRIMONIAL, OR FORECLOSURE ACTIONS, OR
LANDLORD-TENANT MATTERS NOT INVOLVING BUSINESS LEASES.
  S  2.  This  act shall take effect immediately, and shall apply to all
rules or orders requiring the service of expert responses  issued  prior
to, on or after such effective date.

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