senate Bill S5077

Signed By Governor
2013-2014 Legislative Session

Relates to conduct of the examination before trial

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Archive: Last Bill Status - Signed by Governor

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

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Assembly Actions - Lowercase
Senate Actions - UPPERCASE
Sep 23, 2014 signed chap.379
Sep 11, 2014 delivered to governor
Jun 09, 2014 returned to senate
passed assembly
ordered to third reading cal.844
substituted for a9077
May 07, 2014 referred to judiciary
delivered to assembly
passed senate
Mar 04, 2014 advanced to third reading
Mar 03, 2014 2nd report cal.
Feb 27, 2014 1st report cal.193
Jan 08, 2014 referred to judiciary
May 08, 2013 referred to judiciary


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S5077 - Bill Details

See Assembly Version of this Bill:
Law Section:
Civil Practice Law and Rules
Laws Affected:
Amd R3113, CPLR

S5077 - Bill Texts

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Relates to conduct of the examination before trial.

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TITLE OF BILL: An act to amend the civil practice law and rules, in
relation to conduct of the examination before trial

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 amend CPLR 3113(c) in relation to participation of
a non-party's counsel in a deposition.

In Thompson v. Mather, 70 AD3d 1436 (4th Dept. 2010), a medical
malpractice action, arrangements had been made for videotaped
depositions - for use at trial (22 NYCRR 202.15) - of plaintiff's
treating physicians. During the course of those depositions, the
attorney for a witness objected to the form and relevance of certain
questions. The Appellate Division ultimately ruled that "counsel for a
nonparty witness does not have a right to object during or otherwise
to participate in a pretrial deposition." The Court principally relied
upon the language of CPLR 3113(c), which provides that the examination
of witnesses at a deposition "shall proceed as permitted in the trial
of actions in open court." And, reasoned the Court, since a
non-party's attorney has no right to interpose objections to questions
asked of the witness at trial, no such right exists at deposition.

While recognizing that the Thompson Court may have correctly
interpreted the literal language of the statute, our Committee
believes that the law should provide otherwise. In reducing counsel
for a deposition witness to a "potted plant" (Sciara v. Surgical
Associates of Western New York, P.C., 32 Misc.3d 904 (Sup. Ct. Erie
Co.2011)), current law, as recognized in Thompson, leaves a non-party
witness essentially unprotected during a deposition. A lay witness may
not, for example, know when to decline to answer a question because it
invades a privilege, or is plainly improper and would, if answered,
cause significant prejudice to any person. Moreover, a likely result
of application of the Thompson ruling is that a party will be
encouraged to depose a potential adverse party before joining that
person as a party to the action, in order to be able to avoid the
objections that a party's lawyer would be able to make at a
post-joinder deposition. Our Committee believes that this strategy
ought not be promoted.

In the Sciara decision cited above, Supreme Court interpreted
Thompson's restrictions as being limited to objections to form or
relevance. That interpretation, if upheld, would ameliorate the
deleterious effects of Thompson. But our Committee believes that a
witness's attorney should be able to protect all of the witness's
interests, and have the same right to object at a deposition as does
an attorney for a party.

Accordingly, we have recommended an amendment to CPLR 3113(c) to
specifically provide that a non-party's counsel "may participate in
the deposition and make objections on behalf of his or her client in
the same manner as counsel for a party."

This measure would have no fiscal impact on the State. It would take
effect immediately and shall apply to all actions pending on such
effective date or commenced on or after such effective date.

2012 Legislative History: Senate 6656-A (Bonacic; NO SAME AS) (Rules)
Assembly 9479 (M. of A. O'Donnell) (Judiciary)

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


                       2013-2014 Regular Sessions

                            I N  S E N A T E

                               May 8, 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 conduct
  of the examination before trial


  Section 1. Subdivision (c) of rule 3113 of the civil practice law  and
rules is amended to read as follows:
  (c)  Examination and cross-examination. Examination and cross-examina-
tion of deponents shall proceed as permitted in the trial of actions  in
THE  SAME MANNER AS COUNSEL FOR A PARTY.  When the deposition of a party
is taken at the instance of an adverse party, the deponent may be cross-
examined by his OR HER own attorney.    Cross-examination  need  not  be
limited to the subject matter of the examination in chief.
  S  2.  This  act  shall take effect immediately and shall apply to all
actions pending on such effective date or commenced  on  or  after  such
effective date.

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


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