NY State Senate Bill 2017-S5637

Archive: Last Bill Status - Stricken

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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	Assembly Actions - Lowercase Senate Actions - UPPERCASE
May 03, 2017	recommit, enacting clause stricken
Apr 24, 2017	referred to judiciary

2017-S5637 (ACTIVE) - Details

See Assembly Version of this Bill:: A5516
Law Section:: Civil Practice Law and Rules
Laws Affected:: Add §8101-a, amd §8303-a, CPLR

2017-S5637 (ACTIVE) - Summary

Requires a court to award reasonable attorneys' fees and costs incurred for meritless actions and abusive lawsuits when it has granted a motion to dismiss for failure to state a cause of action.

2017-S5637 (ACTIVE) - Sponsor Memo

                                 BILL NUMBER:  S5637

 TITLE OF BILL :  An act to amend the civil practice law and rules, in
relation to attorneys' fees and costs for meritless actions and
abusive lawsuits

 PURPOSE OR GENERAL IDEA OF BILL :

Relates to attorney's fees and cost for meritless actions and abusive
lawsuits

 SUMMARY OF PROVISIONS :

Section 1. Courts grant a motion to dismiss for failure to state a
cause of action upon which relief may be granted, the court shall
award the party or parties against whom the dismissed claims were
asserted reasonable attorneys' fees and costs incurred in the
proceeding as a consequence of the dismissed claims.

Section 2.The court shall not require a party to pay attorneys' fees
and cost under this section in excess of fifteen thousand dollars in
any single lawsuit

Section 3a.Does not apply to actions by the state, other government
entities, or public officials acting in their official capacity or
under color of law;

b. any claim that is dismissed by the granting of a motion to dismiss
that was filed more than sixty days after the moving party received
service of the latest complaint, counter-complaint or cross-complaint
in which that dismissed claim was made;

c. Any claim that the party against whom the motion to dismiss was
granted in good faith amended to state a claim upon relief may be
granted;

d. actions by pro se litigants, except where the court also finds that
the pro se party acted unreasonably in bringing, or refusing to
voluntarily withdraw, the dismissed claim

e. any claim which is a good faith, non-frivolous claim for the
express purpose of extending, modifying, or reversing existing
precedent, law or regulation, or for the express purpose of
establishing the meaning, lawfulness or constitutionality of a law,
regulation or constitutional right where the issue is a matter of
first impression or subject to conflicting interpretations.

Section 5a. if in an action to recover damages for personal injury,
injury to property or wrongful death, or an action brought by the
individual who committed a crime against the victim of the crime, and
such action or claim is commenced or continued by a plaintiff or a
counterclaim, defense or cross claim is commenced or continued by a
defendant and is found, at any time during the proceedings or upon
judgement, to be frivolous by the court, the court shall award to the
successful each prevailing party costs and reasonable attorney's fees
not exceeding 25,000 for each frivolous claim, defense or cross claim.

 DIFFERENCE BETWEEN ORIGINAL AND AMENDED VERSION :

N/A

 JUSTIFICATION :

At this moment, it is extremely difficult to get a baseless lawsuit
dismissed in New York. In 2014, singer Collette McLafferty was served
with a lawsuit by a personal injury attorney representing himself.
The lawsuit sought $10 million in damages. This attorney was the
former drummer of a Pink cover band with which Ms. McLafferty had
performed a single concert. She had never actually met him, but in his
filing the lawyer accused Collette of hurting his image - apparently
by being "too unattractive" and "a lousy singer." The lawsuit was
filed in bad faith with the intended goal of harassing and bullying
Ms. McLafferty. She spent nearly $15,000 in legal fees defending
herself, a sum that forced her to give up her apartment of 10 years
and move out of Manhattan. Most troubling, when all was said and done,
the attorney faced no sanctions or reprimand from the court. After two
years of litigation, the case was eventually settled and dismissed,
but she was never fully reimbursed for the damage done. Collette's
struggle was picked up by the media with tabloid headlines focused on
the insulting language found in the court papers.

Lawsuits like this are a drag on our legal system and serve only to
harass and extort a settlement from the defendant. The bill proposed
here authorizes the imposition of monetary sanctions in any civil
action or proceeding upon a written finding of the court that a party
or attorney has brought a claim or employed procedures entirely
without merit and in bad faith. The legislation aims to reimburse
victims of lawsuit abuse as well as deter parties and attorneys from
filing meritless claims.

 PRIOR LEGISLATION HISTORY :

New Bill

 FISCAL IMPLICATIONS :

N/A

 EFFECTIVE DATE :
This act shall take effect immediately.

2017-S5637 (ACTIVE) - Bill Text download pdf

                            
 
                     S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   5637
 
                        2017-2018 Regular Sessions
 
                             I N  S E N A T E
 
                              April 24, 2017
                                ___________
 
 Introduced by Sen. ALCANTARA -- 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 attor-
   neys' fees and costs for meritless actions and abusive lawsuits
 
   THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
 BLY, DO ENACT AS FOLLOWS:
 
   Section 1. The civil practice law and rules is amended by adding a new
 section 8101-a to read as follows:
   §  8101-A. ATTORNEYS' FEES AND COSTS FOR MERITLESS ACTIONS AND ABUSIVE
 ACTIONS.  1. WHERE A COURT GRANTS A MOTION TO  DISMISS  FOR  FAILURE  TO
 STATE  A  CAUSE  OF  ACTION  UPON WHICH RELIEF MAY BE GRANTED, THE COURT
 SHALL AWARD THE PARTY OR PARTIES AGAINST WHOM THE DISMISSED CLAIMS  WERE
 ASSERTED REASONABLE ATTORNEYS' FEES AND COSTS INCURRED IN THE PROCEEDING
 AS A CONSEQUENCE OF THE DISMISSED CLAIMS.
   2.  NOTWITHSTANDING  ANY  OTHER  PROVISION  OF THIS SECTION, THE COURT
 SHALL NOT REQUIRE A PARTY TO PAY ATTORNEYS' FEES AND  COSTS  UNDER  THIS
 SECTION IN EXCESS OF FIFTEEN THOUSAND DOLLARS IN ANY SINGLE LAWSUIT.
   3. THIS SECTION SHALL NOT APPLY TO:
   A.  ACTIONS  BY  THE STATE, OTHER GOVERNMENT ENTITIES, OR PUBLIC OFFI-
 CIALS ACTING IN THEIR OFFICIAL CAPACITY OR UNDER COLOR OF LAW;
   B. ANY CLAIM THAT IS DISMISSED BY THE GRANTING OF A MOTION TO  DISMISS
 THAT  WAS  FILED  MORE  THAN  SIXTY DAYS AFTER THE MOVING PARTY RECEIVED
 SERVICE OF THE LATEST COMPLAINT, COUNTER-COMPLAINT OR CROSS-COMPLAINT IN
 WHICH THAT DISMISSED CLAIM WAS MADE;
   C. ANY CLAIM THAT THE PARTY AGAINST WHOM THE  MOTION  TO  DISMISS  WAS
 GRANTED  IN GOOD FAITH AMENDED TO STATE A CLAIM UPON WHICH RELIEF MAY BE
 GRANTED;
   D. ACTIONS BY PRO SE LITIGANTS, EXCEPT WHERE THE COURT ALSO FINDS THAT
 THE PRO SE PARTY ACTED UNREASONABLY IN BRINGING, OR REFUSING  TO  VOLUN-
 TARILY WITHDRAW, THE DISMISSED CLAIM;
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
                                                            LBD09746-01-7

 S. 5637                             2
 
   E.  ANY  CLAIM  WHICH  IS  A  GOOD  FAITH, NON-FRIVOLOUS CLAIM FOR THE
 EXPRESS PURPOSE OF EXTENDING, MODIFYING, OR  REVERSING  EXISTING  PRECE-
 DENT,  LAW OR REGULATION, OR FOR THE EXPRESS PURPOSE OF ESTABLISHING THE
 MEANING, LAWFULNESS OR CONSTITUTIONALITY OF A LAW, REGULATION OR CONSTI-
 TUTIONAL  RIGHT  WHERE  THE  ISSUE  IS  A  MATTER OF FIRST IMPRESSION OR
 SUBJECT TO CONFLICTING INTERPRETATIONS. THIS SUBDIVISION SHALL NOT APPLY
 WHEN THE PARTY THAT ASSERTED THE DISMISSED  CLAIM  SPECIFICALLY  PLEADED
 THAT THE DISMISSED CLAIM WAS MADE FOR ONE OF THE EXPRESS PURPOSES LISTED
 ABOVE AND CITED THE CONTRARY PRECEDENT OR INTERPRETATION THE PARTY SEEKS
 TO  DISTINGUISH  OR  OVERCOME,  OR  WHETHER THE ISSUE TO BE DECIDED IS A
 MATTER OF FIRST IMPRESSION OR CONFLICTING INTERPRETATIONS  AS  DESCRIBED
 IN THIS SUBDIVISION; OR
   F.  ANY  CLAIM  FOR  WHICH  RELIEF COULD BE GRANTED UNDER A LAW, REGU-
 LATION, A COURT PRECEDENT THAT WAS IN EFFECT AND APPLICABLE TO THE CLAIM
 AT THE TIME THE CLAIM WAS FILED; WHERE THAT LAW, REGULATION,  OR  PRECE-
 DENT  WAS CITED IN THE PLEADING IN WHICH THE DISMISSED CLAIM WAS MADE OR
 IN THE RESPONSE TO THE MOTION TO DISMISS; AND WHERE  COURT  GRANTED  THE
 MOTION  TO  DISMISS  THE  CLAIM DUE TO THE SUBSEQUENT REPEAL, AMENDMENT,
 OVERRULING, OR DISTINGUISHING OF THAT LAW, REGULATION, OR  COURT  PRECE-
 DENT.
   4.  AN  AWARD  PURSUANT  TO  THIS SECTION SHALL BE MADE ONLY AFTER ALL
 APPEALS OF THE ISSUE OF THE GRANTING OF THE MOTION TO DISMISS HAVE  BEEN
 EXHAUSTED  AND  IF  THE  FINAL  OUTCOME IS THE GRANTING OF THE MOTION TO
 DISMISS.
   5. NOTHING IN THIS SECTION SHALL BE CONSTRUED TO LIMIT  THE  AWARD  OF
 ATTORNEYS' FEES, COSTS, OR SANCTIONS AUTHORIZED BY OTHER LAW.
   §  2.  Subdivision (a) of section 8303-a of the civil practice law and
 rules, as amended by chapter 620 of the laws of 1997, is amended to read
 as follows:
   (a) If in an action to recover damages for personal injury, injury  to
 property  or  wrongful death, or an action brought by the individual who
 committed a crime against the victim of the crime, and  such  action  or
 claim  is  commenced  or  continued  by  a  plaintiff or a counterclaim,
 defense or cross claim is commenced or continued by a defendant  and  is
 found, at any time during the proceedings or upon judgment, to be frivo-
 lous  by  the  court,  the  court  shall  award to [the successful] EACH
 PREVAILING party costs and  reasonable  attorney's  fees  not  exceeding
 [ten]  TWENTY-FIVE thousand dollars FOR EACH FRIVOLOUS CLAIM, DEFENSE OR
 CROSS CLAIM.
   § 3. This act shall take effect immediately.

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Senate Bill S5637

Sponsored By

Archive: Last Bill Status - Stricken

2017-S5637 (ACTIVE) - Details

2017-S5637 (ACTIVE) - Summary

2017-S5637 (ACTIVE) - Sponsor Memo

2017-S5637 (ACTIVE) - Bill Text download pdf

Comments

Senate Bill S5637

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Sponsored By

Marisol Alcantara

Archive: Last Bill Status - Stricken

2017-S5637 (ACTIVE) - Details

2017-S5637 (ACTIVE) - Summary

2017-S5637 (ACTIVE) - Sponsor Memo

2017-S5637 (ACTIVE) - Bill Text download pdf

Comments