NY State Senate Bill 2017-S8918

Senate Bill S8918

2017-2018 Legislative Session

Requires all actions for personal injury or wrongful death to include a general prayer for relief

download bill text pdf

Archive: Last Bill Status - In Senate Committee Rules 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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	Assembly Actions - Lowercase Senate Actions - UPPERCASE
Jun 04, 2018	referred to rules

2017-S8918 (ACTIVE) - Details

See Assembly Version of this Bill:: A8852
Current Committee:: Senate Rules
Law Section:: Civil Practice Law and Rules
Laws Affected:: Amd R305 & §3017, CPLR; amd §50-e, Gen Muni L
Versions Introduced in 2019-2020 Legislative Session:: S1887, A7973

2017-S8918 (ACTIVE) - Summary

Requires the summons with notice in a cause of action for personal injury or wrongful death to include a prayer for general relief.

2017-S8918 (ACTIVE) - Sponsor Memo

                                
 
BILL NUMBER: S8918

SPONSOR: O'MARA
 
TITLE OF BILL:  An act to amend the civil practice law and rules, in
relation to requiring all personal injury or wrongful death causes of
action to include a prayer for general relief; and to amend the general
municipal law, in relation to exempting notices of claim from such
requirement

 
PURPOSE OR GENERAL IDEA OF BILL:

To amend sections 305 (b) and 3017 of the civil practice law and rules,
as well as a conforming change to section 50-e of the general municipal
law, to prohibit the inclusion in a summons with notice of a prayer for
specific monetary relief in actions for personal injury or wrongful
death.

 
SUMMARY OF PROVISIONS:

Section 1 of this bill amends subdivision b of rule 305 of the civil
practice law and rules, regarding the inclusion in a summons with notice

for personal injury or wrongful death.

Section 2 amends subdivision c of section 3017 of the civil practice law
and rules to include prayer for general relief for all personal injury
or wrongful death causes of action.

Section 3 amends subdivision 2 of section 50-e of the general municipal
law to account for both sexes-male and female.

Section 4 establishes the effective date.

 
JUSTIFICATION:

In 2003, CPLR 3017 was amended to broaden the proscription against
including prayers for specific money damages from medical or dental
malpractice actions against municipalities, to all types of personal
injury or wrongful death actions. Chapter 694 of 2003.

This chapter proscribed including such prayers for relief in a
complaint, counter-claim, cross-claim, interpleader complaint, and a
third-party complaint in these types of actions.

The sponsor's memo for said bill explained the rationale for same as
follows:

At the outset of a personal injury case, it is difficult to fairly esti-
mate what the plaintiff's total damages may be. Present law encourages
claimants and their lawyers to claim a large dollar amount for damages,
out of a concern that a demand may turn out to be too low and, there-
fore, limit an eventual recovery. This bill would extend to all personal
injury and wrongful death cases the rule that presently exists for
medical and dental malpractice cases and cases against municipalities.

However, the above-described methods of commencing an action did not
include all manner of commencement of an action. Specifically, an action
can be brought by filing and serving a summons with notice pursuant to
CPLR 304 (a) and CPLR 305 (b), but without complying with CPLR 3017, as
commencement via summons with notice was not among the methods of bring-
ing a claim as set forth in Chapter 694 of 2003.  While noted Professor
David Siegel had oft cautioned attorneys not to commence actions in this
manner, there have been instances where commencement in this fashion has
nevertheless occurred.

E.g.  http://www.newyorkpersonalinjuryanorneyblog.com/2017/06/about-eric
bollings50-milliondefamation-suit-and-the-ad-dammun-clause-loophole.h
tml

This bill adds "summons with notice" to the above list of methods of
bringing a claim such as would proscribe a prayer for specific monetary
relief, thus eliminating a statutory loophole concerning commencement of
personal injury and wrongful death actions.

The bill also makes a conforming change to section 50-e of the general
municipal law to eliminate the requirement that an amount be specif-
ically sought by a claimant in a notice of claim for cities over one
million in population. Previous amendments to the general municipal law
and court of claims act had eliminated this requirement for claims
against smaller localities and claims against the state.  Nevertheless,
a governmental entity covered by section 50-e may still issue a request
for particularized damages information via supplemental demand. Thus, no
party would be prejudiced by such an amendment.

 
PRIOR LEGISLATIVE HISTORY:

New bill.

 
FISCAL IMPLICATIONS FOR STATE AND LOCAL GOVERNMENTS:

None.

 
EFFECTIVE DATE:
The thirtieth day after it shall become law, and shall apply to all
actions commenced after such date.

2017-S8918 (ACTIVE) - Bill Text download pdf

                            
 
                     S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   8918
 
                             I N  S E N A T E
 
                               June 4, 2018
                                ___________
 
 Introduced  by  Sen.  O'MARA -- read twice and ordered printed, and when
   printed to be committed to the Committee on Rules
 
 AN ACT to amend the civil practice law and rules, in relation to requir-
   ing all personal injury or wrongful death causes of action to  include
   a  prayer  for general relief; and to amend the general municipal law,
   in relation to exempting notices of claim from such requirement

   THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
 BLY, DO ENACT AS FOLLOWS:
 
   Section  1.  Subdivision (b) of rule 305 of the civil practice law and
 rules, as amended by chapter 528 of the laws of 1978, is amended to read
 as follows:
   (b) Summons and notice.   If the complaint  is  not  served  with  the
 summons,  the  summons  shall  contain or have attached thereto a notice
 stating the nature of the action and the relief sought[,] and, except in
 [an action for medical  malpractice]  ACTIONS  FOR  PERSONAL  INJURY  OR
 WRONGFUL DEATH, the sum of money for which judgment may be taken in case
 of default.
   §  2.  Subdivision  (c)  of section 3017 of the civil practice law and
 rules, as amended by chapter 694 of the laws of 2003, is amended to read
 as follows:
   (c) Personal injury or wrongful death actions. In an action to recover
 damages for personal injuries or wrongful death, the complaint,  SUMMONS
 WITH  NOTICE,  counterclaim,  cross-claim,  interpleader  complaint, and
 third-party complaint shall contain a  prayer  for  general  relief  but
 shall not state the amount of damages to which the pleader deems himself
 OR  HERSELF entitled. If the action is brought in the supreme court, the
 pleading shall also state whether or not the amount  of  damages  sought
 exceeds the jurisdictional limits of all lower courts which would other-
 wise  have jurisdiction. Provided, however, that a party against whom an
 action to recover damages for personal injuries  or  wrongful  death  is
 brought, may at any time request a supplemental demand setting forth the
 total  damages to which the pleader deems himself OR HERSELF entitled. A
 supplemental demand shall be provided by the party bringing  the  action
 within fifteen days of the request. In the event the supplemental demand
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets

                       [ ] is old law to be omitted.
                                                            LBD13919-04-8

 S. 8918                             2
 
 is  not served within fifteen days, the court, on motion, may order that
 it be served.  A supplemental demand served pursuant to this subdivision
 shall be treated in all respects as a demand made pursuant  to  subdivi-
 sion (a) of this section.
   §  3.  Subdivision  2 of section 50-e of the general municipal law, as
 amended by chapter 62 of the  laws  of  1983,  is  amended  to  read  as
 follows:
   2.  Form of notice; contents. The notice shall be in writing, sworn to
 by or on behalf of the claimant, and shall set forth: (1) the  name  and
 post-office  address  of  each  claimant, and of his OR HER attorney, if
 any; (2) the nature of the claim; (3) the time when, the place where and
 the manner in which the claim arose; and (4)  the  items  of  damage  or
 injuries claimed to have been sustained so far as then practicable but a
 notice  with  respect  to a claim against a municipal corporation [other
 than a city with a population of one million or more persons] shall  not
 state  the  amount  of  damages  to  which the claimant deems himself OR
 HERSELF  entitled, provided, however, that the  municipal  corporation[,
 other than a city with a population of one million or more persons,] may
 at any time request a supplemental claim setting forth the total damages
 to  which the claimant deems himself OR HERSELF entitled. A supplemental
 claim shall be provided by the  claimant  within  fifteen  days  of  the
 request.  In  the  event  the  supplemental  demand is not served within
 fifteen days, the court, on motion, may order that it be provided by the
 claimant.
   § 4. This act shall take effect on the thirtieth day  after  it  shall
 have become a law, and shall apply to actions commenced on or after such
 date.

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