BILL NUMBER: S8288

SPONSOR: BONACIC
 
TITLE OF BILL:  An act to amend the civil practice law and rules, in
relation to the content of a summons with notice in certain actions

This is one of a series of measures being introduced at the request of
the Chief Administrative Judge upon the recommendation of his Advisory
Committee on Civil Practice.

This measure would amend CPLR 305(b) to provide that where the plaintiff
in an action for personal injury or wrongful death commences suit with a
summons with notice rather than with a summons and complaint, the
summons with notice need not specify "the sum of money" the plaintiff
seeks, popularly known as the ad damnum. This would eliminate an incon-
sistency that arises from a 2003 amendment of CPLR 3017(b).

Prior to 2003, plaintiffs in all personal injury and wrongful death
actions were, with two exceptions, required to specify in the complaint
the amount of money sought in the action. The two exceptions were
actions against municipalities and medical malpractice actions. In those
two kinds of cases, defendant could serve a supplemental demand for that
information, but the information would not appear in the complaint.
              

In 2003, CPLR 3017(b) was amended to extend to all personal injury and
wrongful death actions the rule then followed only in medical malprac-
tice actions and actions with municipal defendants. Complaints in
personal injury and wrongful death actions would no longer contain ad
damnum clauses specifying the damages plaintiffs sought, but defendants
would be entitled to obtain that information on demand.

There were several reasons for the amendment. One was a concern that the
prior practice encouraged inflated demands since (a) plaintiffs were
incentivized to make their ad damnum large enough to encompass any
potential recovery, and (b) the severity of the injury was not always
known at the time of commencement of the suit. Additionally, the prior
practice led to undue focus, especially in the media, upon ad damnum
demands that were essentially meaningless and often misleading. Finally,
a defendant naturally wanted to know and was entitled to know far more
than the gross figure plaintiff would claim as his or her total damages,
and the more sensible course was to require plaintiff to provide such
information as the defendant demanded in the course of discovery.

CPLR 305(b) specifies the information that must appear in the summons in
those instances in which "the complaint is not served with the summons."
Unfortunately, when CPLR 3017(b) was amended to effectively remove the
ad damnum clause from the complaints served in personal injury and
wrongful death actions, CPLR 305(b) was not similarly amended. It still
requires the plaintiff to specify "the sum of money" sought except in
actions for medical `malpractice.

As is noted in Professor Patrick M. Connors' McKinney's commentary, this
inconsistency, which is of course an historical anomaly that serves no
purpose, serves as a trap for the unwary that could potentially result
in dismissal of an action. McKinney's Practice Commentary, C3017:10A.
This could occur if an attorney who is familiar with the rules governing
content of the complaint reflexively assumes that the ad damnum also
should be omitted from a summons served without complaint.

This measure would amend CPLR 305(b) to exempt personal injury and
wrongful death actions from the requirement that the pleader specify
"the sum of money" sought, thus eliminating the inconsistency with CPLR
3017(b). As in those personal injury and wrongful death actions that are
commenced with service of a complaint (the vast majority of such
actions), plaintiff will be required to provide that information (and
more) on demand.

This measure, which would have no fiscal impact, would take effect imme-
diately.

 
LEGISLATIVE HISTORY:

None. New proposal.