BILL NUMBER: S5574

SPONSOR: SEPULVEDA
 
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 measure would amend CPLR rule 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 elimi-
nate an inconsistency that arises from the 2003 amendment of CPLR §
3017(b).

Prior to 2003, the 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 so as to extend to all personal
injury and wrongful death actions the rule then followed only in medical
              

malpractice actions and actions with municipal defendants.  Complaints
in personal injury and wrongful death actions would no longer contain ad
damnum clauses specifying the damages the plaintiff sought, but the
defendant would be entitled to obtain that information on demand.

There were several reasons for the amendment. One concern was 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,
the 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 the plaintiff to provide
such information as the defendant demanded during discovery.

CPLR rule 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 effec-
tively remove the ad damnum clause from the complaints served in
personal injury and wrongful death actions, CPLR rule 305(b) was not
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, is a trap for the unwary that could potentially result in the
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 should
also be omitted from a summons served without complaint.

This measure would amend CPLR rule 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), the plaintiff will be required to provide that information
(and more) on demand.

This measure, which would have no fiscal impact, would take effect 30
days after becoming law and would apply to actions commenced on or after
such effective date.

 
LEGISLATIVE HISTORY:

OCA 2018-86; Senate 8288  
RULES