Regular Session - January 17, 2001
95
THE STENOGRAPHIC RECORD
ALBANY, NEW YORK
January 17, 2001
11:05 a.m.
REGULAR SESSION
SENATOR RAYMOND A. MEIER, Acting President
STEVEN M. BOGGESS, Secretary
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P R O C E E D I N G S
ACTING PRESIDENT MEIER: The
Senate will come to order.
Will everyone please stand and
repeat with me the Pledge of Allegiance.
(Whereupon, the assemblage recited
the Pledge of Allegiance to the Flag.)
ACTING PRESIDENT MEIER: In the
absence of clergy, may we bow our heads in a
moment of silence.
(Whereupon, the assemblage
respected a moment of silence.)
ACTING PRESIDENT MEIER: Reading
of the Journal.
THE SECRETARY: In Senate,
Tuesday, January 16, the Senate met pursuant
to adjournment. The Journal of Saturday,
January 13, was read and approved. On motion,
Senate adjourned.
ACTING PRESIDENT MEIER: Without
objection, the Journal stands approved as
read.
Presentation of petitions.
Messages from the Assembly.
Messages from the Governor.
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Reports of standing committees.
Reports of select committees.
Communications and reports from
state officers.
Motions and resolutions.
Senator Skelos.
SENATOR SKELOS: Mr. President,
may we adopt the Resolution Calendar at this
time.
ACTING PRESIDENT MEIER: The
question is on the adoption of the Resolution
Calendar. All those in favor signify by
saying aye.
(Response of "Aye.")
ACTING PRESIDENT MEIER: Opposed,
nay.
(No response.)
ACTING PRESIDENT MEIER: The
Resolution Calendar is adopted.
Senator Skelos.
SENATOR SKELOS: Mr. President,
Senator Paterson would like to open up
Resolution Number 198 for sponsorship. It
concerns Black History Month.
So why don't we have everybody on
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the resolution. If anybody wishes not to
sponsor the resolution, they should so
indicate.
ACTING PRESIDENT MEIER: All
right. Anyone not wishing to be on the
resolution, notify the desk. Otherwise, all
members will be listed.
Senator Skelos, we have some
substitutions. Would you like to do those
now?
SENATOR SKELOS: Please make the
substitutions at this time.
ACTING PRESIDENT MEIER: The
Secretary will read the substitutions.
THE SECRETARY: On page 5,
Senator Volker moves to discharge, from the
Committee on Investigations, Taxation and
Government Operations, Assembly Bill Number
64A and substitute it for the identical Senate
Bill Number 134A, Third Reading Calendar 21.
And on page 5, Senator Goodman
moves to discharge, from the Committee on
Investigations, Taxation and Government
Operations, Assembly Bill Number 65 and
substitute it for the identical Senate Bill
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Number 792, Third Reading Calendar 22.
ACTING PRESIDENT MEIER:
Substitutions ordered.
Senator Skelos.
SENATOR SKELOS: Mr. President,
if we could take up the noncontroversial
calendar at this time.
ACTING PRESIDENT MEIER: The
Secretary will read the noncontroversial
calendar.
THE SECRETARY: Calendar Number
1, by Senator Skelos, Senate Print 58, an act
to amend the Civil Practice Law and Rules, in
relation to causes of action.
ACTING PRESIDENT MEIER: Read the
last section.
THE SECRETARY: Section 2. This
act shall take effect on the first day of
October.
ACTING PRESIDENT MEIER: Call the
roll.
(The Secretary called the roll.)
THE SECRETARY: Ayes, 45.
ACTING PRESIDENT MEIER: The bill
is passed.
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THE SECRETARY: Calendar Number
2, by Senator Skelos, Senate Print 59, an act
to amend the Criminal Procedure Law, in
relation to evidence of identification.
ACTING PRESIDENT MEIER: Read the
last section.
THE SECRETARY: Section 5. This
act shall take effect on the first day of
November.
ACTING PRESIDENT MEIER: Call the
roll.
(The Secretary called the roll.)
THE SECRETARY: Ayes, 45.
ACTING PRESIDENT MEIER: The bill
is passed.
THE SECRETARY: Calendar Number
6, by Senator Marcellino, Senate Print 100, an
act to amend the Penal Law, in relation to
criminally negligent homicide.
ACTING PRESIDENT MEIER: Read the
last section.
THE SECRETARY: Section 2. This
act shall take effect on the first day of
January.
ACTING PRESIDENT MEIER: Call the
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roll.
(The Secretary called the roll.)
THE SECRETARY: Ayes, 48.
ACTING PRESIDENT MEIER: The bill
is passed.
THE SECRETARY: Calendar Number
9, by Senator Volker, Senate Print 135 -
SENATOR ADA SMITH: Lay the bill
aside.
ACTING PRESIDENT MEIER: Lay the
bill aside.
THE SECRETARY: Calendar Number
19, by Senator Alesi, Senate Print 290, an act
to amend the Penal Law, in relation to
including a public place.
ACTING PRESIDENT MEIER: Read the
last section.
THE SECRETARY: Section 2. This
act shall take effect on the first day of
November.
ACTING PRESIDENT MEIER: Call the
roll.
(The Secretary called the roll.)
THE SECRETARY: Ayes, 47. Nays,
1. Senator Duane recorded in the negative.
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ACTING PRESIDENT MEIER: The bill
is passed.
THE SECRETARY: Calendar Number
21, substituted earlier today by the Assembly
Committee on Rules, Assembly Print Number 64A,
an act to amend the Tax Law, in relation to
the imposition of sales and compensating use
taxes by the County of Erie.
ACTING PRESIDENT MEIER: Read the
last section.
THE SECRETARY: Section 4. This
act shall take effect immediately.
ACTING PRESIDENT MEIER: Call the
roll.
(The Secretary called the roll.)
THE SECRETARY: Ayes, 46. Nays,
2. Senators Dollinger and Gentile recorded in
the negative.
ACTING PRESIDENT MEIER: The bill
is passed.
THE SECRETARY: Calendar Number
22, substituted earlier today by the Assembly
Committee on Rules, Assembly Print 65, an act
to amend the Tax Law, in relation to the
imposition of sales and use taxes by the
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County of Nassau.
ACTING PRESIDENT MEIER: Read the
last section.
THE SECRETARY: Section 4. This
act shall take effect immediately.
ACTING PRESIDENT MEIER: Call the
roll.
(The Secretary called the roll.)
THE SECRETARY: Ayes, 46. Nays,
2. Senators Dollinger and Gentile recorded in
the negative.
ACTING PRESIDENT MEIER: The bill
is passed.
Senator Skelos, that completes the
reading of the noncontroversial calendar.
SENATOR SKELOS: Mr. President,
if we could go to the controversial calendar.
ACTING PRESIDENT MEIER: The
Secretary will read the controversial
calendar.
THE SECRETARY: Calendar Number
9, by Senator Volker, Senate Print 135, an act
to amend the Civil Practice Law and Rules, in
relation to conducting depositions.
SENATOR DOLLINGER: Explanation,
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please.
ACTING PRESIDENT MEIER: Senator
Volker, an explanation has been requested of
Calendar 9 by Senator Dollinger.
SENATOR VOLKER: Mr. President,
this is a bill that has passed this house -
in fact, it passed last year by a vote of 56
to 2.
I think the reason that there is
some discussion this year is that after this
bill has been around for about three or four
years, for some -- well, the memo by the Trial
Lawyers, they have never, to my knowledge,
ever memoed against it before. But I guess
someone must have said to them, "You know,
this could create a problem."
What this does is, and the
committee members in the past have agreed
that -- and this time, that this really is a
potential for some savings and for some
facilitating the system. It permits a party
to a lawsuit to agree to conduct depositions
by telephone or other remote electronic means.
I think we all have -- those of us
that have been lawyers realize that there's
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some occasions, and it'd probably be rare
occasions, where it would be wise to allow the
taking of certain depositions and getting
certain information by electronic means,
especially in the age we're in.
I don't think it would be used a
great deal. The problem with the argument, I
think, by the Trial Lawyers is it assumes
somehow that the judge is arbitrarily going to
make a decision in some high-profile case or
something of that nature. I'm not sure that
that might in fact be a reason to potentially
overturn the case, I guess, depending on how
serious the issue was.
But I think that -- this bill, as I
say, passed the Senate last year by 56 to 2;
it passed the Senate I think almost
unanimously the year before. I think that
very possibly there's just some nervousness
because someone must have pointed out, you
know, someone could say that maybe this is
going to create -- would create less court
time. And that's true. And maybe that's
something that we should really look to.
So I just think this is a logical
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bill. This is a bill that I believe initially
came from the OCA, if I'm not mistaken. The
reason I say that is we have a number of bills
now that we move every year because we know
that the OCA is coming in later and if we wait
for the OCA or these other groups to come in,
we won't get them done until too late.
So I believe, and I'm 99 percent
sure, that this is one of those bills. I know
it's been around for quite a few years.
ACTING PRESIDENT MEIER: Senator
Dollinger.
SENATOR DOLLINGER: Thank you,
Mr. President. Would the sponsor yield for a
question?
ACTING PRESIDENT MEIER: Senator
Volker, do you yield for a question?
SENATOR VOLKER: I would.
ACTING PRESIDENT MEIER: The
sponsor yields.
SENATOR DOLLINGER: I'm one of
those, Senator Volker, who has voted for this
bill in the past. And I'm looking at it with
a new set of eyes this year.
My question is, what standards are
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applied by the judge to determine upon
application whether a deposition by telephonic
means is appropriate?
SENATOR VOLKER: Well, you know
that -- I think you are well aware that the
standards that would be used are the normal
standards where parties to a lawsuit are
involved. Certainly the lack of -- as my
counsel points out to me, the lack of
prejudice and the normal arguments could be
made.
I think that -- I suppose we could
assume that some judge would be arbitrary.
But as you and I know, in civil cases if that
occurred, as I say, it would be under special
circumstances. I suppose it would be one of
the issues that could be involved for
potentially an appeal.
I think that the reason, as I say,
that -- the very reason that we want to speed
up the process may be the reason why there's
some objection here. And it just seems to me
it's a logical kind of component to the system
to allow this to occur. I know all the other
stuff on billable hours and all that sort of
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thing, but I just think it makes sense.
SENATOR DOLLINGER: Thank you,
Mr. President. Just briefly, on the bill.
ACTING PRESIDENT MEIER: Senator
Dollinger, on the bill.
SENATOR DOLLINGER: I don't
dispute Senator Volker's characterization that
this bill in many instances may make sense. I
think it may also significantly reduce the
cost of litigation and the cost of
depositions.
But apart from what the Trial
Lawyers say -- and I haven't even read their
memo -- it seems to me that what we should
have is some standard for allowing the
telephonic recording of depositions.
I think our experience, Senator
Volker, with videotaped depositions and other
forms of electronic depositions proves that
they are reliable, that they meet the test.
But the question is this bill does not really
say the circumstances under which, if there
were an application filed for a telephonic
deposition and the opposing party, plaintiff
or defendant, said, "We don't want to do it
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that way, we want to in essence require the
live deposition and that the person to be
deposed actually come to New York and be
deposed there," there's no real standard for
the court to decide the instances in which
compelling circumstances, financial
circumstances, scheduling difficulties -- all
the reasons which would be appropriate, I
think, to require telephonic depositions in
some cases -- they aren't really contained in
the bill.
So this bill says to the courts of
this state upon an application and upon an
opposing affidavit from a party -- it doesn't
really give the court any guidance to
determine the circumstances under which
telephonic recording or telephonic depositions
would be possible.
I would suggest if we're going to
do this, we ought to do it with standards that
give the judiciary guidance in deciding the
appropriate instances in which a telephonic
deposition would be permissible.
I know that there are trial
lawyers, and I'm one of them, who believe that
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not only the dynamics of litigation sometimes
require that you bring other parties to
New York, to force them to bear the cost of
coming to New York, which is consistent with
our "long arm statute" and our belief that
people should come here to litigate if they
want to do business here.
But the other thing is, quite
frankly, that you really give up something in
a telephonic deposition, or you can give up
something, because you lose the ability to
perceive the reactions of people who are in
the room with you when you ask them questions.
So I would rather have a bill -
although this talks about the protocol for how
to do it, it doesn't really provide guidance
to our courts on instances in which it would
be appropriate. And in the absence of that,
it just gives too much flexibility to the
courts and doesn't really contain a clear,
coherent message of what we want the courts to
do in specific cases in which telephonic
depositions might be appropriate.
I'll vote in the negative, Mr.
President.
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ACTING PRESIDENT MEIER: Senator
Volker.
SENATOR VOLKER: Mr. President, I
just want to point out two things.
One, that the Chief Judge of the
Court of Appeals, Judith Kaye, just gave her
State of the Judiciary address and talked
about bringing New York courts from the 18th
century into the 21st century. And she talked
about all the new things that have occurred
and the fact that we really have not brought
our court system up-to-date. I think this is
one of those types of things.
Let me point out to you, Senator
Dollinger, the problem with putting standards
in the bill, if you put all the so-called
reasonable standards that are normally equated
with this sort of situation, you will actually
be limiting the scope of the judge in many
cases.
It could be argued that you could
be limiting, because those standards, whatever
you put in the bill, then would become the -
sort of the absolute standard. I think -- I
don't think that that probably is a good idea.
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I think that this would be operated
on a very, very limited basis, because most
judges clearly would operate in the normal
processes. And it just seems to me that it's
a logical extension of the kinds of things
that we're trying to do to speed up the
process in our courts.
ACTING PRESIDENT MEIER: Read the
last section.
THE SECRETARY: Section 2. This
act shall take effect on the first day of
January.
ACTING PRESIDENT MEIER: Call the
roll.
(The Secretary called the roll.)
ACTING PRESIDENT MEIER: Senator
DeFrancisco, to explain his vote.
SENATOR DeFRANCISCO: I just want
to mention that my "no" vote is not that I
don't want to go into the 21st century,
because there are a lot of devices that are
helpful to cut costs.
The problem is that when you do a
deposition and you've never laid eyes on an
individual before, what the person says is
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maybe as important as to how the person says
it. And a litigator has to be able to
determine or make a judgment about
credibility -- not only to try the case, if
necessary, but also to determine whether or
not to try to settle it in view of the manner
as well as what the person says.
So I think it's -- if the attorneys
want to stipulate to this type of method, both
have made a reasoned judgement on behalf of
their client. But to court-order this
procedure when you lose so much I think is not
a good idea.
ACTING PRESIDENT MEIER: Senator
DeFrancisco will be recorded in the negative.
Announce the results.
THE SECRETARY: Those recorded in
the negative on Calendar Number 9 are Senators
DeFrancisco, Dollinger, Duane, Espada,
Hassell-Thompson, Lachman, Montgomery,
Paterson, Schneiderman, A. Smith, M. Smith,
and Senator Stavisky.
Ayes, 45. Nays, 12.
ACTING PRESIDENT MEIER: The bill
is passed.
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Senator Skelos, that completes the
controversial calendar.
SENATOR SKELOS: Mr. President,
is there any housekeeping at the desk?
ACTING PRESIDENT MEIER: There is
no housekeeping.
SENATOR SKELOS: Mr. President,
on behalf of Senator Bruno, I'd like to hand
up the following notice of leadership
assignments and ask that they be filed in the
Journal.
ACTING PRESIDENT MEIER: Those
will be received and filed in the Journal.
SENATOR SKELOS: And also on
behalf of Senator Bruno, after consultation
with the Minority Leader, hand up the attached
committee assignments and ask that they be
filed in the Journal.
ACTING PRESIDENT MEIER: Those
will also be received and filed in the
Journal.
Senator Montgomery is asking to be
recognized, Senator Skelos.
Senator Montgomery.
SENATOR MONTGOMERY: Yes, Mr.
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President. I would like unanimous consent to
be recorded in the negative on Calendar Number
19.
ACTING PRESIDENT MEIER: Without
objection, Senator Montgomery will be recorded
in the negative on Calendar 19.
Senator Hassell-Thompson.
SENATOR HASSELL-THOMPSON: Yes,
Mr. President. I rise to request unanimous
consent to be recorded in the negative on
Calendar Number 2, Senate Print 59.
ACTING PRESIDENT MEIER: Without
objection, Senator Hassell-Thompson will be
recorded in the negative on Calendar 2.
Senator Paterson.
SENATOR PATERSON: Mr. President,
with unanimous consent, might we record the
Minority Leader in the negative on Calendar
Number 9.
ACTING PRESIDENT MEIER: That was
Number 9, Senator?
SENATOR PATERSON: Number 9.
ACTING PRESIDENT MEIER: Without
objection, Senator Connor will be recorded in
the negative on Calendar Number 9.
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Senator Stachowski.
SENATOR STACHOWSKI: Mr.
President, may I have unanimous consent to be
recorded in the negative on Calendar 9.
ACTING PRESIDENT MEIER: Without
objection, Senator Stachowski will be recorded
in the negative on Calendar 9.
Senator Skelos.
SENATOR SKELOS: Mr. President,
there being no further business to come before
the Senate, I move we adjourn until Monday,
January 22nd, at 3:00 p.m., intervening days
being legislative days.
ACTING PRESIDENT MEIER: On
motion, the Senate stands adjourned until
Monday, January 22nd, at 3:00 p.m.,
intervening days being legislative days.
(Whereupon, at 11:25 a.m., the
Senate adjourned.)