Regular Session - May 31, 2002

                                                            3786







                          NEW YORK STATE SENATE











                         THE STENOGRAPHIC RECORD



















                            ALBANY, NEW YORK



                              May 31, 2002



                               11:10 a.m.











                             REGULAR SESSION















           LT. GOVERNOR MARY O. DONOHUE, President



           STEVEN M. BOGGESS, Secretary







































                                                        3787







                          P R O C E E D I N G S



                           THE PRESIDENT:    The Senate will



                please come to order.



                           I ask everyone present to please



                rise and repeat with me the Pledge of



                Allegiance.



                           (Whereupon, the assemblage recited



                the Pledge of Allegiance to the Flag.)



                           THE PRESIDENT:    With us today,



                once again, to give the invocation is the



                Reverend Peter G. Young, from Blessed



                Sacrament Church in Bolton Landing, New York.



                           REVEREND YOUNG:    Let us pray.



                           Following the events of yesterday,



                of our Vietnam Memorial dedication and the



                completion of our World Trade Center



                demolition, we gather with the respect of



                those who have served in our armed forces, and



                we now plan for the site restoration from the



                9/11 attack on our state and our country.



                           It's with a patriotic spirit that



                we assemble in this chamber today to remember



                all of the deceased resulting from these two



                events.  We pray that You will bless them and



                honor them in Your name.















                                                        3788







                           Amen.



                           THE PRESIDENT:    Reading of the



                Journal.



                           THE SECRETARY:    In Senate,



                Thursday, May 30th, the Senate met pursuant to



                adjournment.  The Journal of Wednesday,



                May 29, was read and approved.  On motion,



                Senate adjourned.



                           THE PRESIDENT:    Without



                objection, the Journal stands approved as



                read.



                           Presentation of petitions.



                           Messages from the Assembly.



                           Messages from the Governor.



                           Reports of standing committees.



                           Reports of select committees.



                           Communications and reports from



                state officers.



                           Motions and resolutions.



                           Senator Fuschillo.



                           SENATOR FUSCHILLO:    Thank you,



                Madam President.  On behalf of Senator



                Velella, please place a sponsor's star on



                Calendar Number 1098.



                           THE PRESIDENT:    The bill will be















                                                        3789







                so starred, Senator.



                           SENATOR FUSCHILLO:    Madam



                President, on behalf of Senator Kuhl, on



                page number 33 I offer the following



                amendments to Calendar Number 748, Senate



                Print Number 4154, and ask that said bill



                retain its place on Third Reading Calendar.



                           THE PRESIDENT:    The amendments



                are received, and the bill will retain its



                place on the Third Reading Calendar.



                           Senator Johnson.



                           SENATOR JOHNSON:    Madam



                President, are there any substitutions at the



                desk?



                           THE PRESIDENT:    Yes, there are,



                Senator.



                           The Secretary will read.



                           THE SECRETARY:    On page 29,



                Senator Fuschillo moves to discharge, from the



                Committee on Health, Assembly Bill Number 228C



                and substitute it for the identical Senate



                Bill Number 4989A, Third Reading Calendar 661.



                           On page 34, Senator Johnson moves



                to discharge, from the Committee on Rules,



                Assembly Bill Number 11254 and substitute it















                                                        3790







                for the identical Senate Bill Number 6810,



                Third Reading Calendar 766.



                           On page 66, Senator DeFrancisco



                moves to discharge, from the Committee on



                Veterans and Military Affairs, Assembly Bill



                Number 9648 and substitute it for the



                identical Senate Bill Number 6235, Third



                Reading Calendar 1245.



                           And on page 67, Senator Kuhl moves



                to discharge, from the Committee on



                Investigations, Taxation and Government



                Operations, Assembly Bill Number 10533 and



                substitute it for the identical Senate Bill



                Number 6654, Third Reading Calendar 1249.



                           THE PRESIDENT:    The substitutions



                are ordered.



                           Senator Johnson.



                           SENATOR JOHNSON:    There is a



                privileged resolution at the desk by Senator



                Bonacic.  May we please have the title read



                and move for its immediate adoption.



                           THE PRESIDENT:    The Secretary



                will read.



                           THE SECRETARY:    By Senator



                Bonacic, Legislative Resolution Number 5830,















                                                        3791







                commending the valedictorians and



                salutatorians and honored students of the



                40th Senate District in recognition of their



                outstanding accomplishments, at a celebration



                to be held at the State Capitol on June 5,



                2002.



                           THE PRESIDENT:    The question is



                on the resolution.  All in favor signify by



                saying aye.



                           (Response of "Aye.")



                           THE PRESIDENT:    Opposed, nay.



                           (No response.)



                           THE PRESIDENT:    The resolution is



                adopted.



                           Senator Johnson.



                           SENATOR JOHNSON:    Madam



                President, I'd like to announce that there



                will be an immediate meeting of the Rules



                Committee in the Senate Republican Conference



                Room.



                           THE PRESIDENT:    There will be an



                immediate meeting of the Rules Committee in



                the Majority Conference Room.



                           Senator Johnson.



                           SENATOR JOHNSON:    May we now have















                                                        3792







                the noncontroversial reading of the calendar.



                           THE PRESIDENT:    The Secretary



                will read.



                           THE SECRETARY:    Calendar Number



                227, by Senator Larkin, Senate Print 3896, an



                act to amend the Racing, Pari-Mutuel Wagering



                and Breeding Law, in relation to --



                           SENATOR PATERSON:    Lay it aside,



                please.



                           THE PRESIDENT:    The bill is laid



                aside.



                           THE SECRETARY:    Calendar Number



                300, by Senator Libous, Senate Print 5492A, an



                act authorizing the Commissioner of



                Transportation.



                           SENATOR MORAHAN:    Lay it aside



                for the day, please.



                           THE PRESIDENT:    The bill is laid



                aside for the day.



                           THE SECRETARY:    Calendar Number



                510, by Senator Marcellino, Senate Print



                4467B, an act to amend the Environmental



                Conservation Law, in relation to the



                collection, sale and exportation of ginseng.



                           THE PRESIDENT:    Read the last















                                                        3793







                section.



                           THE SECRETARY:    Section 2.  This



                act shall take effect immediately.



                           THE PRESIDENT:    Call the roll.



                           (The Secretary called the roll.)



                           THE SECRETARY:    Ayes, 39.



                           THE PRESIDENT:    The bill is



                passed.



                           THE SECRETARY:    Calendar Number



                536, by Member of the Assembly Gottfried,



                Assembly Print Number 10378, an act to amend



                Chapter 884 of the Laws of 1990, amending the



                Public Health Law.



                           THE PRESIDENT:    Read the last



                section.



                           THE SECRETARY:    Section 2.  This



                act shall take effect immediately.



                           THE PRESIDENT:    Call the roll.



                           (The Secretary called the roll.)



                           THE SECRETARY:    Ayes, 39.



                           THE PRESIDENT:    The bill is



                passed.



                           THE SECRETARY:    Calendar Number



                545, by Senator Seward, Senate Print 6722A, an



                act to amend the Insurance Law, in relation to















                                                        3794







                the organization of advance premium



                corporations.



                           THE PRESIDENT:    Read the last



                section.



                           THE SECRETARY:    Section 4.  This



                act shall take effect immediately.



                           THE PRESIDENT:    Call the roll.



                           (The Secretary called the roll.)



                           THE SECRETARY:    Ayes, 39.



                           THE PRESIDENT:    The bill is



                passed.



                           THE SECRETARY:    Calendar Number



                626, by Senator Kuhl, Senate Print 5108A, an



                act to amend the Alcoholic Beverage Control



                Law, in relation to certain licenses.



                           THE PRESIDENT:    Read the last



                section.



                           THE SECRETARY:    Section 3.  This



                act shall take effect immediately.



                           THE PRESIDENT:    Call the roll.



                           (The Secretary called the roll.)



                           THE SECRETARY:    Ayes, 39.



                           THE PRESIDENT:    The bill is



                passed.



                           THE SECRETARY:    Calendar Number















                                                        3795







                843, by Senator Johnson, Senate Print 6652A,



                an act to amend the Vehicle and Traffic Law,



                in relation to the franchised sale of house



                coaches.



                           THE PRESIDENT:    Read the last



                section.



                           THE SECRETARY:    Section 4.  This



                act shall take effect immediately.



                           THE PRESIDENT:    Call the roll.



                           (The Secretary called the roll.)



                           THE SECRETARY:    Ayes, 39.



                           THE PRESIDENT:    The bill is



                passed.



                           THE SECRETARY:    Calendar Number



                848, by Senator Trunzo, Senate Print 7011A, an



                act to amend the Vehicle and Traffic Law, in



                relation to commercial driver license.



                           THE PRESIDENT:    Read the last



                section.



                           THE SECRETARY:    Section 4.  This



                act shall take effect on the 90th day.



                           THE PRESIDENT:    Call the roll.



                           (The Secretary called the roll.)



                           THE SECRETARY:    Ayes, 39.



                           THE PRESIDENT:    The bill is















                                                        3796







                passed.



                           THE SECRETARY:    Calendar Number



                886, by Senator DeFrancisco, Senate Print



                7172, an act to amend the Executive Law, in



                relation to voluntary missing child prompt



                response.



                           THE PRESIDENT:    Read the last



                section.



                           THE SECRETARY:    Section 4.  This



                act shall take effect on the 120th day.



                           THE PRESIDENT:    Call the roll.



                           (The Secretary called the roll.)



                           THE SECRETARY:    Ayes, 39.



                           THE PRESIDENT:    The bill is



                passed.

                           THE SECRETARY:    Calendar Number



                1073, by Senator Nozzolio, Senate Print 6441,



                an act to amend the Real Property Tax Law, in



                relation to the veteran's alternative



                exemption.



                           THE PRESIDENT:    Read the last



                section.



                           THE SECRETARY:    Section 2.  This



                act shall take effect immediately.



                           THE PRESIDENT:    Call the roll.















                                                        3797







                           (The Secretary called the roll.)



                           THE SECRETARY:    Ayes, 39.



                           THE PRESIDENT:    The bill is



                passed.



                           THE SECRETARY:    Calendar Number



                1104, by Senator Alesi, Senate Print 7167A, an



                act to amend the Environmental Conservation



                Law, in relation to prohibiting.



                           THE PRESIDENT:    Read the last



                section.



                           THE SECRETARY:    Section 2.  This



                act shall take effect on the 180th day.



                           THE PRESIDENT:    Call the roll.



                           (The Secretary called the roll.)



                           THE SECRETARY:    Ayes, 39.



                           THE PRESIDENT:    The bill is



                passed.



                           THE SECRETARY:    Calendar Number



                1161, by Senator Johnson, Senate Print 7209A,



                an act to amend the Retirement and Social



                Security Law, in relation to the membership of



                certain regular substitute teachers.



                           THE PRESIDENT:    Read the last



                section.



                           THE SECRETARY:    Section 4.  This















                                                        3798







                act shall take effect immediately.



                           THE PRESIDENT:    Call the roll.



                           (The Secretary called the roll.)



                           THE SECRETARY:    Ayes, 39.



                           THE PRESIDENT:    The bill is



                passed.



                           THE SECRETARY:    Calendar Number



                1192, by Senator Rath, Senate Print 7121, an



                act to amend the Education Law, in relation to



                prescriptions.



                           THE PRESIDENT:    Read the last



                section.



                           THE SECRETARY:    Section 3.  This



                act shall take effect on the 120th day.



                           THE PRESIDENT:    Call the roll.



                           (The Secretary called the roll.)



                           THE SECRETARY:    Ayes, 39.



                           THE PRESIDENT:    The bill is



                passed.



                           THE SECRETARY:    Calendar Number



                1237, by Senator Volker, Senate Print 1082A,



                an act to --



                           SENATOR PATERSON:    Lay it aside,



                please.



                           THE PRESIDENT:    The bill is laid















                                                        3799







                aside.



                           THE SECRETARY:    Calendar Number



                1238, by Senator Kuhl, Senate Print 2309, an



                act to amend the Retirement and Social



                Security Law, in relation to the partial



                direct deposit.



                           THE PRESIDENT:    Read the last



                section.



                           THE SECRETARY:    Section 2.  This



                act shall take effect immediately.



                           THE PRESIDENT:    Call the roll.



                           (The Secretary called the roll.)



                           THE SECRETARY:    Ayes, 39.



                           THE PRESIDENT:    The bill is



                passed.



                           THE SECRETARY:    Calendar Number



                1239, by Senator Saland, Senate Print 3191A,



                an act to authorize the city school district



                of the City of Poughkeepsie.



                           THE PRESIDENT:    Read the last



                section.



                           THE SECRETARY:    Section 2.  This



                act shall take effect immediately.



                           THE PRESIDENT:    Call the roll.



                           (The Secretary called the roll.)















                                                        3800







                           THE SECRETARY:    Ayes, 40.



                           THE PRESIDENT:    The bill is



                passed.



                           THE SECRETARY:    Calendar Number



                1240, by Senator Hannon, Senate Print 3932, an



                act to amend the Not-for-Profit Corporation



                Law, in relation to authorization.



                           THE PRESIDENT:    Read the last



                section.



                           THE SECRETARY:    Section 2.  This



                act shall take effect immediately.



                           THE PRESIDENT:    Call the roll.



                           (The Secretary called the roll.)



                           THE SECRETARY:    Ayes, 40.



                           THE PRESIDENT:    The bill is



                passed.



                           THE SECRETARY:    Calendar Number



                1241, by Senator Trunzo, Senate Print 4671, an



                act to amend the Transportation Law, in



                relation to the regulation of transportation.



                           THE PRESIDENT:    Read the last



                section.



                           THE SECRETARY:    Section 20.  This



                act shall take effect immediately.



                           THE PRESIDENT:    Call the roll.















                                                        3801







                           (The Secretary called the roll.)



                           THE SECRETARY:    Ayes, 41.



                           THE PRESIDENT:    The bill is



                passed.



                           THE SECRETARY:    Calendar Number



                1242, by Senator Spano, Senate Print 5330A, an



                act to amend the Local Finance Law, in



                relation to bonds and notes of the City of



                Yonkers.



                           THE PRESIDENT:    There is a



                home-rule message at the desk.



                           Read the last section.



                           THE SECRETARY:    Section 2.  This



                act shall take effect immediately.



                           THE PRESIDENT:    Call the roll.



                           (The Secretary called the roll.)



                           THE SECRETARY:    Ayes, 41.



                           THE PRESIDENT:    The bill is



                passed.



                           THE SECRETARY:    Calendar Number



                1243, by Senator Leibell, Senate Print 6092,



                an act in relation to legalizing, validating,



                ratifying and confirming certain acts and



                proceedings.



                           THE PRESIDENT:    There is a local















                                                        3802







                fiscal impact message at the desk.



                           Read the last section.



                           THE SECRETARY:    Section 4.  This



                act shall take effect immediately.



                           THE PRESIDENT:    Call the roll.



                           (The Secretary called the roll.)



                           THE SECRETARY:    Ayes, 41.



                           THE PRESIDENT:    The bill is



                passed.



                           THE SECRETARY:    Calendar Number



                1244, by Senator Alesi, Senate Print 6149, an



                act in relation to redistributing 2001 bond



                volume allocations.



                           THE PRESIDENT:    There is a local



                fiscal impact note at the desk.



                           Read the last section.



                           THE SECRETARY:    Section 17.  This



                act shall take effect immediately.



                           THE PRESIDENT:    Call the roll.



                           (The Secretary called the roll.)



                           THE SECRETARY:    Ayes, 41.



                           THE PRESIDENT:    The bill is



                passed.



                           THE SECRETARY:    Calendar Number



                1250, by Senator Oppenheimer, Senate Print















                                                        3803







                6963B, an act to authorize the City of



                New Rochelle to sell or lease certain lands.



                           THE PRESIDENT:    There is a



                home-rule message at the desk.



                           Read the last section.



                           THE SECRETARY:    Section 5.  This



                act shall take effect immediately.



                           THE PRESIDENT:    Call the roll.



                           (The Secretary called the roll.)



                           THE SECRETARY:    Ayes, 41.



                           THE PRESIDENT:    The bill is



                passed.



                           THE SECRETARY:    Calendar Number



                1253, by Senator Espada, Senate Print 7345, an



                act to amend the Military Law, in relation to



                establishing a survivor's benefit.



                           THE PRESIDENT:    Read the last



                section.



                           THE SECRETARY:    Section 2.  This



                act shall take effect immediately.



                           THE PRESIDENT:    Call the roll.



                           (The Secretary called the roll.)



                           THE SECRETARY:    Ayes, 41.



                           THE PRESIDENT:    The bill is



                passed.











                                                        3804







                           Senator Morahan, that completes the



                reading of the noncontroversial calendar.



                           SENATOR MORAHAN:    Thank you,



                Madam President.  Could we have the



                controversial reading of the calendar, please.



                           THE PRESIDENT:    The Secretary



                will read.



                           THE SECRETARY:    On page 10,



                Calendar Number 227, by Senator Larkin, Senate



                Print 3896, an act to amend the Racing,



                Pari-Mutuel Wagering and Breeding Law, in



                relation to antitrust exemptions.



                           SENATOR PATERSON:    Explanation.



                           THE PRESIDENT:    Senator Larkin,



                an explanation has been requested.



                           SENATOR LARKIN:    David, Senator



                Paterson, this bill adds a new section to the



                Racing and Wagering Law to exempt



                thoroughbred, harnesses, quarterhorse racing



                associations, and OTBs from state and federal



                antitrust laws when these racing organizations



                enter into negotiations with each other to



                coordinate the dates and times under which



                they will conduct racing and pari-mutuel.



                           In essence, David -- David, two









                                                        3805







                things.  This bill was introduced in March of



                last year.  To date, we have had no opposition



                to it.



                           There is a federal court law that



                we guided this by, or did it.  The U.S.



                Supreme Court, in a ruling of Parker versus



                Brown, held that these types of exemptions are



                permissible under state law.



                           In fact, this bill, based on



                federal law, grants antitrust exemptions to



                certain professional sports leagues.  So we



                just followed federal law.



                           ACTING PRESIDENT MARCELLINO:



                Senator Paterson.



                           SENATOR PATERSON:    Senator, I'm



                not opposed to the bill.  You did address, in



                part, what --



                           ACTING PRESIDENT MARCELLINO:



                Senator Paterson, are you asking the Senator



                to yield?



                           SENATOR PATERSON:    Yes, I am, Mr.



                President.



                           ACTING PRESIDENT MARCELLINO:    Do



                you yield, Senator?



                           SENATOR LARKIN:    Yes.















                                                        3806







                           ACTING PRESIDENT MARCELLINO:    The



                Senator yields.



                           SENATOR PATERSON:    Senator, my



                question is, in terms of the federal law, how



                do we establish the exemption through a state



                statute?



                           Now, I understand what the Supreme



                Court is saying, that that can actually



                happen.  But wouldn't that be through some act



                of Congress?  How can we on our own establish



                the exception?



                           SENATOR LARKIN:    Well, they're



                doing it in other states right now.  They're



                doing it in the state of Maryland, Georgia,



                Kentucky, using the same Supreme Court



                decision.



                           And what it all -- all it basically



                amounts to, David, is to allow these



                individual entities to coordinate their events



                so that everybody is not having the same event



                on the same day.



                           And what it does is it deprives our



                local governments of revenue that they



                normally would have if these events were



                properly scheduled so that everybody could















                                                        3807







                take advantage of them, not 19 events on one



                day.



                           SENATOR PATERSON:    Satisfactory.



                Thank you.



                           ACTING PRESIDENT MARCELLINO:



                Any other Senator wishing to be heard on this



                bill?



                           Seeing none, read the last section.



                           THE SECRETARY:    Section 2.  This



                act shall take effect immediately.



                           ACTING PRESIDENT MARCELLINO:



                Call the roll.



                           (The Secretary called the roll.)



                           THE SECRETARY:    Ayes, 45.



                           ACTING PRESIDENT MARCELLINO:    The



                bill is passed.



                           The Secretary will read.



                           THE SECRETARY:    Calendar Number



                1237, by Senator Volker, Senate Print 1082A,



                an act to amend the Civil Practice Law and



                Rules, in relation to simplified case



                resolution.



                           SENATOR DOLLINGER:    Explanation,



                please.



                           ACTING PRESIDENT MARCELLINO:















                                                        3808







                Senator Volker, an explanation has been



                requested by Senator Dollinger.



                           SENATOR VOLKER:    Yeah.  This is a



                bill that was actually sent to us by the New



                York State Bar Association.  And it is part of



                a group of bills that has been suggested to



                simplify case resolution in the tort system.



                           Let me, first of all, say that this



                can only be done by agreement of both parties.



                And what it does is to provide for a



                simplified case resolution for the



                commencement of the action or the preliminary



                proceedings and so forth, and provides for a



                waiver of the jury trial, as well as some



                other rules.



                           It would involve cases where the



                amounts involved are under $75,000.  And as I



                said, you have to keep in mind here that it



                would only occur where both parties agreed



                before the process began.



                           ACTING PRESIDENT MARCELLINO:



                Senator Paterson.



                           SENATOR PATERSON:    Mr. President,



                if Senator Volker would yield for a question.



                           SENATOR VOLKER:    Certainly.















                                                        3809







                           ACTING PRESIDENT MARCELLINO:



                Senator Volker yields.



                           SENATOR PATERSON:    Mr. President,



                my inclination is to vote against this bill.



                Any type of legislation that would in a sense



                coerce parties to actually waive a jury trial,



                or maybe to even elect to narrow the issues of



                a case, I just think has some ramifications.



                           However, from the explanation that



                Senator Volker has advised us of, this



                actually sounds like something that's pretty



                creative and something that actually is done



                in part already in some areas of the state.



                           So I guess my question to Senator



                Volker is that if the parties agree to do



                this, to what extent are they informed of what



                is actually going to transpire in terms of



                narrowing the issues, waiving the trial, in



                these cases that would call for money



                judgments less than $75,000 a year?



                           Because if you can establish for me



                that the defendant and the plaintiff are not



                making this decision in the dark, then I guess



                this is actually a good system that we might



                want to implement.















                                                        3810







                           SENATOR VOLKER:    Well, I think,



                Senator, that's a very good question.



                           Of course, you know, I think you're



                talking about actions here that -- and by the



                way, this language, it includes language that



                says that you cannot use this to recover



                damages for personal injury or wrongful death.



                Just so that you understand it, this is



                limited to certain tort actions where, in



                99 percent of the time, obviously you have



                attorneys involved who are going to inform



                their clients of exactly what they're facing.



                And I would assume any decent plaintiff's



                attorney would inform his client or her client



                as to what the ramifications would be.



                           And where -- it would seem to me



                that this would be useful in these cases that



                are cases that are more like contract



                arguments or something of that nature where,



                you know, the jury actually gets confused



                sometimes over something like this and you



                really want a judge to make the decision,



                because the judge is more capable, when you



                come right down to doing it, than trying to



                put it to a jury.















                                                        3811







                           I realize -- and to be honest with



                you, I know what the trial lawyers are



                concerned about.  And I happen to agree with



                the trial lawyers on this one -- not on this



                bill, but on -- but they're worried about the



                slippery slope and about the fact that we're



                going to do more and more away from juries and



                all this.



                           I happen to agree with them.  I



                don't think that we should -- we should be



                very careful about how we deal with the



                American system and move away too much from



                the system, the jury system and from the tort



                system that has been pretty good to us,



                although I think it's a little out of kilter



                right now.



                           But I really think that this is a



                step forward in resolving certain limited



                cases.  What you have here, I think most



                plaintiff's attorneys probably won't want to



                do this.  But for certain cases, particularly,



                it seems to me, contract cases or complicated



                cases that involve issues that are not the



                kind of issues that maybe have any emotion or



                anything involved, it seems to me that a















                                                        3812







                plaintiff's attorney would be very, very



                inclined to do this sort of thing.



                           SENATOR PATERSON:    Mr. President,



                I think I'm going through a transitional



                period where the -- menopause?  No, that's not



                it -- where the desire to be mature and



                flexible is overcoming the initial reactions,



                probably coming from the id of my soul,



                because Senator Volker's point of view makes a



                lot of sense.



                           If he would yield for another



                question.



                           ACTING PRESIDENT MARCELLINO:



                Senator Volker, will you yield to Senator



                Paterson's id?



                           SENATOR VOLKER:    I certainly will



                yield to Senator Paterson.  And I hope that I



                am finally growing up myself here.



                           Go ahead, Senator.



                           ACTING PRESIDENT MARCELLINO:



                That makes two of us.



                           SENATOR PATERSON:    Yes, Mr.



                President, we're definitely moving in a



                direction -- I just heard Senator Volker talk



                about his agreement with the trial lawyers.















                                                        3813







                           And I think that he's explained



                this bill to my satisfaction with respect to



                the plaintiff's election in this case.



                           Now, what I do notice is that the



                defendant has to opt out.  In other words,



                there's a presumption --



                           ACTING PRESIDENT MARCELLINO:



                Excuse me, Senator.



                           Can we have a little order in the



                house, please.



                           SENATOR PATERSON:    There is a



                presumption that the defendant will be a party



                to this unless the defendant specifically opts



                out.  Why did you choose to draft the



                legislation in that way rather than to make



                sure that the defendant was a party to the



                agreement?



                           Because if the defendant chooses



                not to be represented by counsel, perhaps it



                might never have been made clear that this is



                something that the defendant might not want to



                choose to accept.



                           SENATOR VOLKER:    I think the



                reason for the opt-out provision is that the



                plaintiff's attorney, the plaintiff, is really















                                                        3814







                the one that would be most likely to get -- to



                bring this action, quite obviously.  The



                plaintiff is the one complaining.  The



                plaintiff is the one who is bringing the



                action.  And therefore it would be the



                plaintiff who would be the beginning of the



                case, so to speak.



                           So as far as the defense is



                concerned, the defense then has the right to



                just say:  "No, I'm out of it, I don't want to



                do that."  Rather than get into some



                conversation as to whether it should be done



                or not, the defendant frankly can just say "I



                do not want to be involved in this."



                           I think that's why we did it that



                way, is to give that clear option to the



                defense that they just have to get out of it.



                           SENATOR PATERSON:    Mr. President,



                if Senator Volker would yield for one last



                question.



                           SENATOR VOLKER:    Certainly.



                           ACTING PRESIDENT MARCELLINO:    He



                does.



                           SENATOR PATERSON:    I think the



                adroit persuasiveness of Senator Volker has















                                                        3815







                overcome me.



                           But I would like to ask him one



                last time, is he sure that in these cases the



                defendant always knows that there's something



                that he or she is opting out of?



                           In other words, it's kind of like



                if you're not represented by counsel, there



                are procedures that are already taking place,



                it's already started, and you may never have



                even been aware that you had an option.



                           So what I was just looking for was



                an assuredness that there is, in a sense,



                advanced notice so that the defendant may



                review whether or not this is a good idea.



                I'm just on the general point of feeling that



                when we have judicial proceedings that the



                parties should not be negotiating in the dark.



                           SENATOR VOLKER:    I think you're



                absolutely right.



                           But let me say, of course, it's a



                good argument for the fact that you kind of



                have your hands behind your back if you don't



                have an attorney, particularly if you're a



                defense person and the other person has an



                attorney.















                                                        3816







                           It seems to me that the likelihood



                is that if you're in that situation, that



                would probably almost never happen.  Because



                if somebody, a defendant, sees that the other



                person has an attorney, unless he's kind of a



                jerk, if you'll excuse me, or not informed, he



                would certainly -- he or she would certainly



                want one.



                           But let me just point out to you



                that any judge worth his salt is going to,



                when he sees this kind of a process and



                realizes that you've got a defendant who's not



                represented by an attorney, it would almost be



                malpractice or unethical for the judge not to



                specifically inform that defendant of what



                he's in for by not considering the possibility



                of opting out of such a process.



                           ACTING PRESIDENT MARCELLINO:



                Senator Paterson.



                           SENATOR PATERSON:    Mr. President,



                on the bill.



                           ACTING PRESIDENT MARCELLINO:



                Senator Paterson, on the bill.



                           SENATOR PATERSON:    I'm going to



                vote for the bill, but with the strong















                                                        3817







                admonition here that it's not really whether



                or not the defendant is represented by counsel



                that alarms me about what we're about to do,



                it's that we have a procedure that does



                require that the plaintiff agree to it.



                           So that if the plaintiff wasn't



                represented by an attorney, the situation



                would still be in many respects within the



                plaintiff's sight to make that determination.



                But I'm just afraid of a defendant who might



                not have the resources or just may have made a



                blunder and does not necessarily decide to



                seek counsel in this case.



                           Even though they've made that



                mistake, there might be a way to at least make



                sure that we include in the legislation an



                opportunity for the defendant to be informed.



                           ACTING PRESIDENT MARCELLINO:



                Senator Dollinger.



                           SENATOR DOLLINGER:    Will the



                sponsor yield to couple of questions, Mr.



                President?



                           ACTING PRESIDENT MARCELLINO:



                Senator Volker, do you yield for a question or



                two?















                                                        3818







                           SENATOR VOLKER:    Yes.



                           ACTING PRESIDENT MARCELLINO:    He



                yields.



                           SENATOR DOLLINGER:    What happens



                in the instance of a default by the defendant?



                           The plaintiff sues the defendant



                and, as I'm sure you're familiar, at least in



                my practice we get contract cases and other



                disputes where there's a default on the issue



                of liability but you have to, quote, prove



                your damages.  You have to go in and produce



                oral testimony of the actual damage sustained



                by the defendant.



                           Is this procedure permissible in a



                default situation where there's default on a



                liability issue?



                           SENATOR VOLKER:    Yeah.  Keep in



                mind that this doesn't involve personal injury



                or wrongful death or any of those kinds of



                thing.



                           SENATOR DOLLINGER:    Right.



                           SENATOR VOLKER:    I suppose that



                there certainly could be testimony on that,



                and it is a so-called simplified procedure.



                           So you're right.  I guess if there















                                                        3819







                is a default, the defendant still has -- you



                know, has already opted out because he's



                already opted out of the regular course of



                things.



                           So that's true, they would go



                through the same procedure of testimony and so



                forth on appeal.  Or not on appeal, but I mean



                to prove damages and so forth.



                           SENATOR DOLLINGER:    Through you,



                Mr. President, if the sponsor will continue to



                yield.



                           SENATOR VOLKER:    Certainly.



                           ACTING PRESIDENT MARCELLINO:    He



                yields.



                           SENATOR DOLLINGER:    I want to



                make sure there are from -- it talks here



                about the preliminary proceedings and it



                describes what the court can do, limiting



                discovery and doing other things.



                           But one thing that they don't



                mention is having any form of trial, any form



                of actual presentation of live witnesses for



                resolution, potentially, of disputes that



                could only be resolved by someone visibly



                observing the witnesses testifying under oath.















                                                        3820







                           For example, in the creation of a



                contract.  I said there was a contract; he



                said there wasn't.  There are damages that



                flow.  And you may get deposition testimony



                that's, you know, irreconcilable about the



                creation of the contract.



                           My only question is -- and I like



                this idea, because it's somewhat similar to



                what we do in Rochester with our deferral to



                arbitration.  From my point of view, it's even



                better than that, because it keeps experienced



                trial judges watching the case, monitoring the



                case.  They're used to evaluating it.



                           But my question is, you talk about



                the dispositional memos, and a lot of this is



                stuff that lawyers do before a case goes to a



                final conference and you present your facts



                and your evidence in written form.  But is



                there anything in here that says that if there



                were a factual dispute, even a small one, that



                if the judge wanted to see that he could order



                a trial or a quick hearing just on that issue



                alone?



                           SENATOR VOLKER:    Well, there's



                nothing -- I don't believe there's anything in















                                                        3821







                here that says that.  But there's also nothing



                that says if there's some issue that is not



                anticipated, that a judge, for instance -- not



                necessarily a trial, but I suppose could



                certainly order a hearing.



                           I mean, it's -- once you submit to



                the judge, the judge could do virtually



                anything, when you come right down to it, to



                resolve the issue.



                           And the whole idea is to simplify



                it.  So a judge, for instance, could say:



                We'd better have a hearing specifically on



                that issue, bring in your proof tomorrow or



                the next day, whatever.  And if it's two --



                for instance, a plaintiff and a defendant, it



                might have been the attorneys, then I assume



                it would be a very simplified process and they



                just bring in whatever they wanted to bring in



                before the judge.



                           And as you and I know, in any of



                these proceedings if it turns out that for



                some reason there is something way out of



                whack, if the person is completely incapable,



                the judge could even appoint an attorney, you



                know, or ask the fellow to get an attorney















                                                        3822







                because it's something that he's not capable



                of handling.



                           The simplified process doesn't mean



                that the judge doesn't have the authority to



                do the same things that a judge would normally



                do in a case proceeding.



                           SENATOR DOLLINGER:    So the list



                of that (A) through (H) which talks about



                controlling discovery, it doesn't include a



                specific reference to --



                           ACTING PRESIDENT MARCELLINO:



                Gentlemen.  Gentlemen, if I could, you're -- I



                know the instinct when you're so close



                together is to talk to each other.  But when



                you do that, the stenographer can't -- no one



                else can hear the intensity and fantastic



                nature of this debate.  So we would like to



                hear you.



                           SENATOR DOLLINGER:    So again,



                through you, Mr. President, if Senator Volker



                will continue to yield.



                           SENATOR VOLKER:    Sure.



                           ACTING PRESIDENT MARCELLINO:    The



                Senator yields.



                           SENATOR DOLLINGER:    So the list















                                                        3823







                of (A) through (H), which is the options



                available to a trial judge monitoring this



                case, even though it doesn't include a



                reference to the actual trial of a contested



                issue that would require a fact determination



                by the judge, nonetheless it's -- this is not



                an attempt to preclude him from holding such a



                factual hearing if it were necessary in the



                context of the case.



                           SENATOR VOLKER:    No.  If you read



                the section, it says in furtherance of these



                purposes, the -- it says -- wait a minute



                here.  It says:  In furtherance of these



                purposes in court, by a judge personally



                acting in such a preliminary -- or anytime



                thereafter may, may -- and it goes on to list



                (A) through (H.)



                           But there's nothing that says that



                the judge can't even go farther and order



                whatever needs to be done to resolve the



                issue.



                           SENATOR DOLLINGER:    Okay.



                Through you, Mr. President, if the sponsor



                will yield to a question.



                           SENATOR VOLKER:    Yes.















                                                        3824







                           ACTING PRESIDENT MARCELLINO:    He



                yields.



                           SENATOR DOLLINGER:    Let me ask



                you the question that will be asked someday on



                appeal if this becomes law, Senator Volker.



                           Does the judge have the power,



                under this section, to award a judgment in



                excess of $75,000 if it's warranted by the



                facts and circumstances?  If the plaintiff has



                made a mistake and underestimated his case and



                the proof later shows that he's entitled to



                $100,000, can he award a judgment for



                $100,000, or is he completely restricted to



                the $75,000 which is the limit in this?



                           SENATOR VOLKER:    It would be my



                opinion, and based on what I know of this



                section, that if it turned out that both



                people had agreed to this procedure assuming



                it was under $75,000, and it ended up more, it



                would seem to me that the judge could still



                order it.



                           I suppose that the losing party



                could appeal on that basis.  My assumption



                would be that such an appeal would probably be



                thrown out, because the fact that -- the















                                                        3825







                $75,000 certainly is a guide to bringing any



                action.  But I think if it turns out that it



                should be more -- and that's very honestly



                particularly so if both people were



                represented by attorneys.  I suppose if the



                defendant or whoever lost was not represented



                by an attorney, it might be something that



                could be more apt for an appellate judge to --



                but I would think that given the nature of



                this process, that it possibly would hold,



                even though it turned out to be -- as long as



                it wasn't a million -- as long as it wasn't so



                out of control that it would be way above the



                $75,000, I think it would hold.



                           SENATOR DOLLINGER:    I'm not -- I



                just -- at least in my experience, Senator



                Volker, that's always a question that tends to



                come up -- there's a procedure set up and a



                cap on it -- because eventually there's an



                issue unforeseen at the time of pleading that



                comes up that increases the value of the



                claim.  And I was just interested in your



                opinion on it.



                           The last question, if Senator



                Volker will continue to yield, Mr. President.















                                                        3826







                           ACTING PRESIDENT MARCELLINO:    I'm



                sure he does.



                           SENATOR DOLLINGER:    Senator, the



                provisions that you set forth here that would



                allow an appellate judge to overturn the



                disposition granted by the trial judge, are



                they meant to mimic those set forth in the



                arbitration law?  In the sense that, as you



                know, there are very -- the scope of appeal in



                arbitration is significantly less than it is



                in a general civil action.



                           Is it your intention to similarly



                confine the scope of appeal and the basis for



                overturning an appeal in this case?



                           SENATOR VOLKER:    I would think



                that given the nature of this process that



                once both parties agree to the process, it



                would seem that the appeal process would be



                more limited.



                           Although not as specifically



                limited, though, as arbitration, as you know.



                Because the arbitration appeals are pretty --



                very unusually strict, is what I'm saying.



                           SENATOR DOLLINGER:    Right.



                Right.















                                                        3827







                           SENATOR VOLKER:    I don't think



                this would be as strict.



                           But I would think that given the



                nature of the process, that they certainly



                wouldn't be in the same nature as a normal



                appeal would be.



                           SENATOR DOLLINGER:    Okay.  The



                reason why -- through you, Mr. President, just



                on the bill briefly.



                           ACTING PRESIDENT MARCELLINO:



                Senator Dollinger, on the bill.



                           SENATOR DOLLINGER:    Senator



                Volker, I guess I'm struck by the similarity



                in the provision here with respect to the



                scope of appeal and the provision with respect



                to arbitration.



                           Arbitrations, as you properly point



                out, are very limited in their review by the



                civil courts in the sense that it's only when



                there's a clear error in the computations or a



                very substantial departure from law that those



                arbitration awards are overturned.



                           The whole theory being that when



                the parties consent to the adjudication in a



                non-courtroom proceeding, they are bound by















                                                        3828







                that adjudication.  It's supposed to be final



                and binding.



                           I think in this statute, in this



                proposed statute, what you've done is really



                mimicked the arbitration rules.  That is, the



                disposition lacks a serious rational



                foundation as to be arbitrary and capricious,



                a standard well-known to lawyers.



                           And in essence we're saying that



                it's a little bit less rigorous than the



                arbitration review, which is either gross



                mistake of fact or error in the computation.



                The arbitrary and capricious standard with



                respect to arbitration decisions really



                doesn't apply.



                           I mean, it's -- we discarded that



                in the CPLR about twenty years ago, I think,



                to our credit.  Because arbitrary and



                capriciousness -- the determination of



                arbitrary and capriciousness ended up being



                arbitrary and capriciousness.



                           So it seems to me that putting that



                standard in is not a bad resolution for this



                process.  I'm going to agree with Senator



                Paterson.  I guess at first blush I looked at















                                                        3829







                this proposal and said, well, we're taking



                away people's right to a trial by jury.



                           I think so long as that's done with



                the assistance of counsel, with the proper



                notice, with the supervision of a trial judge,



                who I assume can provide the same kind of



                balance and the same governance in these cases



                that is needed, that will be fair and



                even-handed, it seems to me that this is not a



                bad way to go.



                           The plaintiff will get a chance to



                make an up-front decision that in essence he



                doesn't want a jury trial and that he wants an



                expedited process.  The defendant has an



                opportunity to come in, much like in federal



                practice, you file an action, you don't file a



                right for a jury demand.  The defendant can



                come in and file a demand for a jury.  That's



                in essence what this procedure does.



                           I understand my friends at the



                Trial Lawyers are concerned about that



                slippery slope.  I would suggest in this case



                we've put enough safeguards in to suggest that



                the slope is not that slippery this time.  And



                although it may be slightly pitched downhill















                                                        3830







                toward, at some point in the future, other



                changes in our civil justice system, I don't



                think this is as slippery a slope as it's



                portrayed to be.



                           I'll be voting in the affirmative.



                           ACTING PRESIDENT MARCELLINO:    Are



                there any other Senators wishing to be heard?



                           Seeing none, read the last section.



                           THE SECRETARY:    Section 2.  This



                act shall take effect on the first day of



                January.



                           ACTING PRESIDENT MARCELLINO:



                Call the roll.



                           (The Secretary called the roll.)



                           ACTING PRESIDENT MARCELLINO:



                Count the nay votes and announce the results.



                           THE SECRETARY:    Those recorded in



                the negative on Calendar Number 1237 are



                Senators Breslin, Brown, DeFrancisco,



                Hassell-Thompson, L. Krueger, Montgomery,



                Onorato, Schneiderman, A. Smith, M. Smith, and



                Stavisky.  Ayes, 40.  Nays, 11.



                           ACTING PRESIDENT MARCELLINO:    The



                bill is passed.



                           Senator Johnson, that completes the















                                                        3831







                controversial calendar.



                           SENATOR JOHNSON:    May we please



                return to reports of standing committees.



                There's a report of the Rules Committee at the



                desk.



                           ACTING PRESIDENT MARCELLINO:



                Return to reports of standing committees.



                           The Secretary will read.



                           THE SECRETARY:    Senator Bruno,



                from the Committee on Rules, reports the



                following bills:



                           Senate Print 138, by Senator



                Volker, an act to amend the Alcoholic Beverage



                Control Law;



                           5207, by Senator Wright, an act to



                amend the Public Service Law;



                           6606, by Senator Hoffmann, an act



                to amend the Real Property Tax Law;



                           7180, by Senator Balboni, an act to



                amend the Public Authorities Law;



                           7353, by Senator Spano, an act to



                amend the Labor Law;



                           7407, by Senator Stafford, an act



                to amend the Environmental Conservation Law;



                           7412A, by Senator Meier, an act to















                                                        3832







                amend the Social Services Law;



                           7428, by Senator Velella, an act to



                amend Chapter 557 of the Laws of 2002;



                           7434, by Senator Marcellino, an act



                to authorize;



                           7436, by Senator Bonacic, an act to



                amend the Town Law;



                           And 7452, by Senator Wright, an act



                to amend Chapter 640 of the Laws of 1990.



                           All bills ordered direct to third



                reading.



                           ACTING PRESIDENT MARCELLINO:    All



                in favor of accepting the report of the Rules



                Committee signify by saying aye.



                           (Response of "Aye.")



                           ACTING PRESIDENT MARCELLINO:



                Opposed, nay.



                           (No response.)



                           ACTING PRESIDENT MARCELLINO:    The



                report is accepted.  All bills are reported to



                Third Reading Calendar.



                           Senator Johnson.



                           SENATOR JOHNSON:    Mr. President,



                I'd like to call up Calendar Number 1258 at



                this time.















                                                        3833







                           ACTING PRESIDENT MARCELLINO:    The



                Secretary will read Calendar Number 1258.



                           THE SECRETARY:    In relation to



                Calendar 1258, Senator Wright moves to



                discharge, from the Committee on Rules,



                Assembly Bill Number 11123A and substitute it



                for the identical Senate Bill Number 7452,



                Third Reading Calendar 1258.



                           ACTING PRESIDENT MARCELLINO:



                Substitution ordered.



                           The Secretary will read.



                           THE SECRETARY:    Calendar Number



                1258, by the Assembly Committee on Rules,



                Assembly Print Number 11123A, an act to amend



                Chapter 640 of the Laws of 1990.



                           ACTING PRESIDENT MARCELLINO:



                Read the last section.



                           THE SECRETARY:    Section 2.  This



                act shall take effect immediately.



                           ACTING PRESIDENT MARCELLINO:



                Call the roll.



                           (The Secretary called the roll.)



                           THE SECRETARY:    Ayes, 51.



                           ACTING PRESIDENT MARCELLINO:    The



                bill is passed.















                                                        3834







                           SENATOR SEWARD:    Mr. President.



                           ACTING PRESIDENT MARCELLINO:



                Senator Seward.



                           SENATOR SEWARD:    Mr. President, I



                would ask unanimous consent to make this



                statement.  On May 20th, Senate Bill Number



                7430, Calendar Number 1210, passed on a slow



                roll call.  I was unavoidably out of the



                chamber at that time at a meeting.



                           And I would just like the record to



                note that had I been in the chamber, I would



                have voted no.



                           ACTING PRESIDENT MARCELLINO:    The



                record will so indicate.



                           Senator Wright.



                           SENATOR WRIGHT:    Mr. President,



                on behalf of Senator Meier, on page 67 I offer



                the following amendments to Calendar Number



                1251, Senate Print Number 7135A, and ask that



                said bill retain its place on Third Reading



                Calendar.



                           ACTING PRESIDENT MARCELLINO:    The



                amendments are received and adopted, and the



                bill will retain its place on the Third



                Reading Calendar.















                                                        3835







                           Senator Johnson.



                           SENATOR JOHNSON:    Is there any



                further housekeeping at the desk?



                           ACTING PRESIDENT MARCELLINO:    No,



                Senator, the house is clean.



                           SENATOR JOHNSON:    There being no



                further business, I move we adjourn until



                Monday, June 3rd, at 3:00 p.m., intervening



                days being legislative days.



                           ACTING PRESIDENT MARCELLINO:    On



                motion, the Senate stands adjourned until



                Monday, June 3, at 3:00 p.m., intervening days



                being legislative days.



                           (Whereupon, at 11:54 a.m., the



                Senate adjourned.)