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.)