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A08852 Memo:

NEW YORK STATE ASSEMBLY
MEMORANDUM IN SUPPORT OF LEGISLATION
submitted in accordance with Assembly Rule III, Sec 1(f)
 
BILL NUMBER: A8852A
 
SPONSOR: O'Donnell
  TITLE OF BILL: An act to amend the civil practice law and rules, in relation to requiring all personal injury or wrongful death causes of action to include a prayer for general relief; and to amend the general municipal law, in relation to exempting notices of claim from such requirement   PURPOSE OF BILL: To amend sections 305 (b) and 3017 of the civil practice law and rules, as well as a conforming change to section 50-e of the general municipal law, to prohibit the inclusion in a summons with notice of a prayer for specific monetary relief in actions for personal injury or wrongful death.   JUSTIFICATION: In 2003, CPLR 3017 was amended to broaden the proscription against including prayers for specific money damages from medical or dental malpractice actions against municipalities, to all types of personal injury or wrongful death actions. Chapter 694 of 2003. This chapter proscribed including such prayers for relief in a complaint, counter-claim, cross-claim, interpleader complaint, and a third-party complaint in these types of actions. The sponsor's memo for said bill explained the rationale for same as follows: At the outset of a personal injury case, it is difficult to fairly esti- mate what the plaintiff's total damages may be. Present law encourages claimants and their lawyers to claim a large dollar amount for damages, out of a concern that a demand may turn out to be too low and, there- fore, limit an eventual recovery. This bill would extend to all personal injury and wrongful death cases the rule that presently exists for medical and dental malpractice cases and cases against municipalities. However, the above-described methods of commencing an action did not include all manner of commencement of an action. Specifically, an action can be brought by filing and serving a summons with notice pursuant to CPLR 304 (a) and CPLR 305 (b), but without complying with CPLR 3017, as commencement via summons with notice was not among the methods of bring- ing a claim as set forth in Chapter 694 of 2003. While noted Professor David Siegel had oft cautioned attorneys not to commence actions in this manner, there have been instances where commencement in this fashion has nevertheless occurred. E.g.http://www.newyorkpersonalinjuryanorneyblog.com/2017/08/about-eric -bollings50-milliondefamation-suit-and-the-ad-dammun-clause-loophole.h tml This bill adds "summons with notice" to the above list of methods of bringing a claim such as would proscribe a prayer for specific monetary relief, thus eliminating a statutory loophole concerning commencement of personal injury and wrongful death actions. The bill also makes a conforming change to section 50-e of the general municipal law to eliminate the requirement that an amount be specif- ically sought by a claimant in a notice of claim for cities over one million in population. Previous amendments to the general municipal law and court of claims act had eliminated this requirement for claims against smaller localities and claims against the state. Nevertheless, a governmental entity covered by section 50-e may still issue a request for particularized damages information via supplemental demand. Thus, no party would be prejudiced by such an amendment.   LEGISLATIVE HISTORY: New bill, 2017.   FISCAL IMPLICATIONS FOR STATE AND LOCAL GOVERNMENTS: None.   EFFECTIVE DATE: The thirtieth day after it shall become law, and shall apply to all actions commenced after such date.
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