|12/22/2017||referred to judiciary|
|01/03/2018||referred to judiciary|
|02/09/2018||amend (t) and recommit to judiciary|
|02/09/2018||print number 8852a|
|02/28/2018||amend and recommit to judiciary|
|02/28/2018||print number 8852b|
|03/22/2018||advanced to third reading cal.719|
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NEW YORK STATE ASSEMBLY
MEMORANDUM IN SUPPORT OF LEGISLATION
submitted in accordance with Assembly Rule III, Sec 1(f)
BILL NUMBER: A8852B 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 OR GENERAL IDEA 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.   SUMMARY OF PROVISIONS: Section 1 of this bill amends subdivision b of rule 305 of the civil practice law and rules, regarding the inclusion in a summons with notice for personal injury or wrongful death. Section 2 amends subdivision c of section 3017 of the civil practice law and rules to include prayer for general relief for all personal injury or wrongful death causes of action. Section 3 amends subdivision 2 of section 50-e of the general municipal law to account for both sexes-male and female. Section 4 establishes the effective date.   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/2017/06/about-eric bollings50-milliondefamation-suit-and-the-ad-dammun-clause-loophole.html 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.   PRIOR LEGISLATIVE HISTORY: New bill.   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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STATE OF NEW YORK ________________________________________________________________________ 8852--B 2017-2018 Regular Sessions IN ASSEMBLY December 22, 2017 ___________ Introduced by M. of A. O'DONNELL -- read once and referred to the Committee on Judiciary -- recommitted to the Committee on Judiciary in accordance with Assembly Rule 3, sec. 2 -- committee discharged, bill amended, ordered reprinted as amended and recommitted to said commit- tee -- again reported from said committee with amendments, ordered reprinted as amended and recommitted to said committee AN ACT to amend the civil practice law and rules, in relation to requir- ing 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 The People of the State of New York, represented in Senate and Assem- bly, do enact as follows: 1 Section 1. Subdivision (b) of rule 305 of the civil practice law and 2 rules, as amended by chapter 528 of the laws of 1978, is amended to read 3 as follows: 4 (b) Summons and notice. If the complaint is not served with the 5 summons, the summons shall contain or have attached thereto a notice 6 stating the nature of the action and the relief sought[ ,] and, except in 7 [ an action for medical malpractice] actions for personal injury or 8 wrongful death, the sum of money for which judgment may be taken in case 9 of default. 10 § 2. Subdivision (c) of section 3017 of the civil practice law and 11 rules, as amended by chapter 694 of the laws of 2003, is amended to read 12 as follows: 13 (c) Personal injury or wrongful death actions. In an action to recover 14 damages for personal injuries or wrongful death, the complaint, summons 15 with notice, counterclaim, cross-claim, interpleader complaint, and 16 third-party complaint shall contain a prayer for general relief but 17 shall not state the amount of damages to which the pleader deems himself 18 or herself entitled. If the action is brought in the supreme court, the 19 pleading shall also state whether or not the amount of damages sought EXPLANATION--Matter in italics (underscored) is new; matter in brackets [ ] is old law to be omitted. LBD13919-03-8A. 8852--B 2 1 exceeds the jurisdictional limits of all lower courts which would other- 2 wise have jurisdiction. Provided, however, that a party against whom an 3 action to recover damages for personal injuries or wrongful death is 4 brought, may at any time request a supplemental demand setting forth the 5 total damages to which the pleader deems himself or herself entitled. A 6 supplemental demand shall be provided by the party bringing the action 7 within fifteen days of the request. In the event the supplemental demand 8 is not served within fifteen days, the court, on motion, may order that 9 it be served. A supplemental demand served pursuant to this subdivision 10 shall be treated in all respects as a demand made pursuant to subdivi- 11 sion (a) of this section. 12 § 3. Subdivision 2 of section 50-e of the general municipal law, as 13 amended by chapter 62 of the laws of 1983, is amended to read as 14 follows: 15 2. Form of notice; contents. The notice shall be in writing, sworn to 16 by or on behalf of the claimant, and shall set forth: (1) the name and 17 post-office address of each claimant, and of his or her attorney, if 18 any; (2) the nature of the claim; (3) the time when, the place where and 19 the manner in which the claim arose; and (4) the items of damage or 20 injuries claimed to have been sustained so far as then practicable but a 21 notice with respect to a claim against a municipal corporation [ other22 than a city with a population of one million or more persons] shall not 23 state the amount of damages to which the claimant deems himself or 24 herself entitled, provided, however, that the municipal corporation[ ,25 other than a city with a population of one million or more persons,] may 26 at any time request a supplemental claim setting forth the total damages 27 to which the claimant deems himself or herself entitled. A supplemental 28 claim shall be provided by the claimant within fifteen days of the 29 request. In the event the supplemental demand is not served within 30 fifteen days, the court, on motion, may order that it be provided by the 31 claimant. 32 § 4. This act shall take effect on the thirtieth day after it shall 33 have become a law, and shall apply to actions commenced on or after such 34 date.