SDG Provides Recap of the Many CPLR Amendments From 2018

Civil legal procedure in New York is governed by the New York Civil Practice Law and Rules (CPLR). 2018 was a year of a significant number of amendments to this very important Chapter 8 of the Consolidated Laws of New York.  The following is the first installment of two, providing a brief overview of those various amendments.

CPLR §§203 (G) and 214-A

This amendment, at the time it was being proposed, was previously discussed in our article in January 2018.

As of January 31, 2018, CPLR §214-a was amended to provide that an action against a medical provider for the delay in diagnosis of cancer may be brought either 2 1/2 years from when the patient knew or should have known of the alleged negligence in the failure to diagnose the cancer, but no later than seven years after the alleged the ledge negligence, or 2 1/2 years from last occasion where there was continuous treatment.

That similar discovery rule also applies to state a municipal hospitals and clinics, amending CPLR §203 (G)(2). The amendments are also known as Lavern’s law.

CPLR §2305 (D)

This provision addresses documents delivered to an attorney pursuant to a trial subpoena. Obtaining documents during discovery is a simple procedure, requiring merely the service of a notice upon the other party from whom the documents were sought. Seeking documents for use at trial has been more difficult, usually requiring subpoenas to be made returnable to the courthouse, where the attorney would then have to get permission from the Court, and then only be allowed to view the documentation at the courthouse. Section 2305 (D) has now been added, and according to the Advisory Committee that supported the change, “counsel should have the option of having trial material delivered to the attorney or self-represented party at the return address set forth in the subpoena, rather than to the clerk of the court.”  This of course allows for better access to the documentation and an ability to ease in trial preparations.  As with any third-party subpoena, copies of all documentation must be provided to all opposing attorneys.

That amendment went into effect August 24, 2018.

CPLR §4540-A

This addresses the presumption of authenticity of materials authored or created by a party, and brings the statute more in line with the federal rules in this area.

Authenticity is a preliminary hurdle to the admissibility of documents at the time of trial. It provides a material produced by a party in response to a CPLR article 31 demand seeking, “material authored or otherwise created by such party” is presumed authentic when adverse party offers it into evidence. The presumption can then be rebutted by the producing party by a preponderance of the evidence proving that the material was not authentic, such as a result of forgery, fraud or other authenticity defect.  Objections to admissibility such as the lack of relevance or a violation of the best evidence rule, for example, remains preserved.

The Sponsor’s memorandum discussed the benefit as primarily being the avoidance of an unnecessary burden placed on the proponent of the evidence and a waste of the Court’s resources. “Evidence of such authenticity should not be required if the party who purportedly authored or otherwise created the documents at issue has already admitted their authenticity. And if a party has responded to a pretrial litigation demand for its documents by producing those documents, the party has indeed implicitly acknowledged their authenticity. Thus, in such cases, the presentation of evidence of authenticity is a waste of the court’s time and an unnecessary burden on the proponent of the evidence.”

CPLR §§5003-B and 7515

These two amendments deal with the recent comprehensive sexual-harassment legislation that went into effect last year.

CPLR §5003-B prohibits an employer, or an employee or officer, from including a provision that would prevent the disclosure of a sexual harassment claim or the action’s underlying facts or circumstances unless the claimant-plaintiff prefers to include it. Further, the plaintiff would have 21 days to consider whether to accept the provision, and even after an agreement is signed, the plaintiff can revoke it within seven days.

CPLR §7515 prohibited mandatory arbitration in written contracts entered into on or after July 11, 2018 in connection with sexual-harassment claims, except were inconsistent with federal law.  Generally, a mandatory arbitration clause would be a provision in an employment contract that prevents victims of sexual harassment from bringing an action to court, or not allowing any type of determination to be subject to independent court review.

Please stay tuned because in our next installment, we will be discussing how Google Maps has effected the Courts in New York….