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President's Message | September 2017 Newsletter

 

I write to follow up on two prior columns.

First, in the July\August column, which was only available online, the merits of a New York State Constitutional Convention were discussed. For those who missed it, every 20 years the New York State Constitution mandates that voters determine if there should be a Convention to amend the State Constitution. This is on the ballot in November. The last convention was in 1967 and opponents and proponents of the proposed
convention often point to the court system as a prime example of what does or does not need reform.

New York has 11 separate trial courts. California, a State with twice the population, has only one. Prior proposals for court reform have consistently failed. A 2006 bipartisan commission appointed by former Chief Judge Judith Kaye proposed sweeping reforms which included a consolidation of the State’s 11 major trial courts into a streamlined 2 tier structure. It recommended merging the Court of Claims, the County Court, the Family Court and the Surrogate Court into the Supreme Court. It also proposed the creation of a 5th Judicial Department to ease appellate burdens. It further recommended a reform of New York’s vast network of small town courts noting that hearings were often held in garages, barns and kitchens by more than 1450 judges, many of whom were not lawyers. This proposal was supported by both the Governor and the Chief Judge,yet it died a quick death in the
New York Legislature.

The New York State Bar Association voted overwhelmingly to support Constitutional Convention noting in its report “for too long lawyers and their clients have had to accept and endure a costly and byzantine system that few understand, and no one can justify”.

The July/August column posed the question of whether the Albany County Bar Association should issue a proclamation that either supports or opposes a New York State Constitutional Convention.

We did get some responses. Many were in favor, pointing out numerous examples where the current complex
structure imposes additional costs on the litigants and the taxpayers. Some noted that injured individuals, large and small businesses and State agencies often must litigate cases simultaneously in the Supreme Court and in the Court of Claims whenever the State and a nonstate actor are named as potential joint defendants in personal injury, medical malpractice and commercial actions.

However, some members were opposed to a convention. Everyone’s favorite columnist, Mike Friedman noted the tremendous cost of the proposal which is estimated to be $300 million. He also expressed his lack of confidence that the delegates would effectively reform the court system. Mike pointed to the current expansion of programs which do not aid judges in the dispensation of justice. The current budget for the Judicial Institute has grown to 3.1 million, which is broken down as follows: Personnel: 1.3 million, Building Maintenance and operations: .3 million, Conference and Training Funds: 1.4 million. He did, however, acknowledge that at least part of the Conference and Training funds were used for much needed Yoga and Zumba classes at the Hilton Westchester in Rye. Mike noted the instructors were paid $75 an hour for their efforts plus local and travel reimbursement. He suggested that perhaps this money would be better utilized on judicial training.

On a brighter note in late June the Legislature passed a scaled-back version of Lavern’s Law which would change the Statute of Limitations on medical malpractice lawsuits to give some victims more time to file complaints and seek restitution. I noted in my March column that previous attempts at such a passage had died in the New York State Senate.

The proposed bill would allow patients with cancers and malignant tumors who were misdiagnosed to bring a malpractice lawsuit 2 ½ years from the date of discovery. However, if that misdiagnosis happened more than 7 years earlier, patients would be prohibited from suing.

Not surprisingly, the Medical Society of the State of New York, representing physicians, opposes the bill and is urging Gov. Andrew Cuomo to veto it. Obviously, the various trial lawyers’ associations support the bill would like to see the Governor sign it.

Governor Cuomo indicated that he would pass the more robust proposal back in June 2015 but his office currently says that it is “reviewing” the revised one passed by the Legislature.

Let’s all hope the Governor signs this important piece of legislation.

 

James E. Hacker, Esq.

ACBA President

 

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