Rule 3407. Preliminary conference in personal injury actions involving certain terminally ill parties. (a) Request for conference. At any time, a party to an action who is terminally ill, and who asserts in a pleading in such action that such terminal illness is the result of the culpable conduct of another party to such action, may request an expedited preliminary conference in such action. Such request shall be filed in writing with the clerk of the court, and shall be accompanied by a physician's affidavit stating that the party is terminally ill, the nature of the terminal illness, and the duration of life expectancy of such party, if known. The court shall hold a preliminary conference in such action within twenty days after the filing of such a request. (b) 1. Preliminary conference. At such preliminary conference, the court shall issue an order establishing a schedule for the completion of all discovery proceedings, to be completed within ninety days after the date of the preliminary conference, unless it can be demonstrated for good cause that a longer period is necessary. 2. At such preliminary conference, the court shall issue an order that a note of issue and certificate of readiness be filed in such action within a period of time specified in the order, that the action receive a preference in trial, and that the trial be commenced within from the date of such order. In its discretion, and upon application of any party, the court may advance or adjourn such trial date based on the circumstances of the case. one year 3. Notwithstanding the provisions of subdivision (b) of rule 3214 of this chapter, the service or pendency of a motion under rule 3211, 3212 or section 3213 of this chapter shall not stay disclosure in an action where a preliminary conference order has been entered pursuant to this rule. § 2. This act shall take effect on the first day of September next succeeding the date on which it shall have become a law. CHAPTER 583 AN ACT to amend the general municipal law, in relation to right of action to certain injured or representatives of certain deceased firefighters Became a law July 24, 1992, with the approval of the Governor. The People of the State of New York, represented in Senate and Assembly, do enact as follows: Section 1. Section 205-a of the general municipal law, as amended by chapter 251 of the laws of 1936, is amended to read as follows: any per § 205-a. Additional right of action to certain injured or representatives of certain deceased [firemen] firefighters. In addition to other right of action or recovery under any other provision of law, in the event any accident, causing injury, death or a disease which results in death, occurs directly or indirectly as a result of any neglect, omission, [wilful] willful or culpable negligence of any person or sons in failing to comply with the requirements of any of the statutes, ordinances, rules, orders and requirements of the federal, state, county, village, town or city governments or of any and all their departments, divisions and bureaus, the person or persons guilty of said neglect, omission, willful or culpable negligence at the time of such injury or death shall be liable to pay any officer, member, agent or employee of any fire department injured, or whose life may be lost while in the discharge or performance of any duty imposed by the fire commissioner, fire chief or other superior officer of the fire department, or to pay to the wife and children, or to pay to the parents, or to pay the brothers and sisters, being the surviving heirs-at-law of any deceased person thus having lost his life, a sum of money, in case of injury to person, not less than [one] ten thousand dollars, and in case to to of death not less than [five] forty thousand dollars, such liability be determined and such sums recovered in an action to be instituted by any person injured or the family or relatives of any person killed as aforesaid. § 2. This act shall take effect immediately. AN CHAPTER 584 ACT to amend the navigation law, in relation to limited immunity for persons responding to oil spills under the national contingency plan Became a law July 24, 1992, with the approval of the Governor. Passed on message of necessity pursuant to Article III, section 14 of the Constitution by a majority vote, three-fifths being present. The People of the State of New York, represented in Senate and Assembly, do enact as follows: Section 1. Subdivision 11 of section 172 of the navigation law, as added by chapter 845 of the laws of 1977, is amended and a new subdivision 15-d is added to read as follows: 11. "Major facility" includes but is not limited to any refinery, storage or transfer terminal, pipeline, deep water port, drilling platform or any appurtenance related to any of the preceding that is used or is capable of being used to refine, produce, store, handle, transfer, process or transport petroleum. A vessel shall be considered a major facility only when petroleum is transferred between vessels. A vessel that would not otherwise be considered a major facility shall not be considered a major facility based solely upon its rendering of care, assistance or advice consistent with the national contingency plan or as otherwise directed by the federal on-scene coordinator or by the commissioner or his designee, in response to a discharge of petroleum into or upon the navigable waters. Facilities with total combined above-ground or buried storage capacity of less than four hundred thousand gallons are not major facilities for the purposes of this article; 15-d. "Tank vessel" means a vessel that is constructed or adapted to carry, or that carries, petroleum in bulk as cargo or cargo residue, and that: (a) is a vessel of the United States; (b) operates on the waters of the state of New York; or (c) transfers petroleum in a place subject to the jurisdiction of the of the state of New York. § 2. Subdivision 2 and the opening paragraph of subdivision 9 of section 174 of the navigation law, as added by chapter 845 of the laws of 1977, are amended to read as follows: 2. Licenses shall be issued [on an annual basis and shall expire on March thirty-first annually] for a period not to exceed five years, subject to such terms and conditions as the department may determine are necessary to carry out the purposes of this article. On or after [a date to be determined by the commissioner, but in no case later than ninety days after the effective date of this article] June twenty-ninth, nineteen hundred seventy-eight, no person shall operate or cause to be operated any major facility without a major facility license issued by the commissioner. No license shall be valid for more than [one year] five years. Each applicant for a major facility license shall submit information, in a form satisfactory to the commissioner, describing the following: So in original. (Second "of the" inadvertently added.) EXPLANATION-Matter in italics is new; matter in brackets [] is old law § 3. Paragraph (a) of subdivision 2 and subdivision 4 of section 176 of the navigation law, paragraph (a) of subdivision 2 as amended by chapter 536 of the laws of 1987 and subdivision 4 as added by chapter 845 of the laws of 1977, are amended to read as follows: (a) Upon the Occurrence of a discharge of petroleum, the department shall respond promptly and proceed to cleanup and remove the discharge in [accord] accordance with environmental priorities or may, at its discretion, direct the discharger to promptly cleanup and remove the discharge. The department shall be responsible for cleanup and removal or as the case may be, for retaining agents and contractors who shall operate under the direction of that department for such purposes. Implementation of cleanup and removal procedures after each discharge shall be conducted in accordance with environmental priorities and procedures established by the department. 4. Cleanup and removal of petroleum and actions to minimize damage from discharges shall be, to the greatest extent possible, in accordance with the National Contingency Plan for removal of oil and hazardous substances established pursuant to section 311 [(c) (2)] (d) of the Federal Water Pollution Control Act [Amendments of 1972 (P. L. 92-500,] (33 U.S. C. 1251 et seq.), as amended by the Federal Oil Pollution Act of 1990 (33 U.S.C. 2701 et seq.), or revised under section 105 of the Comprehensive Environmental Response, Compensation, and Liability Act (42 U.S.C. 9605). § 4. The navigation law is amended by adding a new section 178-a to read as follows: § 178-a. Responder immunity. 1. Definitions. For the purposes of this section only, the following terms shall have the following meanings: (a) "response efforts" means rendering care, assistance, or advice in accordance with the national contingency plan, the state oil spill contingency plan, or at the direction of the federal on-scene coordinator or the commissioner or his designee, in response to a discharge or threatened discharge of petroleum into or upon the navigable waters. (b) "responsible party" and "navigable waters" shall have the meanings set forth in section 1001 of the Federal Oil Pollution Act of 1990 (33 U.S.C. 2701 et seq.). 2. Notwithstanding any other provision of law, a person is not liable for cleanup and removal costs or damages which result from actions taken or omitted to be taken in good faith in the course of rendering care, assistance or advice consistent with the national contingency plan or as otherwise directed by the federal on-scene coordinator or by the commissioner or his designee, in response to a discharge or threatened discharge of petroleum into or upon the navigable waters. 3. However, the provisions of subdivision two of this section shall not apply to: (i) a responsible party, (ii) liability for personal injury or wrongful death, (iii) cleanup and removal costs and damages resulting from such person's gross negligence or willful misconduct, (iv) negligence in the operation of a motor vehicle as defined in section one hundred twenty-five of the vehicle and traffic law, and (v) any physical actions taken that are not in or near the area of cleanup and removal of a discharge or threatened discharge. 4. The provisions of subdivision two of this section shall not apply to any response efforts undertaken by a person later than one hundred twenty days after a discharge has been stopped. Thereafter, such person shall not be strictly liable without regard to fault, but the liability of such person for personal injury or property damage shall be limited to acts or omissions of the person during the course of such response efforts which are shown to be the result of negligence, gross negligence, or reckless, wanton or intentional misconduct. Notwithstanding any other provision of law, when (i) a verdict or decision on a claim for injury to persons or property caused by response efforts, occurring after such one hundred twenty day period has ended, is determined in favor of the claimant in an action involving such person's response efforts and any other person or persons jointly liable, and (ii) the liability of the person related to such response efforts is found to be fifty percent or less of the total liability assigned to all persons liable, and (iii) the liability of the person related to such response efforts is not based on a finding of reckless disregard for the safety of others or of intentional misconduct, then the liability of such person to the claimant for injury to property and for non-economic loss relating to injury to a person shall not exceed the equitable share of such person as determined in accordance with the relative culpability of each person causing or contributing to the total liability. Provided, how ever, the culpable conduct of any person not a party to such action shall not be considered in determining any equitable share if the claimant was unable, with due diligence, to obtain jurisdiction over such person in said action. As used in this section, "non-economic loss" includes but is not limited to pain and suffering, mental anguish, loss of consortium or other damages for non-economic loss. However, nothing herein shall alter, modify, or abrogate the liability of any person for breach of warranty or to an employee of such person pursuant to the workers' compensation law, or to relieve from liability any person who is responsible for a discharge in violation of section one hundred seventy-four of this article. 5. In addition to any other liability, a responsible party shall be liable for any cleanup and removal costs and damages that another person is relieved of under subdivision two or four or both of this section. 6. Nothing in this section affects (i) the obligation of a discharger to respond immediately and to cleanup and remove a discharge; or (ii) the liability of a discharger under other provisions of this article or the environmental conservation law. § 5. Subdivision 3 of section 181 of the navigation law, as amended by chapter 672 of the laws of 1991, is amended to read as follows: 3. (a) The owner or operator of a major facility or vessel which has discharged petroleum shall be strictly liable, without regard to fault, subject to the defenses enumerated in subdivision four of this section, for all cleanup and removal costs and all direct and indirect damages paid by the fund. However, the cleanup and removal costs and direct and indirect damages which may be recovered by the fund with respect to each incident shall not exceed [fifty million dollars for each major facility or three hundred dollars per gross ton for each vessel, except that such maximum limitation]: (i) for a tank vessel, the greater of: (1) one thousand two hundred dollars per gross ton; or (2) (A) in the case of a vessel greater than three thousand gross tons, ten million dollars; or (B) in the case of a vessel or* three thousand gross tons or less, two million dollars; (ii) for any other vessel subject to the liability limits set forth in the Federal Oil Pollution Act of 1990 (33 U.S.C. 2701 et seq.), six hundred dollars per gross ton or five hundred thousand dollars, whichever is greater; (iii) for any other vessel not subject to the liability limits set forth in the Federal Oil Pollution Act of 1990 (33 U.S.C. 2701 et seq.), three hundred dollars per gross ton for each vessel; (iv) for a major facility that is defined as an "onshore facility" and covered by the liability limits established under the Federal Oil Pollution Act of 1990 (33 U.S.C. 2701 et seq.), three hundred fifty million dollars. This liability limit shall not be considered to increase the liability above the federal limit of three hundred fifty million dollars per incident.† (v) for a major facility not covered in subparagraph (iv) of this paragraph, fifty million dollars. (b) The liability limits established in subparagraphs (i) and (ii) of paragraph (a) of this subdivision shall not be considered to increase liability above the federal limits for tank vessels or vessels as defined in the Federal Oil Pollution Act of 1990 (33 U.S.C. 2701 et seq.). (c) (i) The department shall establish, by regulation, a limit of liability under this subdivision of less than three hundred fifty million dollars but not less than eight million dollars, for major facilities defined as "onshore facilities" under the Federal Oil Pollution Act of 1990 (33 U.S.C. 2701 et seq.), taking into account facility size, storage capacity, throughput, proximity to environmentally sensitive type of petroleum handled, and other factors relevant to risks areas, posed by the class or category of facility. (ii) The department shall establish, by regulation, a limit of liability under this subdivision of fifty million dollars or less for major facilities other than vessels that are not defined as "onshore facili So in original. ("or" should be "of".) So in original. (Period should be semicolon.) EXPLANATION-Matter in italics is new; matter in brackets [ ] is old law ties" under the Federal Oil Pollution Act of 1990 (33 U.S.C. 270 et seg.), taking into account facility size, storage capacity, throughput, proximity to environmentally sensitive areas, type of petroleum handled, and other factors relevant to risks posed by the class or category of facility, (d) The provisions of paragraph (a) of this subdivision shall not apply and the owner or operator shall be liable for the full amount of Such cleanup and removal costs and damages if it can be shown that such the discharge was the result of [(a)] (i) gross negligence or willful misconduct, within the knowledge and privity of the owner, operator or person in charge, or [(b)] (ii) a gross or willful violation of applicable safety, construction or operating standards or regulations. In addition, the provisions of paragraph (a) of this subdivision shall not apply if the owner or operator fails or refuses: (1) to report the discharge as required by section one hundred seventy five of this article and the owner or operator knows or had reason to know of the discharge; or (2) to provide all reasonable cooperation and assistance requested by the federal on-scene coordinator or the commissioner or his designee in connection with cleanup and removal activities. a (e) (1) The owner or operator of a vessel shall establish and maintain with the department evidence of financial responsibility sufficient to meet the amount of liability established pursuant to paragraph (a) of this subdivision. The owner or operator of any vessel which demonstrates financial responsibility pursuant to the requirements of the Federal Oil Pollution Act of 1990 (33 U.S.C. 2701 et seq.), shall be deemed to have demonstrated financial responsibility in accordance with this paragraph. (11) The commissioner in consultation with the superintendent of insulance may promulgate regulations requiring the owner or operator of major facility other than a vessel to establish and maintain evidence of financial responsibility in an amount not to exceed twenty-five dollars, per incident for each barrel of total petroleum storage capacity at the facility, subject to a maximum of one million dollars per incident per facility in an aggregate not to exceed two million dollars per facility; provided, however that if the owner or operator establishes to Sat istaction of the commissioner that a lesser amount will be sufficient to protect the environment and public health, safety and welfare, the COMMENs foner shall accept evidence of financial responsibility in such lesser amount. In determining the sufficiency of the amount of financial responsibility required under this section, the commissioner and the super intendent of insurance shall take into consideration facility size, storage capacity, throughput, proximity to environmentally sensitive areas, type of petroleum handled, and other factors relevant to the risks posed by the class or category of facility, as well as the availability and attordability of pollution liability insurance. Any regulattons promulgated pursuant to this subparagraph shall not take effect unt il forty eight months after the effective date of this section. the (iii) Financial responsibility under this paragraph may be established by any one or a combination of the following methods acceptable to the COMMISSIONER in consultation with the superintendent of insurance,* evidence of insurance, surety bonds, guarantee, letter of credit, qualification as a self-insurer, or other evidence of financial responsibility, including cert it ications which qualify under the Federal Oil Pollution dot or 1990 (33 U.S.E. 2701 et seq.) ; The liability of a third-party insurer providing proof of financial responsibility on behalf of a person required to establish and æaintain evidence of financial responsibility under this section is lirtted to the type of risk assured and the amount of coverage specified in the or financial responsibility furnished to and approved by the deixartment. For the purposes or this section, the term "third-party means a third-party insurer, surety, guarantor, person furnish ms a letter of credit, or other group or person providing proof of finance rat responsibility behalf of another person; it does not ed to establish and maintain evidence of 6. This act shall take effect immediately. So in original. (Coma should be colon.) |