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ALBANY � A bill designed to encourage settlements in multi-defendant personal injury and wrongful death cases inched closer to passage yesterday when the Senate Judiciary committee advanced the measure over the objections of the powerful state medical lobby. The measure, S2829, which is also nearing final approval in the Assembly, is strongly supported by the Office of Court Administration. It is just as firmly opposed by some “tort reform” advocates, especially the Medical Society of the State of New York. It would force the non-settling party in tort cases in which one party has settled to make a choice before trial of whether to reduce its liability by the amount of the settler’s payment or the amount of the settler’s equitable share of damages. Senate Judiciary Committee Chairman John A. DeFrancisco, a trial lawyer from Syracuse, is carrying the bill in the upper chamber. His Assembly counterpart, Assemblywoman Helene E. Weinstein, D-Brooklyn, is sponsoring an identical measure in the lower house. The Senate is under Republican control and Democrats dominate the Assembly. The bill was introduced at the request of Chief Administrative Judge Jonathan Lippman’s Advisory Committee on Civil Practice. It seeks to remedy a problem identified by the Law Revision Committee in 1986. As it now stands, under General Obligation Law ��15-108 non-settlors can reduce their exposure by the greatest of the amount that the plaintiff accepted in settlement, the amount the plaintiff was stipulated to receive in settlement, and the “equitable share” of the settling tortfeasor’s portion of damages. The problem, according to the Judiciary, is that provision often rewards defendants for not settling while penalizing those who do. It may well benefit the non-settling party to wait and see what a jury awards because it can then reduce the award by the larger amount. Consequently, critics complain, a measure initially crafted to encourage settlements actually has had the opposite effect. The new legislation would require the non-settling party to choose before rather than after trial how to account for the settlement. “The difference is that because the non-settlor would have to make the choice before the verdict was rendered, there would be an incentive to a defendant to settle, rather than to sit back and choose the ‘best of both worlds,’ ” the Office of Court Administration said in promoting the bill. But the Medical Society said the measure contains an unacceptable glitch. It contends that the proposed legislation could result in a plaintiff’s collecting a windfall. For example, now if one of two defendants settles for, say, $80,000, and the jury awards a total of $100,000 in damages with equal liability, the non-settlor would be responsible for only $20,000. However, if the bill passes, the defendant would have to “roll the dice” ahead of time and decide whether to reduce its liability by either the amount of the verdict or the equitable share, according to the Medical Society. If the defendant chose equitable share, it is conceivable that it would pay $50,000 rather than $20,000 and the plaintiff would receive a $30,000 windfall, according to Gerald L. Conway, the Medical Society’s chief lobbyist. “Any proposal that could increase the liability costs borne by physicians and the health care system at this time is simply not sustainable,” Mr. Conway said in a memorandum in opposition to the bill. “New York physicians are being driven to the brink as a result of a civil liability adjudication system that has gone haywire.” Mr. DeFrancisco, a Republican who generally opposes limits on tort rights, said yesterday that the bill “makes a lot of sense” and that he does not buy the argument that it amounts to “tort reform in reverse.” Two committee members, senators Dale M. Volker, R-Erie County, and Michael A.L. Balboni, R-Nassau County, opposed the measure. Other Bills Advanced Also yesterday, the Senate Judiciary Committee advanced bills that would: � Allow assignment of mortgage in lieu of a certificate of discharge. The aim of Mr. DeFrancisco’s bill, S2287, is relatively simple: Shielding property owners from double taxation. But getting it passed has proven problematic. It has been floating around the Capitol since at least 1994 and, despite widespread legislative support, was vetoed by Governors Mario M. Cuomo and George E. Pataki. Here is the problem: In 1989, the Legislature amended the Real Property Tax Law to put an end to a tax strategy in which so-called “dormant mortgages” are used to avoid taxes. The way it works is a mortgagor pays off the old mortgage, assigns them to himself and then uses the “dormant” mortgage to obtain a new loan. That way, the mortgagor avoids mortgage tax. Since then, banks have taken the position that they are not required to provide an assignment of mortgage when their customer refinances with another lending institution. Without that piece of paper, a mortgagor who refinances is forced to pay the mortgage tax twice � once for the old debt and once for the new one. In vetoing reform bills, Governors Cuomo and Pataki both cited the potential loss of tax income. Mr. DeFrancisco, however, maintains that argument is baseless in light of several Tax Tribunal decisions and an Appellate Division ruling (see City of New York v. New York State Tax Tribunal, 231 AD2d 267 [1997]). Those decisions, which reject the notion that a refinancing requires payment of mortgage tax on the amount refinanced, prove that “the argument that this bill will cause a revenue loss to the state or localities is inaccurate,” Mr. DeFrancisco said. � Increase the salary of the Monroe County surrogate from $125,600 to $135,800 � the same amount paid to surrogates in Onondaga and Dutchess counties. Senator Michael F. Nozzolio, R-Seneca Falls, said the Monroe County surrogate handles appreciably more cases than the surrogates in Onondaga and Dutchess counties. He also said the cost of living is higher in the Rochester area than it is in the Syracuse or Poughkeepsie regions. � Expand the so-called “bawdy house laws” that, since the mid-1800s, have allowed neighbors and law enforcement officials to initiate an eviction when a property is used for an illegal enterprise. The law was originally aimed at houses of prostitution and gambling. S4891, sponsored by Mr. Volker, would extend the reach of the law to cover, among other things, drug dealing. “These amendments will greatly enhance the ability of landlords, tenants, community leaders and law enforcement to clean up drug houses and other crime locations, thereby improving the quality of life for the law-abiding residents in our neighborhoods,” Mr. Volker said in his bill justification message.

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