BILL NUMBER:S345

TITLE OF BILL:
An act
to amend the executive law, in relation to the definition of a campground
within the Adirondack park

PURPOSE:
To provide a more accurate definition of a campground and to permit
recreational vehicles to remain on campgrounds and on campsites in
such campgrounds during those times that they are not occupied.

SUMMARY OF PROVISIONS:
Section 1 - Amends section 802 (10) of the Executive law redefining
the definition of campground as a tract or parcel of land, including
principal buildings and accessory structures, where five or more
campsites are made available for temporary or seasonal overnight
occupancy.
Nothing in this article shall require the removal of a recreational
vehicle that remains on a campground or a campsite in such
campground, with the consent of the owner of the campground during
those periods of time that it is not occupied, provided that it is
not used in a manner that violates the terms and conditions of the
permit issued to the campground by the state or a county department of
health.

              

Section 2 - Amends section 802 of the executive law to define
recreational vehicle as a vehicular camping unit primarily designed
as temporary living quarters for recreational, camping, travel or
seasonal use that has its own motive power and is not mounted on or
towed by another vehicle.

Section 3 - Effective date

JUSTIFICATION:
There are 133 privately owned campgrounds in the Adirondack Park.
Historically, these campgrounds (with very few exceptions) have
derived most (and, in some instances, all) of their revenues from
"seasonal campers" (i.e., campers who enter into agreements with
campgrounds that allow them to occupy a campsite for an entire season
and to leave their recreational vehicles on the campsite on a
permanent basis).

On numerous occasions during the past several years, the Adirondack
Park Agency has attempted to enact or enforce regulation that would
require that these seasonal campers to remove their recreational
vehicles from the campgrounds after a certain number of days (usually
120 days).

Enforcement of such practice would result in the financial ruin of
most campgrounds within the Adirondack Park. This, in turn, would
impose a severe hardship upon those rural communities that rely
heavily upon the tourism dollars generated by these campgrounds. It
would also deprive thousands of New Yorkers of modest means with an
opportunity to experience one of New York's greatest treasures.


LEGISLATIVE HISTORY:
2009-10: S.322 Finance: A.447 Environmental Conservation
2008:    S.3660-A Finance; A.10609 Environmental Conservation

FISCAL IMPLICATIONS:
None to the State

EFFECTIVE DATE:
This act shall take effect immediately.

Mass. Gen. Laws Ann., Ch. 231, Section 6F.
If enacted, this bill
will provide the exclusive remedy for frivolous action or procedure.

EFFECTS OF PRESENT LAW WHICH THIS BILL WOULD ALTER:
Section 8303-a of the
Civil Practice Law and Rules is repealed and a new section 8303-a
is added.

JUSTIFICATION:
In its recent A.G. SHIP
MAINTENANCE decision, the
Court of Appeals urged the formulation of a "plenary rule"
authorizing sanctions for bad faith civil litigation.  According to the
court, "frivolous court proceedings present a growing problem
which must be deterred."
Due to several developments in the court system since 1983, a
well-designed rule
authorizing financial sanctions is necessary. Over
the past five years, the number of civil cases filed in the state
courts has increased dramatically.  Congestion in the Second
Department, for example, has reached the point that appeals are
frequently heard four to six months after the term for which
they are officially calendared.
From a practitioner's perspective, the courts' concerns about
congestion are well-founded.  Every practitioner can cite his/her
frustration over false statements in adversaries' affidavits,
misconduct in the representation of witnesses at depositions, baseless
summary judgment motions, the assertion of meritless claims or
defenses to induce settlements and similar misconduct to cause
delay or for other improper purposes.
In the past, the courts have issued sanction decisions without
the explicit mandate of any statute or court rule based on
the theory of "inherent powers" to regulate and control the
conduct of litigants and counsel. However, the Court of Appeals in
A.G. SHIP MAINTENANCE held that the absence of
either a statute or
a court rule authorizing sanctions precluded the imposition of
a penalty for frivolous actions.  The court did suggest that the
judiciary may have the power through its rule-making procedures to
create guidelines to permit the imposition of sanctions. Therefore,
the office of Court Administration recently promulgated rules
which authorize the imposition of sanctions for frivolous conduct in
civil litigation.  However, these rules are
particularly troublesome given the breadth of unreviewable judicial
discretion.
The bill is a general deterrent to willful misconduct and gross
negligence. The legislation provides a clear standard for defining


sanctionable misconduct while meeting the minimum requirements of due
process.
While differences exist between the OCA rules and the bill in terms of
the penalty ceiling ($10,000) and the available sanctions, procedural
safeguards
(e.g. preliminary notice and the prompt discontinuation of
conduct
resulting in no imposition of the sanctions) are conspicuously missing
from the
OCA rules. Since financial sanctions can be a substantial hardship on
the
person penalized, the legislation is designed to minimize the
likelihood of
arbitrary or erroneous determination.  Under the legislation, the
courts would
be required to give notice on the record of its tentative view that
sanction
may be warranted.  The prompt discontinuance of the action or
procedures at
issue would result in no imposition of the sanctions.  Furthermore,
unlike
the OCA rules, any order granting sanctions would be subject to
review. The
right to appeal has been traditional in New York's judicial process.
The
order is reviewable DE NOVO as a matter of right,
without deference to the
lower court's discretion. Finally, the bill states explicitly that no
sanction
will be imposed on the ground that the party has advanced a novel or
unusual
argument. The common law courts of New York have historically served
as a
crucible in which new legal theories have been tested and from which
important
developments in the law have emerged.
The legislation would repeal the current section 8303-a of the CPLR
which was
enacted in 1985. This section is limited to cases involving personal
injury,
medical malpractice and similar tort claims. The bill will expand that
section to apply to all civil actions or proceedings, excluding
proceedings in
small claims court, landlord-tenant and in family court commenced under
article
three, seven, eight or ten of the family court act, as well as
implement
procedural or due process reforms (e.g. a hearing prior to a
determination) that are lacking in the current statute.

FISCAL IMPLICATIONS FOR STATE AND LOCAL GOVERNMENT:
The state may realize some additional revenue.

EFFECTIVE DATE:
Immediately, and shall apply to any action or proceeding
commenced on or after the effective date of this act.