S T A T E O F N E W Y O R K
________________________________________________________________________
8956--A
2009-2010 Regular Sessions
I N A S S E M B L Y
June 16, 2009
___________
Introduced by M. of A. WEINSTEIN -- (at request of the Office of Court
Administration) -- read once and referred to the Committee on Judici-
ary -- reported and referred to the Committee on Rules -- Rules
Committee discharged, bill amended, ordered reprinted as amended and
recommitted to the Committee on Rules
AN ACT to amend the civil practice law and rules, in relation to service
of papers by electronic means; to amend chapter 367 of the laws of
1999 amending the civil practice law and rules and the judiciary law
relating to authorization of pilot programs permitting use of facsim-
ile transmission or electronic means to commence an action or special
proceeding, in relation to filing by electronic means; to repeal
subdivision (c) of section 6 of such chapter relating thereto; and
providing for the repeal of certain provisions upon expiration thereof
THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:
Section 1. Paragraph 7 of subdivision (b) of rule 2103 of the civil
practice law and rules, as added by chapter 367 of the laws of 1999, is
amended to read as follows:
7. by transmitting the paper to the attorney by electronic means where
and in the manner authorized by the chief administrator of the courts by
rule AND, UNLESS SUCH RULE SHALL OTHERWISE PROVIDE, SUCH TRANSMISSION
SHALL BE upon the party's written consent. The subject matter heading
for each paper sent by electronic means must indicate that the matter
being transmitted electronically is related to a court proceeding.
S 2. Subdivisions (a) and (b) of section 6 of chapter 367 of the laws
of 1999, amending the civil practice law and rules and the judiciary law
relating to authorization of pilot programs permitting use of facsimile
transmission or electronic means to commence an action or special
proceeding, subdivision (a) as amended by chapter 369 of the laws of
2007 and subdivision (b) as amended by chapter 504 of the laws of 2005,
are amended to read as follows:
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD14418-02-9
A. 8956--A 2
(a) Notwithstanding any other provision of law, the chief administra-
tor of the courts, with the approval of the administrative board of the
courts, may promulgate rules authorizing [an experimental] A program
[for the commencement by facsimile transmission or by] IN THE USE OF
FACSIMILE TRANSMISSION AND electronic means IN THE SUPREME COURT, THE
CIVIL COURT OF THE CITY OF NEW YORK, SURROGATE'S COURTS AND THE COURT OF
CLAIMS, FOR: (I) THE COMMENCEMENT of civil actions and proceedings [in
the supreme court of Albany, Monroe, Westchester, New York, Bronx, Erie,
Kings, Queens, Richmond, Nassau, Suffolk, Niagara, Broome, Essex, Onon-
daga, Sullivan, and Livingston counties, the New York court of claims,
the civil court of the city of New York, and the surrogate's court of
Chautauqua, Erie, Monroe, Queens and Suffolk counties], AND (II) THE
FILING AND SERVICE OF PAPERS IN PENDING ACTIONS AND PROCEEDINGS.
(b) [Participation] (A) EXCEPT AS OTHERWISE PROVIDED IN PARAGRAPH (B)
OF THIS SUBDIVISION, PARTICIPATION in this program shall be strictly
voluntary, and will take place only upon consent OF ALL PARTIES IN THE
ACTION OR SPECIAL PROCEEDING; EXCEPT THAT A PARTY'S FAILURE TO CONSENT
TO PARTICIPATION SHALL NOT BAR ANY OTHER PARTY TO THE ACTION OR PROCEED-
ING FROM FILING AND SERVING PAPERS BY FACSIMILE TRANSMISSION OR ELEC-
TRONIC MEANS UPON THE COURT OR ANY OTHER PARTY TO SUCH ACTION OR
PROCEEDING WHO HAS CONSENTED TO PARTICIPATION. COMMENCEMENT OF AN ACTION
BY ELECTRONIC MEANS OR BY FACSIMILE TRANSMISSION SHALL NOT REQUIRE THE
CONSENT OF ANY OTHER PARTY.
(B) IN THE RULES PROMULGATED PURSUANT TO SUBDIVISION (A) OF THIS
SECTION, THE CHIEF ADMINISTRATOR MAY ELIMINATE THE REQUIREMENT OF
CONSENT TO PARTICIPATION IN THIS PROGRAM IN:
1. THE SUPREME COURT OF NEW YORK COUNTY IN THE FOLLOWING CLASSES OF
CASES PROVIDED THAT THE AMOUNT IN CONTROVERSY (EXCLUSIVE OF PUNITIVE
DAMAGES, INTEREST, COSTS, DISBURSEMENTS AND COUNSEL FEES CLAIMED) IS
OVER $100,000:
(I) BREACH OF CONTRACT (REGARDLESS OF AMOUNT IN CONTROVERSY) OR FIDU-
CIARY DUTY, FRAUD, MISREPRESENTATION, BUSINESS TORT (INCLUDING BUT NOT
LIMITED TO ACTIONS INVOLVING CLAIMS OF UNFAIR COMPETITION), OR STATUTORY
AND/OR COMMON LAW VIOLATION WHERE THE BREACH OR VIOLATION IS ALLEGED TO
ARISE OUT OF BUSINESS DEALINGS (INCLUDING BUT NOT LIMITED TO SALES OF
ASSETS OR SECURITIES; CORPORATE RESTRUCTURING; PARTNERSHIP, SHAREHOLDER,
JOINT VENTURE, AND OTHER BUSINESS AGREEMENTS; TRADE SECRETS; RESTRICTIVE
COVENANTS; AND EMPLOYMENT AGREEMENTS NOT INCLUDING CLAIMS THAT PRINCI-
PALLY INVOLVE ALLEGED DISCRIMINATORY PRACTICES);
(II) TRANSACTIONS GOVERNED BY THE UNIFORM COMMERCIAL CODE (EXCLUSIVE
OF THOSE CONCERNING INDIVIDUAL COOPERATIVE OR CONDOMINIUM UNITS);
(III) TRANSACTIONS INVOLVING COMMERCIAL REAL PROPERTY, INCLUDING
YELLOWSTONE INJUNCTIONS AND EXCLUDING ACTIONS FOR THE PAYMENT OF RENT
ONLY;
(IV) SHAREHOLDER DERIVATIVE ACTIONS, WITHOUT CONSIDERATION OF THE
MONETARY THRESHOLD;
(V) COMMERCIAL CLASS ACTIONS, WITHOUT CONSIDERATION OF THE MONETARY
THRESHOLD;
(VI) BUSINESS TRANSACTIONS INVOLVING OR ARISING OUT OF DEALINGS WITH
COMMERCIAL BANKS AND OTHER FINANCIAL INSTITUTIONS;
(VII) INTERNAL AFFAIRS OF BUSINESS ORGANIZATIONS;
(VIII) MALPRACTICE BY ACCOUNTANTS OR ACTUARIES, AND LEGAL MALPRACTICE
ARISING OUT OF REPRESENTATION IN COMMERCIAL MATTERS;
(IX) ENVIRONMENTAL INSURANCE COVERAGE;
A. 8956--A 3
(X) COMMERCIAL INSURANCE COVERAGE (INCLUDING BUT NOT LIMITED TO DIREC-
TORS AND OFFICERS, ERRORS AND OMISSIONS, AND BUSINESS INTERRUPTION
COVERAGE);
(XI) DISSOLUTION OF CORPORATIONS, PARTNERSHIPS, LIMITED LIABILITY
COMPANIES, LIMITED LIABILITY PARTNERSHIPS AND JOINT VENTURES, WITHOUT
CONSIDERATION OF THE MONETARY THRESHOLD; AND
(XII) APPLICATIONS TO STAY OR COMPEL ARBITRATION AND AFFIRM OR DISAF-
FIRM ARBITRATION AWARDS AND RELATED INJUNCTIVE RELIEF PURSUANT TO ARTI-
CLE 75 OF THE CIVIL PRACTICE LAW AND RULES INVOLVING ANY OF THE FOREGO-
ING ENUMERATED COMMERCIAL ISSUES, WITHOUT CONSIDERATION OF THE MONETARY
THRESHOLD.
PROVIDED, HOWEVER, THE FOLLOWING CASES ARE NOT INCLUDED:
(I) ACTIONS TO COLLECT PROFESSIONAL FEES;
(II) ACTIONS SEEKING A DECLARATORY JUDGMENT AS TO INSURANCE COVERAGE
FOR PERSONAL INJURY OR PROPERTY DAMAGE;
(III) RESIDENTIAL REAL ESTATE DISPUTES, INCLUDING LANDLORD-TENANT
MATTERS, AND COMMERCIAL REAL ESTATE DISPUTES INVOLVING THE PAYMENT OF
RENT ONLY;
(IV) PROCEEDINGS TO ENFORCE A JUDGMENT REGARDLESS OF THE NATURE OF THE
UNDERLYING CASE;
(V) FIRST-PARTY INSURANCE CLAIMS AND ACTIONS BY INSURERS TO COLLECT
PREMIUMS OR RESCIND NON-COMMERCIAL POLICIES; AND
(VI) ATTORNEY MALPRACTICE ACTIONS EXCEPT AS OTHERWISE PROVIDED IN
CLAUSE (VIII) OF SUBPARAGRAPH ONE OF PARAGRAPH (B) OF THIS SUBDIVISION,
AND
2. TORT CASES IN SUPREME COURT IN WESTCHESTER COUNTY, AND
3. ONE OR MORE CLASSES OF CASES (EXCLUDING MATRIMONIAL ACTIONS AS
DEFINED BY THE CIVIL PRACTICE LAW AND RULES, ELECTION LAW PROCEEDINGS,
PROCEEDINGS BROUGHT PURSUANT TO ARTICLE 78 OF THE CIVIL PRACTICE LAW AND
RULES, AND PROCEEDINGS BROUGHT PURSUANT TO THE MENTAL HYGIENE LAW) IN
THE SUPREME COURT OF ONE COUNTY OUTSIDE THE CITY OF NEW YORK.
NOTWITHSTANDING THE FOREGOING, THE CHIEF ADMINISTRATOR MAY NOT ELIMI-
NATE THE REQUIREMENT OF CONSENT UNTIL AFTER HE OR SHE SHALL HAVE
CONSULTED WITH MEMBERS OF THE ORGANIZED BAR IN ANY COUNTY IN WHICH SUCH
ELIMINATION SHALL APPLY, HAVE AFFORDED THEM THE OPPORTUNITY TO SUBMIT
COMMENTS WITH RESPECT THERETO, AND HAVE CONSIDERED ANY SUCH COMMENTS.
(C) WHERE THE CHIEF ADMINISTRATOR ELIMINATES THE REQUIREMENT OF
CONSENT AS PROVIDED IN PARAGRAPH (B) OF THIS SUBDIVISION, HE OR SHE
SHALL AFFORD COUNSEL AND UNREPRESENTED PARTIES THE OPPORTUNITY TO OPT
OUT OF THE PROGRAM, VIA PRESENTATION OF A PRESCRIBED FORM TO BE FILED
WITH THE CLERK OF THE COURT WHERE THE ACTION IS PENDING. SAID FORM,
WHICH SHALL NOT BE PART OF THE CASE RECORD, SHALL PERMIT AN ATTORNEY OR
UNREPRESENTED PARTY TO OPT-OUT OF PARTICIPATION IN THE PROGRAM UNDER ANY
OF THE FOLLOWING CIRCUMSTANCES, IN WHICH EVENT, HE OR SHE WILL NOT BE
COMPELLED TO PARTICIPATE:
(I) WHERE THE ATTORNEY CERTIFIES IN GOOD FAITH THAT HE OR SHE LACKS
THE COMPUTER HARDWARE AND/OR CONNECTION TO THE INTERNET AND/OR SCANNER
OR OTHER DEVICE BY WHICH DOCUMENTS MAY BE CONVERTED TO AN ELECTRONIC
FORMAT; OR
(II) WHERE THE ATTORNEY CERTIFIES IN GOOD FAITH THAT HE OR SHE LACKS
THE REQUISITE KNOWLEDGE IN THE OPERATION OF SUCH COMPUTERS AND/OR SCAN-
NERS NECESSARY TO PARTICIPATE. FOR THE PURPOSES OF THIS SUBPARAGRAPH
HEREIN, THE KNOWLEDGE OF ANY EMPLOYEE OF AN ATTORNEY, OR ANY EMPLOYEE OF
THE ATTORNEY'S LAW FIRM, OFFICE OR BUSINESS WHO IS SUBJECT TO SUCH
ATTORNEY'S DIRECTION, SHALL BE IMPUTED TO THE ATTORNEY; OR
A. 8956--A 4
(III) WHERE A PARTY IS NOT REPRESENTED BY COUNSEL, HE OR SHE CHOOSES
NOT TO PARTICIPATE IN THE PROGRAM.
NOTWITHSTANDING THE FOREGOING, A COURT MAY EXEMPT ANY ATTORNEY FROM
BEING REQUIRED TO PARTICIPATE IN THE PROGRAM UPON APPLICATION FOR SUCH
EXEMPTION SHOWING GOOD CAUSE THEREFOR.
(D) For purposes of this section, "facsimile transmission" and "elec-
tronic means" shall be as defined in subdivision (f) of rule 2103 of the
civil practice law and rules.
S 3. Subdivision (c) of section 6 of chapter 367 of the laws of 1999,
amending the civil practice law and rules and the judiciary law relating
to authorization of pilot programs permitting use of facsimile trans-
mission or electronic means to commence an action or special proceeding,
is REPEALED.
S 4. Section 10 of chapter 367 of the laws of 1999, amending the civil
practice law and rules and the judiciary law relating to authorization
of pilot programs permitting use of facsimile transmission or electronic
means to commence an action or special proceeding, as separately amended
by chapters 457 and 504 of the laws of 2005, is amended to read as
follows:
S 10. This act shall take effect immediately[; provided, however, that
the authority of the chief administrator of the courts to promulgate the
rules authorized by section 304 and paragraph 7 of subdivision (b) of
rule 2103 of the civil practice law and rules, as amended by section one
of this act and as added by section four of this act, respectively,
shall expire September 1, 2009 when upon such date the amendments made
by such sections of this act shall be deemed repealed; and provided
further, however, that section six of this act shall expire and be
deemed repealed September 1, 2009].
S 5. Notwithstanding any provision of law, a party shall not be
required to pay an administrative fee for the use of a credit card or
similar device for the payment of a fee in an action or proceeding in
which electronic filing or facsimile transmission is used for the
commencement of such action or proceeding or the filing and service of
papers therein.
S 6. Not later than April 1, 2012, the chief administrator of the
courts shall submit to the legislature, the governor and the chief judge
of the state a report evaluating the state's experience with the program
in the use of electronic means for the commencement of civil actions and
proceedings and the service of papers therein as authorized by this act
and containing such recommendations for further legislation as he or she
shall deem appropriate.
S 7. This act shall take effect on September 1, 2009; provided, howev-
er, that no rule adopted pursuant to paragraph (B) of subdivision (b) of
section 6 of chapter 367 of the laws of 1999, as added by section two of
this act, shall take effect until at least one hundred eighty days have
elapsed after such effective date, and provided that such paragraph (B)
shall expire and be deemed repealed September 1, 2012.