NY State Assembly Bill 2009-A11100

Assembly Bill A11100

Signed By Governor

2009-2010 Legislative Session

Relates to service of orders of protection including applications to extend and petitions for violations of orders of protection and temporary orders of protection

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Archive: Last Bill Status - Signed by Governor

Introduced
- In Committee Assembly
- In Committee Senate
- On Floor Calendar Assembly
- On Floor Calendar Senate
- Passed Assembly
- Passed Senate
Delivered to Governor
Signed By Governor

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Actions

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	Assembly Actions - Lowercase Senate Actions - UPPERCASE
Aug 30, 2010	signed chap.446
Aug 18, 2010	delivered to governor
Jun 24, 2010	returned to assembly passed senate 3rd reading cal.1156 substituted for s8058
Jun 15, 2010	referred to rules delivered to senate passed assembly ordered to third reading rules cal.162 rules report cal.162 reported
Jun 08, 2010	reported referred to rules
May 25, 2010	reported referred to codes
May 14, 2010	referred to judiciary

Votes

- Jun 24, 2010 - Floor Vote
  A11100
  
  61
  
  Aye
  
  0
  
  Nay
  
  0
  
  Absent
  
  1
  
  Excused
  
  0
  
  Abstained
  - - Floor Vote: Jun 24, 2010
      
      aye (61)
      
      Adams
      
      Addabbo Jr.
      
      Alesi
      
      Aubertine
      
      Bonacic
      
      Breslin
      
      DeFrancisco
      
      Diaz
      
      Dilan
      
      Duane
      
      Espada
      
      Farley
      
      Flanagan
      
      Foley
      
      Fuschillo
      
      Golden
      
      Griffo
      
      Hannon
      
      Hassell-Thompson
      
      Huntley
      
      Johnson
      
      Johnson
      
      Klein
      
      Krueger
      
      Kruger
      
      LaValle
      
      Lanza
      
      Larkin
      
      Leibell
      
      Libous
      
      Little
      
      Marcellino
      
      Maziarz
      
      McDonald
      
      Montgomery
      
      Nozzolio
      
      Onorato
      
      Oppenheimer
      
      Padavan
      
      Parker
      
      Peralta
      
      Perkins
      
      Ranzenhofer
      
      Robach
      
      Saland
      
      Sampson
      
      Savino
      
      Schneiderman
      
      Serrano
      
      Seward
      
      Skelos
      
      Smith
      
      Squadron
      
      Stachowski
      
      Stavisky
      
      Stewart-Cousins
      
      Thompson
      
      Valesky
      
      Volker
      
      Winner
      
      Young
      
      excused (1)
      
      Morahan

co-Sponsors

View additional co-sponsors

multi-Sponsors

2009-A11100 (ACTIVE) - Details

See Senate Version of this Bill:: S8058
Law Section:: Family Court Act
Laws Affected:: Amd §153-b, Fam Ct Act; amd §240, Dom Rel L

2009-A11100 (ACTIVE) - Summary

Relates to service of orders of protection including applications to extend and petitions for violations of orders of protection and temporary orders of protection in family court.

2009-A11100 (ACTIVE) - Sponsor Memo

                                BILL NUMBER:A11100

TITLE  OF  BILL:   An act to amend the family court act and the domestic
relations law, in relation to service of orders of protection  including
applications  to  extend  and  petitions  for  violations  of  orders of
protection and temporary orders of protection in family court

This is one in a series of measures being introduced at the  request  of
the  Chief  Administrative  Judge  upon the recommendation of her Family
Court Advisory and Rules Committee.

Section 153-b of the Family Court Act, enacted in 1994  and  amended  in
1995,  provided  important assistance to litigants seeking temporary and
final orders of protection by permitting them the option of having peace
and police officers serve the orders and accompanying pleadings. See  L.
1994,  c. 46; L. 1995, c. 429. These litigants are often in the midst of
serious emergencies, may be  seeking  protection  from  dangerous  situ-
ations, and have neither the wherewithal, nor the economic resources, to
arrange  for  service  by a non-party over the age of 18, as required by
section 2103(a) of the Civil  Practice  Law  and  Rules.  Many  are  not
represented  by counsel, at least at the early stages of the litigation.
In fact, it has been estimated that 75% of the total caseload of the New
York City Family Court involves self-represented litigants. Since orders
of protection are not enforceable until served, this assistance is crit-
ical to victim safety, as well as to advancing the litigation and assum-
ing jurisdiction over the alleged abuser. Coupled with Family Court  Act

§153-c,  which provides litigants with quick access to the court for the
purposes of obtaining temporary relief, service of pleadings and  orders
by  law enforcement has been critical to the effectiveness of the Family
Court's response to cases of domestic violence.

This assistance was intended for all stages of Family Court  proceedings
regarding  orders  of  protection, specifically when orders are extended
and when petitions alleging violations are filed.   However,  there  are
reports that law enforcement are declining to serve orders of protection
or temporary orders of protection issued in later stages of proceedings,
such  as  violations.  Again,  the nature of the litigation dictates the
need for concerns for victim safety, as litigants may be  in  situations
of  acute danger. If they elect to prosecute violations criminally, they
would necessarily have the benefit of  law  enforcement  assistance  and
involvement.  The  fact that they may elect to prosecute civilly instead
should not deprive them of needed  assistance  in  serving  the  papers.
Family  Court Act §846(c), incorporating Family Court Act 6826 by refer-
ence, requires attempted personal service prior to  substituted  service
being  ordered.    Additionally, extended orders, like initial orders of
protection, are not enforceable until served and if in  personam  juris-
diction  had not yet been obtained over the respondent, personal service
may be necessary. The Family Court Advisory and Rules Committee,  there-
fore,  is  submitting  a proposal that clarifies that litigants have the
same options of peace and police officer service for orders  and  tempo-
rary  orders  and  legal papers issued in later stages of family offense
proceedings including service  of  extended  orders  and  for  petitions

alleging  violations  of  orders of protection as they have for original
orders and accompanying pleadings.

The  proposal  also  makes  it clear that such service must be available
without fee to the litigants. The provision prohibiting fees from  being
charged  by  police  and  peace  officers  for  service of all orders of
protection, whether issued upon default, temporary, modified, final,  or
extended  as  well  as  associated  petitions  and summonses, emphasizes
legislation enacted in 2007 at the recommendation of the New York  State
Office  for  the  Prevention  of Domestic Violence. That statute amended
section 8011 of the Civil Practice Law and Rules  to  prohibit  sheriffs
from  charging the statutory $45 fee and any mileage fees for service of
orders of protection and related orders or papers when service has  been
directed  by  the court. See L. 2007, c. 36. Recognizing that victims of
domestic violence are charged no fees for service of criminal orders  of
protection  and  related  documents,  the statute was intended to ensure
compliance a statewide policy and  practice  that  would  create  equity
between criminal and civil options, support safety for domestic violence
victims,  and  be  consistent  with  New  York's  proactive,  aggressive
response to domestic violence.   McKinney's 2007  Session  Laws  of  New
York,  c. 36, New York State Memorandum in Support of Senate bill S4020,
p. 1560. Like the 2007 amendment, the Committee's proposal is  essential
to  ensure  compliance  by  New York State with Federal law. The Federal
Violence Against Women Act requires all states  in  receipt  of  Federal
funding under the STOP Formula Grant Program under the Act to:

certify  that  their  laws,  policies,  and practices do not require, in
connection with the prosecution of any misdemeanor  or  felony  domestic
violence  offense, or in connection with the filing, issuance, registra-
tion, or service of a protection order, or a petition for  a  protection
order,  to  protect  a  victim of domestic violence, stalking, or sexual
assault, that the victim bear the costs associated with  the  filing  of
criminal  charges against the offender, or the costs associated with the
filing, issuance, registration, or  service  of  a  warrant,  protection
order,  petition  for  a  protection order, or witness subpoena, whether
issued inside or outside the State, tribal, or local jurisdiction(.)

42 U.S.C.A. §3796hh(c)(4).

Lifting the burden from victims of domestic violence  of  arranging  for
service of orders of protection has proven to be essential to the effort
to make civil prosecution in Family Court an effective avenue of relief.
Clarification  that  this  same  opportunity for law enforcement service
with respect to all orders and petitions for violations  of  orders,  is
equally critical to that end.

This  measure,  which  would have no fiscal impact upon the State, would
take effect immediately.

2010 Legislative History: None. New proposal.

2009-A11100 (ACTIVE) - Bill Text download pdf

                            
                    S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                  11100

                          I N  A S S E M B L Y

                              May 14, 2010
                               ___________

Introduced by M. of A. WEINSTEIN, JOHN, PAULIN, ROSENTHAL -- (at request
  of  the  Office  of Court Administration) -- read once and referred to
  the Committee on Judiciary

AN ACT to amend the family court act and the domestic relations law,  in
  relation  to service of orders of protection including applications to
  extend and petitions for violations of orders of protection and tempo-
  rary orders of protection in family court

  THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
BLY, DO ENACT AS FOLLOWS:

  Section  1. Section 153-b of the family court act, as amended by chap-
ter 46 of the laws of 1994, subdivisions (c) and (d) as amended by chap-
ter 429 of the laws of 1995, is amended to read as follows:
  S 153-b. Service of process request for order of protection.  Whenever
a  petitioner  requests  an  order  of  protection or temporary order of
protection OR FILES FOR AN EXTENSION OF SUCH  ORDER  OR  A  PETITION  OR
MOTION  FOR MODIFICATION OR A VIOLATION OF SUCH AN ORDER under any arti-
cle of this act:
  (a) the summons and the petition and, if  one  has  been  issued,  the
temporary  order  of  protection,  ORDER  OF  PROTECTION  ISSUED  UPON A
DEFAULT, or a copy or copies thereof, may be served on any  day  of  the
week, and at any hour of the day or night;
  (b)  a peace officer, acting pursuant to his or her special duties, or
a police officer [may] SHALL, UPON RECEIPT, serve  OR  PROVIDE  FOR  THE
SERVICE  OF  the  summons  and the petition TOGETHER WITH ANY ASSOCIATED
PAPERS and, if one has been issued, the temporary order  of  protection,
OR  ORDER OF PROTECTION ISSUED UPON A DEFAULT AND SHALL NOT CHARGE A FEE
FOR SUCH SERVICE, INCLUDING, BUT NOT LIMITED TO, FEES AS PROVIDED  UNDER
SECTION EIGHT THOUSAND ELEVEN OF THE CIVIL PRACTICE LAW AND RULES;
  (c) if a temporary order of protection has been issued, or an order of
protection  has  been issued upon a default, unless the party requesting
the order states on the record that she or he  will  arrange  for  other
means  for  service  or  deliver  the order to a peace or police officer
directly for service, the court shall immediately deliver a copy of  the
temporary  order  of protection or order of protection TOGETHER WITH ANY

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.

                                                           LBD16659-02-0

A. 11100                            2

ASSOCIATED PAPERS  THAT  MAY  BE  SERVED  SIMULTANEOUSLY  INCLUDING  THE
SUMMONS  AND PETITION, to a peace officer, acting pursuant to his or her
special duties and designated by the court, or to a  police  officer  as
defined  in  paragraph  (b) or (d) of subdivision thirty-four of section
1.20 of the criminal procedure law, or to any other county or  municipal
officer  who may be directed to effect service under section two hundred
fifty-five of [the family court] THIS act, or, in the city of New  York,
to  a  designated representative of the police department of the city of
New York. Any peace or police officer or designated person  receiving  a
temporary  order  of  protection  or  an order of protection as provided
[hereunder] IN THIS SECTION shall serve or provide for the service ther-
eof together with any associated papers that may be served simultaneous-
ly, at any address designated therewith, including the summons and peti-
tion if not previously  served.  Service  of  such  temporary  order  of
protection, or order of protection, and associated papers, shall insofar
as  practicable,  be  achieved promptly. An officer or designated person
obliged to perform service pursuant to this [subdivision]  SECTION,  and
his  or her employer, shall not be liable for damages resulting from THE
failure to achieve service where, having made a reasonable effort,  such
officer  is unable to locate and serve the temporary order of protection
or order of protection at any address provided by the  party  requesting
the order[.];
  (d) [a] WHERE THE TEMPORARY ORDER OF PROTECTION OR ORDER OF PROTECTION
AND  PAPERS, IF ANY, HAVE BEEN SERVED, SUCH OFFICER OR DESIGNATED PERSON
SHALL PROVIDE THE COURT WITH AN AFFIRMATION, CERTIFICATE OR AFFIDAVIT OF
SERVICE WHEN THE TEMPORARY ORDER OF PROTECTION OR  ORDER  OF  PROTECTION
HAS  BEEN SERVED, AND SHALL PROVIDE NOTIFICATION OF THE DATE AND TIME OF
SUCH SERVICE TO THE STATEWIDE COMPUTER REGISTRY ESTABLISHED PURSUANT  TO
SECTION  TWO  HUNDRED  TWENTY-ONE-A  OF  THE  EXECUTIVE LAW. A statement
subscribed by the officer or designated person, and affirmed by  him  or
her  to  be  true  under  the  penalties  of perjury, stating the papers
served, the date, time, address or in the event  there  is  no  address,
place,  and manner of service, the name and a brief physical description
of the party served, shall be proof of the service of the summons, peti-
tion and temporary order of protection or order of protection[. When the
temporary order of protection or order of protection and  other  papers,
if  any,  have  been  served,  such  officer  or designated person shall
provide the court with  an  affirmation,  certificate  or  affidavit  of
service when the temporary order of protection has been served and shall
provide  notification of the date and time of such service to the state-
wide computer registry established pursuant to section two hundred twen-
ty-one-a of the executive law.];
  (E) WHERE AN OFFICER OR DESIGNATED PERSON OBLIGED TO  PERFORM  SERVICE
PURSUANT  TO THIS SECTION IS UNABLE TO COMPLETE SERVICE OF THE TEMPORARY
ORDER OF PROTECTION OR ORDER OF PROTECTION SUCH  OFFICER  OR  DESIGNATED
PERSON  SHALL  PROVIDE  THE COURT WITH PROOF OF ATTEMPTED SERVICE OF THE
TEMPORARY ORDER OF PROTECTION OR ORDER OF  PROTECTION  WITH  INFORMATION
REGARDING  THE  DATES, TIMES, LOCATIONS AND MANNER OF ATTEMPTED SERVICE.
AN AFFIRMATION, CERTIFICATE OR AFFIDAVIT OF  SERVICE  WITH  A  STATEMENT
SUBSCRIBED  BY  THE OFFICER OR DESIGNATED PERSON, AND AFFIRMED BY HIM OR
HER TO BE TRUE UNDER THE PENALTIES OF PERJURY, STATING THE NAME  OF  THE
PARTY AND THE PAPERS ATTEMPTED TO BE SERVED ON SAID PERSON, AND FOR EACH
ATTEMPTED  SERVICE,  THE DATE, TIME, ADDRESS OR IN THE EVENT THERE IS NO
ADDRESS, PLACE, AND MANNER OF  ATTEMPTED  SERVICE,  SHALL  BE  PROOF  OF
ATTEMPTED SERVICE.

A. 11100                            3

  S  2. Subdivision 3-a of section 240 of the domestic relations law, as
added by chapter 429 of the laws of 1995, is amended to read as follows:
  3-a.  Service  of  order  of  protection.  (A) If a temporary order of
protection has been issued OR AN ORDER OF  PROTECTION  HAS  BEEN  ISSUED
upon  a  default,  unless  the  party requesting the order states on the
record that she or he will arrange for other means for service or deliv-
er the order to a peace or police  officer  directly  for  service,  the
court  shall  immediately  deliver  a  copy  of  the  temporary order of
protection or order of protection TOGETHER WITH  ANY  ASSOCIATED  PAPERS
THAT MAY BE SERVED SIMULTANEOUSLY INCLUDING THE SUMMONS AND PETITION, to
a peace officer, acting pursuant to his or her special duties and desig-
nated  by  the court, or to a police officer as defined in paragraph (b)
or (d) of subdivision thirty-four of section 1.20 of the criminal proce-
dure law, or, in the city of New York, to a designated representative of
the police department of the city of New York. Any peace or police offi-
cer or designated person receiving a temporary order of protection or an
order of protection as provided [hereunder] IN THIS SECTION shall  serve
or  provide  for the service thereof together with any associated papers
that may be served simultaneously, at any address designated  therewith,
including  the  summons  and  petition  or  complaint  if not previously
served. Service of such  temporary  order  of  protection  or  order  of
protection  and  associated  papers  shall,  insofar  as practicable, be
achieved promptly. An officer or designated person  obliged  to  perform
service pursuant to this subdivision, and his or her employer, shall not
be  liable  for damages resulting from failure to achieve service where,
having made a reasonable effort, such officer or  designated  person  is
unable to locate and serve the temporary order of protection or order of
protection at any address provided by the party requesting the order.
  (B)  WHEN THE TEMPORARY ORDER OF PROTECTION OR ORDER OF PROTECTION AND
ASSOCIATED PAPERS, IF ANY, HAVE BEEN SERVED, SUCH OFFICER OR  DESIGNATED
PERSON SHALL PROVIDE THE COURT WITH AN AFFIRMATION, CERTIFICATE OR AFFI-
DAVIT  OF  SERVICE  WHEN  THE  TEMPORARY ORDER OF PROTECTION OR ORDER OF
PROTECTION HAS BEEN SERVED, AND SHALL PROVIDE NOTIFICATION OF  THE  DATE
AND  TIME OF SUCH SERVICE TO THE STATEWIDE COMPUTER REGISTRY ESTABLISHED
PURSUANT TO SECTION TWO HUNDRED TWENTY-ONE-A OF  THE  EXECUTIVE  LAW.  A
statement  subscribed  by the officer or designated person, and affirmed
by him or her to be true under the penalties  of  perjury,  stating  the
papers  served,  the  date,  time,  address  or in the event there is no
address, place, and manner of service, the name  and  a  brief  physical
description  of  the  party  served,  shall  be  proof of service of the
summons,  petition  and  temporary  order  of  protection  or  order  of
protection.  [When  the  temporary  order  of  protection  or  order  of
protection and other papers, if any, have been served, such  officer  or
designated  person  shall provide the court with an affirmation, certif-
icate or affidavit of service and shall provide notification of the date
and time of such service to the statewide computer registry  established
pursuant to section two hundred twenty-one-a of the executive law.]
  (C)  WHERE  AN OFFICER OR DESIGNATED PERSON OBLIGED TO PERFORM SERVICE
PURSUANT TO THIS SECTION IS UNABLE TO COMPLETE SERVICE OF THE  TEMPORARY
ORDER  OF  PROTECTION OR ORDER OF PROTECTION, SUCH OFFICER OR DESIGNATED
PERSON SHALL PROVIDE THE COURT WITH PROOF OF ATTEMPTED  SERVICE  OF  THE
TEMPORARY  ORDER  OF  PROTECTION OR ORDER OF PROTECTION WITH INFORMATION
REGARDING THE DATES, TIMES, LOCATIONS AND MANNER OF  ATTEMPTED  SERVICE.
AN  AFFIRMATION,  CERTIFICATE  OR  AFFIDAVIT OF SERVICE WITH A STATEMENT
SUBSCRIBED BY THE OFFICER OR DESIGNATED PERSON, AND AFFIRMED BY  HIM  OR
HER  TO  BE TRUE UNDER THE PENALTIES OF PERJURY, STATING THE NAME OF THE

A. 11100                            4

PARTY AND THE PAPERS ATTEMPTED TO BE SERVED ON SAID PERSON, AND FOR EACH
ATTEMPTED SERVICE, THE DATE, TIME, ADDRESS OR IN THE EVENT THERE  IS  NO
ADDRESS,  PLACE,  AND  MANNER  OF  ATTEMPTED  SERVICE, SHALL BE PROOF OF
ATTEMPTED SERVICE.
  (D)  ANY  PEACE  OR  POLICE  OFFICER  OR  DESIGNATED PERSON PERFORMING
SERVICE UNDER THIS SUBDIVISION SHALL NOT CHARGE A FEE FOR SUCH  SERVICE,
INCLUDING,  BUT  NOT  LIMITED  TO,  FEES AS PROVIDED UNDER SECTION EIGHT
THOUSAND ELEVEN OF THE CIVIL PRACTICE LAW AND RULES.
  S 3. This act shall take effect immediately.

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Assembly Bill A11100

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Sponsored By

WEINSTEIN

Archive: Last Bill Status - Signed by Governor

co-Sponsors

Susan John

Amy Paulin

Linda Rosenthal

Ellen C. Jaffee

multi-Sponsors

Deborah Glick

Earlene Hooper

Catherine Nolan

Matthew Titone

2009-A11100 (ACTIVE) - Details

2009-A11100 (ACTIVE) - Summary

2009-A11100 (ACTIVE) - Sponsor Memo

2009-A11100 (ACTIVE) - Bill Text download pdf

Comments