NY State Senate Bill 2009-S8058

Senate Bill S8058

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

download bill text pdf

Archive: Last Bill Status Via A11100 - 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 24, 2010	substituted by a11100
Jun 23, 2010	ordered to third reading cal.1156 committee discharged and committed to rules
Jun 08, 2010	reported and committed to codes
Jun 03, 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
  Jun 23, 2010 - Rules Committee Vote
  S8058
  
  21
  
  Aye
  
  0
  
  Nay
  
  1
  
  Aye with Reservations
  
  1
  
  Absent
  
  0
  
  Excused
  
  0
  
  Abstained
  - - Rules Committee Vote: Jun 23, 2010
      
      aye (21)
      
      Dilan
      
      Duane
      
      Espada
      
      Farley
      
      Hassell-Thompson
      
      Johnson
      
      Klein
      
      Krueger
      
      LaValle
      
      Larkin
      
      Montgomery
      
      Padavan
      
      Parker
      
      Saland
      
      Serrano
      
      Seward
      
      Smith
      
      Stachowski
      
      Stewart-Cousins
      
      Valesky
      
      Volker
      
      aye wr (1)
      
      Skelos
      
      absent (1)
      
      Hannon
  Jun 8, 2010 - Judiciary Committee Vote
  S8058
  
  13
  
  Aye
  
  1
  
  Nay
  
  9
  
  Aye with Reservations
  
  0
  
  Absent
  
  0
  
  Excused
  
  0
  
  Abstained
  - - Judiciary Committee Vote: Jun 8, 2010
      
      aye (13)
      
      Adams
      
      Breslin
      
      Dilan
      
      Espada
      
      Hassell-Thompson
      
      Klein
      
      Lanza
      
      Nozzolio
      
      Onorato
      
      Perkins
      
      Sampson
      
      Savino
      
      Schneiderman
      
      nay (1)
      
      Diaz
      
      aye wr (9)
      
      Bonacic
      
      DeFrancisco
      
      LaValle
      
      Leibell
      
      Maziarz
      
      Ranzenhofer
      
      Saland
      
      Volker
      
      Winner

2009-S8058 (ACTIVE) - Details

See Assembly Version of this Bill:: A11100
Law Section:: Family Court Act
Laws Affected:: Amd §153-b, Fam Ct Act; amd §240, Dom Rel L

2009-S8058 (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-S8058 (ACTIVE) - Sponsor Memo

                                BILL NUMBER:S8058

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 situations, 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 critical to victim
safety, as well as to
advancing the litigation and assuming 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 §826 by reference, 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 jurisdiction had not
yet been obtained over the respondent, personal service may be
necessary. The Family Court Advisory and Rules Committee, therefore,
is submitting a proposal that clarifies that litigants
have the same options of peace and police officer service for
orders and temporary 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,
registration, 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-S8058 (ACTIVE) - Bill Text download pdf

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

                                  8058

                            I N  S E N A T E

                              June 3, 2010
                               ___________

Introduced  by  Sen.  HASSELL-THOMPSON  --  (at request of the Office of
  Court Administration) -- read twice  and  ordered  printed,  and  when
  printed to be committed 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

S. 8058                             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.

S. 8058                             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

S. 8058                             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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