S T A T E   O F   N E W   Y O R K
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                                   6843
 
                        2019-2020 Regular Sessions
 
                           I N  A S S E M B L Y
 
                              March 21, 2019
                                ___________
 
 Introduced  by M. of A. SOLAGES -- read once and referred to the Commit-
   tee on Judiciary
 
 AN ACT to amend the civil practice law and rules, in relation to author-
   izing a court, on its own motion or the motion of a party, to enter  a
   prefiling  order  that  prohibits a vexatious litigant from filing any
   new litigation propria persona without first obtaining  permission  to
   do  so  from  the  presiding  judge  or justice of the court where the
   filing is proposed
 
   THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
 BLY, DO ENACT AS FOLLOWS:
 
   Section 1. The civil practice law and rules is amended by adding a new
 section 1005 to read as follows:
   §  1005. VEXATIOUS LITIGANT. 1. AS USED IN THIS SECTION, THE FOLLOWING
 TERMS HAVE THE FOLLOWING MEANINGS:
   (A) "LITIGATION" MEANS ANY  CIVIL  ACTION  OR  PROCEEDING,  COMMENCED,
 MAINTAINED OR PENDING IN ANY STATE OR FEDERAL COURT.
   (B) "VEXATIOUS LITIGANT" MEANS A PERSON WHO DOES ANY OF THE FOLLOWING:
   (1)  IN  THE  IMMEDIATELY  PRECEDING  SEVEN-YEAR PERIOD HAS COMMENCED,
 PROSECUTED, OR MAINTAINED IN PROPRIA PERSONA AT LEAST  FIVE  LITIGATIONS
 OTHER  THAN  IN  A SMALL CLAIMS COURT THAT HAVE BEEN: (I) FINALLY DETER-
 MINED ADVERSELY TO THE PERSON; OR (II) UNJUSTIFIABLY PERMITTED TO REMAIN
 PENDING AT LEAST TWO YEARS WITHOUT HAVING BEEN BROUGHT TO TRIAL OR HEAR-
 ING.
   (2) AFTER A LITIGATION HAS BEEN FINALLY DETERMINED AGAINST THE PERSON,
 REPEATEDLY RELITIGATES OR ATTEMPTS TO RELITIGATE,  IN  PROPRIA  PERSONA,
 EITHER: (I) THE VALIDITY OF THE DETERMINATION AGAINST THE SAME DEFENDANT
 OR  DEFENDANTS AS TO WHOM THE LITIGATION WAS FINALLY DETERMINED; OR (II)
 THE CAUSE OF ACTION, CLAIM, CONTROVERSY, OR ANY OF THE ISSUES OF FACT OR
 LAW, DETERMINED OR CONCLUDED BY THE FINAL DETERMINATION AGAINST THE SAME
 DEFENDANT OR DEFENDANTS AS TO WHOM THE  LITIGATION  WAS  FINALLY  DETER-
 MINED.
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
              

                                                            LBD10712-01-9

 A. 6843                             2
 
   (3)  IN  ANY  LITIGATION  WHILE  ACTING IN PROPRIA PERSONA, REPEATEDLY
 FILES UNMERITORIOUS MOTIONS, PLEADINGS, OR OTHER PAPERS, CONDUCTS UNNEC-
 ESSARY DISCOVERY, OR ENGAGES IN OTHER  TACTICS  THAT  ARE  FRIVOLOUS  OR
 SOLELY INTENDED TO CAUSE UNNECESSARY DELAY.
   (4)  HAS  PREVIOUSLY  BEEN  DECLARED TO BE A VEXATIOUS LITIGANT BY ANY
 STATE OR FEDERAL COURT OF RECORD IN ANY ACTION OR PROCEEDING BASED  UPON
 THE SAME OR SUBSTANTIALLY SIMILAR FACTS, TRANSACTION, OR OCCURRENCE.
   (C)  "SECURITY"  MEANS  AN UNDERTAKING TO ASSURE PAYMENT, TO THE PARTY
 FOR WHOSE BENEFIT THE UNDERTAKING IS REQUIRED TO BE  FURNISHED,  OF  THE
 PARTY'S  REASONABLE  EXPENSES, INCLUDING ATTORNEY'S FEES AND NOT LIMITED
 TO TAXABLE COSTS, INCURRED IN OR IN CONNECTION WITH A LITIGATION  INSTI-
 TUTED, CAUSED TO BE INSTITUTED, OR MAINTAINED OR CAUSED TO BE MAINTAINED
 BY A VEXATIOUS LITIGANT.
   (D)  "PLAINTIFF"  MEANS  THE PERSON WHO COMMENCES, INSTITUTES OR MAIN-
 TAINS A LITIGATION OR CAUSES IT TO BE  COMMENCED,  INSTITUTED  OR  MAIN-
 TAINED, INCLUDING AN ATTORNEY AT LAW ACTING IN PROPRIA PERSONA.
   (E)  "DEFENDANT"  MEANS  A PERSON (INCLUDING CORPORATION, ASSOCIATION,
 PARTNERSHIP AND FIRM OR GOVERNMENTAL ENTITY) AGAINST WHOM  A  LITIGATION
 IS BROUGHT OR MAINTAINED OR SOUGHT TO BE BROUGHT OR MAINTAINED.
   2.  IN  ANY LITIGATION PENDING IN ANY COURT OF THIS STATE, AT ANY TIME
 UNTIL FINAL JUDGMENT IS ENTERED, A DEFENDANT MAY MOVE  THE  COURT,  UPON
 NOTICE  AND  HEARING,  FOR  AN  ORDER REQUIRING THE PLAINTIFF TO FURNISH
 SECURITY OR FOR AN ORDER DISMISSING THE LITIGATION PURSUANT TO PARAGRAPH
 (B) OF SUBDIVISION FOUR OF THIS SECTION. THE MOTION FOR AN ORDER REQUIR-
 ING THE PLAINTIFF TO FURNISH SECURITY SHALL BE BASED  UPON  THE  GROUND,
 AND  SUPPORTED  BY A SHOWING, THAT THE PLAINTIFF IS A VEXATIOUS LITIGANT
 AND THAT THERE IS NOT A REASONABLE  PROBABILITY  THAT  HE  OR  SHE  WILL
 PREVAIL IN THE LITIGATION AGAINST THE MOVING DEFENDANT.
   3.  AT  THE  HEARING  UPON  THE  MOTION  THE  COURT SHALL CONSIDER ANY
 EVIDENCE, WRITTEN OR ORAL, BY WITNESSES OR AFFIDAVIT, AS MAY BE MATERIAL
 TO THE GROUND OF THE MOTION. EXCEPT FOR AN ORDER  DISMISSING  THE  LITI-
 GATION PURSUANT TO PARAGRAPH (B) OF SUBDIVISION FOUR OF THIS SECTION, NO
 DETERMINATION MADE BY THE COURT IN DETERMINING OR RULING UPON THE MOTION
 SHALL  BE  OR  BE DEEMED TO BE A DETERMINATION OF ANY ISSUE IN THE LITI-
 GATION OR OF THE MERITS THEREOF.
   4. (A) EXCEPT AS PROVIDED IN PARAGRAPH (B) OF  THIS  SUBDIVISION,  IF,
 AFTER  HEARING  THE  EVIDENCE UPON THE MOTION, THE COURT DETERMINES THAT
 THE PLAINTIFF IS A VEXATIOUS LITIGANT AND THAT THERE  IS  NO  REASONABLE
 PROBABILITY  THAT  THE  PLAINTIFF WILL PREVAIL IN THE LITIGATION AGAINST
 THE MOVING DEFENDANT, THE COURT SHALL ORDER THE  PLAINTIFF  TO  FURNISH,
 FOR  THE  BENEFIT  OF  THE MOVING DEFENDANT, SECURITY IN SUCH AMOUNT AND
 WITHIN SUCH TIME AS THE COURT SHALL FIX.
   (B) IF, AFTER HEARING EVIDENCE ON THE  MOTION,  THE  COURT  DETERMINES
 THAT  THE LITIGATION HAS NO MERIT AND HAS BEEN FILED FOR THE PURPOSES OF
 HARASSMENT OR DELAY, THE COURT SHALL  ORDER  THE  LITIGATION  DISMISSED.
 THIS  PARAGRAPH  SHALL ONLY APPLY TO LITIGATION FILED IN A COURT OF THIS
 STATE BY A VEXATIOUS LITIGANT SUBJECT TO A PREFILING ORDER  PURSUANT  TO
 SUBDIVISION  SEVEN OF THIS SECTION WHO WAS REPRESENTED BY COUNSEL AT THE
 TIME THE LITIGATION WAS FILED AND WHO BECAME IN  PROPRIA  PERSONA  AFTER
 THE WITHDRAWAL OF HIS OR HER ATTORNEY.
   (C)  A DEFENDANT MAY MAKE A MOTION FOR RELIEF IN THE ALTERNATIVE UNDER
 EITHER PARAGRAPH (A) OR (B) OF THIS SUBDIVISION AND  SHALL  COMBINE  ALL
 GROUNDS FOR RELIEF IN ONE MOTION.
   5.  WHEN  SECURITY THAT HAS BEEN ORDERED FURNISHED IS NOT FURNISHED AS
 ORDERED, THE LITIGATION SHALL BE DISMISSED AS TO THE DEFENDANT FOR WHOSE
 BENEFIT IT WAS ORDERED FURNISHED.

 A. 6843                             3
 
   6. EXCEPT AS PROVIDED IN SUBDIVISION FOUR  OF  THIS  SECTION,  WHEN  A
 MOTION  PURSUANT  TO  SUBDIVISION  TWO OF THIS SECTION IS FILED PRIOR TO
 TRIAL THE LITIGATION IS STAYED, AND THE MOVING DEFENDANT NEED NOT PLEAD,
 UNTIL TEN DAYS AFTER THE MOTION SHALL HAVE BEEN DENIED, OR  IF  GRANTED,
 UNTIL  TEN  DAYS  AFTER THE REQUIRED SECURITY HAS BEEN FURNISHED AND THE
 MOVING DEFENDANT GIVEN WRITTEN NOTICE THEREOF. WHEN A MOTION PURSUANT TO
 SUBDIVISION TWO OF THIS SECTION IS MADE  AT  ANY  TIME  THEREAFTER,  THE
 LITIGATION  SHALL  BE  STAYED  FOR  SUCH  PERIOD AFTER THE DENIAL OF THE
 MOTION OR THE FURNISHING OF THE REQUIRED SECURITY  AS  THE  COURT  SHALL
 DETERMINE.
   7.  (A) IN ADDITION TO ANY OTHER RELIEF PROVIDED IN THIS CHAPTER OR IN
 22 NYCRR PART 130, THE COURT MAY, ON ITS OWN MOTION OR THE MOTION OF ANY
 PARTY, ENTER A PREFILING ORDER WHICH PROHIBITS A VEXATIOUS LITIGANT FROM
 FILING ANY NEW LITIGATION IN THE COURTS OF THIS STATE IN PROPRIA PERSONA
 WITHOUT FIRST OBTAINING LEAVE OF  THE  PRESIDING  JUSTICE  OR  PRESIDING
 JUDGE OF THE COURT WHERE THE LITIGATION IS PROPOSED TO BE FILED. DISOBE-
 DIENCE  OF  THE  ORDER  BY  A  VEXATIOUS  LITIGANT  MAY BE PUNISHED AS A
 CONTEMPT OF COURT.
   (B) THE PRESIDING JUSTICE OR PRESIDING JUDGE SHALL PERMIT  THE  FILING
 OF  THAT LITIGATION ONLY IF IT APPEARS THAT THE LITIGATION HAS MERIT AND
 HAS NOT BEEN FILED FOR THE PURPOSES OF HARASSMENT OR DELAY. THE  PRESID-
 ING  JUSTICE  OR  PRESIDING  JUDGE MAY CONDITION THE FILING OF THE LITI-
 GATION UPON THE FURNISHING OF SECURITY FOR THE BENEFIT OF THE DEFENDANTS
 AS PROVIDED IN SUBDIVISION FOUR OF THIS SECTION.
   (C) THE CLERK MAY NOT FILE ANY LITIGATION  PRESENTED  BY  A  VEXATIOUS
 LITIGANT  SUBJECT  TO  A  PREFILING  ORDER UNLESS THE VEXATIOUS LITIGANT
 FIRST OBTAINS AN ORDER FROM THE PRESIDING  JUSTICE  OR  PRESIDING  JUDGE
 PERMITTING  THE  FILING.  IF  THE  CLERK MISTAKENLY FILES THE LITIGATION
 WITHOUT THE ORDER, ANY PARTY MAY FILE WITH THE CLERK AND SERVE,  OR  THE
 PRESIDING  JUSTICE  OR  PRESIDING JUDGE MAY DIRECT THE CLERK TO FILE AND
 SERVE, ON THE PLAINTIFF AND OTHER PARTIES  A  NOTICE  STATING  THAT  THE
 PLAINTIFF  IS  A  VEXATIOUS LITIGANT SUBJECT TO A PREFILING ORDER AS SET
 FORTH IN PARAGRAPH (A) OF THIS SUBDIVISION. THE  FILING  OF  THE  NOTICE
 SHALL  AUTOMATICALLY  STAY THE LITIGATION. THE LITIGATION SHALL BE AUTO-
 MATICALLY DISMISSED UNLESS THE PLAINTIFF WITHIN TEN DAYS OF  THE  FILING
 OF  THAT NOTICE OBTAINS AN ORDER FROM THE PRESIDING JUSTICE OR PRESIDING
 JUDGE PERMITTING THE FILING OF THE LITIGATION AS SET FORTH IN  PARAGRAPH
 (B)  OF  THIS  SUBDIVISION.  IF THE PRESIDING JUSTICE OR PRESIDING JUDGE
 ISSUES AN ORDER PERMITTING THE FILING, THE STAY OF THE LITIGATION  SHALL
 REMAIN  IN  EFFECT,  AND  THE  DEFENDANTS NEED NOT PLEAD, UNTIL TEN DAYS
 AFTER THE DEFENDANTS ARE SERVED WITH A COPY OF THE ORDER.
   (D) FOR PURPOSES OF THIS SUBDIVISION, "LITIGATION" INCLUDES ANY  PETI-
 TION,  APPLICATION,  OR  MOTION  OTHER  THAN  A  DISCOVERY  MOTION, IN A
 PROCEEDING IN FAMILY COURT OR SURROGATE'S COURT, FOR ANY ORDER.
   (E) THE PRESIDING JUSTICE OR PRESIDING JUDGE OF A COURT MAY  DESIGNATE
 A  JUSTICE  OR  JUDGE  OF  THE SAME COURT TO ACT ON HIS OR HER BEHALF IN
 EXERCISING THE AUTHORITY AND RESPONSIBILITIES PROVIDED UNDER  PARAGRAPHS
 (A), (B) AND/OR (C) OF THIS SUBDIVISION.
   (F)  THE  CLERK OF THE COURT SHALL PROVIDE THE ADMINISTRATIVE BOARD OF
 THE COURTS A COPY OF ANY PREFILING ORDERS ISSUED PURSUANT  TO  PARAGRAPH
 (A)  OF  THIS  SUBDIVISION. THE ADMINISTRATIVE BOARD OF THE COURTS SHALL
 MAINTAIN A RECORD OF VEXATIOUS  LITIGANTS  SUBJECT  TO  THOSE  PREFILING
 ORDERS  AND  SHALL  ANNUALLY  DISSEMINATE A LIST OF THOSE PERSONS TO THE
 CLERKS OF THE COURTS OF THIS STATE.
   8. (A) A VEXATIOUS LITIGANT SUBJECT TO A PREFILING ORDER UNDER  SUBDI-
 VISION  SEVEN  OF  THIS  SECTION  MAY  FILE AN APPLICATION TO VACATE THE

 A. 6843                             4
 
 PREFILING ORDER AND REMOVE HIS OR HER NAME FROM THE ADMINISTRATIVE BOARD
 OF THE COURTS' LIST OF VEXATIOUS LITIGANTS SUBJECT TO PREFILING  ORDERS.
 THE  APPLICATION  SHALL BE FILED IN THE COURT THAT ENTERED THE PREFILING
 ORDER,  EITHER IN THE ACTION IN WHICH THE PREFILING ORDER WAS ENTERED OR
 IN CONJUNCTION WITH A REQUEST TO  THE  PRESIDING  JUSTICE  OR  PRESIDING
 JUDGE  TO  FILE  NEW LITIGATION UNDER SUBDIVISION SEVEN OF THIS SECTION.
 THE APPLICATION SHALL BE MADE BEFORE THE JUSTICE OR  JUDGE  WHO  ENTERED
 THE  ORDER,  IF  THAT  JUSTICE OR JUDGE IS AVAILABLE. IF THAT JUSTICE OR
 JUDGE WHO ENTERED THE ORDER IS NOT AVAILABLE, THE APPLICATION  SHALL  BE
 MADE  BEFORE  THE  PRESIDING  JUSTICE  OR PRESIDING JUDGE, OR HIS OR HER
 DESIGNEE.
   (B) A VEXATIOUS LITIGANT WHOSE APPLICATION UNDER PARAGRAPH (A) OF THIS
 SUBDIVISION WAS DENIED SHALL NOT BE PERMITTED TO FILE  ANOTHER  APPLICA-
 TION ON OR BEFORE TWELVE MONTHS HAS ELAPSED AFTER THE DATE OF THE DENIAL
 OF THE PREVIOUS APPLICATION.
   (C)  A COURT MAY VACATE A PREFILING ORDER AND ORDER REMOVAL OF A VEXA-
 TIOUS LITIGANT'S NAME FROM THE ADMINISTRATIVE BOARD OF THE COURTS'  LIST
 OF  VEXATIOUS  LITIGANTS SUBJECT TO PREFILING ORDERS UPON A SHOWING OF A
 MATERIAL CHANGE IN THE FACTS UPON WHICH THE ORDER WAS GRANTED  AND  THAT
 THE ENDS OF JUSTICE WOULD BE SERVED BY VACATING THE ORDER.
   §  2.  This  act  shall take effect on the sixtieth day after it shall
 become a law and shall apply to all  claims  filed  on  and  after  such
 effective  date.  Effective  immediately  the addition, amendment and/or
 repeal of any rule or regulation necessary  for  the  implementation  of
 this  act  on its effective date are authorized to be made and completed
 on or before such date.