BILL NUMBER: S9733

SPONSOR: HOYLMAN-SIGAL
 
TITLE OF BILL:

An act to amend the civil practice law and rules, in relation to venue
in matrimonial actions

 
SOURCE OF BILL:

This bill is being introduced at the request of the Judiciary upon the
recommendation of the Chief Administrative Judge's Matrimonial Practice
Advisory and Rules Committee.

 
PURPOSE OF BILL:

This bill would amend the CPLR by adding a new rule 515 to require that
venue in a matrimonial action be in a county in which either party
resides or, if there are minor children of the marriage, in the county
where one of the parties or one of such children resides. This bill is
designed to further access to justice by distributing judicial resources
more fairly, speed the processing of divorce cases in counties overbur-
              

dened by non-resident filings, and assure better outcomes for litigants
by preventing plaintiffs from designating venue in distant counties
where none of the parties or their children reside pursuant to CPLR §
509 (unless safety concerns warrant keeping an address confidential, in
which case the bill permits CPLR § 509 to still be used to designate
venue).

 
SUMMARY OF PROVISIONS:

Section 1 of the bill amends CPLR § 509 to provide an exception to the
requirement that, notwithstanding any other provision of the CPLR's
venue article (article 5), the place of trial shall be as designated by
the plaintiff unless it is changed to another county by order upon
motion, or by consent as provided in CPLR rule 511(b). The exception
added is for new proposed rule 515.

Section 2 of the bill adds a new rule 515 to the CPLR providing for
venue in matrimonial actions. Subdivision (a) of this new rule applies
to actions wherein all or part of the relief granted is divorce, all
actions brought in supreme court for custody or visitation, all applica-
tions to modify a supreme court order of custody or visitation, all
actions wherein all or part of the relief granted is the dissolution,
annulment or declaration of the nullity of a marriage, all proceedings
to obtain a distribution of marital property following a foreign judg-
ment of divorce, and all post-judgment proceedings following a judgment
of divorce.

Subdivision (b) of new rule 515 provides that, notwithstanding anything
to the contrary in article 5 of the CPLR, the place of trial in an
action subject to subdivision (a) shall be in a county in which either
party resides or, if there are minor children of the marriage, the place
of trial may also be in the county where one of such children resides;
except that where any of the addresses of these residences is not a
matter of public record, or where any of these addresses is subject to
an existing confidentiality order, the place of trial designated by the
plaintiff may be as specified in section 509 of article 5.

Subdivision (c) of new rule 515 provides that in any action specified in
subdivision (a), the court may, for good cause shown, allow the trial to
proceed before it, notwithstanding that venue would not lie pursuant to
subdivision (b), and that good cause applications shall be made by
motion or order to show cause.

Section 3 of the bill provides that, if enacted, the bill shall take
effect on the sixtieth day after it shall have become a law and shall
apply to matrimonial actions commenced on or after such date.

 
JUSTIFICATION:

This bill will significantly further access to justice by distributing
judicial resources more fairly, speed the processing of divorce cases in
counties overburdened by non-resident filings, and assure better
outcomes for litigants.

Matrimonial plaintiffs have long used CPLR § 509 to designate venue in a
county even though none of the parties may reside there. This is partly
to convenience attorneys who do not want to travel to file papers, and
partly to take advantage of what is widely believed to be more expe-
ditious processing of divorces in certain counties. This causes prob-
lems, however, as was pointed out in Castaneda v Castaneda, 36 Misc. 3d
504 (Sup Ct, NY County 2012)( conducting a "detailed examination" of the
"recurrent practice of bringing divorce actions in New York County
regardless of where parties to the divorce actually live," and noting
the "significant problems" the practice creates for parties, "partic-
ularly defendants who are unrepresented by counsel," and "the court
system as a whole").

Designating venue in a divorce action in a county distant from the resi-
dence of the parties and children will require defendants to travel long
distances - where judges require appearances to resolve conflicts in the
papers or testimony on a range of issues, or to meet with professionals
in relation to the litigation. Moreover, it burdens the courts of that
county. It also requires that judges appoint and deal with counsel and
mental health and other professionals in distant jurisdictions with
whose work and expertise they are unfamiliar. When venue is designated
in a distant county, defendants are also more likely to default, in the
process giving up valuable rights and increasing the likelihood of post-
judgment applications.

Compounding the need for this measure, CPLR § 503(a) was amended in 2017
to permit the fixing of venue in a county where a substantial part of
the events or omissions giving rise to the claim occurred.  This amend-
ment (L. 2017, c. 366) was not designed with matrimonial actions in
mind. Nonetheless, by adding another venue option unrelated to residence
without restricting plaintiff's ability to designate a venue unrelated
to residence pursuant to CPLR § 509, the amendment underscores the need
for this measure.

To be sure, electronic filing, now widely available, greatly alleviates
problems for defendants caused by CPLR § 509 venue designations, and
also makes it easier and less costly for plaintiffs to file and prose-
cute divorce actions in the county of residence.  However, this bill
remains necessary to eliminate continued and ever-increasing abuses
caused by CPLR 509 designations of venue in distant counties.

The burden of CPLR § 509 venue designations has been great both upstate
and downstate for many years, especially, in the 1st, 2nd, 6th, 7th, and
8th Judicial Districts. Matrimonial judges in Buffalo and Rochester have
expressed concern for the large number of uncontested divorce actions
filed in Erie and Monroe Counties, respectively. Court statistics on
uncontested divorce filings reported in Matrimonial Reports to the Chief
Administrative Judge posted at  
REPORTS FROM PREVIOUS YEARS I NYCOURTS.
GOV show that both of those counties have sizable numbers of filings,
as do Nassau, Suffolk, and Westchester, along with the boroughs of New
York City aside from Richmond. Indeed, the burden has increased in all
parts of the State.

The Deputy Chief Administrative Judge for Courts Outside New York City,
as well as Administrative Judges and District Executives in the western,
northern and middle portions of the State have reported large numbers of
out of county uncontested divorce filings, many of them from New York
City. A recent survey of the 3rd through the 10th Judicial Districts
upstate conducted in September 2023 revealed that filings of uncontested
divorce by non-residents was a prevalent issue in nearly all Judicial
Districts. It also revealed that service issues are frequent in non-re-
sident uncontested filings, and it is difficult for judges to assess
allegations made in the filings, leaving the possibility that issues of
domestic violence and abuse may go undetected. It was also revealed that
CPLR § 509 filings are frequently made by attorneys who present them-
selves as self-represented litigants, raising ethical issues. Some judg-
es report that the relief sought in non-resident filings often appears
so unfair that it requires further explanation and financial disclosure
by the parties. Within New York City, some counties are overburdened by
filings from other New York City counties as well.

A number of thoughtful remedial proposals have been made in the last few
years by bar association groups such as the New York State Bar Standing
CPLR Committee, and by judges and clerks in New York County.  These
proposals have called for amendment of CPLR § 509 to narrow a
plaintiff's choice of venue in a matrimonial action. Under that section,
only a plaintiff can now fix venue, and under existing CPLR § 510(1),
only the defendant may demand a change in venue.(1) Courts cannot over-
turn a matrimonial plaintiff's choice to designate venue outside the
county of residence of one of the parties if defendants do not ask for a
change.(1)

This bill would avoid problems of venue designations in distant counties
by requiring that venue be related to the parties' residence notwith-
standing CPLR § 509. It requires that venue in a divorce action be
related to the residence of the parties or child(ren) of the marriage
with exception only for instances where the address of a party is not a
matter of public record or is subject to a confidentiality order, when
it may be specified pursuant to CPLR § 509. It also gives the court
authority for good cause shown to allow the trial to proceed before it
even if venue is not proper, thus avoiding time consuming venue trans-
fers to other counties fraught with delays when appropriate. Moreover,
because proposed CPLR rule 515 is expressly limited to matrimonial
actions, it will have no impact on non-matrimonial actions.

This bill will ensure that divorces will be processed more quickly
statewide as it should result in the volume of divorces being more even-
ly distributed among counties. This measure will also ensure better
outcomes in divorce cases by ensuring that defendants are less likely to
default, that parties and their children do not have to travel long
distances for in-person hearings, and that judges can appoint and deal
with professional counsel and forensic evaluators in custody matters
with whose work and expertise they are familiar. As a result, outcomes
in divorce cases will be fairer since judges will be better able to
assess allegations and fairness of the relief sought because they will
have more readily available important information about children and
families that would not be available if the venue were not related to
residence.

 
PRIOR LEGISLATIVE HISTORY:

The Judiciary has proposed similar bills that have been introduced in
the past, including in 2017 (S.5736-A (Bonacic)), 2018 (A.9920 (Dinow-
itz)), 2019 (A.7517 (Dinowitz)) and 202122 (OCA-56)

 
FISCAL IMPLICATIONS:

This bill would have no State fiscal impact.

 
EFFECTIVE DATE:
This bill would take effect on take effect on the sixtieth day after it
shall have become a law.
(1) In the Practice Commentaries, Vincent Alexander explains: "CPLR 510
specifies three grounds for a motion to change venue. Subdivision (1)
provides for such motion when venue is improper, i.e., plaintiff has
failed to comply with the rules specified in CPLR 501 and 503-508 or
some other venue-regulating statute (e.g., CPLR 7502(a)). Only the
defendant may make this motion; if the plaintiff places venue in an
improper county, she forfeits the right to select a proper one.- See
N.Y. CPLR 510 (McKinney).
(2) "A change of venue requires a motion. That the change cannot be made
by the court sua sponte is an old rule, generally still followed."  (16
Siegel, N.Y. Prac. § 116 (5th ed.)).