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A09564 Summary:

BILL NOA09564
 
SAME ASSAME AS S06179-A
 
SPONSORDinowitz
 
COSPNSR
 
MLTSPNSR
 
Amd 4-A-105, 4-A-106, 4-A-204 & 5--103, UCC; amd R4518, CPLR; amd 200, Lien L; amd 5-1401 & 7-101, Gen Ob L; amd 138 & 204-a, Bank L; amd 11.01, Arts & Cul L; amd 331 & 500, Pers Prop L; amd 399-w, Gen Bus L
 
Relates to making certain technical corrections relating to the UCC revisions.
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A09564 Actions:

BILL NOA09564
 
01/23/2018referred to judiciary
02/13/2018reported
02/15/2018advanced to third reading cal.686
02/27/2018passed assembly
02/27/2018delivered to senate
02/27/2018REFERRED TO JUDICIARY
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A09564 Memo:

NEW YORK STATE ASSEMBLY
MEMORANDUM IN SUPPORT OF LEGISLATION
submitted in accordance with Assembly Rule III, Sec 1(f)
 
BILL NUMBER: A9564
 
SPONSOR: Dinowitz
  TITLE OF BILL: An act to amend the uniform commercial code, the civil practice law and rules, the lien law, the general obligations law, the banking law, the general business law, the arts and cultural affairs law and the personal property law, in relation to making technical corrections to conform with revisions to the uniform commercial code   PURPOSE OR GENERAL IDEA OF BILL: To fix cross-references in several sections of law. These corrections are needed to address renumbering changes that were made by a 2014 law.   SUMMARY OF SPECIFIC PROVISIONS: Section 1 amends paragraph (g) of subsection 1 of section 4-A-105 of the uniform commercial code, as added by chapter 208 of the laws of 1990. Section 2 amends subsection 1 of section 4-A-106 of the uniform commer- cial code, as added by chapter 208 of the laws of 1990. Section 3 amends subsection of section 4-A-204 of the uniform commercial code, as added by chapter 208 of the laws of 1990. Section 4 amends subsection (c) of section 5- -103 of the uniform commercial code, as added by chapter 471 of the laws of 2000. Section 5 amends subdivision (c) of rule 4518 of the civil practice law and rules as amended by chapter 229 of the laws of 2017. Section 6 amends section 200 of the lien law, as amended by chapter 30 of the laws of 1968. Section 7 amends subdivision 1 of section 5-1401 of the general obli- gations law, as added by chapter 421 of the laws of 1984. Section 8 amends subdivision 1-c of section 7-101 of the general obli- gations law, as amended by chapter 9 of the laws of 2001. Section 9 amends subdivisions 1 and 2 of section 138 of the banking law, as amended by chapter 689 of the laws of 1984. Section 10 amends paragraphs (a) and (b) of subdivision 3 of section 204-a of the banking law, as amended by chapter 552 of the law of 1962. Section 11 amends subdivision 4 of section 11.01 of the arts and cultural affairs law, as added by chapter 849 of the laws of 1984: Section 12 amends subdivision 5 of section 331 of the personal property law, as added by chapter 1 of the laws of 1994. Section 13 amends paragraph (e) of subdivision 7 of section 399-w of the general business law, as amended by chapter 140 of the laws of 1995. Section 14 amends subdivision 6 of section 500 of the personal property law, as amended by chapter 300 of the laws of 2010.   JUSTIFICATION: Legislation was enacted in 2014 which modernized Articles 1, 7 and 9 of the Uniform Commercial Code (see Chapter 505 of 2014). These extensive changes included the repeal and renumbering of several sections of the Uniform Commercial Code. However, there are other sections of state law which currently contain cross-references to those articles of the Uniform Commercial Code. These cross-references are now out of date and refer to incorrect sections. This bill amends and fixes those cross-references so that they refer to the correct sections of the UCC. This bill is necessary to ensure clari- ty and certainty.   PRIOR LEGISLATIVE HISTORY: New bill.   FISCAL IMPLICATIONS: None.   EFFECTIVE DATE: One hundred eighty days after becoming law.
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A09564 Text:



 
                STATE OF NEW YORK
        ________________________________________________________________________
 
                                          9564
 
                   IN ASSEMBLY
 
                                    January 23, 2018
                                       ___________
 
        Introduced by M. of A. DINOWITZ -- read once and referred to the Commit-
          tee on Judiciary
 
        AN  ACT to amend the uniform commercial code, the civil practice law and
          rules, the lien law, the general obligations law, the banking law, the
          general business law, the  arts  and  cultural  affairs  law  and  the
          personal  property law, in relation to making technical corrections to
          conform with revisions to the uniform commercial code
 
          The People of the State of New York, represented in Senate and  Assem-
        bly, do enact as follows:
 
     1    Section  1.  Paragraph  (g)  of subsection 1 of section 4-A-105 of the
     2  uniform commercial code, as added by chapter 208 of the laws of 1990, is
     3  amended to read as follows:
     4  (g) "Prove" with respect to a fact means to meet the  burden  of  estab-
     5         lishing the fact (subsection (b)(8) of section [1-201] 1--201).
     6    §  2.  Subsection 1 of section 4-A-106 of the uniform commercial code,
     7  as added by chapter 208 of the laws of  1990,  is  amended  to  read  as
     8  follows:
     9    (1) The time of receipt of a payment order or communication cancelling
    10  or  amending  a  payment  order is determined by the rules applicable to
    11  receipt of a notice stated  in  [subsection  (27)  of]  Section  [1-201]
    12  1--202.    A  receiving bank may fix a cut-off time or times on a funds-
    13  transfer business day for the receipt and processing of  payment  orders
    14  and  communications  cancelling  or  amending  payment orders. Different
    15  cut-off times may apply to payment orders, cancellations, or amendments,
    16  or to different categories of payment orders, cancellations,  or  amend-
    17  ments.  A  cut-off time may apply to senders generally or different cut-
    18  off times may apply  to  different  senders  or  categories  of  payment
    19  orders.  If  a  payment  order or communication cancelling or amending a
    20  payment order is received after the close of a  funds-transfer  business
    21  day  or  after the appropriate cut-off time on a funds-transfer business
    22  day, the receiving bank may treat the payment order or communication  as
    23  received at the opening of the next funds-transfer business day.
    24    §  3.  Subsection 2 of section 4-A-204 of the uniform commercial code,
    25  as added by chapter 208 of the laws of  1990,  is  amended  to  read  as
    26  follows:
    27    (2)  Reasonable time under subsection (1) may be fixed by agreement as
    28  stated in subsection [(1)] (b) of Section [1-204] 1--302, but the  obli-
 
         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD14138-01-8

        A. 9564                             2
 
     1  gation  of  a  receiving  bank to refund payment as stated in subsection
     2  [(1)] (b) may not otherwise be varied by agreement.
     3    §  4. Subsection (c) of section 5--103 of the uniform commercial code,
     4  as added by chapter 471 of the laws of  2000,  is  amended  to  read  as
     5  follows:
     6    (c) With  the exception of this subsection, subsections (a) and (d) of
     7  this section, paragraphs (9) and  (10)  of  subsection  (a)  of  section
     8  5--102,  subsection (d) of section 5--106, and subsection (d) of section
     9  5--114, and except to the  extent  prohibited  in  [subsection  (3)  of]
    10  section [1--102] 1--302 and subsection (d) of section 5--117, the effect
    11  of  this  article may be varied by agreement or by a provision stated or
    12  incorporated by reference in an undertaking. A term in an  agreement  or
    13  undertaking  generally excusing liability or generally limiting remedies
    14  for failure to perform obligations is not sufficient to vary obligations
    15  prescribed by this article.
    16    § 5. Subdivision (c) of rule 4518 of the civil practice law and rules,
    17  as amended by chapter 229 of the laws of 2017, is  amended  to  read  as
    18  follows:
    19    (c)  Other records. All records, writings and other things referred to
    20  in sections 2306 and 2307 are admissible in evidence under this rule and
    21  are prima facie evidence of the facts contained, provided  they  bear  a
    22  certification or authentication by the head of the hospital, laboratory,
    23  department  or  bureau of a municipal corporation or of the state, or by
    24  an employee delegated for that purpose  or  by  a  qualified  physician.
    25  Where  a  hospital  record  is in the custody of a warehouse[, or "ware-
    26  houseman"] as that term is defined by paragraph (thirteen) of subsection
    27  (a) of section [7-102] 7--102 of the uniform commercial  code,  pursuant
    28  to  a  plan  approved  in  writing  by the state commissioner of health,
    29  admissibility under this subdivision may be  established  by  a  certif-
    30  ication  made  by  the  manager of the warehouse that sets forth (i) the
    31  authority by which the record is held, including but not  limited  to  a
    32  court  order,  order  of the commissioner, or order or resolution of the
    33  governing body or official of the hospital, and (ii) that the record has
    34  been in the exclusive custody of such warehouse  or  warehousemen  since
    35  its  receipt  from the hospital or, if another has had access to it, the
    36  name and address of such person and the date on which  and  the  circum-
    37  stances  under  which  such access was had. Any [warehouseman] warehouse
    38  providing a certification as required by this subdivision shall have  no
    39  liability for acts or omissions relating thereto, except for intentional
    40  misconduct, and the [warehouseman] warehouse is authorized to assess and
    41  collect a reasonable charge for providing the certification described by
    42  this  subdivision.  Where a hospital record is located in a jurisdiction
    43  other than this state,  admissibility  under  this  subdivision  may  be
    44  established  by  either a certification or authentication by the head of
    45  the hospital, laboratory, department or bureau  of  a  municipal  corpo-
    46  ration  or of the state or by an employee delegated for that purpose, or
    47  by a qualified physician.
    48    § 6. Section 200 of the lien law, as amended by chapter 30 of the laws
    49  of 1968, is amended to read as follows:
    50    § 200. Sale of personal property to satisfy a  lien.  A  lien  against
    51  personal  property,  other  than  the lien of a [warehouseman] warehouse
    52  pursuant to section 7--209 of the uniform commercial code, the lien of a
    53  carrier pursuant to section 7--307 of the  uniform  commercial  code,  a
    54  security  interest  in goods and the lien of a keeper of a hotel, apart-
    55  ment hotel, inn, boarding-house or lodging-house,  except  an  immigrant
    56  lodging-house,  if  in the legal possession of the lienor, may be satis-

        A. 9564                             3
 
     1  fied by the sale of such property according to the  provisions  of  this
     2  article.
     3    §  7.  Subdivision 1 of section 5-1401 of the general obligations law,
     4  as added by chapter 421 of the laws of  1984,  is  amended  to  read  as
     5  follows:
     6    1.  The  parties to any contract, agreement or undertaking, contingent
     7  or otherwise, in consideration of, or relating to any obligation arising
     8  out of a transaction covering in the aggregate not less than two hundred
     9  fifty thousand dollars, including a  transaction  otherwise  covered  by
    10  subsection [one] (a) of section [1-105] 1--301 of the uniform commercial
    11  code, may agree that the law of this state shall govern their rights and
    12  duties  in  whole or in part, whether or not such contract, agreement or
    13  undertaking bears a reasonable relation  to  this  state.  This  section
    14  shall  not apply to any contract, agreement or undertaking (a) for labor
    15  or personal services, (b) relating  to  any  transaction  for  personal,
    16  family  or  household  services,  or  (c)  to the extent provided to the
    17  contrary in subsection [two]  (c)  of  section  [1-105]  1--301  of  the
    18  uniform commercial code.
    19    §  8. Subdivision 1-c of section 7-101 of the general obligations law,
    20  as amended by chapter 84 of the laws of 2001,  is  amended  to  read  as
    21  follows:
    22    1-c.  This  section  shall  apply  to  money  deposited or advanced on
    23  contracts for the use or rental of personal  property  as  security  for
    24  performance  of  the  contract  or  to  be applied to payments upon such
    25  contract when due, only if (a) such contract is governed by the laws  of
    26  this  state as the result of a choice of law provision in such contract,
    27  in accordance with section [1-105] 1--301 of the uniform commercial code
    28  (subject to the limitations on choice of law by the parties to a consum-
    29  er lease under section 2-A-106 of the uniform commercial code), or  such
    30  contract  is  otherwise governed by the laws of this state in accordance
    31  with applicable conflict of laws rules, and (b) the  lessee  under  such
    32  contract is located within this state, within the meaning of the uniform
    33  commercial code (with respect to the location of debtors), except that a
    34  foreign  air carrier under the Federal Aviation Act of 1958, as amended,
    35  shall not be deemed located in this state solely as a result of having a
    36  designated office of an agent upon whom service of process may  be  made
    37  located in this state.
    38    §  9.  Subdivisions  1  and  2  of  section 138 of the banking law, as
    39  amended by chapter 689 of the laws of  1984,  are  amended  to  read  as
    40  follows:
    41    1.  Notwithstanding  section  [1-105] 1--301 of the uniform commercial
    42  code, any bank or trust company or national bank located in  this  state
    43  which  in  accordance  with  the provisions of this chapter or otherwise
    44  applicable law shall have opened and occupied a branch office or  branch
    45  offices  in  any  foreign  country  shall  be liable for contracts to be
    46  performed at such branch office or offices and for deposits to be repaid
    47  at such branch office or offices to no greater extent than a bank, bank-
    48  ing  corporation  or  other  organization  or  association  for  banking
    49  purposes  organized  and existing under the laws of such foreign country
    50  would be liable under its laws. The laws of such foreign country for the
    51  purpose of this section shall be deemed to include  all  acts,  decrees,
    52  regulations  and  orders promulgated or enforced by a dominant authority
    53  asserting governmental, military or police power  of  any  kind  at  the
    54  place where any such branch office is located, whether or not such domi-
    55  nant authority be recognized as a de facto or de jure government.

        A. 9564                             4
 
     1    2.  Notwithstanding  section  [1-105] 1--301 of the uniform commercial
     2  code, if by action of any such dominant authority which  is  not  recog-
     3  nized  by  the  United  States  as the de jure government of the foreign
     4  territory concerned, any property  situated  in  or  any  amount  to  be
     5  received in such foreign territory and carried as an asset of any branch
     6  office  of  such  bank or trust company or national bank in such foreign
     7  territory is seized, destroyed or cancelled, then the liability of  such
     8  bank  or  trust  company  or  national  bank for any deposit theretofore
     9  received and thereafter to be repaid by it, and for any contract  there-
    10  tofore  made  and thereafter to be performed by it, at any branch office
    11  in such foreign territory shall be reduced pro tanto by  the  proportion
    12  that  the  value (as shown by the books or other records of such bank or
    13  trust company or national bank at the time of such seizure,  destruction
    14  or cancellation) of such assets bears to the aggregate of all the depos-
    15  it and contract liabilities of the branch office or offices of such bank
    16  or trust company or national bank in such foreign territory, as shown at
    17  such time by the books or other records of such bank or trust company or
    18  national bank.
    19    §  10. Paragraphs (a) and (b) of subdivision 3 of section 204-a of the
    20  banking law, as amended by chapter 552 of the laws of 1962, are  amended
    21  to read as follows:
    22    (a)  Notwithstanding  section [1-105] 1--301 of the uniform commercial
    23  code, any foreign banking corporation doing business in this state under
    24  a license issued by the superintendent in accordance with the provisions
    25  of this chapter shall be liable  in  this  state  for  contracts  to  be
    26  performed  at  its  office  or  offices  in any foreign country, and for
    27  deposits to be repaid at such office or offices, to  no  greater  extent
    28  than  a  bank,  banking corporation or other organization or association
    29  for banking purposes organized and  existing  under  the  laws  of  such
    30  foreign country would be liable under its laws. The laws of such foreign
    31  country  for  the purpose of this subdivision shall be deemed to include
    32  all acts, decrees, regulations and orders promulgated or enforced  by  a
    33  dominant  authority  asserting governmental, military or police power of
    34  any kind at the place where any such office is located, whether  or  not
    35  such  dominant  authority be recognized as a de facto or de jure govern-
    36  ment.
    37    (b) Notwithstanding section [1-105] 1--301 of the  uniform  commercial
    38  code,  if  by  action of any such dominant authority which is not recog-
    39  nized by the United States as the de  jure  government  of  the  foreign
    40  territory  concerned,  any  property  situated  in  or  any amount to be
    41  received in such foreign territory and carried as an asset of any office
    42  of such foreign banking corporation in such foreign territory is seized,
    43  destroyed or cancelled, then the liability, if any,  in  this  state  of
    44  such  foreign  banking  corporation for any deposit theretofore received
    45  and thereafter to be repaid by it, and for any contract theretofore made
    46  and thereafter to be performed by it, at  any  office  in  such  foreign
    47  territory  shall  be  reduced pro tanto by the proportion that the value
    48  (as shown by the books or other records of such foreign  banking  corpo-
    49  ration,  at  the  time  of such seizure, destruction or cancellation) of
    50  such assets bears to the aggregate  of  all  the  deposit  and  contract
    51  liabilities of the office or offices of such foreign banking corporation
    52  in  such  foreign territory, as shown at such time by the books or other
    53  records of such foreign banking corporations. Nothing contained in  this
    54  paragraph  shall  diminish or otherwise affect the liability of any such
    55  foreign banking corporation to any corporation, firm or individual which

        A. 9564                             5
 
     1  at the time of such seizure, destruction or  cancellation  was  incorpo-
     2  rated or resident in any state of the United States.
     3    §  11. Subdivision 4 of section 11.01 of the arts and cultural affairs
     4  law, as added by chapter 849 of the laws of 1984, is amended to read  as
     5  follows:
     6    4.  "Creditors"  means  "creditor"  as defined in [subdivision twelve]
     7  paragraph thirteen of subsection (b) of section [1-201]  1--201  of  the
     8  uniform [commerical] commercial code.
     9    §  12.  Subdivision  5 of section 331 of the personal property law, as
    10  added by chapter 1 of the laws of 1994, is amended to read as follows:
    11    5. "Retail lease agreement" or "agreement" means an agreement, entered
    12  into in this state, for the lease of a  motor  vehicle,  and  which  may
    13  include  the  purchase  of  goods  or  services incidental thereto, by a
    14  retail lessee for a scheduled term exceeding four months, whether or not
    15  the lessee has the option to purchase or otherwise become the  owner  of
    16  the  vehicle  at the expiration of the agreement. The term includes such
    17  an agreement wherever entered into if executed by  the  lessee  in  this
    18  state and if solicited in person by a person acting on his own behalf or
    19  that  of  the  lessor.  The  term  does  not include a retail instalment
    20  contract or a rental-purchase agreement as defined in articles nine  and
    21  eleven  of  this  chapter. An agreement that substantially complies with
    22  this article does not create a security interest in a motor  vehicle  as
    23  the  term  "security  interest" is defined in [subdivision thirty-seven]
    24  paragraph thirty-five of subsection (b) of section [1-201] 1--201 of the
    25  uniform commercial code.
    26    § 13. Paragraph (e) of subdivision 7 of section 399-w of  the  general
    27  business  law, as amended by chapter 140 of the laws of 1995, is amended
    28  to read as follows:
    29    (e) "Retail  lease  agreement"  or  "agreement"  means  an  agreement,
    30  entered into in this state, for the lease of goods and which may include
    31  the  purchase  of goods or services incidental thereto by a lessee for a
    32  scheduled term exceeding four months, whether or not the lessee has  the
    33  option  to  purchase  or  otherwise become the owner of the goods at the
    34  expiration of the agreement. The term includes such an agreement wherev-
    35  er entered into if executed by the lessee in this state and if solicited
    36  in person by a person acting on his or her own behalf  or  that  of  the
    37  lessor.  The  term  does  not  include a retail instalment contract or a
    38  rental-purchase agreement as defined in articles ten and eleven  of  the
    39  personal  property  law.  An  agreement that substantially complies with
    40  this article does not create a security interest in  the  goods  as  the
    41  term  "security interest" is defined in [subdivision thirty-seven] para-
    42  graph thirty-five of subsection (b) of section  [1-201]  1--201  of  the
    43  uniform commercial code.
    44    §  14.  Subdivision  6 of section 500 of the personal property law, as
    45  amended by chapter 309 of the laws  of  2010,  is  amended  to  read  as
    46  follows:
    47    6.  "Rental-purchase  agreement"  means  an  agreement  for the use of
    48  merchandise by a consumer for primarily personal, family,  or  household
    49  purposes,  for an initial period of four months or less, that is renewa-
    50  ble with each payment after the initial  period  and  that  permits  the
    51  consumer to become the owner of the property. An agreement that complies
    52  with this article is not a retail installment sales contract, agreement,
    53  or  obligation  as  defined  in  this chapter nor a security interest as
    54  defined  in  [subdivision  thirty-seven]    paragraph   thirty-five   of
    55  subsection (b) of section [1-201] 1--201 of the uniform commercial code.
    56    § 15. This act shall take effect immediately.
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