NEW YORK STATE ASSEMBLY MEMORANDUM IN SUPPORT OF LEGISLATION submitted in accordance with Assembly Rule III, Sec 1(f)
 
BILL NUMBER: A8083
SPONSOR: Weinstein
 
TITLE OF BILL:
An act to amend the judiciary law, the civil practice law and rules, the
court of claims act, the criminal procedure law, the family court act,
the New York city civil court act and the surrogate's court procedure
act, in relation to use of electronic means for the commencement and
filing of papers in certain actions and proceedings; and providing for
the repeal of certain provisions upon expiration thereof
This measure is being introduced at the request of the Chief Judge of
the State and the Chief Administrative Judge.
As far back as 1999, the State began to introduce pilot programs in the
use of electronic means for the purpose of commencing certain categories
of cases and filing court papers with judges and with adverse parties
("e-filing"). See L. 1999, c. 367. In the years since, those programs
have been continued and progressively expanded - to apply to a broader
spectrum of cases in additional courts. As has been well-documented in
numerous analyses and reports prepared over the years to assess the
effectiveness of e-filing in New York's State courts, the pilot programs
have been very successful and greeted with great enthusiasm by both
bench and bar.
Authorization for use of several vital components of the State's e-fil-
ing programs -mandatory e-filing under certain circumstances in civil
cases and both consensual and mandatory e-filing in criminal courts and
in Family Court - is due to expire on September 1, 2015. This measure
would eliminate this sunset and make several other important changes in
the e-filing programs. Specifically, this measure would:
* Make permanent present authorization for the use of mandatory e-filing
in Supreme Court civil parts. By all measures, e-filing in this State
has been an enormous success. To date, there have been more than 820,000
cases e-filed in New York's courts. By year's end, we project that this
number will grow to exceed one million cases. More than 58,000 attorneys
and others have become registered users of the State's electronic filing
system (NYSCEF). None of this can come as a surprise. E-filing:
- benefits all sectors of the bar, particularly solo and small-firm
practitioners who lack the resources of large law firms and attorneys in
rural counties who must travel long distances to reach a courthouse.
- saves the bar the time and expense of serving other parties (i.e., the
e-filing system serves other parties automatically and instantaneously,
providing immediate access to the filed documents).
- reduces costs and enhances efficiency for the bench, County Clerks and
local governments.
- is green, reducing the number of trips attorneys must make to the
courthouse to file papers and the amount of paper required in liti-
gation.
- has proven immensely successful in Federal courts and in other state
courts.
To best capitalize upon these benefits, we believe it appropriate and
necessary - after more than fifteen years of success with e-filing in
New York - to put greater reliance upon mandatory e-filing. It has been
our experience that, whether because of habit or simple inertia, consen-
sual e-filing programs have trouble drawing participation. It is for
this reason that, six years ago, the Legislature began to authorize
mandatory e-filing programs. At this point, these programs, which are
operative in many of the State's largest jurisdictions, are working well
and ripe for expansion.
* Vest the Chief Administrative Judge with authority, provided the local
County Clerk agrees, to implement mandatory e-filing in a county and in
most classes of cases{1}. Present law recites the 16 specific counties
in which mandatory e-filing may be authorized. As we have discovered,
however, this arrangement is actually counterproductive to effective
roll-out of e-filing, as counties do not become ready for e-filing in
easily-predictable fashion. Some of the 16 statutory counties will not
be ready for e-filing for years; other counties, not now in the statute,
can be ready soon -- but must wait to be added by the Legislature. This
has hobbled, in some measure, the State's efforts to gain experience
with e-filing. Giving the Chief Administrative Judge the authority to
delineate where mandatory e-filing can go forward should counter this by
adding essential flexibility to the process. Moreover, to concerns that
such a change would confer too much authority on the Chief Administra-
tive Judge, it can be said that: (1) the 16 counties in which mandatory
e-filing may now be authorized include most of the State's largest, most
populous venues so that such additional counties as the Chief Adminis-
trative Judge might add have smaller populations and are not likely to
host a great volume of litigation; (2) no expansion of mandatory e-fil-
ing may be undertaken without the approval of affected local County
Clerks; (3) members of the bar will continue to enjoy their present
ability to opt out of mandatory e-filing; and (4) self-represented liti-
gants will automatically be exempt from mandatory e-filing (but able to
opt in to such e-filing should they wish to do so).
* Continue present authorization for the use of e-filing, both consensu-
al and mandatory, in criminal superior courts and Family Court. While we
have as yet to exploit this authorization, it is only because of a want
of resources. Sooner or later, we will be able to do this and, given the
tremendous success e-filing has enjoyed in civil cases, there is little
reason to doubt that it will be similarly successful in criminal court
and in Family Court.
* Continue permanently, without change, programs of consensual and
mandatory e-filing in Surrogate's Court and the New York City Civil
Court; and programs for consensual e-filing (and filing by FAX) in the
Court of Claims. Bench and bar continue to register their support for
the breadth and pace of e-filing's roll-out in these courts.
* Authorize use of e-filing in the Appellate Divisions at the discretion
of each Judicial Department subject only to the same case exclusions for
mandatory e-filing as are applied in the trial courts, and an aspira-
tional invitation to make any implementing rules uniform. All four
Departments are anxious to see e-filing used in the cases before them,
and they strongly support this initiative.
* Relocate statutes governing e-filing from the State's Unconsolidated
Laws to appropriate provisions of the Consolidated Laws. Unconsolidated
statutes, where e-filing authority now reposes, can be very difficult to
find. It is far more sensible to place that authority in more accessible
and more familiar Consolidated Laws like the Judiciary Law, CPLR, CPL,
etc.
This measure, which would have no meaningful fiscal impact, would take
effect immediately, except that authorization for e-filing in criminal
and Family Court cases would sunset on September 1, 2019.
Tributes to E-filing in New York's Courts
"It is time to end the 'experiment,' fully embrace modern technology,
and by statute make e-filing a permanent part of New York practice."
--- Hon. Jonathan Lippman
Chief Judge of the State of New York
"E-filing should be mandatory in all proceedings in all courts. Its use
makes service and filing of papers far easier and less expensive for
practicing lawyers as well as for the court system . . . Adoption of
e-filing is an effective use of a now well-established technological
tool that benefits everyone."
--- New York State Bar Association
"The overwhelming response by NYSTLA members . . . has been positive.
E-filing has facilitated the efficient representation of clients, and
brought the practice of law into the twenty-first century . . . NYSTLA
is strongly in favor of further expanding the e-filing program."
--- New York State Trial Lawyers Association
"The decision to go to mandatory e-filing was one of the best decisions
ever made for this Clerk's office. I look forward to adding more case
types to our mandatory e-filing requirement in the future and see more
counties make the move to court filing thru NYSCEF."
--- Hon. Malcolm Merrill
Deputy County Clerk, Onondaga County
"The implementation of electronic filing in Westchester County has been
a tremendous success. Electronic filing has transformed the way we do
business . . . The customer eliminates the time and costs associated
with getting paper filings to our office, as well as the risk that these
paper filings could be misrouted along the way. There is no doubt this
is both efficient and cost-effective for our customers we believe
strongly the NYSCEF has a bright future and we want nothing more than to
be the county where e-filing is comprehensive and embraced by our
customers and partners in the courts."
--- Hon. Timothy C. Idoni
Westchester County Clerk
"The benefits of e-filing have been significant . . . Electronic filing
has certainly been a positive change to our operations . . . E-filing
has been successfully integrated, well-accepted and beneficial to all
involved."
--- Hon. Paul Piperato
Rockland County Clerk
"Overall, I am pleased that we were one of the first counties to partic-
ipate voluntarily in e-filing and one of the first mandatory counties
and I believe that the users in the Erie County Clerk's Office feel very
positive about the system . . ."
--- Hon. Christopher L. Jacobs
Erie County Clerk
"The feedback we received overwhelmingly supports expansion of NYSCEF,
not only to more counties statewide, but also to the Appellate Divi-
sions, and the Court of Appeals. In addition to supporting expansion of
the e-filing system, the comments indicate support for a uniform filing
system, with the various Courts being limited in the amount of customi-
zation so the system is consistent state wide."
--- Managing Attorneys and Clerks Association
"Overall, the move towards electronic filing has been positive and we
look forward to expanding the breadth of cases which must be filed in
this manner."
--- Hon. Judith A. Pascale
Suffolk County Clerk
"There has been extremely positive feedback, which is indicative of the
unquestionable support this initiative has enjoyed . . . Nassau County
looks to add additional case types in the near future . . ."
--- Hon. Maureen O'Connell
Nassau County Clerk
"The NYSCEF system . . . promotes transparency, accountability and
confidence in the court system as litigants, attorneys, parties, judges,
court staff and the public, have equal simultaneous and contemporaneous
access to all filed documents, unless of course, a court order or law
restricts access to a court file or a particular document."
--- Hon. Nancy T. Sunshine
Kings County Clerk
"Under current law, a County may implement e-filing on a voluntary basis
with the consent of the Clerk and the courts. Mandatory e-filing, howev-
er, requires an act of the state legislature. While this requirement was
understandable when e-filing was a pilot program, NYSCEF has matured to
the point that expansion to a mandatory program should be at the
discretion of the courts and the clerk jointly."
"While there are significant monetary savings  
to the office of the
county clerk . . ., perhaps the greatest benefits accrue to the public
and the litigants."
--- Hon. Bradford H. Kendall
Dutchess County Clerk
"The Niagara County Clerk's office has served as a partner with the New
York State Office of Court Administration since the passage of the
original e-filing enabling legislation. We are very pleased to have been
on the forefront of this major project, and look forward to moving
toward a mandatory program in the future."
--- Hon. Wayne F. Jagow
Niagara County Clerk
"There is a constant collaboration of efforts between our county and the
e-filing resource center to continuously enhance the system. NYSCEF
staff is always willing to address any concerns and provide improvements
to the system. We look forward to continue working with NYSCEF to expand
mandatory electronic filings in all cases types in Queens County."
--- Hon. Audrey I. Pfeffer
Queens County Clerk
"E-filing has saved my office a tremendous amount of time and we contin-
ue to strongly encourage our local attorneys to take the logical step to
e-filing."
--- Hon. Elizabeth Larkin
Cortland County Clerk
"Electronic filing creates costs savings as attorneys can access these
files remotely, the cost savings accorded to law firms is immeasurable
They no longer have to send someone to the office for routine matters
such as, checking on an order or printing out a simple copy."
--- Hon. Stephen J. Fiala
Richmond County Clerk
 
HISTORY OF E-FILING IN NEW YORK
The following will summarize the evolution of e-filing in New York.
L. 1999, c. 367
The State's introduction to e-filing. This measure authorized use of
consensual e-filing in Supreme Court in one county in New York City and
in one county outside the City, to be selected by the Chief Administra-
tive Judge with the approval of the Administrative Board of the Courts.
Under chapter 367, e-filing would be available for the filing of papers
in commercial and tax certiorari cases in Supreme Court to commence a
case and, as well, for the exchange of legal papers between counsel for
the parties in such cases where all have consented to such exchange.
Chapter 367 was scheduled to sunset on July 1, 2002, approximately three
years after its enactment. In the wake of its enactment, consensual
e-filing was authorized for commercial cases in the Commercial Divisions
of Supreme Court in Monroe and New York Counties; and for tax certiorari
cases in Supreme Court in Westchester County.
L. 2002, c. 110
This measure continued the e-filing programs established by chapter 367
for another year - i.e., until July 1, 2003. Also, to enable greater
experience with e-filing under the programs, the measure expanded the
number of venues in which consensual e-filing could be authorized to
include commercial claims in the Commercial Divisions of Supreme Court
in Albany, Monroe, Nassau, New York, Suffolk and Westchester Counties;
and tax certiorari cases in Supreme Court in Monroe, New York, Suffolk
and Westchester Counties. Finally, the measure authorized -- for the
first time - use of consensual e-filing in the Court of Claims.
L. 2003, c. 261
This measure continued the e-filing programs established by chapter 367
and modified by chapter 110 for another 26 months - until September 1,
2005.
L. 2004, c. 384
Responding to community requests, this measure expanded the number of
venues and classes of cases in which consensual e-filing could be
authorized to include commercial claims and tort cases in Supreme Court
in Albany, Bronx, Kings, Monroe, Nassau, New York, Queens, Richmond,
Suffolk and Westchester Counties; commercial claims in Supreme Court in
Erie County; tax certiorari cases in Supreme Court in Bronx, Kings,
Monroe, New York, Queens, Richmond, Suffolk and Westchester Counties;
and cases in Surrogate's Court in Erie County.
L. 2005 c. 504
This measure continued the e-filing programs established by chapter 367
and subsequently modified for another four years - until September 1,
2009. Again recognizing growing community enthusiasm for e-filing in the
courts, this measure further expanded the number of venues and classes
of cases in which consensual e-filing could be authorized to include
commercial claims, tax certiorari and tort cases in Supreme Court in
Albany, Broome, Bronx, Erie, Essex, Kings, Monroe, Nassau, New York,
Niagara, Onondaga, Queens, Richmond, Suffolk, Sullivan and Westchester
Counties; and all classes of cases in Supreme Court in Broome County. At
the same time, it continued authority for e-filing in cases in Surro-
gate's Court in Erie County.
L. 2007, c. 369
This measure further expanded the number of venues in which consensual
e-filing could be authorized in commercial claims, tax certiorari and
tort cases in Supreme Court to include Livingston County, along with
Albany, Broome, Bronx, Erie, Essex, Kings, Monroe, Nassau, New York,
Niagara, Onondaga, Queens, Richmond, Suffolk, Sullivan and Westchester
Counties (and all classes of cases in Supreme Court in Broome County).
At the same time, it continued authority for e-filing in cases in Surro-
gate's Court in Erie County and added comparable authority for e-filing
in cases in Surrogate's Court in Chautauqua, Monroe, Queens and Suffolk
Counties. Finally, it added authority for consensual e-filing in the New
York City Civil Court in claims brought by a provider of health services
specified in section 502(a)(1) of the Insurance Law against an insurer
for failure to comply with Insurance Department rules promulgated pursu-
ant to section 5108(b) of the Insurance Law.
L. 2008, c. 95
This measure authorized the Chief Administrative Judge to permit consen-
sual e-filing in all classes of cases in Supreme Court in Erie County,
along with Broome County.
L. 2009, c. 416
Marking the tenth anniversary of New York's experience with consensual
e-filing programs, this measure made the authority to permit such
programs permanent; and expanded that authority so that it could be used
to permit e-filing in any class of cases in Supreme Court in any county,
in Surrogate's Court in any county, in the Court of Claims statewide and
in the New York City Civil Court. The measure also, for the first time,
enabled the establishment of mandatory e-filing programs, albeit limited
to certain categories of commercial claims in New York County, tort
cases in Westchester County and one or more classes of cases (excluding
matrimonials, Article 78 proceedings, proceedings under the Mental
Hygiene Law and Election Law proceedings) in one other county outside
New York selected by the Chief Administrative Judge. This authority for
mandatory e-filing was made subject to a three-year sunset (September 1,
2012).
L. 2010, c. 528
This measure built upon the changes instituted by chapter 416 of the
Laws of the preceding year, especially as they applied to the newly-au-
thorized deployment of mandatory e-filing in civil parts of Supreme
Court. Specifically, the measure authorized the Chief Administrative
Judge to permit mandatory e-filing in the same categories of commercial
claims in Westchester County as it had authorized for such claims in New
York County; and replaced authority for the Chief Administrative Judge
to permit unrestricted (but for the exceptions created under chapter
416) mandatory e-filing in a single county outside New York with author-
ity to permit such e-filing in the following four counties: Livingston,
Monroe, Rockland and Tompkins. The measure also added the requirement
that each local county clerk okay institution of mandatory e-filing in
his or her county before it can go forth. Finally, the measure imposed a
continuing and more detailed annual reporting requirement for the Chief
Administrative Judge relating to the operation of e-filing programs.
L. 2011, c. 543
This measure expanded the breadth of mandatory e-filing programs in
civil parts of Supreme Court. Specifically, it authorized their estab-
lishment in Supreme Courts in New York City in commercial claims without
regard to the amount in controversy; and in a broader array of counties
that had been authorized by chapter 528 of the Laws of 2010 (adding
Allegany, Essex and Onondaga, and permitting mandatory e-filing in all
classes of cases (excluding matrimonials, Article 78 proceedings,
proceedings under the Mental Hygiene Law and Election Law proceedings)
in Westchester). The measure also permitted the Chief Administrative
Judge to authorize mandatory e-filing in Surrogate's Court in any coun-
ty, and in the New York City Civil Court in claims brought by a provider
of health services specified in section 502(a)(1) of the Insurance Law
against an insurer for failure to comply with Insurance Department rules
promulgated pursuant to section 5108(b) of the Insurance Law. Finally,
the measure created additional advisory committees to assist the Chief
Administrative Judge in her responsibility to provide the Legislature
with continuing evaluations of the State's e-filing programs and to help
plan for institution of e-filing in criminal courts and Family Court.
L. 2012, c. 184
This measure further expanded the breadth of mandatory e-filing programs
in civil parts of Supreme Court. Specifically, it again added to the
array of counties that had been authorized by chapter 528 of the Laws of
2010 (and modified by chapter 543 of the Laws of 2011), this time
including Erie and Suffolk Counties. At the same time, it authorized the
Chief Administrative Judge to extend mandatory e-filing to any class of
cases (with the same exclusions applicable to mandatory e-filing in
upstate counties) in Supreme Court in the counties of New York City.
Lastly, the measure authorized the Chief Administrative Judge to insti-
tute consensual (and, under limited circumstances, mandatory) e-filing
in criminal superior courts and in Family Court.
L. 2013, c. 113
This measure once again expanded the breadth of mandatory e-filing
programs in civil parts of Supreme Court, adding Nassau County to the
array of counties that had been authorized by chapter 528 of the Laws of
2010 (and modified by chapter 543 of the Laws of 2011 and chapter 184 of
the Laws of 2012).
{1} Excluded are: matrimonial actions, Election Law proceedings, CPLR
Article 70 and 78 proceedings and Mental Hygiene Law proceedings. Also
excluded are residential foreclosure actions and consumer credit
proceedings to the extent of papers filed therein after the commencement
papers have been filed (viz., e-filing may be required for the summons
and complaint but not for any later papers in these cases), except that,
for two years following the effective date of this measure, counties in
which there already is mandatory e-filing of all papers in these cases
may continue to observe that practice.