Amd S6, Chap 367 of 1999; amd SS6 & 7, Chap 416 of 2009
Specifies courts and types of actions in which pilot programs will be authorized to permit use of electronic means to commence an action or special proceeding; authorizes establishment of advisory committees to implement laws to affect service of papers by electronic means.
STATE OF NEW YORK
________________________________________________________________________
5635--B
2011-2012 Regular Sessions
IN SENATE
June 8, 2011
___________
Introduced by Sen. BONACIC -- (at request of the Office of Court Admin-
istration) -- read twice and ordered printed, and when printed to be
committed to the Committee on Judiciary -- committee discharged, bill
amended, ordered reprinted as amended and recommitted to said commit-
tee -- committee discharged, bill amended, ordered reprinted as
amended and recommitted to said committee
AN ACT to amend chapter 367 of the laws of 1999, amending the civil
practice law and rules and the judiciary law relating to authorization
of pilot programs permitting use of facsimile transmission or elec-
tronic means to commence an action or special proceeding, in relation
to specifying courts and actions in which pilot programs will be
authorized to permit use of electronic means to commence an action or
proceeding; and to amend chapter 416 of the laws of 2009, amending the
civil practice law and rules relating to service of papers by elec-
tronic means, in relation to the establishment of advisory committees
to implement laws to effect service of papers by electronic means
The People of the State of New York, represented in Senate and Assem-bly, do enact as follows:
1 Section 1. The legislature finds and declares that use of electronic
2 means to commence judicial proceedings and to file and serve papers in
3 pending proceedings ("e-filing") can be highly beneficial to the state,
4 local governments and the public. Accordingly, it is the purpose of this
5 measure to enable a further controlled expansion of e-filing in the
6 civil courts of the state; and to lay the groundwork for an anticipated
7 future introduction of e-filing in criminal and family courts.
8 § 2. The first unnumbered paragraph and clauses (i), (iv), (v), (xi)
9 and (xii) of subparagraph 1, and subparagraphs 2 and 3 of paragraph (B)
10 of subdivision (b) of section 6 of chapter 367 of the laws of 1999,
11 amending the civil practice law and rules and the judiciary law relating
12 to authorization of pilot programs permitting use of facsimile trans-
13 mission or electronic means to commence an action or special proceeding,
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD11953-08-1
S. 5635--B 2
1 the first unnumbered paragraph of subparagraph 1, subparagraph 3 as
2 amended by chapter 528 of the laws of 2010 and clauses (i), (iv), (v),
3 (xi) and (xii) of subparagraph 1 and subparagraph 2 as amended by chap-
4 ter 416 of the laws of 2009, are amended and a new clause (xiii) is
5 added to subparagraph 1 to read as follows:
6 The supreme court [of] in counties within the city of New York [and
7 Westchester counties] in the following classes of cases [provided that
8 the amount in controversy (exclusive of punitive damages, interest,
9 costs, disbursements and counsel fees claimed) is over $100,000]:
10 (i) Breach of contract [(regardless of amount in controversy)] or
11 fiduciary duty, fraud, misrepresentation, business tort (including but
12 not limited to actions involving claims of unfair competition), or stat-
13 utory and/or common law violation where the breach or violation is
14 alleged to arise out of business dealings (including but not limited to
15 sales of assets or securities; corporate restructuring; partnership,
16 shareholder, joint venture, and other business agreements; trade
17 secrets; restrictive covenants; and employment agreements not including
18 claims that principally involve alleged discriminatory practices);
19 (iv) Shareholder derivative actions[, without consideration of the
20 monetary threshold];
21 (v) Commercial class actions[, without consideration of the monetary
22 threshold];
23 (xi) Dissolution of corporations, partnerships, limited liability
24 companies, limited liability partnerships and joint ventures[, without
25 consideration of the monetary threshold]; [and]
26 (xii) Applications to stay or compel arbitration and affirm or disaf-
27 firm arbitration awards and related injunctive relief pursuant to arti-
28 cle 75 of the civil practice law and rules involving any of the forego-
29 ing enumerated commercial issues[, without consideration of the monetary
30 threshold]; and
31 (xiii) Breach of contract cases other than those specified in clause
32 (i) of this subparagraph.
33 2. Tort cases in supreme court in [Westchester county] counties within
34 the city of New York, and
35 3. One or more classes of cases (excluding matrimonial actions as
36 defined by the civil practice law and rules, election law proceedings,
37 proceedings brought pursuant to article 78 of the civil practice law and
38 rules, and proceedings brought pursuant to the mental hygiene law) in
39 supreme court in Livingston, Monroe, Rockland [and], Tompkins, Allegany,
40 Essex, Onondaga and Westchester counties[.], and
41 § 3. Paragraph (B) of subdivision (b) of section 6 of chapter 367 of
42 the laws of 1999, amending the civil practice law and rules and the
43 judiciary law relating to authorization of pilot programs permitting use
44 of facsimile transmission or electronic means to commence an action or
45 special proceeding, is amended by adding two new subparagraphs 4 and 5
46 to read as follows:
47 4. One or more classes of cases in surrogate's court in such counties
48 as the chief administrator shall specify, and
49 5. Actions in the civil court of the city of New York brought by a
50 provider of health care services specified in paragraph (1) of
51 subsection (a) of section 5102 of the insurance law against an insurer
52 for failure to comply with rules and regulations promulgated by the
53 superintendent of insurance pursuant to subsection (b) of section 5108
54 of such law.
55 § 4. The closing paragraph of paragraph (B) of subdivision (b) of
56 section 6 of chapter 367 of the laws of 1999, amending the civil prac-
S. 5635--B 3
1 tice law and rules and the judiciary law relating to authorization of
2 pilot programs permitting use of facsimile transmission or electronic
3 means to commence an action or special proceeding, as amended by chapter
4 528 of the laws of 2010, is amended to read as follows:
5 Notwithstanding the foregoing, the chief administrator may not elimi-
6 nate the requirement of consent until after he or she shall have
7 consulted with members of the organized bar and with the county clerk in
8 any county in which such elimination shall apply (where the affected
9 court is the supreme court of a county outside the city of New York),
10 have afforded them the opportunity to submit comments with respect ther-
11 eto, have considered any such comments and, in the instance of the coun-
12 ties specified in subparagraph three of this paragraph, have obtained
13 the agreement thereto of the respective county clerks thereof.
14 § 5. Section 6 of chapter 416 of the laws of 2009 amending the civil
15 practice law and rules relating to service of papers by electronic
16 means, as amended by chapter 528 of the laws of 2010, is amended to read
17 as follows:
18 § 6. (a) Not later than April first in each calendar year, commencing
19 in the year 2011, the chief administrator of the courts shall submit to
20 the legislature, the governor and the chief judge of the state a report
21 evaluating the state's experience with [the program] programs in the use
22 of electronic means for the commencement of [civil] actions and
23 proceedings and the service of papers therein as authorized by [this
24 act] law and containing such recommendations for further legislation as
25 he or she shall deem appropriate, including, in particular, legislation
26 to enable broader use of [the program] such programs without the
27 requirement of consent to participation [in the counties specified in
28 subparagraphs 1 and 2 of paragraph (B) of subdivision (b) of section 6
29 of chapter 367 of the laws of 1999, amending the civil practice law and
30 rules and the judiciary law, relating to the authorization of pilot
31 programs permitting the use of facsimile transmission or electronic
32 means to commence an action or special proceeding, as amended, and in
33 counties not now specified in subparagraph 3 of such paragraph (B)]. In
34 the preparation of such report, the chief administrator shall consult
35 with each county clerk in whose county [the] a program has been imple-
36 mented in civil cases in the supreme court, the advisory committees
37 established pursuant to subdivisions (b), (c) and (d) of this section,
38 the organized bar including but not limited to city, state, county and
39 women's bar associations; institutional legal service providers; not-
40 for-profit legal service providers; public defenders; attorneys assigned
41 pursuant to article 18-B of the county law; unaffiliated attorneys who
42 regularly appear in proceedings that are or have been affected by any
43 programs that have been implemented or who may be affected by the
44 proposed recommendations for further legislation; representatives of
45 victims' rights organizations; and any other persons in whose county a
46 program has been implemented in any of the courts therein as deemed to
47 be appropriate by the chief administrator, and afford [him or her] them
48 an opportunity to submit comments with respect to such implementation
49 for inclusion in the report and [consider] address any such comments.
50 (b) (1) The chief administrator of the courts shall create an advisory
51 committee to consult with him or her in the implementation of [this act]
52 laws affecting the program in the use of electronic means for the
53 commencement of civil actions and proceedings and the service and filing
54 of papers therein in the supreme court. This committee shall consist of
55 such number of members as the chief administrator shall designate, [no]
56 among which there shall be representatives of the organized bar includ-
S. 5635--B 4
1 ing but not limited to city, state, county and women's bar associations;
2 institutional legal service providers; not-for-profit legal service
3 providers; unaffiliated attorneys who regularly appear in proceedings
4 that are or have been affected by the programs that have been imple-
5 mented or who may be affected by any recommendations for further legis-
6 lation concerning the use of electronic means for the commencement of
7 actions and proceedings and the service and filing of papers therein in
8 the supreme court; and any other persons in whose county a program has
9 been implemented in any of the courts therein as deemed to be appropri-
10 ate by the chief administrator. No fewer than half [to] of the members
11 of this advisory committee shall be upon the recommendation of the New
12 York State Association of County Clerks.
13 (2) The chief administrator shall create an advisory committee to
14 consult with him or her in the implementation of laws affecting the
15 program in the use of electronic means for the commencement of actions
16 and proceedings and the service and filing of papers therein in the
17 surrogate's court. This committee shall consist of such number of
18 members as the chief administrator shall designate, among which there
19 shall be chief clerks of surrogate's courts; representatives of the
20 organized bar including but not limited to city, state, county and
21 women's bar associations; institutional providers of legal services;
22 not-for-profit legal service providers; attorneys assigned pursuant to
23 article 18-B of the county law; unaffiliated attorneys who regularly
24 appear in proceedings that are or have been affected by the programs
25 that have been implemented or who may be affected by any recommendations
26 for further legislation concerning the use of electronic means for the
27 commencement of actions and proceedings and the service and filing of
28 papers therein in the surrogate's court; and any other persons in whose
29 county a program has been implemented in any of the courts therein as
30 deemed to be appropriate by the chief administrator.
31 (3) The chief administrator shall create an advisory committee to
32 consult with him or her in the implementation of laws affecting the
33 program in the use of electronic means for the commencement of actions
34 and proceedings and the service and filing of papers therein in the
35 civil court of the city of New York. This committee shall consist of
36 such number of members as the chief administrator shall designate, among
37 which there shall be the chief clerk of the civil court of the city of
38 New York; representatives of the organized bar including but not limited
39 to city, state, county and women's bar associations; attorneys who regu-
40 larly appear in actions specified in subparagraph 5 of paragraph (B) of
41 subdivision (b) of section 6 of chapter 367 of the laws of 1999; and
42 unaffiliated attorneys who regularly appear in proceedings that are or
43 have been affected by the programs that have been implemented or who may
44 be affected by any recommendations for further legislation concerning
45 the use of electronic means for the commencement of actions and
46 proceedings and the service and filing of papers therein in the civil
47 court of the city of New York; and any other persons as deemed appropri-
48 ate by the chief administrator.
49 (c)(1) The chief administrator shall create an advisory committee to
50 consult with him or her regarding the development of a program relating
51 to the use of electronic means for the commencement of criminal actions
52 and the filing and service of papers in pending criminal actions and
53 proceedings. The committee shall consist of such number of members as
54 will enable the chief administrator to obtain input from those who would
55 be affected by such electronic filing program, and such members shall
56 include county clerks; chief clerks of supreme, county and other courts;
S. 5635--B 5
1 district attorneys; not-for-profit legal service providers; public
2 defenders; statewide and local specialty bar associations whose member-
3 ship devotes a significant portion of their practice to assigned crimi-
4 nal cases pursuant to subparagraph (i) of paragraph (a) of subdivision 3
5 of section 722 of the county law; institutional providers of criminal
6 defense services and other members of the criminal defense bar; repre-
7 sentatives of victims' rights organizations; unaffiliated attorneys who
8 regularly appear in proceedings that would be affected by such electron-
9 ic filing program and other interested members of the criminal justice
10 community. Such committee shall help the chief administrator to evaluate
11 the impact of such electronic filing program on litigants including
12 unrepresented parties, practitioners and the courts and to obtain input
13 from those who would be affected by such electronic filing program,
14 including district attorneys, not-for-profit legal service providers,
15 public defenders, statewide and local specialty bar associations whose
16 membership devotes a significant portion of their practice to assigned
17 criminal cases pursuant to subparagraph (i) of paragraph (a) of subdivi-
18 sion 3 of section 722 of the county law, institutional providers of
19 criminal defense services and other members of the criminal defense bar,
20 representatives of victims' rights organizations, unaffiliated attorneys
21 who regularly appear in proceedings that would be affected by such elec-
22 tronic filing program and other interested members of the criminal
23 justice community.
24 (2) No later than January 1, 2012, the chief administrator of the
25 courts shall submit to the legislature, the governor and the chief judge
26 of the state a report of the evaluation including the entities or indi-
27 viduals consulted, the input received, any recommendations of the advi-
28 sory committee to the chief administrator, along with recommendations
29 for legislation authorizing the development of a program relating to the
30 use of electronic means for the commencement of criminal actions and the
31 filing and service of papers in pending criminal actions and
32 proceedings.
33 (d) (1) The chief administrator shall create an advisory committee to
34 consult with him or her regarding the development of a program relating
35 to the use of electronic means for the origination of juvenile delin-
36 quency proceedings under article 3 of the family court act and abuse or
37 neglect proceedings pursuant to article 10 of the family court act in
38 family court and the filing and service of papers in such pending
39 proceedings. The committee shall consist of such number of members as
40 will enable the chief administrator to obtain input from those who would
41 be affected by such electronic filing programs, and such members shall
42 include chief clerks of family courts; representatives of authorized
43 presentment and child protective agencies; other appropriate county and
44 city government officials; institutional providers of legal services for
45 children and/or parents; not-for-profit legal service providers; public
46 defenders; attorneys assigned pursuant to article 18-B of the county
47 law; and other members of the family court bar; representatives of
48 victims' rights organizations; unaffiliated attorneys who regularly
49 appear in proceedings that would be affected by such electronic filing
50 program; and other interested members of the family practice community.
51 Such committee shall help the chief administrator to evaluate the impact
52 of such electronic filing program on litigants including unrepresented
53 parties, practitioners and the courts and to obtain input from those who
54 would be affected by such electronic filing program, including represen-
55 tatives of authorized presentment and child protective agencies, other
56 appropriate county and city government officials, institutional provid-
S. 5635--B 6
1 ers of legal services for children and/or parents, not-for-profit legal
2 service providers, public defenders, attorneys assigned pursuant to
3 article 18-B of the county law and other members of the family court
4 bar, representatives of victims' rights organizations, unaffiliated
5 attorneys who regularly appear in proceedings that would be affected by
6 such electronic filing program, and other interested members of the
7 criminal justice community.
8 (2) No later than January 1, 2012, the chief administrator of the
9 courts shall submit to the legislature, the governor and the chief judge
10 of the state a report of the evaluation including the entities or indi-
11 viduals consulted, input received, any recommendations of the advisory
12 committee to the chief administrator, along with recommendations for
13 legislation authorizing the development of a program relating to the use
14 of electronic means for the origination of juvenile delinquency
15 proceedings under article 3 of the family court act and abuse or neglect
16 proceedings pursuant to article 10 of the family court act in family
17 court and the filing and service of papers in such pending proceedings.
18 § 6. Section 7 of chapter 416 of the laws of 2009 amending the civil
19 practice law and rules relating to service of papers by electronic means
20 is amended to read as follows:
21 § 7. This act shall take effect on September 1, 2009; provided, howev-
22 er, that no rule adopted pursuant to paragraph (B) of subdivision (b) of
23 section 6 of chapter 367 of the laws of 1999, as added by section two of
24 this act, shall take effect until at least one hundred eighty days have
25 elapsed after such effective date, and provided that such paragraph (B)
26 shall expire and be deemed repealed September 1, [2012] 2015.
27 § 7. This act shall take effect immediately; provided, however, that
28 the amendments to paragraph (B) of subdivision (b) of section 6 of chap-
29 ter 367 of the laws of 1999 made by sections two, three and four of this
30 act shall not affect the repeal of such provisions and shall expire and
31 be deemed repealed therewith.
