From the
NYS Assembly
Judiciary Committee

Sheldon Silver, Speaker • Helene E. Weinstein, Chair
Legislative Office Building, Room 831, Albany, NY 12248 • November 2009
Letter from the Chair

Assemblywoman Helene E. Weinstein
The Judiciary Committee has jurisdiction over virtually all legislation affecting the state judicial system and much of the legislation affecting civil practice in the courts. Among the legislation reviewed by the Committee are proposals concerning domestic relations and child support, protection of domestic violence victims, trusts and estates, guardians for incapacitated persons, real property and landlord-tenant law, lien law, debtor-creditor law, and the uniform commercial code.

The Judiciary Committee also reviews all proposed amendments to the New York State Constitution. The Committee shares budgetary oversight of the Office of Court Administration and the Department of Law with the Assembly Ways and Means Committee. A top priority of the Committee each year is ensuring that funding is added to the state budget for civil legal services for low-income New Yorkers. This year, in particular, in light of the devastating impact of the economic crisis on already scarce funding resources for civil legal services and with the concomitant increased need for such services, the Judiciary Committee held a joint hearing on the impact of the state budget on access to justice.

The Judiciary Committee tackled many high profile issues in 2009, and held hearings on jury diversity and consumer debt collection practices.

The highlights that follow demonstrate the breadth and diversity of the Judiciary Committee’s work in 2009.

Helene E. Weinstein, Chair
New York State Assembly Judiciary Committee

Associate Justice of the Supreme Court of the United States, Hon. Sonya Sotomayor, was honored at a celebration hosted by the Judges of the N.Y. Court of Appeals. Attending the September 24th event were: (l-r) Assembly Judiciary Committee Chair, Helene Weinstein; Assembly Codes Committee Chair, Joseph Lentol; Assembly Speaker, Sheldon Silver; Chief Judge of the State of New York, Hon. Jonathan Lippman; Justice Sonya Sotomayor; Chief Judge of the United States Court of Appeals 2nd Circuit, Hon. Dennis Jacobs; and Governor David Paterson.
Access to Justice
Hearing on funding for civil legal services

The Judiciary, Codes, Corrections and Governmental Operations Committees of the Assembly held a joint hearing on February 24, 2009, to assess the ability of New Yorkers to access the justice system. The committee members heard from the Interest on Lawyer Account Fund (IOLA), the private bar, civil legal service providers and their clients, and examined the challenges facing legal service providers from both a caseload and funding perspective.

Testimony demonstrated that the recent economic downturn and increasing caseloads are causing an ever-increasing strain upon the ability of the civil legal services community, as well as other legal service providers, to serve those in need. Further testimony highlighted that the swift fall in federal interest rates has led to a steep reduction in IOLA revenues that will be available to fund civil legal services, creating a greater need for alternative consistent sources of funding for civil legal services.

The testimony revealed that in the six months leading up to the hearing, the number of pending family offense petitions, permanency hearings, eviction proceedings, utility non-payment and unemployment benefit cases had soared; indeed, foreclosure and consumer debt cases were at an all-time high.

Assemblymembers Helene Weinstein, Judiciary Chair; Jeffrion L. Aubry, Correction Chair; and Charles D. Lavine, Trust and Estates Subcommittee Chair, at the public hearing on the Impact of the New York State Budget on Access to Justice, as civil legal service providers and their clients testified before the members.

As part of the budget for State Fiscal Year 2009-10, the Assembly restored over $8 million for civil legal services, including our traditional $4.2 million to support civil legal service programs, $3 million for civil and criminal legal services programs funded through the Legal Services Assistance Fund, $609,000 for Domestic Violence programs and $500,000 for the Public Utility Law Project. The Legislature also expanded the District Attorney Tuition Loan Forgiveness Program to include legal services attorneys and added $1.5 million to the program.

Pending Legislation

Indigent defense commission. This measure would create an independent indigent defense commission charged with implementing state oversight, funding and control of public defense services with the goal of ensuring a uniform public defense delivery system throughout the state of New York. A.8793 - Lentol, Gottfried, Paulin, Cahill, et al.

Wrongful conviction commission. This measure would establish a state commission to study the cases of people who were wrongfully convicted. The commission would be empowered to investigate such cases and make recommendations to prevent their reoccurrence. A.3795 – Gianaris, Bradley, Lavine, et al.

Protecting Children and Families
To safeguard children and families, the following measures were enacted into law

Offender check before custody award. This law enhances a critical measure enacted last year (L. 2008, c. 595, Weinstein) that protects children from being harmed by persons who should not be given custody or unsupervised access to children by requiring judges to check the sex offender registry, the statewide registry of orders of protection, family court warrants of arrest and decisions in abuse and neglect proceedings under the Family Court Act before issuing temporary or permament custody or visitation orders. L. 2009, c. 295, A.2004A – Weinstein.

Child custody for military families. This measure bolsters the ability of a parent returning from active military deployment to obtain reconsideration of a prior custody or visitation order. It also makes conforming changes to other provisions of the law governing custody and visitation to reflect the recent amendments to New York State’s Uniform Child Custody Jurisdiction and Enforcement Act. L. 2009, c. 473, A.8789 – Ortiz, Towns.

Child support standards updated. To reflect evolving economic realities, the Child Support Modernization Act increases the combined parental income amount to which the statutorily mandated percentages of the Child Support Standards Act (CSSA) must be applied for the calculation of child support from $80,000 to $130,000, with a mechanism to update this amount every two years based on changes in the Consumer Price Index. L. 2009, c. 343, A.8888 – Weinstein.

Facilitate health coverage for children under child support laws. This measure clarifies when parents are required to provide health coverage for their children if such medical insurance is “reasonable in cost” and “reasonably accessible” by more clearly defining these terms under the state’s child support laws. L. 2009, c. 215, A.8977 – Weinstein.

Pending Legislation: Additional Family Court Judges. This measure, an Office of Court Administration Program Bill, has long been a high priority of the Judiciary Committee. It would address the urgent need for additional Family Court judges to adjudicate an overwhelming increase in the number of child support, custody, permanency placement, and other important family-related matters. This measure, reported by the Judiciary Committee and, at press time, under consideration by the Assembly Ways & Means Committee, would add 21 Family Court judges throughout the state, including seven in New York City. A.8957 - Weinstein, Scarborough, John, O’Donnell, et al.

Protecting Victims of Domestic Violence
The Legislature enacted new laws to strengthen protections
for domestic violence victims and their children

Greater protections for victims of domestic violence. This law advances various protections for domestic violence victims including: requiring the court to document how domestic violence or child abuse was factored into a custody/visitation determination; adding certain sex offenses for which an order of protection may be sought in family court; and allowing law enforcement access to arrest and prosecution records for convictions of harassment in the second degree resulting from a family offense, ensuring that law enforcement has information regarding the individual’s domestic violence history in order to make informed decisions impacting victim safety. The Assembly worked closely with the Governor’s office in drafting this bill. L. 2009, c. 476, A.9017 – Weinstein, John, Destito, Lentol.

Sealed name change records. This measure requires identifying information on papers filed with a court by a name change applicant to remain sealed during the pendency of the case, thereby protecting the identity of the applicant from the commencement of the action. L. 2009, c. 83, A.3468 – Scarborough, et al.

The Assembly passed a number of measures of importance to victims of domestic violence that the Senate has not yet passed.

Translation of orders of protection. This measure would require a court issuing an order of protection to ensure that the essential terms of the order of protection are translated on the record into the native language of the parties. A.5273A - Espaillat, Powell, Lavine.

Preventing improper denial of an order of protection. This measure would prohibit the denial of an order of protection merely because the events alleged in the application were not contemporaneous with the application or hearing for the order of protection. A.8393 - Weinstein, John.

Assembly Judiciary Committee
The Assembly Judiciary Committee meets regularly during the Legislative session. The meetings are open to the public.

Matrimonial Legislation
Significant legislation impacting matrimonial actions was enacted in 2009

Automatic restraining orders. To ensure timely prevention of dissipation of assets and eliminate the expense and delays involved in making applications for temporary restraining orders, this measure amends the domestic relations law to have restraining orders take effect automatically at the commencement of a matrimonial action. L. 2009, c. 72, A.2574 – Weinstein, Cymbrowitz, et al.

Expanding maintenance and equitable distribution factors. Recognizing that the added loss of health insurance can be financially devastating for divorcing families, this law amends the domestic relations law to include the loss of health insurance coverage as an additional factor to be considered in the determination of equitable distribution of marital property and the award of maintenance. L. 2009, c. 229, A.7570 – Weinstein, Jacobs.

A number of significant matrimonial measures passed the Assembly but have not yet passed the Senate.

Counsel fees for non-monied spouse in matrimonial actions. This measure would ensure that neither party to a matrimonial action is strategically disadvantaged for want of resources to pursue or defend the case by requiring the court to order counsel fees at the commencement of the action and creating a rebuttable presumption for such fees in favor of the non-monied spouse. A.7569 – Weinstein, O’Donnell, John.

Same Sex Marriage legislation. This legislation, also a Governor’s Program Bill, would grant same-sex couples the same rights to enter into civil marriages as heterosexual couples. A.7732 - O’Donnell, Gottfried, Glick, et al.

Court Operations

Electronic filing of litigation papers (e-filing). This law expands statewide and makes permanent, consensual e-filing in the Court of Claims and the New York City Civil, Surrogates and Supreme Courts. Expansion of this program is expected to cut litigation costs permitting litigants and courts to realize greater savings and efficiencies. An important feature of the statute provides for a limited pilot program of mandatory e-filing with liberal opt-out provisions for pro se litigants and attorneys who cannot litigate electronically. L. 2009, c. 416, A.8956A - Weinstein.

Hearing on Jury Diversity

In response to claims that jury pools in certain counties did not properly represent the citizens or reflect the demographics of those counties resulting in certain groups being under-represented, the Judiciary Committee (along with the Codes Committee) held an important hearing in New York City on April 30th. The committees heard testimony from bar association leaders, the Office of Court Administration, a Cornell University Law School Professor, and others. Based, in great part, on information presented, the Judiciary Committee reported, and the Assembly passed A.2374 (Lancman, Jeffries, et al.), which authorizes the commissioner of jurors of each county to collect demographic information concerning the ethnicity, race, gender, and age of jurors with the ultimate goal of insuring that those utilizing our civil and criminal justice systems indeed are able to appear before a “jury of their peers.”

New Trusts Estates &
Power of Attorney Laws

Reducing estate litigation. This law amends the Estates Powers and Trusts Law section 2-1.6, to redefine simultaneous death by treating the death of a relevant person within 120 hours of the decedent as if such person predeceased the decedent. The purpose of this revision is to eliminate the increasingly complex litigation necessary to determine that related parties did not die simultaneously. L. 2009, c. 92, A.2762-A, Weinstein.

Power of attorney reforms. This law makes comprehensive changes to the General Obligations Law for power of attorney requirements. The new law will correct the many ills that have plagued the execution of powers of attorney over the years, including agent self-dealing. Important changes, effective September 1, 2009, include new restrictions on gift giving, increased legal responsibility of the agent and a requirement that agents sign and notarize their signature with the principal. L. 2009, c. 4, A.4392, Weinstein.

Protecting Consumers, Tenants & Homeowners

Small Building Housing Part

At the one-year anniversary of the Brooklyn Small Building Housing part and the announcement of the launching of the Brooklyn Housing Court Pro Bono Project, Judiciary Committee Chair, Helene Weinstein, joins with (l-r) Kings County Housing Court Judge, Hon. Anthony Fiorella; New York City Civil Court Administrative Judge, Hon. Fern Fisher; Assemblymember Alan Maisel; William C. Silverman, head of Greenberg Traurig, LLP’s New York Pro Bono Program; Supervising Judge of Brooklyn Civil Court, Hon. Ellen Spodek; Supervising Judge of Kings County Housing Court; and Hon. John S. Landsen. The Small Building Housing part in Brooklyn, the first of its kind in the state initiated at the suggestion of the two Assemblymembers, is dedicated to handling landlord-tenant litigation for small dwellings, and the pro bono project offers free legal advice to small property owners in Brooklyn who cannot afford counsel.

Measures were enacted to strengthen tenant and homeowner protections

Foreclosure protection expansion. This measure, also a Governor's Program Bill, provides tenants in foreclosed buildings with new protections. It requires the new owner to honor existing leases, and if no lease exists, grants tenants the right to remain for 90 days after ownership changes. The bill also imposes a duty on foreclosing lenders to maintain buildings after being awarded judgment in a foreclosure action. It expands mandatory pre-foreclosure settlement conferences to cover all residential foreclosure actions and strengthens these conferences by requiring production of specific mortgage-related documents and by authorizing the Chief Administrative Judge to promulgate necessary court rules and regulations to ensure good faith negotiations to modify the loan. A.40007 (passed both houses, awaiting the Governor's signature) - Weinstein, Lentol, Towns, Lopez V., Titus, et al.

Tenant security deposit recovery. This law permits the Attorney General to investigate and recover tenant security deposits. L. 2009, c. 225, A.2500 – Pretlow, Hooper, et al.

Tenant eviction notification. This law excludes weekends and holidays from the 72-hour notice period before an eviction can take place thereby giving tenants additional time to obtain an attorney. L. 2009, c. 256, A.1132 – Dinowitz.

Tenant right to explanation of stipulation in court. This law requires a court to fully describe the terms of stipulated court agreements in a summary proceeding to recover possession of real property when the tenant is not represented by an attorney. L. 2009, c. 281, A.6017-A - Gottfried, Zebrowski, et al.

Consumer Debt Collection
Practices Hearing

A public hearing examining consumer protections in relation to debt collection practices was convened jointly by the Assembly Judiciary and Consumer Affairs and Protection Committees. (L-r) Consumer Affairs and Protection Committee Chair, Audrey Pheffer; Judiciary Committee Chair, Helene Weinstein; and Assemblymember Michael Benjamin.
On May 14, 2009, the Assembly Judiciary and Consumer Affairs and Protection Committees conducted a hearing to examine consumer protections in the debt collection and debt management industries. The hearing revealed how abusive debt collection practices exploit current gaps in the law and highlighted the pressing need for strict guidelines to prevent debt collection agencies from driving consumers further into financial trouble. Following the hearing, the Assembly passed the following measures.

Consumer Credit Fairness Act. This measure would shorten the statute of limitations for commencing consumer credit actions from six years to three years; require creditors to submit additional evidence to obtain a default judgment; and require additional notice of pending consumer credit actions to be mailed to defendants by the clerk of the court. A.7558 - Weinstein, Wright, Colton, Jaffee.

Private cause of action. This bill would grant consumers a private cause of action against debt collectors who violate New York law. A.3532- Gianaris, Espaillat, et al.

Other Measures

Relief for World Trade Center rescuers. This law removes the possibility of defendants using a technical statute of limitations defense to defeat personal injury claims of those brave responders and others associated with the clean up of the September 11th tragedy for injuries resulting from their work. L. 2009, c. 440, A.7122-C - Spano, Bing, Kavanagh, Benedetto, Pheffer, et al.

Reform of “collateral source rule” to prevent double-dipping by health insurers. Measures providing much-needed fairness to litigants in injury lawsuits that were contained in A. 7504-B (Weinstein) have been incorporated into this legislation, a Governor’s Program Bill, which will also provide economic relief to local governments. This important collateral source reform has long been championed by Chairwoman Weinstein as a measure to facilitate settlements and ease delay in our courts. L.2009, c. 494, A.40002 - Hoyt, Weinstein.

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