assembly Bill A8956A

Signed by Governor

Relates to service of papers by electronic means; eliminates requirement of consent in certain instances; repealer

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Sponsor

WEINSTEIN

Bill Status


  • Introduced
  • In Committee
  • On Floor Calendar
    • Passed Senate
    • Passed Assembly
  • Delivered to Governor
  • Signed by Governor
view actions

actions

  • 16 / Jun / 2009
    • REFERRED TO JUDICIARY
  • 18 / Jun / 2009
    • REPORTED REFERRED TO RULES
  • 18 / Jun / 2009
    • AMEND AND RECOMMIT TO RULES 8956A
  • 22 / Jun / 2009
    • REPORTED
  • 22 / Jun / 2009
    • RULES REPORT CAL.563
  • 22 / Jun / 2009
    • ORDERED TO THIRD READING RULES CAL.563
  • 22 / Jun / 2009
    • PASSED ASSEMBLY
  • 22 / Jun / 2009
    • DELIVERED TO SENATE
  • 22 / Jun / 2009
    • REFERRED TO RULES
  • 16 / Jul / 2009
    • SUBSTITUTED FOR S6003A
  • 16 / Jul / 2009
    • 3RD READING CAL.842
  • 16 / Jul / 2009
    • RECOMMITTED TO RULES
  • 06 / Aug / 2009
    • RESTORED TO THIRD READING
  • 06 / Aug / 2009
    • PASSED SENATE
  • 06 / Aug / 2009
    • RETURNED TO ASSEMBLY
  • 31 / Aug / 2009
    • DELIVERED TO GOVERNOR
  • 31 / Aug / 2009
    • SIGNED CHAP.416

Summary

Relates to service of papers by electronic means; eliminates requirement of consent in certain instances.

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Bill Details

See Senate Version of this Bill:
S6003A
Versions:
A8956
A8956A
Legislative Cycle:
2009-2010
Law Section:
Civil Practice Law and Rules
Laws Affected:
Amd §2103, CPLR; amd §§6 & 10, rpld §6 sub (c), Chap 367 of 1999

Sponsor Memo

BILL NUMBER:A8956A

TITLE OF BILL: An act to amend the civil practice law and rules, in
relation to service of papers by electronic means; 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 electronic means to commence an action or
special proceeding, in relation to filing by electronic means; to repeal
subdivision (c) of section 6 of such chapter relating thereto; and
providing for the repeal of certain provisions upon expiration thereof

This measure is being introduced at the request of the Judiciary. It
proposes re-upping of the State's program in the use of electronic
filing and facsimile transmission of papers in civil litigation - now
scheduled to expire on September 1, 2009 - and expansion of that
program: (1) to permit use of electronic filing and facsimile trans-
mission statewide in Supreme Court, Surrogate's Court and the Court of
Claims in all classes of cases (and in all classes of cases in the New
York City Civil Court) where the parties consent; and (2) to permit the
Chief Administrative Judge to institute a program of mandatory electron-
ic filing in Supreme Court in certain commercial cases in New York Coun-
ty, in tort cases in Westchester County and in one or more classes of
cases (excluding matrimonials, CPLR Article 78's, Election Law cases and
cases under the Mental Hygiene Law) in one other county designated by
the Chief Administrative Judge outside New York City.

This year marks the 10th anniversary of the enactment of chapter 367 of
the Laws of 1999, which created a pilot program to test the feasibility
and usefulness of filing by electronic means ("e-filing") and facsimile
filing of court documents in certain civil cases. That program is sched-
uled to sunset on September 1, 2009.

The ten-year experiment with e-filing in New York, as well as the expe-
rience of the Federal courts{1} and the many other state court systems
in which e-filing has been deployed{2}, demonstrate that e-filing has
become an essential tool for meeting the needs of litigants, the Bar,
and the courts in a fair, efficient and cost-effective manner. E-filing
lowers the cost of litigation, protects our environment, reduces the
burden of litigation and makes it more convenient and expeditious, and
promotes broader public access to records while preserving the privacy
and integrity of those records.

After a beginning that was cautious and slow, the pace of e-filing
utilization has increased exponentially - despite the limited number of
venues and case types authorized for its use, and even with the
constraint that participation in e-filing be on consent. We now have
reached a point where the New York State Courts Electronic Filing System
("NYSCEF") is being used by a significant number of attorneys in a
significant number of cases. The NYSCEF program has grown from 300
registered attorneys in 2002, to over 10,000 currently registered attor-
neys. As of the end of April 2009, almost 160,000 cases and almost
360,000 documents have been e-filed with the system.

The increased utilization of e-filing in New York, its implementation by
other state court systems, its mandatory use by the federal courts in
New York, and the widespread and growing support of e-filing by numerous
bar groups, demonstrate that New York has outgrown its initial, tenta-
tive embrace of e-filing, and that we are now ready to move beyond a
pilot program and to recognize e-filing as a permanent and integral part
of our system of civil justice. It is important to take this step if our
Judiciary is to meet the needs of litigants in the fairest, most effi-
cient and most cost-effective manner possible. It is also critical that
we do so to ensure that we have a modern and efficient system of justice
that will help New York remain an attractive home to the business commu-
nity worldwide.

We therefore propose that the Legislature revise the e-filing statutes,
as follows:

* The pilot project status of e-filing should be ended and e-filing
should become a permanent part of New York's civil justice system.

* There should be no immediate expansion of the present program; rather,
the Chief Administrative Judge should be authorized to promulgate rules,
with the approval of the Administrative Board of the Courts, expanding
the program as warranted.

* E-filing should remain voluntary, except where the Chief Administra-
tive Judge, after consultation with the Bar and with the approval of the
Administrative Board of the Courts, promulgates a program of mandatory
e-filing for certain actions in Supreme Court, as follows: (i) certain
commercial cases in New York County; (ii) tort cases in Westchester
County; and (iii) one or more classes of cases (excluding matrimonials,
CPLR Article 78's, Election Law cases and cases under the Mental Hygiene
Law) in one other county designated by the Chief Administrative Judge
outside New York City.

* If the Chief Administrative Judge requires e-filing in any case type
and in any county, the rules must automatically entitle a party to opt
out of electronic filing upon filing a statement with the Court that the
party is pro se or that the attorney for the party does not have the
equipment needed to electronically file, or the expertise necessary to
use that equipment and the Internet.

* The Chief Administrative Judge shall submit to the Legislature, the
Governor, and the Chief Judge of the State a report evaluating the
e-filing program by April 1, 2012.

* Authorization for a program of mandatory electronic filing shall
expire on September 1, 2012.

This act shall take effect September 1, 2009 and would have no meaning-
ful fiscal impact on the State.

Legislative History: None. New measure.

{1} As of January 2009, the Case Management and Electronic Case Filing
System ("ECS") is in use in 99% of the federal courts nationwide. All
but one of 94 District Courts accept electronic filing of documents.
All Federal District Courts in New York State have mandated electronic
filing.

{2} According to the National Center for State Courts, as of 2007, 26
states had adopted court rules enabling e-filing either statewide or in
at least one court. Matthias, E-Filing Expansion in State, Local, and
Federal Courts - - 2007, National Center for State Courts, at 34. The
website of the American Bar Association reports that there are statewide
e-filing programs in place in 14 states, including California, New
Jersey, Ohio, and Texas.
www.abanet.org/tech/ltrc/research/efiling/home.html.

E-filing is available statewide in Delaware state courts in all major
civil case categories, including cases in the Court of Chancery, the
state's nationally-regarded business court, and in the state Supreme
Court. Delaware is a major center for business litigation in this coun-
try, and thus, in a sense, a friendly competitor of New York State's
Commercial Division of Supreme Court. Since its establishment in late
1995, the latter has been a great success and has contributed much to
the reinvigoration of New York's historic role as an attractive venue
for many of the Nation's major business interests.

view bill text
                    S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                 8956--A

                       2009-2010 Regular Sessions

                          I N  A S S E M B L Y

                              June 16, 2009
                               ___________

Introduced  by  M. of A. WEINSTEIN -- (at request of the Office of Court
  Administration) -- read once and referred to the Committee on  Judici-
  ary  --  reported  and  referred  to  the  Committee on Rules -- Rules
  Committee discharged, bill amended, ordered reprinted as  amended  and
  recommitted to the Committee on Rules

AN ACT to amend the civil practice law and rules, in relation to service
  of  papers  by   electronic means; 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 facsim-
  ile transmission or electronic means to commence an action or  special
  proceeding,  in  relation  to  filing  by  electronic means; to repeal
  subdivision (c) of section 6 of such chapter relating    thereto;  and
  providing for the repeal of certain provisions upon expiration thereof

  THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:

  Section 1. Paragraph 7 of subdivision (b) of rule 2103  of  the  civil
practice  law and rules, as added by chapter 367 of the laws of 1999, is
amended to read as follows:
  7. by transmitting the paper to the attorney by electronic means where
and in the manner authorized by the chief administrator of the courts by
rule AND, UNLESS SUCH RULE SHALL OTHERWISE  PROVIDE,  SUCH  TRANSMISSION
SHALL  BE  upon  the party's written consent. The subject matter heading
for each paper sent by electronic means must indicate  that  the  matter
being transmitted electronically is related to a court proceeding.
  S 2.  Subdivisions (a) and (b) of section 6 of 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 electronic  means  to  commence  an  action  or  special
proceeding,  subdivision  (a)  as  amended by chapter 369 of the laws of
2007 and subdivision (b) as amended by chapter 504 of the laws of  2005,
are amended to read as follows:

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD14418-02-9

A. 8956--A                          2

  (a)  Notwithstanding any other provision of law, the chief administra-
tor of the courts, with the approval of the administrative board of  the
courts,  may  promulgate  rules  authorizing [an experimental] A program
[for the commencement by facsimile transmission or by]  IN  THE  USE  OF
FACSIMILE  TRANSMISSION  AND  electronic means IN THE SUPREME COURT, THE
CIVIL COURT OF THE CITY OF NEW YORK, SURROGATE'S COURTS AND THE COURT OF
CLAIMS, FOR: (I) THE COMMENCEMENT of civil actions and  proceedings  [in
the supreme court of Albany, Monroe, Westchester, New York, Bronx, Erie,
Kings,  Queens, Richmond, Nassau, Suffolk, Niagara, Broome, Essex, Onon-
daga, Sullivan, and Livingston counties, the New York court  of  claims,
the  civil  court  of the city of New York, and the surrogate's court of
Chautauqua, Erie, Monroe, Queens and Suffolk  counties],  AND  (II)  THE
FILING AND SERVICE OF PAPERS IN PENDING ACTIONS AND PROCEEDINGS.
  (b)  [Participation] (A) EXCEPT AS OTHERWISE PROVIDED IN PARAGRAPH (B)
OF THIS SUBDIVISION, PARTICIPATION in this  program  shall  be  strictly
voluntary,  and  will take place only upon consent OF ALL PARTIES IN THE
ACTION OR SPECIAL PROCEEDING; EXCEPT THAT A PARTY'S FAILURE  TO  CONSENT
TO PARTICIPATION SHALL NOT BAR ANY OTHER PARTY TO THE ACTION OR PROCEED-
ING  FROM  FILING AND SERVING PAPERS BY FACSIMILE TRANSMISSION  OR ELEC-
TRONIC MEANS UPON THE COURT  OR  ANY  OTHER  PARTY  TO  SUCH  ACTION  OR
PROCEEDING WHO HAS CONSENTED TO PARTICIPATION. COMMENCEMENT OF AN ACTION
BY  ELECTRONIC  MEANS OR BY FACSIMILE TRANSMISSION SHALL NOT REQUIRE THE
CONSENT OF ANY OTHER PARTY.
  (B) IN THE RULES PROMULGATED  PURSUANT  TO  SUBDIVISION  (A)  OF  THIS
SECTION,  THE  CHIEF  ADMINISTRATOR  MAY  ELIMINATE  THE  REQUIREMENT OF
CONSENT TO PARTICIPATION IN THIS PROGRAM IN:
  1. THE SUPREME COURT OF NEW YORK COUNTY IN THE  FOLLOWING  CLASSES  OF
CASES  PROVIDED  THAT  THE  AMOUNT IN CONTROVERSY (EXCLUSIVE OF PUNITIVE
DAMAGES, INTEREST, COSTS, DISBURSEMENTS AND  COUNSEL  FEES  CLAIMED)  IS
OVER $100,000:
  (I)  BREACH OF CONTRACT (REGARDLESS OF AMOUNT IN CONTROVERSY) OR FIDU-
CIARY DUTY, FRAUD, MISREPRESENTATION, BUSINESS TORT (INCLUDING  BUT  NOT
LIMITED TO ACTIONS INVOLVING CLAIMS OF UNFAIR COMPETITION), OR STATUTORY
AND/OR  COMMON LAW VIOLATION WHERE THE BREACH OR VIOLATION IS ALLEGED TO
ARISE OUT OF BUSINESS DEALINGS (INCLUDING BUT NOT LIMITED  TO  SALES  OF
ASSETS OR SECURITIES; CORPORATE RESTRUCTURING; PARTNERSHIP, SHAREHOLDER,
JOINT VENTURE, AND OTHER BUSINESS AGREEMENTS; TRADE SECRETS; RESTRICTIVE
COVENANTS;  AND  EMPLOYMENT AGREEMENTS NOT INCLUDING CLAIMS THAT PRINCI-
PALLY INVOLVE ALLEGED DISCRIMINATORY PRACTICES);
  (II) TRANSACTIONS GOVERNED BY THE UNIFORM COMMERCIAL  CODE  (EXCLUSIVE
OF THOSE CONCERNING INDIVIDUAL COOPERATIVE OR CONDOMINIUM UNITS);
  (III)  TRANSACTIONS  INVOLVING  COMMERCIAL  REAL  PROPERTY,  INCLUDING
YELLOWSTONE INJUNCTIONS AND EXCLUDING ACTIONS FOR THE  PAYMENT  OF  RENT
ONLY;
  (IV)  SHAREHOLDER  DERIVATIVE  ACTIONS,  WITHOUT  CONSIDERATION OF THE
MONETARY THRESHOLD;
  (V) COMMERCIAL CLASS ACTIONS, WITHOUT CONSIDERATION  OF  THE  MONETARY
THRESHOLD;
  (VI)  BUSINESS  TRANSACTIONS INVOLVING OR ARISING OUT OF DEALINGS WITH
COMMERCIAL BANKS AND OTHER FINANCIAL INSTITUTIONS;
  (VII) INTERNAL AFFAIRS OF BUSINESS ORGANIZATIONS;
  (VIII) MALPRACTICE BY ACCOUNTANTS OR ACTUARIES, AND LEGAL  MALPRACTICE
ARISING OUT OF REPRESENTATION IN COMMERCIAL MATTERS;
  (IX) ENVIRONMENTAL INSURANCE COVERAGE;

A. 8956--A                          3

  (X) COMMERCIAL INSURANCE COVERAGE (INCLUDING BUT NOT LIMITED TO DIREC-
TORS  AND  OFFICERS,  ERRORS  AND  OMISSIONS,  AND BUSINESS INTERRUPTION
COVERAGE);
  (XI)  DISSOLUTION  OF  CORPORATIONS,  PARTNERSHIPS,  LIMITED LIABILITY
COMPANIES, LIMITED LIABILITY PARTNERSHIPS AND  JOINT  VENTURES,  WITHOUT
CONSIDERATION OF THE MONETARY THRESHOLD; AND
  (XII)  APPLICATIONS TO STAY OR COMPEL ARBITRATION AND AFFIRM OR DISAF-
FIRM ARBITRATION AWARDS AND RELATED INJUNCTIVE RELIEF PURSUANT TO  ARTI-
CLE  75 OF THE CIVIL PRACTICE LAW AND RULES INVOLVING ANY OF THE FOREGO-
ING ENUMERATED COMMERCIAL ISSUES, WITHOUT CONSIDERATION OF THE  MONETARY
THRESHOLD.
PROVIDED, HOWEVER, THE FOLLOWING CASES ARE NOT INCLUDED:
  (I) ACTIONS TO COLLECT PROFESSIONAL FEES;
  (II)  ACTIONS  SEEKING A DECLARATORY JUDGMENT AS TO INSURANCE COVERAGE
FOR PERSONAL INJURY OR PROPERTY DAMAGE;
  (III) RESIDENTIAL  REAL  ESTATE  DISPUTES,  INCLUDING  LANDLORD-TENANT
MATTERS,  AND  COMMERCIAL  REAL ESTATE DISPUTES INVOLVING THE PAYMENT OF
RENT ONLY;
  (IV) PROCEEDINGS TO ENFORCE A JUDGMENT REGARDLESS OF THE NATURE OF THE
UNDERLYING CASE;
  (V) FIRST-PARTY INSURANCE CLAIMS AND ACTIONS BY  INSURERS  TO  COLLECT
PREMIUMS OR RESCIND NON-COMMERCIAL POLICIES; AND
  (VI)  ATTORNEY  MALPRACTICE  ACTIONS  EXCEPT  AS OTHERWISE PROVIDED IN
CLAUSE (VIII) OF SUBPARAGRAPH ONE OF PARAGRAPH (B) OF THIS  SUBDIVISION,
AND
  2. TORT CASES IN SUPREME COURT IN WESTCHESTER COUNTY, AND
  3.  ONE  OR  MORE  CLASSES  OF CASES (EXCLUDING MATRIMONIAL ACTIONS AS
DEFINED BY THE CIVIL PRACTICE LAW AND RULES, ELECTION  LAW  PROCEEDINGS,
PROCEEDINGS BROUGHT PURSUANT TO ARTICLE 78 OF THE CIVIL PRACTICE LAW AND
RULES,  AND  PROCEEDINGS  BROUGHT PURSUANT TO THE MENTAL HYGIENE LAW) IN
THE SUPREME COURT OF ONE COUNTY OUTSIDE THE CITY OF NEW YORK.
  NOTWITHSTANDING THE FOREGOING, THE CHIEF ADMINISTRATOR MAY NOT  ELIMI-
NATE  THE  REQUIREMENT  OF  CONSENT  UNTIL  AFTER  HE  OR SHE SHALL HAVE
CONSULTED WITH MEMBERS OF THE ORGANIZED BAR IN ANY COUNTY IN WHICH  SUCH
ELIMINATION  SHALL  APPLY,  HAVE AFFORDED THEM THE OPPORTUNITY TO SUBMIT
COMMENTS WITH RESPECT THERETO, AND HAVE CONSIDERED ANY SUCH COMMENTS.
  (C) WHERE  THE  CHIEF  ADMINISTRATOR  ELIMINATES  THE  REQUIREMENT  OF
CONSENT  AS  PROVIDED  IN  PARAGRAPH  (B) OF THIS SUBDIVISION, HE OR SHE
SHALL AFFORD COUNSEL AND UNREPRESENTED PARTIES THE  OPPORTUNITY  TO  OPT
OUT  OF  THE  PROGRAM, VIA PRESENTATION OF A PRESCRIBED FORM TO BE FILED
WITH THE CLERK OF THE COURT WHERE THE  ACTION  IS  PENDING.  SAID  FORM,
WHICH  SHALL NOT BE PART OF THE CASE RECORD, SHALL PERMIT AN ATTORNEY OR
UNREPRESENTED PARTY TO OPT-OUT OF PARTICIPATION IN THE PROGRAM UNDER ANY
OF THE FOLLOWING  CIRCUMSTANCES, IN WHICH EVENT, HE OR SHE WILL  NOT  BE
COMPELLED TO PARTICIPATE:
  (I)  WHERE  THE  ATTORNEY CERTIFIES IN GOOD FAITH THAT HE OR SHE LACKS
THE COMPUTER HARDWARE AND/OR CONNECTION TO THE INTERNET  AND/OR  SCANNER
OR  OTHER  DEVICE  BY  WHICH DOCUMENTS MAY BE CONVERTED TO AN ELECTRONIC
FORMAT; OR
  (II) WHERE THE ATTORNEY CERTIFIES IN GOOD FAITH THAT HE OR  SHE  LACKS
THE  REQUISITE KNOWLEDGE IN THE OPERATION OF SUCH COMPUTERS AND/OR SCAN-
NERS NECESSARY TO PARTICIPATE. FOR THE  PURPOSES  OF  THIS  SUBPARAGRAPH
HEREIN, THE KNOWLEDGE OF ANY EMPLOYEE OF AN ATTORNEY, OR ANY EMPLOYEE OF
THE  ATTORNEY'S  LAW  FIRM,  OFFICE  OR  BUSINESS WHO IS SUBJECT TO SUCH
ATTORNEY'S DIRECTION, SHALL BE IMPUTED TO THE ATTORNEY; OR

A. 8956--A                          4

  (III) WHERE A PARTY IS NOT REPRESENTED BY COUNSEL, HE OR  SHE  CHOOSES
NOT TO PARTICIPATE IN THE PROGRAM.
NOTWITHSTANDING  THE  FOREGOING,  A  COURT  MAY EXEMPT ANY ATTORNEY FROM
BEING REQUIRED TO PARTICIPATE IN THE PROGRAM UPON APPLICATION  FOR  SUCH
EXEMPTION SHOWING GOOD CAUSE THEREFOR.
  (D)  For purposes of this section, "facsimile transmission" and "elec-
tronic means" shall be as defined in subdivision (f) of rule 2103 of the
civil practice law and rules.
  S 3. Subdivision (c) of section 6 of 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 trans-
mission or electronic means to commence an action or special proceeding,
is REPEALED.
  S 4. Section 10 of 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 electronic
means to commence an action or special proceeding, as separately amended
by  chapters  457  and  504  of  the laws of 2005, is amended to read as
follows:
  S 10. This act shall take effect immediately[; provided, however, that
the authority of the chief administrator of the courts to promulgate the
rules authorized by section 304 and paragraph 7 of  subdivision  (b)  of
rule 2103 of the civil practice law and rules, as amended by section one
of  this  act  and  as  added by section four of this act, respectively,
shall expire September 1, 2009 when upon such date the  amendments  made
by  such  sections  of  this  act shall be deemed repealed; and provided
further, however, that section six of  this  act  shall  expire  and  be
deemed repealed September 1, 2009].
  S  5.  Notwithstanding  any  provision  of  law,  a party shall not be
required to pay an administrative fee for the use of a  credit  card  or
similar  device  for  the payment of a fee in an action or proceeding in
which electronic filing  or  facsimile  transmission  is  used  for  the
commencement  of  such action or proceeding or the filing and service of
papers therein.
  S 6. Not later than April 1, 2012,  the  chief  administrator  of  the
courts shall submit to the legislature, the governor and the chief judge
of the state a report evaluating the state's experience with the program
in the use of electronic means for the commencement of civil actions and
proceedings  and the service of papers therein as authorized by this act
and containing such recommendations for further legislation as he or she
shall deem appropriate.
  S 7. This act shall take effect on September 1, 2009; provided, howev-
er, that no rule adopted pursuant to paragraph (B) of subdivision (b) of
section 6 of chapter 367 of the laws of 1999, as added by section two of
this act, shall take effect until at least one hundred eighty days  have
elapsed  after such effective date, and provided that such paragraph (B)
shall expire and be deemed repealed September 1, 2012.

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