BILL NUMBER:  S4535

 TITLE OF BILL :  An act to amend the civil practice law and rules, in
relation to commencement of a special proceeding

This measure is being introduced at the request of the Chief
Administrative Judge.

Section 506(b) of the CPLR governs the venue of an Article 78
proceeding brought against a body or officer and sets forth the
general rule that such a proceeding is to be commenced in Supreme
Court in arty county within the judicial district where the respondent
made the determination complained of or refused to perform the duty
enjoined upon him or her by law, where the proceedings in the course
of which the matter sought to be restrained originated, where the
material events took place, or where the respondent's principal office
is located. Paragraph one of section 506(b), however, carves an
exception to this rule where the Article 78 proceeding is brought
against a justice of the Supreme Court, judge of the County Court or
judge of the Court of General Sessions. Under this exception, the
proceeding must be commenced in the Appellate Division in the judicial
department where the action in the course of which the matter sought
to be restrained originated is triable.

This measure would amend section 506(b)(1) to broaden this exception
to include Article 78 proceedings brought against judges of the Court
              

of Claims, the Family Court and the Surrogate's Court. It also would
eliminate the statute's obsolete reference to a judge of the Court of
General Sessions.

The present section 506(b)(1) exception was adopted for the obvious
reason that the Legislature believed it inappropriate for a judge to
sit in review of the determination of a judge of equivalent
jurisdiction. In such cases, only a higher court - the Appellate
Division - should have jurisdiction of the matter. Thus, in its
original enactment, as part of section 1287 of the Civil Practice Act
(predecessor of the CPLR), the exception prohibited a justice of the
Supreme Court from hearing a special proceeding brought against
another justice of the Supreme Court. Later, in 1957, the Legislature,
recognizing that County Court outside New York City and the Court of
General Sessions in the City exercised criminal jurisdiction that was
coextensive with that exercised by Supreme Court, broadened the
statutory exception so as to bar the latter from hearing special
proceedings against judges of those courts. See L.  1957, c. 979 Bill
Jacket: comments of NYS Bar Association Committee on State legislation
and sponsor's letter to Governor's Counsel.

Expansion of the section 506(b)(1) exception, as proposed in this
measure, is promoted for the same reason that prompted the 1957
legislation. Along with Supreme Court and County Court, the Court of
Claims, the Family Court and the Surrogate's Court are regarded as
major courts in our trial court system. See NY Const., Art. VI, §1
(establishing these courts as "statewide" courts and providing that
the mandates of these courts may be served and executed in the
broadest possible area). The Constitution allows that the jurisdiction
of these courts may sometimes overlap, and it permits their judges to
serve by cross-assignment on most if not all of these courts and, in
such capacity, to hear any of the cases that may come before any of
them. That being so, "(w)hether the underlying reason for the present
requirement that proceedings brought against a Supreme Court justice
(or County Court judge) must be brought in the Appellate Division
instead of before another justice at special term, is to avoid
possible (conflict of) interest, embarrassment or criticism,... the
same underlying reasons might apply,.., to" each of the other courts
added to the exception by this measure. See L.  1957, c. 979 (Bill
Jacket: comments of NYS Bar Association Committee on State
legislation).  This measure, which would have no fiscal impact upon
the State, would take effect immediately.

2006 Legislative History;Senate 6958-A (Sen. Volker) (Codes) Assembly
11306-A (M. of A. Cymbrowitz) (Codes)

2007-08 Legislative History:Senate 4532 (Sen. Volker) (Codes) Assembly
8187 (M. of A. Cymbrowitz) (Codes)