senate Bill S4578

Relates to service of papers

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Bill Status


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

actions

  • 12 / Apr / 2011
    • REFERRED TO JUDICIARY
  • 03 / May / 2011
    • 1ST REPORT CAL.442
  • 04 / May / 2011
    • 2ND REPORT CAL.
  • 09 / May / 2011
    • ADVANCED TO THIRD READING
  • 24 / Jun / 2011
    • COMMITTED TO RULES
  • 04 / Jan / 2012
    • REFERRED TO JUDICIARY
  • 01 / May / 2012
    • 1ST REPORT CAL.624
  • 02 / May / 2012
    • 2ND REPORT CAL.
  • 07 / May / 2012
    • ADVANCED TO THIRD READING
  • 21 / Jun / 2012
    • COMMITTED TO RULES

Summary

Relates to service of papers; amends the definition of "mailing" to allow mailing from outside of the state; provides that six days shall be added to a prescribed period when service is made by mail from outside the state; requires a stipulation prior to service by facsimile on an attorney.

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Bill Details

See Assembly Version of this Bill:
A6835
Versions:
S4578
Legislative Cycle:
2011-2012
Current Committee:
Senate Rules
Law Section:
Civil Practice Law and Rules
Laws Affected:
Amd R2103, CPLR

Sponsor Memo

BILL NUMBER:S4578

TITLE OF BILL:

An act
to amend the civil practice law and rules, in relation to the service of
papers

This is one in a series of measures being introduced at the request of
the Chief Administrative Judge upon the recommendation of her
Advisory Committee on Civil Practice.

This measure would repeal the language in CPLR 2103 (f)(1) that
requires that papers served by mail upon an attorney in a pending
action be mailed within the State of New York. This measure also
extends by one day, to six days, the prescribed period of time for
response to such papers when they are served by mail from outside the
State.

We take particular note of a recent decision by the Appellate
Division, First Department, holding service by mail made outside the
State insufficient (M. Entertainment, Inc. v. Leydier (2009 NY Slip
Op 04169) (May 28,2009) (reversed on other grounds, 2009 NY Slip Op
07671 (October 27,2009)). In response, our Advisory Committee points
out that CPLR 2103(b)(6), the rule regarding service upon an
attorney via dispatch by overnight delivery service, does not require
such dispatch to be made within the State, only that the service
regularly accept items for overnight delivery within the State, as
follows:

(b) Upon an attorney. Except where otherwise prescribed by law or by
order of court, papers to be served upon a party in a pending action
shall be served upon the party's attorney. Where the same attorney
appears for two or more parties, only one copy need be served upon
the attorney.
Such service upon an attorney shall be made:

6. by dispatching the paper to the attorney by overnight delivery
service at the address designated by the attorney for that purpose or,
if none is designated, at the attorney's last known address. Service
by overnight delivery service shall be complete upon deposit of the
paper enclosed in a properly addressed wrapper into the custody of
the overnight delivery service for overnight delivery, prior to the
latest time designated by the overnight delivery service for
overnight delivery. Where a period of time prescribed by law is
measured from the service of a paper and service is by overnight
delivery, one business day shall be added to the prescribed period.
"Overnight delivery service" means any delivery service which
regularly accepts items for overnight delivery to any address in the
state; or... (emphasis added).

The Committee's view is that the rule for mailing should correspond
with that for a delivery service. The Committee also believes that
allowing service by mail from outside the State will remove an
artificial barrier to service and encourage litigation to be brought
in New York. The act of removing this requirement recognizes the


current realities of multi-state practice and the increased mobility
of litigants and litigation.

Finally, this measure also would modify CPLR 2103(b)(5) to allow an
"opt in" for fax service whereby a party must affirmatively
stipulate to accept service by fax.
Currently, merely designating the fax number on an attorney's
letterhead is sufficient under the CPLR to signify the attorney's
consent to receive service by fax. We believe that this measure will
improve upon the existing practice, whereby the statutory language
authorizes and has resulted in myriad abuses where a party unfairly
seeks tactical advantage over another unsuspecting party in civil
proceedings.

This measure would have no fiscal impact on the State. It would take
effect on the first day of January next succeeding the date on which
it shall have become law.

2011 LEGISLATIVE HISTORY:

None. New proposal.

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

                                  4578

                       2011-2012 Regular Sessions

                            I N  S E N A T E

                             April 12, 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

AN  ACT  to  amend  the civil practice law and rules, in relation to the
  service of papers

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

  Section  1.  Paragraph  2 of subdivision (b) of rule 2103 of the civil
practice law and rules, as separately amended by chapters 461 and 478 of
the laws of 1989, is amended to read as follows:
  2. by mailing the paper to the attorney at the address  designated  by
that  attorney for that purpose or, if none is designated, at the attor-
ney's last known address; service by mail shall be complete  upon  mail-
ing;  where  a  period  of  time  prescribed by law is measured from the
service of a paper and service is by mail, five days shall be  added  to
the  prescribed  period  IF THE MAILING IS MADE WITHIN THE STATE AND SIX
DAYS IF MADE FROM OUTSIDE THE STATE; or
  S 2. Paragraph 5 of subdivision (b) of rule 2103 of the civil practice
law and rules, as amended by chapter 367 of the laws of 1999, is amended
to read as follows:
  5. by transmitting the paper  to  the  attorney  by  facsimile  trans-
mission, provided that a facsimile telephone number is designated by the
attorney  for  that  purpose BY A STIPULATION IN THE ACTION IN WHICH THE
FACSIMILE SERVICE IS TO OCCUR.  Service by facsimile transmission  shall
be  complete  upon the receipt by the sender of a signal from the equip-
ment of  the  attorney  served  indicating  that  the  transmission  was
received,  and the mailing of a copy of the paper to that attorney. [The
designation of  a  facsimile  telephone  number  in  the  address  block
subscribed  on  a  paper  served  or filed in the course of an action or
proceeding shall constitute consent to service by facsimile transmission
in accordance  with  this  subdivision.]  An  attorney  may  change  [or

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD09311-01-1

S. 4578                             2

rescind]  a  facsimile telephone number by serving a notice on the other
parties; or
  S 3. Paragraph 1 of subdivision (f) of rule 2103 of the civil practice
law and rules, as amended by chapter 367 of the laws of 1999, is amended
to read as follows:
  1.  "Mailing"  means  the deposit of a paper enclosed in a first class
postpaid wrapper, addressed to the address designated by  a  person  for
that  purpose  or,  if  none  is designated, at that person's last known
address, in a post office or official  depository  under  the  exclusive
care and custody of the United States Postal Service [within the state];
  S  4. This act shall take effect on the first of January next succeed-
ing the date on which it shall have become a law.

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