senate Bill S4581

Signed by Governor

Relates to time of service, time in which defect in form must be raised, copy of proposed amended pleading, and the time of voluntary discontinuances

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Sponsor

Bill Status


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

  • 12 / Apr / 2011
    • REFERRED TO JUDICIARY
  • 03 / May / 2011
    • 1ST REPORT CAL.443
  • 04 / May / 2011
    • 2ND REPORT CAL.
  • 09 / May / 2011
    • ADVANCED TO THIRD READING
  • 02 / Jun / 2011
    • PASSED SENATE
  • 02 / Jun / 2011
    • DELIVERED TO ASSEMBLY
  • 02 / Jun / 2011
    • REFERRED TO CODES
  • 06 / Jun / 2011
    • SUBSTITUTED FOR A7466
  • 06 / Jun / 2011
    • ORDERED TO THIRD READING RULES CAL.72
  • 06 / Jun / 2011
    • PASSED ASSEMBLY
  • 06 / Jun / 2011
    • RETURNED TO SENATE
  • 05 / Aug / 2011
    • DELIVERED TO GOVERNOR
  • 17 / Aug / 2011
    • SIGNED CHAP.473

Summary

Relates to time of service, time in which defect in form must be raised, copy of proposed amended pleading, and the time of voluntary discontinuances.

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Bill Details

See Assembly Version of this Bill:
A7466
Versions:
S4581
Legislative Cycle:
2011-2012
Law Section:
Civil Practice Law and Rules
Laws Affected:
Amd ยง306-b, RR2101, 3025 & 3217, CPLR
Versions Introduced in 2009-2010 Legislative Cycle:
A8318A, A8318A

Sponsor Memo

BILL NUMBER:S4581

TITLE OF BILL:

An act
to amend the civil practice law and rules, in relation to the time of
service, the time in which a defect in form must be raised, a copy of a
proposed amended pleading and the
time of voluntary discontinuances

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 make several technical amendments to the CPLR, in
relation to time of service; time in which a defect in form may be
raised; amended pleadings; and the time in which a voluntary
discontinuance may be obtained without court order or stipulation.

I. Time of service. We recommend amendment of CPLR 306-b to correct a
time of service problem that can occur when a court order extending
time for filing is granted pursuant to CPLR section 304. CPLR section
306-b presently requires service of the summons and complaint,
summons with notice, third-party summons and complaint, petition with
notice of petition or order to show cause within 120 days after
filing, with appropriate modifications where the statute of
limitations is four months or less. With but one exception, this is
fully consistent with the provision of section 304 that an action or
proceeding be commenced by filing, since valid service cannot be
made until the action has been commenced and that occurs upon filing.

The exception occurs when, pursuant to section 304, a court finds that
circumstances prevent immediate filing and signs an order requiring
the subsequent filing
at a specific time and date not later than five days thereafter. In
this instance it is the signing of the order, and not the filing of
the pleading that commences the action or proceeding. This exception
can be and often is utilized in situations where a party requires a
restraining order to prevent the occurrence of an event on a holiday,
weekend or after business hours, when filing cannot occur but
immediate service is critical. In this limited situation, although
the action or proceeding has been commenced, service often must be
made before the order can be filed. At least one court has held that,
under these circumstances, service was ineffective because section
306-b mandates service after filing, not after commencement of the
action.

A simple amendment to section 306-b, to provide that service be made
within 120 days "after commencement of the action or proceeding,"
should rectify the problem created by the section 304 exception,
without having any adverse effect upon the more usual situation where
the action is commenced by filing of the pleading. In either event,
whether the action is commenced by filing or by the signing of all
order which extends the time for filing, post commencement service
will occur.


II. Time in which a defect in form may be raised. We propose an
amendment to CPLR rule 2101(f) to increase the time for raising
objections to defects in form. Currently, the time in which
objection to a defect in form must be raised is only two days from
receipt of the paper objected to. We believe that the two-day period
is an unreasonably short period of time for counsel to review a paper
served and raise objections to it where necessary.
Accordingly, we urge that the period of time be amended from "two" to
"fifteen" days.
The effect of this change will be that the focus of any debate over
the form of a paper will concern solely the proper form and the
underlying facts, not the number of days allowed for objection.

III. Amended pleadings. We recommend amendment of CPLR rule
3025(b) to require a party moving to amend its pleadings to attach a
copy of the proposed amended pleading to its motion to amend that
pleading, clearly showing the proposed changes to the pleading. Many
federal courts by local rule require the movant to attach the
proposed pleading and to show by redline the changes in the complaint
or answer that the movant proposes.

IV. Time in which a voluntary discontinuance may be obtained without
court order or stipulation. Lastly, this measure would amend CPLR
3217(a)(1) to extend the time period in which, at the outset of a
case, a voluntary discontinuance may be obtained without need for a
court order or a stipulation of settlement. This change would give
maximum flexibility to parties who may want to settle claims very
early in the litigation process.

The need for flexibility becomes particularly acute in the early stage
of a case. At present, a party alleging a cause of action in a
complaint, counterclaim, cross-claim, or petition may only
unilaterally discontinue it without court order or stipulation by
serving and filing the requisite notice on all parties "at any time
before a responsive pleading is served or within twenty days after
service of the pleading asserting the claim, whichever is
earlier..."CPLR 3217(a)(1). The proponent of the claim has a very
limited
period of time to exercise his or her unlimited right to discontinue
the cause of action. The 20-day limitation applies even: (1) if the
responsive pleading has not yet been served; and (2) if the time to
respond is 30 days. See CPLR 3012(c). In addition, the service of an
amended pleading pursuant to CPLR 3012(c) will not preclude the
application of the 20-day period. See Fox v. Fox, 85 A.D.2d 653 (2d
Dept. 1981). Effectively, no party may unilaterally discontinue an
action by notice beyond 20 days after service of the pleading
asserting the claim.

We recommend that CPLR 3217(a)(1) be amended to permit a voluntary
discontinuance without court order or stipulation before the
responsive pleading is served or within 20 days after service of the
pleading of the claim, whichever is later.

This modification will also bring the CPLR into line with the Federal
Rules of Civil Procedure, which permits a party to discontinue any
time before an answer is due.
See Federal Rules of Civil Procedure 41(a). Apparently, when the Civil


Practice Act in New York was modified by the enactment in 1962 of the
CPLR the flexibility of the prior practice was eliminated. That
flexibility should be reinstated.

It is necessary to retain the provision of the rule which permits a
voluntary discontinuance without court order or stipulation"...
within 20 days after service of a pleading asserting a claim" to
address the scenario reflected in CPLR 3011 by which a cross-claim
may be asserted, the defendant/proponent does not demand a reply and
no responsive pleading is required. Without the 20 day language,
there would be no provision for the voluntary discontinuance of a
cross-claim.

This measure would take effect January first next after it shall have
become a law.

2009-10 Legislative History:

S.5960 (Senator Schneiderman)- Codes
A.8318-A (M. of A. Zebrowski) - Codes

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

                                  4581

                       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
  time of service, the time in which a defect in form must be raised,  a
  copy  of a proposed amended pleading and the time of voluntary discon-
  tinuances

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

  Section  1.  Section  306-b  of  the  civil practice law and rules, as
amended by chapter 473 of the laws  of  2001,  is  amended  to  read  as
follows:
  S  306-b.  Service  of the summons and complaint, summons with notice,
third-party summons and complaint, or petition with a notice of petition
or order to show cause. Service of the summons  and  complaint,  summons
with  notice,  third-party  summons  and  complaint,  or petition with a
notice of petition or order to show  cause  shall  be  made  within  one
hundred  twenty  days  after  the  [filing of the summons and complaint,
summons with notice, third-party summons  and  complaint,  or  petition]
COMMENCEMENT  OF THE ACTION OR PROCEEDING, provided that in an action or
proceeding, except a proceeding commenced under the election law,  where
the  applicable  statute  of limitations is four months or less, service
shall be made not later than fifteen days after the date  on  which  the
applicable  statute of limitations expires.  If service is not made upon
a defendant within the time provided in this section,  the  court,  upon
motion, shall dismiss the action without prejudice as to that defendant,
or  upon good cause shown or in the interest of justice, extend the time
for service.
  S 2. Subdivision (f) of rule 2101 of the civil practice law and  rules
is amended to read as follows:

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD09307-01-1

S. 4581                             2

  (f)  Defects  in  form;  waiver. A defect in the form of a paper, if a
substantial right of a party is not prejudiced, shall be disregarded  by
the court, and leave to correct shall be freely given. The party on whom
a paper is served shall be deemed to have waived objection to any defect
in  form  unless,  within  [two] FIFTEEN days after the receipt thereof,
[he] THE PARTY ON WHOM THE PAPER IS SERVED  returns  the  paper  to  the
party serving it with a statement of particular objections.
  S 3. Subdivision (b) of rule 3025 of the civil practice law and rules,
such  section  as  renumbered  by  chapter  318  of the laws of 1962, is
amended to read as follows:
  (b) Amendments and supplemental pleadings by leave. A party may  amend
his  OR  HER  pleading,  or supplement it by setting forth additional or
subsequent transactions or occurrences, at any time by leave of court or
by stipulation of all parties. Leave shall be  freely  given  upon  such
terms  as  may be just including the granting of costs and continuances.
ANY MOTION TO AMEND OR SUPPLEMENT PLEADINGS SHALL BE ACCOMPANIED BY  THE
PROPOSED AMENDED OR SUPPLEMENTAL PLEADING CLEARLY SHOWING THE CHANGES OR
ADDITIONS TO BE MADE TO THE PLEADING.
  S 4. Paragraph 1 of subdivision (a) of rule 3217 of the civil practice
law and rules, as amended by chapter 736 of the laws of 1989, is amended
to read as follows:
  1.  by  serving  upon all parties to the action a notice of discontin-
uance at any time before a responsive  pleading  is  served  or,  IF  NO
RESPONSIVE PLEADING IS REQUIRED, within twenty days after service of the
pleading  asserting  the  claim[,  whichever is earlier,] and filing the
notice with proof of service with the clerk of the court; or
  S 5. 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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