S T A T E   O F   N E W   Y O R K
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                                  8317

                       2009-2010 Regular Sessions

                          I N  A S S E M B L Y

                              May 14, 2009
                               ___________

Introduced by M. of A. SCHIMMINGER -- (at request of the Office of Court
  Administration) -- read once and referred to the Committee on Codes

AN  ACT to amend the civil practice law and rules, in relation to deter-
  mination of finality for the purposes of certain appeals to the  court
  of  appeals  and  to appellate review of an ex parte order or applica-
  tions for provisional remedies

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

  Section 1. Section 5513 of the civil practice law and rules is amended
by adding a new subdivision (e) to read as follows:
  (E)  COMPUTATION  OF  TIME FOR APPEAL TO THE COURT OF APPEALS WHERE AN
ORDER OF THE APPELLATE DIVISION DIRECTS A NEW TRIAL UNLESS A PARTY STIP-
ULATES TO MODIFICATION. WHERE AN ORDER OF THE APPELLATE DIVISION DIRECTS
A NEW TRIAL UNLESS A PARTY STIPULATES TO A MODIFICATION OF AN  ORDER  OR
JUDGMENT,  AND  THE PARTY SO STIPULATES, THE TIME WITHIN WHICH AN APPEAL
MUST BE TAKEN OR A  MOTION  FOR  PERMISSION  TO  APPEAL  MADE  SHALL  BE
COMPUTED  FROM  THE LATER OF THE SERVICE OF THE ORDER APPEALED FROM WITH
NOTICE OF ENTRY OR THE SERVICE OF THE STIPULATION OF  MODIFICATION  WITH
NOTICE OF ENTRY.
  S  2.  Section  5611 of the civil practice law and rules is amended to
read as follows:
  S 5611. When appellate division order deemed final. (A) If the  appel-
late  division  disposes of all the issues in the action its order shall
be considered a final one, and a subsequent appeal  may  be  taken  only
from  that  order and not from any judgment or order entered pursuant to
it. If the aggrieved party is granted leave to  replead  or  to  perform
some  other  act  which would defeat the finality of the order, it shall
not take effect as a final order until the expiration of the time limit-
ed for such act without his OR HER having performed it.
  (B) AN ORDER OF THE APPELLATE  DIVISION  THAT  FINALLY  DETERMINES  AN
ACTION  EXCEPT  FOR DIRECTING A NEW TRIAL UNLESS A PARTY STIPULATES TO A

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD10088-01-9
              

A. 8317                             2

MODIFICATION OF AN ORDER OR JUDGMENT SHALL BE FINAL  UPON  FILING  OF  A
STIPULATION  ACCEPTING  SUCH  MODIFICATION. THE APPELLATE DIVISION ORDER
SHALL CONSTITUTE THE PAPER FROM WHICH THE APPEAL IS TO BE TAKEN.
  S 3. Paragraph 3 of subdivision (a) of section 5701 of the civil prac-
tice law and rules is amended to read as follows:
  3.  from  an  order, where the motion it decided was made upon notice,
refusing to vacate or modify a prior order, if  the  prior  order  would
have been appealable as of right under paragraph two OF THIS SUBDIVISION
had it decided a motion made upon notice; OR
  4. FROM AN ORDER DENYING IN WHOLE OR IN PART AN APPLICATION FOR WHICH,
BY ITS NATURE, THERE IS NOT AN ADVERSE PARTY.
  S  4.  Section  5704  of the civil practice law and rules, as added by
chapter 730 of the laws of 1963, subdivision (a) as amended  by  chapter
435 of the laws of 1972 and subdivision (b) as amended by chapter 577 of
the laws of 1966, is amended to read as follows:
  S  5704. Review of ex parte orders OR EX PARTE APPLICATIONS FOR PROVI-
SIONAL REMEDIES. (a) By appellate division.  The appellate division or a
justice thereof may vacate or modify any order granted without notice to
the adverse party by any court or a judge thereof from which  an  appeal
would  lie  to  such appellate division; and the appellate division OR A
JUSTICE THEREOF may grant any order or provisional  remedy  applied  for
without  notice to the adverse party and refused by any court or a judge
thereof from which an appeal would lie to such appellate division.
  (b) By appellate term. The appellate term in the first or second judi-
cial department or a justice thereof may  vacate  or  modify  any  order
granted  without  notice  to  the  adverse party by any court or a judge
thereof from which an appeal would lie to such appellate term; and  such
appellate  term  OR A JUSTICE THEREOF may grant any order or provisional
remedy applied for without notice to the adverse party  and  refused  by
any  court  or  a  judge  thereof from which an appeal would lie to such
appellate term.
  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 and shall apply to
appeals from appellate division orders rendered on or after such  effec-
tive date.