senate Bill S6003A

Signed By Governor
2009-2010 Legislative Session

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

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Archive: Last Bill Status Via A8956 - Signed by Governor


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

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Actions

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Assembly Actions - Lowercase
Senate Actions - UPPERCASE
Aug 31, 2009 signed chap.416
delivered to governor
Aug 06, 2009 returned to assembly
passed senate
restored to third reading
Jul 16, 2009 recommitted to rules
3rd reading cal.842
substituted for s6003a
Jul 16, 2009 substituted by a8956a
Jul 15, 2009 ordered to third reading cal.842
Jun 24, 2009 print number 6003a
amend and recommit to rules
Jun 19, 2009 referred to rules

Votes

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Aug 6, 2009 - Rules committee Vote

S6003A
20
1
committee
20
Aye
1
Nay
1
Aye with Reservations
0
Absent
2
Excused
0
Abstained
show Rules committee vote details

Jul 15, 2009 - Rules committee Vote

S6003A
22
0
committee
22
Aye
0
Nay
1
Aye with Reservations
0
Absent
1
Excused
0
Abstained
show Rules committee vote details

Bill Amendments

Original
A (Active)
Original
A (Active)

S6003 - Bill Details

See Assembly Version of this Bill:
A8956A
Law Section:
Civil Practice Law and Rules
Laws Affected:
Amd §2103, CPLR; amd §§6 & 10, rpld §6 sub (c), Chap 367 of 1999

S6003 - Bill Texts

view summary

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

view sponsor memo
BILL NUMBER: S6003

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
transmission 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 electronic filing in Supreme Court in certain commercial
cases in New York County, 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 scheduled to sunset on September 1, 2009.

The ten-year experiment with e-filing in New York, as well as the
experience 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. Efiling 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
attorneys. 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, tentative 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 efficient 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 community 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
Administrative Judge, after consultation with the Bar and with the
approval of the Administrative Board of the Courts, promulgates a
program of mandatory efiling 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
meaningful fiscal impact on the State.

LEGISLATIVE HISTORY :
None. New measure.


FOOTNOTES :
(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
country, 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.




























































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

                                  6003

                       2009-2010 Regular Sessions

                            I N  S E N A T E

                              June 19, 2009
                               ___________

Introduced  by  Sen.  SCHNEIDERMAN -- (at request of the Office of Court
  Administration) -- read twice and ordered printed, and when printed to
  be committed 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:
  (a) Notwithstanding any other provision of law, the chief  administra-
tor  of the courts, with the approval of the administrative board of the

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD14418-01-9

S. 6003                             2

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;
  (X) COMMERCIAL INSURANCE COVERAGE (INCLUDING BUT NOT LIMITED TO DIREC-
TORS AND OFFICERS,  ERRORS  AND  OMISSIONS,  AND  BUSINESS  INTERRUPTION
COVERAGE);

S. 6003                             3

  (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
  (III) WHERE A PARTY IS NOT REPRESENTED BY COUNSEL, HE OR  SHE  CHOOSES
NOT TO PARTICIPATE IN THE PROGRAM.

S. 6003                             4

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 on the one hundred eightieth day after  such
effective date, and provided that such paragraph (B) shall expire and be
deemed repealed September 1, 2012.

S6003A (ACTIVE) - Bill Details

See Assembly Version of this Bill:
A8956A
Law Section:
Civil Practice Law and Rules
Laws Affected:
Amd §2103, CPLR; amd §§6 & 10, rpld §6 sub (c), Chap 367 of 1999

S6003A (ACTIVE) - Bill Texts

view summary

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

view sponsor memo
BILL NUMBER: S6003A

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
transmission 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 electronic filing in Supreme Court in certain commercial
cases in New York County, 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 scheduled to sunset on September 1, 2009.

The ten-year experiment with e-filing in New York, as well as the
experience 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
attorneys. 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, tentative 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 efficient 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 community 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
Administrative 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
meaningful fiscal impact on the State.

LEGISLATIVE HISTORY :

None. New measure.



FOOTNOTES :
(1) As of January 2009, the Case Management and Electronic Case Filing
System ("ECS") is in use in 99/0 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
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                    S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                 6003--A

                       2009-2010 Regular Sessions

                            I N  S E N A T E

                              June 19, 2009
                               ___________

Introduced  by  Sen.  SCHNEIDERMAN -- (at request of the Office of Court
  Administration) -- read twice and ordered printed, and when printed to
  be committed to the Committee on Rules -- committee  discharged,  bill
  amended,  ordered reprinted as amended and recommitted to said commit-
  tee

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.
                                                           LBD14418-04-9

S. 6003--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;

S. 6003--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

S. 6003--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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