BILL NUMBER:S4845

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 amend CPLR 2103(0(1) to repeal its requirement that
papers served by mail upon an attorney in a pending action be mailed
within the State of New York. This measure also would amend CPLR
2103(b)(2) to extend 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 but within the geographic boundaries of the United
States.

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 has
suggested to us 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).

We are persuaded by our Committee's view 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, the measure has been
amended to be limited in scope and application to the geographic
boundaries of the United States.


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.

2014 Legislative History:

OCA 2014-97
Assembly 9763 (M. of A. Simotas) (Passed)

2010 Legislative History:

OCA 2010-59