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This entry was published on 2021-06-18
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SECTION 2111
Filing of papers in the trial courts by facsimile transmission and by electronic means
Civil Practice Law & Rules (CVP) CHAPTER 8, ARTICLE 21-A
§ 2111. Filing of papers in the trial courts by facsimile transmission
and by electronic means. (a) Notwithstanding any other provision of law,
the chief administrator of the courts, with the approval of the
administrative board of the courts, may promulgate rules authorizing a
program in the use of facsimile transmission only in the court of claims
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, and (ii) the filing and
service of papers in pending actions and proceedings. Provided, however,
the chief administrator shall consult with the county clerk of a county
outside the city of New York before the use of electronic means is to be
authorized in the supreme court of such county, afford him or her the
opportunity to submit comments with respect thereto, consider any such
comments and obtain the agreement thereto of such county clerk.

(b) 1. Except as otherwise provided in paragraph two 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 proceeding
from filing and serving papers by facsimile transmission or electronic
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. No party shall be compelled, directly or indirectly, to
participate in e-filing. All parties shall be notified clearly, in plain
language, about their options to participate in e-filing. Where a party
is not represented by counsel, the clerk shall explain such party's
options for electronic filing in plain language, including the option
for expedited processing, and shall inquire whether he or she wishes to
participate, provided however the unrepresented litigant may participate
in the program only upon his or her request, which shall be documented
in the case file, after said party has been presented with sufficient
information in plain language concerning the program.

2. 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:

(A) 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 seventy or seventy-eight of this
chapter, proceedings brought pursuant to the mental hygiene law,
residential foreclosure actions involving a home loan as such term is
defined in section thirteen hundred four of the real property actions
and proceedings law and proceedings related to consumer credit
transactions as defined in subdivision (f) of section one hundred five
of this chapter, except that the chief administrator, in accordance with
this paragraph, may eliminate the requirement of consent to participate
in this program insofar as it applies to the initial filing by a
represented party of papers required for the commencement of residential
foreclosure actions involving a home loan as such term is defined in
section thirteen hundred four of the real property actions and
proceedings law and the initial filing by a represented party of papers
required for the commencement of proceedings related to consumer credit
transactions as defined in subdivision (f) of section one hundred five
of this chapter) in supreme court in such counties as he or she shall
specify, and

(B) one or more classes of cases in surrogate's court in such counties
as he or she shall specify, and

(C) actions in the civil court of the city of New York brought by a
provider of health care services specified in paragraph one of
subsection (a) of section five thousand one hundred two of the insurance
law against an insurer for failure to comply with the rules and
regulations promulgated by the superintendent of financial services
pursuant to subsection (b) of section five thousand one hundred eight of
such law.

(i) Notwithstanding the foregoing, the chief administrator shall not
eliminate the requirement of consent in any county until after he or she
shall have consulted with members of the organized bar including but not
limited to city, state, county and women's bar associations; with
institutional legal service providers; with not-for-profit legal service
providers; with attorneys assigned pursuant to article eighteen-B of the
county law; with unaffiliated attorneys who regularly appear in
proceedings that are or have been affected by any program of electronic
filing in such county that requires consent or who would be affected by
a program of electronic filing in such county should the requirement of
consent be eliminated; with any other persons in the county as deemed to
be appropriate by the chief administrator; and with the county clerk of
such county (where the affected court is the supreme court of a county
outside the city of New York), and

(ii) only after affording them the opportunity to submit comments with
respect thereto, considering any such comments, including but not
limited to comments related to unrepresented litigants and, in the
instance of any county outside the city of New York, obtaining the
agreement thereto of the county clerk thereof. All such comments shall
be posted for public review on the office of court administration's
website.

* 2-a. Notwithstanding the provisions of paragraph two of this
subdivision, the exclusion in such paragraph of residential foreclosure
actions involving a home loan as such term is defined in section
thirteen hundred four of the real property actions and proceedings law
from those classes of cases in which the chief administrator may
eliminate the requirement of consent to participation in a program in
the use of electronic means shall not apply to any county in which,
prior to the effective date of this section, the chief administrator had
eliminated the requirement of consent to participation in such a program
in such foreclosure actions, specifically Erie, Essex, New York, Queens,
Rockland, Suffolk and Westchester counties; and the exclusion in such
paragraph of proceedings related to consumer credit transactions as
defined in subdivision (f) of section one hundred five of this chapter
from those classes of cases in which the chief administrator may
eliminate the requirement of consent to participation in a program in
the use of electronic means shall not apply to any county in which,
prior to the effective date of this section, the chief administrator had
eliminated the requirement of consent to participation in such a program
in such proceedings related to consumer credit transactions,
specifically Erie, New York, Onondaga, Rockland and Westchester
counties.

* NB Repealed September 1, 2022

3. Where the chief administrator eliminates the requirement of consent
as provided in paragraph two of this subdivision, he or she shall afford
counsel 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 shall permit an attorney 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:

(A) 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

(B) where the attorney certifies in good faith that he or she lacks
the requisite knowledge in the operation of such computers and/or
scanners necessary to participate. For the purposes of this
subparagraph, 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.

Notwithstanding any other provision of this subdivision, where a party
is not represented by counsel, the clerk shall explain such party's
options for electronic filing in plain language and shall inquire
whether he or she wishes to participate, provided however the
unrepresented litigant may participate in the program only upon his or
her request after said party has been presented with sufficient
information in plain language concerning the program; and a party not
represented by counsel who has chosen to participate in the program
shall be afforded the opportunity to opt out of the program for any
reason via presentation of a prescribed form to be filed with the clerk
of the court where the proceeding is pending; and a court may exempt any
attorney from being required to participate in the program upon
application for such exemption, showing good cause therefor.

(c) For purposes of this section, "the filing and service of papers in
pending actions and proceedings" shall include the filing and service of
a notice of appeal pursuant to section fifty-five hundred fifteen of
this chapter.