A8956A-2009 Actions

• Aug 31, 2009: signed chap.416
• Aug 31, 2009: delivered to governor
• Aug 6, 2009: RETURNED TO ASSEMBLY
• Aug 6, 2009: PASSED SENATE
• Aug 6, 2009: RESTORED TO THIRD READING
• Jul 16, 2009: RECOMMITTED TO RULES
• Jul 16, 2009: 3RD READING CAL.842
• Jul 16, 2009: SUBSTITUTED FOR S6003A
• Jun 22, 2009: REFERRED TO RULES
• Jun 22, 2009: delivered to senate
• Jun 22, 2009: passed assembly
• Jun 22, 2009: ordered to third reading rules cal.563
• Jun 22, 2009: rules report cal.563
• Jun 22, 2009: reported
• Jun 18, 2009: amend and recommit to rules 8956a
• Jun 18, 2009: reported referred to rules
• Jun 16, 2009: referred to judiciary

A8956A-2009 Calendars

A8956A-2009 Votes

A8956A-2009 Memo

BILL NUMBER:A8956A

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 trans-
mission 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 electron-
ic filing in Supreme Court in certain commercial cases in New York Coun-
ty, 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 sched-
uled to sunset on September 1, 2009.

The ten-year experiment with e-filing in New York, as well as the expe-
rience 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 attor-
neys. 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, tenta-
tive 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 effi-
cient 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 commu-
nity 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 Administra-
tive 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 meaning-
ful fiscal impact on the State.

Legislative History: None. New measure.

{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 coun-
try, 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.

A8956A-2009 Text

 S T A T E   O F   N E W   Y O R K
 
 
                                         8956
 2009-2010 Regular Sessions
 I N  ASSEMBLY
 June 16, 2009
 
 Introduced  by  M. of A. WEINSTEIN -- (at request of the Office of Court
 Administration) -- read once and referred to the Committee on  Judici
 ary
 

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
 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
 
       A. 8956                             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);
 
       A. 8956                             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.
 
       A. 8956                             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.

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