Relates to service of papers by electronic means; eliminates requirement of consent in certain instances.
Ayes (20): Smith, Espada, Stachowski, Montgomery, Hassell-Thompson, Krueger, Parker, Serrano, Stewart-Cousins, Dilan, Klein, Valesky, Monserrate, Skelos, Johnson O, Padavan, Volker, Farley, Larkin, Saland
Ayes W/R (1): Duane
Nays (1): Seward
Excused (2): LaValle, Hannon
Ayes (22): Smith, Espada, Stachowski, Montgomery, Duane, Hassell-Thompson, Krueger, Parker, Serrano, Stewart-Cousins, Dilan, Klein, Valesky, Monserrate, Padavan, Volker, Farley, LaValle, Seward, Hannon, Larkin, Saland
Ayes W/R (1): Skelos
Excused (1): Johnson O
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 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.
STATE OF NEW YORK ________________________________________________________________________ 6003--A 2009-2010 Regular Sessions IN SENATE 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; ORS. 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.