Continues and expands New York's program for use of electronic means for filing certain papers in civil litigation in supreme court and other courts.
BILL NUMBER: S7806
TITLE OF BILL : An act 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 use of electronic means to commence an action or proceeding and to amend chapter 416 of the laws of 2009, amending the civil practice law and rules relating to service of papers by electronic means, in relation to service of papers by electronic means
This measure is being introduced at the request of the Judiciary. It was prepared in collaboration with the NYS Association of County Clerks and it has their support.
This measure is a chapter amendment to effectuate several minor changes in legislation enacted last session to continue and expand the State's program in the use of electronic means for the filing of certain papers in civil litigation in Supreme Court and other courts ("electronic filing" or "e-filing"). See L. 2009, c.416.
Eleven years ago, New York instituted an experiment in the use of e-filing. The experiment permitted e-filing in a few categories of cases in Supreme Court and in a few venues, included a requirement for the consent of the parties, and was set to expire in approximately three years. See L. 1999, c. 367. Over the ensuing decade, the State revisited this experiment several times, expanding the case categories and venues in which it could be used, expanding its availability to cases in the Surrogate's Courts and the Court of Claims, and continuing its experimental character by providing for a series of sunsets.
Last year, the Legislature enacted chapter 416 as a major expansion of the e-filing program. As part of this expansion, the Legislature removed e-filing from the ranks of an experiment and gave it permanent status. It also eliminated restrictions on the categories of cases and venues in which e-filing might be used, permitting its use statewide in Supreme Court, Surrogate's Court and the Court of Claims. While chapter 416 did not eliminate the requirement that parties consent to use of e-filing in individual cases, it did institute a limited program of mandatory e-filing in Supreme Court in certain commercial cases in New York County, in tort cases in Westchester County, and in certain cases in one other upstate county (to be designated by the Chief Administrative Judge).
As we have begun to go forward and implement the provisions of chapter 416, we recognize that we can ensure a more effective e-filing program with five minor changes in the legislation. They include:
* addition of a requirement that the Chief Administrative Judge consult with the affected County Clerk before instituting any consensual program of e-filing in a county. Omission of this requirement was an oversight in chapter 416.
* in place of the statutory provision permitting the Chief Administrative Judge to select an upstate county for participation in the mandatory e-filing program, authorization for her to designate four specific upstate counties - Livingston, Monroe, Rockland and Tompkins - to participation in that program. These four counties and their local Bar Associations have indicated a strong wish to be included in the mandatory e-filing pilot. Relatedly, we also propose that mandatory e-filing be authorized in other classes of cases in Westchester County besides tort cases.
* addition of a requirement that, before instituting mandatory e-filing in any venue, the Chief Administrative Judge must consult with the local County Clerk; and, before instituting mandatory e-filing in the four identified upstate venues, the Chief Administrative Judge must secure the agreement of the local County Clerk. This change will ensure that counties are well-prepared to meet the demands generated by mandatory e-filing.
* addition of a requirement that the Chief Administrative Judge establish an advisory committee, to be comprised of both court system personnel and County Clerks, to assist him or her in implementing the e-filing legislation generally. This change is intended to ensure that the e-filing program goes forward as a truly collaborative exercise; and that it remains continually subject to critical review.
* modification of the reporting requirement set out in chapter 416 to obligate the Chief Administrative Judge to furnish an annual report on the e-filing program, commencing 4/1/11; and particularly to invite the Chief Administrative Judge. in each such annual report, to make recommendations, as appropriate. for expansion of the mandatory e-filing program. We point out that there likely are other counties besides the four to be added by this measure to the mandatory e-filing program - that are now, or soon can be, ready for a meaningful test of mandatory e-filing; and it is our hope that, after a year or so of successful experience with the program in the pilot counties, and with strong local support for expansion into other counties, the latter can be permitted to join the program (subject. of course, to a continuing requirement that there be no expansion of the mandatory program without the agreement of any county clerk in an affected county).
Beyond these changes, this measure also clarifies that statutory authorization for use of fax transmission as a means of filing papers (another feature of the early e-filing program) should be limited to papers in -the Court of Claims. This will conform the statute to the practice and to need as it has been demonstrated over time.
Lastly, the measure makes a technical change in the Judiciary Law's recitation of the powers of the Chief Administrative Judge to clarify that it includes rule-making powers conferred by chapter 367 of the Laws of 1999, as amended through chapter 416 of the laws of 2009.
This measure, which would take effect retroactively to 9/1/09, would have no fiscal impact.
LEGISLATIVE HISTORY : None. New proposal.
STATE OF NEW YORK ________________________________________________________________________ 7806 IN SENATE May 12, 2010 ___________Introduced by Sens. SCHNEIDERMAN, SAMPSON, HASSELL-THOMPSON, KLEIN, OPPENHEIMER, STEWART-COUSINS -- (at request of the Office of Court Administration) -- read twice and ordered printed, and when printed to be committed to the Committee on Judiciary AN ACT 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 elec- tronic means to commence an action or special proceeding, in relation to use of electronic means to commence an action or proceeding and to amend chapter 416 of the laws of 2009, amending the civil practice law and rules relating to service of papers by electronic means, in relation to service of papers by electronic means THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM- BLY, DO ENACT AS FOLLOWS: Section 1. Subdivision (a) 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, as amended by chapter 416 of the laws of 2009, is 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 courts, may promulgate rules authorizing a program in the use of facsim- ile 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 ADMINIS- TRATOR SHALL CONSULT WITH THE COUNTY CLERK OF A COUNTY BEFORE THE USE OF ELECTRONIC MEANS IS TO BE AUTHORIZED IN SUCH COUNTY, AFFORD HIM OR HER THE OPPORTUNITY TO SUBMIT COMMENTS WITH RESPECT THERETO AND CONSIDER ANY SUCH COMMENTS. S 2. Subparagraphs 2 and 3 of paragraph (B) of subdivision (b) of section 6 of chapter 367 of the laws of 1999, amending the civil prac-EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets [ ] is old law to be omitted. LBD17308-01-0 S. 7806 2
tice 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 amended by chapter 416 of the laws of 2009, are amended to read as follows: 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]IN LIVINGSTON, MONROE, ROCKLAND, TOMPKINS AND WESTCHESTER COUNTIES. S 3. The closing paragraph of paragraph (B) of subdivision (b) of section 6 of chapter 367 of the laws of 1999, amending the civil prac- tice 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 amended by chapter 416 of the laws of 2009, is amended to read as follows: 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 AND WITH THE COUNTY CLERK in any county in which such elimination shall apply, have afforded them the opportunity to submit comments with respect thereto, [and]have consid- ered any such comments AND, IN THE INSTANCE OF THE COUNTIES SPECIFIED IN SUBPARAGRAPH TWO OF THIS PARAGRAPH, HAVE OBTAINED THE AGREEMENT THERETO OF THE RESPECTIVE COUNTY CLERKS THEREOF. S 4. Section 6 of chapter 416 of the laws of 2009, amending the civil practice law and rules relating to service of papers by electronic means, is amended to read as follows: S 6. (A) Not later than April [1, 2012]FIRST IN EACH CALENDAR YEAR, COMMENCING IN THE YEAR 2011, 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, INCLUDING, IN PARTICULAR, LEGISLATION TO ENABLE BROADER USE OF THE PROGRAM WITHOUT THE REQUIREMENT OF CONSENT TO PARTIC- IPATION IN THE COUNTY SPECIFIED IN SUBPARAGRAPH 1 OF PARAGRAPH (B) OF SUBDIVISION (B) OF SECTION 6 OF CHAPTER 367 OF THE LAWS OF 1999, AMEND- ING THE CIVIL PRACTICE LAW AND RULES AND THE JUDICIARY LAW, RELATING TO THE AUTHORIZATION OF PILOT PROGRAMS PERMITTING THE USE OF FACSIMILE TRANSMISSION OR ELECTRONIC MEANS TO COMMENCE AN ACTION OR SPECIAL PROCEEDING, AS AMENDED, AND IN COUNTIES NOT NOW SPECIFIED IN SUBPARA- GRAPH 2 OF SUCH PARAGRAPH (B). IN THE PREPARATION OF SUCH REPORT, THE CHIEF ADMINISTRATOR SHALL CONSULT WITH EACH COUNTY CLERK IN WHOSE COUNTY THE PROGRAM HAS BEEN IMPLEMENTED, AFFORD HIM OR HER AN OPPORTUNITY TO SUBMIT COMMENTS WITH RESPECT TO SUCH IMPLEMENTATION FOR INCLUSION IN THE REPORT AND CONSIDER ANY SUCH COMMENTS. (B) THE CHIEF ADMINISTRATOR OF THE COURTS SHALL CREATE AN ADVISORY COMMITTEE TO CONSULT WITH HIM OR HER IN THE IMPLEMENTATION OF THIS ACT IN THE SUPREME COURT. THIS COMMITTEE SHALL CONSIST OF SUCH NUMBER OF MEMBERS AS THE CHIEF ADMINISTRATOR SHALL DESIGNATE, NO FEWER THAN HALF TO BE UPON THE RECOMMENDATION OF THE NEW YORK STATE ASSOCIATION OF COUN- TY CLERKS. S 5. This act shall take effect immediately and shall be deemed to have been in full force and effect on and after September 1, 2009,S. 7806 3
provided, however, that the amendments to paragraph (B) of subdivision (b) of section 6 of chapter 367 of the laws of 1999 made by sections two and three of this act shall not affect the expiration and repeal of such paragraph and shall be deemed repealed therewith.