STATE OF NEW YORK
       ________________________________________________________________________
 
                                         4196
 
                              2001-2002 Regular Sessions
 
                   IN ASSEMBLY
 
                                   February 6, 2001
                                      ___________
 
       Introduced by M. of A. WEPRIN -- read once and referred to the Committee
         on Judiciary
 
       AN  ACT  to  amend  the  civil  practice  law  and rules, in relation to
         commencement of special proceedings
 
         The People of the State of New York, represented in Senate and  Assem-
       bly, do enact as follows:
 
    1    Section 1. Section 304 of the civil practice law and rules, as amended
    2  by chapter 367 of the laws of 1999, is amended to read as follows:
    3    §  304.  Method of commencing action or special proceeding.  An action
    4  is commenced by filing a summons and complaint or summons  with  notice.
    5  A  special  proceeding  is  commenced by filing a [notice of petition or
    6  order to show cause and a] petition.  Where a court finds  that  circum-
    7  stances  prevent immediate filing, the signing of an order requiring the
    8  subsequent filing at a specific time and date not later than  five  days
    9  thereafter shall commence the action.  For purposes of this section, and
   10  for  purposes  of  section two hundred three of this chapter and section
   11  three hundred six-a of this article, filing shall mean the  delivery  of
   12  the  summons with notice, summons and complaint[, notice of] or petition
   13  [or order to show cause] to the clerk of the  court  in  the  county  in
   14  which  the  action  or special proceeding is brought or any other person
   15  designated by the clerk of the court for that purpose together with  any
   16  fee required as specified in rule twenty-one hundred two of this chapter
   17  for  filing.   Notwithstanding any other provision of law, such delivery
   18  may be accomplished by facsimile transmission or  electronic  means,  as
   19  defined  in  subdivision  (f)  of  rule twenty-one hundred three of this
   20  chapter, where and in the manner authorized by the  chief  administrator
   21  of the courts by rule.  At the time of filing, the filed papers shall be
   22  date  stamped by the clerk of the court who shall file them and maintain
   23  a record of the date of the filing and who shall return forthwith a date
   24  stamped copy, together with an index number, to the filing party.  Where
   25  filing  is  by  facsimile transmission, the clerk of the court need only
 
        EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                             [ ] is old law to be omitted.
                                                                  LBD02895-01-1

       A. 4196                             2
 
    1  return [dated] a date stamped copy of  the  first  page  of  the  papers
    2  initiating  the lawsuit, together with the index number. Where filing is
    3  by electronic means, the clerk shall, in accordance with  rules  promul-
    4  gated  by  the chief administrator, forthwith notify the filing party of
    5  the index number and the date and time of filing.  A confirmation record
    6  produced by the filing party's facsimile  machine  or  computer  and  an
    7  affidavit  of  filing by the filing party, shall be prima facie evidence
    8  that the filing party transmitted documents consistent  with  the  date,
    9  time and place appearing on the confirmation record.
   10    §  2.  Section  304 of the civil practice law and rules, as amended by
   11  chapter 606 of the laws of 1996, is amended to read as follows:
   12    § 304. Method of commencing action or special proceeding.   An  action
   13  is  commenced  by filing a summons and complaint or summons with notice.
   14  A special proceeding is commenced by filing a  [notice  of  petition  or
   15  order  to  show cause and a] petition.  Where a court finds that circum-
   16  stances prevent immediate filing, the signing of an order requiring  the
   17  subsequent  filing  at a specific time and date not later than five days
   18  thereafter shall commence the action.  For purposes of this section, and
   19  for purposes of sections two hundred three and three  hundred  six-a  of
   20  this chapter, filing shall mean the delivery of the summons with notice,
   21  summons  and complaint[, notice of] or petition [or order to show cause]
   22  to the clerk of the court in the county in which the action  or  special
   23  proceeding is brought or any other person designated by the clerk of the
   24  court  for  that  purpose together with any fee required as specified in
   25  rule twenty-one hundred two of this chapter for filing.  At such time of
   26  filing, the original and a copy of such papers shall be date stamped  by
   27  a  court  clerk who shall file the original and maintain a record of the
   28  date of the filing and who shall immediately  return  the  copy  to  the
   29  party who brought the filing.
   30    §  3.  Subdivision  (a) of section 306-a of the civil practice law and
   31  rules, as amended by chapter 606 of the laws of 1996, is amended to read
   32  as follows:
   33    (a) Upon filing the summons and complaint [or], summons with notice or
   34  petition in an action or  proceeding  commenced  in  supreme  or  county
   35  court,  an index number shall be assigned and the fee required by subdi-
   36  vision (a) of section eight thousand eighteen of this chapter  shall  be
   37  paid.  Upon  the  filing of a summons and complaint against a person not
   38  already a party, as permitted under section one thousand seven  or  rule
   39  one thousand eleven of this chapter, the fee required by subdivision (a)
   40  of  section eight thousand eighteen of this chapter shall be paid, but a
   41  separate index number shall not be assigned.
   42    § 4. Section 306-b of the civil practice law and rules,  as  added  by
   43  chapter 476 of the laws of 1997, is amended to read as follows:
   44    §  306-b.  Service  of the summons and complaint, summons with notice,
   45  [or of the] third-party summons and complaint, or petition with a notice
   46  of petition or order  to  show  cause.    Service  of  the  summons  and
   47  complaint,  summons  with  notice,  [or  of the] third-party summons and
   48  complaint, or petition with a notice of petition or order to show  cause
   49  shall be made within one hundred twenty days after [their] the filing of
   50  the  summons and complaint, summons with notice, third-party summons and
   51  complaint, or petition, provided that in an action or proceeding, except
   52  a proceeding commenced under the  election  law,  where  the  applicable
   53  statute of limitations is four months or less, service shall be made not
   54  later  than  fifteen days after the date on which the applicable statute
   55  of limitations expires. If service is not made upon a  defendant  within
   56  the time provided in this section, the court, upon motion, shall dismiss

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    1  the  action  without  prejudice as to that defendant, or upon good cause
    2  shown or in the interest of justice, extend the time for service.
    3    § 5. This act shall take effect immediately and shall apply to special
    4  proceedings commenced on or after such date; provided, however, that the
    5  amendments  to  section 304 of the civil practice law and rules, made by
    6  section one of  this  act,  shall  not  affect  the  repeal  of  certain
    7  provisions of such section, pursuant to chapter 367 of the laws of 1999,
    8  and  shall  be  deemed repealed therewith, whereupon section two of this
    9  act shall take effect.

 
BILL NUMBER: A4196
 
SPONSOR: Weprin

 
TITLE OF BILL:  An Act to amend the Civil Practice Law and Rules, in
relation to commencement of special proceedings
 
 
PURPOSE OR GENERAL IDEA OF BILL:  The proposed amendment is intended
to cure logistical problems encountered by attorneys under the present
statute in commencing special proceedings. As explained in the justi-
fication, all special proceedings must be commenced by the filing of a
notice of petition or an order to show cause together with the petition.
The notice of petition or the order to show cause must include a return
date for the determination of the petition so that reasonable notice is
provided to the respondent. The failure to include a return date consti-
tutes a jurisdictional defect.
 
The determination of the appropriate return date involves the assignment
of the IAS judge. The mechanics of this process create logistical prob-
lems for attorneys who must have complete papers including a return
date. In some instances, attorneys arbitrarily select a date, which may
later be changed, or file an RJI to secure assignment of a judge prior
to filing the petition. This latter course can pose problems if an
attorney is nearing the end of a time limitation for commencing the
special proceeding. As indicated, attempts by attorneys to circumvent
the return date requirement, such as by filing unsigned orders to show
cause or petitions lacking a return date, have met with failure.
 
Since the problems in this area stem from the requirement that a return
date be included on the papers as filed, the State Bar Association is
recommending elimination of the requirement of FILING the order to show
cause or notice of petition with the petition in order to commence the
proceeding. Rather, only SERVICE of the order to show cause or notice of
petition with the petition would still be required. This will cure the
logistical problems without changing the quantity or quality of the
notice given to respondents. The amendments to CPLR 304 and 306-b are
proposed to achieve this purpose.
 
 
SUMMARY OF SPECIFIC PROVISIONS:  Section l amends Section 304 of the
Civil Practice Law and Rules to eliminate the requirement that the
notice of petition or order to show cause be filed with the petition in
order to commence the proceeding.
 
Section 2 amends subdivision (a) of section 306-a of the Civil Practice
Law and Rules to allow the filing of a petition to commence a proceeding
and that service of the petition or order to show cause must be done
within 120 days.
 
 
EXISTING LAW: A notice of petition or an order to show cause must have
an appropriate return date and must be filed with the petition to
commence the action or proceeding.
 
 
JUSTIFICATION: Effective January 1, 1993, all special proceedings are
to be commenced pursuant to CPLR 304 by the filing of a notice of peti-
tion or order to show cause together with the petition. The notice of
petition or the order to show cause must include a return date for the
determination of the petition. CPLR 403(a). The absence of an appropri-
ate return date is a jurisdictional defect. Travis v. New York State
Dept. of Environmental Conservation, 185 App.Div.2d 714(4th Dept. 1992);
Matter of Civil Service Employees Association v. Albrecht, 180
App.Div.2d 183 (3rd Dept. 1992), leave denied, 80 N.Y.2d 761 (1992). In
addition, the papers served upon the respondent must be identical to the
papers which are filed. William Court-White Hill Road Homeowners Associ-
ation, Inc. v. New York State Commissioner of Mental Retardation and
Developmental Disabilities, 161 Misc.2d 552, 613 N.Y.S.2d 322 (Sup. Ct.
Westchester Co. 1994).
 
The procedure for the determination of the appropriate return date
entails the assignment of the IAS judge. The return date of a special
proceeding is to be selected in the same manner as the return date for a
motion. Where there has been an assignment, the return date must be
before the assigned judge, presumably on a day regularly scheduled for
the judge's Motions. §§ 202.9 and 202.8 do provide procedure for motions
in unassigned cases or special proceedings, but the procedure is cumber-
some, and will require additional notice to the respondents once the
case has become assigned. If the respondents have not yet appeared in
the action, notice to them cannot be made under CPLR 2103.  As a result,
the commencement of a proceeding presents a logistical problem. Since
the notice of petition or the order to show cause must have an appropri-
ate return date, the petitioner is faced with the choice of picking a
return date, which may later be changed to accommodate the assigned
judge's schedule, or filing an RJI in order to garner an assignment to a
judge prior to the filing of the notice of petition and petition, so as
to pick an appropriate return date for the judge assigned. If the peti-
tioner is nearing the end of the limitations period, commencing the
proceeding in an expedited manner will be essential, and in some coun-
ties, awaiting the assignment of a judge may take too long. If the peti-
tion is to be accompanied by an order to show cause instead of a notice
of petition, the process becomes more difficult since the order to show
cause must be signed, with appropriate return date inserted, before the
order to show cause and petition are filed. This will require, in most
counties, the filing of an RJI prior to the filing of the order to show
cause and petition. To further exacerbate the problem there is anecdotal
evidence that in some counties, an index number cannot be purchased
without the filing of something more than an RJI, e.g. the petition and
notice of petition.
 
These problems, inherent in commencing a special proceeding, have
resulted in a myriad of attempts by attorneys to avoid the logistical
problems. There have been unsuccessful attempts to commence the proceed-
ing by the filing of an unsigned order to show cause. William Court-
White Hill Road Homeowners Association, Inc. v. New York State Commis-
sioner of Mental Retardation and Developmental Disabilities, 161 Misc.2d
552, 613 N.Y.S. 2d 322 (Sup. Ct. Westchester Co. 1994). Even where there
is a presentation of the order to show cause for signature at the time
of filing the unsigned order to show cause with the petition, and a
subsequent signing of the order to show cause and refiling of it with
the petition, commencement will not relate back to the earlier filing
and presentment of order. Fry v. Village of Tarrytown, 89 N.Y.2d 714,
658 N.Y.S.2d 205 (1997). There have also been failures to properly
commence an action where after filing a notice of petition and petition
without a return date, the petitioner filed a new notice of petition and
petition with a return date under the same index number without paying
an additional fee. Vetrone v. Mackin, 216 App.Div.2d 839, 628 N.Y.S.2d
866 (3rd Dept.), cf.Allens Creek v. County of Monroe, __Misc.2d___
(Sup.Ct. Monroe Co. 3/12/98, Index No. 98/767).
 
 
The difficulty stems from the requirement that the notice of petition or
order to show cause be filed with the petition in order to commence the
proceeding, and that the notice of petition or order to show cause have
an appropriate return date. The necessity of the appropriate return date
in the notice of petition or order to show cause is primarily for notice
to the respondent and the cases which found a jurisdictional defect in
its absence date back to before commencement by filing. See, e.g.,
Matter of Civil Service Employees Association v. Albrecht, 180
App.Div.2d 183 (3rd Dept. 1992), leave denied, 80 N.Y.2d 761(1992). The
elimination of the requirement of filing the order to show cause or
notice of petition with the petition in order to commence the proceed-
ing, while still requiring the service of the order to show cause or
notice of petition with the petition in order to give proper notice to
the respondents will cure the logistical problems currently experienced
in the commencement of a special proceeding, without changing the quali-
ty and quantity of notice given to the respondent. For these reasons, it
is proposed to amend CPLR 304 to delete reference to the notice of peti-
tion or order to show cause, and to amend CPLR 306-B to add the require-
ment of service of the notice of petition or order to show cause togeth-
er with the petition.
 
 
LEGISLATIVE HISTORY: A6393-C of 2000
 
 
FISCAL IMPLICATIONS: None
 
 
LOCAL FISCAL IMPLICATIONS: None
 
 
EFFECTIVE DATE: Immediately