STATE OF NEW YORK
       ________________________________________________________________________
 
                                          77
 
                              2001-2002 Regular Sessions
 
                    IN SENATE
 
                                      (Prefiled)
 
                                    January 3, 2001
                                      ___________
 
       Introduced  by  Sen.  SKELOS -- read twice and ordered printed, and when
         printed to be committed to the Committee on Codes
 
       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
 
        EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                             [ ] is old law to be omitted.
                                                                  LBD02895-01-1

       S. 77                               2
 
    1  filing is by facsimile transmission, the clerk of the  court  need  only
    2  return  [dated]  a  date  stamped  copy  of the first page of the papers
    3  initiating the lawsuit, together with the index number. Where filing  is
    4  by  electronic  means, the clerk shall, in accordance with rules promul-
    5  gated by the chief administrator, forthwith notify the filing  party  of
    6  the index number and the date and time of filing.  A confirmation record
    7  produced  by  the  filing  party's  facsimile machine or computer and an
    8  affidavit of filing by the filing party, shall be prima  facie  evidence
    9  that  the  filing  party transmitted documents consistent with the date,
   10  time and place appearing on the confirmation record.
   11    § 2. Section 304 of the civil practice law and rules,  as  amended  by
   12  chapter 606 of the laws of 1996, is amended to read as follows:
   13    §  304.  Method of commencing action or special proceeding.  An action
   14  is commenced by filing a summons and complaint or summons  with  notice.
   15  A  special  proceeding  is  commenced by filing a [notice of petition or
   16  order to show cause and a] petition.  Where a court finds  that  circum-
   17  stances  prevent immediate filing, the signing of an order requiring the
   18  subsequent filing at a specific time and date not later than  five  days
   19  thereafter shall commence the action.  For purposes of this section, and
   20  for  purposes  of  sections two hundred three and three hundred six-a of
   21  this chapter, filing shall mean the delivery of the summons with notice,
   22  summons and complaint[, notice of] or petition [or order to show  cause]
   23  to  the  clerk of the court in the county in which the action or special
   24  proceeding is brought or any other person designated by the clerk of the
   25  court for that purpose together with any fee required  as  specified  in
   26  rule twenty-one hundred two of this chapter for filing.  At such time of
   27  filing,  the original and a copy of such papers shall be date stamped by
   28  a court clerk who shall file the original and maintain a record  of  the
   29  date  of  the  filing  and  who shall immediately return the copy to the
   30  party who brought the filing.
   31    § 3. Subdivision (a) of section 306-a of the civil  practice  law  and
   32  rules, as amended by chapter 606 of the laws of 1996, is amended to read
   33  as follows:
   34    (a) Upon filing the summons and complaint [or], summons with notice or
   35  petition  in  an  action  or  proceeding  commenced in supreme or county
   36  court, an index number shall be assigned and the fee required by  subdi-
   37  vision  (a)  of section eight thousand eighteen of this chapter shall be
   38  paid. Upon the filing of a summons and complaint against  a  person  not
   39  already  a  party, as permitted under section one thousand seven or rule
   40  one thousand eleven of this chapter, the fee required by subdivision (a)
   41  of section eight thousand eighteen of this chapter shall be paid, but  a
   42  separate index number shall not be assigned.
   43    §  4.  Section  306-b of the civil practice law and rules, as added by
   44  chapter 476 of the laws of 1997, is amended to read as follows:
   45    § 306-b. Service of the summons and complaint,  summons  with  notice,
   46  [or of the] third-party summons and complaint, or petition with a notice
   47  of  petition  or  order  to  show  cause.    Service  of the summons and
   48  complaint, summons with notice, [or  of  the]  third-party  summons  and
   49  complaint,  or petition with a notice of petition or order to show cause
   50  shall be made within one hundred twenty days after [their] the filing of
   51  the summons and complaint, summons with notice, third-party summons  and
   52  complaint, or petition, provided that in an action or proceeding, except
   53  a  proceeding  commenced  under  the  election law, where the applicable
   54  statute of limitations is four months or less, service shall be made not
   55  later than fifteen days after the date on which the  applicable  statute
   56  of  limitations  expires. If service is not made upon a defendant within

       S. 77                               3
 
    1  the time provided in this section, the court, upon motion, shall dismiss
    2  the action without prejudice as to that defendant, or  upon  good  cause
    3  shown or in the interest of justice, extend the time for service.
    4    § 5. This act shall take effect immediately and shall apply to special
    5  proceedings commenced on or after such date; provided, however, that the
    6  amendments  to  section 304 of the civil practice law and rules, made by
    7  section one of  this  act,  shall  not  affect  the  repeal  of  certain
    8  provisions of such section, pursuant to chapter 367 of the laws of 1999,
    9  and  shall  be  deemed repealed therewith, whereupon section two of this
   10  act shall take effect.

 
BILL NUMBER: S77
 
SPONSOR: SKELOS

 
TITLE OF BILL:  An act to amend the civil practice law and rules, in
relation to commencement of special proceedings
 
 
PURPOSE:  The proposed amendment is intended to cure logistical prob-
lems encountered by attorneys under the present statute in commencing
special proceedings.
 
 
SUMMARY OF PROVISIONS: Sections 1 and 2 amend 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.
 
Sections 3 and 4 amend 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.  (Proceedings under the election law are
excluded.)
 
 
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 (3d 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 appropriate 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 petitioner is nearing the end of the limitations peri-
od, commencing the proceeding in an expedited manner will be essential,
and in some counties, awaiting the assignment of a judge may take too
long. If the petition 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
proceeding by the filing of an unsigned order to show cause. William
Court-White Hill Road Homeowners Association, 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). 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 peti-
tion, and a subsequent signing of the order to show cause and refining
of it with the petition, commencement will not relate back to the earli-
er 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 (3d 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 (3d 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:
 
2000 - S.3069-C - Passed Senate
 
 
FISCAL IMPLICATIONS: None
 
EFFECTIVE DATE: Immediately