STATE OF NEW YORK
       ________________________________________________________________________
 
           S. 6658                                                 A. 10554
 
                SENATE - ASSEMBLY
 
                                    March 25, 2002
                                      ___________
 
       IN  SENATE -- Introduced by Sen. SKELOS -- read twice and ordered print-
         ed, and when printed to be committed to the Committee on Codes
 
       IN ASSEMBLY -- 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 the
         method of computing periods of  limitation  in  actions  commenced  by
         filing
 
         The  People of the State of New York, represented in Senate and Assem-
       bly, do enact as follows:
 
    1    Section 1. Subdivision (c) of section 203 of the  civil  practice  law
    2  and rules, as amended by chapter 216 of the laws of 1992 and paragraph 1
    3  as  amended  by  chapter  606 of the laws of 1996, is amended to read as
    4  follows:
    5    (c) Claim in complaint where action commenced by filing. In an  action
    6  which  is  commenced  by  filing,  a  claim asserted in the complaint is
    7  interposed against the defendant or a co-defendant  united  in  interest
    8  with such defendant when[:
    9    1. the summons and complaint or summons with notice is filed; or
   10    2. a court signs an order after finding that circumstances prevent the
   11  immediate  filing  of  the  summons and complaint or summons with notice
   12  with the clerk of the court. The court shall specify in  the  order  the
   13  time  and  date, no later than five days after the signing of the order,
   14  by which such filing is to occur] the action is commenced.
   15    § 2. This act shall take effect immediately and  shall  be  deemed  to
   16  have been in full force and effect on and after November 21, 2001.
 
 
 
        EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                             [ ] is old law to be omitted.
                                                                  LBD15439-01-2

 
BILL NUMBER: S6658
 
SPONSOR: SKELOS

 
TITLE OF BILL:  An act to amend the civil practice law and rules, in
relation to the method of computing periods of limitation in actions
commenced by filing
 
 
PURPOSE:  This bill is a Chapter Amendment to Chapter 473 of the Law
of 2001.
 
 
SUMMARY OF PROVISIONS:  This bill amends Section 203(c) of the Civil
Practice Law and Rules.
 
 
STATEMENT OF SUPPORT:  The proposed amendment is intended to supple-
ment legislation that was drafted by the CPLR Committee and adopted by
the Executive Committee of the NYSBA, and which subsequently became law
last year. See Chapter 473 of the Laws of 2001 (amending CPLR 304 and
306-b).  Through an oversight, the CPLR Committee failed to provide a
‘housekeeping" amendment to CPLR 203(c) to take into account the modi-
fied procedure relating to the commencement of special proceedings.
 
Under CPLR 203(a), "the time within which an action must be commenced...
shall be computed from the time the cause of action accrued to the time
the claim is interposed." Subdivision (c) determines the time of such
interposition when the action is "commenced by filing." Currently, the
CPLR 203(c) refers to that time when "the summons and complaint or
summons with notice is filed"  (subparagraph 1).  Also, in rare cases,
the time is fixed where the court signs an order after finding circum-
stances that prevents the immediate filing of the summons and complaint
or summons with notice; in the current statute when this occurs the
filing date may not be later than five days after the signing of the
order (subparagraph 2).
 
CPLR 304 primarily states the procedure for the commencement of an
action by filing, using, as part of the rule, the same language current-
ly found in CPLR 203(c). Last year, at the instance of the Standing
Committee on Civil Practice Law and Rules, CPLR 304 and 306-b were
amended to bring uniformity to the procedure for the commencement of
special proceedings; the amendment, in part, eliminated the need to file
the notice of petition with the petition.
 
The "notice of petition" in a special proceeding is the complement of a
"summons" in a civil action and, as a matter of construction, whenever a
"summons" is required in an action, a "notice of petition" is construed
to be required in a special proceeding. A recent article in the New York
Law Journal drew the bar's attention to the fact that the recent amend-
ment to CPLR 304-306-b overlooked the ramifications on the present
construction of CPLR 203(c), which, in the author's opinion, also should
have been amended to take into account the change in procedure. See
attached NYLJ Article. Our Committee agrees that a change should be made
in CPLR 203(c).
 
The proposed amendment defines the time of interposition as the time
when "the action is commenced." Since CPLR 304 presently defines the
procedure necessary to commence the action, there is little need to
reiterate that procedure in CPLR 203(c). (In fact, the statutory
language presently seen in subparagraphs 1 and 2 of together for CPLR
203(c) is tracked in CPLR 304.) When an "action is commenced," the claim
 
is interposed for statute of limitations purposes; if it is interposed
within the applicable limitations period, the action is timely.
 
Thus, the proposed amendment avoids unnecessarily, redefining the time
when the action is commenced, for that is the role of CPLR 304.  It also
removes the confusion that might result if the current language were
retained. Lastly, it avoids the necessity of further amending CPLR
203(c) if some future amendment were to change the commencement by
filing procedure.
 
As noted above, the OCA Advisory Committee on the Civil Practice Law and
Rules has been advised of the proposed amendment and has informally
indicated its support of the amendment.
 
 
LEGISLATIVE HISTORY:
 
 
FISCAL IMPLICATIONS:  None.
 
 
EFFECTIVE DATE:  Immediately.