S6817   VOLKER   Same as A 11567  Rules (Lentol)  
Judiciary # 155
ON FILE: 04/11/02 Civil Practice Law and Rules
TITLE....Authorizes the court to convert a motion into a special proceeding, or vice-versa
 

VOLKER
Amd S103, CPLR
Authorizes the court to convert a motion into a special proceeding, or vice-versa upon such terms as may be just, including the payment of fees and costs.
Judiciary

 
                STATE OF NEW YORK
       ________________________________________________________________________
 
                                         6817
 
                    IN SENATE
 
                                     April 9, 2002
                                      ___________
 
       Introduced by Sen. VOLKER -- (at request of the Judiciary) -- 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 the
         conversion of a motion into a special proceeding
 
         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 103 of the civil practice law
    2  and rules is amended to read as follows:
    3    (c) Improper form. If a  court  has  obtained  jurisdiction  over  the
    4  parties,  a  civil  judicial  proceeding  shall  not be dismissed solely
    5  because it is not brought in the proper form, but the court  shall  make
    6  whatever  order  is  required  for its proper prosecution.  If the court
    7  finds it appropriate in the interests  of  justice,  it  may  convert  a
    8  motion  into a special proceeding, or vice-versa, upon such terms as may
    9  be just, including the payment of fees and costs.
   10    § 2. This act shall take effect on  the  first  day  of  January  next
   11  succeeding the date on which it shall have become a law.
 
 
 
 
 
 
        EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                             [ ] is old law to be omitted.
                                                                  LBD15097-01-2

 
BILL NUMBER: S6817
 
SPONSOR: VOLKER

 
TITLE OF BILL:  An act to amend the civil practice law and rules, in
relation to the conversion of a motion into a special proceeding
 
This is one in a series of measures being introduced at the request of
the Chief Administrative Judge upon the recommendation of his Advisory
Committee on Civil Practice.
 
This measure would amend CPLR 103(c) to clarify the ability of a court
to convert a motion into a special proceeding.
 
From the outset, CPLR 103(c) has permitted the conversion of a special
proceeding into an action and vice versa. It has even inspired caselaw
that extended the conversion power to embrace a motion as well. See,
e.g., Empire Mutual Ins. Co. v. Palladino, 54 A.D.2d 863 (1st Dept.
1976). However, the Court of Appeal's recent decision in Solkav v. Besi-
corp Group Inc., 91 N.Y.2d 482 (1 998), appears to indicate that the
conversion of a motion is not permissible. In that case, the Court of
Appeals held that a separate special proceeding must be brought to
confirm an arbitration award, finding that it was not permissible to
confirm an award by motion as part of an earlier special proceeding. A
dismissal need not have been the result in Solkav had the court merely
been empowered to convert the motion into a new special proceeding.
 
The inability to effect such a conversion in a proper case can produce
injustice. Two amendments to CPLR 7502(a) were necessary to undo the
damage caused by Solkav. The first amendment, chapter 226 of the Laws of
2000, stipulated, among its other provisions, that all subsequent
proceedings to confirm or deny an arbitration award must be made in the
special proceeding or action where the first application was made.
 
The second amendment, recommended by the Committee and passed by the
Legislature in 2001 (L. 2001, c. 567), was a revival statute that
revived the time for making an application to confirm (or contest) an
arbitration award in instances in which the relief had previously been
applied for in a timely manner, but was denied solely on the ground of
utilizing the wrong form (i.e., a motion rather than a special proceed-
ing). It dealt with those litigants who were not covered by the 2000
amendment - - those proponents of arbitration awards that were confirmed
by motion instead of commencing a special proceeding in cases ending
before the Solkav decision was issued on May 12, 1998.
 
The instant measure is narrowly tailored, leaving conversion to the
discretion of the court in contrast with the "shall" instruction appli-
cable to conversions between actions and special proceedings under CPLR
103(c). It also empowers the court to impose such terms as it feels are
just, including the payment of fees and costs.
 
This measure, which would have no fiscal impact on the State, would take
effect on January first next succeeding enactment.
 
 
LEGISLATIVE HISTORY:  None. New proposal.