RETRIEVE BILL
STATE OF NEW YORK
________________________________________________________________________
7885
2003-2004 Regular Sessions
IN ASSEMBLY
April 1, 2003
___________
Introduced by COMMITTEE ON RULES -- (at request of M. of A. A. Cohen,
Weinstein) -- (at request of the Office of Court Administration) --
read once and referred to the Committee on Judiciary
AN ACT to amend the civil practice law and rules, in relation to clari-
fying where papers initiating an action or proceeding or other papers
must be filed
The People of the State of New York, represented in Senate and Assem-
bly, do enact as follows:
1 Section 1. Subdivision (e) of section 105 of the civil practice law
2 and rules, is amended to read as follows:
3 (e) Clerk. The word "clerk," as used in any provision respecting an
4 action or any proceedings therein, means the clerk of the court in which
5 the action is triable. "Clerk of the court" means the person designated
6 as clerk by the court.
7 § 2. Section 304 of the civil practice law and rules, as amended by
8 chapter 473 of the laws of 2001, is amended to read as follows:
9 § 304. Method of commencing action or special proceeding. An action is
10 commenced by filing a summons and complaint or summons with notice. A
11 special proceeding is commenced by filing a petition. Where a court
12 finds that circumstances prevent immediate filing, the signing of an
13 order requiring the subsequent filing at a specific time and date not
14 later than five days thereafter shall commence the action. For purposes
15 of this section, and for purposes of section two hundred three of this
16 chapter and section three hundred six-a of this article, filing shall
17 mean the delivery of the summons with notice, summons and complaint or
18 petition to the [clerk of the court] county clerk in the county in which
19 the action or special proceeding is brought or any other person desig-
20 nated by the clerk of the court for that purpose together with any fee
21 required as specified in rule twenty-one hundred two of this chapter for
22 filing. Notwithstanding any other provision of law, such delivery may
23 be accomplished by facsimile transmission or electronic means, as
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD11835-01-3
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1 defined in subdivision (f) of rule twenty-one hundred three of this
2 chapter, where and in the manner authorized by the chief administrator
3 of the courts by rule. At the time of filing, the filed papers shall be
4 date stamped by the [clerk of the court] county clerk who shall file
5 them and maintain a record of the date of the filing and who shall
6 return forthwith a date stamped copy, together with an index number, to
7 the filing party. Where filing is by facsimile transmission, the [clerk
8 of the court] county clerk need only return a date stamped copy of the
9 first page of the papers initiating the lawsuit, together with the index
10 number. Where filing is by electronic means, the county clerk shall, in
11 accordance with rules promulgated by the chief administrator, forthwith
12 notify the filing party of the index number and the date and time of
13 filing. A confirmation record produced by the filing party's facsimile
14 machine or computer and an affidavit of filing by the filing party,
15 shall be prima facie evidence that the filing party transmitted docu-
16 ments consistent with the date, time and place appearing on the confir-
17 mation record.
18 § 3. Section 304 of the civil practice law and rules, as amended by
19 chapter 606 of the laws of 1996, is amended to read as follows:
20 § 304. Method of commencing action or special proceeding. An action is
21 commenced by filing a summons and complaint or summons with notice. A
22 special proceeding is commenced by filing a notice of petition or order
23 to show cause and a petition. Where a court finds that circumstances
24 prevent immediate filing, the signing of an order requiring the subse-
25 quent filing at a specific time and date not later than five days there-
26 after shall commence the action. For purposes of this section, and for
27 purposes of sections two hundred three and three hundred six-a of this
28 chapter, filing shall mean the delivery of the summons with notice,
29 summons and complaint, notice of petition or order to show cause to the
30 [clerk of the court] county clerk in the county in which the action or
31 special proceeding is brought or any other person designated by the
32 [clerk of the court] county clerk for that purpose together with any fee
33 required as specified in rule twenty-one hundred two of this chapter for
34 filing. At such time of filing, the original and a copy of such papers
35 shall be date stamped by [a court clerk] the county clerk who shall file
36 the original and maintain a record of the date of the filing and who
37 shall immediately return the copy to the party who brought the filing.
38 § 4. Subdivision (a) of rule 305 of the civil practice law and rules,
39 as amended by chapter 39 of the laws of 1996, is amended to read as
40 follows:
41 (a) Summons; supplemental summons. A summons shall specify the basis
42 of the venue designated and if based upon the residence of the plaintiff
43 it shall specify the plaintiff's address, and also shall bear the index
44 number assigned and the date of filing with the [clerk of the court]
45 county clerk. A third-party summons shall also specify the date of
46 filing of the third-party summons with the [clerk of the court] county
47 clerk. The summons in an action arising out of a consumer credit trans-
48 action shall prominently display at the top of the summons the words
49 "consumer credit transaction" and, where a purchaser, borrower or debtor
50 is a defendant, shall specify the county of residence of a defendant, if
51 one resides within the state, and the county where the consumer credit
52 transaction took place, if it is within the state. Where, upon order of
53 the court or by stipulation of all parties or as of right pursuant to
54 section 1003, a new party is joined in the action and the joinder is not
55 made upon the new party's motion, a supplemental summons specifying the
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1 pleading which the new party must answer shall be filed with the [clerk
2 of the court] county clerk and served upon such party.
3 § 5. Section 1007 of the civil practice law and rules, as amended by
4 chapter 216 of the laws of 1992, is amended to read as follows:
5 § 1007. When third-party practice allowed. After the service of his or
6 her answer, a defendant may proceed against a person not a party who is
7 or may be liable to that defendant for all or part of the plaintiff's
8 claim against that defendant, by filing pursuant to section three
9 hundred four of this chapter a third-party summons and complaint with
10 the [clerk of the court] county clerk in the county in which the main
11 action is pending, for which a separate index number shall not be issued
12 but a separate index number fee shall be collected. The third-party
13 summons and complaint and all prior pleadings served in the action shall
14 be served upon such person within one hundred twenty days of the filing.
15 A defendant serving a third-party complaint shall be styled a third-par-
16 ty plaintiff and the person so served shall be styled a third-party
17 defendant. The defendant shall also serve a copy of such third-party
18 complaint upon the plaintiff's attorney simultaneously upon issuance for
19 service of the third-party complaint on the third-party defendant.
20 § 6. This act shall take effect immediately, provided that the amend-
21 ments to section 304 of the civil practice law and rules made by section
22 two of this act shall be subject to the expiration and reversion of such
23 section pursuant to chapter 367 of the laws of 1999, as amended, when
24 upon such date the provisions of section three of this act shall take
25 effect.