S T A T E O F N E W Y O R K
________________________________________________________________________
6393--C
1999-2000 Regular Sessions
I N A S S E M B L Y
March 2, 1999
___________
Introduced by M. of A. WEPRIN -- read once and referred to the Committee
on Judiciary -- reported and referred to the Committee on Rules --
Rules Committee discharged, bill amended, ordered reprinted as amended
and recommitted to the Committee on Rules -- recommitted to the
Committee on Judiciary in accordance with Assembly Rule 3, sec. 2 --
committee discharged, bill amended, ordered reprinted as amended and
recommitted to said committee -- again reported from said committee
with amendments, ordered reprinted as amended and recommitted to said
committee
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 S 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
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
{ } is old law to be omitted.
LBD08637-09-0
A. 6393--C 2
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 who shall file them and maintain
5 a record of the date of the filing and who shall return forthwith a date
6 stamped copy, together with an index number, to the filing party. Where
7 filing is by facsimile transmission, the clerk of the court need only
8 return {dated} A DATE stamped copy of the first page of the papers
9 initiating the lawsuit, together with the index number. Where filing is
10 by electronic means, the clerk shall, in accordance with rules promul-
11 gated by the chief administrator, forthwith notify the filing party of
12 the index number and the date and time of filing. A confirmation record
13 produced by the filing party`s facsimile machine or computer and an
14 affidavit of filing by the filing party, shall be prima facie evidence
15 that the filing party transmitted documents consistent with the date,
16 time and place appearing on the confirmation record.
17 S 2. Section 304 of the civil practice law and rules, as amended by
18 chapter 606 of the laws of 1996, is amended to read as follows:
19 S 304. Method of commencing action or special proceeding. An action
20 is commenced by filing a summons and complaint or summons with notice.
21 A special proceeding is commenced by filing a {notice of petition or
22 order to show cause and a} petition. Where a court finds that circum-
23 stances prevent immediate filing, the signing of an order requiring the
24 subsequent filing at a specific time and date not later than five days
25 thereafter shall commence the action. For purposes of this section, and
26 for purposes of sections two hundred three and three hundred six-a of
27 this chapter, filing shall mean the delivery of the summons with notice,
28 summons and complaint{, notice of} OR petition {or order to show cause}
29 to the clerk of the court in the county in which the action or special
30 proceeding is brought or any other person designated by the clerk of the
31 court for that purpose together with any fee required as specified in
32 rule twenty-one hundred two of this chapter for filing. At such time of
33 filing, the original and a copy of such papers shall be date stamped by
34 a court clerk who shall file the original and maintain a record of the
35 date of the filing and who shall immediately return the copy to the
36 party who brought the filing.
37 S 3. Subdivision (a) of section 306-a of the civil practice law and
38 rules, as amended by chapter 606 of the laws of 1996, is amended to read
39 as follows:
40 (a) Upon filing the summons and complaint {or}, summons with notice OR
41 PETITION in an action OR PROCEEDING commenced in supreme or county
42 court, an index number shall be assigned and the fee required by subdi-
43 vision (a) of section eight thousand eighteen of this chapter shall be
44 paid. Upon the filing of a summons and complaint against a person not
45 already a party, as permitted under section one thousand seven or rule
46 one thousand eleven of this chapter, the fee required by subdivision (a)
47 of section eight thousand eighteen of this chapter shall be paid, but a
48 separate index number shall not be assigned.
49 S 4. Section 306-b of the civil practice law and rules, as added by
50 chapter 476 of the laws of 1997, is amended to read as follows:
51 S 306-b. Service of the summons and complaint, summons with notice,
52 {or of the} third-party summons and complaint, OR PETITION WITH A NOTICE
53 OF PETITION OR ORDER TO SHOW CAUSE. Service of the summons and
54 complaint, summons with notice, {or of the} third-party summons and
55 complaint, OR PETITION WITH A NOTICE OF PETITION OR ORDER TO SHOW CAUSE
56 shall be made within one hundred twenty days after {their} THE filing OF
A. 6393--C 3
1 THE SUMMONS AND COMPLAINT, SUMMONS WITH NOTICE, THIRD-PARTY SUMMONS AND
2 COMPLAINT, OR PETITION, provided that in an action or proceeding, EXCEPT
3 A PROCEEDING COMMENCED UNDER THE ELECTION LAW, where the applicable
4 statute of limitations is four months or less, service shall be made not
5 later than fifteen days after the date on which the applicable statute
6 of limitations expires. If service is not made upon a defendant within
7 the time provided in this section, the court, upon motion, shall dismiss
8 the action without prejudice as to that defendant, or upon good cause
9 shown or in the interest of justice, extend the time for service.
10 S 5. This act shall take effect immediately and shall apply to special
11 proceedings commenced on or after such date; provided, however, that the
12 amendments to section 304 of the civil practice law and rules, made by
13 section one of this act, shall not affect the repeal of certain
14 provisions of such section, pursuant to chapter 367 of the laws of 1999,
15 and shall be deemed repealed therewith, whereupon section two of this
16 act shall take effect.
.SO DOC A 6393C *END* BTXT 1999
Bill A06393
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