Legislation Report
COMMITTEE ON CIVIL PRACTICE AND RULES
REPORT NO. 65 June 18, 1999
S.
5529
By: Senator Volker
Senate Committee: Codes
Effective Date: 1st day of September
next succeeding the date on
which it shall have become a law
AN ACT to amend the civil practice law and rules, in relation to pleadings in special proceedings
LAW AND SECTION REFERRED TO: CPLR 402, 403 and 7804
REPORT PREPARED BY THE COMMITTEE ON CIVIL PRACTICE LAW AND RULES (#29)
THIS BILL IS DISAPPROVED
This bill amends CPLR 402 and 7804(d) to require that memoranda of law accompany petitions and answers in special proceedings, amends CPLR 405(d) to permit parties to cure a defect or omission in the pleadings as well as the record, to subject non-conforming pleadings to a motion under CPLR 405, and deletes CPLR 7804(e), which authorizes the court to order the body or officer respondent to "supply any defect or omission" in an answering affidavit. Lastly, CPLR 402 and 7804(d) are revised to eliminate the right of a petitioner to file a reply which addresses new matter raised in the answer and, in Article 78 proceedings, disputes the accuracy of the proceedings annexed to the answer.
The bill would place an undue and unreasonable burden on the parties to special proceedings and, contrary to its sponsor's intentions, would not reduce litigation time and expense. It should not be approved.
Under current practice, the parties to a special proceeding, may, but are not required, to file a memoranda of law in support of their position. Neither CPLR Article 4, nor CPLR 2214 (dealing with motions) makes any mention of legal memoranda. The Uniform Civil Rule for the Supreme Court and the County Court (22 NYCRR §§202.8) requires, where memoranda are served, that they be served with the underlying motion papers. Because it is the parties own self interest to provide controlling legal authority to courts in cases where there are legal issues, parties often serve legal memoranda.
The proposed amendments would impose the obligation to submit memoranda of law in all special proceedings, without regard to the subject matter or the material issues of the proceeding. Indeed, the amendment would require memoranda of law even in special proceedings as to which there is no opposition or as to which opposition is limited to factual issues. However, save in many instances, memoranda of law would not be warranted in the context of, for example: CPLR 1207 proceedings for consent to compromise claims of infants, incompetents or conservatees; CPLR 2606 proceedings to obtain an order for payment out of moneys deposited into court; proceedings in aid of enforcement of judgments under CPLR 5221; proceedings to determine adverse claims to the property of a judgment debtor under CPLR 5239; Article 75 proceedings (especially where the subject at issue is only a simple application to compel arbitration or to enter judgment upon an arbitration award); proceedings with respect to Article 75A health care arbitrations; Article 76 proceedings to enforce agreements for determination of an issue; or Article 77 proceedings relating to an express trust. There are other proceedings which are governed by CPLR Article 4, such as applications for writs of habeas corpus under Article 70 (including those by parents whose custodial rights have been infringed), landlord-tenant proceedings commenced under RPAPL Article 7, special proceedings under the BCL and NPCL (such as applications under NPCL 511 for a not-for-profit corporation to sell or otherwise dispose of all or substantially all of its assets), and petitions for change of name under Civil Rights Law ' 60. Compelling the submission of legal memoranda in all these kinds of proceedings would vastly increase the burden on the litigants, alter the nature of such proceedings, and dramatically increase the costs of litigating them.
Requiring legal memoranda in all special proceedings would have the added "chilling" effect of discouraging certain litigants from pursuing their legal remedies. This would be most marked in proceedings involving parties without significant resources, including landlord/tenant proceedings challenging the denial of social services benefits and so forth. Additionally, Article 78 proceedings usually have a statute of limitations of four months or, in some instances, thirty days, which often requires that the pleadings be assembled by counsel quickly. Requiring a memorandum of law would increase the burden, and may make the difference between whether the litigant can, within the requisite time constraints, bring the proceeding at all.
The rationale for these amendments, as reported in the bill sponsor's memo, lies in the "abusive" tactics ("litigation by ambush") of Article 78 petitioners who "often" oppose motions to dismiss (made by the Attorney General or an attorney representing a governmental body or officer) with new affidavits, new documents or a new theory of recovery. The proposals are intended to reduce the need to perform additional briefing or submit proof on issues which arise after the service of the respondent's answer. The bill attempts to solve this problem, not only by requiring that all affidavits, written proof and a memorandum of law be served with each pleading, but also by eliminating the petitioner's right to serve a reply which addresses new matter raised in the answer or, in Article 78 proceedings, the right to dispute the accuracy of the transcript of the proceedings annexed to the answer. [CPLR 7804(d) now states: "There shall be a reply to a counterclaim denominated as such and there shall be a reply to new matter in the answer or where the accuracy of proceedings annexed to the answer is disputed." CPLR 402 contains similar language but makes the reply to new matter optional.]
Firstly, faced with a motion to dismiss, a litigant often has the right to seek an amendment of the petition or proffer a new basis for relief. This would be so, not only under the present rules, but also under the proposed rules, which freely permit parties to cure omissions in the pleadings or the record. Secondly, the Committee does not believe that a petitioner's present right to respond to new matter raised in the respondent's answer should be abridged and or that the petitioner should be forced to seek leave from the court to interpose a reply to new matter. If the proposed legislation were enacted, counsel would be required to move for the right to reply where the answer was not restricted to the allegations in the petition. Therefore, it is doubtful whether the amendments would serve to reduce the time and expense of the litigants or the courts.
The bill also suffers from internal inconsistencies. In the proposed amendments, a memorandum of law is a required element of the petition and answer, but not required for a reply or a motion addressed to the pleadings. A pleading is considered "defective" under CPLR 7804(e) if not accompanied by a memorandum of law, but there is no corresponding provision under Article 4 despite the addition of proposed language requiring a memorandum of law in CPLR 402. These inconsistencies tend to suggest the arbitrary nature of the proposal, especially when viewed in light of the sponsor's memo which only speaks to Article 78 proceedings
The Committee does agree that ordinarily, legal memoranda should accompany pleadings in special proceedings where the dispute is relegated to unresolved issues of law. The Committee also agrees that it is poor practice, and unfair, when parties fail to follow the rules which require that memoranda of law, if any, be served with motion papers or petitions in special proceedings. However, this particularly bill is defective, would create unintended effects, and does not appropriately deal with all situations where legal memoranda should be filed.
For the foregoing reasons, this bill is DISAPPROVED.
Person Who Prepared The Report: Steven M. Critelli, Esq.
Chair of the Committee: Steven M. Critelli, Esq.