CPLR Measures Passed in 2008
Chapter
575 signed 9/25/08 (effective 1/1/09). CPLR 5205 and 5222 are amended,
concerning restraint, execution, income execution and levy procedures on bank
acconts. According to the sponsor's memorandum, the bill "would create a legal
procedure by which judgment debtors are informed of which funds are exempt and
provided an opportunity to assert that the funds in their account are exempt
from seizure before the account is completely restrained or executed against.
However, creditors will be able to restrain funds above the threshold levels and
access nonexempt funds after the procedure has run its course."
Chapter
472 (effective 8/5/08) Amends CPLR 3408 and sectrions of the Real Property
Actions and Proceedings Law, Bank Law, General Obligations Law, Penal Law, Real
Property Law and Civil Procedure Law. Requires lender and mortgage loan
servicers to give borrowers with high-cost home loans or higher-priced home
loans ninety days notice before certain actions are taken; establishes all home
loans shall be subject to certain standards and limitations; creates the crimes
of residential mortgage fraud in the first, second, third, fourth and fifth
degrees; relates to distressed property consulting contracts.
Chapter
441 (effective 8/5/08). Amends CPLR
8012, providing for the payment of poundage to the sheriff upon execution of a
judgment or settlement.
Chapter
388, signed 7/21/08 (effective 1/1/09). Amends CPLR 3001 and Insurance Law
Section 3420 and 2601. Provideds for declaratory judgment action against an
insurer directly where a claim is brought for personal injury or wrongful death
against another.
Chapter
288, signed 7/7/08 (effecive immediately). Amends CPLR 8021, by authorizing any county to increase
the fee imposed by the county clerk for recording, entering, indexing and
endorsing a certificate on any instrument.
Chapter
223 signed 7/7/08 (effective 30 days after signing). Amends Sections 87 & 89 of the Pubic Officers Law and
CPLR 8019, by providing that a person may request a copy of a public record in a
form other than paper; the cost of reproducing a record may include the hourly
salary paid to agency employees to reproduce the record, the cost of the storage
device or media provided to the person making the request and the cost of
engaging an outside organization to produce a copy of the record; requires
public records to be provided in the form and format requested by the person
asking for a copy; prohibits disclosure of names and addresses of public
employees for solicitation purposes; requires disclosure of all records relating
to any right, title or interest in real property; eliminates grounds for denying
a request for a copy of public record on the basis that providing such copy is
voluminous or burdensome; authorizes the contracting with an outside service for
the provision of copies of public records; provides that any programming
necessary to retrieve a public record shall not be deemed to be the creation or
preparation of a new record.
Chapter
156 signed 7/7/08 (effectively immedately). Amends CPLR 205 by
requiring, where an action is dismissed as a result of a failure to prosecute,
that the court set forth on the record the specific conduct constituting the
neglect; the legislation further provides that dismissal is warranted only where
the conduct specified demonstrates a general pattern of delay in proceeding with
the litigation.
Chapter
94 signed 5/27/08 (effectively immediately). Amends CPLR 5241,
requiring that, in actions to enforce a money judgment, applications to assert a
mistake of fact in supreme court be made by order to show cause or motion on
notice to the creditor in the same action in which the order or judgment sought
to be enforced was entered.
Chapter
66 signed
4/28/08 (effectve immediately). The "Libel Terrorism Law" amends CPLR 302 and
5304, by prohbiting enforcement of unfair foreign defamation judgments in New
York and give New Yorkers and New York based publishers and media outlets the
ability to obtain a declaration in a New York court to that effect.
Jury Selection Reform:
Athough the Jury Selection Bill passed both Houses, A11715/S8661, the Governor vetoed the measure on
9/25/08. The bill proposed to amend CPLR 4106 on jury selection procedure, and
created a new CPLR section 4107-a and new Judiciary Law section 212(2), giving
the Chief Administrative Judge authority to make rules concerning voir dire.
The sponsor's memorandum professes that the change will provide more clarity
with respect to jury selection and grant a limited right of review to anyone
agrieved by a trial court's deliberate failure to follow the jury selection
procedure. In response, the Governor's Veto Message No. 153 states in part:
"The stated purpose of this bill is to provide a
mechanism to ensure that all civil jury selection is conducted pursuant to the
Uniform Rules for Trial Courts. The problem with the bill is that the proposed
mechanisms contravene well-settled legal principles governing review of
trial court determinations and would create logistical burdens that could
unnecessarily delay trials and seriously inconvenience citizens performing
their civic duties by appearing as jurors to hear civil cases. Because of
these concerns, a number of bar associations and other groups strenuously oppose
this bill."
CPLR Measures Passed in 2007
Chapter 70, signed 6/4/07 (effective 7/4/07), amends GOL
15-108, in relation to the impact of litigation settlements upon the remaining
parties to the action. The Supporting Memo states: "This measure would amend
section 15-108 of the General Obligations Law ("G.O.L.") to exclude certain
releases from its scope, most importantly including those instances in which the
plaintiff voluntarily discontinues his or her suit against a particular
defendant without receiving any monetary consideration for that release. This
would encourage plaintiffs to voluntarily release those defendants who appear
not to bear any liability, which would in turn reduce the litigation costs of
those ostensibly blameless defendants. The amendment would also make many
summary judgment motions unnecessary, and would thus reduce the burden on the
court system."
Chapter 125, signed 7/3/07 (effective 1/1/08), amends CPLR
105, 304, 306-b and 2102, to address the issues of filing raised by the Court of
Appeals decision in Mendon Ponds Neighborhood Association v. Dehm, 98 NY 2d
745. The law is intended to clear up ambiguities concerning the filing of
papers in a civil action.
Chapter 185, signed 7/3/07 (applicable to all motions served
on or after such date), amends CPLR 2214 and 2215 to improve the practice
surrounding motions and cross-motions by extending the time periods applicable
to each and providing rules designed to insure the timely delivery of
papers.
Chapter 192, signed 7/3/07 (effective 1/1/08), amends the
CPLR by adding a new section 2303-a. The Supporting Memo states: "This measure
aims to reduce the need for formal service of trial subpoenas on a party or
person within the party's control. There is no reason why a subpoena must be
served upon a party, thereby creating an unnecessary expense for the party
serving the subpoena and unnecessary annoyance and embarrassment for the party
receiving the subpoena. This provision would allow for service of a subpoena in
the same manner as all other papers which are served by one attorney on another
pursuant to CPLR. 2103".
Chapter 458, signed 8/1/07 (effective 8/1/07), amends the real
property actions and proceedings law [by adding a new sec. 1320] and the civil
practice law and rules [CPLR3215(g)(3)(iii)], in relation to providing
additional notice to mortgagors that a foreclosure action has been
commenced.
Chapter 470, signed 8/1/07 (effective 1/1/08), amends SCPA
2211(2), to allow for disclosure as provided under the Civil Practice Law and
Rules (CPLR) with respect to document discovery in a voluntary accounting
proceeding in Surrogate's Court either before or after objections to an account
have been filed.
Chapter 529, signed 8/15/07 (effective 8/15/07). This measure, which would amend CPLR 2001, is offered in response to
a series of recent decisions by the Court of Appeals, which
have held that defects in the commencement of actions or the payment of an index
number fee will result in outright dismissal of an action so long as a timely
objection is made to such defects. See Matter of Harris v Niagara
Falls Bd. of Education, 6 NY3d 155 (2006). Accordingly, this measure would amend the CPLR to give the
court discretion to correct or ignore mistakes or omissions occurring at the
commencement of an action that do not prejudice the opposing party, in the same
manner and under the same standards that is already does with regard to all
other non-prejudicial procedural events.
Chapter 606, signed 8/15/07 (effective 8/15/07), amends Ct. of
Cl. Act Sec. 11, to provides that a claim and notice of intention to file a
claim in the court of claims need not include the total sum claimed in personal
injury, medical, dental and podiatric malpractice, and wrongful death
actions. This legislation should be interpreted
as disapproving the result reached
in Kolnacki v. State of New
York,__NY 3rd (2007) in
which the claim
was dismissed for a failure to include a dollar amount for the total sum claimed
as required by Section 11 (b) of the Court of Claims Act.
CPLR Measures Passed in 2006
Chapter 3, signed 6/23/06. Amends S30.10, CP L; add S213-c,
amd S215, CPLR. Eliminates and extends the statute of limitations for the
prosecution of and for a civil claim or cause of action relating to rape in the
first degree, criminal sexual act in the first degree, aggravated sexual abuse
in the first degree and course of sexual conduct against a child in the first
degree. Sponsor's Memo.
Chapter 31, signed 5/02/06. Ties the
sheriff's mileage fees to the federal RIS mileage reimbursement rate. Sponsor's Memo.
Chapter 39, signed 5/31/06. Extends
effective date for commencing phenoxy herbicides personal injury actions to
6/16/08. Sponsor's Memo.
Chapter 257, signed 7/26/06 (effective 8/25/06). Amends CPLR 5224 and provides that a subpoena duces tecum shall
subject a person or other entity or business served to full disclosure whether
the materials sought are in the possession, custody or control of the subpoenaed
person, business or other entity within or without the state. Sponsor's Memo.
Chapter 335, signed 7/26/06 (effective on the 90th day
thereafter). Amends CPLR 5241 & 5252. Provides that the penalties assessed
against employers and income payors for the failure to comply with income
execution for child support and for discrimination against an employee involved
in a child support proceeding shall be paid to the creditor and shall be
enforced in the same manner as a civil judgment. Sponsor's Memo.
Chapter
452, signed 8/16/06 (effective 1/1/2007). Amend R5224, CPLR. Establishes
certain guidelines for judgment creditors for serving information subpoenas;
provides a certification that if not completed, deems the subpoena null and
void. Sponsor's Memo.
Chapter 453, signed 8/16/06. Amends CPLR 3215 and provides
that in applications for judgment by default where the state of New York is the
plaintiff, allows for the submission of proof by affidavit by an attorney from
the office of the attorney general. Sponsor's Memo.
Chapter 582, signed 8/16/06.
Amends CPLR 4317 and provides for furnishing of transcript of hearing before a
referee in a reference to determine to all parties involved upon payment of
appropriate fees. Sponsor's Memo.
CPLR Measures Passed in
2005
Chapter 3 (Part A, 64 and 65), effective 12/21/05. In CPLR
1104(e), adds attorney certification in family court cases; and in CPLR 5521(b),
eliminates the necessity of a motion for preferences for appeals in certain
family court cases and certain cases involving guardianship or custody of
children.
Chapter 56 (Part D, 18), effective 4/1/05 until 9/1/07. In
CPLR 1104(d) and (f), extends expiration of amendments' provisions relating to
inmates.
Chapter 387, signed 8/09/05. Permits successive notices
of pendency and changes action "to foreclose a mortgage" to "forclosure action"
as defined in CPLR 6516(b). See Sponsor's Memo.
Chapter 394(12), effective 8/16/05. Adds CPLR 1602(13),
providing an exemption for certain persons convicted of violating new laws
relating to the manufacture of methamphetamine.
Chapter 443, signed 8/09/05. Establishes that small claims
judgments are res judicata, but shall not have collateral estoppel or issue
preclusion effect. See Sponsor’s Memo.
Chapter 452, signed 8/09/05. Extends a
commencement by filing system, similar but not identical to the Supreme Court
system, to the New York City Civil Court, the District Courts and City Courts
outside of New York. See Sponsor’s
Memo.
Chapter 457(6), effective 8/9/05 and expires 8/9/10. Repeals
section 8023 (replaced by amendment to Judiciary Law Sec. 212(2)(j) authorizing
payment of court fees, including administrative fee, by credit card).
Chapter 460, signed 8/09/05. Extends to the New York Court of
Claims the rule that any objection or defense based upon failure to comply with
verification requirements is waived unless raised with particularity by motion
to dismiss or in the responsive pleading. See Sponsor Memo.
Chapter 504, signed 8/18/05. Extends
electronic filing project, adding Erie, Niagara, Broome,
Essex, Onondaga, and Sullivan counties. Extends program to September 1,
2009. See Sponsor's Memo.
Chapter 616, signed 8/30/05. Eliminates requirement contained in CPLR 3211(e) that a plaintiff facing
a motion to dismiss must request leave to replead and submit evidence in
opposing papers. Conforms CPLR 3211(e)
to Rovello v. Orofino, 40 N.Y.2d 633 (1976). See Sponsor's Memo.
Chapter 623, signed 8/30/05. Increases homestead exemption to
$50,000. See Sponsor’s Memo.
Chapter 703, signed 10/04/05.
