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.