Relates to service of papers

1 Co-sponsor

• Ruth Hassell-Thompson

BILL NUMBER:S4578

Title of bill

An act to amend the civil practice law and rules, in relation to the service of papers

This is one in a series of measures being introduced at the request of the Chief Administrative Judge upon the recommendation of her Advisory Committee on Civil Practice.

This measure would repeal the language in CPLR 2103 (f)(1) that requires that papers served by mail upon an attorney in a pending action be mailed within the State of New York. This measure also extends by one day, to six days, the prescribed period of time for response to such papers when they are served by mail from outside the State.

We take particular note of a recent decision by the Appellate Division, First Department, holding service by mail made outside the State insufficient (M. Entertainment, Inc. v. Leydier (2009 NY Slip Op 04169) (May 28,2009) (reversed on other grounds, 2009 NY Slip Op 07671 (October 27,2009)). In response, our Advisory Committee points out that CPLR 2103(b)(6), the rule regarding service upon an attorney via dispatch by overnight delivery service, does not require such dispatch to be made within the State, only that the service regularly accept items for overnight delivery within the State, as follows:

(b) Upon an attorney. Except where otherwise prescribed by law or by order of court, papers to be served upon a party in a pending action shall be served upon the party's attorney. Where the same attorney appears for two or more parties, only one copy need be served upon the attorney. Such service upon an attorney shall be made:

6. by dispatching the paper to the attorney by overnight delivery service at the address designated by the attorney for that purpose or, if none is designated, at the attorney's last known address. Service by overnight delivery service shall be complete upon deposit of the paper enclosed in a properly addressed wrapper into the custody of the overnight delivery service for overnight delivery, prior to the latest time designated by the overnight delivery service for overnight delivery. Where a period of time prescribed by law is measured from the service of a paper and service is by overnight delivery, one business day shall be added to the prescribed period. "Overnight delivery service" means any delivery service which regularly accepts items for overnight delivery to any address in the state; or... (emphasis added).

The Committee's view is that the rule for mailing should correspond with that for a delivery service. The Committee also believes that allowing service by mail from outside the State will remove an artificial barrier to service and encourage litigation to be brought in New York. The act of removing this requirement recognizes the

current realities of multi-state practice and the increased mobility of litigants and litigation.

Finally, this measure also would modify CPLR 2103(b)(5) to allow an "opt in" for fax service whereby a party must affirmatively stipulate to accept service by fax. Currently, merely designating the fax number on an attorney's letterhead is sufficient under the CPLR to signify the attorney's consent to receive service by fax. We believe that this measure will improve upon the existing practice, whereby the statutory language authorizes and has resulted in myriad abuses where a party unfairly seeks tactical advantage over another unsuspecting party in civil proceedings.

This measure would have no fiscal impact on the State. It would take effect on the first day of January next succeeding the date on which it shall have become law.

2011 LEGISLATIVE HISTORY:

None. New proposal.