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Sponsor's memo
BILL NUMBER:S7573
Title of bill
An act to amend the civil practice law and rules, in relation to service by publication
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 amend the publication statute in CPLR 316(a), which requires service of a summons by publication in the form of publication most likely to give notice to the defendant. Our Advisory Committee has been advised that publication in a matrimonial action in one newspaper in the English language, which now is the rule in New York, does not provide notice to a defendant in many matrimonial cases in the State - particularly in those counties having a large volume of uncontested divorces - or in those cases where more consideration should be given to language issues.
In short, existing publication law with respect to matrimonial cases limits courts unnecessarily when ordering service by publication. Therefore, our Committee recommends elimination of the restriction for publication in one newspaper in the English language. This would allow courts to determine that publication in a non-English newspaper is most likely to give notice to the person to be served and order publication accordingly. Moreover, it is to be preferred to an amendment adding a second notice in a non-English paper, which would increase costs for the plaintiff.
In preparing this measure, our Committee also considered the 30-day rule under CPLR 316(c) and concluded that there is a problem in all cases, not just matrimonial matters, with ensuring first publication within the 30 days from the date the order is granted. Thus, we recommend a change in law to mandate first publication in all matters within 30 days after the order requiring publication is entered. Current law requires first publication of the summons within 30 days after the order is granted. This modest amendment should remedy the existing problem.
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.
2010 Legislative History: OCA 2010-56
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