N.Y. Law Expands Practice of E-Filing

By Joel Stashenko

The New York Legislature has set the stage for an expansion of the use of computers and facsimile machines to file notice of service and papers in civil actions throughout New York.

The bill, given final approval last week by the Senate, would allow electronic filing in most civil cases in Supreme Court, Surrogate’s Court, the Court of Claims and New York City Civil Court, with the parties’ consent and the approval of the state’s chief administrative judge.

The current law limits voluntary civil e-filing to certain case types in designated counties and courts.

The new legislation, A8956/S6003, also allows Chief Administrative Judge Ann Pfau to set up rules for mandatory electronic filing for some commercial cases in Manhattan Supreme Court as well as for tort cases in Westchester County and in an upstate county yet to be designated.

E-filing has never been mandatory in state courts in New York.

The legislation is designed to build on limited e-filing pilot programs that have been run in some civil courts over the past decade. Among the courts where e-filing is now allowed, with the parties’ consent, are Supreme courts in all five New York City boroughs, plus Westchester, Nassau and Suffolk counties.

It is also allowed voluntarily in Surrogate’s Courts in five counties, including Queens and Suffolk.

The bill, approved 51-5 by the Senate last Thursday, also passed in the Assembly in June. Legislative sponsors said Governor David A. Paterson is expected to sign the measure into law.

The bill was introduced at the behest of the Unified Court System and was one of the judiciary’s top legislative priorities in 2009.

The latest temporary extender of the e-filing program, approved in 2005, is set to expire on Sept. 1, 2009.

The legislation approved last week makes e-filing permanent in courts to be designated by the chief administrative judge and eliminates the need for lawmakers to extend the program in the future.

Court administrators said the acceptance of mandatory e-filing for both civil and criminal courts in the federal court system in New York since the mid-2000s, plus the increased use of electronic filing in state courts where it has been allowed, have convinced them that the time is right for an expansion of the state system.

“What has happened over time is it has been gaining momentum,” said Ronald P. Younkins, chief of operations for the Unified Court System. “In part, it reflects the fact that the bar is getting more used to doing business this way because that is the way the federal courts do business. Over time, everybody, the entire bar, is becoming more comfortable with working online and not just in the legal world. People are more comfortable on how to do it and with the security issues.”

Younkins said there is no timetable at the Unified Court System for adoption of mandatory e-filing, which he said the state court system is currently not equipped to handle. He said the system would work “very carefully” and “very deliberately” to implement the new legislation, especially the mandatory e-filing requirement in the three counties.

“As we proceed to implement this legislation, we will do so carefully, consulting with county clerks, local bar associations, judges and the affected courts,” Judge Pfau said in a statement. “By authorizing a new program that allows us to require e-filing in three counties for specific types of cases, the legislation makes significant progress toward taking full advantage of technology to make the justice system more efficient and cost-effective.”

The legislation was sponsored by Codes Committee Chairman Eric Schneiderman, D-Manhattan. The bill’s chief sponsor in the Assembly was Judiciary Committee Chairwoman Helene Weinstein, D-Brooklyn.

COURT RECORDS

One of the senators who voted against the measure, Michael F. Nozzolio, R-Seneca Falls, said county clerks in his central New York district have told him they are worried the court system is moving toward a mandated e-filing system they are not equipped to handle.

“This is not a bad proposal from its external merits,” Nozzolio said in an interview. “But for its potential expense, for the cost to localities, small counties would be required to acquire additional equipment. It is an unfunded mandate. It is something that should be on the back-burner for now.”

Four other upstate Republicans also voted against the bill.

When e-filing was first authorized in 1999 in state courts, Younkins said one case was filed electronically all year. By 2008, that number had climbed to more than 30,000.

About 1.8 million civil cases are filed each year in state courts.

“There is plenty of room for progress,” Younkins said.

Still, the New York State Courts Electronic Filing System has grown from 300 registered attorneys in 2002 to more than 10,000 as of the end of April, with almost 360,000 documents having been e-filed in the system, according to records.

A New York State Bar Association task force recommended expanded use of e-filing in 2007.

Younkins said enhanced e-filing should be more environmentally sound by reducing the use of paper, saving filing space in courts and cutting the cost of transporting the papers to courts.

Thomas F. Gleason, a partner in Gleason, Dunn, Walsh & O’Shea in Albany who has written about e-filing issues for the New York Law Journal, said electronic federal filing procedures in New York have shown that state court administrators are right to point to e-filing as the “way of the future.”

Gleason said e-filing would be of particular value to small practitioners trying cases in state court districts that are “bigger, more sprawling and more diverse in terms of the kinds of claims that are out there” than even lawyers arguing in federal courts.

Under the bill, the refusal of a party to consent to e-filing would not prevent the other party from filing electronically. The legislation would also allow attorneys and pro se litigants to opt-out of any e-filing requirement if they are not able to comply with it.

Current law authorizes e-filings for commercial, tort and tax certiorari cases in Supreme courts in Albany, Bronx, Essex, Kings, Livingston, Monroe, Nassau, Niagara, New York, Onondaga, Queens, Richmond, Suffolk, Sullivan and Westchester counties as well as for all Supreme Court cases in Broome and Erie counties. Surrogate’s courts in Chautauqua, Erie, Monroe, Queens and Suffolk are also covered by the current statute.

The new legislation would take geographic designations out of the statute and allow the chief administrative judge to authorize e-filing, by consent, anywhere in civil courts in the state.

The legislation stipulates, however, that mandatory e-filing cannot apply to matrimonial actions, election law proceedings, Article 78 proceedings or proceedings brought under the Mental Hygiene Law.

The chief administrative judge must report to the Legislature, the governor and the chief judge by April 1, 2012, on the state’s experience with a permanent e-filing program and with the experiment with mandatory filing.

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