By Joel Stashenko

New York Law Journal
August 12, 2009 

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.

Use this At A Glance Guide to learn the New York rules of civil procedure (New York Civil Practice Law and Rules and Uniform Rules) applicable to responses to requests for production in the New York Supreme Courts. For more detailed information, including local rules, on responses to requests for production in a specific New York Supreme Court, please see the SmartRules New York Supreme Court Response to Requests for Production Guide for the court where your action is pending.

Timing:

The Request for Production or Inspection of Documents must specify within it the time for compliance, which must be at least twenty (20) days. CPLR 3120(2). A party objecting to all or any part of a Request for Production or Inspection must serve a written response stating the objections within twenty (20) days of service of the Request for Production or Inspection. CPLR 3122(a). No additional time is added to this period if service of the Request for Production was made by personal delivery, facsimile or electronic transmission. CPLR 2103(b)(1), (5) and (7).

If the requests were served by overnight delivery add one (1) day to the response period. CPLR 2103(b)(6).

If the requests were served by mail, add five (5) days to the response period. CPLR 2103(b)(2).

The day discovery requests are served is not included when calculating the time to respond. Response time starts running the day after service. Gen. Const. L. 20.

Saturdays, Sundays, and legal holidays are included in the count if they do not fall on the last day of the period. If the last day of the period is a Saturday, Sunday, or legal holiday, the response period runs until the end of the next non-holiday business day. Gen. Const. L. 25. “Legal holidays” include those specified in Gen. Constr. L. 24, plus any others designated by the federal or state government. Gen. Const. L. 24.

Response to Request for Production Rules:

Any objection to a request for production or inspection must state, with reasonable particularity, the reasons for each objection. If an objection is to a single item or category of items, the item or category must be specified within the objection. CPLR 3122(a).

When a request to produce documents for inspection has been issued, the responding party must issue a notice if any documents appearing to be within the scope of the request are withheld. The notice must specify the legal ground for withholding each document. Unless divulgence would cause the disclosure of privileged information, the notice must also state (1) the general subject matter of each withheld document; (2) the type of document; (3) the date of the document and (4) such other information as would necessary to identify the document for subpoena purposes. CPLR 3122(b).

A request for production or subpoena duces tecum may request production or inspection, copying, testing or photographing of any designated documents or any things which are in the possession, custody or control of the party or person served. Or it may request permission to enter upon designated land or other property in the possession, custody or control of the party or person served for the purpose of inspecting, measuring, surveying, sampling, testing, photographing or recording by motion pictures or otherwise the property or any specifically designated object or operation thereon. CPLR 3120(1).

The notice (or subpoena duces tecum) must specify the time for inspection (not less than twenty (20) days after service of the notice or subpoena) and in the case of inspection the place and shall set forth the items to be produced or made available for inspection or copying. Each item or category of items must be described with reasonable particularity. CPLR 3120(2).

The party issuing a subpoena duces tecum as provided hereinabove shall at the same time serve a copy of the subpoena upon all other parties and, within five days of compliance therewith, in whole or in part, give to each party notice that the items produced in response thereto are available for inspection and copying, specifying the time and place thereof. CPLR 3120(3).

If a party fails to comply with or otherwise respond to a request for production or inspection of documents, the requesting party may file a motion seeking to compel compliance or response. CPLR 3124. See Bronx County Supreme Court SmartRules^TM procedural guide: MOTION TO COMPEL DISCOVERY.

The requesting party may also seek sanctions against any party who refuses to obey an order for disclosure or who willfully fails to disclose information that ought to have been disclosed. CPLR 3126.

In any action subject to e-filing, parties and non-parties producing materials in response to discovery demands may enter into a stipulation authorizing the electronic filing of discovery responses and discovery materials to the degree and upon terms and conditions set forth in the stipulation. In the absence of such a stipulation, no party shall file electronically any such materials except in the form of excerpts, quotations, or selected exhibits from such materials as part of motion papers, pleadings or other filings with the court. Uniform R. 202.05b(j).

Discovery requests and responses are not filed with the court.

The party propounding or responding to discovery requests must serve every party to the action. CPLR 3132.

All documents produced in response to a request for production or inspection must be produced as kept in the ordinary course of business or organized and labeled to correspond to the categories in the request. CPLR 3122(c).

Unless the request directs that original documents be made available for inspection and copying at the place where they are maintained, it is sufficient to deliver complete and accurate copies. CPLR 3122(d).

The reasonable production expenses of a non-party witness shall be defrayed by the party seeking discovery. CPLR 3122(d).

Use this At A Glance Guide to learn the New York rules of civil procedure (New York Civil Practice Law and Rules and Uniform Rules) applicable to requests for production in the New York Supreme Courts. For more detailed information, including local rules, on requests for production in a specific New York Supreme Court, please see the SmartRules New York Supreme Court Requests for Production Guide for the court where your action is pending.

Timing:

A notice to produce documents or make documents available for inspection (directed to a party) or a subpoena duces tecum (directed to a non party) may be issued at any time after commencement of the action. CPLR 3120.

The Request for Production or Inspection of Documents must specify within it the time for compliance, which must be at least twenty (20) days. CPLR 3120(2). A party objecting to all or any part of a Request for Production or Inspection must serve a written response stating the objections within twenty (20) days of service of the Request for Production or Inspection. CPLR 3122(a). No additional time is added to this period if service of the Request for Production was made by personal delivery, facsimile or electronic transmission. CPLR 2103(b)(1), (5) and (7).

If the requests were served by overnight delivery add one (1) day to the response period. CPLR 2103(b)(6).

If the requests were served by mail, add five (5) days to the response period. CPLR 2103(b)(2).

The day discovery requests are served is not included when calculating the time to respond. Response time starts running the day after service. Gen. Const. L. 20.

Saturdays, Sundays, and legal holidays are included in the count if they do not fall on the last day of the period. If the last day of the period is a Saturday, Sunday, or legal holiday, the response period runs until the end of the next non-holiday business day. Gen. Const. L. 25. “Legal holidays” include those specified in Gen. Constr. L. 24, plus any others designated by the federal or state government. Gen. Const. L. 24.

Request for Production Rules:

A request for production or subpoena duces tecum may request production or inspection, copying, testing or photographing of any designated documents or any things which are in the possession, custody or control of the party or person served. Or it may request permission to enter upon designated land or other property in the possession, custody or control of the party or person served for the purpose of inspecting, measuring, surveying, sampling, testing, photographing or recording by motion pictures or otherwise the property or any specifically designated object or operation thereon. CPLR 3120(1).

The notice (or subpoena duces tecum) must specify the time for inspection (not less than twenty (20) days after service of the notice or subpoena) and in the case of inspection the place and shall set forth the items to be produced or made available for inspection or copying. Each item or category of items must be described with reasonable particularity. CPLR 3120(2).

The party issuing a subpoena duces tecum as provided hereinabove shall at the same time serve a copy of the subpoena upon all other parties and, within five days of compliance therewith, in whole or in part, give to each party notice that the items produced in response thereto are available for inspection and copying, specifying the time and place thereof. CPLR 3120(3).

Any objection to a request for production or inspection must state, with reasonable particularity, the reasons for each objection. If an objection is to a single item or category of items, the item or category must be specified within the objection. CPLR 3122(a).

When a request to produce documents for inspection has been issued, the responding party must issue a notice if any documents appearing to be within the scope of the request are withheld. The notice must specify the legal ground for withholding each document. Unless divulgence would cause the disclosure of privileged information, the notice must also state (1) the general subject matter of each withheld document; (2) the type of document; (3) the date of the document and (4) such other information as would necessary to identify the document for subpoena purposes. CPLR 3122(b).

If a party fails to comply with or otherwise respond to a request for production or inspection of documents, the requesting party may file a motion seeking to compel compliance or response. CPLR 3124.

The requesting party may also seek sanctions against any party who refuses to obey an order for disclosure or who willfully fails to disclose information that ought to have been disclosed. CPLR 3126.

Use this At A Glance Guide to learn the New York rules of civil procedure (New York Civil Practice Law and Rules and Uniform Rules) applicable to amended answers in the New York Supreme Courts. For more detailed information, including local rules, on amended answers in a specific New York Supreme Court, please see the SmartRules New York Supreme Court Amended Answer Guide for the court where your action is pending.

Timing:

Each party is permitted to amend its pleading once without leave of court, provided such amendment is made within twenty (20) days after service, or any time before the response period expires, or within twenty (20) days after a response has been served. CPLR 3025(a).

Any party may amend his or her pleading at any time with leave of court or by stipulation of all the parties. CPLR 3025(b).

Amended Answer Rules:

Each party is permitted to amend its pleading once without leave of court, provided such amendment is made within twenty days after service, or any time before the response period expires, or within twenty days after a response has been served. CPLR 3025(a).

Any party may amend his or her pleading at any time with leave of court or by stipulation of all the parties. Leave of court shall be liberally granted upon such terms as may be just. CPLR 3025(b).

The court may permit amendment of the pleadings before or after judgment, on such terms as may be just, in order to conform them to the evidence in the case. CPLR 3025(c).

Use this At A Glance Guide to learn the New York rules of civil procedure (New York Civil Practice Law and Rules and Uniform Rules) applicable to bringing a motion for leave to amend in the New York Supreme Courts. For more detailed information, including local rules, on bringing a motion for leave to amend in a specific New York Supreme Court, please see the SmartRules New York Supreme Court Motion for Leave to Amend Guide for the court where your action is pending.

Timing:

Each party is permitted to amend its pleading once without leave of court, provided such amendment is made within twenty days after service, or any time before the response period expires, or within twenty days after a response has been served. CPLR 3025(a).

A party may amend his pleading, or supplement it by setting forth additional or subsequent transactions or occurrences, at any time by leave of court or by stipulation of all parties. Leave shall be freely given upon such terms as may be just including the granting of costs and continuances. CPLR 3025(b).

Motion for Leave to Amend Rules:

The court may permit amendment of the pleadings before or after judgment, on such terms as may be just, in order to conform them to the evidence in the case. CPLR 3025(c).

Except where otherwise prescribed by law or order of the court, there shall be an answer or reply to an amended or supplemental pleading if an answer or reply is required to the pleading being amended or supplemented. Service of such an answer or reply shall be made within twenty days after service of the amended or supplemental pleading to which it responds. CPLR 3025(d).

Use this At A Glance Guide to learn the New York rules of civil procedure (New York Civil Practice Law and Rules and Uniform Rules) applicable to bringing a motion to file under seal in the New York Supreme Courts. For more detailed information, including local rules, on bringing a motion to file under seal in a specific New York Supreme Court, please see the SmartRules New York Supreme Court Motion to File Under Seal Guide for the court where your action is pending.

Timing:

There are no statutory restrictions regarding the timing for motions to file documents under seal.

Motion to File Under Seal Rules:

The authority to seal documents filed with the court is strictly construed in favor of disclosure. The Uniform Rules of the New York State Trial Courts provide that a court shall not enter an order sealing court records in whole or in part, in any action, except upon a written finding of good cause specifying the grounds. Uniform R. 216.01(a).

In determining whether good cause has been shown the court must consider the interests of the public as well as the interests of the parties. Uniform R. 216.01(a).

For purposes of the uniform rules on sealing of documents the term “court records” includes all documents and records of any nature filed with the clerk in connection with an action. Uniform R. 216.01(b). Documents exchanged between the parties but not filed with the clerk are not addressed by the seal but may be made subject to a protective order. Uniform R. 216.01(a); CPLR 3103(a).

Proposed legislation, Assembly Bill 8316, the same as Senate Bill 4256, would amend the civil practice law and rules by adding a new section 3119, the Uniform Interstate Depositions and Discovery Act.  To stay up to date on discovery practice in the New York Supreme Courts, consult the SmartRules Guides for the discovery practice in the court where your action is pending. 

Regarding the need for the Uniform Depositions and Discovery Act, the official New York Legislative website states that: 

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

In 2008, on the advice of our Advisory Committee, we recommended amending the CPLR to adopt the Uniform Interstate Depositions and Discovery
Act (” Act”) as promulgated by the National Conference of Commissioners of Uniform State Laws in 2007. The Act sets forth an efficient and inexpensive procedure for, litigants to depose out-of-state individuals and for the production of discoverable materials that may be located outside the trial state. In 2009, we again endorse New York’s adoption of the Act. This year, however, we amend our proposal by (1) adding a subparagraph (b)(4) to CPLR section 3119 to ensure that the law is clear regarding the ability of an attorney, licensed to practice in this state and retained by a party to an out-of-state-proceeding, to issue a
subpoena under this Act and (2) adding a reference to CPLR Article 23 in proposed new section 3.119(b)(2) and a reference to CPLR Article 31 in proposed new section 3119(d) to make it explicit that these articles apply to this Act.

Under the Act, litigants can submit to the county clerk of the county, located in the state where discoverable materials or individuals are sought, a subpoena issued under the authority of a court in the trial state. Once the discovery state clerk receives the out-of-state subpoena, the clerk will issue a subpoena for service upon the person or entity to which the original subpoena is directed. The terms of the subpoena issued in the discovery state must incorporate the same terms as the original subpoena and contain the contact information for all counsel of record and any party not represented by counsel.

The Act requires minimal judicial oversight since there is no need to present the matter to a judge in the discovery state before a subpoena is issued. The procedure set forth is inexpensive because it eliminates the need to obtain a commission or local counsel in the discovery state  or letters rogatory, or to file a miscellaneous action during the discovery phase of litigation.

Under the Act, discovery authorized by the subpoena must comply with the rules of state in which it occurs. Furthermore, motions to quash, enforce, or modify a subpoena issued pursuant to the Act shall be brought in and governed by the rules in the discovery state. The county clerk in the discovery state acts in a purely ministerial role, but in a manner that is sufficient to invoke jurisdiction of the discovery state over the deponent. The Act recognizes that the discovery state has a significant interest in protecting its residents who become non-party witnesses in an action pending in another jurisdiction from unreasonable or burdensome discovery requests.

In particular, this measure adds a new section 3119 to the CPLR, and appropriately references sections of the CPLR where particularly applicable. Notably, under subdivision (a) the term “subpoena” includes a subpoena duces tecum, and does not include a subpoena for inspection of a person. We recognize that medical examinations in a personal injury case, for example, are separately controlled by existing discovery rules. Since the plaintiff is already subject to the jurisdiction of the  trial state, a subpoena for his or her examination should never be necessary. Further, the term “court of record” is intended to exclude
non-court of record proceedings to avoid expansion to arbitration proceedings. Also, the term “submit” to a county clerk is intended to include delivering to or filing. Submitting a subpoena to the clerk in the discovery state, so that a subpoena is then issued in the name of the discovery state, is the necessary act that invokes the jurisdiction of the discovery state, which in turn makes the newly issued subpoena both enforceable and challengeable in the discovery state.

This measure will not change or repeal the law in those states that still require a commission or letters rogatory to take a deposition in a foreign jurisdiction (in contrast with CPLR 3108). The Act does, however, repeal the law in those discovery states that still require a commission or letter rogatory from a trial state before a deposition can be taken in those states. Finally, this measure modifies existing section 3102(e), which currently governs compelling a witness found in
New York to give testimony for use in a foreign jurisdiction, since the Act supersedes that section with respect to actions pending in another state, the District of Columbia, Puerto Rico, the U.S. Virgin Islands and certain other territories subject to U.S. jurisdiction.

This measure, which would have no fiscal impact on the State, would take effect on the first day of January next succeeding the date on which it shall have become a law and apply to requests for discovery in cases pending on or after such effective date.”

Use this “At A Glance Guide” to learn the statewide rules of civil procedure applicable to bringing a motion for sanctions (non-discovery) in New York Supreme Court. For more detailed information, including local rules, see the New York Supreme Court SmartRules Guides: Motion for Sanctions (Non-Discovery), Opposition to Motion for Sanctions (Non-Discovery) and Reply in Support of Motion for Sanctions.

Motion for Sanctions Rules–Uniform Rule 130-1.1

Unless otherwise provided by law for a specific type of claim, the court has full discretion to award reasonably incurred expenses and attorneys fees, and/or financial sanctions, against any party or attorney in any civil action or proceeding for engaging in frivolous conduct. Uniform R. 130-1.1(a).  (These provisions do not apply to frivolous claims in personal injury, wrongful death or property damage actions covered by CPLR 8303-a.)

Conduct is deemed to be frivolous if it is completely without merit in law and cannot be supported by a logical extension, modification or reversal of existing law. Uniform R. 130-1.1(c)(1). Frivolous conduct also includes action taken primarily to delay the litigation or harass or injure another, or the assertion of any material or factual statement known to be false. Uniform R. 130-1.1(c)(2) and (3).

A party or attorney’s signature on any pleading or paper served on another party or filed or submitted to the court constitutes a certification by the signatory that (1) the presentation of the paper or any contentions contained within it are not frivolous, to the best of the signatory’s knowledge, information and belief, formed after a reasonable inquiry and (2) if the paper is an initiating pleading, (i) the matter was not obtained through illegal conduct or, if it was, the attorney and other persons responsible for the illegal conduct are not participating in the matter or sharing in any fee earned therefrom and (ii) the matter was not obtained in violation of 22 NYCRR 1200.41-a. Uniform R. 130-1.1-a(b) (amended eff 2/1/07).

The court may award the amount it deems appropriate but in no event will award more than $10,000 for a single event or occurrence of frivolous conduct. Uniform R. 130-1.2.

The court may award expenses and/or attorneys fees payable to the opposing party, and/or financial sanctions payable to the state fund for client protection, against any attorney who without good cause fails to appear for a court proceeding. Uniform R. 130-2.1(a).

The court will take all of the surrounding circumstances, including but not limited to the adequacy of notice to the attorney, the attorney’s explanation, and any efforts to notify the court or send substitute counsel into account in determining whether the failure to appear is sanctionable. Uniform R. 130-2.1(b).

Financial sanctions under this provision are capped at $2500.00 per occurrence. Uniform R. 130-2.2.

Motion for Sanctions Rules–CPLR 8303-a

The Court will award costs to the prevailing party if it finds that a party made a frivolous claim, cross-claim or counterclaim alleging:

(1) a personal injury;

(2) injury to property; or

(3) wrongful death;

or if it finds that the person who committed a crime made a frivolous claim against the victim of the crime. CPLR 8303-a(a).

In order to find an action frivolous the court must determine that:

(1) it was either commenced in bad faith to delay, harass or injure another party, or

(2) that the party or attorney deliberately and in bad faith continued the claim past the point when it could be believed to have reasonable basis. CPLR 8303-a(c).

The costs should be assessed against the individual or entity the court finds responsible under the circumstances for the frivolous action. Costs might be assessed against the party, the attorney, or both. CPLR 8303-a(b).

The cost award is in addition to any other judgment awarded the successful party. CPLR 8303-a(b).

Costs awarded are capped at ten thousand dollars. CPLR 8303-a(a).

The authorities cited in this At A Glance Guide are current as of the publication date. For authorities updated in real time, please see the SmartRules Guide for the litigation document you are drafting.

 Use this At A Glance Guide to learn the rules of civil procedure (New York’s Civil Practice Law and Rules “CPLR”) applicable to cross-claims in New York Supreme Court.  For a more detailed treatment, including local rules, please see the New York Supreme Court SmartRules Guide:  Cross-claim. 

 Timing

Cross-claims must be included in the defendant’s answer. CPLR 3011. Accordingly, the cross-claim should, under normal circumstances, be asserted within the same time allowed for the answer, typically twenty (20) days. See New York SmartRules^TM procedural guide: ANSWER for more about answer timing requirements.

Cross-claim Rules

In New York, unlike the federal courts, cross-claims may be asserted by defendants against co-defendants (and third parties) for any cause of action. CPLR 3019(b). The cause of action need not be related to the underlying complaint. The cross-claim may include a claim that the cross-defendant is liable to the cross-claimant for all or any part of the claim against cross-claimant in the underlying complaint. CPLR 3019(b).

The CPLR requires that a cross-claim include a demand for an answer. CPLR 3011.

A cross-claim may join as many claims as the defendant/cross-claimant has against an adverse party. CPLR 601. The court may, for reasons of relevancy or to avoid undue burden, sever claims or order separate trials. CPLR 603.

A cross-claim must include a demand for the relief requested. CPLR 3017(a); CPLR 3019.

Pleadings in actions for personal injury or wrongful death are subject to certain additional requirements. CPLR 3017(c).

In cases where monetary relief is sought, a demand for a specific amount is common. Case law suggests that this is not essential as a matter of pleading. In medical malpractice actions and actions against municipal corporations, case law suggests that a specific dollar amount should not be included in the demand for money damages.

The authorities cited in this At A Glance Guide are current as of the publication date. For authorities updated in real time, please see the SmartRules Guide for the litigation document you are drafting.

Use this guide to learn the rules of civil procedure applicable to a counterclaim in the New York Supreme Court.  For a more detailed treatment, including local rules, please see the SmartRules New York Supreme Court Guide:  Counterclaim.

Timing: 

A counterclaim is initiated upon service of the pleading containing it. CPLR 203(d).  Counterclaims are subject to the same statute of limitations provisions found in Article 2 of the Civil Practice Law and Rules.  Notwithstanding the expiration of time under the statute of limitations, if a counterclaim was not time-barred at the time the original complaint was filed, it may be asserted during the pendency of that action. CPLR 203(d).  A counterclaim that was time-barred at the time the original complaint was filed may nonetheless be asserted during the pendency of that action if the counterclaim arises out of the same facts and circumstances alleged in the complaint. Such counterclaims can be pursued only to the extent of the demand within the complaint. CPLR 203(d).

A counterclaim presented in an amended pleading is treated as though presented in the original pleading for statute of limitations purposes. CPLR 203(f).

A counterclaim can be filed by any defendant or person a defendant represents against any plaintiff or person a plaintiff represents, as well as additional persons alleged to be liable. CPLR 3019(a). A counterclaim may assert any claims the counterclaimant has against the plaintiff, regardless of whether those claims are related to the subject matter of plaintiff’s action. CPLR 3019(b). Where a counterclaim raises claims against a person not yet party to the action, he or she must be served with a summons and answer containing the counterclaim, whereupon he or she becomes a party to the action. CPLR 3019(d).

The time in which a counterclaim may be asserted is computed from the time when the underlying facts and circumstances became known or reasonably should have become known. CPLR 203(g). This provision does not apply to claims governed by UCC Article 2 or to medical and dental malpractice claims. CPLR 203(g); CPLR 214-a.

A reply to a counterclaim must be served within twenty (20) days of service of the pleading containing the counterclaim. CPLR 3011.

Counterclaim Rules: 

Caselaw establishes that any counterclaim may be asserted in a responsive pleading or a separate action. Unlike in federal practice, there are no compulsory counterclaims.

A counterclaim may be asserted by a third party defendant. CPLR 1008.

In an action originally brought by a trustee as plaintiff, counterclaims may only be asserted against the party beneficially interested in the plaintiff’s action, and only to the extent of the claims asserted in the plaintiff’s action. CPLR 3019(c).

 Other Rules:

All of the pleading rules applicable to complaints also apply to counterclaims.  For a full treatment, please see the New York Supreme Court SmartRules Guide: Complaint.