Most of you don't know, but there is a recent addition to 22 NYCRR 202.5, namely, (d)(1).
(d)(1) In accordance with CPLR 2102(c), a County Clerk and a chief clerk of the Supreme Court or County Court, as appropriate, shall refuse to accept for filing papers filed in actions and proceedings only under the following circumstances or as otherwise provided by statute, Chief Administrator's rule or order of the court:
(i) The paper does not have an index number;
(ii) The summons, complaint, petition, or judgment sought to be filed with the County Clerk contains an “et al“ or otherwise does not contain a full caption;
(iii) The paper sought to be filed with the County Clerk is filed in the wrong court; or
(iv) The paper is not signed in accordance with section 130-1.1-a of the Rules of the Chief Administrator.
The County Clerk shall require the payment of any applicable statutory fees, or an order of the Court waiving payment of such fees, before accepting a paper for filing.
There are only four reasons that a clerk and reject papers. Four. Well, there are others, but they require the Chief Administrator or a court order. You'd think CPLR R. 2102(c) would be enough. Rule 2102(c), for those that don't know and are curious, tells us, "A clerk shall not refuse to accept for filing any paper presented for that purpose except where specifically directed to do so by statute or rules promulgated by the chief administrator of the courts, or order of the court."
Why do we have this new rule? Good question. Article 78. There was one over in the Bronx and an earlier one in New York. I'm not sure why we don't see more of these. Enough of them, and you'd probably see less filings rejected for bizarre reasons. Or at the very least, less clerks playing judge.
2 thoughts on “God save the clerks”
Oddly enough, I cited this rule yesterday when a clerk rejected a Sur-Reply, saying I don’t have a right to put one in.
I sent it right back to the clerk, with a cc to the judge, that whether it is accepted or not is one of judicial discretion, not one of clerical discretion.
It will take at least a hundred Article 78’s to put a stop to the “filing judges.” The rules don’t matter unless they are enforced. The biggest problem is that there is no carrot or stick available. Clerks, as a general rule, do not back down or scare easy. And sweet talk will only get you so far. Although being nice usually works better than the opposite.