Category: CPLR R. 2102

Service of subpoena on attorney

Chicoine v Koch, 2018 NY Slip Op 03825 [2d Dept. 2018]

A court of record generally has the power "to issue a subpoena requiring the attendance of a person found in the state to testify in a cause pending in that court" (Judiciary Law § 2-b[1]). "Where the attendance at trial of a party or person within the party's control can be compelled by a trial subpoena, that subpoena may be served by delivery in accordance with [CPLR 2103(b)] to the party's attorney of record" (CPLR 2303-a). Here, the trial subpoena was properly served upon the defendant's attorneys pursuant to CPLR 2303-a and 2103(b)(2). Contrary to the defendant's contention, because he is a party to this action, over whom personal jurisdiction had been obtained, he is "found in the state" within the meaning of Judiciary Law § 2-b(1) (see Coutts Bank [Switzerland] v Anatian, 275 AD2d 609; cf. Zeeck v Melina Taxi Co., 177 AD2d 692, 694; see generally Matter of Standard Fruit & S. S. Co. v Waterfront Commn. of N.Y. Harbor, 43 NY2d 11, 15).

CPLR R. 2102(c); 22 NYCRR 202.5(d)(1) Bronx Clerks Agree to Follow Rules: Attorneys’ Minds Blown

CPLR R. 2102 Filing of papers
(c) 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.

22 NYCRR 202.5 Papers filed in court

(d)
(1)
[editor’s note: for the life of me I can’t find this thing.  Westlaw hasn’t updated itself yet and I can’t find it anywhere else.

The New York Law Journal (New Rule Specifies When Court Clerks Can Reject Lawsuit Documents) introduced us to a new rule (22 NYCRR 202.5(d)(1) detailing when and how a court clerk can reject a document.  The rule comes out of an Article 78 proceeding by Tilem & Campbell, whose papers were getting bounced by Bronx clerks unnecessarily.  After the Bronx clerks agreed to follow the law, the lawsuit was dismissed with prejudice.  Crazy right, only after the clerks agreed to follow the law…  The new rule, allows the clerks to reject papers for only four reasons: (1) papers do not have an index number; (2) documents commencing or concluding a lawsuit that do not list the names of all parties; (3) filings offered in the wrong county; (4) documents not signed as required by court rules authorizing sanctions for frivolous contentions.

That’s it.  If (1)-(4) isn’t there, the clerk can’t reject it.  Period. 

The rule adds an additional twist, it requires clerks to date-stamp the rejected papers and write the reason for the rejection on the papers.  I don’t think a colored sheet with check-off reasons will suffice, but I’m going on what the NYLJ reported, I haven’t seen the rule myself.

Whether the clerks in other venues will agree to follow the rules remains to be seen.  The New York clerks might need a push.  They did the last time.

And, just because: The NYLJ article references 2102 as a section; it isn’t, it’s a rule, not that it matters.

New York County Clerk told to take it and like it.

Well, just to take it.  He doesn't really have to like it.  But he might.  He just needs to try it.

22 NYCRR § 104.1 Application
(b) The term court records
shall include all documents and records that are part of the court file
of each case and all books, papers, calendars, statistical schedules
and reports and other records pertaining to the management of court
cases.

CPLR § 3218 Judgment by confession
(b) Entry of judgment

CPLR R. 2101 Form of papers
(e) Copies

CPLR R. 2102 Filing of papers

(a)
Except where otherwise prescribed by law or order of court, papers
required to be filed shall be filed with the clerk of the court in
which the action is triable. In an action or proceeding in supreme or
county court and in a proceeding not brought in a court, papers
required to be filed shall be filed with the clerk of the county in
which the proceeding is brought.

(b)
A paper filed in accordance with the rules of the chief administrator
or any local rule or practice established by the court shall be deemed
filed. Where such rules or practice allow for the filing of a paper
other than at the office of the clerk of the court, such paper shall be
transmitted to the clerk of the court.

(c)
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.

Gehring v Goodman, 2009 NY Slip Op 29351 (Supreme Court, New York County, 2009)

This is an article 78 proceeding. The only specific relief that
petitioner seeks is an "order" directing respondent Norman Goodman,
County Clerk of the County of New York (respondent), along with his
agents and representatives, to accept for filing copies of affidavits
that petitioner wants to file pursuant to CPLR 3218 (b). Respondents
have not submitted any papers in opposition.

Petitioner submitted to respondent a copy of an affidavit by a
defendant confessing judgment. According to petitioner, respondent, in
interpreting CPLR 3218 (b), took the position that because the statute
says "the affidavit", that means the original affidavit must be filed,
and thus he would not accept a copy thereof for filing. Petitioner
brought this challenge on August 18, 2009 by order to show cause on an
emergency basis because the three year deadline to file the affidavit
would have expired two days after the proposed order to show cause was
submitted to this court. The court signed the order to show cause and
made it returnable the following day.

CPLR 3218 (b) provides in part:

At any time within three years after the affidavit is executed,
it may be filed with the clerk of the county where the defendant stated
in his affidavit that he resided when it was executed or, if the
defendant was then a non-resident, with the clerk of the county
designated in the affidavit. Thereupon the clerk shall enter a judgment
in the supreme court for the sum confessed. He shall tax costs to the
amount of fifteen dollars, besides disbursements taxable in an action.
The judgment may be docketed and enforced in the same manner and with
the same effect as a judgment in an action in the supreme court.

CPLR 2101 (e) states in pertinent part:
[*2]

Except where otherwise
specifically prescribed, copies, rather than originals, of all papers,
including orders, affidavits and exhibits may be served or filed.

CPLR 2102 (c) provides:

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.

Petitioner presented the affidavit to respondent for the
purpose of filing the paper in order to make it part of the court
record, as defined by 22 NYCRR 104.1 (b), and thus obtain a judgment by
confession pursuant to CPLR 3218 (b). Contrary to respondent's position
as stated by petitioner, CPLR 3218 (b) does not specify that only the
original of the affidavit must be accepted for filing and does not
proscribe the filing of a copy of the affidavit. The purpose of CPLR
3218 (b) is to afford a party the discretion to file the affidavit if
desired. CPLR 2101 (e) allows the filing of copies of affidavits (see Lynch v Betts, 12 Misc 3d 295 [Sup Ct, Yates County 2006]), which filing under CPLR 3218 (b) is not otherwise specifically prescribed.

There is neither a statute nor rule of the chief administrator
of the courts that directs respondent to refuse to accept for filing a
copy of an affidavit under CPLR 3218 (b), nor has respondent shown that
there is any court order that so directs him. Professor Alexander
comments that the purpose of CPLR 2102 (c) is to strip clerks of any
authority to reject papers offered for filing unless the refusal is
directed by law, rule, or court order (Alexander, Supp Practice
Commentaries, McKinney's Cons Laws of NY, Book 7B, Civil Practice Law
and Rules 2102, 2009 Pocket Part, at 283).

Therefore, pursuant to this court's August 20, 2009 decision,
judgment, and order, this court has directed respondent, and his agents
and representatives, to accept for filing copies of the affidavits
pursuant to CPLR 3218 (b). That is all of the specific relief requested
by petitioner. This court is not directing respondent as to how he
should act in fulfilling his duties after he accepts the affidavits for
filing.

The bold is mine.

The county clerk offered no opposition.  Why?  Well, anyone who has tried to file something in any of New York's courts has run across clerks who refuse to accept documents for a variety of reasons.  Some are legitimate and others are directly related to how early the clerk woke up in the morning.  You get the idea.  So why no response?  Because the County Clerk felt that the affidavits should be accepted (or didn't care one way or the other), and probably decided that the easiest way to deal with issue would be to leave it up to the Court.  This way, they wouldn't have to deal with any internal discord on the issue.  If a judge tells them to do it, they have to do it.