NY-CVP Civil Practice Law & Rules NY

Short title; application. This chapter shall be known as the

civil practice law and rules, and may be cited as "CPLR". The civil

practice law and rules shall govern the procedure in civil judicial

proceedings in all courts of the state and before all judges, except

where the procedure is regulated by inconsistent statute. The civil

practice law and rules shall succeed the civil practice act and rules of

civil practice and shall be deemed substituted therefor throughout the

statutes and rules of the state. Reference to a provision in the civil

practice law and rules may, except when such provision is being enacted

or amended, be made without indicating whether it is a rule or section.

Amendment, rescission or adoption of rules. The civil practice

rules are herein designated "rule". Any rule in this chapter may be

amended, or rescinded, or additional civil practice rules may be

adopted, not inconsistent with the constitution, by act of the

legislature. No rule so amended, rescinded or adopted shall abridge or

enlarge the substantive rights of any party.

Form of civil judicial proceedings. (a) One form of action.

There is only one form of civil action. The distinctions between actions

at law and suits in equity, and the forms of those actions and suits,

have been abolished.

(b) Action or special proceeding. All civil judicial proceedings shall

be prosecuted in the form of an action, except where prosecution in the

form of a special proceeding is authorized. Except where otherwise

prescribed by law, procedure in special proceedings shall be the same as

in actions, and the provisions of the civil practice law and rules

applicable to actions shall be applicable to special proceedings.

(c) Improper form. If a court has obtained jurisdiction over the

parties, a civil judicial proceeding shall not be dismissed solely

because it is not brought in the proper form, but the court shall make

whatever order is required for its proper prosecution. If the court

finds it appropriate in the interests of justice, it may convert a

motion into a special proceeding, or vice-versa, upon such terms as may

be just, including the payment of fees and costs.

Construction. The civil practice law and rules shall be

liberally construed to secure the just, speedy and inexpensive

determination of every civil judicial proceeding.

Definitions. (a) Applicability. Unless the context requires

otherwise, the definitions in this section apply to the civil practice

law and rules.

(b) Action and special proceeding. The word "action" includes a

special proceeding; the words "plaintiff" and "defendant" include the

petitioner and the respondent, respectively, in a special proceeding;

and the words "summons" and "complaint" include the notice of petition

and the petition, respectively, in a special proceeding.

(c) Attorney. The word "attorney" includes a party prosecuting or

defending an action in person.

(d) Civil judicial proceeding. A "civil judicial proceeding" is a

prosecution, other than a criminal action, of an independent application

to a court for relief.

(e) Clerk. The word "clerk," as used in any provision respecting an

action or any proceedings therein, means the clerk of the court in which

the action is triable. In supreme and county court, the word "clerk"

shall mean the clerk of the county.

(f) Consumer credit transaction. The term "consumer credit

transaction" means a transaction wherein credit is extended to an

individual and the money, property, or service which is the subject of

the transaction is primarily for personal, family or household purposes.

(g) Court and judge. The word "court," as used in any provision

concerning a motion, order or special proceeding, includes a judge

thereof authorized to act out of court with respect to such motion,

order or special proceeding.

(h) Domestic and foreign corporation. A "domestic corporation" is a

corporation created by or under the laws of the state, or a corporation

located in the state and created by or under the laws of the United

States, or a corporation created by or pursuant to the laws in force in

the colony of New York before April nineteenth, seventeen hundred

seventy-five. Every other corporation is a "foreign corporation."

(h-1) Finance charge. The term "finance charge" means the cost of

consumer credit as a dollar amount, includes any charge payable directly

or indirectly by the consumer and imposed directly or indirectly by the

creditor as an incident to or a condition of the extension of credit,

and does not include any charge of a type payable in a comparable cash

transaction.

(i) Garnishee. A "garnishee" is a person who owes a debt to a judgment

debtor, or a person other than the judgment debtor who has property in

his possession or custody in which a judgment debtor has an interest.

(j) Infant, infancy. The word "infant", as used in this chapter, means

a person who has not attained the age of eighteen years. The word

"infancy" means the state of being an infant.

(k) Judgment. The word "judgment" means a final or interlocutory

judgment.

(l) Judgment creditor. A "judgment creditor" is a person in whose

favor a money judgment is entered or a person who becomes entitled to

enforce it.

(m) Judgment debtor. A "judgment debtor" is a person, other than a

defendant not summoned in the action, against whom a money judgment is

entered.

(n) Judicial hearing officer. A "judicial hearing officer" means a

person so designated pursuant to provisions of article twenty-two of the

judiciary law.

(o) Law. The word "law" means any statute or any civil practice rule.

(p) Matrimonial action. The term "matrimonial action" includes actions

for a separation, for an annulment or dissolution of a marriage, for a

divorce, for a declaration of the nullity of a void marriage, for a

declaration of the validity or nullity of a foreign judgment of divorce

and for a declaration of the validity or nullity of a marriage.

(q) Money judgment. A "money judgment" is a judgment, or any part

thereof, for a sum of money or directing the payment of a sum of money.

(q-1) Original creditor. The term "original creditor" means the entity

that owned a consumer credit account at the date of default giving rise

to a cause of action.

(r) Place where action triable. The place where an action is "triable"

means the place where the action is pending; or, if no action has been

commenced, any proper place of trial or any proper place to commence the

action; or, after entry of judgment, the place where the judgment was

entered.

(s) Real property. "Real property" includes chattels real.

* (s-1) The sheriff. The term "the sheriff", as used in this chapter,

means the county sheriff as defined in subdivision (a) of section

thirteen of article thirteen of the constitution and in counties in the

city of New York, the city sheriff as defined in section fifteen hundred

twenty-six of chapter fifty-eight of the New York city charter. For the

purposes of article fifty-two of this chapter relating to the

enforcement of money judgments and for the purposes of any provision of

law which in effect applies any such provision of article fifty-two of

this chapter, such term shall also mean any "city marshal" as defined in

article sixteen of the New York city civil court act, except that city

marshals shall have no power to levy upon or sell real property and city

marshals shall have no power of arrest.

* NB Repealed June 30, 2028

(t) Type size requirement. Whenever a requirement relating to size of

type is stated in point size, the type size requirement shall be deemed

met if the x-height of the type is a minimum of forty-five percent of

the specified point size. Each point shall be measured as .351

millimeter. The x-height size shall be measured as it appears on the

page. The x-height is the height of the lower case letters, exclusive of

ascenders or descenders.

(u) Verified pleading. A "verified pleading" may be utilized as an

affidavit whenever the latter is required.

Civil and criminal prosecutions not merged. Where the violation

of a right admits of both a civil and criminal prosecution, the one is

not merged in the other.

Appendix of official forms. The state administrator shall have

the power to adopt, amend and rescind an appendix of forms. Forms

adopted pursuant to this section shall be sufficient under the civil

practice law and rules and shall illustrate the simplicity and brevity

of statement which the civil practice law and rules contemplate.

Application of article. An action, including one brought in the

name or for the benefit of the state, must be commenced within the time

specified in this article unless a different time is prescribed by law

or a shorter time is prescribed by written agreement. No court shall

extend the time limited by law for the commencement of an action.

Cause of action accruing without the state. An action based

upon a cause of action accruing without the state cannot be commenced

after the expiration of the time limited by the laws of either the state

or the place without the state where the cause of action accrued, except

that where the cause of action accrued in favor of a resident of the

state the time limited by the laws of the state shall apply.

Method of computing periods of limitation generally. (a)

Accrual of cause of action and interposition of claim. The time within

which an action must be commenced, except as otherwise expressly

prescribed, shall be computed from the time the cause of action accrued

to the time the claim is interposed.

(b) Claim in complaint where action commenced by service. In an action

which is commenced by service, a claim asserted in the complaint is

interposed against the defendant or a co-defendant united in interest

with such defendant when:

1. the summons is served upon the defendant; or

2. first publication of the summons against the defendant is made

pursuant to an order, and publication is subsequently completed; or

3. an order for a provisional remedy other than attachment is granted,

if, within thirty days thereafter, the summons is served upon the

defendant or first publication of the summons against the defendant is

made pursuant to an order and publication is subsequently completed, or,

where the defendant dies within thirty days after the order is granted

and before the summons is served upon the defendant or publication is

completed, if the summons is served upon the defendant's executor or

administrator within sixty days after letters are issued; for this

purpose seizure of a chattel in an action to recover a chattel is a

provisional remedy; or

4. an order of attachment is granted, if the summons is served in

accordance with the provisions of section 6213; or

5. the summons is delivered to the sheriff of that county outside the

city of New York or is filed with the clerk of that county within the

city of New York in which the defendant resides, is employed or is doing

business, or if none of the foregoing is known to the plaintiff after

reasonable inquiry, then of the county in which the defendant is known

to have last resided, been employed or been engaged in business, or in

which the cause of action arose; or if the defendant is a corporation,

of a county in which it may be served or in which the cause of action

arose; provided that:

(i) the summons is served upon the defendant within sixty days after

the period of limitation would have expired but for this provision; or

(ii) first publication of the summons against the defendant is made

pursuant to an order within sixty days after the period of limitation

would have expired but for this provision and publication is

subsequently completed; or

(iii) the summons is served upon the defendant's executor or

administrator within sixty days after letters are issued, where the

defendant dies within sixty days after the period of limitation would

have expired but for this provision and before the summons is served

upon the defendant or publication is completed.

6. in an action to be commenced in a court not of record, the summons

is delivered for service upon the defendant to any officer authorized to

serve it in a county, city or town in which the defendant resides, is

employed or is doing business, or if none of the foregoing be known to

the plaintiff after reasonable inquiry, then in a county, city or town

in which defendant is known to have last resided, been employed or been

engaged in business, or, where the defendant is a corporation, in a

county, city or town in which it may be served, if the summons is served

upon the defendant within sixty days after the period of limitation

would have expired but for this provision; or, where the defendant dies

within sixty days after the period of limitation would have expired but

for this provision and before the summons is served upon the defendant,

if the summons is served upon his executor or administrator within sixty

days after letters are issued.

(c) Claim in complaint where action commenced by filing. In an action

which is commenced by filing, a claim asserted in the complaint is

interposed against the defendant or a co-defendant united in interest

with such defendant when the action is commenced.

(d) Defense or counterclaim. A defense or counterclaim is interposed

when a pleading containing it is served. A defense or counterclaim is

not barred if it was not barred at the time the claims asserted in the

complaint were interposed, except that if the defense or counterclaim

arose from the transactions, occurrences, or series of transactions or

occurrences, upon which a claim asserted in the complaint depends, it is

not barred to the extent of the demand in the complaint notwithstanding

that it was barred at the time the claims asserted in the complaint were

interposed.

(e) Effect upon defense or counterclaim of termination of action

because of death or by dismissal or voluntary discontinuance. Where a

defendant has served an answer containing a defense or counterclaim and

the action is terminated because of the plaintiff's death or by

dismissal or voluntary discontinuance, the time which elapsed between

the commencement and termination of the action is not a part of the time

within which an action must be commenced to recover upon the claim in

the defense or counterclaim or the time within which the defense or

counterclaim may be interposed in another action brought by the

plaintiff or his successor in interest.

(f) Claim in amended pleading. A claim asserted in an amended pleading

is deemed to have been interposed at the time the claims in the original

pleading were interposed, unless the original pleading does not give

notice of the transactions, occurrences, or series of transactions or

occurrences, to be proved pursuant to the amended pleading.

(g) 1. Time computed from actual or imputed discovery of facts. Except

as provided in article two of the uniform commercial code or in section

two hundred fourteen-a of this chapter, where the time within which an

action must be commenced is computed from the time when facts were

discovered or from the time when facts could with reasonable diligence

have been discovered, or from either of such times, the action must be

commenced within two years after such actual or imputed discovery or

within the period otherwise provided, computed from the time the cause

of action accrued, whichever is longer.

2. Notwithstanding paragraph one of this subdivision, in an action or

claim for medical, dental or podiatric malpractice, where the action or

claim is based upon the alleged negligent failure to diagnose cancer or

a malignant tumor, whether by act or omission, for the purposes of

sections fifty-e and fifty-i of the general municipal law, section ten

of the court of claims act, and the provisions of any other law

pertaining to the commencement of an action or special proceeding, or to

the serving of a notice of claim as a condition precedent to

commencement of an action or special proceeding within a specified time

period, the time in which to commence an action or special proceeding or

to serve a notice of claim shall not begin to run until the later of

either (i) when the person knows or reasonably should have known of such

alleged negligent act or omission and knows or reasonably should have

known that such alleged negligent act or omission has caused injury,

provided, that such action shall be commenced no later than seven years

from such alleged negligent act or omission, or (ii) the date of the

last treatment where there is continuous treatment for such injury,

illness or condition.

(h) Claim and action upon certain instruments. Once a cause of action

upon an instrument described in subdivision four of section two hundred

thirteen of this article has accrued, no party may, in form or effect,

unilaterally waive, postpone, cancel, toll, revive, or reset the accrual

thereof, or otherwise purport to effect a unilateral extension of the

limitations period prescribed by law to commence an action and to

interpose the claim, unless expressly prescribed by statute.

Stay of commencement of action; demand for arbitration. (a)

Stay. Where the commencement of an action has been stayed by a court or

by statutory prohibition, the duration of the stay is not a part of the

time within which the action must be commenced.

(b) Arbitration. Where it shall have been determined that a party is

not obligated to submit a claim to arbitration, the time which elapsed

between the demand for arbitration and the final determination that

there is no obligation to arbitrate is not a part of the time within

which an action upon such claim must be commenced. The time within which

the action must be commenced shall not be extended by this provision

beyond one year after such final determination.

Termination of action. (a) New action by plaintiff. If an

action is timely commenced and is terminated in any other manner than by

a voluntary discontinuance, a failure to obtain personal jurisdiction

over the defendant, a dismissal of the complaint for neglect to

prosecute the action, or a final judgment upon the merits, the

plaintiff, or, if the plaintiff dies, and the cause of action survives,

his or her executor or administrator, may commence a new action upon the

same transaction or occurrence or series of transactions or occurrences

within six months after the termination provided that the new action

would have been timely commenced at the time of commencement of the

prior action and that service upon defendant is effected within such

six-month period. Where a dismissal is one for neglect to prosecute the

action made pursuant to rule thirty-two hundred sixteen of this chapter

or otherwise, the judge shall set forth on the record the specific

conduct constituting the neglect, which conduct shall demonstrate a

general pattern of delay in proceeding with the litigation.

(b) Defense or counterclaim. Where the defendant has served an answer

and the action is terminated in any manner, and a new action upon the

same transaction or occurrence or series of transactions or occurrences

is commenced by the plaintiff or his successor in interest, the

assertion of any cause of action or defense by the defendant in the new

action shall be timely if it was timely asserted in the prior action.

(c) Application. This section also applies to a proceeding brought

under the workers' compensation law but shall not apply to any

proceeding governed by section two hundred five-a of this article.

Termination of certain actions related to real property. (a)

If an action upon an instrument described under subdivision four of

section two hundred thirteen of this article is timely commenced and is

terminated in any manner other than a voluntary discontinuance, a

failure to obtain personal jurisdiction over the defendant, a dismissal

of the complaint for any form of neglect, including, but not limited to

those specified in subdivision three of section thirty-one hundred

twenty-six, section thirty-two hundred fifteen, rule thirty-two hundred

sixteen and rule thirty-four hundred four of this chapter, for violation

of any court rules or individual part rules, for failure to comply with

any court scheduling orders, or by default due to nonappearance for

conference or at a calendar call, or by failure to timely submit any

order or judgment, or upon a final judgment upon the merits, the

original plaintiff, or, if the original plaintiff dies and the cause of

action survives, his or her executor or administrator, may commence a

new action upon the same transaction or occurrence or series of

transactions or occurrences within six months following the termination,

provided that the new action would have been timely commenced within the

applicable limitations period prescribed by law at the time of the

commencement of the prior action and that service upon the original

defendant is completed within such six-month period. For purposes of

this subdivision:

1. a successor in interest or an assignee of the original plaintiff

shall not be permitted to commence the new action, unless pleading and

proving that such assignee is acting on behalf of the original

plaintiff; and

2. in no event shall the original plaintiff receive more than one

six-month extension.

(b) Where the defendant has served an answer and the action upon an

instrument described under subdivision four of section two hundred

thirteen of this article is terminated in any manner, and a new action

upon the same transaction or occurrence or series of transactions or

occurrences is commenced by the original plaintiff, or a successor in

interest or assignee of the original plaintiff, the assertion of any

cause of action or defense by the defendant in the new action shall be

timely if such cause of action or defense was timely asserted in the

prior action.

Computing periods of limitation in particular actions. (a)

Where demand necessary. Except as provided in article 3 of the uniform

commercial code, where a demand is necessary to entitle a person to

commence an action, the time within which the action must be commenced

shall be computed from the time when the right to make the demand is

complete, except that

1. where a right grows out of the receipt or detention of money or

property by a trustee, agent, attorney or other person acting in a

fiduciary capacity, the time within which the action must be commenced

shall be computed from the time when the person having the right to make

the demand discovered the facts upon which the right depends; and

2. where there was a deposit of money to be repaid only upon a special

demand, or a delivery of personal property not to be returned

specifically or in kind at a fixed time or upon a fixed contingency, the

time within which the action must be commenced shall be computed from

the demand for repayment or return.

(b) Based on misconduct of agent. Where a judgment is entered against

a principal in an action based upon an injury resulting from the act or

omission of his deputy or agent, the time within which an action by the

principal against the deputy or agent to recover damages by reason of

such judgment must be commenced shall be computed, from the time when

the action against the principal was finally determined. Where an injury

results from the representation by a person that he is an agent with

authority to execute a contract in behalf of a principal, the time

within which an action to recover damages for breach of warranty of

authority must be commenced by the person injured against the purported

agent shall be computed from the time the person injured discovered the

facts constituting lack of authority.

(c) Based on breach of covenant of seizin or against incumbrances. In

an action based upon breach of a covenant of seizin or against

incumbrances, the time within which the action must be commenced shall

be computed from an eviction.

(d) Based on account. In an action based upon a mutual, open and

current account, where there have been reciprocal demands between the

parties, the time within which the action must be commenced shall be

computed from the time of the last transaction in the account on either

side.

Defendant's absence from state or residence under false name.

If, when a cause of action accrues against a person, he is without the

state, the time within which the action must be commenced shall be

computed from the time he comes into or returns to the state. If, after

a cause of action has accrued against a person, that person departs from

the state and remains continuously absent therefrom for four months or

more, or that person resides within the state under a false name which

is unknown to the person entitled to commence the action, the time of

his absence or residence within the state under such a false name is not

a part of the time within which the action must be commenced. If an

action is commenced against a person described above, the time within

which service must be made on such person in accordance with

subdivisions (a) and (b) of section three hundred six-b of this chapter

shall be computed in accordance with this section. This section does not

apply:

1. while there is in force a designation, voluntary or involuntary,

made pursuant to law, of a person to whom a summons may be delivered

within the state with the same effect as if served personally within the

state; or

2. while a foreign corporation has one or more officers or other

persons in the state on whom a summons against such corporation may be

served; or

3. while jurisdiction over the person of the defendant can be obtained

without personal delivery of the summons to the defendant within the

state.

Infancy, insanity. (a) If a person entitled to commence an

action is under a disability because of infancy or insanity at the time

the cause of action accrues, and the time otherwise limited for

commencing the action is three years or more and expires no later than

three years after the disability ceases, or the person under the

disability dies, the time within which the action must be commenced

shall be extended to three years after the disability ceases or the

person under the disability dies, whichever event first occurs; if the

time otherwise limited is less than three years, the time shall be

extended by the period of disability. The time within which the action

must be commenced shall not be extended by this provision beyond ten

years after the cause of action accrues, except, in any action other

than for medical, dental or podiatric malpractice, where the person was

under a disability due to infancy. This section shall not apply to an

action to recover a penalty or forfeiture, or against a sheriff or other

officer for an escape.

(b) Notwithstanding any provision of law which imposes a period of

limitation to the contrary and the provisions of any other law

pertaining to the filing of a notice of claim or a notice of intention

to file a claim as a condition precedent to commencement of an action or

special proceeding, with respect to all civil claims or causes of action

brought by any person for physical, psychological or other injury or

condition suffered by such person as a result of conduct which would

constitute a sexual offense as defined in article one hundred thirty of

the penal law committed against such person who was less than eighteen

years of age, incest as defined in section 255.27, 255.26 or 255.25 of

the penal law committed against such person who was less than eighteen

years of age, or the use of such person in a sexual performance as

defined in section 263.05 of the penal law, or a predecessor statute

that prohibited such conduct at the time of the act, which conduct was

committed against such person who was less than eighteen years of age,

such action may be commenced, against any party whose intentional or

negligent acts or omissions are alleged to have resulted in the

commission of said conduct, on or before the plaintiff or infant

plaintiff reaches the age of fifty-five years. In any such claim or

action, in addition to any other defense and affirmative defense that

may be available in accordance with law, rule or the common law, to the

extent that the acts alleged in such action are of the type described in

subdivision one of section 130.30 of the penal law or subdivision one of

section 130.45 of the penal law, the affirmative defenses set forth,

respectively, in the closing paragraph of such sections of the penal law

shall apply.

In custody at time of cause of action. Notwithstanding any

provisions of law that impose a period of limitation to the contrary or

any provisions of any other law pertaining to the filing of a notice of

claim or a notice of intention to file a claim as a condition precedent

to commencement of an action or special proceeding, with respect to all

civil claims or causes of action brought by any person to recover

damages for physical, psychological, or other injury or condition

suffered while under the jurisdiction and in the care and custody or

supervision of: the state department of corrections and community

supervision, except a person under community supervision as defined in

subdivision thirty-one of section two of the correction law, a hospital

as defined in subdivision two of section four hundred of the correction

law, a correctional facility as defined in subdivision three of section

forty of the correction law, a local correctional facility as defined in

subdivision two of section forty of the correction law, or an alternate

correctional facility as defined in subdivision one of section

eighty-seven of the correction law, the time in which such action must

commence shall have the full benefit of the limitations period provided

in the relevant section of law and, in addition, shall have a two-year

window following the date of the person's release from the relevant

period of custody within which to commence an action based on such

injury or condition. For any claim that would have been time-barred but

for the application of this section, no notice of claim or notice of

intention to file a claim shall be required as a condition precedent to

the commencement of such action or special proceeding. This exemption

shall not apply to any claim that was timely under the otherwise

applicable statute of limitations.

War. (a) Cause of action accruing in foreign country. Where a

cause of action, whether originally accrued in favor of a resident or

non-resident of the state, accrued in a foreign country with which the

United States or any of its allies were then or subsequently at war, or

territory then or subsequently occupied by the government of such

foreign country, the time which elapsed between the commencement of the

war, or of such occupation, and the termination of hostilities with such

country, or of such occupation, is not a part of the time within which

the action must be commenced. This section shall neither apply to nor in

any manner affect an action brought pursuant to section six hundred

twenty-five of the banking law against a banking organization or against

the superintendent of financial services.

(b) Right of noncitizen. Where a person is unable to commence an

action in the courts of the state because any party is a noncitizen

subject or citizen of a foreign country at war with the United States or

any of its allies, whether the cause of action accrued during or prior

to the war, the time which elapsed between the commencement of the war

and the termination of hostilities with such country is not a part of

the time within which the action must be commenced.

(c) Non-enemy in enemy country or enemy-occupied territory. Where a

person entitled to commence an action, other than a person entitled to

the benefits of subdivision (b), is a resident of, or a sojourner in, a

foreign country with which the United States or any of its allies are at

war, or territory occupied by the government of such foreign country,

the period of such residence or sojourn during which the war continues

or the territory is so occupied is not a part of the time within which

the action must be commenced.

Death of claimant or person liable; cause of action accruing

after death and before grant of letters. (a) Death of claimant. Where a

person entitled to commence an action dies before the expiration of the

time within which the action must be commenced and the cause of action

survives, an action may be commenced by his representative within one

year after his death.

(b) Death of person liable. The period of eighteen months after the

death, within or without the state, of a person against whom a cause of

action exists is not a part of the time within which the action must be

commenced against his executor or administrator.

(c) Cause of action accruing after death and before grant of letters.

In an action by an executor or administrator to recover personal

property wrongfully taken after the death and before the issuance of

letters, or to recover damages for taking, detaining or injuring

personal property within that period, the time within which the action

must be commenced shall be computed from the time the letters are issued

or from three years after the death, whichever event first occurs. Any

distributee, next of kin, legatee or creditor who was under a disability

prescribed in section 208 at the time the cause of action accrued, may,

within two years after the disability ceases, commence an action to

recover such damages or the value of such property as he would have

received upon a final distribution of the estate if an action had been

timely commenced by the executor or administrator.

Actions to be commenced within twenty years. (a) On a bond. An

action to recover principal or interest upon a written instrument

evidencing an indebtedness of the state of New York or of any person,

association or public or private corporation, originally sold by the

issuer after publication of an advertisement for bids for the issue in

electronic or physical form and secured only by a pledge of the faith

and credit of the issuer, regardless of whether a sinking fund is or may

be established for its redemption, must be commenced within twenty years

after the cause of action accrues. This subdivision does not apply to

actions upon written instruments evidencing an indebtedness of any

corporation, association or person under the jurisdiction of the public

service commission, the commissioner of transportation, the interstate

commerce commission, the federal communications commission, the civil

aeronautics board, the federal power commission, or any other regulatory

commission or board of a state or of the federal government. This

subdivision applies to all causes of action, including those barred on

April eighteenth, nineteen hundred fifty, by the provisions of the civil

practice act then effective.

(b) On a money judgment. A money judgment is presumed to be paid and

satisfied after the expiration of twenty years from the time when the

party recovering it was first entitled to enforce it. This presumption

is conclusive, except as against a person who within the twenty years

acknowledges an indebtedness, or makes a payment, of all or part of the

amount recovered by the judgment, or his heir or personal

representative, or a person whom he otherwise represents. Such an

acknowledgment must be in writing and signed by the person to be

charged. Property acquired by an enforcement order or by levy upon an

execution is a payment, unless the person to be charged shows that it

did not include property claimed by him. If such an acknowledgment or

payment is made, the judgment is conclusively presumed to be paid and

satisfied as against any person after the expiration of twenty years

after the last acknowledgment or payment made by him. The presumption

created by this subdivision may be availed of under an allegation that

the action was not commenced within the time limited.

(c) By state for real property. The state will not sue a person for or

with respect to real property, or the rents or profits thereof, by

reason of the right or title of the state to the same, unless the cause

of action accrued, or the state, or those from whom it claims, have

received the rents and profits of the real property or of some part

thereof, within twenty years before the commencement of the action.

(d) By grantee of state for real property. An action shall not be

commenced for or with respect to real property by a person claiming by

virtue of letters patent or a grant from the state, unless it might have

been maintained by the state, as prescribed in this section, if the

patent or grant had not been issued or made.

(e) For support, alimony or maintenance. An action or proceeding to

enforce any temporary order, permanent order or judgment of any court of

competent jurisdiction which awards support, alimony or maintenance,

regardless of whether or not arrears have been reduced to a money

judgment, must be commenced within twenty years from the date of a

default in payment. This section shall only apply to orders which have

been entered subsequent to the date upon which this section shall become

effective.

Actions to be commenced within ten or fifteen years. (a)

Possession necessary to recover real property. An action to recover real

property or its possession cannot be commenced unless the plaintiff, or

his predecessor in interest, was seized or possessed of the premises

within ten years before the commencement of the action.

(b) Annulment of letters patent. Where letters patent or a grant of

real property, issued or made by the state, are declared void on the

ground of fraudulent suggestion or concealment, forfeiture, mistake or

ignorance of a material fact, wrongful detaining or defective title, an

action to recover the premises may be commenced by the state or by a

subsequent patentee or grantee, or his successor in interest, within ten

years after the determination is made.

(c) To redeem from a mortgage. An action to redeem real property from

a mortgage with or without an account of rents and profits may be

commenced by the mortgagor or his successors in interest, against the

mortgagee in possession, or against the purchaser of the mortgaged

premises at a foreclosure sale in an action in which the mortgagor or

his successors in interest were not excluded from their interest in the

mortgaged premises, or against a successor in interest of either, unless

the mortgagee, purchaser or successor was continuously possessed of the

premises for ten years after the breach or non-fulfillment of a

condition or covenant of the mortgage, or the date of recording of the

deed of the premises to the purchaser.

(d) To recover under an affidavit of support of a noncitizen. An

action under section one hundred twenty-two of the social services law

to recover amounts paid to or on behalf of a noncitizen for whom an

affidavit of support pursuant to section 213A of the immigration and

naturalization act has been signed.

(e) By a victim of sex trafficking, compelling prostitution, or labor

trafficking. An action by a victim of sex trafficking, compelling

prostitution, labor trafficking or aggravated labor trafficking, brought

pursuant to subdivision (c) of section four hundred eighty-three-bb of

the social services law, may be commenced within fifteen years after

such victimization occurs provided, however, that such fifteen year

period shall not begin to run and shall be tolled during any period in

which the victim is or remains subject to such conduct.

Actions to be commenced within six years: where not otherwise

provided for; on contract; on sealed instrument; on bond or note, and

mortgage upon real property; by state based on misappropriation of

public property; based on mistake; by corporation against director,

officer or stockholder; based on fraud. The following actions must be

commenced within six years:

1. an action for which no limitation is specifically prescribed by

law;

2. an action upon a contractual obligation or liability, express or

implied, except as provided in section two hundred thirteen-a or two

hundred fourteen-i of this article or article 2 of the uniform

commercial code or article 36-B of the general business law;

3. an action upon a sealed instrument;

4. an action upon a bond or note, the payment of which is secured by a

mortgage upon real property, or upon a bond or note and mortgage so

secured, or upon a mortgage of real property, or any interest therein;

(a) In any action on an instrument described under this subdivision,

if the statute of limitations is raised as a defense, and if that

defense is based on a claim that the instrument at issue was accelerated

prior to, or by way of commencement of a prior action, a plaintiff shall

be estopped from asserting that the instrument was not validly

accelerated, unless the prior action was dismissed based on an expressed

judicial determination, made upon a timely interposed defense, that the

instrument was not validly accelerated.

(b) In any action seeking cancellation and discharge of record of an

instrument described under subdivision four of section fifteen hundred

one of the real property actions and proceedings law, a defendant shall

be estopped from asserting that the period allowed by the applicable

statute of limitation for the commencement of an action upon the

instrument has not expired because the instrument was not validly

accelerated prior to, or by way of commencement of a prior action,

unless the prior action was dismissed based on an expressed judicial

determination, made upon a timely interposed defense, that the

instrument was not validly accelerated.

5. an action by the state based upon the spoliation or other

misappropriation of public property; the time within which the action

must be commenced shall be computed from discovery by the state of the

facts relied upon;

6. an action based upon mistake;

7. an action by or on behalf of a corporation against a present or

former director, officer or stockholder for an accounting, or to procure

a judgment on the ground of fraud, or to enforce a liability, penalty or

forfeiture, or to recover damages for waste or for an injury to property

or for an accounting in conjunction therewith.

8. an action based upon fraud; the time within which the action must

be commenced shall be the greater of six years from the date the cause

of action accrued or two years from the time the plaintiff or the person

under whom the plaintiff claims discovered the fraud, or could with

reasonable diligence have discovered it.

9. an action by the attorney general pursuant to article

twenty-three-A of the general business law or subdivision twelve of

section sixty-three of the executive law.

Residential rent overcharge. No overcharge penalties or

damages may be awarded for a period more than six years before the

action is commenced or complaint is filed, however, an overcharge claim

may be filed at any time, and the calculation and determination of the

legal rent and the amount of the overcharge shall be made in accordance

with the provisions of law governing the determination and calculation

of overcharges.

Action by a victim of a criminal offense. Notwithstanding any

other limitation set forth in this article or in article five of the

estates, powers and trusts law, an action by a crime victim, or the

representative of a crime victim, as defined in subdivision six of

section six hundred twenty-one of the executive law, may be commenced to

recover damages from a defendant: (1) convicted of a crime which is the

subject of such action, for any injury or loss resulting therefrom

within seven years of the date of the crime or (2) convicted of a

specified crime as defined in paragraph (e) of subdivision one of

section six hundred thirty-two-a of the executive law which is the

subject of such action for any injury or loss resulting therefrom within

ten years of the date the defendant was convicted of such specified

crime.

Action by victim of conduct constituting certain sexual

offenses. Notwithstanding any other limitation set forth in this

article, except as provided in subdivision (b) of section two hundred

eight of this article, all civil claims or causes of action brought by

any person for physical, psychological or other injury or condition

suffered by such person as a result of conduct which would constitute

rape in the first degree as defined in section 130.35 of the penal law,

or rape in the second degree as defined in subdivision four, five or six

of section 130.30 of the penal law, or rape in the second degree as

defined in former subdivision two of section 130.30 of the penal law, or

rape in the third degree as defined in subdivision one, two, three,

seven, eight or nine of section 130.25 of the penal law, or a crime

formerly defined in section 130.50 of the penal law, or a crime formerly

defined in subdivision two of section 130.45 of the penal law, or a

crime formerly defined in subdivision one or three of section 130.40 of

the penal law, or incest in the first degree as defined in section

255.27 of the penal law, or incest in the second degree as defined in

section 255.26 of the penal law (where the crime committed is rape in

the second degree as defined in subdivision four, five or six of section

130.30 of the penal law, or rape in the second degree as formerly

defined in subdivision two of section 130.30 of the penal law, or a

crime formerly defined in subdivision two of section 130.45 of the penal

law), or aggravated sexual abuse in the first degree as defined in

section 130.70 of the penal law, or course of sexual conduct against a

child in the first degree as defined in section 130.75 of the penal law

may be brought against any party whose intentional or negligent acts or

omissions are alleged to have resulted in the commission of the said

conduct, within twenty years. Nothing in this section shall be construed

to require that a criminal charge be brought or a criminal conviction be

obtained as a condition of bringing a civil cause of action or receiving

a civil judgment pursuant to this section or be construed to require

that any of the rules governing a criminal proceeding be applicable to

any such civil action.

Actions to be commenced within three years; medical debt. An

action on a medical debt by a hospital licensed under article

twenty-eight of the public health law or a health care professional

authorized under title eight of the education law shall be commenced

within three years of treatment.

Actions to be commenced within three years: for non-payment of

money collected on execution; for penalty created by statute; to recover

chattel; for injury to property; for personal injury; for malpractice

other than medical, dental or podiatric malpractice; to annul a

marriage on the ground of fraud. The following actions must be

commenced within three years:

1. an action against a sheriff, constable or other officer for the

non-payment of money collected upon an execution;

2. an action to recover upon a liability, penalty or forfeiture

created or imposed by statute except as provided in sections 213 and

215;

3. an action to recover a chattel or damages for the taking or

detaining of a chattel;

4. an action to recover damages for an injury to property except as

provided in section 214-c;

5. an action to recover damages for a personal injury except as

provided in sections 214-b, 214-c, 214-i and 215;

6. an action to recover damages for malpractice, other than medical,

dental or podiatric malpractice, regardless of whether the underlying

theory is based in contract or tort; and

7. an action to annul a marriage on the ground of fraud; the time

within which the action must be commenced shall be computed from the

time the plaintiff discovered the facts constituting the fraud, but if

the plaintiff is a person other than the spouse whose consent was

obtained by fraud, the time within which the action must be commenced

shall be computed from the time, if earlier, that that spouse discovered

the facts constituting the fraud.

Action for medical, dental or podiatric malpractice to be

commenced within two years and six months; exceptions. An action for

medical, dental or podiatric malpractice must be commenced within two

years and six months of the act, omission or failure complained of or

last treatment where there is continuous treatment for the same illness,

injury or condition which gave rise to the said act, omission or

failure; provided, however, that: (a) where the action is based upon the

discovery of a foreign object in the body of the patient, the action may

be commenced within one year of the date of such discovery or of the

date of discovery of facts which would reasonably lead to such

discovery, whichever is earlier; and (b) where the action is based upon

the alleged negligent failure to diagnose cancer or a malignant tumor,

whether by act or omission, the action may be commenced within two years

and six months of the later of either (i) when the person knows or

reasonably should have known of such alleged negligent act or omission

and knows or reasonably should have known that such alleged negligent

act or omission has caused injury, provided, that such action shall be

commenced no later than seven years from such alleged negligent act or

omission, or (ii) the date of the last treatment where there is

continuous treatment for such injury, illness or condition. For the

purpose of this section the term "continuous treatment" shall not

include examinations undertaken at the request of the patient for the

sole purpose of ascertaining the state of the patient's condition. For

the purpose of this section the term "foreign object" shall not include

a chemical compound, fixation device or prosthetic aid or device.

Action to recover damages for personal injury caused by

contact with or exposure to phenoxy herbicides. Notwithstanding any

provision of law to the contrary, an action to recover damages for

personal injury caused by contact with or exposure to phenoxy herbicides

while serving as a member of the armed forces of the United States in

Indo-China from January first, nineteen hundred sixty-two through May

seventh, nineteen hundred seventy-five, may be commenced within two

years from the date of the discovery of such injury, or within two years

from the date when through the exercise of reasonable diligence the

cause of such injury should have been discovered, whichever is later.

Certain actions to be commenced within three years of

discovery. 1. In this section: "exposure" means direct or indirect

exposure by absorption, contact, ingestion, inhalation, implantation or

injection.

2. Notwithstanding the provisions of section 214, the three year

period within which an action to recover damages for personal injury or

injury to property caused by the latent effects of exposure to any

substance or combination of substances, in any form, upon or within the

body or upon or within property must be commenced shall be computed from

the date of discovery of the injury by the plaintiff or from the date

when through the exercise of reasonable diligence such injury should

have been discovered by the plaintiff, whichever is earlier.

3. For the purposes of sections fifty-e and fifty-i of the general

municipal law, section thirty-eight hundred thirteen of the education

law and the provisions of any general, special or local law or charter

requiring as a condition precedent to commencement of an action or

special proceeding that a notice of claim be filed or presented within a

specified period of time after the claim or action accrued, a claim or

action for personal injury or injury to property caused by the latent

effects of exposure to any substance or combination of substances, in

any form, upon or within the body or upon or within property shall be

deemed to have accrued on the date of discovery of the injury by the

plaintiff or on the date when through the exercise of reasonable

diligence the injury should have been discovered, whichever is earlier.

4. Notwithstanding the provisions of subdivisions two and three of

this section, where the discovery of the cause of the injury is alleged

to have occurred less than five years after discovery of the injury or

when with reasonable diligence such injury should have been discovered,

whichever is earlier, an action may be commenced or a claim filed within

one year of such discovery of the cause of the injury; provided,

however, if any such action is commenced or claim filed after the period

in which it would otherwise have been authorized pursuant to subdivision

two or three of this section the plaintiff or claimant shall be required

to allege and prove that technical, scientific or medical knowledge and

information sufficient to ascertain the cause of his injury had not been

discovered, identified or determined prior to the expiration of the

period within which the action or claim would have been authorized and

that he has otherwise satisfied the requirements of subdivisions two and

three of this section.

5. This section shall not be applicable to any action for medical or

dental malpractice.

6. This section shall be applicable to acts, omissions or failures

occurring prior to, on or after July first, nineteen hundred eighty-six,

except that this section shall not be applicable to any act, omission or

failure:

(a) which occurred prior to July first, nineteen hundred eighty-six,

and

(b) which caused or contributed to an injury that either was

discovered or through the exercise of reasonable diligence should have

been discovered prior to such date, and

(c) an action for which was or would have been barred because the

applicable period of limitation had expired prior to such date.

Limitations on certain actions against licensed engineers and

architects. 1. Any person asserting a claim for personal injury,

wrongful death or property damage, or a cross or third-party claim for

contribution or indemnification arising out of an action for personal

injury, wrongful death or property damage, against a licensed architect,

engineer, land surveyor or landscape architect or against a partnership,

professional corporation or limited liability company lawfully

practicing architecture, engineering, land surveying or landscape

architecture which is based upon the professional performance, conduct

or omission by such licensed architect, engineer, land surveyor or

landscape architect or such firm occurring more than ten years prior to

the date of such claim, shall give written notice of such claim to each

such architect, engineer, land surveyor or landscape architect or such

firm at least ninety days before the commencement of any action or

proceeding against such licensed architect, engineer, land surveyor or

landscape architect or such firm including any cross or third-party

action or claim. The notice of claim shall identify the performance,

conduct or omissions complained of, on information and belief, and shall

include a request for general and special damages. Service of such

written notice of claim may be made by any of the methods permitted for

personal service of a summons upon a natural person, partnership or

professional corporation. A notice of claim served in accordance with

this section shall be filed, together with proof of service thereof, in

any court of this state in which an action, proceeding or cross or

third-party claim arising out of such conduct may be commenced or

interposed, within thirty days of the service of the notice of claim.

Upon the filing of any such notice of claim, a county clerk shall

collect an index number fee in accordance with section eight thousand

eighteen of this chapter and an index number shall be assigned.

2. In such pleadings as are subsequently filed in any court, each

party shall represent that it has fully complied with the provisions of

this section.

3. Service of a notice as provided in this section shall toll the

applicable statute of limitations to and including a period of one

hundred twenty days following such service.

4. From and after the date of service of the notice provided for in

subdivision one of this section, the claimant shall have the right to

serve a demand for discovery and production of documents and things for

inspection, testing, copying or photographing in accordance with rule

three thousand one hundred twenty of this chapter. Such demand shall be

governed by the procedures of article thirty-one of this chapter. In

addition, the claimant shall have the right to the examination before

trial of such licensed architect, engineer, land surveyor or landscape

architect or such firm or to serve written interrogatories upon such

licensed architect, engineer, land surveyor or landscape architect or

such firm after service of and compliance with a demand for production

and inspection in accordance with this section. The court may, at any

time at its own initiative or on motion of such licensed architect,

engineer, land surveyor or landscape architect or such firm deny, limit,

condition or restrict such examination before trial or written

interrogatories upon a showing that such claimant has failed to

establish reasonable necessity for the information sought or failed to

establish that the information sought by such examination or

interrogatories cannot reasonably be determined from the documents or

things provided in response to a demand for production and inspection

served in accordance with this section. Such examination before trial or

interrogatories shall otherwise be governed by article thirty-one of

this chapter.

5. After the expiration of ninety days from service of the notice

provided in subdivision one of this section, the claimant may commence

or interpose an action, proceeding or cross or third-party claim against

such licensed architect, engineer, land surveyor or landscape architect

or such firm. The action shall proceed in every respect as if the action

were one brought on account of conduct occurring less than ten years

prior to the claim described in said action, unless the defendant

architect, engineer, land surveyor or landscape architect or such firm

shall have made a motion under rule three thousand two hundred eleven or

three thousand two hundred twelve of this chapter, in which event the

action shall be stayed pending determination of the motion. Such motion

shall be granted upon a showing that such claimant has failed to comply

with the notice of claim requirements of this section or for the reasons

set forth in subdivision (h) of rule three thousand two hundred eleven

or subdivision (i) of rule three thousand two hundred twelve of this

chapter; provided, however, such motion shall not be granted if the

moving party is in default of any disclosure obligation as set forth in

subdivision four of this section.

6. No claim for personal injury, or wrongful death or property damage,

or a cross or third-party claim for contribution or indemnification

arising out of an action for personal injury, wrongful death or property

damage may be asserted against a licensed architect, engineer, land

surveyor or landscape architect or such firm arising out of conduct by

such licensed architect, engineer, land surveyor or landscape architect

or such firm occurring more than ten years prior to the accrual of such

claim shall be commenced or interposed against any such licensed

architect, engineer, land surveyor or landscape architect or such firm

unless it shall appear by and as an allegation in the complaint or

necessary moving papers that the claimant has complied with the

requirements of this section. Upon the commencement of such a proceeding

or action or interposition of such cross or third-party claim, a county

clerk shall not be entitled to collect an index number fee and such

action, proceeding or cross or third-party claim shall retain the

previously assigned index number. Such action, proceeding or cross or

third-party claim shall otherwise be governed by the provisions of this

chapter.

7. The provisions of this section shall apply only to a licensed

architect, engineer, land surveyor or landscape architect or such firm

practicing architecture, engineering, land surveying or landscape

architecture in the state of New York at the time the conduct complained

of occurred and shall not apply to any person or entity, including but

not limited to corporations, which was not licensed as an architect,

engineer, land surveyor or landscape architect or such firm in this

state or to a firm not lawfully practicing architecture, engineering,

land surveying or landscape architecture at the time the conduct

complained of occurred.

8. The provisions of this section shall not be construed to in any way

alter or extend any applicable statutes of limitations except as

expressly provided herein.

Action to recover damages for personal injury caused by the

infusion of such blood products which result in the contraction of the

human immunodeficiency virus (HIV) and/or AIDS. Notwithstanding any

provision of law to the contrary, any cause of action for an injury or

death against a proprietary manufacturer of blood products for damages

involving the infusion of such blood products which resulted in the

contraction of the human immunodeficiency virus (HIV) and/or AIDS which

is barred as of the effective date of this section because the

applicable period of limitation has expired is hereby revived, and an

action thereon may be commenced and prosecuted provided such action is

commenced within two years of the effective date of this section. The

provisions of this section shall be inapplicable to any civil action

governed by the statute of limitations of another jurisdiction.

Action to recover damages for personal injury caused by

contact with or exposure to any substance or combination of substances

found within an area designated as a superfund site. Notwithstanding any

provision of law to the contrary, an action to recover personal damages

for injury caused by contact with or exposure to any substance or

combination of substances contained within an area designated as a

superfund site pursuant to either Chapter 103 of Section 42 of the

United States Code and/or section 27-1303 of the environmental

conservation law, may be commenced by the plaintiff within the period

allowed pursuant to section two hundred fourteen-c of this article or

within three years of such designation of such an area as a superfund

site, whichever is latest.

Certain child sexual abuse cases. Notwithstanding any

provision of law which imposes a period of limitation to the contrary

and the provisions of any other law pertaining to the filing of a notice

of claim or a notice of intention to file a claim as a condition

precedent to commencement of an action or special proceeding, every

civil claim or cause of action brought against any party alleging

intentional or negligent acts or omissions by a person for physical,

psychological, or other injury or condition suffered as a result of

conduct which would constitute a sexual offense as defined in article

one hundred thirty of the penal law committed against a child less than

eighteen years of age, incest as defined in section 255.27, 255.26 or

255.25 of the penal law committed against a child less than eighteen

years of age, or the use of a child in a sexual performance as defined

in section 263.05 of the penal law, or a predecessor statute that

prohibited such conduct at the time of the act, which conduct was

committed against a child less than eighteen years of age, which is

barred as of the effective date of this section because the applicable

period of limitation has expired, and/or the plaintiff previously failed

to file a notice of claim or a notice of intention to file a claim, is

hereby revived, and action thereon may be commenced not earlier than six

months after, and not later than two years and six months after the

effective date of this section. In any such claim or action: (a) in

addition to any other defense and affirmative defense that may be

available in accordance with law, rule or the common law, to the extent

that the acts alleged in such action are of the type described in

subdivision one of section 130.30 of the penal law or subdivision one of

section 130.45 of the penal law, the affirmative defenses set forth,

respectively, in the closing paragraph of such sections of the penal law

shall apply; and (b) dismissal of a previous action, ordered before the

effective date of this section, on grounds that such previous action was

time barred, and/or for failure of a party to file a notice of claim or

a notice of intention to file a claim, shall not be grounds for

dismissal of a revival action pursuant to this section.

Certain actions by public water suppliers to recover damages

for injury to property. 1. In this section:

(a) "Contaminant" means any physical, chemical, biological or

radiological substance or matter in water and includes but is not

limited to an emerging contaminant listed pursuant to section eleven

hundred twelve of the public health law.

(b) "Person" means an individual, corporation, public corporation,

company, association, partnership, or entity of the state or federal

government.

(c) "Public water supplier" means a person that owns, manages or

operates a community, noncommunity or nontransient noncommunity water

system that provides water to the public for human consumption through

pipes or other constructed conveyances, if such system has at least five

service connections or regularly serves an average of at least

twenty-five individuals daily at least sixty days out of the year.

(d) "Wholesale water supplier" means a person that owns, manages or

operates a public water system that treats a source of water supply as

necessary to produce finished water and then delivers some or all of

that finished water to a public water supplier.

(e) "Source of water supply" means any groundwater aquifer or other

source from which water is taken either periodically or continuously for

drinking, kitchen, cooking or food-processing purposes, or which has

been designated for present or future use as a source of water supply

for domestic or municipal purposes.

(f) "Plant intake" means the works or structures at the head of a

conduit through which water is diverted from a source of water supply

into the treatment plant by a public water supplier.

(g) "Well" means any excavation used for obtaining water by a public

water supplier.

(h) "Raw water" means water immediately before the first or only point

of disinfection or other treatment.

(i) "Emerging contaminant" shall mean any physical, chemical,

microbiological or radiological substance that has ever been or ever

will be identified or listed pursuant to paragraph a or b of subdivision

three of section eleven hundred twelve of the public health law or that

has ever been or ever will be required to be identified or listed as an

emerging contaminant pursuant to paragraph c of subdivision three of

section eleven hundred twelve of the public health law or that is

identified or listed as an emerging contaminant pursuant to any other

law.

2. Notwithstanding any other law that provides for a shorter

limitations period, any civil claim or cause of action brought by a

public water supplier or wholesale water supplier against any person to

recover damages for injury to property owned, managed or operated by a

public water supplier or a wholesale water supplier resulting from the

presence of a contaminant in a source of water supply shall be commenced

within three years of the latest of any of the following:

(a) the detection of a contaminant in the raw water of each well or

plant intake sampling point in excess of any notification level, action

level, maximum contaminant level, or maximum contaminant level goal

established by the commissioner of health, the department of health or

the United States Environmental Protection Agency for that contaminant;

(b) the last wrongful act by any person whose conduct contributed to

the presence of a contaminant in a source of water supply or the raw

water of each well or plant intake sampling point; or

(c) the date the contaminant is last detected in the raw water of each

well or plant intake sampling point in excess of any notification level,

action level, maximum contaminant level, or maximum contaminant level

goal established by the commissioner of health, the department of health

or the United States Environmental Protection Agency for that

contaminant.

3. This three-year period shall apply to each well and each plant

intake for each contaminant separately, and the expiration of the

three-year period at one well or plant intake shall not affect the

three-year period for another well or plant intake.

4. Nothing in this section shall abridge or limit a public water

supplier's or a wholesale water supplier's right to bring an action to

abate an imminent threat of contamination of any well or plant intake or

to recover as damages the costs of such abatement.

5. Any action, civil claim, or cause of action involving an emerging

contaminant that is barred as of the effective date of this subdivision

because the applicable period of limitation has expired is hereby

revived, and such action, civil claim, or cause of action thereon may be

commenced and prosecuted provided such action, civil claim, or cause of

action is commenced either before or within one year and six months

following the effective date of this subdivision.

* § 214-i. Certain actions arising out of consumer credit transactions

to be commenced within three years. An action arising out of a consumer

credit transaction where a purchaser, borrower or debtor is a defendant

must be commenced within three years, except as provided in section two

hundred thirteen-a of this article or article 2 of the uniform

commercial code or article 36-B of the general business law.

Notwithstanding any other provision of law, when the applicable

limitations period expires, any subsequent payment toward, written or

oral affirmation of or other activity on the debt does not revive or

extend the limitations period.

* NB There are 2 § 214-i's

Certain sexual offense actions. Notwithstanding any provision

of law which imposes a period of limitation to the contrary and the

provisions of any other law pertaining to the filing of a notice of

claim or a notice of intention to file a claim as a condition precedent

to commencement of an action or special proceeding, every civil claim or

cause of action brought against any party alleging intentional or

negligent acts or omissions by a person for physical, psychological, or

other injury or condition suffered as a result of conduct which would

constitute a sexual offense as defined in article one hundred thirty of

the penal law committed against such person who was eighteen years of

age or older, or incest as defined in section 255.26 or 255.27 of the

penal law committed against such person who was eighteen years of age or

older, which is barred as of the effective date of this section because

the applicable period of limitation has expired, and/or the plaintiff

previously failed to file a notice of claim or a notice of intention to

file a claim, is hereby revived, and action thereon may be commenced not

earlier than six months after, and not later than one year and six

months after the effective date of this section. In any such claim or

action, dismissal of a previous action, ordered before the effective

date of this section, on grounds that such previous action was time

barred, and/or for failure of a party to file a notice of claim or a

notice of intention to file a claim, shall not be grounds for dismissal

of a revival action pursuant to this section.

Actions to be commenced within one year: against sheriff,

coroner or constable; for escape of prisoner; for assault, battery,

false imprisonment, malicious prosecution, libel or slander; for

violation of right of privacy; for penalty given to informer; on

arbitration award. The following actions shall be commenced within one

year:

1. an action against a sheriff, coroner or constable, upon a liability

incurred by him by doing an act in his official capacity or by omission

of an official duty, except the non-payment of money collected upon an

execution;

2. an action against an officer for the escape of a prisoner arrested

or imprisoned by virtue of a civil mandate;

3. an action to recover damages for assault, battery, false

imprisonment, malicious prosecution, libel, slander, false words causing

special damages, or a violation of the right of privacy under section

fifty-one of the civil rights law;

4. an action to enforce a penalty or forfeiture created by statute and

given wholly or partly to any person who will prosecute; if the action

is not commenced within the year by a private person, it may be

commenced on behalf of the state, within three years after the

commission of the offense, by the attorney-general or the district

attorney of the county where the offense was committed; and

5. an action upon an arbitration award.

6. An action to recover any overcharge of interest or to enforce a

penalty for such overcharge.

7. an action by a tenant pursuant to subdivision three of section two

hundred twenty-three-b of the real property law.

8. (a) Whenever it is shown that a criminal action against the same

defendant has been commenced with respect to the event or occurrence

from which a claim governed by this section arises, the plaintiff shall

have at least one year from the termination of the criminal action as

defined in section 1.20 of the criminal procedure law in which to

commence the civil action, notwithstanding that the time in which to

commence such action has already expired or has less than a year

remaining.

(b) Whenever it is shown that a criminal action against the same

defendant has been commenced with respect to the event or occurrence

from which a claim governed by this section arises, and such criminal

action is for rape in the first degree as defined in section 130.35 of

the penal law, or a crime formerly defined in section 130.50 of the

penal law, or aggravated sexual abuse in the first degree as defined in

section 130.70 of the penal law, or course of sexual conduct against a

child in the first degree as defined in section 130.75 of the penal law,

the plaintiff shall have at least five years from the termination of the

criminal action as defined in section 1.20 of the criminal procedure law

in which to commence the civil action, notwithstanding that the time in

which to commence such action has already expired or has less than a

year remaining.

9. Notwithstanding the opening paragraph of this section, an action

that may be brought to recover damages for injury arising from domestic

violence, as defined in section four hundred fifty-nine-a of the social

services law, shall be commenced within two years. Nothing in this

subdivision shall be construed to modify any time limitation contained

in section two hundred fourteen of this article or subdivision eight of

this section.

Abbreviation of period to one year after notice. (a) Action to

recover money. 1. No action for the recovery of any sum of money due and

payable under or on account of a contract, or for any part thereof,

shall be commenced by any person who has made claim to the sum, after

the expiration of one year from the giving of notice, as hereinafter

provided, to the claimant that an action commenced by another person is

pending to recover the sum, or any part thereof, exceeding fifty dollars

in amount. This limitation shall not be construed to enlarge the time

within which the cause of action of the claimant would otherwise be

barred.

2. If any person shall make claim for the recovery of any sum of money

due and payable under or on account of a contract, and an action has

theretofore been, or shall thereafter be, commenced by another person to

recover the sum, or any part thereof, exceeding fifty dollars in amount,

the defendant in such action may, within twenty days from the date of

service upon him of the complaint or from the date of receipt by him of

the claim, whichever occurs later, make a motion before the court in

which the action is pending for an order permitting the defendant to

give notice to the claimant that the action is pending. The court in

which the action is pending shall grant the order where it appears that

a person not a party to the action has made claim against the defendant

for the sum of money, or any part thereof, exceeding fifty dollars in

amount; that the action was brought without collusion between the

defendant and the plaintiff; and that the claimant cannot, with due

diligence, be served with process in such a manner as to obtain

jurisdiction over his person. The order shall provide, among such other

terms and conditions as justice may require, that notice shall be given

to the claimant by sending by registered mail a copy of the summons and

complaint in the action and the order and a notice addressed to the

claimant at his last known address. In the event that registration of

mail directed to any country or part thereof shall be discontinued or

suspended, notice to a claimant whose last known address is within such

country or part thereof shall be given by ordinary mail, under such

terms and conditions as the court may direct. Proof that the notice has

been mailed shall be filed within ten days from the date of the order;

otherwise the order becomes inoperative. Upon such filing, notice shall

be deemed to have been given on the tenth day after the date of such

order.

3. Upon proof by affidavit or otherwise, to the satisfaction of the

court, that the conditions of this subdivision have been satisfied and

that there is no collusion between the claimant and the defendant, the

court shall make an order staying further prosecution of the action for

a period not to exceed one year from the date when the notice shall have

been given to the claimant. At the time of the granting of such order or

at any time thereafter, the court, upon the motion of any party, shall,

as a condition of the granting of the order or its continuation, impose

upon the defendant such terms as justice may require as to the

furnishing of an undertaking in an amount to be fixed by the court. The

stay shall be vacated and the undertaking, if any has been given, may be

discharged or modified, as justice may require, upon proof to the court

by any party to the action that the claimant has intervened or has

instituted another action in any court of this state to recover the said

sum of money, or any part thereof, exceeding fifty dollars.

4. A motion for any relief as prescribed in this subdivision shall be

made on notice to all other parties to the action.

5. Whenever claims are made by two or more persons, each claiming to

be, to the exclusion of the other, the duly authorized deputy, officer

or agent to demand, receive, collect, sue for or recover the same sum of

money due and payable under or on account of a contract, or any part

thereof, exceeding fifty dollars in amount, for and on behalf of the

same person, each person making such a claim shall be deemed an adverse

claimant. Notwithstanding that an action has been commenced in the name

of or on behalf of the person for whom he claims to be the duly

authorized deputy, officer or agent, any such adverse claimant may be

notified of the pendency of an action as provided in this subdivision

and may intervene in the action and be designated as claiming to be or

as the alleged deputy, officer or agent.

6. Whenever an action has been commenced for the recovery of any sum

of money exceeding fifty dollars due and payable under or on account of

a contract and the records of the defendant show that a person other

than the plaintiff has the right, exclusive of other deputies, officers

or agents of the plaintiff, to demand, sue for and recover the same sum

of money, or any part thereof, exceeding fifty dollars in amount, either

in his own name, on his own behalf, or as the authorized deputy, officer

or agent for the plaintiff, and the defendant has received no notice of

transfer, revocation, or other change in right or authority acceptable

to it, the person so appearing on the records shall be deemed to have

made an adverse claim to the sum of money and may be treated as an

adverse claimant.

(b) Action to recover property. When an action has been commenced to

recover specific personal property, including certificates of stocks,

bonds, notes or other securities or obligations, exceeding fifty dollars

in value, held by the defendant within the state, or to enforce a vested

or contingent interest or lien upon such property, and a person not a

party to the action asserts a claim to the whole or any part of the same

property or to a right, interest or lien upon it which is adverse to the

plaintiff's claim, and the court in which the action is pending has no

jurisdiction over the adverse claimant to direct the issuance of process

or if the same be issued it would be without effect notwithstanding that

the action seeks to have declared, enforced, regulated, defined or

limited, rights, interests or liens upon specific personal property

within the state, the defendant in the action may within twenty days

from the date of service upon him of the complaint or within twenty days

of the date of the receipt by him of the adverse claim, whichever shall

occur later, make a motion before the court for leave to give notice to

the adverse claimant of the pending action in the same manner as

provided in subdivision (a). Upon the granting of such an order, the

provisions of subdivision (a) shall apply insofar as they are compatible

with the subject matter of the action.

Proceeding against body or officer; actions complaining about

conduct that would constitute a union's breach of its duty of fair

representation; four months. 1. Unless a shorter time is provided in

the law authorizing the proceeding, a proceeding against a body or

officer must be commenced within four months after the determination to

be reviewed becomes final and binding upon the petitioner or the person

whom he represents in law or in fact, or after the respondent's refusal,

upon the demand of the petitioner or the person whom he represents, to

perform its duty; or with leave of the court where the petitioner or the

person whom he represents, at the time such determination became final

and binding upon him or at the time of such refusal, was under a

disability specified in section 208, within two years after such time.

2. (a) Any action or proceeding against an employee organization

subject to article fourteen of the civil service law or article twenty

of the labor law which complains that such employee organization has

breached its duty of fair representation regarding someone to whom such

employee organization has a duty shall be commenced within four months

of the date the employee or former employee knew or should have known

that the breach has occurred, or within four months of the date the

employee or former employee suffers actual harm, whichever is later.

(b) Any action or proceeding by an employee or former employee against

an employer subject to article fourteen of the civil service law or

article twenty of the labor law, an essential element of which is that

an employee organization breached its duty of fair representation to the

person making the complaint, shall be commenced within four months of

the date the employee or former employee knew or should have known that

the breach has occurred, or within four months of the date the employee

or former employee suffers actual harm, whichever is later.

Actions to be commenced within one year and ninety days.

Notwithstanding any other provision of law to the contrary, and

irrespective of whether the relevant statute is expressly amended by the

uniform notice of claim act, every action for damages or injuries to

real or personal property, or for the destruction thereof, or for

personal injuries or wrongful death, against any political subdivision

of the state, or any instrumentality or agency of the state or a

political subdivision, any public authority or any public benefit

corporation that is entitled to receive a notice of claim as a condition

precedent to commencement of an action, shall not be commenced unless a

notice of claim shall have been served on such governmental entity

within the time limit established by section fifty-e of the general

municipal law, and such action must be commenced in compliance with all

the requirements of section fifty-e and subdivision one of section

fifty-i of the general municipal law. Except in an action for wrongful

death against such an entity, an action for damages or for injuries to

real or personal property, or for the destruction thereof, or for

personal injuries, alleged to have been sustained, shall not be

commenced more than one year and ninety days after the cause of action

therefor shall have accrued or within the time period otherwise

prescribed by any special provision of law, whichever is longer. Nothing

herein is intended to amend the court of claims act or any provision

thereof.

Transitional provisions. (a) Actions barred at effective date.

Nothing in this article shall authorize any action to be commenced which

is barred when this article becomes effective, except insofar as the

right to commence the action may be revived by an acknowledgment or

payment.

(b) Cause of action accrued and not barred at effective date. Where a

cause of action accrued before, and is not barred when this article

becomes effective, the time within which an action must be commenced

shall be the time which would have been applicable apart from the

provisions of this article, or the time which would have been applicable

if the provisions of this article had been in effect when the cause of

action accrued, whichever is longer.

Jurisdiction over persons, property or status. A court may

exercise such jurisdiction over persons, property, or status as might

have been exercised heretofore.

Personal jurisdiction by acts of non-domiciliaries. (a) Acts

which are the basis of jurisdiction. As to a cause of action arising

from any of the acts enumerated in this section, a court may exercise

personal jurisdiction over any non-domiciliary, or his executor or

administrator, who in person or through an agent:

1. transacts any business within the state or contracts anywhere to

supply goods or services in the state; or

2. commits a tortious act within the state, except as to a cause of

action for defamation of character arising from the act; or

3. commits a tortious act without the state causing injury to person

or property within the state, except as to a cause of action for

defamation of character arising from the act, if he

(i) regularly does or solicits business, or engages in any other

persistent course of conduct, or derives substantial revenue from goods

used or consumed or services rendered, in the state, or

(ii) expects or should reasonably expect the act to have consequences

in the state and derives substantial revenue from interstate or

international commerce; or

4. owns, uses or possesses any real property situated within the

state.

(b) Personal jurisdiction over non-resident defendant in matrimonial

actions or family court proceedings. A court in any matrimonial action

or family court proceeding involving a demand for support, alimony,

maintenance, distributive awards or special relief in matrimonial

actions may exercise personal jurisdiction over the respondent or

defendant notwithstanding the fact that he or she no longer is a

resident or domiciliary of this state, or over his or her executor or

administrator, if the party seeking support is a resident of or

domiciled in this state at the time such demand is made, provided that

this state was the matrimonial domicile of the parties before their

separation, or the defendant abandoned the plaintiff in this state, or

the claim for support, alimony, maintenance, distributive awards or

special relief in matrimonial actions accrued under the laws of this

state or under an agreement executed in this state. The family court may

exercise personal jurisdiction over a non-resident respondent to the

extent provided in sections one hundred fifty-four and one thousand

thirty-six and article five-B of the family court act and article five-A

of the domestic relations law.

(c) Effect of appearance. Where personal jurisdiction is based solely

upon this section, an appearance does not confer such jurisdiction with

respect to causes of action not arising from an act enumerated in this

section.

(d) Foreign defamation judgment. The courts of this state shall have

personal jurisdiction over any person who obtains a judgment in a

defamation proceeding outside the United States against any person who

is a resident of New York or is a person or entity amenable to

jurisdiction in New York who has assets in New York or may have to take

actions in New York to comply with the judgment, for the purposes of

rendering declaratory relief with respect to that person's liability for

the judgment, and/or for the purpose of determining whether said

judgment should be deemed non-recognizable pursuant to section

fifty-three hundred four of this chapter, to the fullest extent

permitted by the United States constitution, provided:

1. the publication at issue was published in New York, and

2. that resident or person amenable to jurisdiction in New York (i)

has assets in New York which might be used to satisfy the foreign

defamation judgment, or (ii) may have to take actions in New York to

comply with the foreign defamation judgment. The provisions of this

subdivision shall apply to persons who obtained judgments in defamation

proceedings outside the United States prior to and/or after the

effective date of this subdivision.

Designation of attorney as agent for service. The commencement

of an action in the state by a person not subject to personal

jurisdiction is a designation by him of his attorney appearing in the

action or of the clerk of the court if no attorney appears, as agent,

during the pendency of the action, for service of a summons pursuant to

section 308, in any separate action in which such a person is a

defendant and another party to the action is a plaintiff if such

separate action would have been permitted as a counterclaim had the

action been brought in the supreme court.

Method of commencing action or special proceeding. (a) An

action is commenced by filing a summons and complaint or summons with

notice in accordance with rule twenty-one hundred two of this chapter. A

special proceeding is commenced by filing a petition in accordance with

rule twenty-one hundred two of this chapter. Where a court finds that

circumstances prevent immediate filing, the signing of an order

requiring the subsequent filing at a specific time and date not later

than five days thereafter shall commence the action.

(b) Notwithstanding any other provision of law, such filing may be

accomplished by facsimile transmission or electronic means, as defined

in subdivision (f) of rule twenty-one hundred three of this chapter,

where and in the manner authorized by the chief administrator of the

courts by rule.

(c) For purposes of this section, and for purposes of section two

hundred three of this chapter and section three hundred six-a of this

article, filing shall mean the delivery of the summons with notice,

summons and complaint or petition to the clerk of the court in the

county in which the action or special proceeding is brought or any other

person designated by the clerk of the court for that purpose. At the

time of filing, the filed papers shall be date stamped by the clerk of

the court who shall file them and maintain a record of the date of the

filing and who shall return forthwith a date stamped copy, together with

an index number, to the filing party, except where filing is by

electronic means. Such filing shall not be accepted unless any fee

required as specified in section eight thousand eighteen of this chapter

has been paid. Where filing is by electronic means, any fee required

shall be paid in the time and manner authorized by the chief

administrator of the court by rule.

(d) Where filing is by facsimile transmission, the clerk of the court

need only return a date stamped copy of the first page of the papers

initiating the lawsuit, together with the index number.

(e) Where filing is by electronic means, the clerk shall, in

accordance with rules promulgated by the chief administrator, forthwith

notify the filing party of the index number and the date and time of

filing.

(f) A confirmation record produced by the filing party's facsimile

machine or computer and an affidavit of filing by the filing party,

shall be prima facie evidence that the filing party transmitted

documents consistent with the date, time and place appearing on the

confirmation record.

Rule 305. Summons; supplemental summons, amendment. (a) Summons;

supplemental summons. A summons shall specify the basis of the venue

designated and if based upon the residence of the plaintiff it shall

specify the plaintiff's address, and also shall bear the index number

assigned and the date of filing with the clerk of the court. A

third-party summons shall also specify the date of filing of the

third-party summons with the clerk of the court. The summons in an

action arising out of a consumer credit transaction shall prominently

display at the top of the summons the words "consumer credit

transaction" and, where a purchaser, borrower or debtor is a defendant,

shall specify the county of residence of a defendant, if one resides

within the state, and the county where the consumer credit transaction

took place, if it is within the state. Where, upon order of the court

or by stipulation of all parties or as of right pursuant to section

1003, a new party is joined in the action and the joinder is not made

upon the new party's motion, a supplemental summons specifying the

pleading which the new party must answer shall be filed with the clerk

of the court and served upon such party.

(b) Summons and notice. If the complaint is not served with the

summons, the summons shall contain or have attached thereto a notice

stating the nature of the action and the relief sought, and, except in

an action for medical malpractice, the sum of money for which judgment

may be taken in case of default.

(c) Amendment. At any time, in its discretion and upon such terms as

it deems just, the court may allow any summons or proof of service of a

summons to be amended, if a substantial right of a party against whom

the summons issued is not prejudiced.

Rule 306. Proof of service. (a) Generally. Proof of service shall

specify the papers served, the person who was served and the date, time,

address, or, in the event there is no address, place and manner of

service, and set forth facts showing that the service was made by an

authorized person and in an authorized manner.

(b) Personal service. Whenever service is made pursuant to this

article by delivery of the summons to an individual, proof of service

shall also include, in addition to any other requirement, a description

of the person to whom it was so delivered, including, but not limited

to, the process server's perception of the person's: gender, race, hair

color, approximate age, approximate weight and height, and other

identifying features.

(c) Other service. Where service is made pursuant to subdivision four

of section three hundred eight of this chapter, proof of service shall

also specify the dates, addresses and the times of attempted service

pursuant to subdivisions one, two or three of such section.

(d) Form. Proof of service shall be in the form of a certificate if

the service is made by a sheriff or other authorized public officer, in

the form of an affidavit if made by any other person, or in the form of

a signed acknowledgement of receipt of a summons and complaint, or

summons and notice or notice of petition as provided for in section

312-a of this article.

(e) Admission of service. A writing admitting service by the person to

be served is adequate proof of service.

Index number in an action or proceeding commenced in supreme

or county court. (a) Upon filing the summons and complaint, summons with

notice or petition in an action or proceeding commenced in supreme or

county court with the clerk of the county, an index number shall be

assigned and the fee required by subdivision (a) of section eight

thousand eighteen of this chapter shall be paid. Upon the filing of a

summons and complaint against a person not already a party, as permitted

under section one thousand seven or rule one thousand eleven of this

chapter, the fee required by subdivision (a) of section eight thousand

eighteen of this chapter shall be paid, but a separate index number

shall not be assigned.

(b) If a person other than the plaintiff or third-party plaintiff who

served the summons or third-party summons obtains the index number and

pays the fee therefor, the clerk shall issue an order directing the

plaintiff or the third-party plaintiff to pay such person the amount of

the fee paid. If such fee is not paid within thirty days of service of

the order with notice of entry, the person who paid the fee, in addition

to any other remedies available at law, may apply to the clerk for an

order dismissing the action without prejudice.

Service of the summons and complaint, summons with notice, or

petition with a notice of petition or order to show cause. Service of

the summons and complaint, summons with notice, or petition with a

notice of petition or order to show cause shall be made within one

hundred twenty days after the commencement of the action or proceeding,

provided that in an action or proceeding, except a proceeding commenced

under the election law, where the applicable statute of limitations is

four months or less, service shall be made not later than fifteen days

after the date on which the applicable statute of limitations expires.

If service is not made upon a defendant within the time provided in this

section, the court, upon motion, shall dismiss the action without

prejudice as to that defendant, or upon good cause shown or in the

interest of justice, extend the time for service.

Notice of commencement of action for personal injuries by

recipient of medical assistance. In the case of an individual who has

suffered personal injuries and has received medical assistance pursuant

to titles eleven and eleven-D of article five of the social services law

on or after the date of such injury, notice of the commencement of an

action by or on behalf of such individual for such personal injuries

shall be sent to the social services district in the county in which

such recipient resides, or to the department of health, by certified

mail, return receipt requested, or electronically in accord with

regulations promulgated by the commissioner of the department of health,

within sixty days of the completion of service upon all parties to such

action. Proof of sending such notice shall be filed with the court in

accordance with rule three hundred six of this article. Sending such

notice shall not be a jurisdictional requirement to commencing an

action.

Additional mailing of notice in an action arising out of a

consumer credit transaction. (a) At the time of filing with the clerk of

the proof of service of the summons and complaint in an action arising

out of a consumer credit transaction, the plaintiff shall submit to the

clerk a stamped, unsealed envelope addressed to the defendant together

with a written notice in clear type of no less than twelve-point in

size, in both English and Spanish, and containing the following

language:

ADDITIONAL NOTICE OF LAWSUIT

(NAME OF COURT)

(COUNTY)

(STREET ADDRESS, ROOM NUMBER)

(CITY, STATE, ZIP CODE)

(NAME OF DEFENDANT)

(ADDRESS OF DEFENDANT)

Plaintiff:

Defendant:

Name of original creditor, unless same:

Index number:

Attention: a lawsuit has been filed against you claiming that you owe

money for an unpaid consumer debt.

You may wish to contact an attorney.

You should respond to the lawsuit as soon as possible by filing an

"answer" which may be done at the court clerk's office listed above.

If you do not respond to the lawsuit, the court may enter a money

judgment against you. Once entered, a judgment is good and can be used

against you for twenty years, and your personal property and money,

including a portion of your paycheck and/or bank account, may be taken

from you. Also, a judgment may affect your credit score and can affect

your ability to rent a home, find a job, or take out a loan.

You CANNOT be arrested or sent to jail for owing a debt.

Additional information can be found at the New York state court system

website.

Sources of information and assistance:

The court encourages you to inform yourself about your options as a

defendant in this lawsuit. In addition to seeking assistance from a

private attorney or legal aid office, there are free legal assistance

computer programs that you can use online to help you represent yourself

in this lawsuit.

For further information, or to locate a legal aid program near you, you

may visit the LawHelpNY website or the New York state court system

website, which has information for representing yourself and links to

other resources at: ___________________.

(b) The face of the envelope shall be addressed to the defendant at

the address at which process was served, and shall contain the

defendant's name, address (including apartment number) and zip code. The

face of the envelope also shall state the appropriate clerk's office as

its return address.

(c) The clerk promptly shall mail to the defendant the envelope

containing the additional notice set forth in subdivision (a) of this

section. No default judgment based on the defendant's failure to answer

shall be entered unless there has been compliance with this section, and

at least twenty days have elapsed from the date of mailing by the clerk.

No default judgment based on the defendant's failure to answer shall be

entered if the additional notice is returned to the court as

undeliverable. Receipt of the additional notice by the defendant does

not confer jurisdiction on the court in the absence of proper service of

process.

(d) The chief administrative judge shall issue a Spanish translation

of the notice in subdivision (a) of this section and shall maintain and

publish the URL address for the web page containing consumer resources

for unrepresented litigants.

Personal service upon the state. 1. Personal service upon the

state shall be made by delivering the summons to an assistant

attorney-general at an office of the attorney-general or to the

attorney-general within the state.

2. Personal service on a state officer sued solely in an official

capacity or state agency, which shall be required to obtain personal

jurisdiction over such an officer or agency, shall be made by (1)

delivering the summons to such officer or to the chief executive officer

of such agency or to a person designated by such chief executive officer

to receive service, or (2) by mailing the summons by certified mail,

return receipt requested, to such officer or to the chief executive

officer of such agency, and by personal service upon the state in the

manner provided by subdivision one of this section. Service by certified

mail shall not be complete until the summons is received in a principal

office of the agency and until personal service upon the state in the

manner provided by subdivision one of this section is completed. For

purposes of this subdivision, the term "principal office of the agency"

shall mean the location at which the office of the chief executive

officer of the agency is generally located. Service by certified mail

shall not be effective unless the front of the envelope bears the legend

"URGENT LEGAL MAIL" in capital letters. The chief executive officer of

every such agency shall designate at least one person, in addition to

himself or herself, to accept personal service on behalf of the agency.

For purposes of this subdivision the term state agency shall be deemed

to refer to any agency, board, bureau, commission, division, tribunal or

other entity which constitutes the state for purposes of service under

subdivision one of this section.

Personal service upon a natural person. Personal service upon

a natural person shall be made by any of the following methods:

1. by delivering the summons within the state to the person to be

served; or

2. by delivering the summons within the state to a person of suitable

age and discretion at the actual place of business, dwelling place or

usual place of abode of the person to be served and by either mailing

the summons to the person to be served at his or her last known

residence or by mailing the summons by first class mail to the person to

be served at his or her actual place of business in an envelope bearing

the legend "personal and confidential" and not indicating on the outside

thereof, by return address or otherwise, that the communication is from

an attorney or concerns an action against the person to be served, such

delivery and mailing to be effected within twenty days of each other;

proof of such service shall be filed with the clerk of the court

designated in the summons within twenty days of either such delivery or

mailing, whichever is effected later; service shall be complete ten days

after such filing; proof of service shall identify such person of

suitable age and discretion and state the date, time and place of

service, except in matrimonial actions where service hereunder may be

made pursuant to an order made in accordance with the provisions of

subdivision a of section two hundred thirty-two of the domestic

relations law; or

3. by delivering the summons within the state to the agent for service

of the person to be served as designated under rule 318, except in

matrimonial actions where service hereunder may be made pursuant to an

order made in accordance with the provisions of subdivision a of section

two hundred thirty-two of the domestic relations law;

4. where service under paragraphs one and two cannot be made with due

diligence, by affixing the summons to the door of either the actual

place of business, dwelling place or usual place of abode within the

state of the person to be served and by either mailing the summons to

such person at his or her last known residence or by mailing the summons

by first class mail to the person to be served at his or her actual

place of business in an envelope bearing the legend "personal and

confidential" and not indicating on the outside thereof, by return

address or otherwise, that the communication is from an attorney or

concerns an action against the person to be served, such affixing and

mailing to be effected within twenty days of each other; proof of such

service shall be filed with the clerk of the court designated in the

summons within twenty days of either such affixing or mailing, whichever

is effected later; service shall be complete ten days after such filing,

except in matrimonial actions where service hereunder may be made

pursuant to an order made in accordance with the provisions of

subdivision a of section two hundred thirty-two of the domestic

relations law;

5. in such manner as the court, upon motion without notice, directs,

if service is impracticable under paragraphs one, two and four of this

section.

6. For purposes of this section, "actual place of business" shall

include any location that the defendant, through regular solicitation or

advertisement, has held out as its place of business.

Personal service upon an infant, incompetent or conservatee.

(a) Upon an infant. Personal service upon an infant shall be made by

personally serving the summons within the state upon a parent or any

guardian or any person having legal custody or, if the infant is

married, upon an adult spouse with whom the infant resides, or, if none

are within the state, upon any other person with whom he resides, or by

whom he is employed. If the infant is of the age of fourteen years or

over, the summons shall also be personally served upon him within the

state.

(b) Upon a person judicially declared to be incompetent. Personal

service upon a person judicially declared to be incompetent to manage

his affairs and for whom a committee has been appointed shall be made by

personally serving the summons within the state upon the committee and

upon the incompetent, but the court may dispense with service upon the

incompetent.

(c) Upon a conservatee. Personal service on a person for whom a

conservator has been appointed shall be made by personally serving the

summons within the state upon the conservator and upon the conservatee,

but the court may dispense with service upon the conservatee.

Personal service upon a partnership. (a) Personal service upon

persons conducting a business as a partnership may be made by personally

serving the summons upon any one of them.

(b) Personal service upon said partnership may also be made within the

state by delivering the summons to the managing or general agent of the

partnership or the person in charge of the office of the partnership

within the state at such office and by either mailing the summons to the

partner thereof intended to be served by first class mail to his last

known residence or to the place of business of the partnership. Proof of

such service shall be filed within twenty days with the clerk of the

court designated in the summons; service shall be complete ten days

after such filing; proof of service shall identify the person to whom

the summons was so delivered and state the date, time of day and place

of service.

(c) Where service under subdivisions (a) and (b) of this section

cannot be made with due diligence, it may be made by affixing a copy of

the summons to the door of the actual place of business of the

partnership within the state and by either mailing the summons by first

class mail to the partner intended to be so served to such person to his

last known residence or to said person at the office of said partnership

within the state. Proof of such service shall be filed within twenty

days thereafter with the clerk of the court designated in the summons;

service shall be complete ten days after filing.

(d) Personal service on such partnership may also be made by

delivering the summons to any other agent or employee of the partnership

authorized by appointment to receive service; or to any other person

designated by the partnership to receive process in writing, filed in

the office of the clerk of the county wherein such partnership is

located.

(e) If service is impracticable under subdivisions (a), (b) and (c) of

this section, it may be made in such manner as the court, upon motion

without notice directs.

Personal service upon a limited partnership. (a) Personal

service upon any domestic or foreign limited partnership shall be made

by delivering a copy personally to any managing or general agent or

general partner of the limited partnership in this state, to any other

agent or employee of the limited partnership authorized by appointment

to receive service or to any other person designated by the limited

partnership to receive process, in the manner provided by law for

service of summons, as if such person was the defendant. Personal

service upon a limited partnership subject to the provisions of article

eight-A of the partnership law may also be made pursuant to section

121-109 of such law.

(b) If service is impracticable under subdivision (a) of this section,

it may be made in such manner as the court, upon motion without notice,

directs.

(c) A limited liability partnership may also be served pursuant to

section 121-1505 of the partnership law.

Personal service upon a corporation or governmental

subdivision. (a) Personal service upon a corporation or governmental

subdivision shall be made by delivering the summons as follows:

1. upon any domestic or foreign corporation, to an officer, director,

managing or general agent, or cashier or assistant cashier or to any

other agent authorized by appointment or by law to receive service. A

business corporation may also be served pursuant to section three

hundred six or three hundred seven of the business corporation law. A

not-for-profit corporation may also be served pursuant to section three

hundred six or three hundred seven of the not-for-profit corporation

law;

2. upon the city of New York, to the corporation counsel or to any

person designated to receive process in a writing filed in the office of

the clerk of New York county;

3. upon any other city, to the mayor, comptroller, treasurer, counsel

or clerk; or, if the city lacks such officers, to an officer performing

a corresponding function under another name;

4. upon a county, to the chair or clerk of the board of supervisors,

clerk, attorney or treasurer;

5. upon a town, to the supervisor or the clerk;

6. upon a village, to the mayor, clerk, or any trustee;

7. upon a school district, to a school officer, as defined in the

education law; and

8. upon a park, sewage or other district, to the clerk, any trustee

or any member of the board.

(b) If service upon a domestic or foreign corporation within the one

hundred twenty days allowed by section three hundred six-b of this

article is impracticable under paragraph one of subdivision (a) of this

section or any other law, service upon the corporation may be made in

such manner, and proof of service may take such form, as the court, upon

motion without notice, directs.

Personal service on limited liability companies. (a) Service

of process on any domestic or foreign limited liability company shall be

made by delivering a copy personally to (i) any member of the limited

liability company in this state, if the management of the limited

liability company is vested in its members, (ii) any manager of the

limited liability company in this state, if the management of the

limited liability company is vested in one or more managers, (iii) to

any other agent authorized by appointment to receive process, or (iv) to

any other person designated by the limited liability company to receive

process, in the manner provided by law for service of a summons as if

such person was a defendant. Service of process upon a limited liability

company may also be made pursuant to article three of the limited

liability company law.

(b) If service is impracticable under subdivision (a) of this section,

it may be made in such manner as the court, upon motion without notice,

directs.

Personal service upon a court, board or commission. Personal

service upon a court consisting of three or more judges may be made by

delivering the summons to any one of them. Personal service upon a board

or commission having a chairman or other presiding officer, secretary or

clerk, by whatever official title he is called, may be made by

delivering the summons to him. Personal service upon a board or

commission of a town or village may also be made by delivering the

summons to the clerk of the town or village. Personal service upon any

other board or commission shall be made by delivering the summons to any

one of the members.

Personal service by mail. (a) Service. As an alternative to

the methods of personal service authorized by section 307, 308, 310, 311

or 312 of this article, a summons and complaint, or summons and notice,

or notice of petition and petition may be served by the plaintiff or any

other person by mailing to the person or entity to be served, by first

class mail, postage prepaid, a copy of the summons and complaint, or

summons and notice or notice of petition and petition, together with two

copies of a statement of service by mail and acknowledgement of receipt

in the form set forth in subdivision (d) of this section, with a return

envelope, postage prepaid, addressed to the sender.

(b) Completion of service and time to answer. 1. The defendant, an

authorized employee of the defendant, defendant's attorney or an

employee of the attorney must complete the acknowledgement of receipt

and mail or deliver one copy of it within thirty (30) days from the date

of receipt. Service is complete on the date the signed acknowledgement

of receipt is mailed or delivered to the sender. The signed

acknowledgement of receipt shall constitute proof of service.

2. Where a complaint or petition is served with the summons or notice

of petition, the defendant shall serve an answer within twenty (20) days

after the date the signed acknowledgement of receipt is mailed or

delivered to the sender.

(c) Affirmation. The acknowledgement of receipt of service shall be

subscribed and affirmed as true under penalties of perjury and shall

have the same force and effect as an affidavit.

(d) Form. The statement of service by mail and the acknowledgement of

receipt of such service shall be in substantially the following form:

Statement of Service by Mail and

Acknowledgement of Receipt by Mail of

Summons and Complaint or Summons and Notice

or Notice of Petition and Petition

A. STATEMENT OF SERVICE

BY MAIL

To: (Insert the name and address of the person or entity to be served.)

The enclosed summons and complaint, or summons and notice, or notice of

petition and petition (strike out inapplicable terms) are served

pursuant to section 312-a of the Civil Practice Law and Rules.

To avoid being charged with the expense of service upon you, you must

sign, date and complete the acknowledgement part of this form and mail

or deliver one copy of the completed form to the sender within thirty

(30) days from the date you receive it. You should keep a copy for your

records or your attorney. If you wish to consult an attorney, you should

do so as soon as possible before the thirty (30) days expire.

If you do not complete and return the form to the sender within thirty

(30) days, you (or the party on whose behalf you are being served) will

be required to pay expenses incurred in serving the summons and

complaint, or summons and notice, or notice of petition and petition in

any other manner permitted by law, and the cost of such service as

permitted by law will be entered as a judgment against you.

If you have received a complaint or petition with this statement, the

return of this statement and acknowledgement does not relieve you of the

necessity to answer the complaint or petition. The time to answer

expires twenty (20) days after the day you mail or deliver this form to

the sender. If you wish to consult with an attorney, you should do so as

soon as possible before the twenty (20) days expire.

If you are served on behalf of a corporation, unincorporated

association, partnership or other entity, you must indicate under your

signature your relationship to the entity. If you are served on behalf

of another person and you are authorized to receive process, you must

indicate under your signature your authority.

It is a crime to forge a signature or to make a false entry on this

statement or on the acknowledgement.

B. ACKNOWLEDGEMENT OF RECEIPT OF SUMMONS AND COMPLAINT

OR SUMMONS AND NOTICE OR NOTICE OF PETITION AND PETITION

I received a summons and complaint, or summons and notice, or notice

of petition and petition (strike out inapplicable terms) in the

above-captioned matter at (insert address).

PLEASE CHECK ONE OF THE FOLLOWING;

IF 2 IS CHECKED, COMPLETE AS INDICATED:

1. / / I am not in military service.

2. / / I am in military service, and my rank and branch of service

are as follows:

Rank:___________________________________

Branch of Service:______________________

TO BE COMPLETED REGARDLESS OF MILITARY STATUS:

Date:_____________________________________________

(Date this Acknowledgement is executed)

I affirm the above as true under penalty of perjury.

__________________________________

Signature

__________________________________

Print name

__________________________________

Name of Defendant for which acting

__________________________________

Position with Defendant for which

acting (i.e., officer, attorney,

etc.)

PLEASE COMPLETE ALL BLANKS INCLUDING DATES

(e) Subsequent service. Where a duly executed acknowledgement is not

returned, upon the subsequent service of process in another manner

permitted by law, the summons or notice of petition or paper served with

the summons or notice of petition shall indicate that an attempt

previously was made to effect service pursuant to this section.

(f) Disbursements. Where the signed acknowledgement of receipt is not

returned within thirty (30) days after receipt of the documents mailed

pursuant to subdivision (a) of this section, the reasonable expense of

serving process by an alternative method shall be taxed by the court on

notice pursuant to section 8402 of this chapter as a disbursement to the

party serving process, and the court shall direct immediate judgment in

that amount.

Service without the state giving personal jurisdiction. A

person domiciled in the state or subject to the jurisdiction of the

courts of the state under section 301 or 302, or his executor or

administrator, may be served with the summons without the state, in the

same manner as service is made within the state, by any person

authorized to make service within the state who is a resident of the

state or by any person authorized to make service by the laws of the

state, territory, possession or country in which service is made or by

any duly qualified attorney, solicitor, barrister, or equivalent in such

jurisdiction.

Service without the state not giving personal jurisdiction in

certain actions. Service may be made without the state by any person

authorized by section 313 in the same manner as service is made within

the state:

1. in a matrimonial action; or

2. where a judgment is demanded that the person to be served be

excluded from a vested or contingent interest in or lien upon specific

real or personal property within the state; or that such an interest or

lien in favor of either party be enforced, regulated, defined or

limited; or otherwise affecting the title to such property, including an

action of interpleader or defensive interpleader; or

3. where a levy upon property of the person to be served has been made

within the state pursuant to an order of attachment or a chattel of such

person has been seized in an action to recover a chattel.

Service by publication authorized. The court, upon motion

without notice, shall order service of a summons by publication in an

action described in section 314 if service cannot be made by another

prescribed method with due diligence.

Rule 316. Service by publication. (a) Contents of order; form of

publication; filing. An order for service of a summons by publication

shall direct that the summons be published together with the notice to

the defendant, a brief statement of the nature of the action and the

relief sought, and, except in an action for medical malpractice, the sum

of money for which judgment may be taken in case of default and, if the

action is brought to recover a judgment affecting the title to, or the

possession, use or enjoyment of, real property, a brief description of

the property, in two newspapers, at least one in the English language,

designated in the order as most likely to give notice to the person to

be served, for a specified time, at least once in each of four

successive weeks, except that in the matrimonial action publication in

one newspaper in the English language, designated in the order as most

likely to give notice to the person to be served, at least once in each

of three successive weeks shall be sufficient. The summons, complaint,

or summons and notice in an action for divorce or separation, order and

papers on which the order was based shall be filed on or before the

first day of publication.

(b) Mailing to accompany publication in matrimonial actions. An order

for service of a summons by publication in a matrimonial action shall

also direct that on or before the first day of publication a copy of the

summons be mailed to the person to be served unless a place where such

person probably would receive mail cannot with due diligence be

ascertained and the court dispenses with such mailing. A notice of

publication shall be enclosed.

(c) Time of publication; when service complete. The first publication

of the summons shall be made within thirty days after the order is

granted. Service by publication is complete on the twenty-eighth day

after the day of first publication, except that in a matrimonial action

it is complete on the twenty-first day after the day of first

publication.

Defense by person to whom summons not personally delivered. A

person served with a summons other than by personal delivery to him or

to his agent for service designated under rule 318, within or without

the state, who does not appear may be allowed to defend the action

within one year after he obtains knowledge of entry of the judgment, but

in no event more than five years after such entry, upon a finding of the

court that he did not personally receive notice of the summons in time

to defend and has a meritorious defense. If the defense is successful,

the court may direct and enforce restitution in the same manner and

subject to the same conditions as where a judgment is reversed or

modified on appeal. This section does not apply to an action for

divorce, annulment or partition.

Rule 318. Designation of agent for service. A person may be

designated by a natural person, corporation or partnership as an agent

for service in a writing, executed and acknowledged in the same manner

as a deed, with the consent of the agent endorsed thereon. The writing

shall be filed in the office of the clerk of the county in which the

principal to be served resides or has its principal office. The

designation shall remain in effect for three years from such filing

unless it has been revoked by the filing of a revocation, or by the

death, judicial declaration of incompetency or legal termination of the

agent or principal.

Rule 320. Defendant's appearance. (a) Requirement of appearance. The

defendant appears by serving an answer or a notice of appearance, or by

making a motion which has the effect of extending the time to answer. An

appearance shall be made within twenty days after service of the

summons, except that if the summons was served on the defendant by

delivering it to an official of the state authorized to receive service

in his behalf or if it was served pursuant to section 303, subdivision

two, three, four or five of section 308, or sections 313, 314 or 315,

the appearance shall be made within thirty days after service is

complete. If the complaint is not served with the summons, the time to

appear may be extended as provided in subdivision (b) of section 3012.

(b) When appearance confers personal jurisdiction, generally. Subject

to the provisions of subdivision (c), an appearance of the defendant is

equivalent to personal service of the summons upon him, unless an

objection to jurisdiction under paragraph eight of subdivision (a) of

rule 3211 is asserted by motion or in the answer as provided in rule

3211.

(c) When appearance confers personal jurisdiction, in certain actions;

limited appearance. When the court's jurisdiction is not based upon

personal service on the defendant, an appearance is not equivalent to

personal service upon the defendant:

1. in a case specified in subdivision (3) of section 314, if

jurisdiction is based solely upon a levy on defendant's property within

the state pursuant to an order of attachment; or

2. in any other case specified in section 314, if an objection to

jurisdiction under paragraphs eight or nine of subdivision (a) of rule

3211, or both, is asserted by motion or in the answer as provided in

rule 3211, unless the defendant proceeds with the defense after

asserting the objection to jurisdiction and the objection is not

ultimately sustained.

(d) Appearance after first publication. Where the defendant appears

during the period of publication of a summons against him, the service

by publication shall be deemed completed by the appearance.

Attorneys. (a) Appearance in person or by attorney. A party,

other than one specified in section 1201 of this chapter, may prosecute

or defend a civil action in person or by attorney, except that a

corporation or voluntary association shall appear by attorney, except as

otherwise provided in sections 1809 and 1809-A of the New York city

civil court act, sections 1809 and 1809-A of the uniform district court

act and sections 1809 and 1809-A of the uniform city court act, and

except as otherwise provided in section 501 and section 1809 of the

uniform justice court act. If a party appears by attorney such party may

not act in person in the action except by consent of the court.

(b) Change or withdrawal of attorney. 1. Unless the party is a person

specified in section 1201, an attorney of record may be changed by

filing with the clerk a consent to the change signed by the retiring

attorney and signed and acknowledged by the party. Notice of such change

of attorney shall be given to the attorneys for all parties in the

action or, if a party appears without an attorney, to the party.

2. An attorney of record may withdraw or be changed by order of the

court in which the action is pending, upon motion on such notice to the

client of the withdrawing attorney, to the attorneys of all other

parties in the action or, if a party appears without an attorney, to the

party, and to any other person, as the court may direct.

(c) Death, removal or disability of attorney. If an attorney dies,

becomes physically or mentally incapacitated, or is removed, suspended

or otherwise becomes disabled at any time before judgment, no further

proceeding shall be taken in the action against the party for whom he

appeared, without leave of the court, until thirty days after notice to

appoint another attorney has been served upon that party either

personally or in such manner as the court directs.

(d) Limited scope appearance. 1. An attorney may appear on behalf of a

party in a civil action or proceeding for limited purposes. Whenever an

attorney appears for limited purposes, a notice of limited scope

appearance shall be filed in addition to any self-represented appearance

that the party may have already filed with the court. The notice of

limited scope appearance shall be signed by the attorney entering the

limited scope appearance and shall define the purposes for which the

attorney is appearing. Upon such filing, and unless otherwise directed

by the court, the attorney shall be entitled to appear for the defined

purposes.

2. Unless otherwise directed by the court upon a finding of

extraordinary circumstances and for good cause shown, upon completion of

the purposes for which the attorney has filed a limited scope

appearance, the attorney shall file a notice of completion of limited

scope appearance which shall constitute the attorney's withdrawal from

the action or proceeding.

Rule 322. Authority for appearance of attorney in real property

action. (a) Authority of plaintiff's attorney. Where the defendant in

an action affecting real property has not been served with evidence of

the authority of the plaintiff's attorney to begin the action, he may

move at any time before answering for an order directing the production

of such evidence. Any writing by the plaintiff or his agent requesting

the attorney to begin the action or ratifying his conduct of the action

on behalf of the plaintiff is prima facie evidence of the attorney's

authority.

(b) Authority of non-resident defendant's attorney. The attorney for a

non-resident defendant in an action affecting real property shall file

with the clerk written authority for his appearance, executed and

acknowledged in the form required to entitle a deed to be recorded, and

shall serve either a copy of such authority or notice of such filing on

the plaintiff's attorney within twenty days after appearing or making a

motion.

(c) Agencies or wholly-owned corporations of the United States. This

rule does not apply to an attorney representing an official, agency or

instrumentality of, or corporation wholly owned by, the United States.

Grounds for removal. (a) By supreme court for mistake in

choice of court. Where a mistake was made in the choice of the court in

which an action is commenced, the supreme court, upon motion, may remove

the action to the proper court, upon such terms as may be just.

(b) From court of limited jurisdiction. Where it appears that the

court in which an action is pending does not have jurisdiction to grant

the relief to which the parties are entitled, a court having such

jurisdiction may remove the action to itself upon motion. A waiver of

jury trial in the first court is inoperative after the removal.

(c) On consent to court of limited jurisdiction. Where it appears that

the amount of damages sustained are less than demanded, and a lower

court would have had jurisdiction of the action but for the amount of

damages demanded, the court in which an action is pending may remove it

to the lower court upon reduction of the amount of damages demanded to a

sum within the jurisdictional limits of the lower court and upon consent

of all parties to the action other than a defendant who has interposed

no counterclaim and over whom the lower court would have had

jurisdiction if the action had originally been commenced there. A waiver

of jury trial in the first court is inoperative after the removal.

(d) Without consent to court of limited jurisdiction. The appellate

division, if it determines that the calendar conditions in a lower court

so permit, may by rule provide that a court in which an action is

pending may, in its discretion, remove such action without consent to

such lower court where it appears that the amount of damages sustained

may be less than demanded, and the lower court would have had

jurisdiction but for the amount of damages demanded. If the action is so

removed, then the verdict or judgment shall be subject to the limitation

of monetary jurisdiction of the court in which the action was originally

commenced and shall be lawful to the extent of the amount demanded

within such limitation. A waiver of jury trial in the first court is

inoperative after the removal.

(e) From supreme court to surrogate's court where decedent's estate

affected. Where an action pending in the supreme court affects the

administration of a decedent's estate which is within the jurisdiction

of the surrogate's court, the supreme court, upon motion, may remove the

action to such surrogate's court upon the prior order of the surrogate's

court. The right of jury trial shall be preserved in the subsequent

proceedings.

(f) To supreme court where county judge incapacitated. Where a county

judge is incapable of acting in an action pending in the county court,

the supreme court may remove the action to itself. An objection to

jurisdiction that might have been taken in the county court may be taken

in the supreme court after the removal.

(g) From one local court to another. Where it is unlikely that an

action or proceeding pending in a district court, town court, village

court or city court will be disposed of within a reasonable period of

time because of (i) death, disability or other incapacity or

disqualification of all the judges of such court, or (ii) inability of

such court to form a jury in such action or proceeding, a judge of the

county court of the county in which such lower court is located, may,

upon motion of any party to such action or proceeding, order that it be

transferred for disposition by the lower court to any other district

court, town court, village court or city court in the same or an

adjoining county, provided that such other court has jurisdiction of the

subject matter of the action or proceeding and jurisdiction over the

classes of persons named as parties.

Rule 326. Procedure on removal. (a) Stay of proceedings. An order to

stay proceedings for the purpose of moving for removal may be made by

the court in which the action is pending or the court to which removal

is sought.

(b) Order and subsequent proceedings. Where an order of removal is

made by a court other than the court in which the action is pending, a

certified copy of the order shall be filed with the clerk of the court

in which the action is pending. Upon such filing or upon entry of an

order of removal by him, the clerk of the court in which an action is

pending shall forthwith deliver to the clerk of the court to which it

has been ordered removed all papers and records in the action and

certified copies of all minutes and entries which shall be filed,

entered or recorded, as the case requires, in the office of the latter

clerk. Subsequent proceedings shall be had in the court to which it has

been ordered removed as if the action had been originally commenced

there and no process, provisional remedy or other proceeding taken in

the court from which the action was removed shall be invalid as the

result of the removal.

(c) Fees and disbursements. If at the time the order of removal is

entered any filing, trial or jury demand fees have been paid, such fees

shall be credited against the fees which, for the same purpose, shall be

required in the court to which the action has been ordered removed. A

party entitled to tax disbursements after the removal may include fees

paid by him prior to the time the order of removal is entered.

Rule 327. Inconvenient forum. (a) When the court finds that in the

interest of substantial justice the action should be heard in another

forum, the court, on the motion of any party, may stay or dismiss the

action in whole or in part on any conditions that may be just. The

domicile or residence in this state of any party to the action shall not

preclude the court from staying or dismissing the action.

(b) Notwithstanding the provisions of subdivision (a) of this rule,

the court shall not stay or dismiss any action on the ground of

inconvenient forum, where the action arises out of or relates to a

contract, agreement or undertaking to which section 5-1402 of the

general obligations law applies, and the parties to the contract have

agreed that the law of this state shall govern their rights or duties in

whole or in part.

Rule 328. Assistance to tribunals and litigants outside the state.

(a) Pursuant to court order. Upon application by any interested person

or in response to letters rogatory issued by a tribunal outside the

state, the supreme court or a county court of the state may order

service upon any person who is domiciled or can be found within the

state of any document issued in connection with a proceeding in a

tribunal outside the state. The order shall direct the manner of

service.

(b) Without court order. Service in connection with a proceeding in a

tribunal outside the state may be made within the state without an order

of court.

(c) Effect. Service under this rule does not, of itself, require the

recognition or enforcement of an order, judgment or decree rendered

outside the state.

Legally protected health activities. Notwithstanding any

general or special law, common law, or conflict of law rule to the

contrary, the laws of this state shall govern in any case or controversy

heard in this state related to legally protected health activity, as

defined by section 570.17 of the criminal procedure law.

Parties. The party commencing a special proceeding shall be

styled the petitioner and any adverse party the respondent. After a

proceeding is commenced, no party shall be joined or interpleaded and no

third-party practice or intervention shall be allowed, except by leave

of court.

Pleadings. There shall be a petition, which shall comply with

the requirements for a complaint in an action, and an answer where there

is an adverse party. There shall be a reply to a counterclaim

denominated as such and there may be a reply to new matter in the answer

in any case. The court may permit such other pleadings as are authorized

in an action upon such terms as it may specify. Where there is no

adverse party the petition shall state the result of any prior

application for similar relief and shall specify the new facts, if any,

that were not previously shown.

Notice of petition; service; order to show cause. (a) Notice of

petition. A notice of petition shall specify the time and place of the

hearing on the petition and the supporting affidavits, if any,

accompanying the petition.

(b) Time for service of notice of petition and answer. A notice of

petition, together with the petition and affidavits specified in the

notice, shall be served on any adverse party at least eight days before

the time at which the petition is noticed to be heard. An answer and

supporting affidavits, if any, shall be served at least two days before

such time. A reply, together with supporting affidavits, if any, shall

be served at or before such time. An answer shall be served at least

seven days before such time if a notice of petition served at least

twelve days before such time so demands; whereupon any reply shall be

served at least one day before such time.

(c) Manner of service. A notice of petition shall be served in the

same manner as a summons in an action.

(d) Order to show cause. The court may grant an order to show cause to

be served, in lieu of a notice of petition at a time and in a manner

specified therein.

Objections in point of law. (a) By respondent. The respondent

may raise an objection in point of law by setting it forth in his answer

or by a motion to dismiss the petition, made upon notice within the time

allowed for answer. If the motion is denied, the court may permit the

respondent to answer, upon such terms as may be just; and unless the

order specifies otherwise, such answer shall be served and filed within

five days after service of the order with notice of entry; and the

petitioner may re-notice the matter for hearing upon two days' notice,

or the respondent may re-notice the matter for hearing upon service of

the answer upon seven days' notice.

(b) By petitioner. The petitioner may raise an objection in point of

law to new matter contained in the answer by setting it forth in his

reply or by moving to strike such matter on the day the petition is

noticed or re-noticed to be heard.

Correction of defects in papers. (a) Motion to correct. Either

party may move to cure a defect or omission in the record, or to strike

scandalous or prejudicial matter unnecessarily inserted in a pleading,

or for a more definite statement of a pleading which is so vague or

ambiguous that he cannot reasonably be required to frame a response.

(b) Time limits; pleading after disposition. A party shall make a

motion under this section by serving a notice of motion or order to show

cause within the time allowed for his responsive pleading. Unless the

court so orders on motion made without notice on the ground that the

party is unable to plead until the papers are corrected, the motion

shall not extend the time for such responsive pleading. If the motion is

granted, the party who made the motion shall serve and file his

responsive pleading within five days after service of the amended

pleading. If the motion is denied and the time to serve a responsive

pleading has been extended, the party shall serve and file his

responsive pleading within two days after service of the order denying

the motion with notice of entry, unless the order specifies otherwise. A

party may re-notice the matter for hearing upon two days' notice.

(c) Petitioner's motion. The petitioner may raise the objections

specified in subdivision (a) in his reply or by motion on the day on

which the petition has been noticed or re-noticed to be heard.

Rule 406. Motions. Motions in a special proceeding, made before the

time at which the petition is noticed to be heard, shall be noticed to

be heard at that time.

Severance. The court may at any time order a severance of a

particular claim, counterclaim or cross-claim, or as to a particular

party, and order that, as to such claim or party, the special proceeding

continue as an action or as a separate special proceeding.

Disclosure. Leave of court shall be required for disclosure

except for a notice under section 3123. A notice under section 3123 may

be served at any time not later than three days before the petition is

noticed to be heard and the statement denying or setting forth the

reasons for failing to admit or deny shall be served not later than one

day before the petition is noticed to be heard, unless the court orders

otherwise on motion made without notice. This section shall not be

applicable to proceedings in a surrogate's court, nor to proceedings

relating to express trusts pursuant to article 77, both of which shall

be governed by article 31.

Rule 409. Hearing. (a) Furnishing of papers; filing. Upon the hearing,

each party shall furnish to the court all papers served by him. The

petitioner shall furnish all other papers not already in the possession

of the court necessary to the consideration of the questions involved.

Where such papers are in the possession of an adverse party, they shall

be produced by such party at the hearing on notice served with the

petition. The court may require the submission of additional proof. All

papers furnished to the court shall be filed unless the court orders

otherwise.

(b) Summary determination. The court shall make a summary

determination upon the pleadings, papers and admissions to the extent

that no triable issues of fact are raised. The court may make any orders

permitted on a motion for summary judgment.

Trial. If triable issues of fact are raised they shall be tried

forthwith and the court shall make a final determination thereon. If

issues are triable of right by jury, the court shall give the parties an

opportunity to demand a jury trial of such issues. Failure to make such

demand within the time limited by the court, or, if no such time is

limited, before trial begins, shall be deemed a waiver of the right to

trial by jury.

Rule 411. Judgment. The court shall direct that a judgment be entered

determining the rights of the parties to the special proceeding.

Contractual provisions fixing venue. Subject to the provisions

of subdivision two of section five hundred ten and section five hundred

fourteen of this article, written agreement fixing place of trial, made

before an action is commenced, shall be enforced upon a motion for

change of place of trial.

Conflicting venue provisions. Where, because of joinder of

claims or parties, there is a conflict of provisions under this article,

the court, upon motion, shall order as the place of trial one proper

under this article as to at least one of the parties or claims.

Venue based on residence. (a) Generally. Except where otherwise

prescribed by law, the place of trial shall be in the county in which

one of the parties resided when it was commenced; the county in which a

substantial part of the events or omissions giving rise to the claim

occurred; or, if none of the parties then resided in the state, in any

county designated by the plaintiff. A party resident in more than one

county shall be deemed a resident of each such county.

(b) Executor, administrator, trustee, committee, conservator, general

or testamentary guardian, or receiver. An executor, administrator,

trustee, committee, conservator, general or testamentary guardian, or

receiver shall be deemed a resident of the county of his appointment as

well as the county in which he actually resides.

(c) Corporation. A domestic corporation, or a foreign corporation

authorized to transact business in the state, shall be deemed a resident

of the county in which its principal office is located; except that such

a corporation, if a railroad or other common carrier, shall also be

deemed a resident of the county where the cause of action arose.

(d) Unincorporated association, partnership, or individually-owned

business. A president or treasurer of an unincorporated association,

suing or being sued on behalf of the association, shall be deemed a

resident of any county in which the association has its principal

office, as well as the county in which he actually resides. A

partnership or an individually-owned business shall be deemed a resident

of any county in which it has its principal office, as well as the

county in which the partner or individual owner suing or being sued

actually resides.

(e) Assignee. In an action for a sum of money only, brought by an

assignee other than an assignee for the benefit of creditors or a holder

in due course of a negotiable instrument, the assignee's residence shall

be deemed the same as that of the original assignor at the time of the

original assignment.

(f) Consumer credit transaction. In an action arising out of a

consumer credit transaction where a purchaser, borrower or debtor is a

defendant, the place of trial shall be the residence of a defendant, if

one resides within the state or the county where such transaction took

place, if it is within the state, or, in other cases, as set forth in

subdivision (a).

(g) Student debt. In an action to recover tuition, fees, room and

board, educational benefit payments, student loans, or other such

charges incurred by a student in furtherance of such student's education

owed to the state of New York, the place of trial shall be the residence

of a defendant, if one resides within the state, or, in other cases, as

set forth in this article.

Actions against counties, cities, towns, villages, school

districts and district corporations. Notwithstanding the provisions of

any charter heretofore granted by the state and subject to the

provisions of subdivision (b) of section 506, the place of trial of all

actions against counties, cities, towns, villages, school districts and

district corporations or any of their officers, boards or departments

shall be, for:

1. a county, in such county;

2. a city, except the city of New York, town, village, school district

or district corporation, in the county in which such city, town,

village, school district or district corporation is situated, or if such

school district or district corporation is situated in more than one

county, in either county; and

3. the city of New York, in the county within the city in which the

cause of action arose, or if it arose outside of the city, in the county

of New York.

Actions involving public authorities. (a) Generally. The place

of trial of an action by or against a public authority constituted under

the laws of the state shall be in the county in which the authority has

its principal office or where it has facilities involved in the action.

(b) Against New York city transit authority. The place of trial of an

action against the New York city transit authority shall be in the

county within the city of New York in which the cause of action arose,

or, if it arose outside of the city, in the county of New York.

Where special proceeding commenced. (a) Generally. Unless

otherwise prescribed in subdivision (b) or in the law authorizing the

proceeding, a special proceeding may be commenced in any county within

the judicial district where the proceeding is triable.

(b) Proceeding against body or officer. A proceeding against a body or

officer shall be commenced in any county within the judicial district

where the respondent made the determination complained of or refused to

perform the duty specifically enjoined upon him by law, or where the

proceedings were brought or taken in the course of which the matter

sought to be restrained originated, or where the material events

otherwise took place, or where the principal office of the respondent is

located, except that

1. a proceeding against a justice of the supreme court or a judge of a

county court or the court of general sessions shall be commenced in the

appellate division in the judicial department where the action, in the

course of which the matter sought to be enforced or restrained

originated, is triable, unless a term of the appellate division in that

department is not in session, in which case the proceeding may be

commenced in the appellate division in an adjoining judicial department;

and

2. a proceeding against the regents of the university of the state of

New York, the commissioner of education, the commissioner of taxation

and finance, the tax appeals tribunal except as provided in section two

thousand sixteen of the tax law, the public service commission, the

commissioner or the department of transportation relating to articles

three, four, five, six, seven, eight, nine or ten of the transportation

law or to the railroad law, the water resources board, the comptroller

or the department of agriculture and markets, shall be commenced in the

supreme court, Albany county.

3. notwithstanding the provisions of paragraph two of this

subdivision, a proceeding against the commissioner of education pursuant

to section forty-four hundred four of the education law may be commenced

in the supreme court in the county of residence of the petitioner.

4. a proceeding against the New York city tax appeals tribunal

established by section one hundred sixty-eight of the New York city

charter shall be commenced in the appellate division of the supreme

court, first department.

5. a proceeding challenging apportionment by the legislature shall be

commenced in the supreme court in any of the following designated

counties in a judicial department where at least one petitioner resides:

(i) first judicial department: New York county;

(ii) second judicial department: Westchester county;

(iii) third judicial department: Albany county; or

(iv) fourth judicial department: Erie county.

Real property actions. The place of trial of an action in which

the judgment demanded would affect the title to, or the possession, use

or enjoyment of, real property shall be in the county in which any part

of the subject of the action is situated.

Actions to recover a chattel. The place of trial of an action

to recover a chattel may be in the county in which any part of the

subject of the action is situated at the time of the commencement of the

action.

Venue in county designated. Notwithstanding any provision of

this article except for rule 515, the place of trial of an action shall

be in the county designated by the plaintiff, unless the place of trial

is changed to another county by order upon motion, or by consent as

provided in subdivision (b) of rule 511 of this article.

Grounds for change of place of trial. The court, upon motion,

may change the place of trial of an action where:

1. the county designated for that purpose is not a proper county; or

2. there is reason to believe that an impartial trial cannot be had in

the proper county; or

3. the convenience of material witnesses and the ends of justice will

be promoted by the change.

Rule. 511. Change of place of trial. (a) Time for motion or demand. A

demand under subdivision (b) for change of place of trial on the ground

that the county designated for that purpose is not a proper county shall

be served with the answer or before the answer is served. A motion for

change of place of trial on any other ground shall be made within a

reasonable time after commencement of the action.

(b) Demand for change of place of trial upon ground of improper venue,

where motion made. The defendant shall serve a written demand that the

action be tried in a county he specifies as proper. Thereafter the

defendant may move to change the place of trial within fifteen days

after service of the demand, unless within five days after such service

plaintiff serves a written consent to change the place of trial to that

specified by the defendant. Defendant may notice such motion to be heard

as if the action were pending in the county he specified, unless

plaintiff within five days after service of the demand serves an

affidavit showing either that the county specified by the defendant is

not proper or that the county designated by him is proper.

(c) Stay of proceedings. No order to stay proceedings for the purpose

of changing the place of trial shall be granted unless it appears from

the papers that the change is sought with due diligence.

(d) Order, subsequent proceedings and appeal. Upon filing of consent

by the plaintiff or entry of an order changing the place of trial by the

clerk of the county from which it is changed, the clerk shall forthwith

deliver to the clerk of the county to which it is changed all papers

filed in the action and certified copies of all minutes and entries,

which shall be filed, entered or recorded, as the case requires, in the

office of the latter clerk. Subsequent proceedings shall be had in the

county to which the change is made as if it had been designated

originally as the place of trial, except as otherwise directed by the

court. An appeal from an order changing the place of trial shall be

taken in the department in which the motion for the order was heard and

determined.

Rule 512. Change of place of trial of action or issue triable without

a jury. The place of trial of an action or any issue triable without a

jury may be, in the discretion of the court, in any county within the

judicial district in which the action is triable. After the trial, the

decision and all other papers relating to the trial shall be filed and

the judgment entered in the county where the action is pending.

Misplacement of venue in consumer credit transactions. (a) In

an action arising out of a consumer credit transaction, the clerk shall

not accept a summons for filing when it appears upon its face that the

proper venue is a county other than the county where such summons is

offered for filing.

(b) The clerk shall indicate upon the summons the date of the

rejection and shall enter such date in a register maintained by him

together with the name of the counties in which the summons may properly

be filed.

(c) Notwithstanding subdivisions one and three of section three

hundred eight, where a summons has been rejected for filing by virtue of

this section, service is complete ten days after such summons is filed

in the proper county with proof of service upon the defendant of the

summons, together with proof of service upon the defendant by registered

or certified mail of a notice setting forth the following:

1. the proper county,

2. the date of filing of the summons,

3. the date within which the answer or notice of appearance is to be

filed, and

4. the address at which it is to be filed.

Actions relating to consumer goods. 1. For the purposes of this

section, "consumer goods" shall mean goods, wares, paid merchandise or

services purchased or paid for by a consumer, the intended use or

benefit of which is intended for the personal, family or household

purposes of such consumer.

2. In any contract involving the sale, lease or otherwise providing of

consumer goods, any portion of the contract or any clause which purports

to designate, restrict, or limit the venue in which a claim shall be

adjudicated or arbitrated shall be deemed void as against public policy.

Nothing in this section shall be deemed to affect the validity of any

other aspect of a contract.

Rule 515. Venue in matrimonial actions. (a) This rule applies to all

actions wherein all or part of the relief granted is divorce, all

actions brought in supreme court for custody or visitation, all

applications to modify a supreme court order of custody or visitation,

all actions wherein all or part of the relief granted is the

dissolution, annulment or declaration of the nullity of a marriage, all

proceedings to obtain a distribution of marital property following a

foreign judgment of divorce, and all post-judgment proceedings following

a judgment of divorce.

(b) Notwithstanding anything to the contrary in this article, the

place of trial in an action subject to subdivision (a) of this rule

shall be in a county in which either party resides or, if there are

minor children of the marriage, the place of trial may also be in the

county where one of such children resides; except that where any of the

addresses of these residences is not a matter of public record, or where

any of these addresses is subject to an existing confidentiality order

pursuant to section 254 of the domestic relations law or section 154-b

of the family court act, the place of trial designated by the plaintiff

in any action specified in subdivision (a) of this rule may be as

specified in section 509 of this article.

(c) In any action specified in subdivision (a) of this rule, the court

may, for good cause shown, allow the trial to proceed before it,

notwithstanding that venue would not lie pursuant to subdivision (b) of

this rule. Good cause applications shall be made by motion or order to

show cause.

Joinder of claims. (a) The plaintiff in a complaint or the

defendant in an answer setting forth a counterclaim or cross-claim may

join as many claims as he may have against an adverse party. There may

be like joinder of claims when there are multiple parties.

(b) Two or more plaintiffs may join no more than five claims in any

one action or proceeding against the same defendant arising out of

separate consumer credit transactions, provided that the plaintiffs are

represented by the same attorney.

Consolidation. (a) Generally. When actions involving a common

question of law or fact are pending before a court, the court, upon

motion, may order a joint trial of any or all the matters in issue, may

order the actions consolidated, and may make such other orders

concerning proceedings therein as may tend to avoid unnecessary costs or

delay.

(b) Cases pending in different courts. Where an action is pending in

the supreme court it may, upon motion, remove to itself an action

pending in another court and consolidate it or have it tried together

with that in the supreme court. Where an action is pending in the county

court, it may, upon motion, remove to itself an action pending in a

city, municipal, district or justice court in the county and consolidate

it or have it tried together with that in the county court.

Severance and separate trials. In furtherance of convenience or

to avoid prejudice the court may order a severance of claims, or may

order a separate trial of any claim, or of any separate issue. The court

may order the trial of any claim or issue prior to the trial of the

others.

Change by supreme court of place of trial of action pending in

another court. Upon motion of any party, the supreme court may order

that an issue of fact in an action pending in another court, except an

action relating to real property pending in a county court, be tried in

the supreme court in another county upon such terms as may be just.

After the trial, the clerk of the county in which it has taken place

shall certify the minutes thereof, which shall be filed with the clerk

of the court in which the action is pending. Subsequent proceedings

shall be the same as if the issue had been tried in the court in which

the action is pending.

Prerequisites to a class action. a. One or more members of a

class may sue or be sued as representative parties on behalf of all if:

1. the class is so numerous that joinder of all members, whether

otherwise required or permitted, is impracticable;

2. there are questions of law or fact common to the class which

predominate over any questions affecting only individual members;

3. the claims or defenses of the representative parties are typical of

the claims or defenses of the class;

4. the representative parties will fairly and adequately protect the

interests of the class; and

5. a class action is superior to other available methods for the fair

and efficient adjudication of the controversy.

b. Unless a statute creating or imposing a penalty, or a minimum

measure of recovery specifically authorizes the recovery thereof in a

class action, an action to recover a penalty, or minimum measure of

recovery created or imposed by statute may not be maintained as a class

action.

Order allowing class action. Within sixty days after the time

to serve a responsive pleading has expired for all persons named as

defendants in an action brought as a class action, the plaintiff shall

move for an order to determine whether it is to be so maintained. An

order under this section may be conditional, and may be altered or

amended before the decision on the merits on the court's own motion or

on motion of the parties. The action may be maintained as a class action

only if the court finds that the prerequisites under section 901 have

been satisfied. Among the matters which the court shall consider in

determining whether the action may proceed as a class action are:

1. the interest of members of the class in individually controlling

the prosecution or defense of separate actions;

2. the impracticability or inefficiency of prosecuting or defending

separate actions;

3. the extent and nature of any litigation concerning the controversy

already commenced by or against members of the class;

4. the desirability or undesirability of concentrating the litigation

of the claim in the particular forum;

5. the difficulties likely to be encountered in the management of a

class action.

Description of class. The order permitting a class action shall

describe the class. When appropriate the court may limit the class to

those members who do not request exclusion from the class within a

specified time after notice.

Notice of class action. (a) In class actions brought primarily

for injunctive or declaratory relief, notice of the pendency of the

action need not be given to the class unless the court finds that notice

is necessary to protect the interests of the represented parties and

that the cost of notice will not prevent the action from going forward.

(b) In all other class actions, reasonable notice of the commencement

of a class action shall be given to the class in such manner as the

court directs.

(c) The content of the notice shall be subject to court approval. In

determining the method by which notice is to be given, the court shall

consider

I. the cost of giving notice by each method considered

II. the resources of the parties and

III. the stake of each represented member of the class, and the

likelihood that significant numbers of represented members would desire

to exclude themselves from the class or to appear individually, which

may be determined, in the court's discretion, by sending notice to a

random sample of the class.

(d) I. Preliminary determination of expenses of notification. Unless

the court orders otherwise, the plaintiff shall bear the expense of

notification. The court may, if justice requires, require that the

defendant bear the expense of notification, or may require each of them

to bear a part of the expense in proportion to the likelihood that each

will prevail upon the merits. The court may hold a preliminary hearing

to determine how the costs of notice should be apportioned.

II. Final determination. Upon termination of the action by order or

judgment, the court may, but shall not be required to, allow to the

prevailing party the expenses of notification as taxable disbursements

under article eighty-three of the civil practice law and rules.

Judgment. The judgment in an action maintained as a class

action, whether or not favorable to the class, shall include and

describe those whom the court finds to be members of the class.

Actions conducted partially as class actions. When appropriate,

1. an action may be brought or maintained as a class action with

respect to particular issues, or

2. a class may be divided into subclasses and each subclass treated as

a class.

The provisions of this article shall then be construed and applied

accordingly.

Rule 907. Orders in conduct of class actions. In the conduct of class

actions the court may make appropriate orders:

1. determining the course of proceedings or prescribing measures to

prevent undue repetition or complication in the presentation of evidence

or argument;

2. requiring, for the protection of the members of the class, or

otherwise for the fair conduct of the action, that notice be given in

such manner as the court may direct to some or all of the members of any

step in the action, or of the proposed extent of the judgment, or of the

opportunity of members to signify whether they consider the

representation fair and adequate, or to appear and present claims or

defenses, or otherwise to come into the action;

3. imposing conditions on the representative parties or on

intervenors;

4. requiring that the pleadings be amended to eliminate therefrom

allegations as to representation of absent persons, and that the action

proceed accordingly;

5. directing that a money judgment favorable to the class be paid

either in one sum, whether forthwith or within such period as the court

may fix, or in such installments as the court may specify;

6. dealing with similar procedural matters.

The orders may be altered or amended as may be desirable from time to

time.

Rule 908. Dismissal, discontinuance or compromise. A class action

shall not be dismissed, discontinued, or compromised without the

approval of the court. Notice of the proposed dismissal,

discontinuance, or compromise shall be given to all members of the class

in such manner as the court directs.

Rule 909. Attorneys' fees. If a judgment in an action maintained as a

class action is rendered in favor of the class, the court in its

discretion may award attorneys' fees to the representatives of the class

and/or to any other person that the court finds has acted to benefit the

class based on the reasonable value of legal services rendered and if

justice requires, allow recovery of the amount awarded from the opponent

of the class.

Necessary joinder of parties. (a) Parties who should be

joined. Persons who ought to be parties if complete relief is to be

accorded between the persons who are parties to the action or who might

be inequitably affected by a judgment in the action shall be made

plaintiffs or defendants. When a person who should join as a plaintiff

refuses to do so he may be made a defendant.

(b) When joinder excused. When a person who should be joined under

subdivision (a) has not been made a party and is subject to the

jurisdiction of the court, the court shall order him summoned. If

jurisdiction over him can be obtained only by his consent or appearance,

the court, when justice requires, may allow the action to proceed

without his being made a party. In determining whether to allow the

action to proceed, the court shall consider:

1. whether the plaintiff has another effective remedy in case the

action is dismissed on account of the nonjoinder;

2. the prejudice which may accrue from the nonjoinder to the defendant

or to the person not joined;

3. whether and by whom prejudice might have been avoided or may in the

future be avoided;

4. the feasibility of a protective provision by order of the court or

in the judgment; and

5. whether an effective judgment may be rendered in the absence of the

person who is not joined.

Permissive joinder of parties. (a) Plaintiffs. Persons who

assert any right to relief jointly, severally, or in the alternative

arising out of the same transaction, occurrence, or series of

transactions or occurrences, may join in one action as plaintiffs if any

common question of law or fact would arise.

(b) Defendants. Persons against whom there is asserted any right to

relief jointly, severally, or in the alternative, arising out of the

same transaction, occurrence, or series of transactions or occurrences,

may be joined in one action as defendants if any common question of law

or fact would arise.

(c) Separate relief; separate trials. It shall not be necessary that

each plaintiff be interested in obtaining, or each defendant be

interested in defending against, all the relief demanded or as to every

claim included in an action; but the court may make such orders as will

prevent a party from being embarrassed, delayed, or put to expense by

the inclusion of a party against whom he asserts no claim and, who

asserts no claim against him, and may order separate trials or make

other orders to prevent prejudice.

Nonjoinder and misjoinder of parties. Nonjoinder of a party

who should be joined under section 1001 is a ground for dismissal of an

action without prejudice unless the court allows the action to proceed

without that party under the provisions of that section. Misjoinder of

parties is not a ground for dismissal of an action. Parties may be added

at any stage of the action by leave of court or by stipulation of all

parties who have appeared, or once without leave of court within twenty

days after service of the original summons or at anytime before the

period for responding to that summons expires or within twenty days

after service of a pleading responding to it. Parties may be dropped by

the court, on motion of any party or on its own initiative, at any stage

of the action and upon such terms as may be just. The court may order

any claim against a party severed and proceeded with separately.

When joinder unnecessary. Except where otherwise prescribed by

order of the court, an executor, administrator, guardian of the property

of an infant, committee of the property of a judicially declared

incompetent, conservator of the property of a conservatee, trustee of an

express trust, insured person who has executed to his insurer either a

loan or subrogation receipt, trust agreement, or other similar

agreement, or person with whom or in whose name a contract has been made

for the benefit of another, may sue or be sued without joining with him

the person for or against whose interest the action is brought.

Interpleader. (a) Stakeholder; claimant; action of

interpleader. A stakeholder is a person who is or may be exposed to

multiple liability as the result of adverse claims. A claimant is a

person who has made or may be expected to make such a claim. A

stakeholder may commence an action of interpleader against two or more

claimants.

(b) Defensive interpleader. A defendant stakeholder may bring in a

claimant who is not a party by filing a summons and interpleader

complaint. Service of process upon such a claimant shall be by serving

upon such claimant a summons and interpleader complaint and all prior

pleadings served in the action.

(c) Effect of pendency of another action against stakeholder. If a

stakeholder seeks to bring in a claimant pursuant to subdivision (b) and

there is pending in a court of the state an action between the claimant

and the stakeholder based upon the same claim, the appropriate court, on

motion, upon such terms as may be just, may dismiss the interpleader

complaint and order consolidation or joint trial of the actions, or may

make the claimant a party and stay the pending action until final

disposition of the action in which interpleader is so granted, and may

make such further order as may be just.

(d) Abolition of former grounds for objection. It is not ground for

objection to interpleader that the claims of the several claimants or

the titles on which their claims depend do not have a common origin or

are not identical but are adverse to and independent of one another, or

that the stakeholder avers that he is not liable in whole or in part to

any or all of the claimants.

(e) Issue of independent liability. Where the issue of an independent

liability of the stakeholder to a claimant is raised by the pleadings or

upon motion, the court may dismiss the claim of the appropriate

claimant, order severance or separate trials, or require the issue to be

tried in the action.

(f) Discharge of stakeholder. After the time for all parties to plead

has expired, the stakeholder may move for an order discharging him from

liability in whole or in part to any party. The stakeholder shall submit

proof by affidavit or otherwise of the allegations in his pleading. The

court may grant the motion and require payment into court, delivery to a

person designated by the court or retention to the credit of the action,

of the subject matter of the action to be disposed of in accordance with

further order or the judgment. An order under subdivision (g) shall not

discharge the stakeholder from liability to any claimant until an order

granted under this subdivision is complied with. The court shall impose

such terms relating to payment of expenses, costs and disbursements as

may be just and which may be charged against the subject matter of the

action. If the court shall determine that a party is entitled to

interest, in the absence of an agreement by the stakeholder as to the

rate of interest, he shall be liable to such party for interest to the

date of discharge at a rate no greater than the lowest discount rate of

the Federal Reserve Bank of New York for discounts for, and advances to,

member banks in effect from time to time during the period for which, as

found by the court, interest should be paid.

(g) Deposit of money as basis for jurisdiction. Where a stakeholder is

otherwise entitled to proceed under this section for the determination

of a right to, interest in or lien upon a sum of money, whether or not

liquidated in amount, payable in the state pursuant to a contract or

claimed as damages for unlawful retention of specific real or personal

property in the state, he may move, either before or after an action has

been commenced against him, for an order permitting him to pay the sum

of money or part of it into court or to a designated person or to retain

it to the credit of the action. Upon compliance with a court order

permitting such deposit or retention, the sum of money shall be deemed

specific property within the state within the meaning of paragraph two

of section 314.

When third-party practice allowed. (a) After the service of a

defendant's answer, the defendant may proceed against a person or legal

entity not a party who is or may be liable to that defendant for all or

part of the plaintiff's claim against that defendant, by filing pursuant

to section three hundred four of this chapter a third-party summons and

complaint with the clerk of the court in the county in which the main

action is pending, for which a separate index number shall not be issued

but a separate index number fee shall be collected. The third-party

summons and complaint and all prior pleadings served in the action shall

be served upon such person or legal entity within twenty days of the

filing. A defendant serving a third-party complaint shall be styled a

third-party plaintiff and the person or legal entity so served shall be

styled a third-party defendant. The defendant shall also serve a copy of

such third-party complaint upon the plaintiff's attorney simultaneously

upon issuance for service of the third-party complaint on the

third-party defendant.

(b) A defendant shall not file a third-party summons and complaint

more than ninety days after serving its answer without an order of the

court.

(c) No third-party summons and complaint may be filed after the filing

of a note of issue unless upon good cause shown or in the interest of

justice.

(d) An action filed in violation of this subdivision shall be severed

or dismissed without prejudice.

(e) Notwithstanding subdivisions (b) and (c) of this section, a

defendant or third-party defendant may file a third-party summons and

complaint against an employer of the plaintiff without an order of the

court within ninety days after the later of: 1. the date the identity of

the employer of the plaintiff becomes known to the defendant or

third-party defendant, or 2. the date the defendant or third-party

defendant knows or should know the plaintiff sustained a grave injury,

as such term is defined in section eleven of the workers' compensation

law.

(f) In the event a third-party action is severed from the initial

action pursuant to this section, and a third-party plaintiff proceeds to

initiate a new action by the filing of a summons and complaint against a

severed third-party defendant, any motion to consolidate such actions

shall not be permitted.

Answer of third-party defendant; defenses. The third-party

defendant shall answer the claim asserted against him or her by serving

copies of his or her answer upon the third-party plaintiff. The

third-party defendant may assert against the plaintiff in his or her

answer any defenses which the third-party plaintiff has to the

plaintiff's claim except an objection or defense that the summons and

complaint, summons with notice or notice of petition and petition was

not properly served, or that jurisdiction was not obtained over the

third-party plaintiff. The third-party defendant shall have the rights

of a party adverse to the other parties in the action, including the

right to counter-claim, cross-claim and appeal.

Rule 1009. Claim by plaintiff against third-party defendant. Within

twenty days after service of the answer to the third-party complaint

upon plaintiff's attorney, the plaintiff may amend his complaint without

leave of court to assert against the third-party defendant any claim

plaintiff has against the third-party defendant.

Rule 1010. Dismissal or separate trial of third-party complaint. The

court may dismiss a third-party complaint without prejudice, order a

separate trial of the third-party claim or of any separate issue

thereof, or make such other order as may be just. In exercising its

discretion, the court shall consider whether the controversy between the

third-party plaintiff and the third-party defendant will unduly delay

the determination of the main action or prejudice the substantial rights

of any party.

Rule 1011. Successive third-party proceedings; counterclaims. A

third-party defendant may proceed pursuant to section 1007 against any

person who is or may be liable to him for all or part of the third-party

claim. When a counterclaim is asserted against a plaintiff, he may

proceed pursuant to section 1007 as if he were a defendant.

Intervention as of right; notice to attorney-general, city,

county, town or village where constitutionality in issue. (a)

Intervention as of right. Upon timely motion, any person shall be

permitted to intervene in any action:

1. when a statute of the state confers an absolute right to intervene;

or

2. when the representation of the person's interest by the parties is

or may be inadequate and the person is or may be bound by the judgment;

or

3. when the action involves the disposition or distribution of, or the

title or a claim for damages for injury to, property and the person may

be affected adversely by the judgment.

(b) Notice to attorney-general, city, county, town or village where

constitutionality in issue. 1. When the constitutionality of a statute

of the state, or a rule and regulation adopted pursuant thereto is

involved in an action to which the state is not a party, the

attorney-general, shall be notified and permitted to intervene in

support of its constitutionality.

2. When the constitutionality of a local law, ordinance, rule or

regulation of a city, county, town or village is involved in an action

to which the city, county, town or village that enacted the provision is

not a party, such city, county, town or village shall be notified and

permitted to intervene in support of its constitutionality.

3. The court having jurisdiction in an action or proceeding in which

the constitutionality of a state statute, local law, ordinance, rule or

regulation is challenged shall not consider any challenge to the

constitutionality of such state statute, local law, ordinance, rule or

regulation unless proof of service of the notice required by this

subdivision is filed with such court.

(c) Notice to comptroller of the state of New York where public

retirement benefits are in issue. Where public retirement benefits,

paid, payable, claimed, or sought to be paid by a state retirement

system or any other retirement system established for public employees

within this state or any subdivision thereof, or the interpretation of

any provisions of law or rules governing any such retirement system or

the operation thereof, are involved in an action to which the

comptroller of the state of New York is not a party, the court shall

notify said comptroller, who shall be permitted, in his discretion, to

intervene in such action or to file a brief amicus curiae.

Intervention by permission. Upon timely motion, any person may

be permitted to intervene in any action when a statute of the state

confers a right to intervene in the discretion of the court, or when the

person's claim or defense and the main action have a common question of

law or fact. In exercising its discretion, the court shall consider

whether the intervention will unduly delay the determination of the

action or prejudice the substantial rights of any party.

Proposed intervention pleading. A motion to intervene shall be

accompanied by a proposed pleading setting forth the claim or defense

for which intervention is sought.

Substitution upon death. (a) Generally. If a party dies and

the claim for or against him is not thereby extinguished the court shall

order substitution of the proper parties.

(b) Devolution of rights or liabilities on other parties. Upon the

death of one or more of the plaintiffs or defendants in an action in

which the right sought to be enforced survives only to the surviving

plaintiffs or against the surviving defendants, the action does not

abate. The death shall be noted on the record and the action shall

proceed.

Substitution of committee or conservator. If a party is

adjudicated incompetent or a conservator has been appointed, the court

shall order substitution of his committee or conservator.

Substitution in case of receivership or dissolution of a

corporation. If a receiver is appointed for a party, or a corporate

party is dissolved, the court shall order substitution of the proper

parties.

Substitution upon transfer of interest. Upon any transfer of

interest, the action may be continued by or against the original parties

unless the court directs the person to whom the interest is transferred

to be substituted or joined in the action.

Substitution of public officers. If a person made a party in

his capacity as public officer dies or otherwise ceases to hold office,

the action may be continued by or against his successor if it is shown

to the court that there is need for so continuing it. Before a

substitution is made his successor and, unless the court otherwise

orders, the party shall be given reasonable notice of the motion and

accorded an opportunity to object. When, in accordance with section

1023, an officer is described by his official title and his name is not

added, no substitution is necessary.

Substitution of indemnitors for executing or attaching

officer. Where an action is brought against an officer to recover a

chattel levied upon by virtue of an execution or order of attachment, or

to recover damages for the detention or sale of such a chattel, and an

undertaking indemnifying the officer against such acts has been given,

the court may order that the indemnitor be substituted for the officer.

Substitution procedure; dismissal for failure to substitute;

presentation of appeal. A motion for substitution may be made by the

successors or representatives of a party or by any party. If a person

who should be substituted does not appear voluntarily he may be made a

party defendant. If the event requiring substitution occurs before final

judgment and substitution is not made within a reasonable time, the

action may be dismissed as to the party for whom substitution should

have been made, however, such dismissal shall not be on the merits

unless the court shall so indicate. If the event requiring substitution

occurs after final judgment, substitution may be made in either the

court from or to which an appeal could be or is taken, or the court of

original instance, and if substitution is not made within four months

after the event requiring substitution, the court to which the appeal is

or could be taken may dismiss the appeal, impose conditions or prevent

it from being taken. Whether or not it occurs before or after final

judgment, if the event requiring substitution is the death of a party,

and timely substitution has not been made, the court, before proceeding

further, shall, on such notice as it may in its discretion direct, order

the persons interested in the decedent's estate to show cause why the

action or appeal should not be dismissed.

Substitution: extension of time for taking procedural steps.

Unless the court orders otherwise, if the time for making a motion for a

new trial or for taking an appeal or for making a motion for permission

to appeal or for taking any other procedural step in the action has not

expired before the occurrence of an event permitting substitution of a

party, the period is extended as to all parties until fifteen days after

substitution is made, or, in case of dismissal of the action under

section 1021, is extended as to all parties until fifteen days after

such dismissal.

Public body or officer described by official title. When a

public officer, body, board, commission or other public agency may sue

or be sued in its official capacity, it may be designated by its

official title, subject to the power of the court to require names to be

added.

Unknown parties. A party who is ignorant, in whole or in part,

of the name or identity of a person who may properly be made a party,

may proceed against such person as an unknown party by designating so

much of his name and identity as is known. If the name or remainder of

the name becomes known all subsequent proceedings shall be taken under

the true name and all prior proceedings shall be deemed amended

accordingly.

Partnerships and unincorporated associations. Two or more

persons conducting a business as a partnership may sue or be sued in the

partnership name, and actions may be brought by or against the president

or treasurer of an unincorporated association on behalf of the

association in accordance with the provisions of the general

associations law.

Review of determinations by administrative officers of the

unified court system. In any action or proceeding brought to review a

determination of the chief judge of the court of appeals, of the court

of appeals or of the administrative board of the courts, made pursuant

to the provisions of article seven-A of the judiciary law or section

twenty-eight of article six of the constitution, the only proper party

to be named therein shall be the chief administrator of the courts, in

his representative capacity. No action or proceeding so instituted shall

name the chief judge, the court of appeals or any member thereof, or the

administrative board or any member thereof as a party.

Motion to waive costs, fees, and expenses; affidavit or

affirmation; certificate; notice; when motion not required. (a) Motion;

affidavit or affirmation. Upon motion of any party, the court in which

an action is triable, or to which an appeal has been or will be taken,

may waive the costs, fees, and expenses if such party has insufficient

means to pay such costs, fees, and expenses. Where a motion to waive

costs, fees, and expenses is made in the court in which an appeal has

been or will be taken, such court shall hear such motion on the merits

and shall not remand such motion to the trial court for consideration.

The moving party shall file an affidavit or affirmation setting forth

the amount and sources of such party's income and assets and listing any

real property owned by such party with its value; that such party lacks

sufficient means to pay the costs, fees, and expenses necessary to

prosecute or defend the action or to maintain or respond to the appeal;

the nature of the action; sufficient facts so that the merit of the

contentions can be ascertained; and whether any other person is

beneficially interested in any recovery sought and, if so, whether every

such person is unable to pay such costs, fees, and expenses. An

executor, administrator, or other representative may move for a waiver

of costs, fees, and expenses on behalf of a deceased, infant, or

incompetent person.

(b) Certificate. The court may require the moving party to file with

the affidavit a certificate of an attorney stating that the attorney has

examined the action and believes there is merit to the moving party's

contentions.

(c) Notice. Except as provided in subdivisions (d) and (e) of this

section, if an action has already been commenced, notice of the motion

shall be served on all parties, and notice shall also be given to the

county attorney in the county in which the action is triable or the

corporation counsel if the action is triable in the city of New York.

* (d) Waiver of fee in certain cases. Except as otherwise provided in

subdivision (f) of this section, if applicable, a plaintiff may seek to

commence his or her action without payment of the fee required by filing

the form affidavit, attesting that such plaintiff is unable to pay the

costs, fees and expenses necessary to prosecute or defend the action,

which shall be available in the clerk's office along with the summons

and complaint or summons with notice or third-party summons and

complaint. The case will be given an index number, or, in courts other

than the supreme or county courts, any necessary filing number and the

application will be submitted to a judge of the court. If the court

approves the application, the plaintiff will by written order be given

notice that all fees and costs relating to the filing and service shall

be waived. If the court denies the application the plaintiff will by

written order be given notice that the case will be dismissed if the fee

is not paid within one hundred twenty days of the date of the order.

* NB Effective until September 1, 2027

* (d) Waiver of fee in certain cases. A plaintiff may seek to commence

his or her action without payment of the fee required by filing the form

affidavit, attesting that such plaintiff is unable to pay the costs,

fees and expenses necessary to prosecute or defend the action, which

shall be available in the clerk's office along with the summons and

complaint or summons with notice or third-party summons and complaint.

The case will be given an index number, or, in courts other than the

supreme or county courts, any necessary filing number and the

application will be submitted to a judge of the court. If the court

approves the application, the plaintiff will by written order be given

notice that all fees and costs relating to the filing and service shall

be waived. If the court denies the application the plaintiff will by

written order be given notice that the case will be dismissed if the fee

is not paid within one hundred twenty days of the date of the order.

* NB Effective September 1, 2027

(e) When motion not required. Where a party is represented in a civil

action by a legal aid society or a legal services or other nonprofit

organization, which has as its primary purpose the furnishing of legal

services to indigent persons, or by private counsel working on behalf of

or under the auspices of such society or organization, all fees and

costs relating to the filing and service shall be waived without the

necessity of a motion and the case shall be given an index number, or,

in a court other than the supreme or county court, an appropriate filing

number, provided that a determination has been made by such society,

organization or attorney that such party is unable to pay the costs,

fees and expenses necessary to prosecute or defend the action, and that

an attorney's certification that such determination has been made is

filed with the clerk of the court along with the summons and complaint

or summons with notice or third-party summons and complaint or otherwise

provided to the clerk of the court. Where an attorney certifies,

pursuant to section eleven hundred eighteen of the family court act, and

in accordance with procedures of the appropriate appellate division,

that a party or child who is the subject of an appeal has been

represented in the family court by assigned counsel or by a legal aid

society or a legal services or other nonprofit organization, which has

as its primary purpose the furnishing of legal services to indigent

persons, or by private counsel working on behalf of or under the

auspices of such society or organization, and, in the case of a counsel

assigned to an adult party, that the party continues to be indigent, the

party or child shall be presumed eligible for poor person relief

pursuant to this section.

* (f) Fees for incarcerated individuals. 1. Notwithstanding any other

provision of law to the contrary, a federal, state or local incarcerated

individual under sentence for conviction of a crime may seek to commence

his or her action or proceeding by paying a reduced filing fee as

provided in paragraph two of this subdivision. Such incarcerated

individual shall file the form affidavit referred to in subdivision (d)

of this section along with the summons and complaint or summons with

notice or third-party summons and complaint or petition or notice of

petition or order to show cause. As part of such application, the

incarcerated individual shall indicate the name and mailing address of

the facility at which he or she is confined along with the name and

mailing address of any other federal, state or local facility at which

he or she was confined during the preceding six month period. The case

will be given an index number if applicable, or, in courts other than

the supreme or county courts, any necessary filing number and the

application will be submitted to a judge of the court. Upon receipt of

the application, the court shall obtain from the appropriate official of

the facility at which the incarcerated individual is confined a

certified copy of the incarcerated individual's trust fund account

statement (or institutional equivalent) for the six month period

preceding filing of the incarcerated individual's application. If the

incarcerated individual has been confined for less than six months at

such facility, the court shall obtain additional information as follows:

(i) in the case of a state incarcerated individual who has been

transferred from another state correctional facility, the court shall

obtain a trust fund account statement for the six month period from the

central office of the department of corrections and community

supervision in Albany; or

(ii) in the case of a state incarcerated individual who is newly

transferred from a federal or local correctional facility, the court

shall obtain any trust fund account statement currently available from

such facility. The court may, in its discretion, seek further

information from the prior or current facility.

2. If the court determines that the incarcerated individual has

insufficient means to pay the full filing fee, the court may permit the

incarcerated individual to pay a reduced filing fee, the minimum of

which shall not be less than fifteen dollars and the maximum of which

shall not be more than fifty dollars. The court shall require an initial

payment of such portion of the reduced filing fee as the incarcerated

individual can reasonably afford or shall authorize no initial payment

of the fee if exceptional circumstances render the incarcerated

individual unable to pay any fee; provided however, that the difference

between the amount of the reduced filing fee and the amount paid by the

incarcerated individual in the initial partial payment shall be assessed

against the incarcerated individual as an outstanding obligation to be

collected either by the superintendent or the municipal official of the

facility at which the incarcerated individual is confined, as the case

may be, in the same manner that mandatory surcharges are collected as

provided for in subdivision five of section 60.35 of the penal law. The

court shall notify the superintendent or the municipal official of the

facility where the incarcerated individual is housed of the amount of

the reduced filing fee that was not directed to be paid by the

incarcerated individual. Thereafter, the superintendent or the municipal

official shall forward to the court any fee obligations that have been

collected, provided however, that:

(i) in no event shall the filing fee collected exceed the amount of

fees required for the commencement of an action or proceeding; and

(ii) in no event shall an incarcerated individual be prohibited from

proceeding for the reason that the incarcerated individual has no assets

and no means by which to pay the initial partial filing fee.

3. The institution at which an incarcerated individual is confined, or

the central office for the department of corrections and community

supervision, whichever is applicable, shall promptly provide the trust

fund account statement to the incarcerated individual as required by

this subdivision.

4. Whenever any federal, state or local incarcerated individual

obtains a judgment in connection with any action or proceeding which

exceeds the amount of the filing fee, paid in accordance with the

provisions of this subdivision for commencing such action or proceeding,

the court shall award to the prevailing incarcerated individual, as a

taxable disbursement, the actual amount of any fee paid to commence the

action or proceeding.

5. The provisions of this subdivision shall not apply to a proceeding

commenced pursuant to article seventy-eight of this chapter which

alleges a failure to correctly award or certify jail time credit due an

incarcerated individual, in violation of section six hundred-a of the

correction law and section 70.30 of the penal law.

* NB Expires September 1, 2027

Privileges of party with insufficient means to pay costs,

fees, and expenses in an action or on appeal. (a) Attorney. Where a

court grants a motion pursuant to subdivision (a) of section one

thousand one hundred one of this article, the court, in its order

determining the motion, may assign an attorney to the moving party.

(b) Stenographic transcript. Where a court grants a motion pursuant to

subdivision (a) of section one thousand one hundred one of this article,

the court clerk, within two days after the filing of such court's order

with the court clerk, shall so notify the court stenographer, who,

within twenty days of such notification shall make and certify two

typewritten transcripts of the stenographic minutes of said trial or

hearing, and shall deliver one of said transcripts to the moving party

or such moving party's attorney, and file the other with the court clerk

together with an affidavit of the fact and date of such delivery and

filing. The expense of such transcripts shall be a county charge or, in

the counties within the city of New York, a city charge, as the case may

be, payable to the stenographer out of the court fund upon the

certificate of the judge presiding at the trial or hearing. A moving

party may be furnished with a stenographic transcript without fee by

order of the court in proceedings other than appeal, the fee therefor to

be paid by the county or, in the counties within the city of New York by

the city, as the case may be, in the same manner as is paid for

transcripts on appeal. Notwithstanding this or any other provision of

law, fees paid for stenographic transcripts with respect to those

proceedings specified in paragraph a of subdivision one of section

thirty-five of the judiciary law shall be paid by the state in the

manner prescribed by subdivision four of section thirty-five of the

judiciary law.

(c) Appeals. On an appeal or motion for permission to appeal where a

court grants a motion pursuant to subdivision (a) of section one

thousand one hundred one of this article, the moving party may submit

typewritten briefs and appendices, furnishing one legible copy for each

appellate justice.

(d) Costs and fees. Where a court grants a motion pursuant to

subdivision (a) of section one thousand one hundred one of this article,

the moving party shall not be liable for the payment of any costs or

fees unless a recovery by judgment or by settlement is had in such

moving party's favor, in which event the court may direct such party to

pay out of the recovery all or part of the costs and fees, a reasonable

sum for the services and expenses of any attorney assigned to such party

and any sum expended by the county or city under subdivision (b) of this

section.

Distribution of recovery in favor of party with insufficient

means to pay costs, fees, and expenses. Where a court grants a motion

pursuant to subdivision (a) of section one thousand one hundred one of

this article, recovery by judgment or by settlement had in favor of the

moving party shall be paid to the clerk of the court in which the order

determining the motion was entered, to await distribution pursuant to

court order.

Representation of infant, incompetent person, or conservatee.

Unless the court appoints a guardian ad litem, an infant shall appear by

the guardian of his property or, if there is no such guardian, by a

parent having legal custody, or, if there is no such parent, by another

person or agency having legal custody, or, if the infant is married, by

an adult spouse residing with the infant, a person judicially declared

to be incompetent shall appear by the committee of his property, and a

conservatee shall appear by the conservator of his property. A person

shall appear by his guardian ad litem if he is an infant and has no

guardian of his property, parent, or other person or agency having legal

custody, or adult spouse with whom he resides, or if he is an infant,

person judicially declared to be incompetent, or a conservatee as

defined in section 77.01 of the mental hygiene law and the court so

directs because of a conflict of interest or for other cause, or if he

is an adult incapable of adequately prosecuting or defending his rights.

Rule 1202. Appointment of guardian ad litem. (a) By whom motion made.

The court in which an action is triable may appoint a guardian ad litem

at any stage in the action upon its own initiative or upon the motion

of:

1. an infant party if he is more than fourteen years of age; or

2. a relative, friend or a guardian, committee of the property, or

conservator; or

3. any other party to the action if a motion has not been made under

paragraph one or two within ten days after completion of service.

(b) Notice of motion. Notice of a motion for appointment of a guardian

ad litem for a person shall be served upon the guardian of his property,

upon his committee or upon his conservator, or if he has no such

guardian, committee, or conservator, upon the person with whom he

resides. Notice shall also be served upon the person who would be

represented if he is more than fourteen years of age and has not been

judicially declared to be incompetent.

(c) Consent. No order appointing a guardian ad litem shall be

effective until a written consent of the proposed guardian has been

submitted to the court together with an affidavit stating facts showing

his ability to answer for any damage sustained by his negligence or

misconduct.

Default judgment. No judgment by default may be entered

against an infant or a person judicially declared to be incompetent

unless his representative appeared in the action or twenty days have

expired since appointment of a guardian ad litem for him. No default

judgment may be entered against an adult incapable of adequately

protecting his rights for whom a guardian ad litem has been appointed

unless twenty days have expired since the appointment.

Compensation of guardian ad litem. A court may allow a

guardian ad litem a reasonable compensation for his services to be paid

in whole or part by any other party or from any recovery had on behalf

of the person whom such guardian represents or from such person's other

property. No order allowing compensation shall be made except on an

affidavit of the guardian or his attorney showing the services rendered.

Liability for costs of infant, judicially declared

incompetent, or conservatee, or representative. An infant, a person

judicially declared to be incompetent, a conservatee, a person for whom

a guardian ad litem has been appointed, or a representative of any such

person, shall not be liable for costs unless the court otherwise orders.

Disposition of proceeds of claim of infant, judicially

declared incompetent or conservatee. Except as provided in EPTL 7-4.9,

any property to which an infant, a person judicially declared to be

incompetent or a conservatee is entitled, after deducting any expenses

allowed by the court, shall be distributed to the guardian of his

property, the committee of his property or conservator to be held for

the use and benefit of such infant, incompetent, or conservatee except

that:

(a) in the case of an infant who is married to and resides with an

adult spouse, the court may order that the property be distributed to

such adult spouse for the use and benefit of the infant; or

(b) if the value of the property does not exceed ten thousand dollars

the court may order the property distributed to a person with whom such

infant, incompetent or conservatee resides or who has some interest in

his welfare to be held for the use and benefit of such infant,

incompetent or conservatee; or

(c) the court may order that money constituting any part of the

property be deposited in one or more specified insured banks or trust

companies or savings banks or insured state or federal credit unions or

be invested in one or more specified accounts in insured savings and

loan associations, or it may order that a structured settlement

agreement be executed, which shall include any settlement whose terms

contain provisions for the payment of funds on an installment basis,

provided that with respect to future installment payments, the court may

order that each party liable for such payments shall fund such payments,

in an amount necessary to assure the future payments, in the form of an

annuity contract executed by a qualified insurer and approved by the

superintendent of financial services pursuant to articles fifty-A and

fifty-B of this chapter. The court may elect that the money be deposited

in a high interest yield account such as an insured "savings

certificate" or an insured "money market" account. The court may further

elect to invest the money in one or more insured or guaranteed United

States treasury or municipal bills, notes or bonds. This money is

subject to withdrawal only upon order of the court, except that no court

order shall be required to pay over to the infant who has attained the

age of eighteen years all moneys so held unless the depository is in

receipt of an order from a court of competent jurisdiction directing it

to withhold such payment beyond the infant's eighteenth birthday.

Notwithstanding the preceding sentence, the ability of an infant who has

attained the age of eighteen years to accelerate the receipt of future

installment payments pursuant to a structured settlement agreement shall

be governed by the terms of such agreement. The reference to the age of

twenty-one years in any order made pursuant to this subdivision or its

predecessor, prior to September first, nineteen hundred seventy-four,

directing payment to the infant without further court order when he

reaches the age of twenty-one years, shall be deemed to designate the

age of eighteen years; or

(d) the court may order that the property be held for the use and

benefit of such infant, incompetent or conservatee as provided by

subdivision (d) of section 1210.

Settlement of action or claim by infant, judicially declared

incompetent or conservatee, by whom motion made; special proceeding;

notice; order of settlement. Upon motion of a guardian of the property

or guardian ad litem of an infant or, if there is no such guardian, then

of a parent having legal custody of an infant, or if there is no such

parent, by another person having legal custody, or if the infant is

married, by an adult spouse residing with the infant, or of the

committee of the property of a person judicially declared to be

incompetent, or of the conservator of the property of a conservatee, the

court may order settlement of any action commenced by or on behalf of

the infant, incompetent or conservatee. If no action has been commenced,

a special proceeding may be commenced upon petition of such a

representative for settlement of any claim by the infant, incompetent or

conservatee in any court where an action for the amount of the proposed

settlement could have been commenced. Unless otherwise provided by rule

of the chief administrator of the courts, if no motion term is being

held and there is no justice of the supreme court available in a county

where the action or an action on the claim is triable, such a motion may

be made, or special proceeding may be commenced, in a county court and

the county judge shall act with the same power as a justice of the

supreme court even though the amount of the settlement may exceed the

jurisdictional limits of the county court. Notice of the motion or

petition shall be given as directed by the court. An order on such a

motion shall have the effect of a judgment. Such order, or the judgment

in a special proceeding, shall be entered without costs and shall

approve the fee for the infant's, incompetent's or conservatee's

attorney, if any.

Rule 1208. Settlement procedure; papers; representation.

(a) Affidavit of infant's or incompetent's representative. An

affidavit of the infant's or incompetent's representative shall be

included in the supporting papers and shall state:

1. his name, residence and relationship to the infant or incompetent;

2. the name, age and residence of the infant or incompetent;

3. the circumstances giving rise to the action or claim;

4. the nature and extent of the damages sustained by the infant or

incompetent, and if the action or claim is for damages for personal

injuries to the infant or incompetent, the name of each physician who

attended or treated the infant or incompetent or who was consulted, the

medical expenses, the period of disability, the amount of wages lost,

and the present physical condition of the infant or incompetent;

5. the terms and proposed distribution of the settlement and his

approval of both;

6. the facts surrounding any other motion or petition for settlement

of the same claim, of an action to recover on the same claim or of the

same action;

7. whether reimbursement for medical or other expenses has been

received from any source; and

8. whether the infant's or incompetent's representative or any member

of the infant's or incompetent's family has made a claim for damages

alleged to have been suffered as a result of the same occurrence giving

rise to the infant's or incompetent's claim and, if so, the amount paid

or to be paid in settlement of such claim or if such claim has not been

settled the reasons therefor.

(b) Affidavit of attorney. If the infant or incompetent or his

representative is represented by an attorney, an affidavit of the

attorney shall be included in the supporting papers and shall state:

1. his reasons for recommending the settlement;

2. that directly or indirectly he has neither become concerned in the

settlement at the instance of a party or person opposing, or with

interests adverse to, the infant or incompetent nor received nor will

receive any compensation from such party, and whether or not he has

represented or now represents any other person asserting a claim arising

from the same occurrence; and

3. the services rendered by him.

(c) Medical or hospital report. If the action or claim is for damages

for personal injuries to the infant or incompetent, one or more medical

or hospital reports, which need not be verified, shall be included in

the supporting papers.

(d) Appearance before court. On the hearing, the moving party or

petitioner, the infant or incompetent, and his attorney shall attend

before the court unless attendance is excused for good cause.

(e) Representation. No attorney having or representing any interest

conflicting with that of an infant or incompetent may represent the

infant or incompetent.

(f) Preparation of papers by attorney for adverse party. If the infant

or incompetent is not represented by an attorney the papers may be

prepared by the attorney for an adverse party or person and shall state

that fact.

Arbitration of controversy involving infant, judicially

declared incompetent or conservatee. A controversy involving an infant,

person judicially declared to be incompetent or conservatee shall not be

submitted to arbitration except pursuant to a court order made upon

application of the representative of such infant, incompetent or

conservatee; provided, however, that a claim brought on behalf of an

infant pursuant to paragraph one or two of subdivision (f) of section

three thousand four hundred twenty of the insurance law may be submitted

to arbitration without a court order.

Rule 1210. Guardian of infant. (a) Petition for appointment; by whom

presented; contents. An infant, if of the age of fourteen years or more,

or a relative or friend of an infant, may present a petition to the

court for appointment of a guardian. The petition shall state the age

and residence of the infant, the name and residence of any living parent

and of the person proposed as guardian, the relationship if any which

such person bears to the infant, and the nature, status and value of the

infant's estate.

(b) Hearing. The court shall ascertain the age of the infant, the

amount of his personal property, the gross amount or value of the rents

and profits of his real estate during his minority, and the sufficiency

of the security offered by the proposed guardian. If the infant is of

the age of fourteen years or more, the court shall examine him as to his

voluntary nomination of or preference for a suitable guardian; if he is

under the age of fourteen, the court shall select and appoint a suitable

guardian.

(c) Undertaking. The court shall make an order requiring or dispensing

wholly or partly with an undertaking, in an amount and according to the

conditions set forth in section seventeen hundred eight of the

surrogate's court procedure act.

(d) Direction as to management of estate. The court in its discretion

may direct that the principal of the estate or any part of it be

invested in bonds of the state of New York or of the United States, or

invested in bonds or other obligations of any county, city, town,

village or school district of the state of New York, or deposited with

any bank, trust company, insured savings and loan association or insured

savings bank or insured state or federal credit union which has been

designated as a depository for such fund; or invested in a bond and

mortgage on unincumbered and improved property within the state, having

a value, to be shown to the satisfaction of the court, of at least

double the amount of principal invested, for the benefit of the infant,

and may direct that only the interest or income be received by the

guardian.

(e) Filing of certified copy of order of appointment. Upon the

appointment of a guardian of the person or property, or both, of an

infant, the guardian shall file a certified copy of the order of his

appointment with the clerk of the surrogate's court of the county in

which he has been appointed.

Rule 1211. Allowance for infant's support. (a) Petition to supreme

court, county court or surrogate's court; contents. A petition to the

supreme court, county court or the surrogate's court for the application

of an infant's property or a portion thereof to the infant's support,

maintenance or education shall set forth in detail:

1. the amount and nature of the infant's property, where it is

situated and how invested, his income from such property or any other

source and any claim against the infant;

2. whether or not the infant's parents are living and, if either of

them is living, all circumstances relative to their ability to support

the infant, and, if neither of them is living, the names of other

persons legally obligated to support the infant and the circumstances

relative to their ability to support the infant; and

3. the terms of any previous order made by any court within or without

the state for similar relief and the disposition made of any property

pursuant thereto.

(b) Notice. Such notice as the court shall direct shall be given to:

1. the guardian of the property of the infant, if the petition is

presented by a person other than such guardian;

2. all parents and guardians of the person of the infant; and

3. the infant if he or she is of the age of fourteen years or more.

Actions in behalf of the people to be brought in the name of

the state. An action brought in behalf of the people, except an action

to recover a penalty or forfeiture expressly given by law to a

particular officer, shall be brought in the name of the state.

Action brought on relation of a person. Where an action is

brought by the attorney-general on the relation or information of a

person having an interest in the question, the complaint shall allege,

and the title of the action shall show, that the action is so brought.

As a condition of bringing an action for the benefit of a person having

an interest in the question, the attorney-general shall require the

relator to give an undertaking to indemnify the state against costs and

expenses.

Procedure in action brought by the state. Except as otherwise

specially prescribed by statute or rule the proceedings in an action

brought by the state shall be the same as in an action by a private

person.

Definitions. In this article:

1. "Property" means and includes: real property, personal property,

money, negotiable instruments, securities, or any thing of value or any

interest in a thing of value.

2. "Proceeds of a crime" means any property obtained through the

commission of a felony crime defined in subdivisions five and six

hereof, and includes any appreciation in value of such property.

3. "Substituted proceeds of a crime" means any property obtained by

the sale or exchange of proceeds of a crime, and any gain realized by

such sale or exchange.

4. "Instrumentality of a crime" means any property, other than real

property and any buildings, fixtures, appurtenances, and improvements

thereon, whose use contributes directly and materially to the commission

of a crime defined in subdivisions five and six hereof.

4-a. "Real property instrumentality of a crime" means an interest in

real property the use of which contributes directly and materially to

the commission of a specified felony offense.

4-b. "Specified felony offense" means:

(a) a conviction of a person for a violation of section 220.18,

220.21, 220.41, or 220.43 of the penal law, or where the accusatory

instrument charges one or more of such offenses, conviction upon a plea

of guilty to any of the felonies for which such plea is otherwise

authorized by law or a conviction of a person for conspiracy to commit a

violation of section 220.18, 220.21, 220.41, or 220.43 of the penal law,

where the controlled substances which are the object of the conspiracy

are located in the real property which is the subject of the forfeiture

action; or

(b) on three or more occasions, engaging in conduct constituting a

violation of any of the felonies defined in section 220.09, 220.16,

220.18, 220.21, 220.31, 220.34, 220.39, 220.41 or 220.43 of the penal

law, which violations do not constitute a single criminal offense as

defined in subdivision one of section 40.10 of the criminal procedure

law, or a single criminal transaction, as defined in paragraph (a) of

subdivision two of section 40.10 of the criminal procedure law, and at

least one of which resulted in a conviction of such offense, or where

the accusatory instrument charges one or more of such felonies,

conviction upon a plea of guilty to a felony for which such plea is

otherwise authorized by law; or

(c) a conviction of a person for a violation of section 220.09,

220.16, 220.34 or 220.39 of the penal law, or where the accusatory

instrument charges any such felony, conviction upon a plea of guilty to

a felony for which the plea is otherwise authorized by law, together

with evidence which: (i) provides substantial indicia that the defendant

used the real property to engage in a continual, ongoing course of

conduct involving the unlawful mixing, compounding, manufacturing,

warehousing, or packaging of controlled substances as part of an illegal

trade or business for gain; and (ii) establishes, where the conviction

is for possession of a controlled substance, that such possession was

with the intent to sell it.

5. "Post-conviction forfeiture crime" means any felony defined in the

penal law or any other chapter of the consolidated laws of the state.

7. "Court" means a superior court.

8. "Defendant" means a person against whom a forfeiture action is

commenced and includes a "criminal defendant" and a "non-criminal

defendant".

9. "Criminal defendant" means a person who has criminal liability for

a crime defined in subdivision five of this section. For purposes of

this article, a person has criminal liability when he has been convicted

of a post-conviction forfeiture crime.

10. "Non-criminal defendant" means a person, other than a criminal

defendant, who possesses an interest in the proceeds of a crime, the

substituted proceeds of a crime or an instrumentality of a crime.

11. "Claiming authority" means the district attorney having

jurisdiction over the offense or the attorney general for purpose of

those crimes for which the attorney general has criminal jurisdiction in

a case where the underlying criminal charge has been, is being or is

about to be brought by the attorney general, or the appropriate

corporation counsel or county attorney, provided that the corporation

counsel or county attorney may act as a claiming authority only with the

consent of the district attorney or the attorney general, as

appropriate.

12. "Claiming agent" means and shall include all persons described in

subdivision thirty-four of section 1.20 of the criminal procedure law,

and sheriffs, undersheriffs and deputy sheriffs of counties within the

city of New York.

13. "Fair consideration" means fair consideration is given for

property, or obligation, (a) when in exchange for such property, or

obligation, as a fair equivalent therefor, and in good faith, property

is conveyed or an antecedent debt is satisfied, or (b) when such

property, or obligation is received in good faith to secure a present

advance or antecedent debt in amount not disproportionately small as

compared with the value of the property, or obligation obtained.

14. "District attorney" means and shall include all persons described

in subdivision thirty-two of section 1.20 of the criminal procedure law

and the special assistant district attorney in charge of the office of

prosecution, special narcotics courts of the city of New York.

Forfeiture actions. 1. A civil action may be commenced by the

appropriate claiming authority against a criminal defendant to recover

the property which constitutes the proceeds of a crime, the substituted

proceeds of a crime, an instrumentality of a crime or the real property

instrumentality of a crime. A civil action may be commenced against a

non-criminal defendant to recover the property which constitutes the

proceeds of a crime, the substituted proceeds of a crime, an

instrumentality of a crime, or the real property instrumentality of a

crime provided, however, that a judgment of forfeiture predicated upon

clause (A) of subparagraph (iv) of paragraph (b) of subdivision three of

this section shall be limited to the amount of the proceeds of the

crime. Any action under this article must be commenced within five years

of the commission of the crime and shall be civil, remedial, and in

personam in nature and shall not be deemed to be a penalty or criminal

forfeiture for any purpose. Except as otherwise specially provided by

statute, the proceedings under this article shall be governed by this

chapter. An action under this article is not a criminal proceeding and

may not be deemed to be a previous prosecution under article forty of

the criminal procedure law.

(a) Actions relating to post-conviction forfeiture crimes. An action

relating to a post-conviction forfeiture crime must be grounded upon a

conviction of a felony defined in subdivision five of section one

thousand three hundred ten of this article or upon a count of an

indictment or information alleging a felony which was dismissed at the

time of a plea of guilty to a felony in satisfaction of such count. A

court may not grant forfeiture until such conviction has occurred.

However, an action may be commenced, and a court may grant a provisional

remedy provided under this article, prior to such conviction having

occurred. An action under this paragraph must be dismissed at any time

after sixty days of the commencement of the action unless the conviction

upon which the action is grounded has occurred, or an indictment or

information upon which the asserted conviction is to be based is pending

in a superior court. An action under this paragraph shall be stayed

during the pendency of a criminal action which is related to it;

provided, however, that such stay shall not prevent the granting or

continuance of any provisional remedy provided under this article or any

other provisions of law.

(b) Actions relating to pre-conviction forfeiture crimes. An action

relating to a pre-conviction forfeiture crime need not be grounded upon

conviction of a pre-conviction forfeiture crime, provided, however, that

if the action is not grounded upon such a conviction, it shall be

necessary in the action for the claiming authority to prove the

commission of a pre-conviction forfeiture crime by clear and convincing

evidence. An action under this paragraph shall be stayed during the

pendency of a criminal action which is related to it; provided, that

upon motion of a defendant in the forfeiture action or the claiming

authority, a court may, in the interest of justice and for good cause,

and with the consent of all parties, order that the forfeiture action

proceed despite the pending criminal action; and provided that such stay

shall not prevent the granting or continuance of any provisional remedy

provided under this article or any other provision of law.

2. All defendants in a forfeiture action brought pursuant to this

article shall have the right to trial by jury on any issue of fact.

3. In a forfeiture action pursuant to this article the following

burdens of proof shall apply:

(a) In a forfeiture action commenced by a claiming authority against a

criminal defendant, except for those facts referred to in paragraph (b)

of subdivision nine of section one thousand three hundred ten and

paragaph (b) of subdivision one of this section which must be proven by

clear and convincing evidence, the burden shall be upon the claiming

authority to prove by a preponderance of the evidence the facts

necessary to establish a claim for forfeiture.

(b) In a forfeiture action commenced by a claiming authority against a

non-criminal defendant:

(i) in an action relating to a pre-conviction forfeiture crime, the

burden shall be upon the claiming authority to prove by clear and

convincing evidence the commission of the crime by a person, provided,

however, that it shall not be necessary to prove the identity of such

person.

(ii) if the action relates to the proceeds of a crime, except as

provided in subparagraph (i) hereof, the burden shall be upon the

claiming authority to prove by a preponderance of the evidence the facts

necessary to establish a claim for forfeiture and that the non-criminal

defendant either (A) knew or should have known that the proceeds were

obtained through the commission of a crime, or (B) fraudulently obtained

his or her interest in the proceeds to avoid forfeiture.

(iii) if the action relates to the substituted proceeds of a crime,

except as provided in subparagraph (i) hereof, the burden shall be upon

the claiming authority to prove by a preponderance of the evidence the

facts necessary to establish a claim for forfeiture and that the

non-criminal defendant either (A) knew that the property sold or

exchanged to obtain an interest in the substituted proceeds was obtained

through the commission of a crime, or (B) fraudulently obtained his or

her interest in the substituted proceeds to avoid forfeiture.

(iv) if the action relates to an instrumentality of a crime, except as

provided for in subparagraph (i) hereof, the burden shall be upon the

claiming authority to prove by a preponderance of the evidence the facts

necessary to establish a claim for forfeiture and that the non-criminal

defendant either (A) knew that the instrumentality was or would be used

in the commission of a crime or (B) knowingly obtained his or her

interest in the instrumentality to avoid forfeiture.

(v) if the action relates to a real property instrumentality of a

crime, the burden shall be upon the claiming authority to prove those

facts referred to in subdivision four-b of section thirteen hundred ten

of this article by clear and convincing evidence. The claiming authority

shall also prove by a clear and convincing evidence that the

non-criminal defendant knew that such property was or would be used for

the commission of specified felony offenses, and either (A) knowingly

and unlawfully benefitted from such conduct or (B) voluntarily agreed to

the use of such property for the commission of such offenses by consent

freely given. For purposes of this subparagraph, a non-criminal

defendant knowingly and unlawfully benefits from the commission of a

specified felony offense when he derives in exchange for permitting the

use or occupancy of such real property by a person or persons committing

such specified offense a substantial benefit that would otherwise not

accrue as a result of the lawful use or occupancy of such real property.

"Benefit" means benefit as defined in subdivision seventeen of section

10.00 of the penal law.

(c) In a forfeiture action commenced by a claiming authority against a

non-criminal defendant the following rebuttable presumptions shall

apply:

(i) a non-criminal defendant who did not pay fair consideration for

the proceeds of a crime, the substituted proceeds of a crime or the

instrumentality of a crime shall be presumed to know that such property

was the proceeds of a crime, the substituted proceeds of a crime, or an

instrumentality of a crime.

(ii) a non-criminal defendant who obtains an interest in the proceeds

of a crime, substituted proceeds of a crime or an instrumentality of a

crime with knowledge of an order of provisional remedy relating to said

property issued pursuant to this article, shall be presumed to know that

such property was the proceeds of a crime, substituted proceeds of a

crime, or an instrumentality of a crime.

(iii) in an action relating to a post-conviction forfeiture crime, a

non-criminal defendant who the claiming authority proves by clear and

convincing evidence has criminal liability under section 20.00 of the

penal law for the crime of conviction or for criminal activity arising

from a common scheme or plan of which such crime is a part and who

possesses an interest in the proceeds, the substituted proceeds, or an

instrumentality of such criminal activity is presumed to know that such

property was the proceeds of a crime, the substituted proceeds of a

crime, or an instrumentality of a crime.

(iv) a non-criminal defendant who participated in or was aware of a

scheme to conceal or disguise the manner in which said non-criminal

obtained his or her interest in the proceeds of a crime, substituted

proceeds of a crime, or an instrumentality of a crime is presumed to

know that such property was the proceeds of a crime, the substituted

proceeds of a crime, or an instrumentality of a crime.

(d) In a forfeiture action commenced by a claiming authority against a

defendant, the following rebuttable presumption shall apply: all

currency or negotiable instruments payable to the bearer shall be

presumed to be the proceeds of a pre-conviction forfeiture crime when

such currency or negotiable instruments are (i) found in close proximity

to a controlled substance unlawfully possessed by the defendant in an

amount sufficient to constitute a violation of section 220.18 or 220.21

of the penal law, or (ii) found in close proximity to any quantity of a

controlled substance unlawfully possessed by such defendant in a room,

other than a public place, under circumstances evincing an intent to

unlawfully mix, compound, distribute, package or otherwise prepare for

sale such controlled substance.

(e) The presumption set forth pursuant to paragraph (d) of this

subdivision shall be rebutted by credible and reliable evidence which

tends to show that such currency or negotiable instrument payable to the

bearer is not the proceeds of a preconviction forfeiture crime. In an

action tried before a jury, the jury shall be so instructed. Any sworn

testimony of a defendant offered to rebut the presumption and any other

evidence which is obtained as a result of such testimony, shall be

inadmissible in any subsequent proceeding relating to the forfeiture

action, or in any other civil or criminal action, except in a

prosecution for a violation of article two hundred ten of the penal law.

In an action tried before a jury, at the commencement of the trial, or

at such other time as the court reasonably directs, the claiming

authority shall provide notice to the court and to the defendant of its

intent to request that the court charge such presumption.

3-a. Conviction of a person in a criminal action upon an accusatory

instrument which includes one or more of the felonies specified in

subdivision four-b of section thirteen hundred ten of this article, of

any felony other than such felonies, shall not preclude a defendant, in

any subsequent proceeding under this article where that conviction is at

issue, from adducing evidence that the conduct underlying the conviction

would not establish the elements of any of the felonies specified in

such subdivision other than the one to which the criminal defendant pled

guilty. If the defendant does adduce such evidence, the burden shall be

upon the claiming authority to prove, by clear and convincing evidence,

that the conduct underlying the criminal conviction would establish the

elements of the felony specified in such subdivision. Nothing contained

in this subdivision shall affect the validity of a settlement of any

forfeiture action negotiated between the claiming authority and a

criminal defendant contemporaneously with the taking of a plea of guilty

in a criminal action to any felony defined in article two hundred twenty

of the penal law, or to a felony conspiracy to commit the same.

4. The court in which a forfeiture action is pending may dismiss said

action in the interests of justice upon its own motion or upon an

application as provided for herein.

(a) At any time during the pendency of a forfeiture action, the

claiming authority who instituted the action, or a defendant may (i)

apply for an order dismissing the complaint and terminating the

forfeiture action in the interest of justice, or (ii) may apply for an

order limiting the forfeiture to an amount equivalent in value to the

value of property constituting the proceeds or substituted proceeds of a

crime in the interest of justice.

(b) Such application for the relief provided in paragraph (a) hereof

must be made in writing and upon notice to all parties. The court may,

in its discretion, direct that notice be given to any other person

having an interest in the property.

(c) An application for the relief provided for in paragraph (a) hereof

must be brought exclusively in the superior court in which the

forfeiture action is pending.

(d) The court may grant the relief provided in paragraph (a) hereof if

it finds that such relief is warranted by the existence of some

compelling factor, consideration or circumstance demonstrating that

forfeiture of the property of any part thereof, would not serve the ends

of justice. Among the factors, considerations and circumstances the

court may consider, among others, are:

(i) the seriousness and circumstances of the crime to which the

property is connected relative to the impact of forfeiture of property

upon the person who committed the crime; or

(ii) the adverse impact of a forfeiture of property upon innocent

persons; or

(iii) the appropriateness of a judgment of forfeiture in an action

relating to pre-conviction forfeiture crime where the criminal

proceeding based on the crime to which the property is allegedly

connected results in an acquittal of the criminal defendant or a

dismissal of the accusatory instrument on the merits; or

(iv) in the case of an action relating to an instrumentality, whether

the value of the instrumentality substantially exceeds the value of the

property constituting the proceeds or substituted proceeds of a crime.

(e) The court must issue a written decision stating the basis for an

order issued pursuant to this subdivision.

4-a. (a) The court in which a forfeiture action relating to real

property is pending may, upon its own motion or upon the motion of the

claiming authority which instituted the action, the defendant, or any

other person who has a lawful property interest in such property, enter

an order:

(i) appointing an administrator pursuant to section seven hundred

seventy-eight of the real property actions and proceedings law when the

owner of a dwelling is a defendant in such action, and when persons who

are not defendants in such action lawfully occupy one or more units

within such dwelling, in order to maintain and preserve the property on

behalf of such persons or any other person or entity who has a lawful

property interest in such property, or in order to remedy any other

condition which is dangerous to life, health or safety; or

(ii) otherwise limiting, modifying or dismissing the forfeiture action

in order to preserve or protect the lawful property interest of any

non-criminal defendant or any other person who is not a criminal

defendant, or the lawful property interest of a defendant which is not

subject to forfeiture; or

(iii) where such action involves interest in a residential leasehold

or a statutory tenancy, directing that upon entry of a judgment of

forfeiture, the lease or statutory tenancy will be modified as a matter

of law to terminate only the interest of the defendant or defendants,

and to continue the occupancy or tenancy of any other person or persons

who lawfully reside in such demised premises, with such rights as such

parties would otherwise have had if the defendant's interest had not

been forfeited pursuant to this article.

(b) For purposes of this subdivision the term "owner" has the same

meaning as prescribed for that term in section seven hundred eighty-one

of the real property actions and proceedings law and the term "dwelling"

shall mean any building or structure or portion thereof which is

principally occupied in whole or part as the home, residence or sleeping

place of one or more human beings.

5. An action for forfeiture shall be commenced by service pursuant to

this chapter of a summons with notice or summons and verified complaint.

No person shall forfeit any right, title, or interest in any property

who is not a defendant in the action. The claiming authority shall also

file a copy of such papers with the state division of criminal justice

services; provided, however, failure to file such papers shall not be

grounds for any relief by a defendant in this section.

6. On the motion of any party to the forfeiture action, and for good

cause shown, a court may seal any papers, including those pertaining to

any provisional remedy, which relate to the forfeiture action until such

time as the property which is the subject of the forfeiture action has

been levied upon. A motion to seal such papers may be made ex parte and

in camera.

7. Remission. In addition to any other relief provided under this

chapter, at any time within one year after the entry of a judgment of

forfeiture, any person, claiming an interest in the property subject to

forfeiture who did not receive actual notice of the forfeiture action

may petition the judge before whom the forfeiture action was held for a

remission or mitigation of the forfeiture and restoration of the

property or the proceeds of any sale resulting from the forfeiture, or

such part thereof, as may be claimed by him. The court may restore said

property upon such terms and conditions as it deems reasonable and just

if (i) the petitioner establishes that he or she was without actual

knowledge of the forfeiture action or any related proceeding for a

provisional remedy and did not know or should not have known that the

forfeited property was connected to a crime or fraudulently conveyed and

(ii) the court determines that restoration of the property would serve

the ends of justice.

8. The total amount that may be recovered by the claiming authority

against all criminal defendants in a forfeiture action or actions

involving the same crime shall not exceed the value of the proceeds of

the crime or substituted proceeds of the crime, whichever amount is

greater, and, in addition, the value of any forfeited instrumentality

used in the crime. Any such recovery against criminal defendants for the

value of the proceeds of the crime or substituted proceeds of the crime

shall be reduced by an amount which equals the value of the same

proceeds of the same crime or the same substituted proceeds of the same

crime recovered against all non-criminal defendants. Any such recovery

for the value of an instrumentality of a crime shall be reduced by an

amount which equals the value of the same instrumentality recovered

against any non-criminal defendant.

The total amount that may be recovered against all non-criminal

defendants in a forfeiture action or actions involving the same crime

shall not exceed the value of the proceeds of the crime or the

substituted proceeds of the crime, whichever amount is greater, and, in

addition, the value of any forfeited instrumentality used in the crime.

Any such recovery against non-criminal defendants for the value of the

proceeds of the crime or substituted proceeds of the crime shall be

reduced by an amount which equals the value of the proceeds of the crime

or substituted proceeds of the crime recovered against all criminal

defendants. A judgment against a non-criminal defendant pursuant to

clause (A) of subparagraph (iv) of paragraph (b) of subdivision three of

this section shall be limited to the amount of the proceeds of the

crime. Any recovery for the value of an instrumentality of the crime

shall be reduced by an amount equal to the value of the same

instrumentality recovered against any criminal defendant.

9. Any defendant in a forfeiture action who knowingly and

intentionally conceals, destroys, dissipates, alters, removes from the

jurisdiction, or otherwise disposes of, property specified in a

provisional remedy ordered by the court or in a judgment of forfeiture

in knowing contempt of said order or judgment shall be subject to

criminal liability and sanctions under sections 80.05 and 215.80 of the

penal law.

10. The proper venue for trial of an action for forfeiture is:

(a) In the case of an action for post-conviction forfeiture commenced

after conviction, the county where the conviction occurred.

(b) In all other cases, the county where a criminal prosecution could

be commenced under article twenty of the criminal procedure law, or, in

the case of an action commenced by the office of prosecution, special

narcotics courts of the city of New York, under section one hundred

seventy-seven-b of the judiciary law.

11. (a) Any stipulation or settlement agreement between the parties to

a forfeiture action shall be filed with the clerk of the court in which

the forfeiture action is pending. No stipulation or settlement agreement

shall be accepted for filing unless it is accompanied by an affidavit

from the claiming authority that written notice of the stipulation or

settlement agreement, including the terms of such, has been given to the

office of victim services, the state division of criminal justice

services.

(b) No judgment or order of forfeiture shall be accepted for filing

unless it is accompanied by an affidavit from the claiming authority

that written notice of judgment or order, including the terms of such,

has been given to the office of victim services, the state division of

criminal justice services.

(c) Any claiming authority or claiming agent which receives any

property pursuant to chapter thirteen of the food and drug laws (21

U.S.C. §801 et seq.) of the United States and/or chapter four of the

customs duties laws (19 U.S.C. §1301 et seq.) of the United States

and/or chapter 96 of the crimes and criminal procedure laws (18 U.S.C.

§1961 et seq.) of the United States shall provide an affidavit to the

commissioner of the division of criminal justice services stating the

estimated present value of the property received.

(d) Any stipulation, settlement agreement, judgement, order or

affidavit required to be given to the state division of criminal justice

services pursuant to this subdivision shall include the defendant's name

and such other demographic data as required by the state division of

criminal justice services.

12. Property acquired in good faith by an attorney as payment for the

reasonable and bona fide fees of legal services or reimbursement of

reasonable and bona fide expenses related to the representation of a

defendant in connection with a civil or criminal forfeiture proceeding

or a related criminal matter, shall be exempt from a judgment of

forfeiture. For purposes of this subdivision and subdivision four of

section one thousand three hundred twelve of this article, "bona fide"

means that the attorney who acquired such property had no reasonable

basis to believe that the fee transaction was a fraudulent or sham

transaction designed to shield property from forfeiture, hide its

existence from governmental investigative agencies, or was conducted for

any purpose other than for legitimate legal representation.

Subpoena duces tecum. 1. At any time before an action

pursuant to this article is commenced, the claiming authority may,

pursuant to the provisions of subdivision two of this section, apply

without notice for the issuance of a subpoena duces tecum.

2. An application for a subpoena duces tecum pursuant to this section:

(a) shall be made in the judicial district in which the claiming

authority may commence an action pursuant to this article, and shall be

made in writing to a justice of the supreme court, or a judge of the

county court; and

(b) shall be supported by an affidavit, and such other written

documentation as may be submitted which: (i) sets forth the identity of

the claiming authority and certifies that the applicant is authorized to

make the application on the claiming authority's behalf; (ii)

demonstrates reasonable grounds to believe that the execution of the

subpoena would be reasonably likely to lead to information about the

nature and location of any debt or property against which a forfeiture

judgment may be enforced; (iii) states whether any other such subpoena

or provisional remedy has been previously sought or obtained with

respect to the subject matter of the subpoena or the matter to which it

relates; (iv) contains a factual statement which sets forth the basis

for the issuance of the subpoena, including a particular description of

the nature of the information sought to be obtained; (v) states whether

the issuance of the subpoena is sought without notice to any interested

party; and (vi) where the application seeks the issuance of the subpoena

without notice to any interested party, contains a statement setting

forth the factual basis for the claiming authority's belief that

providing notice of the application for the issuance of the subpoena may

result in any property being destroyed, removed from the jurisdiction of

the court, or otherwise being unavailable for forfeiture or to satisfy a

money judgment that may be entered in the forfeiture action, and may

interfere with law enforcement investigations or judicial proceedings.

3. An application made pursuant to this section may be granted, in the

court's discretion, upon a determination that the application meets the

requirements set forth in subdivision two of this section; provided,

however, that no such subpoena may be issued or directed to an attorney

with regard to privileged records or documents or attorney work-product

relating to a client. When a subpoena has been issued pursuant to this

section, the claiming authority shall have the right to possession of

the subpoenaed material. The possession shall be for a period of time,

and on such reasonable terms and conditions, as the court may direct.

The reasonableness of such possession, time, terms and conditions shall

be determined with consideration for, among other things, (a) the good

cause shown by the party issuing the subpoena or in whose behalf the

subpoena is issued, (b) the rights and legitimate needs of the person

subpoenaed and (c) the feasibility and appropriateness of making copies

of the subpoenaed material. Where the application seeks a subpoena to

compel the production of an original record or document, the court in

its discretion may order the production of a certified transcript or

certified copy thereof.

4. Upon a determination pursuant to subdivision three of this section

that the subpoena should be granted, the court shall issue the subpoena,

seal all papers relating thereto, and direct that the recipient shall

not, except as otherwise ordered by the court, disclose the fact of

issuance or the subject of the subpoena to any person or entity;

provided, however, that the court may require that notice be given to

any interested party prior to the issuance of the subpoena, or at any

time thereafter, when: (a) an order granting a provisional remedy

pursuant to this article with respect to the subject matter of the

subpoena or the matter to which it relates has been served upon the

defendant whose books and records are the subject matter of the

subpoena, whether such books and records are in the possession of the

defendant or a third party; or (b) the court determines that providing

notice of the application (i) will not result in any property being

destroyed, removed from the jurisdiction of the court, or otherwise

being unavailable for forfeiture or to satisfy a money judgment that may

be entered in the forfeiture action and (ii) will not interfere with law

enforcement investigations or judicial proceedings. For purposes of this

section, "interested party" means any person whom the court determines

might have an interest in the property subject to the forfeiture action

brought pursuant to this article.

5. Notwithstanding the provisions of subdivision four of this section,

where a subpoena duces tecum has been issued pursuant to this section

without notice to any interested party, the claiming authority shall

serve written notice of the fact and date of the issuance of the

subpoena duces tecum, and of the fact that information was obtained

thereby, upon any interested party not later than ninety days after the

date of compliance with such subpoena, or upon commencement of a

forfeiture action, whichever occurs first; provided, however, where the

action has not been commenced and upon a showing of good cause, service

of the notice required herein may be postponed by order of the court for

a reasonable period of time. The court, upon the filing of a motion by

any interested party served with such notice, may, in its discretion,

make available to such party or the party's counsel for inspection such

portions of the information obtained pursuant to the subpoena as the

court directs.

6. Nothing contained in this section shall be construed to diminish or

impair any right of subpoena or discovery that may otherwise be provided

for by law to the claiming authority or to a defendant in a forfeiture

action.

Money judgment. If a claiming authority obtains a forfeiture

judgment against a defendant for the proceeds, substituted proceeds,

instrumentality of a crime or real property instrumentality of a crime,

but is unable to locate all or part of any such property, the claiming

authority may apply to the court for a money judgment against the

defendant in the amount of the value of the forfeited property that

cannot be located. The defendant shall have the right to challenge the

valuation of any property that is the basis for such an application. The

claiming authority shall have the burden of establishing the value of

the property under this section by a preponderance of the evidence.

Provisional remedies; generally. 1. The provisional remedies

of attachment, injunction, receivership and notice of pendency provided

for herein, shall be available in all actions to recover property under

this article.

2. On a motion for a provisional remedy, the claiming authority shall

state whether any other provisional remedy has previously been sought in

the same action against the same defendant. The court may require the

claiming authority to elect between those remedies to which it would

otherwise be entitled.

3. A court may grant an application for a provisional remedy when it

determines that: (a) there is a substantial probability that the

claiming authority will be able to demonstrate at trial that the

property is the proceeds, substituted proceeds, instrumentality of the

crime or real property instrumentality of the crime, that the claiming

authority will prevail on the issue of forfeiture, and that failure to

enter the order may result in the property being destroyed, removed from

the jurisdiction of the court, or otherwise be unavailable for

forfeiture; (b) the need to preserve the availability of the property

through the entry of the requested order outweighs the hardship on any

party against whom the order may operate; and (c) in an action relating

to real property, that entry of the requested order will not

substantially diminish, impair, or terminate the lawful property

interest in such real property of any person or persons other than the

defendant or defendants.

4. Upon motion of any party against whom a provisional remedy granted

pursuant to this article is in effect, the court may issue an order

modifying or vacating such provisional remedy if necessary to permit the

moving party to obtain funds for the payment of reasonable living

expenses, other costs or expenses related to the maintenance, operation,

or preservation of property which is the subject of any such provisional

remedy or reasonable and bona fide attorneys' fees and expenses for the

representation of the defendant in the forfeiture proceeding or in a

related criminal matter relating thereto, payment for which is not

otherwise available from assets of the defendant which are not subject

to such provisional remedy. Any such motion shall be supported by an

affidavit establishing the unavailability of other assets of the moving

party which are not the subject of such provisional remedy for payment

of such expenses or fees. That funds sought to be released under this

subdivision are alleged to be the proceeds, substituted proceeds,

instrumentality of a crime or real property instrumentality of a crime

shall not be a factor for the court in considering and determining a

motion made pursuant to this subdivision.

Debt or property subject to attachment; proper garnishee. Any

debt or property against which a forfeiture judgment may be enforced as

provided under this article is subject to attachment. The proper

garnishee of any such property or debt is the person designated as a

proper garnishee for purposes of enforcing money judgments in section

five thousand two hundred one of this chapter. For the purpose of

applying the provisions to attachment, references to a "judgment debtor"

in section five thousand two hundred one and in subdivision (i) of

section one hundred five of this chapter shall be construed to mean

"defendant".

Attaching creditor's rights in personal property. Where the

claiming authority has delivered an order of attachment to a claiming

agent, the claiming authority's rights in a debt owed to a defendant or

in an interest of a defendant in personal property against which debt or

property a judgment may be enforced, are superior to the extent of the

amount of the attachment to the rights of any transferee of the debt or

property, except:

1. A transferee who acquired the debt or property before it was levied

upon for fair consideration and without knowledge of the order of

attachment; or

2. A transferee who acquired the debt or property for fair

consideration after it was levied upon without knowledge of the levy

while it was not in the possession of the claiming agent.

Discharge of garnishee's obligation. A person who, pursuant to

an order of attachment, pays or delivers to the claiming agent money or

other personal property in which a defendant has or will have an

interest, or so pays a debt he or she owes the defendant, is discharged

from his or her obligation to the defendant to the extent of the payment

or delivery.

Order of attachment on notice; temporary restraining order;

contents. Upon a motion on notice for an order of attachment, the court

may, without notice to the defendant, grant a temporary restraining

order prohibiting the transfer of assets by a garnishee as provided in

subdivision two of section one thousand three hundred twenty of this

article. The contents of the order of attachment granted pursuant to

this section shall be as provided in subdivision one of section one

thousand three hundred seventeen of this article.

Order of attachment without notice. 1. When granted; contents.

An order of attachment may be granted without notice, before or after

service of summons and at any time prior to judgment. It shall specify

the amount to be secured by the order of attachment including any

interest, costs and any claiming agent's fees and expenses, be endorsed

with the name and address of the claiming authority and shall be

directed to a claiming agent in any county or in the city of New York

where any property in which the defendant has an interest is located or

where a garnishee may be served. The order shall direct the claiming

agent to levy within his or her jurisdiction, at any time before final

judgment, upon such property in which the defendant has an interest and

upon such debts owing to the defendant as will satisfy the amount

specified in the order of attachment.

2. Confirmation of order. An order of attachment granted without

notice shall provide that within a period not to exceed five days after

levy, the claiming authority shall move, on such notice as the court

shall direct to the defendant, the garnishee, if any, and the claiming

agent, for an order confirming the order of attachment. If the claiming

authority fails to make such motion within the required period, the

order of attachment and levy thereunder shall have no further effect and

shall be vacated upon motion. Upon the motion to confirm, the provisions

of subdivision two of section one thousand three hundred twenty-nine of

this article shall apply. An order of attachment granted without notice

may provide that the claiming agent refrain from taking any property

levied upon into his actual custody, pending further order of the court.

Motion papers; filing; demand; damages. 1. Affidavit; other

papers. On a motion for an order of attachment, or for an order to

confirm an order of attachment, the claiming authority shall show, by

affidavit and such other written evidence as may be submitted, that

there is a cause of action and showing grounds for relief as required by

section one thousand three hundred twelve of this article.

2. Filing. Within ten days after the granting of an order of

attachment, the claiming authority shall file it and the affidavit and

other papers upon which it was based and the summons and complaint or

proposed complaint in the action. A court for good cause shown may

extend the time for such filing upon application of the claiming

authority. Unless the time for filing has been extended, the order shall

be invalid if not so filed, except that a person upon whom it is served

shall not be liable for acting upon it as if it were valid without

knowledge of the invalidity.

3. Demand for papers. At any time after property has been levied upon,

the defendant may serve upon the claiming authority a written demand

that the papers upon which the order of attachment was granted and the

levy made be served upon him or her. As soon as practicable after

service of the demand, the claiming authority shall cause the papers

demanded to be served by mailing the same to the address specified in

the demand. A demand under this subdivision shall not of itself

constitute an appearance in the action.

4. Damages. The claiming authority shall be liable to the defendant

for all costs and damages, including reasonable attorney's fees, which

may be sustained by reason of the attachment if the defendant recovers

judgment, or if it is finally decided that the claiming authority was

not entitled to an attachment of the defendant's property. In order to

establish the claiming authority's liability, the defendant must prove

by a preponderance of the evidence that in obtaining the order of

attachment the claiming authority acted without reasonable cause and not

in good faith.

Service of summons. An order of attachment granted before

service is made on the defendant against whom the attachment is granted

is valid only if, within sixty days after the order is granted, a

summons is served upon the defendant or first publication of the summons

against the defendant is made pursuant to an order and publication is

subsequently completed, except that a person upon whom the order of

attachment is served shall not be liable for acting upon it as if it

were valid without knowledge of the invalidity. If the defendant dies

within sixty days after the order is granted and before the summons is

served upon him or her or publication is completed, the order is valid

only if the summons is served upon his or her executor or administrator

within sixty days after letters are issued. Upon such terms as may be

just and upon good cause shown the court may extend the time, not

exceeding sixty days, within which the summons must be served or

publication commenced pursuant to this section, provided that the

application for extension is made before the expiration of the time

fixed.

Levy upon personal property by service of order. 1. Method of

levy. The claiming agent shall levy upon any interest of the defendant

in personal property, or upon any debt owed to the defendant, by serving

a copy of the order of attachment upon the garnishee, or upon the

defendant if property to be levied upon is in the defendant's possession

or custody, in the same manner as a summons except that such service

shall not be made by delivery of a copy to a person authorized to

receive service of summons solely by a designation filed pursuant to a

provision of law other than rule three hundred eighteen of this chapter.

2. Effect of levy; prohibition of transfer. A levy by service of an

order of attachment upon a person other than the defendant is effective

only if, at the time of service, such person owes a debt to the

defendant or such person is in the possession or custody of property in

which such person knows or has reason to believe the defendant has an

interest, or if the claiming authority has stated in a notice which

shall be served with the order that a specified debt is owed by the

person served to the defendant or that the defendant has an interest in

specified property in the possession or custody of the person served.

All property in which the defendant is known or believed to have an

interest then in and thereafter coming into the possession or custody of

such a person, including any specified in the notice, and all debts of

such person, including any specified in the notice, then due and

thereafter coming due to the defendant, shall be subject to the levy.

Unless the court orders otherwise, the person served with the order

shall forthwith transfer or deliver all such property, and pay all such

debts upon maturity, up to the amount specified in order of attachment,

to the claiming agent and execute any document necessary to effect the

payment, transfer or delivery. After such payment, transfer or

delivery, property coming into the possession or custody of the

garnishee, or debt incurred by him or her, shall not be subject to the

levy. Until such payment, transfer or delivery is made, or until the

expiration of ninety days after the service of the order of attachment

upon him or her, or of such further time as is provided by any

subsequent order of the court served upon him or her, whichever event

first occurs, the garnishee is prohibited to make or suffer any sale,

assignment or transfer of, or any interference with any such property,

or pay over or otherwise dispose of any such debt, to any person other

than the claiming agent except upon direction of the claiming agent or

pursuant to an order of the court. A garnishee, however, may collect or

redeem an instrument received by him or her for such purpose and he or

she may sell or transfer in good faith property held as collateral or

otherwise pursuant to pledge thereof or at the direction of any person

other than the defendant authorized to direct sale or transfer, provided

that the proceeds in which the defendant has an interest be retained

subject to the levy. A claiming authority who has specified personal

property or debt to be levied upon in a notice served with an order of

attachment shall be liable to the owner of the property or the person to

whom the debt is owed, if other than the defendant, for any damages

sustained by reason of the levy. In order to establish the claiming

authority's liability, the owner of the property of the person to whom

the debt is owed must prove by a preponderance of the evidence that, in

causing the levy to occur, the claiming authority acted without

reasonable cause and not in good faith.

3. Seizure by claiming agent; notice of satisfaction. Where property

or debts have been levied upon by service of an order of attachment, the

claiming agent shall take into his or her actual custody all such

property capable of delivery and shall collect and receive all such

debts. When the claiming agent has taken into his or her actual custody

property or debts having value sufficient to satisfy the amount

specified in the order of attachment, the claiming agent shall notify

the defendant and each person upon whom the order of attachment was

served that the order of attachment has been fully executed.

4. Proceeding to compel payment or delivery. Where property or debts

have been levied upon by service of an order of attachment, the claiming

authority may commence a special proceeding against the garnishee served

with the order to compel the payment, delivery or transfer to the

claiming agent of such property or debts, or to secure a judgment

against the garnishee. Notice of petition shall also be served upon the

parties to the action and the claiming agent. A garnishee may assert any

defense or counterclaim which he or she may have asserted against the

defendant. The court may permit any adverse claimant to intervene in the

proceeding and may determine his or her rights in accordance with

section one thousand three hundred twenty-seven of this article.

5. Failure to proceed. At the expiration of ninety days after a levy

is made by service of the order of attachment, or of such further time

as the court, upon motion of the claiming authority on notice to the

parties to the action, has provided, the levy shall be void except as to

property or debts which the claiming agent has taken into his or her

actual custody, collected or received or as to which a proceeding under

subdivision four hereof has been commenced.

Levy upon personal property by seizure. If the claiming

authority shall so direct the collecting agent, as an alternative to the

method prescribed by section one thousand three hundred twenty of this

article, shall levy upon property capable of delivery by taking the

property into his actual custody. In cases in which the collecting agent

is a sheriff, the sheriff may require that the claiming authority

furnish indemnity that is either satisfactory to the sheriff or is fixed

by the court. The collecting agent shall within four days serve a copy

of the order of attachment in the manner prescribed by subdivision one

of section one thousand three hundred twenty of this article upon the

person from whose possession or custody the property was taken.

Levy upon real property. The claiming agent shall levy upon

any interest of the defendant in real property by filing with the clerk

of the county in which the property is located a notice of attachment

endorsed with the name and address of the claiming authority and stating

the names of the parties to the action, the amount specified in the

order of attachment and a description of the property levied upon. The

clerk shall record and index the notice in the same books, in the same

manner and with the same effect, as a notice of the pendency of an

action.

Additional undertaking to carrier garnishee. A garnishee who

is a common carrier may transport or deliver property actually loaded on

a conveyance, notwithstanding the service upon him or her of an order of

attachment, if it was loaded without reason to believe that an order of

attachment affecting the property had been granted, unless the claiming

authority gives an undertaking in an amount fixed by the court, that the

claiming authority shall pay any such carrier all expenses and damages

which may be incurred for unloading the property and for detention of

the conveyance necessary for that purpose.

Claiming agent's duties after levy. 1. Retention of property.

The claiming agent shall hold and safely keep all property or debts

paid, delivered, transferred or assigned to him or her or taken into his

or her custody to answer any judgment that may be obtained against the

defendant in the action, unless otherwise directed by the court or the

claiming authority, subject to the payment of the claiming agent's fees

and expenses, if any. Any money shall be held for the benefit of the

parties to the action in an interest-bearing trust account at a national

or state bank or trust company. If the urgency of the case requires, the

court may direct sale or other disposition of property, specifying the

manner and terms thereof, with notice to the parties to the action and

the garnishee who has possession of such property.

2. Inventory. Within fifteen days after service of an order of

attachment or forthwith after such order has been vacated or annulled,

the claiming agent shall file an inventory of property seized, a

description of real property levied upon, the names and addresses of all

persons served with the order of attachment, and an estimate of the

value of all property levied upon.

Garnishee's statement. Within ten days after service upon a

garnishee of an order of attachment, or within such shorter time as the

court may direct, the garnishee shall serve upon the claiming agent a

statement specifying all debts of the garnishee to the defendant, when

the debts are due, all property in the possession or custody of the

garnishee in which the defendant has an interest, and the amounts and

value of the debts and property specified. If the garnishee has money

belonging to, or is indebted to, the defendant in at least the amount of

the attachment, he or she may limit his or her statement to that fact.

Disclosure. Upon motion of any interested person, at any time

after the granting of an order of attachment and prior to final judgment

in the action, upon such notice as the court may direct, the court may

order disclosure by any person of information regarding any property in

which the defendant has or may have interest, or any debts owed or which

may be owed to the defendant.

Proceedings to determine adverse claims. Prior to the

application of property or debt to the satisfaction of a judgment, any

person, other than a party to the action, who has an interest in the

property subject to forfeiture may commence a special proceeding against

the claiming authority to determine the rights of adverse claimants to

the property or debt, and in such proceeding shall serve a notice of

petition upon the claiming agent and upon each party in the same manner

as a notice of motion. The proceeding may be commenced in the county

where the property was levied upon, or in the county where the order of

attachment is filed. The court may vacate or discharge the attachment,

void the levy, direct the disposition of the property or debt, direct

that undertakings be provided or released, or direct that damages be

awarded. Where there appear to be disputed questions of fact, the court

shall order a separate trial, indicating the person who shall have

possession of the property pending a decision and the undertaking, if

any, which such person shall give. If the court determines that the

adverse claim was fraudulent or made without any reasonable basis

whatsoever, it may require the claimant to pay the claiming authority

the reasonable expenses incurred in the proceeding, including reasonable

attorney's fees, and any other damages suffered by reason of the claim.

The commencement of the proceeding shall not of itself subject the

adverse claimant to personal jurisdiction with respect to any matter

other than the claim asserted in the proceeding.

Discharge of attachment. 1. A defendant whose property or debt

has been levied upon may move, upon notice to the claiming authority and

the claiming agent, for any order discharging the attachment as to all

or part of the property or debt upon payment of the claiming agent's

fees and expenses, if any. On such a motion, the defendant shall give an

undertaking, in an amount equal to the value of the property or debt

sought to be discharged, that the defendant will pay to the claiming

authority the amount of any judgment which may be recovered in the

action against him or her, not exceeding the amount of the undertaking.

Making a motion or giving an undertaking under this section shall not of

itself constitute an appearance in the action.

2. When a motion to discharge is made in the case of property levied

upon pursuant to a claimed violation of the tax law, the amount of the

undertaking required shall be an amount equal to the lesser of:

(a) The amount specified in subdivision one of this section; or

(b) The aggregate amount of all unpaid tax and civil penalties for

such violation.

Vacating or modifying attachment. 1. Motion to vacate or

modify. Prior to the application of property or debt to the satisfaction

of a judgment, the defendant, the garnishee or any person having an

interest in the property or debt may move, on notice to each party and

the claiming agent, for an order vacating or modifying the order of

attachment. Upon the motion, the court may give the claiming authority a

reasonable opportunity to correct any defect. If, after the defendant

has appeared in the action, the court determines that the attachment is

unnecessary to the security of the claiming authority, it shall vacate

the order of attachment. Such a motion shall not of itself constitute an

appearance in the action.

2. Burden of proof. Upon a motion to vacate or modify an order of

attachment the claiming authority shall have the burden of establishing

the grounds for the attachment, the need for continuing the levy and the

probability that he or she will succeed on the merits.

Annulment of attachment. An order of attachment is annulled

when the action in which it was granted abates or is discontinued or a

judgment entered therein in favor of the claiming authority is fully

satisfied, or a judgment is entered therein in favor of the defendant.

In the last specified case a stay of proceedings suspends the effect of

the annulment, and a reversal or vacating of the judgment revives the

order of attachment.

Return of property; directions to clerk and claiming agent.

Upon motion of any interested person, on notice to the claiming agent

and each party, the court may direct the clerk of any county to cancel a

notice of attachment and may direct the claiming agent to dispose of,

account for, assign, return or release any property or debt, or the

proceeds thereof, or any undertaking, or to file additional inventories

or returns, subject to the payment of the claiming agent's fees, and

expenses, if any. The court shall direct that notice of the motion be

given to the claiming authority and plaintiffs in other orders of

attachment, if any, and to the judgment creditors of executions, if any,

affecting any property or debt, or the proceeds thereof, sought to be

returned or released.

Disposition of attachment property after execution issued;

priority of orders of attachment. Where an execution is issued upon a

judgment entered against the defendant, the claiming agent's duty with

respect to custody and disposition of property or debt levied upon

pursuant to an order of attachment is the same as if he or she had

levied upon it pursuant to the execution. The priority among two or more

orders of attachment against the same defendant shall be in the order in

which they were delivered to the officer who levied upon the property or

debt. The priority between an order of attachment and an execution, or a

payment, delivery or receivership order, is set forth in section five

thousand two hundred thirty-four of this chapter.

Grounds for preliminary injunction and temporary restraining

order. A preliminary injunction may be granted in any action under this

article, whether for money damages or otherwise, where it appears that

the defendant threatens or is about to do, or is doing or procuring or

suffering to be done, an act in violation of the claiming authority's

rights respecting the subject of the action, and thereby tending to

render a resulting judgment ineffectual. A temporary restraining order

may be granted pending a hearing for a preliminary injunction where it

appears that immediate and irreparable injury, loss or damage will

result unless the defendant is restrained before the hearing can be had.

A preliminary injunction may be granted only upon notice to the

defendant. Notice of the motion may be served with the summons or at any

time thereafter and prior to judgment.

Motion papers. Affidavit; other papers. On a motion for a

preliminary injunction the claiming authority shall show, by affidavit

and such other written evidence as may be submitted, that there is a

cause of action and showing grounds for relief as required by section

one thousand three hundred twelve of this article.

Temporary restraining order. 1. Generally. If, on a motion for

a preliminary injunction, the claiming authority shall show that

immediate and irreparable injury, loss or damages may result unless the

defendant is restrained before a hearing can be had, a temporary

restraining order may be granted without notice. Upon granting a

temporary restraining order, the court shall set the hearing for the

preliminary injunction at the earliest possible time.

2. Service. Unless the court orders otherwise, a temporary restraining

order together with the papers upon which it was based, and a notice of

hearing for the preliminary injunction, shall be personally served in

the same manner as a summons.

Vacating or modifying preliminary injunction or temporary

restraining order. A defendant enjoined by a preliminary injunction may

move at any time, on notice to the claiming authority, to vacate or

modify it. On motion, without notice, made by a defendant enjoined by a

temporary restraining order, the judge who granted it, or in his or her

absence or disability, another judge, may vacate or modify the order. An

order granted without notice and vacating or modifying a temporary

restraining order shall be effective when, together with the papers upon

which it is based, it is filed with the clerk and served upon the

claiming authority. As a condition to granting an order vacating or

modifying a preliminary injunction or a temporary restraining order, a

court may require the defendant to give an undertaking, in an amount to

be fixed by the court, that the defendant shall pay to the claiming

authority any loss sustained by reason of the vacating or modifying

order.

Ascertaining damages sustained by reason of preliminary

injunction or temporary restraining order. The damages sustained by

reason of a preliminary injunction or temporary restraining order may be

ascertained upon motion on such notice to all interested persons as the

court shall direct. Where the defendant enjoined was an officer of a

corporation or joint-stock association or a representative of another

person, the damages sustained by such corporation, association or person

represented, to the amount of such excess, may also be ascertained. The

amount of damages so ascertained is conclusive upon all persons who were

served with notice of the motion and such amount may be recovered by the

person entitled thereto in a separate action. In order to establish the

claiming authority's liability for damages, the person seeking such

damages must prove by a preponderance of the evidence that, in causing

the temporary restraining order or preliminary injunction to be granted,

the claiming authority acted without reasonable cause and not in good

faith.

Appointment and powers of temporary receiver. 1. Appointment

of temporary receiver; joinder of moving party. Upon motion of the

claiming authority on any other person having an apparent interest in

property which is the subject of an action pursuant to this article, a

temporary receiver of the property may be appointed, before or after

service of summons and at any time prior to judgment, or during the

pendency of an appeal, where there is danger that the property will be

removed from the state, or lost, materially injured or destroyed. A

motion made by a person not already a party to the action constitutes an

appearance in the action and the person shall be joined as a party.

2. Powers of temporary receiver. The court appointing a receiver may

authorize him or her to take and hold real and personal property, and

sue for, collect and sell debts or claims, upon such conditions and for

such purposes as the court shall direct. A receiver shall have no power

to employ counsel unless expressly so authorized by order of the court.

Upon motion of the receiver or a party, powers granted to a temporary

receiver may be extended or limited or the receivership may be extended

to another action involving the property.

3. Duration of temporary receivership. A temporary receivership shall

not continue after final judgment unless otherwise directed by the

court.

Oath. A temporary receiver, before entering upon his or her

duties, shall be sworn faithfully and fairly to discharge the trust

committed to him or her. The oath may be administered by any person

authorized to take acknowledgments of deeds by the real property law.

The oath may be waived upon consent of all parties.

Undertaking. A temporary receiver shall give an undertaking in

an amount to be fixed by the court making the appointment, that he or

she will faithfully discharge his or her duties.

Accounts. A temporary receiver shall keep written accounts

itemizing receipts and expenditures, and describing the property and

naming the depository of receivership funds, which shall be open to

inspection by any person having an apparent interest in the property,

the court may require the keeping of particular records or direct or

limit inspection or require presentation of a temporary receiver's

accounts. Notice of a motion for the presentation of a temporary

receiver's accounts shall be served upon the sureties on his or her

undertaking as well as upon each party.

Removal. Upon motion of any party or upon its own initiative,

the court which appointed a receiver may remove him or her at any time.

Notice of pendency; constructive notice. A notice of pendency

may be filed in any action brought pursuant to this article in which the

judgment demanded would affect the title to, or the possession, use or

enjoyment of, real property. The pendency of such an action is

constructive notice, from the time of filing of the notice only, to a

purchaser from, or incumbrancer against, any defendant named in a notice

of pendency indexed in a block index against a block in which property

affected is situated or any defendant against whose name a notice of

pendency is indexed. A person whose conveyance or incumbrance is

recorded after the filing of the notice is bound by all proceedings

taken in the action after such filing to the same extent as if he or she

were a party.

Filing, content and indexing of notice of pendency. 1. Filing.

In a case specified in section one thousand three hundred forty-three of

this article the notice of pendency shall be filed in the office of the

clerk of any county where property affected is situated, before or after

service of a summons and at any time prior to judgment. Unless it has

already been filed in that county, the complaint shall be filed with the

notice of pendency.

2. Content, designation of index. A notice of pendency shall state the

names of the parties to the action, that the action is for forfeiture

pursuant to this article and a description of the property affected. A

notice of pendency filed with a clerk who maintains a block index shall

contain a designation of the number of each block on the land map of a

county which is affected by the notice. A notice of pendency filed with

a clerk who does not maintain a block index shall contain a designation

of the names of each defendant against whom the notice is directed to be

indexed.

3. Indexing. Each county clerk with whom a notice of pendency is filed

shall immediately record and index it against the blocks or names

designated. A county clerk who does not maintain a block index shall

index a notice of pendency of an action for partition against the names

of each claiming authority and each defendant not designated as wholly

fictitious.

Service of summons. A notice of pendency filed before an

action is commenced is effective only if, within thirty days after

filing, a summons is served upon the defendant or first publication of

the summons against the defendant is made pursuant to an order and

publication is subsequently completed. If the defendant dies within

thirty days after filing and before the summons served upon him or her

or publication is completed, the notice is effective only if the summons

is served upon his or her executor or administrator within sixty days

after letters are issued.

Duration of notice of pendency. A notice of pendency shall be

effective for a period of three years from the date of filing. Before

expiration of a period or extended period, the court, upon motion of the

claiming authority and upon such notice as it may require, for good

cause shown, may grant an extension for a like additional period. An

extension order shall be filed, recorded and indexed before expiration

of the prior period.

Motion for cancellation of notice of pendency. 1. Mandatory

cancellation. The court, upon motion of any person aggrieved and upon

such notice as it may require, shall direct any county clerk to cancel a

notice of pendency, if service of a summons has not been completed

within the time limited by section one thousand three hundred forty-five

of this article; or if the action has been settled, discontinued or

abated; or if the time to appeal from a final judgment against the

claiming authority has expired.

2. Discretionary cancellation. The court, upon a motion of any person

aggrieved and upon such notice as it may require, may direct any county

clerk to cancel a notice of pendency, if the claiming authority has not

commenced or prosecuted the action in good faith.

3. Costs and expenses. The court, in an order canceling a notice of

pendency under this section, may direct the claiming authority to pay

any costs and expenses occasioned by the filing and cancellation, in

addition to any costs of the action. In order to establish the claiming

authority's liability for such costs and expenses, the person seeking

such costs and expenses must prove by a preponderance of the evidence

that, in causing the notice to pendency to be filed, the claiming

authority acted without reasonable cause and not in good faith.

4. Cancellation by stipulation. At any time prior to entry of

judgment, a notice of pendency shall be cancelled by the county clerk

without an order, on the filing with him or her of:

(a) An affidavit by the claiming authority showing which defendants

have been served with process, which defendants are in default in

appearing or answering, and which defendants have appeared or answered

and by whom; and

(b) A stipulation consenting to the cancellation, signed by the

claiming authority and by the attorneys for all the defendants who have

appeared or answered including those who have waived all notices, and

executed and acknowledged, in the form required to entitle a deed to be

recorded, by the defendants who have been served with process and have

not appeared but whose time to do so has not expired, and by any

defendants who have appeared in person.

5. Cancellation by a claiming authority. At any time prior to the

entry of a judgment a notice of pendency of action shall be cancelled by

the county clerk without an order on the filing with him or her of an

affidavit by the claiming authority showing that there have been no

appearances and that the time to appear has expired for all parties.

Undertaking for cancellation of notice of pendency. The court,

upon motion of any person aggrieved and upon such notice of pendency as

it may require, may direct any county clerk to cancel a notice of

pendency, upon such terms as are just, whether or not the judgment

demanded would affect specific real property, if the moving party shall

give an undertaking in an amount to be fixed by the court, and if the

court finds that adequate relief can be secured to the claiming

authority by the giving of such an undertaking.

Disposal of property. 1. Any judgment or order of forfeiture

issued pursuant to this article shall include provisions for the

disposal of the property found to have been forfeited.

2. If any other provision of law expressly governs the manner of

disposition of property subject to the judgment or order of forfeiture,

that provision of law shall be controlling, with the exception that,

notwithstanding the provisions of any other law, all forfeited monies

and proceeds from forfeited property shall be deposited into and

disbursed from an asset forfeiture escrow fund established pursuant to

section six-v of the general municipal law, which shall govern the

maintenance of such monies and proceeds from forfeited property. Upon

application by a claiming agent for reimbursement of moneys directly

expended by a claiming agent in the underlying criminal investigation

for the purchase of contraband which were converted into a non-monetary

form or which have not been otherwise recovered, the court shall direct

such reimbursement from money forfeited pursuant to this article. Upon

application of the claiming agent, the court may direct that any

vehicles, vessels or aircraft forfeited pursuant to this article be

retained by the claiming agent for law enforcement purposes, unless the

court determines that such property is subject to a perfected lien, in

which case the court may not direct that the property be retained unless

all such liens on the property to be retained have been satisfied or

pursuant to the court's order will be satisfied. In the absence of an

application by the claiming agent, the claiming authority may apply to

the court to retain such property for law enforcement purposes. Upon

such application, the court may direct that such property be retained by

the claiming authority for law enforcement purposes, unless the court

determines that such property is subject to a perfected lien. If not so

retained, the judgment or order shall direct the claiming authority to

sell the property in accordance with article fifty-one of this chapter,

and that the proceeds of such sale and any other moneys realized as a

consequence of any forfeiture pursuant to this article shall be

deposited to an asset forfeiture escrow fund established pursuant to

section six-v of the general municipal law and shall be apportioned and

paid in the following descending order of priority:

(a) Amounts ordered to be paid by the court in satisfaction of any

lien or claim against property forfeited. A fine imposed pursuant to the

penal law shall not be deemed to constitute a lien or claim for purposes

of this section;

(b) Amounts ordered to be paid by the defendant in any other action or

proceeding as restitution, reparations or damages to a victim of the

crime, which crime constitutes the basis upon which forfeiture was

effected under this article, to the extent such amounts remain unpaid;

(c) Amounts ordered to be paid by the defendant in any other action or

proceeding as restitution, reparations or damages to a victim of any

crime committed by the defendant even though such crime did not

constitute the basis for forfeiture under this article, to the extent

that such amounts remain unpaid;

(d) Amounts actually expended by a claiming authority or claiming

agent, which amounts are substantiated by vouchers or other evidence,

for the: (i) maintenance and operation of real property attached

pursuant to this article. Expenditures authorized by this subparagraph

are limited to mortgage, tax and other financial obligations imposed by

law and those other payments necessary to provide essential services and

repairs to real property whose occupants are innocent of the criminal

conduct which led to the attachment or forfeiture; and

(ii) proper storage, cleanup and disposal of hazardous substances or

other materials, the disposal of which is governed by the environmental

conservation law, when such storage, cleanup or disposal is required by

circumstances attendant to either the commission of the crime or the

forfeiture action, or any order entered pursuant thereto;

(e) In addition to amounts, if any, distributed pursuant to paragraph

(d) of this subdivision, fifteen percent of all moneys realized through

forfeiture to the claiming authority in satisfaction of actual costs and

expenses incurred in the investigation, preparation and litigation of

the forfeiture action, including that proportion of the salaries of the

attorneys, clerical and investigative personnel devoted thereto, plus

all costs and disbursements taxable under the provisions of this

chapter;

(f) In addition to amounts, if any, distributed pursuant to paragraph

(d) of this subdivision, five percent of all moneys realized through

forfeiture to the claiming agent in satisfaction of actual costs

incurred for protecting, maintaining and forfeiting the property

including that proportion of the salaries of attorneys, clerical and

investigative personnel devoted thereto;

(g) Forty percent of all moneys realized through forfeiture which are

remaining after distributions pursuant to paragraphs (a) through (f) of

this subdivision, to the chemical dependence service fund established

pursuant to section ninety-seven-w of the state finance law;

(h) All moneys remaining after distributions pursuant to paragraphs

(a) through (g) of this subdivision shall be distributed as follows:

(i) seventy-five percent of such moneys shall be deposited to a law

enforcement purposes subaccount of the general fund of the state where

the claiming agent is an agency of the state or the political

subdivision or public authority of which the claiming agent is a part,

to be used for law enforcement use in the investigation of penal law

offenses or law enforcement assisted diversion;

(ii) the remaining twenty-five percent of such moneys shall be

deposited to a prosecution services subaccount of the general fund of

the state where the claiming authority is the attorney general or the

political subdivision of which the claiming authority is a part, to be

used for the prosecution of penal law offenses.

Where multiple claiming agents participated in the forfeiture action,

funds available pursuant to subparagraph (i) of this paragraph shall be

disbursed to the appropriate law enforcement purposes subaccounts in

accordance with the terms of a written agreement reflecting the

participation of each claiming agent entered into by the participating

claiming agents.

3. All moneys distributed to the claiming agent and the claiming

authority pursuant to paragraph (h) of subdivision two of this section

shall be used to enhance law enforcement efforts and not in

supplantation of ordinary budgetary costs including salaries of

personnel, and expenses of the claiming authority or claiming agent

during the fiscal year in which this section takes effect.

4. The claiming authority shall report the disposal of property and

collection of assets pursuant to this section to the office of victim

services, the state division of criminal justice services and the state

division of substance abuse services.

5. Monies and proceeds from the sale of property realized as a

consequence of any forfeiture distributed to the claiming agent or

claiming authority of any county, town, city, or village of which the

claiming agent or claiming authority is a part, shall be deposited to an

asset forfeiture escrow fund established pursuant to section six-v of

the general municipal law.

Rules of procedure; in general. The civil practice law and

rules shall govern the procedure in proceedings and actions commenced

under this article, except where the procedure is regulated by any

inconsistent provisions herein.

Application of article. If any provision of this article or

the application thereof to any person or circumstances shall be adjudged

by any court of competent jurisdiction to be invalid or

unconstitutional, such judgment shall not affect, impair or invalidate

the remainder thereof, but shall be confined (i) in its operation of the

provision, or (ii) in its application to the person or circumstance

directly involved in the controversy in which such judgment shall have

been rendered.

Preservation of other rights and remedies. The remedies

provided for in this article are not intended to substitute for or limit

or supersede the lawful authority of any public officer or agency or

other person to enforce any other right or remedy provided for by law.

The exercise of such lawful authority in the forfeiture of property

alleged to be the proceeds, substitute proceeds, instrumentality of a

crime or real property instrumentality of crime must include the

provision of a prompt opportunity to be heard for the owner of seized

property in order to ensure the legitimacy and the necessity of its

continued retention by law enforcement, as well as clear notice of

deadlines for accomplishing the return of such property.

Civil remedies. 1. Upon or after conviction of a person of any

subdivision of section 460.20 of the penal law, the court may, after

making due provision for the rights of innocent persons, enjoin future

activity by the person so convicted or an enterprise he controls or in

whose control he participates upon a showing that injunctive action is

necessary to prevent further violation of that section. In such case the

court may:

(a) order the defendant to divest himself of any interest in a

specified enterprise;

(b) impose reasonable restrictions upon the future activities or

investments of the defendant, including prohibiting the defendant from

engaging in the same type of endeavor as the enterprise in which he was

engaged in violation of section 460.20 of the penal law;

(c) order the dissolution of any enterprise he controls or the

reorganization of any enterprise he controls or of which he participates

in the control;

(d) order the suspension or revocation of a license, permit or prior

approval granted by any agency of the state or any political subdivision

thereof to the defendant or to any enterprise controlled by him or in

whose control he participates, provided however, that when the court

orders such license, permit or approval revoked or suspended for a

period of more than two years, the court shall set a period of time

within two years of the date of such revocation or suspension after

which the defendant or enterprise may petition the court to permit the

defendant or enterprise to request restoration or renewal of such

license, permit or approval, by the agency or board empowered to grant

it, after notice to and hearing of the party who brought the action in

which the revocation or suspension was ordered;

(e) order the revocation of the certificate of incorporation of a

corporation organized under the laws of the state in which the defendant

has a controlling interest or the revocation of authorization for a

foreign corporation in which the defendant has a controlling interest to

conduct business within the state upon a finding that the board of

directors or a high managerial agent acting on behalf of the

corporation, in conducting the affairs of the corporation, has

authorized or engaged in activity made unlawful by section 460.20 of the

penal law and that such action is necessary for the prevention of future

criminal activity made unlawful by section 460.20 of the penal law.

2. The attorney general, the deputy attorney general in charge of the

statewide organized crime task force, or any district attorney may

institute civil proceedings in the supreme court under this section.

Any action brought under this article shall constitute a special

proceeding. In any action brought under this article, the supreme court

shall proceed as soon as practicable to the hearing and determination

thereof. Pending final determination, the supreme court may, at any

time, enter such injunctions, prohibitions, or restraining orders or

take such actions, including the acceptance of satisfactory performance

bonds, ordering of disclosure under article thirty-one of this chapter,

or other action as the court may deem proper.

Joinder of a party. A person or enterprise not convicted of

the crime of enterprise corruption may be made a party to a civil action

under this article, whenever joinder of such person or enterprise is

necessary pursuant to section 1001 of this chapter.

Civil actions notice. Within fifteen days of commencing a

civil proceeding pursuant to this article, the prosecutor bringing such

action must notify those district attorneys who were affected district

attorneys within the meaning of section 460.60 of the penal law in the

prior criminal proceeding.

Claim for contribution. Except as provided in sections 15-108

and 18-201 of the general obligations law, sections eleven and

twenty-nine of the workers' compensation law, or the workers'

compensation law of any other state or the federal government, two or

more persons who are subject to liability for damages for the same

personal injury, injury to property or wrongful death, may claim

contribution among them whether or not an action has been brought or a

judgment has been rendered against the person from whom contribution is

sought.

Amount of contribution. The amount of contribution to which a

person is entitled shall be the excess paid by him over and above his

equitable share of the judgment recovered by the injured party; but no

person shall be required to contribute an amount greater than his

equitable share. The equitable shares shall be determined in accordance

with the relative culpability of each person liable for contribution.

How contribution claimed. A cause of action for contribution

may be asserted in a separate action or by cross-claim, counterclaim or

third-party claim in a pending action.

Rights of persons entitled to damages not affected; Rights of

indemnity or subrogation preserved. (a) Nothing contained in this

article shall impair the rights of any person entitled to damages under

existing law.

(b) Nothing contained in this article shall impair any right of

indemnity or subrogation under existing law.

Damages recoverable when contributory negligence or assumption

of risk is established. (a) Except as provided in subsection (b) of this

section, in any action to recover damages for personal injury, injury to

property, or wrongful death, the culpable conduct attributable to the

claimant or to the decedent, including contributory negligence or

assumption of risk, shall not bar recovery. The amount of damages

otherwise recoverable shall be diminished in the proportion which the

culpable conduct attributable to the claimant or decedent bears to the

culpable conduct which caused the damages.

(b) In any action to recover damages for personal injury subject to

article fifty-one of the insurance law, the culpable conduct

attributable to the claimant shall bar recovery if the culpable conduct

attributable to the claimant is greater than the culpable conduct of the

person against whom recovery is sought or is greater than the combined

culpable conduct of the persons against whom recovery is sought.

Burden of pleading; burden of proof. Culpable conduct claimed

in diminution of damages, in accordance with section fourteen hundred

eleven, shall be an affirmative defense to be pleaded and proved by the

party asserting the defense.

Applicability. This article shall apply to all causes of

action accruing on or after September first, nineteen hundred

seventy-five.

Actions against persons jointly liable; service of summons;

judgment. Where less than all of the named defendants in an action based

upon a joint obligation, contract or liability are served with the

summons, the plaintiff may proceed against the defendants served, unless

the court otherwise directs, and if the judgment is for the plaintiff it

may be taken against all the defendants.

Provisional remedies and defenses in subsequent action against

co-obligor. A subsequent action against a co-obligor who was not

summoned in the original action must be maintained in order to procure a

judgment enforceable against his individually held property for the sum

remaining unpaid upon the original judgment, and such action shall be

regarded as based upon the same obligation, contract or liability as the

original judgment for the purpose of obtaining any provisional remedy.

The complaint in the subsequent action shall be verified. The defendant

in the subsequent action may raise any defenses or counterclaims that he

might have raised in the original action if the summons had been served

on him when it was first served on a co-obligor, and may raise

objections to the original judgment, and defenses or counterclaims that

have arisen since it was entered.

Definitions. As used in this article the term "non-economic

loss" includes but is not limited to pain and suffering, mental anguish,

loss of consortium or other damages for non-economic loss.

Limited liability of persons jointly liable. 1.

Notwithstanding any other provision of law, when a verdict or decision

in an action or claim for personal injury is determined in favor of a

claimant in an action involving two or more tortfeasors jointly liable

or in a claim against the state and the liability of a defendant is

found to be fifty percent or less of the total liability assigned to all

persons liable, the liability of such defendant to the claimant for

non-economic loss shall not exceed that defendant's equitable share

determined in accordance with the relative culpability of each person

causing or contributing to the total liability for non-economic loss;

provided, however that the culpable conduct of any person not a party to

the action shall not be considered in determining any equitable share

herein if the claimant proves that with due diligence he or she was

unable to obtain jurisdiction over such person in said action (or in a

claim against the state, in a court of this state); and further provided

that the culpable conduct of any person shall not be considered in

determining any equitable share herein to the extent that action against

such person is barred because the claimant has not sustained a "grave

injury" as defined in section eleven of the workers' compensation law.

2. Nothing in this section shall be construed to affect or impair any

right of a tortfeasor under section 15-108 of the general obligations

law.

Application. The limitations set forth in this article shall:

1. apply to any claim for contribution or indemnification, but shall

not include:

(a) a claim for indemnification if, prior to the accident or

occurrence on which the claim is based, the claimant and the tortfeasor

had entered into a written contract in which the tortfeasor had

expressly agreed to indemnify the claimant for the type of loss

suffered; or

(b) a claim for indemnification by a public employee, including

indemnification pursuant to section fifty-k of the general municipal law

or section seventeen or eighteen of the public officers law.

2. not be construed to impair, alter, limit, modify, enlarge, abrogate

or restrict (i) the limitations set forth in section twenty-a of the

court of claims act; (ii) any immunity or right of indemnification

available to or conferred upon any defendant for any negligent or

wrongful act or omission; (iii) any right on the part of any defendant

to plead and prove an affirmative defense as to culpable conduct

attributable to a claimant or decedent which is claimed by such

defendant in the diminution of damages in any action; and (iv) any

liability arising by reason of a non-delegable duty or by reason of the

doctrine of respondeat superior.

3. not apply to administrative proceedings.

4. not apply to claims under the workers' compensation law or to a

claim against a defendant where claimant has sustained a "grave injury"

as defined in section eleven of the workers' compensation law to the

extent of the equitable share of any person against whom the claimant is

barred from asserting a cause of action because of the applicability of

the workers' compensation law provided, however, that nothing in this

subdivision shall be construed to create, impair, alter, limit, modify,

enlarge, abrogate, or restrict any theory of liability upon which any

person may be held liable.

5. not apply to actions requiring proof of intent.

6. not apply to any person held liable by reason of his use,

operation, or ownership of a motor vehicle or motorcycle, as those terms

are defined respectively in sections three hundred eleven and one

hundred twenty-five of the vehicle and traffic law.

7. not apply to any person held liable for causing claimant's injury

by having acted with reckless disregard for the safety of others.

8. not apply to any person held liable by reason of the applicability

of article ten of the labor law.

9. not apply to any person held liable for causing claimant's injury

by having unlawfully released into the environment a substance hazardous

to public health, safety or the environment, a substance acutely

hazardous to public health, safety or the environment or a hazardous

waste, as defined in articles thirty-seven and twenty-seven of the

environmental conservation law and in violation of article seventy-one

of such law; provided, however, that nothing herein shall require that

the violation of said article by such person has resulted in a criminal

conviction or administrative adjudication of liability.

10. not apply to any person held liable in a product liability action

where the manufacturer of the product is not a party to the action and

the claimant establishes by a preponderance of the evidence that

jurisdiction over the manufacturer could not with due diligence be

obtained and that if the manufacturer were a party to the action,

liability for claimant's injury would have been imposed upon said

manufacturer by reason of the doctrine of strict liability, to the

extent of the equitable share of such manufacturer.

11. not apply to any parties found to have acted knowingly or

intentionally, and in concert, to cause the acts or failures upon which

liability is based; provided, however, that nothing in this subdivision

shall be construed to create, impair, alter, limit, modify, enlarge,

abrogate, or restrict any theory of liability upon which said parties

may be held liable to the claimant.

12. in conjunction with the other provisions of this article not be

construed to create or enlarge actions for contribution or indemnity

barred because of the applicability of the workers' compensation law of

this state, any other state or the federal government, or section 18-201

of the general obligations law.

13. not apply to any person responsible for the disposal or presence

of hazardous or dangerous materials that is the result of the unlawful

manufacture of methamphetamine, when such person has been convicted of

section 220.73, 220.74, 220.75 or 220.76 of the penal law.

14. not apply to any party held liable for claims arising from the

failure to obey or enforce (a) an order of protection or a temporary

order of protection issued or modified pursuant to article four, five,

six, seven, eight or ten of the family court act, section 530.12 of the

criminal procedure law, section two hundred forty or two hundred

fifty-two of the domestic relations law, or (b) an order of protection

or temporary order of protection issued or modified by a court of

competent jurisdiction in another state, territorial or tribal

jurisdiction.

Burdens of proof. In any action or claim for damages for

personal injury a party asserting that the limitations on liability set

forth in this article do not apply shall allege and prove by a

preponderance of the evidence that one or more of the exemptions set

forth in subdivision one of section sixteen hundred one or section

sixteen hundred two applies. A party asserting limited liability

pursuant to this article shall have the burden of proving by a

preponderance of the evidence its equitable share of the total

liability.

Mistakes, omissions, defects and irregularities. At any stage

of an action, including the filing of a summons with notice, summons and

complaint or petition to commence an action, the court may permit a

mistake, omission, defect or irregularity, including the failure to

purchase or acquire an index number or other mistake in the filing

process, to be corrected, upon such terms as may be just, or, if a

substantial right of a party is not prejudiced, the mistake, omission,

defect or irregularity shall be disregarded, provided that any

applicable fees shall be paid.

Error in ruling of court. An error in a ruling of the court

shall be disregarded if a substantial right of a party is not

prejudiced.

Irregularity in judicial sale. At any time within one year

after a sale made pursuant to a judgment or order, but not thereafter,

the court, upon such terms as may be just, may set the sale aside for a

failure to comply with the requirements of the civil practice law and

rules as to the notice, time or manner of such sale, if a substantial

right of a party was prejudiced by the defect. This section does not

apply to judicial sales made pursuant to article 9 of the uniform

commercial code.

Extensions of time generally. Except where otherwise expressly

prescribed by law, the court may extend the time fixed by any statute,

rule or order for doing any act, upon such terms as may be just and upon

good cause shown, whether the application for extension is made before

or after the expiration of the time fixed.

Excusable delay or default. Upon an application satisfying the

requirements of subdivision (d) of section 3012 or subdivision (a) of

rule 5015, the court shall not, as a matter of law, be precluded from

exercising its discretion in the interests of justice to excuse delay or

default resulting from law office failure.

Rule 2101. Form of papers. (a) Quality, size and legibility. Each

paper served or filed shall be durable, white and, except for summonses,

subpoenas, notices of appearance, notes of issue, orders of protection,

temporary orders of protection and exhibits, shall be eleven by eight

and one-half inches in size. The writing shall be legible and in black

ink. Beneath each signature shall be printed the name signed. The

letters in the summons shall be in clear type of no less than

twelve-point in size. Each other printed or typed paper served or filed,

except an exhibit, shall be in clear type of no less than ten-point in

size.

(b) Language. Each paper served or filed shall be in the English

language which, where practicable, shall be of ordinary usage. Where an

affidavit or exhibit annexed to a paper served or filed is in a foreign

language, it shall be accompanied by an English translation and an

affidavit by the translator stating his qualifications and that the

translation is accurate.

(c) Caption. Each paper served or filed shall begin with a caption

setting forth the name of the court, the venue, the title of the action,

the nature of the paper and the index number of the action if one has

been assigned. In a summons, a complaint or a judgment the title shall

include the names of all parties, but in all other papers it shall be

sufficient to state the name of the first named party on each side with

an appropriate indication of any omissions.

(d) Indorsement by attorney. Each paper served or filed shall be

indorsed with the name, address and telephone number of the attorney for

the party serving or filing the paper, or if the party does not appear

by attorney, with the name, address and telephone number of the party.

(e) Copies. Except where otherwise specifically prescribed, copies,

rather than originals, of all papers, including orders, affidavits and

exhibits may be served or filed. Where it is required that the original

be served or filed and the original is lost or withheld, the court may

authorize a copy to be served or filed.

(f) Defects in form; waiver. A defect in the form of a paper, if a

substantial right of a party is not prejudiced, shall be disregarded by

the court, and leave to correct shall be freely given. The party on whom

a paper is served shall be deemed to have waived objection to any defect

in form unless, within fifteen days after the receipt thereof, the party

on whom the paper is served returns the paper to the party serving it

with a statement of particular objections.

(g) Service by electronic means. Each paper served or filed by

electronic means, as defined in subdivision (f) of rule twenty-one

hundred three, shall be capable of being reproduced by the receiver so

as to comply with the provisions of subdivisions (a) through (d) of this

rule.

Rule 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.

Rule 2103. Service of papers. (a) Who can serve. Except where

otherwise prescribed by law or order of court, papers may be served by

any person not a party of the age of eighteen years or over.

(b) Upon an attorney. Except where otherwise prescribed by law or

order of court, papers to be served upon a party in a pending action

shall be served upon the party's attorney. Where the same attorney

appears for two or more parties, only one copy need be served upon the

attorney. Such service upon an attorney shall be made:

1. by delivering the paper to the attorney personally; or

2. by mailing the paper to the attorney at the address designated by

that attorney for that purpose or, if none is designated, at the

attorney's last known address; service by mail shall be complete upon

mailing; where a period of time prescribed by law is measured from the

service of a paper and service is by mail, five days shall be added to

the prescribed period if the mailing is made within the state and six

days if the mailing is made from outside the state but within the

geographic boundaries of the United States; or

3. if the attorney's office is open, by leaving the paper with a

person in charge, or if no person is in charge, by leaving it in a

conspicuous place; or if the attorney's office is not open, by

depositing the paper, enclosed in a sealed wrapper directed to the

attorney, in the attorney's office letter drop or box; or

4. by leaving it at the attorney's residence within the state with a

person of suitable age and discretion. Service upon an attorney shall

not be made at the attorney's residence unless service at the attorney's

office cannot be made; or

5. by transmitting the paper to the attorney by facsimile

transmission, provided that a facsimile telephone number is designated

by the attorney for that purpose. Service by facsimile transmission

shall be complete upon the receipt by the sender of a signal from the

equipment of the attorney served indicating that the transmission was

received, and the mailing of a copy of the paper to that attorney. The

designation of a facsimile telephone number in the address block

subscribed on a paper served or filed in the course of an action or

proceeding shall constitute consent to service by facsimile transmission

in accordance with this subdivision. An attorney may change or rescind a

facsimile telephone number by serving a notice on the other parties; or

6. by dispatching the paper to the attorney by overnight delivery

service at the address designated by the attorney for that purpose or,

if none is designated, at the attorney's last known address. Service by

overnight delivery service shall be complete upon deposit of the paper

enclosed in a properly addressed wrapper into the custody of the

overnight delivery service for overnight delivery, prior to the latest

time designated by the overnight delivery service for overnight

delivery. Where a period of time prescribed by law is measured from the

service of a paper and service is by overnight delivery, one business

day shall be added to the prescribed period. "Overnight delivery

service" means any delivery service which regularly accepts items for

overnight delivery to any address in the state; or

7. by transmitting the paper to the attorney by electronic means where

and in the manner authorized by the chief administrator of the courts by

rule and, unless such rule shall otherwise provide, such transmission

shall be upon the party's written consent. The subject matter heading

for each paper sent by electronic means must indicate that the matter

being transmitted electronically is related to a court proceeding.

(c) Upon a party. If a party has not appeared by an attorney or the

party's attorney cannot be served, service shall be upon the party by a

method specified in paragraph one, two, four, five or six of subdivision

(b) of this rule.

(d) Filing. If a paper cannot be served by any of the methods

specified in subdivisions (b) and (c), service may be made by filing the

paper as if it were a paper required to be filed.

(e) Parties to be served. Each paper served on any party shall be

served on every other party who has appeared, except as otherwise may be

provided by court order or as provided in section 3012 or in subdivision

(f) of section 3215. Upon demand by a party, the plaintiff shall supply

that party with a list of those who have appeared and the names and

addresses of their attorneys.

(f) Definitions. For the purposes of this rule:

1. "Mailing" means the deposit of a paper enclosed in a first class

postpaid wrapper, addressed to the address designated by a person for

that purpose or, if none is designated, at that person's last known

address, in a post office or official depository under the exclusive

care and custody of the United States Postal Service within the United

States;

2. "Electronic means" means any method of transmission of information

between computers or other machines designed for the purpose of sending

and receiving such transmissions, and which allows the recipient to

reproduce the information transmitted in a tangible medium of

expression;

3. "Facsimile transmission" means any method of transmission of

documents to a facsimile machine at a remote location which can

automatically produce a tangible copy of such documents.

Rule 2103-a. Confidentiality of addresses in civil proceedings. (a)

Notwithstanding any other provision of law, in any civil proceeding,

whether or not an order of protection or temporary order of protection

is sought or has been sought in the past, the court may, upon its own

motion or upon the motion of any party, authorize any party to keep his

or her residential and business addresses and telephone numbers

confidential from any party in any pleadings or other papers submitted

to the court, where the court makes specific findings on the record

supporting a conclusion that disclosure of such addresses or telephone

numbers would pose an unreasonable risk to the health or safety of a

party. Pending such a finding, any such addresses or telephone numbers

of the party seeking confidentiality shall be safeguarded and sealed in

order to prevent its inadvertent or unauthorized use or disclosure.

(b) Notwithstanding any other provision of law, if a party has resided

or resides in a residential program for victims of domestic violence as

defined in section four hundred fifty-nine-a of the social services law,

the present address of such party and the address of the residential

program for victims of domestic violence shall not be revealed by the

court or any court personnel who may have access to such information.

(c) Upon such authorization, the court shall designate the clerk of

the court or such other disinterested person as it deems appropriate,

with consent of such disinterested person, as the agent for service of

process for the party whose residential and business addresses or

telephone numbers are to remain confidential and shall notify the

parties of such designation and the address of the agent in writing. The

clerk or disinterested person designated by the court shall, when served

with process on behalf of the party whose information is to remain

confidential, promptly notify such party whose information is to remain

confidential and forward such process to him or her in a manner

calculated to be timely received.

(d) In any case in which such confidentiality authorization is made,

the party whose information is to remain confidential shall inform the

clerk of the court or disinterested person designated by the court of

any change in address for purposes of receipt of service of process or

any papers.

Rule 2104. Stipulations. An agreement between parties or their

attorneys relating to any matter in an action, other than one made

between counsel in open court, is not binding upon a party unless it is

in a writing subscribed by him or his attorney or reduced to the form of

an order and entered. With respect to stipulations of settlement and

notwithstanding the form of the stipulation of settlement, the terms of

such stipulation shall be filed by the defendant with the county clerk.

Certification by attorney. Where a certified copy of a paper

is required by law, an attorney admitted to practice in the courts of

the state may certify that it has been compared by him with the original

and found to be a true and complete copy. Such a certificate, when

subscribed by such attorney, has the same effect as if made by a clerk.

Rule 2106. Affirmation of truth of statement. (a) The statement of any

person wherever made, subscribed and affirmed by that person to be true

under the penalties of perjury, other than in a deposition, or an oath

of office, or an oath required to be taken before a specified person

other than a notary, may be used in an action in New York in lieu of and

with the same force and effect as an affidavit, a certificate, a

response to a notice to admit, an answer to interrogatories, a

verification of a pleading, a bill of particulars and any other sworn

statement. Such affirmation shall be in substantially the following

form:

I affirm this ___ day of ______, ____, under the penalties of perjury

under the laws of New York, which may include a fine or imprisonment,

that the foregoing is true, except as to matters alleged on information

and belief and as to those matters I believe it to be true, and I

understand that this document may be filed in an action or proceeding in

a court of law.

(Signature)

(b) Nothing in this rule shall be construed to eliminate any

requirement under the domestic relations law that matrimonial agreements

must be acknowledged in the form of deed.

Definitions. For purposes of this section, "facsimile

transmission" and "electronic means" shall be as defined in subdivision

(f) of rule 2103 of this chapter.

Filing of papers in the trial courts by facsimile transmission

and by electronic means. (a) Notwithstanding any other provision of

law, the chief administrator of the courts, with the approval of the

administrative board of the courts, may promulgate rules authorizing a

program in the use of facsimile transmission only in the court of claims

and electronic means in the courts of New York having civil jurisdiction

for: (i) the commencement of civil actions and proceedings, and (ii) the

filing and service of papers in pending actions and proceedings.

Provided, however, the chief administrator shall consult with the county

clerk of a county outside the city of New York before the use of

electronic means is to be authorized hereunder in the supreme court or

the county court of such county, afford him or her the opportunity to

submit comments with respect thereto, consider any such comments and

obtain the agreement thereto of such county clerk.

(b) 1. Participation in this program may be required or may be

voluntary as provided by the chief administrator, except that it shall

be strictly voluntary as to any party to an action or proceeding who is

not represented by counsel.

2. (A) Where participation in this program is to be voluntary:

(i) commencement of an action or proceeding by facsimile transmission

or electronic means shall not require the consent of any other party;

nor shall a party's failure to consent to participation in an action or

proceeding bar any other party to the action or proceeding from filing

and serving papers by facsimile transmission or electronic means upon

the court or any other party to such action or proceeding who has

consented to participation;

(ii) all parties shall be notified clearly, in plain language, about

their options to participate in filing by electronic means;

(iii) no party to an action or proceeding shall be compelled, directly

or indirectly, to participate;

(iv) where a party is not represented by counsel, the court shall

explain such party's options for electronic filing in plain language,

including the option for expedited processing, and shall inquire whether

he or she wishes to participate, provided however the unrepresented

litigant may participate in the program only upon his or her request,

which shall be documented in the case file, after said party has been

presented with sufficient information in plain language concerning the

program.

(B) Where participation in this program is to be required:

(i) such requirement shall not be effective in a court in a county

unless, in addition to consulting with the county clerk of such county

and obtaining his or her agreement thereto if the court is a supreme

court or county court, the chief administrator shall:

(1) first consult with members of the organized bar including but not

limited to city, state, county, and women's bar associations and, where

they practice in such court in such county, with (a) institutional

service providers, (b) not-for-profit legal service providers, (c)

attorneys assigned pursuant to article eighteen-B of the county law, (d)

unaffiliated attorneys who regularly appear in proceedings that are or

have been affected by a program of electronic filing in such county, and

(e) any other persons as deemed to be appropriate by the chief

administrator;

(2) afford all those with whom he or she consults pursuant to item one

of this clause the opportunity to submit comments with respect to the

program, which comments, including but not limited to comments related

to unrepresented litigants, he or she shall consider and shall post for

public review on the office of court administration's website; and

(ii) as provided in paragraph three of this subdivision, no party who

is not represented by counsel nor any counsel in an affected case who

opts out of participation in the program shall be required to

participate therein.

3. Where the chief administrator requires participation in electronic

filing as provided in paragraph one of this subdivision, he or she shall

afford counsel the opportunity to opt out of the program, via

presentation of a prescribed form to be filed with the clerk of the

court where the action is pending. Such form shall permit an attorney to

opt out of participation in the program under any of the following

circumstances, in which event, he or she will not be compelled to

participate:

(A) where the attorney certifies in good faith that he or she lacks

the computer hardware and/or connection to the internet and/or scanner

or other device by which documents may be converted to an electronic

format; or

(B) where the attorney certifies in good faith that he or she lacks

the requisite knowledge in the operation of such computers and/or

scanners necessary to participate. For the purposes of this

subparagraph, the knowledge of any employee of an attorney, or any

employee of the attorney's law firm, office or business who is subject

to such attorney's direction, shall be imputed to the attorney.

Notwithstanding any other provision of this subdivision, where a party

is not represented by counsel, the clerk shall explain such party's

options for electronic filing in plain language and shall inquire

whether he or she wishes to participate, provided however the

unrepresented litigant may participate in the program only upon his or

her request after said party has been presented with sufficient

information in plain language concerning the program; and a party not

represented by counsel who has chosen to participate in the program

shall be afforded the opportunity to opt out of the program for any

reason via presentation of a prescribed form to be filed with the clerk

of the court where the proceeding is pending; and a court may exempt any

attorney from being required to participate in the program upon

application for such exemption, showing good cause therefor.

(c) For purposes of this section, "the filing and service of papers in

pending actions and proceedings" shall include the filing and service of

a notice of appeal pursuant to section fifty-five hundred fifteen of

this chapter.

Filing of papers in the appellate division by electronic

means. Notwithstanding any other provision of law, and except as

otherwise provided in subdivision (c) of section twenty-one hundred

eleven of this article, the appellate division in each judicial

department may promulgate rules authorizing a program in the use of

electronic means for: (i) appeals to such court from the judgment or

order of a court of original instance or from that of another appellate

court, (ii) making a motion for permission to appeal to such court,

(iii) commencement of any other proceeding that may be brought in such

court, and (iv) the filing and service of papers in pending actions and

proceedings. Provided however, such rules shall not require an

unrepresented party or any attorney who furnishes a certificate

specified in subparagraph (A) or (B) of paragraph three of subdivision

(b) of section twenty-one hundred eleven of this article to take or

perfect an appeal by electronic means. Provided further, however,

before promulgating any such rules, the appellate division in each

judicial department shall consult with the chief administrator of the

courts and shall provide an opportunity for review and comment by all

those who are or would be affected including city, state, county and

women's bar associations; institutional legal service providers;

not-for-profit legal service providers; attorneys assigned pursuant to

article eighteen-B of the county law; unaffiliated attorneys who

regularly appear in proceedings that are or have been affected by the

programs that have been implemented or who may be affected by

promulgation of rules concerning the use of the electronic filing

program in the appellate division of any judicial department; and any

other persons in whose county a program has been implemented in any of

the courts therein as deemed to be appropriate by any appellate

division. To the extent practicable, rules promulgated by the appellate

division in each judicial department pursuant to this section shall be

uniform and may apply to any appellate term established by an appellate

division.

Stay. Except where otherwise prescribed by law, the court in

which an action is pending may grant a stay of proceedings in a proper

case, upon such terms as may be just.

Application for order; when motion made. A motion is an

application for an order. A motion on notice is made when a notice of

the motion or an order to show cause is served.

Where motion made, in supreme court action. (a) Motions on

notice. A motion on notice in an action in the supreme court shall be

noticed to be heard in the judicial district where the action is triable

or in a county adjoining the county where the action is triable. Unless

statute, civil practice rule or local court rule provides otherwise, the

motion shall be noticed to be heard before a motion term or, upon order

to show cause granted by a justice, before that justice out of court.

(b) Ex parte motions. A motion in an action in the supreme court that

may be made without notice may be made at a motion term or to a justice

out of court in any county in the state.

(c) Motions before a county court or judge. The chief administrator of

the courts may by rule provide for the hearing of motions on notice or

ex parte motions in an action or proceeding in the supreme court by a

term of the county court or a county judge in the county in which venue

is laid during periods in which no supreme court trial or special term

is in session in the county.

(d) Rules of the chief administrator of the courts. The chief

administrator may by rule exclude motions within a department, district

or county from the operation of subdivisions (a),(b) and (c) of this

section, provided, however, that the practice in counties within the

city of New York shall be uniform.

Where motion made, in county court action. (a) Ex parte

motions. A motion in an action in a county court that may be made

without notice may be made before a motion term of the county court or

before the county judge out of court in any county in the state.

(b) Motions that may be made before the supreme court or a justice

thereof. When no motion term is being held and there is no county judge

available within the county, any motion in an action in a county court,

whether or not on notice, may be made or noticed to be heard before a

motion term of the supreme court or, upon order to show cause granted by

a justice of the supreme court, before such justice out of court, in the

judicial district where the action is triable or in a county adjoining

the county where the action is triable, except a motion under article

forty-four or a motion for an order that would dispose of the action, in

whole or in part, in any manner other than by settlement under section

1207.

(c) The chief administrator of the courts may by rule exclude motions

from the operation of this section within a department, district or

county.

Rule 2214. Motion papers; service; time. (a) Notice of motion. A

notice of motion shall specify the time and place of the hearing on the

motion, the supporting papers upon which the motion is based, the relief

demanded and the grounds therefor. Relief in the alternative or of

several different types may be demanded.

(b) Time for service of notice and affidavits. A notice of motion and

supporting affidavits shall be served at least eight days before the

time at which the motion is noticed to be heard. Answering affidavits

shall be served at least two days before such time. Answering affidavits

and any notice of cross-motion, with supporting papers, if any, shall be

served at least seven days before such time if a notice of motion served

at least sixteen days before such time so demands; whereupon any reply

or responding affidavits shall be served at least one day before such

time.

(c) Furnishing papers to the court. Each party shall furnish to the

court all papers served by that party. The moving party shall furnish

all other papers not already in the possession of the court necessary to

the consideration of the questions involved. Except when the rules of

the court provide otherwise, in an e-filed action, a party that files

papers in connection with a motion need not include copies of papers

that were filed previously electronically with the court, but may make

reference to them, giving the docket numbers on the e-filing system.

Where such papers are in the possession of an adverse party, they shall

be produced by that party at the hearing on notice served with the

motion papers. Only papers served in accordance with the provisions of

this rule shall be read in support of, or in opposition to, the motion,

unless the court for good cause shall otherwise direct.

(d) Order to show cause. The court in a proper case may grant an order

to show cause, to be served in lieu of a notice of motion, at a time and

in a manner specified therein. An order to show cause against a state

body or officers must be served in addition to service upon the

defendant or respondent state body or officers upon the attorney general

by delivery to an assistant attorney general at an office of the

attorney general in the county in which venue of the action is

designated or if there is no office of the attorney general in such

county, at the office of the attorney general nearest such county.

Rule 2215. Relief demanded by other than moving party. At least three

days prior to the time at which the motion is noticed to be heard, or

seven days prior to such time if demand is properly made pursuant to

subdivision (b) of rule 2214, a party may serve upon the moving party a

notice of cross-motion demanding relief, with or without supporting

papers; provided, however, that:

(a) if such notice and any supporting papers are served by mailing, as

provided in paragraph two of subdivision (b) of rule 2103, they shall be

served three days earlier than as prescribed in this rule; and

(b) if served by overnight delivery, as provided in paragraph six of

subdivision (b) of rule 2103, they shall be served one day earlier than

as prescribed in this rule. Relief in the alternative or of several

different types may be demanded; relief need not be responsive to that

demanded by the moving party.

Rule 2217. Prior motion; ex parte motion; transfer of motion.

(a) Prior motion. Any motion may be referred to a judge who decided a

prior motion in the action.

(b) Affidavit on ex parte motion. An ex parte motion shall be

accompanied by an affidavit stating the result of any prior motion for

similar relief and specifying the new facts, if any, that were not

previously shown.

(c) Transfer of motion. If a motion is made to a judge who is or will

be for any reason unable to hear it, it may be transferred by order of

such judge or by written stipulation of the parties to any other judge

to whom it might originally have been made.

(d) Rules of the chief administrator of the courts. The chief

administrator may by rule exclude motions within a department, district

or county from the operation of subdivisions (a) and (c) of this rule.

Trial of issue raised on motion. The court may order that an

issue of fact raised on a motion shall be separately tried by the court

or a referee. If the issue is triable of right by jury, the court shall

give the parties an opportunity to demand a jury trial of such issue.

Failure to make such demand within the time limited by the court, or, if

no such time is limited, before trial begins, shall be deemed a waiver

of the right to trial by jury. An order under this rule shall specify

the issue to be tried.

Rule 2219. Time and form of order. (a) Time and form of order

determining motion, generally. An order determining a motion relating to

a provisional remedy shall be made within twenty days, and an order

determining any other motion shall be made within sixty days, after the

motion is submitted for decision. The order shall be in writing and

shall be the same in form whether made by a court or a judge out of

court. An order determining a motion made upon supporting papers shall

be signed with the judge's signature or initials by the judge who made

it, state the court of which he or she is a judge and the place and date

of the signature, recite the papers used on the motion, and give the

determination or direction in such detail as the judge deems proper.

Except in a town or village court or where otherwise provided by law,

upon the request of any party, an order or ruling made by a judge,

whether upon written or oral application or sua sponte, shall be reduced

to writing or otherwise recorded.

(b) Signature on appellate court order. An order of an appellate court

shall be signed by a judge thereof except that, upon written

authorization by the presiding judge, it may be signed by the clerk of

the court or, in his absence or disability, by a deputy clerk.

Rule 2220. Entry and filing of order; service. (a) Entry and filing.

An order determining a motion shall be entered and filed in the office

of the clerk of the court where the action is triable, and all papers

used on the motion and any opinion or memorandum in writing shall be

filed with that clerk unless the order dispenses with such filing. When

a statute or civil practice rule requires such filing and entry in a

county other than that in which the order was made, the party prevailing

on the motion shall file the order and the papers used on the motion

with the proper clerk after receiving them. If a party fails to file any

papers required to be filed under this subdivision, the order may be

vacated as irregular, with costs.

(b) Service. Service of an order shall be made by serving a copy of

the order.

Rule 2221. Motion affecting prior order. (a) A motion for leave to

renew or to reargue a prior motion, for leave to appeal from, or to

stay, vacate or modify, an order shall be made, on notice, to the judge

who signed the order, unless he or she is for any reason unable to hear

it, except that:

1. if the order was made upon a default such motion may be made, on

notice, to any judge of the court; and

2. if the order was made without notice such motion may be made,

without notice, to the judge who signed it, or, on notice, to any other

judge of the court.

(b) Rules of the chief administrator of the courts. The chief

administrator may by rule exclude motions within a department, district

or county from the operation of subdivision (a) of this rule.

(c) A motion made to other than a proper judge under this rule shall

be transferred to the proper judge.

(d) A motion for leave to reargue:

1. shall be identified specifically as such;

2. shall be based upon matters of fact or law allegedly overlooked or

misapprehended by the court in determining the prior motion, but shall

not include any matters of fact not offered on the prior motion; and

3. shall be made within thirty days after service of a copy of the

order determining the prior motion and written notice of its entry. This

rule shall not apply to motions to reargue a decision made by the

appellate division or the court of appeals.

(e) A motion for leave to renew:

1. shall be identified specifically as such;

2. shall be based upon new facts not offered on the prior motion that

would change the prior determination or shall demonstrate that there has

been a change in the law that would change the prior determination; and

3. shall contain reasonable justification for the failure to present

such facts on the prior motion.

(f) A combined motion for leave to reargue and leave to renew shall

identify separately and support separately each item of relief sought.

The court, in determining a combined motion for leave to reargue and

leave to renew, shall decide each part of the motion as if it were

separately made. If a motion for leave to reargue or leave to renew is

granted, the court may adhere to the determination on the original

motion or may alter that determination.

Rule 2222. Docketing order as judgment. At the request of any party

the clerk shall docket as a judgment an order directing the payment of

money, including motion costs, or affecting the title to, or the

possession, use or enjoyment of, real property, provided, however, that

where the clerk maintains a section and block index, an order affecting

the title to, or the possession, use or enjoyment of, real property may

be entered in such index in lieu thereof.

Rule 2223. Duties of officer receiving mandate. An officer to whom a

mandate is delivered to be executed shall:

1. execute the mandate according to its command;

2. give without compensation to the person delivering the mandate, if

requested, a written receipt describing the mandate and specifying the

day and hour of receiving it;

3. deliver without compensation to the person served, if requested, a

copy of the mandate; and

4. return the mandate together with his return thereon, by delivering

or mailing it to the clerk's office.

Scope of subpoena. A subpoena requires the attendance of a

person to give testimony. A subpoena duces tecum requires production of

books, papers and other things. A child support subpoena is a subpoena

issued pursuant to section one hundred eleven-p of the social services

law by the office of temporary and disability assistance or a local

social services district, or its authorized representative, or another

state's child support enforcement agency governed by title IV-D of the

social security act. A trial subpoena duces tecum shall state on its

face that all papers or other items delivered to the court pursuant to

such subpoena shall be accompanied by a copy of such subpoena.

Authority to issue. (a) Without court order. Subpoenas may be

issued without a court order by the clerk of the court, a judge where

there is no clerk, the attorney general, an attorney of record for a

party to an action, an administrative proceeding or an arbitration, an

arbitrator, a referee, or any member of a board, commission or committee

authorized by law to hear, try or determine a matter or to do any other

act, in an official capacity, in relation to which proof may be taken or

the attendance of a person as a witness may be required; provided,

however, that a subpoena to compel production of a patient's clinical

record maintained pursuant to the provisions of section 33.13 of the

mental hygiene law shall be accompanied by a court order. A child

support subpoena may be issued by the department, or the child support

enforcement unit coordinator or support collection unit supervisor of a

social services district, or his or her designee, or another state's

child support enforcement agency governed by title IV-D of the social

security act.

(b) Issuance by court. A subpoena to compel production of an original

record or document where a certified transcript or copy is admissible in

evidence, or to compel attendance of any person confined in a

penitentiary or jail, shall be issued by the court. Unless the court

orders otherwise, a motion for such subpoena shall be made on at least

one day's notice to the person having custody of the record, document or

person confined. A subpoena to produce a prisoner so confined shall be

issued by a judge to whom a petition for habeas corpus could be made

under subdivision (b) of section seven thousand two of this chapter or a

judge of the court of claims, if the matter is pending before the court

of claims, or a judge of the surrogate's court, if the matter is pending

before the surrogate's court, or a judge or support magistrate of the

family court, if the matter is pending before the family court, or a

judge of the New York city civil court, if the matter is pending before

the New York city civil court and it has been removed thereto from the

supreme court pursuant to subdivision (d) of section three hundred

twenty-five of this chapter. In the absence of an authorization by a

patient, a trial subpoena duces tecum for the patient's medical records

may only be issued by a court.

Service of subpoena; payment of fees in advance. (a) A

subpoena requiring attendance or a subpoena duces tecum shall be served

in the same manner as a summons, except that where service of such a

subpoena is made pursuant to subdivision two or four of section three

hundred eight of this chapter, the filing of proof of service shall not

be required and service shall be deemed complete upon the later of the

delivering or mailing of the subpoena, if made pursuant to subdivision

two of section three hundred eight of this chapter, or upon the later of

the affixing or mailing of the subpoena, if made pursuant to subdivision

four of section three hundred eight of this chapter. Any person

subpoenaed shall be paid or tendered in advance authorized traveling

expenses and one day's witness fee. A copy of any subpoena duces tecum

served in a pending civil judicial proceeding shall also be served, in

the manner set forth in rule twenty-one hundred three of this chapter,

on each party who has appeared in the civil judicial proceeding so that

it is received by such parties promptly after service on the witness and

before the production of books, papers or other things.

(b) A child support subpoena issued pursuant to section one hundred

eleven-p of the social services law to public utility companies and

corporations, including but not limited to cable television, gas,

electric, steam, and telephone companies and corporations, as defined in

section two of the public service law, may be served by regular mail, or

through an automated process where information sought is maintained in

an automated data base. All other child support subpoenas issued

pursuant to section one hundred eleven-p of the social services law

shall be served in accordance with the provisions of subdivision (a) of

this section.

Service of a trial subpoena. 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 subdivision (b) of rule 2103 to the party's attorney of record.

Motion to quash, fix conditions or modify. A motion to quash,

fix conditions or modify a subpoena shall be made promptly in the court

in which the subpoena is returnable. If the subpoena is not returnable

in a court, a request to withdraw or modify the subpoena shall first be

made to the person who issued it and a motion to quash, fix conditions

or modify may thereafter be made in the supreme court; except that such

motion with respect to a child support subpoena issued pursuant to

section one hundred eleven-p of the social services law shall be made to

a judge of the family court or the supreme court. Reasonable conditions

may be imposed upon the granting or denial of a motion to quash or

modify.

Attendance required pursuant to subpoena; possession of books,

records, documents or papers. (a) When person required to attend. A

subpoena may provide that the person subpoenaed shall appear on the date

stated and any recessed or adjourned date of the trial, hearing or

examination. If he is given reasonable notice of such recess or

adjournment, no further process shall be required to compel his

attendance on the adjourned date. At the end of each day's attendance,

the person subpoenaed may demand his fee for the next day on which he is

to attend. If the fee is not then paid, he shall be deemed discharged.

(b) Subpoena duces tecum; attendance by substitute. 1. A subpoena

duces tecum may be joined with a subpoena to testify at a trial, hearing

or examination or may be issued separately.

2. Any person may comply with a subpoena duces tecum for a trial,

hearing or examination by having the requisite books, documents or

things produced by a person able to identify them and testify respecting

their origin, purpose and custody.

(c) Inspection, examination and audit of records. Whenever by statute

any department or agency of government, or officer thereof, is

authorized to issue a subpoena requiring the production of books,

records, documents or papers, the issuing party shall have the right to

the possession of such material for a period of time, and on terms and

conditions, as may reasonably be required for the inspection,

examination or audit of the material. The reasonableness of such

possession, time, terms, and conditions shall be determined with

consideration for, among other things, (i) the good cause shown by the

issuing party, (ii) the rights and needs of the person subpoenaed, and

(iii) the feasibility and appropriateness of making copies of the

material. The cost of reproduction and transportation incident thereto

shall be borne by the person or party issuing the subpoena unless the

court determines otherwise in the interest of justice.

(d) Subpoena duces tecum for a trial; service of subpoena and delivery

for records. Where a trial subpoena directs service of the subpoenaed

documents to the attorney or self-represented party at the return

address set forth in the subpoena, a copy of the subpoena shall be

served upon all parties simultaneously and the party receiving such

subpoenaed records, in any format, shall deliver a complete copy of such

records in the same format to all opposing counsel and self-represented

parties where applicable, forthwith.

Hospital records; medical records of department or bureau of a

municipal corporation or of the state. (a) Transcript or reproduction.

Where a subpoena duces tecum is served upon a hospital, or upon a

department or bureau of a municipal corporation or of the state, or an

officer thereof, requiring the production of records relating to the

condition or treatment of a patient, a transcript or a full-sized

legible reproduction, certified as correct by the superintendent or head

of the hospital, department or bureau or his assistant, or the officer,

may be produced unless otherwise ordered by a court. Such a subpoena

shall be served at least three days before the time fixed for the

production of the records unless otherwise ordered by a court.

(b) Delivery to clerk. Where a court has designated a clerk to receive

records described in subdivision (a), delivery may be made to him at or

before the time fixed for their production. The clerk shall give a

receipt for the records and notify the person subpoenaed when they are

no longer required. The records shall be delivered in a sealed envelope

indicating the title of the action, the date fixed for production and

the name and address of the attorney appearing on the subpoena. They

shall be available for inspection pursuant to the rules or order of the

court.

Books, papers and other things of a library, department or

bureau of a municipal corporation or of the state. Issuance by court. A

subpoena duces tecum to be served upon a library, or a department or

bureau of a municipal corporation or of the state, or an officer

thereof, requiring the production of any books, papers or other things,

shall be issued by a justice of the supreme court in the district in

which the book, paper or other thing is located or by a judge of the

court in which an action for which it is required is triable. Unless the

court orders otherwise, a motion for such subpoena shall be made on at

least one day's notice to the library, department, bureau or officer

having custody of the book, document or other thing and the adverse

party. Such subpoena must be served upon such library, or such

department or bureau of such municipal corporation or of the state or an

officer having custody of the book, document or other thing and the

adverse party at least twenty-four hours before the time fixed for the

production of such records unless in the case of an emergency the court

shall by order dispense with such notice otherwise required. Compliance

with a subpoena duces tecum may be made by producing a full-sized

legible reproduction of the item or items required to be produced

certified as complete and accurate by the person in charge of such

library, department or bureau, or a designee of such person, and no

personal appearance to certify such item or items shall be required of

such person or designee, unless the court shall order otherwise pursuant

to subdivision (d) of rule 2214 of this chapter. Where a stipulation

would serve the same purpose as production of the book, document or

other thing and the subpoena is required because the parties will not

stipulate, the judge may impose terms on any party, including the cost

of production of the book or document, and require such cost to be paid

as an additional fee to the library, department or officer.

Disobedience of subpoena. (a) Judicial. Failure to comply with

a subpoena issued by a judge, clerk or officer of the court shall be

punishable as a contempt of court. If the witness is a party the court

may also strike his or her pleadings. A subpoenaed person shall also be

liable to the person on whose behalf the subpoena was issued for a

penalty not exceeding one hundred fifty dollars and damages sustained by

reason of the failure to comply. A court may issue a warrant directing a

sheriff to bring the witness into court. If a person so subpoenaed

attends or is brought into court, but refuses without reasonable cause

to be examined, or to answer a legal and pertinent question, or to

produce a book, paper or other thing which he or she was directed to

produce by the subpoena, or to subscribe his or her deposition after it

has been correctly reduced to writing, the court may forthwith issue a

warrant directed to the sheriff of the county where the person is,

committing him or her to jail, there to remain until he or she submits

to do the act which he or she was so required to do or is discharged

according to law. Such a warrant of commitment shall specify

particularly the cause of the commitment and, if the witness is

committed for refusing to answer a question, the question shall be

inserted in the warrant.

(b) Non-judicial. (1) Unless otherwise provided, if a person fails to

comply with a subpoena which is not returnable in a court, the issuer or

the person on whose behalf the subpoena was issued may move in the

supreme court to compel compliance. If the court finds that the subpoena

was authorized, it shall order compliance and may impose costs not

exceeding fifty dollars. A subpoenaed person shall also be liable to the

person on whose behalf the subpoena was issued for a penalty not

exceeding fifty dollars and damages sustained by reason of the failure

to comply. A court may issue a warrant directing a sheriff to bring the

witness before the person or body requiring his appearance. If a person

so subpoenaed attends or is brought before such person or body, but

refuses without reasonable cause to be examined, or to answer a legal

and pertinent question, or to produce a book, paper or other thing which

he was directed to produce by the subpoena, or to subscribe his

deposition after it has been correctly reduced to writing, the court,

upon proof by affidavit, may issue a warrant directed to the sheriff of

the county where the person is, committing him to jail, there to remain

until he submits to do the act which he was so required to do or is

discharged according to law. Such a warrant of commitment shall specify

particularly the cause of the commitment and, if the witness is

committed for refusing to answer a question, the question shall be

inserted in the warrant.

(2) Notwithstanding the provisions of paragraph one of this

subdivision, if a person fails to comply with a subpoena issued pursuant

to section one hundred eleven-p of the social services law by the office

of temporary and disability assistance or a social services district, or

its authorized representative, or another state's child support

enforcement agency governed by title IV-D of the social security act,

such office or district is authorized to impose a penalty against the

subpoenaed person. The amount of the penalty shall be determined by the

commissioner of the office of temporary and disability assistance and

set forth in regulation, and shall not exceed fifty dollars. Payment of

the penalty shall not be required, however, if in response to

notification of the imposition of the penalty the subpoenaed person

complies immediately with the subpoena.

(c) Review of proceedings. Within ninety days after the offender shall

have been committed to jail he shall, if not then discharged by law, be

brought, by the sheriff, or other officer, as a matter of course

personally before the court issuing the warrant of commitment and a

review of the proceedings shall then be held to determine whether the

offender shall be discharged from commitment. At periodic intervals of

not more than ninety days following such review, the offender, if not

then discharged by law from such commitment, shall be brought, by the

sheriff, or other officer, personally before the court issuing the

warrant of commitment and further reviews of the proceedings shall then

be held to determine whether he shall be discharged from commitment. The

clerk of the court before which such review of the proceedings shall be

held, or the judge or justice of such court in case there be no clerk,

shall give reasonable notice in writing of the date, time and place of

each such review to each party or his attorney who shall have appeared

of record in the proceeding resulting in the issuance of the warrant of

commitment, at their last known address.

Oaths and affirmations. (a) Persons authorized to administer.

Unless otherwise provided, an oath or affirmation may be administered by

any person authorized to take acknowledgments of deeds by the real

property law. Any person authorized by the laws of this state to receive

evidence may administer an oath or affirmation for that purpose. An

oath to a juror or jurors may be administered by a clerk of court and

his deputies. This section shall not apply to an oath of office.

(b) Form. An oath or affirmation shall be administered in a form

calculated to awaken the conscience and impress the mind of the person

taking it in accordance with his religious or ethical beliefs.

(c) Oaths and affirmations taken without the state. An oath or

affirmation taken without the state shall be treated as if taken within

the state if it is accompanied by such certificate or certificates as

would be required to entitle a deed acknowledged without the state to be

recorded within the state if made in accordance with the provisions of

this section.

(d) Form of certificate of oath or affirmation administered by officer

of the armed forces of the United States. The certificate of an oath or

affirmation administered within or without the state or the United

States, by an officer of the armed forces of the United States

authorized by the real property law to take acknowledgment of deeds,

shall state:

1. the rank and serial number of the officer before whom the oath or

affirmation is taken and the command to which he is attached;

2. that the person taking the oath or affirmation was, at the time of

taking it, a person enlisted or commissioned in or serving in or with

the armed forces of the United States or the dependent of such a person,

or a person attached to or accompanying the armed forces of the United

States; and

3. the serial number of the person who takes, or whose dependent takes

the oath or affirmation, if such person is enlisted or commissioned in

the armed forces of the United States. The place where such oath or

affidavit is taken need not be disclosed.

Order when publication cannot be made. 1. Where because of

circumstances beyond the control of a party required to publish,

publication required by any statute, rule or court order cannot be made

or completed in the specified place or newspaper in the required manner,

the court may by order require such other publication as will not unduly

prejudice any other party.

2. Notwithstanding the provisions of paragraph 1, if publication

required by any statute, rule or court order has been commenced and

cannot be completed because of the suspension or termination of

publication by a newspaper, publication may be completed in any other

newspaper which complies with the statute, rule, or order without

further court order.

Computation of time for publication of notice. The period of

publication of a legal notice shall be computed by excluding the first

day of publication and including the day on which the act or event of

which notice is given is to take place or which completes the full

period of publication.

Undertaking; definition. Undertaking includes

1. Any obligation, whether or not the principal is a party thereto,

which contains a covenant by a surety to pay the required amount, as

specified therein, if any required condition, as specified therein or as

provided in subdivision (c) section 2502, is not fulfilled; and

2. any deposit, made subject to the required condition, of the

required amount in legal tender of the United States or in face value of

unregistered bonds of the United States or of the state.

Surety; form of affidavit; two or more undertakings;

condition; acknowledgment. (a) Surety; form of affidavit. Unless the

court orders otherwise, surety shall be:

1. an insurance company authorized to execute the undertaking within

the state, or

2. a natural person, except an attorney, who shall execute with the

undertaking his affidavit setting forth his full name and address and

that he is domiciled within the state and worth at least the amount

specified in the undertaking exclusive of liabilities and of property

exempt from application to the satisfaction of a judgment.

(b) Two or more undertakings. Where two or more undertakings are

authorized or required to be given, they may be contained in the same

instrument.

(c) Condition. Where no condition is specified in an undertaking in an

action or proceeding, the condition shall be that the principal shall

faithfully and fairly discharge the duties and fulfill the obligations

imposed by law, or court order. Where the condition specifies that the

undertaking is to be void upon payment of an amount or performance of an

act, the undertaking shall be construed in accordance with the

provisions of section 7-301 of the general obligations law.

(d) Acknowledgment. The undertaking shall be acknowledged in the form

required to entitle a deed to be recorded.

Undertaking of more than one thousand dollars; real property;

lien. (a) Creation of lien. Unless the court orders otherwise, an

undertaking in an amount of more than one thousand dollars, which is not

a deposit of legal tender of the United States or in face value of

unregistered bonds of the United States or of the state, upon which

natural persons are surety shall be secured by real property located in

the state which shall be worth the amount specified in the undertaking

exclusive of all encumbrances. Such undertaking shall create a lien on

the real property when recorded in the individual surety bond liens

docket in the office of the clerk or register of the county where the

real property is located.

(b) Affidavit of surety. The affidavit of the surety shall contain, in

addition to the information required by subdivision (a) of section 2502:

1. a statement that the surety or sureties is or are the sole owner or

owners of the real property offered as security;

2. a description of the property, sufficiently identified to establish

the lien of the undertaking;

3. a statement of the total amount of the liens, unpaid taxes, and

other encumbrances against each property offered; and

4. a statement of the assessed value of each property offered, its

market value, and the value of the equity over and above all

encumbrances, liens and unpaid taxes.

(c) Filing of affidavit; recording. A duplicate original of the

affidavit required by this rule shall be filed in the office of the

clerk or register of the county where the real property is located. The

following information shall be entered on the individual surety bond

liens docket in the office of the clerk or register of the county where

the real property is located:

1. the names of the sureties listed in alphabetical order;

2. the amount of the undertaking;

3. a description of the real property or properties offered as

security thereunder, sufficiently identified to clearly establish the

lien of the undertaking;

4. the date of such recording;

5. the title of the action, proceeding or estate; and

6. the court in which the papers are filed.

(d) Release of lien. The clerk or register of the county where the

property is located shall make an entry, which shall constitute a

release of the lien for all purposes and as to all persons, upon

1. the filing of a consent acknowledged by the person for whose

benefit the undertaking was given in the form required to entitle a deed

to be recorded; or

2. the order of the court, discharging the surety, made upon motion

with such notice to other persons as the court may direct.

Waiver of undertaking; removal and change of parties. (a)

Waiver of undertaking. Unless the court orders otherwise, an undertaking

may be waived by the written consent of all parties.

(b) Removal and change of parties. The liability on an undertaking

shall remain in effect in favor of the party for whose benefit it was

given, notwithstanding a removal of the action or a change of parties.

Filing of undertaking; service upon adverse party; time when

effective. An undertaking together with any affidavit required by this

article shall be filed with the clerk of the court in which the action

is triable, or, upon an appeal, in the office where the judgment or

order of the court of original instance is entered, and a copy shall be

served upon the adverse party. The undertaking is effective when so

served and filed.

Exception to surety; allowance where no exception taken. (a)

Exception to surety. If a certificate of qualification issued pursuant

to subsections (b), (c) and (d) of section one thousand one hundred

eleven of the insurance law is not filed with the undertaking, a party

may except to the sufficiency of a surety by a written notice of

exception served upon the adverse party within ten days after receipt of

a copy of the undertaking. Where the undertaking has been served upon a

party by the sheriff, the notice of exception shall be served on the

sheriff and on the adverse party. Exceptions deemed by the court to

have been taken unnecessarily, or for vexation or delay, may, upon

notice, be set aside, with costs.

(b) Allowance where no exception taken. Where no exception to sureties

is taken within ten days or where exceptions taken are set aside the

undertaking is allowed.

Justification of surety. (a) Motion to justify. Within ten

days after service of notice of exception, the surety excepted to or the

person upon whose behalf the undertaking was given shall move to

justify, upon notice to the adverse party and to the sheriff if he was

served with the undertaking. The surety shall be present upon the

hearing of such motion to be examined under oath. If the court find the

surety sufficient, it shall make an appropriate indorsement on the

undertaking. A certificate of qualification issued pursuant to

subsections (b), (c) and (d) of section one thousand one hundred eleven

of the insurance law shall be accepted in lieu of a justification.

(b) Failure to justify. If a motion to justify is not made within ten

days after the notice of exception is served, the undertaking shall then

be without effect, except as provided in this subdivision. Unless

otherwise provided by order of court, a surety on an undertaking

excepted to and not justified shall remain liable until a new

undertaking is given and allowed, but the original undertaking shall be

otherwise without effect.

Motion for new or additional undertaking. Upon motion of any

interested person, upon notice to the parties and surety, and to the

sheriff, where he was required to be served with the undertaking, the

court may order a new or additional undertaking, a justification or

rejustification of sureties, or new or additional sureties. Unless

otherwise provided by order of court, a surety, on the original

undertaking shall remain liable until such order is complied with, but

the original undertaking shall be otherwise without effect.

Control of assets by agreement with surety. Any person of whom

an undertaking is required may agree with his surety for the deposit of

any assets for which his surety may be held responsible with a bank, or

safe deposit or trust company, authorized to do business in the state,

if such deposit is otherwise proper and in such manner as to prevent

withdrawal without the written consent of the surety or an order of

court, made on notice to the surety. The agreement shall not affect the

liability of the principal or surety as established by the terms of the

undertaking.

Discharge of surety on the undertaking of a fiduciary. (a)

Motion; new undertaking; accounting. Surety on the undertaking of any

fiduciary may move with notice to the person upon whose behalf the

undertaking was given, to be discharged from liability for any act or

omission of such fiduciary subsequent to the order of the court or the

time when a new undertaking satisfactory to the court is filed. The

court may restrain such fiduciary from acting pending the order

discharging such surety from liability. Upon the hearing, the court

shall order the fiduciary to give a new undertaking and to account,

within such time as the court orders but not exceeding twenty days, for

all his acts. If a new undertaking is filed the fiduciary shall account

for his acts up to and including the date of such filing. Where the

fiduciary does not comply with the order to account, the surety may make

and file such account with the same effect as though filed by the

fiduciary, and may utilize any disclosure device in obtaining

information necessary for such an accounting. The court shall make such

provisions with respect to commissions, allowances, disbursements and

costs as it deems just.

(b) Settlement of account. When such account has been filed, the

court, upon sufficient notice, shall order all persons interested in the

proceedings to attend a settlement of the account at a time and place

specified, and such settlement shall be made and the rights and

liabilities of all parties to the proceeding shall be determined and

enforced. After settlement of the account, the court shall make an order

relieving the surety from any act or omission of the fiduciary

subsequent to the date of such order or the time when a new undertaking

satisfactory to the court was filed, whichever is earlier. Upon written

demand by the fiduciary, the surety shall return any compensation paid

for the unexpired portion of such suretyship.

Liability of surety. Where two or more persons are surety on

an undertaking in an action or proceeding, they shall be jointly and

severally liable. The amount recoverable from a surety shall be

determined in accordance with the provisions of section 7-301 of the

general obligations law.

Undertaking by the state, municipal corporation or public

officer. 1. Any provision of law authorizing or requiring an undertaking

to be given by a party shall be construed as excluding the state, a

domestic municipal corporation or a public officer in behalf of the

state or of such a corporation. Such parties shall, however, be liable

for damages as provided in such provision of law in an amount not

exceeding an amount which shall be fixed by the court whenever it would

require an undertaking of a private party.

2. Where an appeal is taken by any such party, only the court to which

the appeal is taken may fix the amount which shall limit the liability

for damages pursuant to this section.

Action on undertaking to a public officer, board or municipal

corporation. A person for whose benefit an undertaking has been given to

a public officer, board or municipal corporation of the state may move,

on notice to persons interested in the disposition of the proceeds, for

leave to bring an action in his own name for breach of a condition.

Payment of money or securities into court. (a) Discharge of

party paying money into court. A party paying money into court pursuant

to the direction of the court is discharged thereby from all further

liability to the extent of the money so paid in.

(b) Delivery of money and securities to county treasurer; commissioner

of finance of city of New York. All moneys and securities paid into

court shall be delivered either by the party making the payment into

court or when an officer other than the county treasurer first receives

them, by that officer, to the county treasurer of the county where the

action is triable or to such other county treasurer as the court

specially directs. Where money or securities are received by an officer

other than the county treasurer, he shall deliver them to the county

treasurer within two days after he receives them. The commissioner of

finance of the city of New York shall be considered the treasurer of

each of the counties included within the city.

(c) Title to funds paid into court. Title for the benefit of

interested parties is vested in the county treasurer to whom any

security is transferred pursuant to this article. Any security

purchased by the county treasurer as an investment of money paid into

court shall be purchased in the name of his office. He may bring an

action upon or in relation to a security in his official or

representative character.

(d) Subsequent control of money or securities paid into court. A court

may direct that money or securities in the custody of a county treasurer

pursuant to this section be transferred or invested as it deems proper.

Payment into court of property other than money or securities;

deposit with warehouse or safe deposit company. Property paid into

court, other than money or securities, shall not be delivered to the

county treasurer. The court may direct that such property be deposited

in a warehouse or safe deposit company upon the filing of a bond for the

cost of such storage by the party paying the property into court or the

party who requested such disposition, as the court may provide. It may

make such other or subsequent disposition as it deems proper.

Cost of administration of property paid into court. A party

entitled to the income of any property paid into court shall be charged

with the expense of administering such property and of receiving and

paying over the income thereof.

Calculation of gross sum in lieu of income. A gross sum

payable to a party in lieu of the income of a sum of money paid into

court for his benefit shall be calculated according to article four of

the real property actions and proceedings law.

Rule 2605. Duties of depositories. When property paid into court is

deposited with any depository, the entry of such deposit in the books of

the depository shall contain a short reference to the title of the cause

or matter in relation to which the deposit is made and shall specify the

time from which any interest or accumulation on the deposit, if any, is

to commence. On or before the first day of February in each year, such

depository shall transmit to the appellate division of the supreme court

in the department in which the depository is situated a statement

describing the property in its custody, including interest or

accumulation, if any, to the credit of each cause or matter on the last

preceding first day of January.

Rule 2606. Obtaining order for payment out of court. Unless otherwise

directed by the judgment or order under which the property was paid into

court, an order for the payment of property out of court shall be made

only:

1. on motion with notice to all parties who have appeared or filed a

notice of claim to such property; or

2. by special proceeding. In either case the petition shall be

accompanied by a copy of the judgment, order or other paper under which

the property was paid into court, together with a certificate of the

county treasurer or other depository of the property, showing the

present condition and amount thereof, and stating separately, in the

case of money, the amount of principal and interest.

Rule 2607. Payment of property paid into court. No property paid into

court, or income from such property, shall be paid out except upon order

of the court directing payment to a specified person, except that if the

property so paid into court, or the income from such property, inclusive

of interest, does not exceed fifty dollars, a county treasurer may pay

the same, without a court order, to the person entitled thereto or his

authorized attorney. When the whole or remaining balance of all payments

of money into court in an action, or the whole or remaining balance of a

distributive share thereof, or any security or other property, is

directed to be paid out of court, the order must direct the payment of

all accrued income belonging to the party to whom such money or

distributive share or remaining balance thereof, or security or other

property is paid. A certified copy of the order directing payment shall

be delivered to the county treasurer or other custodian of the property.

The custodian, in the case of money, shall draw a draft payable to the

order of the party entitled thereto specifying the title of the cause or

matter on account of which the draft is made and the date of the order

authorizing the draft. A certified copy of the order, accompanied by a

draft in the case of money, shall be delivered to the depository of the

property before it shall pay out any property. If an order directs that

periodic payments be made, the filing of one copy of the order shall be

sufficient to authorize the payment of subsequent drafts in pursuance

thereof. Any other provision of law to the contrary notwithstanding, if

an order directing payment by the county treasurer is made by the court,

the copy of the order to be delivered to the county treasurer and the

depository as herein provided shall be certified by the clerk of the

court to be a true copy of the original of such order on file in his

office.

Liability of custodian. No liability shall attach to a

custodian of property paid into court because of a payment made by him

in good faith in accordance with the direction of an order of the court

or as provided in rule 2607.

Rule 2609. Deposit by referee appointed to sell property. Money

received by a referee appointed to sell property shall be deposited

forthwith by the referee, in his name as referee, in a bank or trust

company authorized to transact business in this state, or with the chief

fiscal officer or county treasurer of the county in which the action or

proceeding is pending, as the court shall designate. Such moneys when

paid to the chief fiscal officer of the county or county treasurer shall

not be withdrawn except as directed by the judgment or order under which

the deposit is made, or by an order under rule 2606.

When court may order disposition of property. The court, upon

motion or on its own initiative, with such notice as it deems proper,

may order personal property capable of delivery which is the subject of

the action, paid into court, or delivered to such person as it may

direct, with such security as the court shall direct, and subject to its

further direction if:

1. a party has such property in his possession, custody or control as

trustee for another party or where it belongs or is due to another

party; or

2. a party has such property in his possession, custody or control and

it belongs or is due to another party, where special circumstances make

it desirable that payment or delivery to such other party should be

withheld; or

3. the ownership of such property will depend on the outcome of a

pending action and no party is willing to accept possession or custody

of it during the pendency of the action.

Sale of property. On motion of any party, the court may order

the sale, in such manner and on such terms as it deems proper, of any

personal property capable of delivery which is the subject of the action

if it shall appear likely that its value will be substantially decreased

during the pendency of the action. Any party to the action may purchase

such property at a judicially-directed sale held pursuant to this

section without prejudice to his claim.

Enforcement of order directing disposition of property. Where

the court has directed disposition of personal property capable of

delivery and the direction is disobeyed, the court by order, in addition

to punishing the disobedience as a contempt, may require the sheriff to

take and dispose of the property in accordance with its direction.

Declaratory judgment. The supreme court may render a

declaratory judgment having the effect of a final judgment as to the

rights and other legal relations of the parties to a justiciable

controversy whether or not further relief is or could be claimed. If the

court declines to render such a judgment it shall state its grounds. A

party who has brought a claim for personal injury or wrongful death

against another party may maintain a declaratory judgment action

directly against the insurer of such other party, as provided in

paragraph six of subsection (a) of section three thousand four hundred

twenty of the insurance law.

Actions and relief not barred for inconsistency. (a) Action

against several persons. Where causes of action exist against several

persons, the commencement or maintenance of an action against one, or

the recovery against one of a judgment which is unsatisfied, shall not

be deemed an election of remedies which bars an action against the

others.

(b) Action against agent and undisclosed principal. Where causes of

action exist against an agent and his undisclosed principal, the

commencement or maintenance, after disclosure of the principal, of an

action against either, or the recovery of a judgment against either

which is unsatisfied, shall not be deemed an election of remedies which

bars an action against the other.

(c) Action for conversion and on contract. Where causes of action

exist against several persons for the conversion of property and upon

express or implied contract, the commencement or maintenance of an

action against one, or the recovery against one of a judgment which is

unsatisfied, either for the conversion or upon the contract, shall not

be deemed an election of remedies which bars an action against the

others either for the conversion or upon the contract.

(d) Action on contract and to reform. A judgment denying recovery in

an action upon an agreement in writing shall not be deemed to bar an

action to reform such agreement and to enforce it as reformed.

(e) Claim for damages and rescission. A claim for damages sustained as

a result of fraud or misrepresentation in the inducement of a contract

or other transaction, shall not be deemed inconsistent with a claim for

rescission or based upon rescission. In an action for rescission or

based upon rescission the aggrieved party shall be allowed to obtain

complete relief in one action, including rescission, restitution of the

benefits, if any, conferred by him as a result of the transaction, and

damages to which he is entitled because of such fraud or

misrepresentation; but such complete relief shall not include

duplication of items of recovery.

(f) Vendee's lien not to depend upon form of action. When relief is

sought, in an action or by way of defense or counterclaim, by a vendee

under an agreement for the sale or exchange of real property, because of

the rescission, failure, invalidity or disaffirmance of such agreement,

a vendee's lien upon the property shall not be denied merely because the

claim is for rescission, or is based upon the rescission, failure,

invalidity or disaffirmance of such agreement.

Action for periodic payments due under pension or retirement

contract no bar to action for future installments. The commencement or

maintenance of an action for the recovery of payments which have become

due under the terms of a written agreement providing for the payment of

a pension or retirement compensation or deferred compensation for a

period of years or for life, whether or not such agreement is part of an

employment contract, shall not be deemed to bar subsequent actions to

recover payments thereafter becoming due under the terms of such

agreement.

Where restoration of benefits before judgment unnecessary. A

party who has received benefits by reason of a transaction that is void

or voidable because of fraud, misrepresentation, mistake, duress,

infancy or incompetency, and who, in an action or by way of defense or

counterclaim, seeks rescission, restitution, a declaration or judgment

that such transaction is void, or other relief, whether formerly

denominated legal or equitable, dependent upon a determination that such

transaction was void or voidable, shall not be denied relief because of

a failure to tender before judgment restoration of such benefits; but

the court may make a tender of restoration a condition of its judgment,

and may otherwise in its judgment so adjust the equities between the

parties that unjust enrichment is avoided.

Relief against mistake of law. When relief against a mistake

is sought in an action or by way of defense or counterclaim, relief

shall not be denied merely because the mistake is one of law rather than

one of fact.

Kinds of pleadings. There shall be a complaint and an answer.

An answer may include a counterclaim against a plaintiff and a

cross-claim against a defendant. A defendant's pleading against another

claimant is an interpleader complaint, or against any other person not

already a party is a third-party complaint. There shall be a reply to a

counterclaim denominated as such, an answer to an interpleader complaint

or third-party complaint, and an answer to a cross-claim that contains a

demand for an answer. If no demand is made, the cross-claim shall be

deemed denied or avoided. There shall be no other pleading unless the

court orders otherwise.

Service of pleadings and demand for complaint. (a) Service of

pleadings. The complaint may be served with the summons, except that in

an action arising out of a consumer credit transaction, the complaint

shall be served with the summons. A subsequent pleading asserting new or

additional claims for relief shall be served upon a party who has not

appeared in the manner provided for service of a summons. In any other

case, a pleading shall be served in the manner provided for service of

papers generally. Service of an answer or reply shall be made within

twenty days after service of the pleading to which it responds.

(b) Service of complaint where summons served without complaint. If

the complaint is not served with the summons, the defendant may serve a

written demand for the complaint within the time provided in subdivision

(a) of rule 320 for an appearance. Service of the complaint shall be

made within twenty days after service of the demand. Service of the

demand shall extend the time to appear until twenty days after service

of the complaint. If no demand is made, the complaint shall be served

within twenty days after service of the notice of appearance. The court

upon motion may dismiss the action if service of the complaint is not

made as provided in this subdivision. A demand or motion under this

subdivision does not of itself constitute an appearance in the action.

(c) Additional time to serve answer where summons and complaint not

personally delivered to person to be served within the state. If the

complaint is served with the summons and the service is made on the

defendant by delivering the summons and complaint to an official of the

state authorized to receive service in his behalf or if service of the

summons and complaint is made pursuant to section 303, paragraphs two,

three, four or five of section 308, or sections 313, 314 or 315, service

of an answer shall be made within thirty days after service is complete.

(d) Extension of time to appear or plead. Upon the application of a

party, the court may extend the time to appear or plead, or compel the

acceptance of a pleading untimely served, upon such terms as may be just

and upon a showing of reasonable excuse for delay or default.

Certificate of merit in medical, dental and podiatric

malpractice actions. (a) In any action for medical, dental or podiatric

malpractice, the complaint shall be accompanied by a certificate,

executed by the attorney for the plaintiff, declaring that: