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Buffalo Law Review
Volume 9 Number 3 Article 6
4-1-1960
Proposed Changes in New York Civil Procedure—A Synopsis
David C. Fielding
Buffalo Law Review
Henrik H. Hansen
Buffalo Law Review
Roger E. Pyle
Buffalo Law Review
Eugene W. Salisbury
Buffalo Law Review
Joseph F. Shramek
Buffalo Law Review
See next page for additional authors
Follow this and additional works at: https://digitalcommons.law.buffalo.edu/buffalolawreview
Recommended Citation
David C. Fielding, Henrik H. Hansen, Roger E. Pyle, Eugene W. Salisbury, Joseph F. Shramek & Alan H.
Vogt, Proposed Changes in New York Civil Procedure—A Synopsis, 9 Buff. L. Rev. 494 (1960).
Available at: https://digitalcommons.law.buffalo.edu/buffalolawreview/vol9/iss3/6
This Comment is brought to you for free and open access by the Law Journals at Digital Commons @ University at
Buffalo School of Law. It has been accepted for inclusion in Buffalo Law Review by an authorized editor of Digital
Commons @ University at Buffalo School of Law. For more information, please contact lawscholar@buffalo.edu.
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Proposed Changes in New York Civil Procedure—A Synopsis
Authors
David C. Fielding, Henrik H. Hansen, Roger E. Pyle, Eugene W. Salisbury, Joseph F. Shramek, and Alan H.
Vogt
This comment is available in Buffalo Law Review: https://digitalcommons.law.buffalo.edu/buffalolawreview/vol9/
iss3/6
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PROPOSED CHANGES IN NEW YORK CIVIL
PROCEDURE - A SYNOPSIS*
TABLE OF CONTENTS
General ....................................................................... 494
Jurisdiction and Appearances ................................................... 496
Service ........................................................................ 498
Form, Filing, and Service of Papers .............................................. 501
Statutes of Limitation .......................................................... 502
Venue ........................................................................ 506
Joinder of Claims, Consolidation, Severance and Removal ........................ 508
Parties ........................................................................ 508
Infants, Incompetents and Poor Persons ........................................ 510
Pleadings ...................................................................... 511
Disclosure ..................................................................... 513
M otions and Orders ............................................................ 517
Accelerated Judgment .......................................................... 519
Calendar Practice .............................................................. 519
Subpoenas, Oaths and Affirmations .............................................. 522
Trial .......................................................................... 523
Evidence ...................................................................... 525
Trial M otions ................................................................. 526
Judgm ents .................................................................... 527
Enforcement of Judgments .................................................... 529
Appeals ....................................................................... 541
Special Proceedings ............................................................. 545
Provisional Remedies .......................................................... 547
Attachment .................................................................... 549
Injunction .................................................................... 554
Receiver ...................................................................... 555
Notice of Pendency ............................................................ 556
Miscellaneous Types of Actions ................................................ 557
GENERAL**
F IVE bills drawn by the Advisory Committee on Practice and Procedure
were prefiled at the 1960 session of the New York Legislature. These
five bills constitute a comprehensive revision of the statutes and rules governing
civil procedure in New York State.1 If enacted as proposed, this revision will
*Note: This synopsis was prepared from the bills submitted to the New York State
Legislature in 1960. The bills to be submitted to the 1961 session contain a number of changes
not reflected in this synopsis. The following members of the Buffalo Law Review par-
ticipated in the preparation of this synopsis: David C. Fielding, Henrik H. Hansen, Roger E.
Pyle, Eugene W. Salisbury, Joseph F. Shramek and Alan H. Vogt.
**This synopsis was prepared from the original bills as submitted to the legislature.
It does not reflect any changes which may have been made in the proposal subsequent to
submission or in committee. Because the official legislative documents covering the Third
and Fourth Reports of the Advisory Committee on Practice and Procedure were not avail-
able at the time of the preparation of this article, advance printings of the documents by
Edward Thompson Company (McKinney's Session Law News of New York, 1959 Pamphlet
No. 5, Advance Copy, State of New York, Fourth Preliminary Report of the Advisory
Committee on Practice and Procedure, 1960) were utilized.
1. Sen. Int. No. 26 (1960). Proposed Civil Practice Law; Sen. Int. No. 27 (1960).
Proposed Rules of Civil Procedure; Sen. Int. No. 28 (1960). Amendments to Consolidated
Laws to conform with new procedure and to transfer certain sections from the Civil Prac-
tice Act; Sen. Int. No. 29 (1960). Amendments to the Unconsolidated Laws to conform
with new procedure; Sen. Int. No. 30 (1960). Transfer of one section of the Civil Practice
Act to the Unconsolidated Laws. Four preliminary reports with supporting studies were
494
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PROPOSED CHANGES
become effective September 1, 1963 and will be the first such all encompassing
change in New York civil procedure since 1848. The proposal modifies and
simplifies the overall structure of the law governing New York procedure. In
some instances it codifies existing case law and in others it makes substantial
changes from existing statutory and case law. It changes the wording of many
sections, eliminates others and combines still others. It transfers many sec-
tions to the consolidated and unconsolidated laws and proposes changes in
other sections of those laws to conform with the changes in procedure. 2
The proposed revisibn is premised upon a change in emphasis in the use
of statutes and rules to regulate civil procedure. Only those portions of the
procedural system which reflect basic policy determinations or effect sub-
stantive rights are included in the Civil Practice Law.3 All of the details are
contained in the proposed Rules of Civil Procedure. While this may not be a
change from the policy underlying the present Civil Practice Act and Rules
of Civil Practice, the proposal evidences a shift in the degree to which matters
of detail are governed by rule rather than statute.
Under the existing system rules are promulgated by the combined efforts
of the four departments of the Appellate Division, subject to a power in the
legislature to modify by statute.4 The proposal places the rule-making power
in the Judicial Conference subject to a similar power of legislative over-ride. 5
It is doubtful that delegation of the rule making function to the Judicial
Conference would be valid without a constitutional amendment. It is for this
reason that the bills contain a proposed amendment to Article VI of the New
York state Constitution0 as well as a change to the Judiciary Law to implement
such a delegation.
The integrated structure of the proposal brings together, under a reduced
number of major headings, provisions which are now scattered throughout the
Civil Practice Act. Both the Law and the Rules utilize a decimal system to
further subdivide the material contained in the principal Articles of the Law
and Titles of the Rules.
While the majority of the material contained in the proposed revision is
from existing New York statutes and rules either directly or in modified form,
the revisors utilize provisions governing procedure in other jurisdictions. In
so drawing on foreign provisions, the systems most frequently copied are the
prepared by the Advisory Committee on Practice and Procedure to explain and substantiate
the changes proposed. 1957 Legis. Doc. No. 6(b); 1958 Legis. Doc. No. 13; 1959 Legis.
Doc. No. 17; 1960 Legis. Doc. No. 20.
2. There are approximately 1730 sections in the Civil Practice Act and 250 Rules of
Civil Practice. Under the proposal there are approximately 150 sections to the Civil Practice
Law and 400 Rules of Civil Procedure and approximately 300 sections of the Civil Practice
Act are transferred to the Consolidated Laws.
3. For example provisions dealing with jurisdiction, venue, statutes of limitations,
evidence and appeals, inter alia, are included in the proposed law.
4. N.Y. Judiciary Law § 83.
S. N. Y. Judiciary Law Proposed §§ 232-a, 232-b.
6. Proposed amendment to N.Y. Const. art. VI, § 20. See 1959 Legis. Doc. No.. 17,
pp. 457-458.
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Federal Rules of Civil Procedure, the Illinois Annotated Statutes, and the
recently revised New Jersey Rules.
The proposal makes the new law and rules applicable to all actions and
special proceedings in the state, unless those actions or proceedings are
specifically exempted from their provisions by special court acts governing
them This provision is a change in that the Civil Practice Act is applicable
only to courts of record; 8 however, the change is of little actual significance
in that actions and special proceedings before courts not of record are in
almost all instances governed by special court acts which would exempt them
from the proposed provisions.
The following material is a synopsis of the effect of the proposal upon
the general areas of civil practice in New York. It is intended to indicate the
general structure of the proposed system and to point out the substantial
changes which will result if it is enacted. In addition to major changes of
substance in the proposal there are many changes in phraseology and instances
of consolidation of statutory sections. It is not the intent of this synopsis to
detail each such change. If the changes appear to be significant they are
discussed, if not, they have been mentioned generally or not at all.
JURISDICTION AND APPEARANCES
The stated objectives of the proposed revision regarding jurisdiction and
methods of service are: to benefit the New York litigant by a greater utilization
of the state's constitutional power over persons and things, to generally simplify
the manner of service, to require the use of the most desirable and effective
means of service and to that end eliminate service by publication except where
no other method is available, and to eliminate the special appearance thus
placing objections to the court's jurisdiction on a level with other preliminary
objections. 9
No attempt is made by the proposal to codify case law as to the circum-
stances under which New York courts have jurisdiction over the subject matter
of a dispute. Four sections of the proposed law deal with jurisdiction. The
first of these (Section 3.01) allows the exercise of jurisdiction over persons,
property or status as has been allowed under existing law, and neither Section
3.01 nor Section 3.02 is intended to supercede or limit present provisions for
acquisition of jurisdiction.10
Section 3.02 does, however, make a significant increase in the availability
of in personam jurisdiction. It provides a more expanded concept of what
acts by a non-domiciliary will give personal jurisdiction to a New York court.
7. Prop. N.Y. Civ. Prac. Law § 1.01; Prop. N.Y.R. Civ Proc. 20.01.
8. N.Y. Civ. Prac. Act § 1.
9. See 1958 Legis. Doc. No. 13, p. 37.
10. Personal jurisdiction over foreign corporations is thus still governed primarily
by case law when a cause of action arises out of acts not committed in the state. See Tauza
v. Susquebanna R.R. Co., 220 N.Y. 259, 115 N.E. 915 (1917).
496
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PROPOSED CHANGES
Under this section the court obtains personal jurisdiction over a person as to
a cause of action arising out of acts within the state if that person: 1. Trans-
acts any business within the state," 2. Commits a tortious act which results
in physical injury to person or property,' 2 or 3. Owns, uses, or possesses any
real property located within the state.' 3 In addition, present statutes such as
Section 59(a) of the Insurance Law'" and Section 52 of the Vehicle and Traffic
Law would remain in force under the proposal.
The substance of present Civil Practice Act Section 227-a is included in
Section 3.03 of the proposed law. Under this section a person not otherwise
subject to the state's jurisdiction submits to its jurisdiction by bringing an
action here. By its terms such a party is deemed to have appointed his
attorney (or the clerk of the court if no attorney) his agent to receive service
in any separate action commenced during the pendency of another action-
and in which he is defendant and another party to the pending action is
plaintiff.
The fourth subdivision of the proposed section dealing with jurisdiction
(3.04) consists of a statement that a civil action or special proceeding is
commenced by service of a summons or notice of petition.' 5 This provision
is derived from present Section 218 as regards civil actions and is new as
regards special proceedings.
As mentioned above, the proposal eliminates the special appearance as
a means of raising objections to jurisdiction over a person. Instead, such
objections must, under the proposed rules, be raised either by way of a motion
under proposed Rule 31.1 or in the answer. If they are not so raised, they
are waived.' 0 In addition, a new section is introduced which eliminates the
possibility of a limited appearance in actions based on in rem or quasi in rem
jurisdiction.' 7 Thus, a party cannot appear to defend as to a claim based on
in rem or quasi in rem jurisdiction without submitting himself to personal
jurisdiction as to claims beyond that of the in rem or quasi in rem jurisdiction.
The notice of appearance is retained only in marital actions because a
8
complaint is required to be served with the summons in all other actions.'
11. This provision is broader than Section 210 of the General Corporation Law (only
corporations licensed to do business in the state), and Section 229-b of the Civil Practice
Act (non-resident individuals doing business within the state).
12. The limitation to tortious acts causing physical injury to person, or property
apparently excludes actions for libel or slander.
13. Section 3.02 is derived from Section 17 of the Illinois Civil Practice Act.
14. This section is broader than Section 3.02 and is not limited to those causes of
action covered by 3.02. Under it, the collection of a premium in New York gives juris-
diction in an action on the contract itself as well as in regard to the premium.
15. Prop. N.Y.R. Civ. Proc. 26.14 provides another method of commencing an action,
i.e. an action without pleadings based on a signed statement by all parties.
16. Prop. N.Y.R. Civ. Proc. 28.01(b). This rule alters the present law as contained
in Civil Practice Act Sections 237 and 237-a.
17. Id. 28.01(c). This problem is not presently governed by statutory provisions.
See 1960 Legis. Doc. No. 20, p. A-314 for a discussion of the problem.
18. Id. 28.02. Based on N.Y. Civ. Prac. Act § 257. Proposed Rule 26.02 contains
the provision concerning service of a complaint with a summons.
497
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Provisions governing manner of appearance, and the change of death,
disability or removal of a party's attorney are substantially the same as existing
provisions and are consolidated in one rule. 19 The present requirement of
written authority for the appearance of an attorney in a real property action
is similarly continued. 20
SERVICE
The Proposed Civil Practice Law, Title 25, provides four methods for
service of a summons: personal service within the state,2 ' personal service
without the state22, service by mailm3 and service by publication. 24 With the
exception of service by mail, each of these methods of service is presently
available under the Civil Practice Act.26 Substituted service with leave of
court, presently a separate provision of the Civil Practice Act,2 6 has been
eliminated in the proposed rules inasmuch as the recommended provisions
for personal service allow the summons to be delivered to "a person of suitable
age and discretion at the place of business, dwelling house or usual place of
abode of the person to be served," 27 without leave of court. It is clear that
the proposed rules expand the law of service since they not only encompass
all the existing methods of service, including the equivalent of substituted
service, without leave of court, but also provide for service by mail, a method
of service not generally available under the -Civil Practice Act.
The proposed and existing rules deal only with the mechanics and methods
of service. However, inasmuch as service is the means of activating the power
of the courts, or as is sometimes said, service subjects a party to the jurisdiction
of the courts, the law of service is closely connected the law of jurisdiction.
Under the Civil Practice Act, the courts of New York have jurisdiction
over a party only to the extent that the party or his property is "present"
within the state. A party may be involuntarily subjected to in personam
jurisdiction only by personal service within the state or by substituted service
upon a resident of the state or by personal service without the state upon a
resident. Any other method ot service provides only in rem jurisdiction to
the extent that the party's property is actually within the state and subject
to the court's power. For this reason personal service without the state and
service by publication are specifically restricted in their availability to actions
28
in rem.
Under the Proposed Civil Practice Law, the jurisdiction of the courts of
19. Id. 28.03. Based on N.Y. Civ. Prac. Act §§ 234, 240 and N.Y.R. Civ. Prac. 56.
20. Id. 28.04. Based on N.Y.R Civ. Prac. 55.
21. Prop. N.Y.R. Civ. Proc. 25.02.
22. Id. 25.03.
23. Id. 25.04.
24. Id. 25.05.
25. Cf. N.Y. Civ. Prac. Act §§ 225, 227, 228, 229, 232-a, and 233.
26. Id. §§ 230 and 231.
27. Prop. N.Y.R. Civ. Proc. 25.02(b) (2).
28. N.Y. Civ. Prac. Act §§ 232, 232-a, and 233.
498
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PROPOSED CHANGES
New York would be the same as under the Civil Practice Act 2 9 plus additional
in personam jurisdiction over non residents who, in person or through an
agent, "transacts any business within the state; or commits a tortious act
within the state resulting in physical injury to person or property; or owns,
uses or possesses any real property situated within the state."30 Therefore,
the proposed expansion of jurisdiction requires a corresponding expansion of
the availability of service. The absence of such an expansion would make the
increased jurisdiction ineffectual.
To provide for this necessary expansion of the availability of service, the
proposed rules provide that personal service without the state and service by
publication shall be available in all cases where the courts have jurisdiction,
notwithstanding any other prerequisites contained in this section. Therefore,
it may be said that the proposed rules of service will allow personal service
within or without the state and service by publication in any action where
the party to be served will be subject to the court's jurisdiction 1
Service by mail, a method not available as a sole means of service under
the present Civil Practice Act, is limited by the proposal in its availability,
to actions in rem. The proposed rules contain certain other restrictions on the
availability of particular methods of service which tend to promote the use
of personal service. Personal service, within or without the state, is available
in any and all instances where the party to be served is subject to the state's
jurisdiction. Service by mail is available only when "service cannot, with due
3 2
diligence, be made personally within the state .... Service by publication
is even more restricted in that it may be used only when the party to be served
cannot, with due diligence, be served in any other manner.3 3 Normally this
will mean that service by publication is available only when the party's address
is unknown. Personal service is also encouraged by providing that any method
of service other than personal delivery upon the party may allow that party
to defend the action within five years after the entry of a default judgment or
within one year after a written notice of the judgment is personally delivered
to him upon a finding of the court that the party did not personally receive
notice of the summons in time to defend. 3 4
In light of the foregoing discussion of the general tenor of the proposed
rules of service, it is now advisable to examine the changes in the mechanics
of the various methods of service. Personal service, within or without the
state, is effected by delivery to the party or his duly authorized agent or to
29. Prop. N.Y. Civ. Prac. Law § 3.01.
30. Id. § 3.02
31. Note: Although it is correct to state that a particular method of service is avail-
able in all instances where the party is subject to the court's jurisdiction, it must be re-
membered that the court's jurisdiction may be only quasi in rem. In such instances service
must be preceded by an order of attachment and levy.
32. Prop. N.Y.R. Civ. Proc. 25.04.
33. Id. 25.05(a).
34. Prop. N.Y.R. Civ. Proc. 25.06.
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a person at the party's place of business or residence.3 5 Service by mail is
accomplished by the registered or certified mailing of the summons and com-
plaint and is deemed complete when the registered or certified mail is delivered
and the return receipt signed or when the return receipt is refused. 38
To serve by publication, a summons is required to be published together
with a brief statement of the objects of the action at least once in each of
four successive weeksY Such publication is to commence within twenty days
after the granting of the order and is deemed complete on the twenty-eighth day
after the first day of publication. 38 It will be noted that these proposed pro-
visions for service by publication shorten the number of publications from six
to four, require publication in only one newspaper instead of two and do away
with the present requirement of mailing a summons when possible. 3
Title 25 sets out at length the persons to be served where the party to
be joined is an infant, judicially declared incompetent or non-natural entity.
Service upon an infant is to be made upon a parent or guardian if they are
within the state, or upon a person having care and control of the infant or
the infant's employer. Any infant fourteen years or older must also be served. 40
Service upon an incompetent has been revised in the proposed provisions to
require special treatment only as to parties judicially declared incompetent;
in these instances service is to be made upon the committee and the in-
competenl 41 Service upon a partnership is completed by service upon any
of the partners.P A significant change is found in the provision for service
upon a corporation in that the proposed provisions make no distinction be-
tween foreign and domestic corporations. Service upon a corporation would
be made by serving an officer, director, managing or general agent or any other
agent authorized by appointment or law to receive such service.43 The proposed
rules also provide the various persons to be served where the party is a govern-
mental subdivision, court, board or commission."
When the proposed rules speak of a "summons" it means the summons
and all papers required to be served in the same manner, i.e. subpoenas and
supplemental summons. 45 Amendments of a summons and/or proof of service
may be granted at any time in the court's discretion and upon such terms as
it deems just.4 6 Except in matrimonial actions in all instance when service is
35. Id. 25.02(b) (2), 25.03.
36. Id. 25.04.
37. Id. 25.05(b).
38. Id. 25.05(c).
39. Cf. N.Y. Civ. Prac. Act §§ 232-b, 234; N.Y.R. Civ. Prac. 50.
40. Prop. N.Y.R. Civ. Proc. 25.02(c).
41. Id. 25.02(d); Cf. N.Y. Civ. Prac. Act § 226.
42. Id. 25.02(e).
43. Id. 25.02(f).
44. Id. 25.02(f) and (g).
45. Id. 25.02 (a).
46. Id. 25.02(b).
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PROPOSED CHANGES
made by any method other than service by publication, the summons must be
47
accompanied by a compaint.
Proof of service shall be in the form of a certificate by a sheriff or other
authorized public officer or in the form of an affidavit of any other person
who makes the service setting forth the date, place, manner of service and
stating who was served. 8
FORM, FILING AND SERVICE OF PAPERS
Proposed Title 32 provides uniform rules covering the form, filing and
service of all papers served or filed in an action or special proceeding.
Captions are to be required on all papers served or filed. 49 Present practice
requires captions only on the complaint. 5°
Papers will need no longer be subscribed; indorsement only will be
uniformly required. 51 Under the proposed rule, if an affidavit or exhibit is in
a foreign language, it must be accompanied by an English translation and an
affidavit by 2the translator stating his qualifications and that the translation
5
is accurate.
Since the adverse party has the original and the translation, his oppor-
tunity to object to the accuracy of the translation is adequate.
Except as otherwise required, original papers need not be served or filed,
for copies are allowed. 53 The time to object to any defect in form has been
extended from one day to two, as being a more reasonable period. 54
Except as otherwise provided, papers required to be filed must be filed
with the clerk of the court in an action, and with the clerk of the county in
a proceeding. 55
The age limitation and party prohibition with respect to serving a sum-
mons have been extended to the service of all papers, so that papers may be
served by any person eighteen years of age or older who is not a party. 5
57
Service of papers upon an attorney can be effected by serving him personally;
by mailing the papers to him at his last known mailing address from any post
office within the state; 5" if his office is open, by leaving it with the person in
charge or in a conspicuous place there; 59 if his office is not open, by depositing
it in his mail drop or box; 0° or by leaving it at his residence with a person
47. Id. 26.02.
48. Id. 25.02(c).
49. Prop. N.Y.R. Civ. Proc. 32.01 (c).
S0. N.Y. Civ. Prac. Act § 255-1.
51. Prop. N.Y.R. Civ. Proc. 32.01(d).
52. Id. 32.01(b).
53. Id. 32.01(e).
54. Id. 32.01(f).
55. Id. 32.02.
56. Id. 32.03 (a).
57. Id. 32.03(b) 1.
58. Id. 32.03(b)2.
59. Id. 32.03(b)3.
60. Ibid.
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of suitable age and discretion if service cannot be made at his office. 1' If a
party has no attorney, or his attorney cannot be served, the party may be
served in the same manner as an attorney, except that he may not be served
at his office. 62 As a last resort, service may be made by filing the paper as
if it were a paper required to be filed.P
STATUTES OF LIMITATION
Article 5 of the proposed Civil Practice Law concerns the time within
which various types of actions must be commenced. The principal change
which this article works on existing law is that the applicable periods are
generally shortened. The revisors did not attempt to revise the periods of
limitation which are now contained in laws, codes, and charters other than
the Civil Practice Act, but indicated their feeling that such a change should be
made."
The sections dealing with periods of limitation have been reorganized
by the proposal and the number of periods have been reduced."5 The table
on page 503 compares the proposed periods of limitation with those now existing.
The provisions relating to application, computation and tolling of the
statutes of limitation are substantially the same as those under existing law, 8
with the following exceptions: The provisions extending the periods in the
event of the plaintiff's disability have been shortened; 7 the deferment of the
application of the statutes because of an inability to obtain personal juris-
diction over a defendant in an in rem action (where such personal jurisdiction
is unnecessary) are eliminated; 8 the provisions dealing with statutes of limi-
tation in time of war are put in the statute on a permanent basis rather than
a temporary basis; 09 certain provisions dealing with title and possession of real
property now contained in the Civil Practice Act provisions on statutes of
limitation are removed to the Real Property Law.70
In addition to the above mentioned changes, new provisions are proposed
which would:
Allow interposition of a counterclaim otherwise barred if it arose from
the same transaction or occurrence as the plaintiff's claim and the interposition
61. Id. 32.03(b)4.
62. Id. 32.03(c).
63. Id. 32.03(d).
64. 1958 Legis. Doc. No. 13, p. 43.
65. Prop. N.Y. Civ. Prac. Law §§ 5.11-5.18. Cf. N.Y. Civ. Prac. Act §§ 31-34, 44-53,
1226, 1286.
66. Id. §§ 5.01-5.07. Cf. N.Y. Civ. Prac. Act §§ 12, 20, 21, 57.
67. Id. § 5.08. Cf: N.Y. Civ. Prac. Act §§ 43, 60. The extension is reduced from five
to three years if the period is less than three years and to the length of the disability if
the period is less than three years. The maximum period of extension is ten years except
in the instance of infancy.
68. Id. § 5.07(3).
69. Id. § 509. Cf. N.Y. Civ. Prac. Act §§ 13, 27, 28-a.
70. Civil Practice Act §§ 35-42 are transferred to proposed Real Property Law §§ 260-a
-260-i. Section 59 is transferred to proposed Personal Property Law Section 33(d).
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STATUTES OF LIMITATION
(For Particular Actions)
PROPOSED NEW
NEW YORK NEW YORK CML
CML PRACTICE ACT PRACTICE LAW
Cause of Action Period* Authority Period* Authority
Action by the state in relation to real property. 40 Sec.31 10 5.12a
Action in relation to real property claimed through letters patent or
grant from the state. 40 Sec.32 10 5.12a
Action to recover principal or interest upon bonds as defined in CPA
Sec. 47-b. 20 Sec.63 20 5.11
Action upon a money judgment rendered in a court of record or duly
docketed. 20 Sec.44 20 5.llb ;g
Action for dower. 20 Sec. 33 5 5.13(1) ~
Action for ejectment after annulment of letters patent. 20 Sec. 33 10 5.12b 0
Action for the recovery of real property. 15 Sec.34 10 5.J2a ~
(J'l
0 Action to redeem real property from a mortgage. 15 Sec. 46 10 5.12c 1::1
c,,
Action exclusively within equity jurisdiction. 10 Sec.53 5 5.13(1)
Action by the people founded upon the spoliation or other misappropria-
tion of public property. 10 Sec.1226 5 5.13(5)
£:is.:
~
Action not otherwise specially provided for. 10 Sec.53 5 5.13 (1)
Action upon a contract. 6 Sec.48(1) 5 5.13 (2) ~
VJ
Action upon a judgment rendered in a court not of record, if not
docketed. 6 Sec.48(7) 5 5.12d
Action for damages for personal injuries other than resulting from
negligence. 6 Sec. 48(3) 3 5.14(7)
Action upon a sealed instrument (except as provide in C.P .A. Sections
47-a and 47-b). 6 Sec.47 5 5.13(3)
Action upon bond and/or mortgage secured by real property. 6 Sec.47-a 5 5.13 (4)
Action to recover a chattel. 6 Sec. 48(4) 3 5.14(5)
Action to recover upon a liability created by a statute, except a penalty
or forfeiture. 6 Sec. 48(2) 3 5.14(2)
*In years.
INDEX NO.
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FILED: DUTCHESS COUNTY CLERK 01/16/2024 03:14 PM INDEX NO. 2022-51335 NYSCEF DOC. NO. 141 RECEIVED NYSCEF: 01/16/2024 Buffalo Law Review Volume 9 Number 3 Article 6 4-1-1960 Proposed Changes in New York Civil Procedure—A Synopsis David C. Fielding Buffalo Law Review Henrik H. Hansen Buffalo Law Review Roger E. Pyle Buffalo Law Review Eugene W. Salisbury Buffalo Law Review Joseph F. Shramek Buffalo Law Review See next page for additional authors Follow this and additional works at: https://digitalcommons.law.buffalo.edu/buffalolawreview Recommended Citation David C. Fielding, Henrik H. Hansen, Roger E. Pyle, Eugene W. Salisbury, Joseph F. Shramek & Alan H. Vogt, Proposed Changes in New York Civil Procedure—A Synopsis, 9 Buff. L. Rev. 494 (1960). Available at: https://digitalcommons.law.buffalo.edu/buffalolawreview/vol9/iss3/6 This Comment is brought to you for free and open access by the Law Journals at Digital Commons @ University at Buffalo School of Law. It has been accepted for inclusion in Buffalo Law Review by an authorized editor of Digital Commons @ University at Buffalo School of Law. For more information, please contact lawscholar@buffalo.edu. FILED: DUTCHESS COUNTY CLERK 01/16/2024 03:14 PM INDEX NO. 2022-51335 NYSCEF DOC. NO. 141 RECEIVED NYSCEF: 01/16/2024 Proposed Changes in New York Civil Procedure—A Synopsis Authors David C. Fielding, Henrik H. Hansen, Roger E. Pyle, Eugene W. Salisbury, Joseph F. Shramek, and Alan H. Vogt This comment is available in Buffalo Law Review: https://digitalcommons.law.buffalo.edu/buffalolawreview/vol9/ iss3/6 INDEX NO. FILED: DUTCHESS COUNTY CLERK 01/16/2024 2022-51335 03:14 PM NYSCEF DOC. NO. 141 RECEIVED NYSCEF: 01/16/2024 PROPOSED CHANGES IN NEW YORK CIVIL PROCEDURE - A SYNOPSIS* TABLE OF CONTENTS General ....................................................................... 494 Jurisdiction and Appearances ................................................... 496 Service ........................................................................ 498 Form, Filing, and Service of Papers .............................................. 501 Statutes of Limitation .......................................................... 502 Venue ........................................................................ 506 Joinder of Claims, Consolidation, Severance and Removal ........................ 508 Parties ........................................................................ 508 Infants, Incompetents and Poor Persons ........................................ 510 Pleadings ...................................................................... 511 Disclosure ..................................................................... 513 M otions and Orders ............................................................ 517 Accelerated Judgment .......................................................... 519 Calendar Practice .............................................................. 519 Subpoenas, Oaths and Affirmations .............................................. 522 Trial .......................................................................... 523 Evidence ...................................................................... 525 Trial M otions ................................................................. 526 Judgm ents .................................................................... 527 Enforcement of Judgments .................................................... 529 Appeals ....................................................................... 541 Special Proceedings ............................................................. 545 Provisional Remedies .......................................................... 547 Attachment .................................................................... 549 Injunction .................................................................... 554 Receiver ...................................................................... 555 Notice of Pendency ............................................................ 556 Miscellaneous Types of Actions ................................................ 557 GENERAL** F IVE bills drawn by the Advisory Committee on Practice and Procedure were prefiled at the 1960 session of the New York Legislature. These five bills constitute a comprehensive revision of the statutes and rules governing civil procedure in New York State.1 If enacted as proposed, this revision will *Note: This synopsis was prepared from the bills submitted to the New York State Legislature in 1960. The bills to be submitted to the 1961 session contain a number of changes not reflected in this synopsis. The following members of the Buffalo Law Review par- ticipated in the preparation of this synopsis: David C. Fielding, Henrik H. Hansen, Roger E. Pyle, Eugene W. Salisbury, Joseph F. Shramek and Alan H. Vogt. **This synopsis was prepared from the original bills as submitted to the legislature. It does not reflect any changes which may have been made in the proposal subsequent to submission or in committee. Because the official legislative documents covering the Third and Fourth Reports of the Advisory Committee on Practice and Procedure were not avail- able at the time of the preparation of this article, advance printings of the documents by Edward Thompson Company (McKinney's Session Law News of New York, 1959 Pamphlet No. 5, Advance Copy, State of New York, Fourth Preliminary Report of the Advisory Committee on Practice and Procedure, 1960) were utilized. 1. Sen. Int. No. 26 (1960). Proposed Civil Practice Law; Sen. Int. No. 27 (1960). Proposed Rules of Civil Procedure; Sen. Int. No. 28 (1960). Amendments to Consolidated Laws to conform with new procedure and to transfer certain sections from the Civil Prac- tice Act; Sen. Int. No. 29 (1960). Amendments to the Unconsolidated Laws to conform with new procedure; Sen. Int. No. 30 (1960). Transfer of one section of the Civil Practice Act to the Unconsolidated Laws. Four preliminary reports with supporting studies were 494 INDEX NO. FILED: DUTCHESS COUNTY CLERK 01/16/2024 2022-51335 03:14 PM NYSCEF DOC. NO. 141 RECEIVED NYSCEF: 01/16/2024 PROPOSED CHANGES become effective September 1, 1963 and will be the first such all encompassing change in New York civil procedure since 1848. The proposal modifies and simplifies the overall structure of the law governing New York procedure. In some instances it codifies existing case law and in others it makes substantial changes from existing statutory and case law. It changes the wording of many sections, eliminates others and combines still others. It transfers many sec- tions to the consolidated and unconsolidated laws and proposes changes in other sections of those laws to conform with the changes in procedure. 2 The proposed revisibn is premised upon a change in emphasis in the use of statutes and rules to regulate civil procedure. Only those portions of the procedural system which reflect basic policy determinations or effect sub- stantive rights are included in the Civil Practice Law.3 All of the details are contained in the proposed Rules of Civil Procedure. While this may not be a change from the policy underlying the present Civil Practice Act and Rules of Civil Practice, the proposal evidences a shift in the degree to which matters of detail are governed by rule rather than statute. Under the existing system rules are promulgated by the combined efforts of the four departments of the Appellate Division, subject to a power in the legislature to modify by statute.4 The proposal places the rule-making power in the Judicial Conference subject to a similar power of legislative over-ride. 5 It is doubtful that delegation of the rule making function to the Judicial Conference would be valid without a constitutional amendment. It is for this reason that the bills contain a proposed amendment to Article VI of the New York state Constitution0 as well as a change to the Judiciary Law to implement such a delegation. The integrated structure of the proposal brings together, under a reduced number of major headings, provisions which are now scattered throughout the Civil Practice Act. Both the Law and the Rules utilize a decimal system to further subdivide the material contained in the principal Articles of the Law and Titles of the Rules. While the majority of the material contained in the proposed revision is from existing New York statutes and rules either directly or in modified form, the revisors utilize provisions governing procedure in other jurisdictions. In so drawing on foreign provisions, the systems most frequently copied are the prepared by the Advisory Committee on Practice and Procedure to explain and substantiate the changes proposed. 1957 Legis. Doc. No. 6(b); 1958 Legis. Doc. No. 13; 1959 Legis. Doc. No. 17; 1960 Legis. Doc. No. 20. 2. There are approximately 1730 sections in the Civil Practice Act and 250 Rules of Civil Practice. Under the proposal there are approximately 150 sections to the Civil Practice Law and 400 Rules of Civil Procedure and approximately 300 sections of the Civil Practice Act are transferred to the Consolidated Laws. 3. For example provisions dealing with jurisdiction, venue, statutes of limitations, evidence and appeals, inter alia, are included in the proposed law. 4. N.Y. Judiciary Law § 83. S. N. Y. Judiciary Law Proposed §§ 232-a, 232-b. 6. Proposed amendment to N.Y. Const. art. VI, § 20. See 1959 Legis. Doc. No.. 17, pp. 457-458. INDEX NO. FILED: DUTCHESS COUNTY CLERK 01/16/2024 2022-51335 03:14 PM NYSCEF DOC. NO. 141 RECEIVED NYSCEF: 01/16/2024 BUFFALO LAW REVIEW Federal Rules of Civil Procedure, the Illinois Annotated Statutes, and the recently revised New Jersey Rules. The proposal makes the new law and rules applicable to all actions and special proceedings in the state, unless those actions or proceedings are specifically exempted from their provisions by special court acts governing them This provision is a change in that the Civil Practice Act is applicable only to courts of record; 8 however, the change is of little actual significance in that actions and special proceedings before courts not of record are in almost all instances governed by special court acts which would exempt them from the proposed provisions. The following material is a synopsis of the effect of the proposal upon the general areas of civil practice in New York. It is intended to indicate the general structure of the proposed system and to point out the substantial changes which will result if it is enacted. In addition to major changes of substance in the proposal there are many changes in phraseology and instances of consolidation of statutory sections. It is not the intent of this synopsis to detail each such change. If the changes appear to be significant they are discussed, if not, they have been mentioned generally or not at all. JURISDICTION AND APPEARANCES The stated objectives of the proposed revision regarding jurisdiction and methods of service are: to benefit the New York litigant by a greater utilization of the state's constitutional power over persons and things, to generally simplify the manner of service, to require the use of the most desirable and effective means of service and to that end eliminate service by publication except where no other method is available, and to eliminate the special appearance thus placing objections to the court's jurisdiction on a level with other preliminary objections. 9 No attempt is made by the proposal to codify case law as to the circum- stances under which New York courts have jurisdiction over the subject matter of a dispute. Four sections of the proposed law deal with jurisdiction. The first of these (Section 3.01) allows the exercise of jurisdiction over persons, property or status as has been allowed under existing law, and neither Section 3.01 nor Section 3.02 is intended to supercede or limit present provisions for acquisition of jurisdiction.10 Section 3.02 does, however, make a significant increase in the availability of in personam jurisdiction. It provides a more expanded concept of what acts by a non-domiciliary will give personal jurisdiction to a New York court. 7. Prop. N.Y. Civ. Prac. Law § 1.01; Prop. N.Y.R. Civ Proc. 20.01. 8. N.Y. Civ. Prac. Act § 1. 9. See 1958 Legis. Doc. No. 13, p. 37. 10. Personal jurisdiction over foreign corporations is thus still governed primarily by case law when a cause of action arises out of acts not committed in the state. See Tauza v. Susquebanna R.R. Co., 220 N.Y. 259, 115 N.E. 915 (1917). 496 INDEX NO. FILED: DUTCHESS COUNTY CLERK 01/16/2024 2022-51335 03:14 PM NYSCEF DOC. NO. 141 RECEIVED NYSCEF: 01/16/2024 PROPOSED CHANGES Under this section the court obtains personal jurisdiction over a person as to a cause of action arising out of acts within the state if that person: 1. Trans- acts any business within the state," 2. Commits a tortious act which results in physical injury to person or property,' 2 or 3. Owns, uses, or possesses any real property located within the state.' 3 In addition, present statutes such as Section 59(a) of the Insurance Law'" and Section 52 of the Vehicle and Traffic Law would remain in force under the proposal. The substance of present Civil Practice Act Section 227-a is included in Section 3.03 of the proposed law. Under this section a person not otherwise subject to the state's jurisdiction submits to its jurisdiction by bringing an action here. By its terms such a party is deemed to have appointed his attorney (or the clerk of the court if no attorney) his agent to receive service in any separate action commenced during the pendency of another action- and in which he is defendant and another party to the pending action is plaintiff. The fourth subdivision of the proposed section dealing with jurisdiction (3.04) consists of a statement that a civil action or special proceeding is commenced by service of a summons or notice of petition.' 5 This provision is derived from present Section 218 as regards civil actions and is new as regards special proceedings. As mentioned above, the proposal eliminates the special appearance as a means of raising objections to jurisdiction over a person. Instead, such objections must, under the proposed rules, be raised either by way of a motion under proposed Rule 31.1 or in the answer. If they are not so raised, they are waived.' 0 In addition, a new section is introduced which eliminates the possibility of a limited appearance in actions based on in rem or quasi in rem jurisdiction.' 7 Thus, a party cannot appear to defend as to a claim based on in rem or quasi in rem jurisdiction without submitting himself to personal jurisdiction as to claims beyond that of the in rem or quasi in rem jurisdiction. The notice of appearance is retained only in marital actions because a 8 complaint is required to be served with the summons in all other actions.' 11. This provision is broader than Section 210 of the General Corporation Law (only corporations licensed to do business in the state), and Section 229-b of the Civil Practice Act (non-resident individuals doing business within the state). 12. The limitation to tortious acts causing physical injury to person, or property apparently excludes actions for libel or slander. 13. Section 3.02 is derived from Section 17 of the Illinois Civil Practice Act. 14. This section is broader than Section 3.02 and is not limited to those causes of action covered by 3.02. Under it, the collection of a premium in New York gives juris- diction in an action on the contract itself as well as in regard to the premium. 15. Prop. N.Y.R. Civ. Proc. 26.14 provides another method of commencing an action, i.e. an action without pleadings based on a signed statement by all parties. 16. Prop. N.Y.R. Civ. Proc. 28.01(b). This rule alters the present law as contained in Civil Practice Act Sections 237 and 237-a. 17. Id. 28.01(c). This problem is not presently governed by statutory provisions. See 1960 Legis. Doc. No. 20, p. A-314 for a discussion of the problem. 18. Id. 28.02. Based on N.Y. Civ. Prac. Act § 257. Proposed Rule 26.02 contains the provision concerning service of a complaint with a summons. 497 INDEX NO. FILED: DUTCHESS COUNTY CLERK 01/16/2024 2022-51335 03:14 PM NYSCEF DOC. NO. 141 RECEIVED NYSCEF: 01/16/2024 BUFFALO LAW REVIEW Provisions governing manner of appearance, and the change of death, disability or removal of a party's attorney are substantially the same as existing provisions and are consolidated in one rule. 19 The present requirement of written authority for the appearance of an attorney in a real property action is similarly continued. 20 SERVICE The Proposed Civil Practice Law, Title 25, provides four methods for service of a summons: personal service within the state,2 ' personal service without the state22, service by mailm3 and service by publication. 24 With the exception of service by mail, each of these methods of service is presently available under the Civil Practice Act.26 Substituted service with leave of court, presently a separate provision of the Civil Practice Act,2 6 has been eliminated in the proposed rules inasmuch as the recommended provisions for personal service allow the summons to be delivered to "a person of suitable age and discretion at the place of business, dwelling house or usual place of abode of the person to be served," 27 without leave of court. It is clear that the proposed rules expand the law of service since they not only encompass all the existing methods of service, including the equivalent of substituted service, without leave of court, but also provide for service by mail, a method of service not generally available under the -Civil Practice Act. The proposed and existing rules deal only with the mechanics and methods of service. However, inasmuch as service is the means of activating the power of the courts, or as is sometimes said, service subjects a party to the jurisdiction of the courts, the law of service is closely connected the law of jurisdiction. Under the Civil Practice Act, the courts of New York have jurisdiction over a party only to the extent that the party or his property is "present" within the state. A party may be involuntarily subjected to in personam jurisdiction only by personal service within the state or by substituted service upon a resident of the state or by personal service without the state upon a resident. Any other method ot service provides only in rem jurisdiction to the extent that the party's property is actually within the state and subject to the court's power. For this reason personal service without the state and service by publication are specifically restricted in their availability to actions 28 in rem. Under the Proposed Civil Practice Law, the jurisdiction of the courts of 19. Id. 28.03. Based on N.Y. Civ. Prac. Act §§ 234, 240 and N.Y.R. Civ. Prac. 56. 20. Id. 28.04. Based on N.Y.R Civ. Prac. 55. 21. Prop. N.Y.R. Civ. Proc. 25.02. 22. Id. 25.03. 23. Id. 25.04. 24. Id. 25.05. 25. Cf. N.Y. Civ. Prac. Act §§ 225, 227, 228, 229, 232-a, and 233. 26. Id. §§ 230 and 231. 27. Prop. N.Y.R. Civ. Proc. 25.02(b) (2). 28. N.Y. Civ. Prac. Act §§ 232, 232-a, and 233. 498 INDEX NO. FILED: DUTCHESS COUNTY CLERK 01/16/2024 2022-51335 03:14 PM NYSCEF DOC. NO. 141 RECEIVED NYSCEF: 01/16/2024 PROPOSED CHANGES New York would be the same as under the Civil Practice Act 2 9 plus additional in personam jurisdiction over non residents who, in person or through an agent, "transacts any business within the state; or commits a tortious act within the state resulting in physical injury to person or property; or owns, uses or possesses any real property situated within the state."30 Therefore, the proposed expansion of jurisdiction requires a corresponding expansion of the availability of service. The absence of such an expansion would make the increased jurisdiction ineffectual. To provide for this necessary expansion of the availability of service, the proposed rules provide that personal service without the state and service by publication shall be available in all cases where the courts have jurisdiction, notwithstanding any other prerequisites contained in this section. Therefore, it may be said that the proposed rules of service will allow personal service within or without the state and service by publication in any action where the party to be served will be subject to the court's jurisdiction 1 Service by mail, a method not available as a sole means of service under the present Civil Practice Act, is limited by the proposal in its availability, to actions in rem. The proposed rules contain certain other restrictions on the availability of particular methods of service which tend to promote the use of personal service. Personal service, within or without the state, is available in any and all instances where the party to be served is subject to the state's jurisdiction. Service by mail is available only when "service cannot, with due 3 2 diligence, be made personally within the state .... Service by publication is even more restricted in that it may be used only when the party to be served cannot, with due diligence, be served in any other manner.3 3 Normally this will mean that service by publication is available only when the party's address is unknown. Personal service is also encouraged by providing that any method of service other than personal delivery upon the party may allow that party to defend the action within five years after the entry of a default judgment or within one year after a written notice of the judgment is personally delivered to him upon a finding of the court that the party did not personally receive notice of the summons in time to defend. 3 4 In light of the foregoing discussion of the general tenor of the proposed rules of service, it is now advisable to examine the changes in the mechanics of the various methods of service. Personal service, within or without the state, is effected by delivery to the party or his duly authorized agent or to 29. Prop. N.Y. Civ. Prac. Law § 3.01. 30. Id. § 3.02 31. Note: Although it is correct to state that a particular method of service is avail- able in all instances where the party is subject to the court's jurisdiction, it must be re- membered that the court's jurisdiction may be only quasi in rem. In such instances service must be preceded by an order of attachment and levy. 32. Prop. N.Y.R. Civ. Proc. 25.04. 33. Id. 25.05(a). 34. Prop. N.Y.R. Civ. Proc. 25.06. INDEX NO. FILED: DUTCHESS COUNTY CLERK 01/16/2024 2022-51335 03:14 PM NYSCEF DOC. NO. 141 RECEIVED NYSCEF: 01/16/2024 BUFFALO LAW REVIEW a person at the party's place of business or residence.3 5 Service by mail is accomplished by the registered or certified mailing of the summons and com- plaint and is deemed complete when the registered or certified mail is delivered and the return receipt signed or when the return receipt is refused. 38 To serve by publication, a summons is required to be published together with a brief statement of the objects of the action at least once in each of four successive weeksY Such publication is to commence within twenty days after the granting of the order and is deemed complete on the twenty-eighth day after the first day of publication. 38 It will be noted that these proposed pro- visions for service by publication shorten the number of publications from six to four, require publication in only one newspaper instead of two and do away with the present requirement of mailing a summons when possible. 3 Title 25 sets out at length the persons to be served where the party to be joined is an infant, judicially declared incompetent or non-natural entity. Service upon an infant is to be made upon a parent or guardian if they are within the state, or upon a person having care and control of the infant or the infant's employer. Any infant fourteen years or older must also be served. 40 Service upon an incompetent has been revised in the proposed provisions to require special treatment only as to parties judicially declared incompetent; in these instances service is to be made upon the committee and the in- competenl 41 Service upon a partnership is completed by service upon any of the partners.P A significant change is found in the provision for service upon a corporation in that the proposed provisions make no distinction be- tween foreign and domestic corporations. Service upon a corporation would be made by serving an officer, director, managing or general agent or any other agent authorized by appointment or law to receive such service.43 The proposed rules also provide the various persons to be served where the party is a govern- mental subdivision, court, board or commission." When the proposed rules speak of a "summons" it means the summons and all papers required to be served in the same manner, i.e. subpoenas and supplemental summons. 45 Amendments of a summons and/or proof of service may be granted at any time in the court's discretion and upon such terms as it deems just.4 6 Except in matrimonial actions in all instance when service is 35. Id. 25.02(b) (2), 25.03. 36. Id. 25.04. 37. Id. 25.05(b). 38. Id. 25.05(c). 39. Cf. N.Y. Civ. Prac. Act §§ 232-b, 234; N.Y.R. Civ. Prac. 50. 40. Prop. N.Y.R. Civ. Proc. 25.02(c). 41. Id. 25.02(d); Cf. N.Y. Civ. Prac. Act § 226. 42. Id. 25.02(e). 43. Id. 25.02(f). 44. Id. 25.02(f) and (g). 45. Id. 25.02 (a). 46. Id. 25.02(b). INDEX NO. FILED: DUTCHESS COUNTY CLERK 01/16/2024 2022-51335 03:14 PM NYSCEF DOC. NO. 141 RECEIVED NYSCEF: 01/16/2024 PROPOSED CHANGES made by any method other than service by publication, the summons must be 47 accompanied by a compaint. Proof of service shall be in the form of a certificate by a sheriff or other authorized public officer or in the form of an affidavit of any other person who makes the service setting forth the date, place, manner of service and stating who was served. 8 FORM, FILING AND SERVICE OF PAPERS Proposed Title 32 provides uniform rules covering the form, filing and service of all papers served or filed in an action or special proceeding. Captions are to be required on all papers served or filed. 49 Present practice requires captions only on the complaint. 5° Papers will need no longer be subscribed; indorsement only will be uniformly required. 51 Under the proposed rule, if an affidavit or exhibit is in a foreign language, it must be accompanied by an English translation and an affidavit by 2the translator stating his qualifications and that the translation 5 is accurate. Since the adverse party has the original and the translation, his oppor- tunity to object to the accuracy of the translation is adequate. Except as otherwise required, original papers need not be served or filed, for copies are allowed. 53 The time to object to any defect in form has been extended from one day to two, as being a more reasonable period. 54 Except as otherwise provided, papers required to be filed must be filed with the clerk of the court in an action, and with the clerk of the county in a proceeding. 55 The age limitation and party prohibition with respect to serving a sum- mons have been extended to the service of all papers, so that papers may be served by any person eighteen years of age or older who is not a party. 5 57 Service of papers upon an attorney can be effected by serving him personally; by mailing the papers to him at his last known mailing address from any post office within the state; 5" if his office is open, by leaving it with the person in charge or in a conspicuous place there; 59 if his office is not open, by depositing it in his mail drop or box; 0° or by leaving it at his residence with a person 47. Id. 26.02. 48. Id. 25.02(c). 49. Prop. N.Y.R. Civ. Proc. 32.01 (c). S0. N.Y. Civ. Prac. Act § 255-1. 51. Prop. N.Y.R. Civ. Proc. 32.01(d). 52. Id. 32.01(b). 53. Id. 32.01(e). 54. Id. 32.01(f). 55. Id. 32.02. 56. Id. 32.03 (a). 57. Id. 32.03(b) 1. 58. Id. 32.03(b)2. 59. Id. 32.03(b)3. 60. Ibid. INDEX NO. FILED: DUTCHESS COUNTY CLERK 01/16/2024 2022-51335 03:14 PM NYSCEF DOC. NO. 141 RECEIVED NYSCEF: 01/16/2024 BUFFALO LAW REVIEW of suitable age and discretion if service cannot be made at his office. 1' If a party has no attorney, or his attorney cannot be served, the party may be served in the same manner as an attorney, except that he may not be served at his office. 62 As a last resort, service may be made by filing the paper as if it were a paper required to be filed.P STATUTES OF LIMITATION Article 5 of the proposed Civil Practice Law concerns the time within which various types of actions must be commenced. The principal change which this article works on existing law is that the applicable periods are generally shortened. The revisors did not attempt to revise the periods of limitation which are now contained in laws, codes, and charters other than the Civil Practice Act, but indicated their feeling that such a change should be made." The sections dealing with periods of limitation have been reorganized by the proposal and the number of periods have been reduced."5 The table on page 503 compares the proposed periods of limitation with those now existing. The provisions relating to application, computation and tolling of the statutes of limitation are substantially the same as those under existing law, 8 with the following exceptions: The provisions extending the periods in the event of the plaintiff's disability have been shortened; 7 the deferment of the application of the statutes because of an inability to obtain personal juris- diction over a defendant in an in rem action (where such personal jurisdiction is unnecessary) are eliminated; 8 the provisions dealing with statutes of limi- tation in time of war are put in the statute on a permanent basis rather than a temporary basis; 09 certain provisions dealing with title and possession of real property now contained in the Civil Practice Act provisions on statutes of limitation are removed to the Real Property Law.70 In addition to the above mentioned changes, new provisions are proposed which would: Allow interposition of a counterclaim otherwise barred if it arose from the same transaction or occurrence as the plaintiff's claim and the interposition 61. Id. 32.03(b)4. 62. Id. 32.03(c). 63. Id. 32.03(d). 64. 1958 Legis. Doc. No. 13, p. 43. 65. Prop. N.Y. Civ. Prac. Law §§ 5.11-5.18. Cf. N.Y. Civ. Prac. Act §§ 31-34, 44-53, 1226, 1286. 66. Id. §§ 5.01-5.07. Cf. N.Y. Civ. Prac. Act §§ 12, 20, 21, 57. 67. Id. § 5.08. Cf: N.Y. Civ. Prac. Act §§ 43, 60. The extension is reduced from five to three years if the period is less than three years and to the length of the disability if the period is less than three years. The maximum period of extension is ten years except in the instance of infancy. 68. Id. § 5.07(3). 69. Id. § 509. Cf. N.Y. Civ. Prac. Act §§ 13, 27, 28-a. 70. Civil Practice Act §§ 35-42 are transferred to proposed Real Property Law §§ 260-a -260-i. Section 59 is transferred to proposed Personal Property Law Section 33(d). FILED: DUTCHESS COUNTY CLERK 01/16/2024 03:14 PM INDEX NO. 2022-51335 NYSCEF DOC. NO. 141 RECEIVED NYSCEF: 01/16/2024 STATUTES OF LIMITATION (For Particular Actions) PROPOSED NEW NEW YORK NEW YORK CML CML PRACTICE ACT PRACTICE LAW Cause of Action Period* Authority Period* Authority Action by the state in relation to real property. 40 Sec.31 10 5.12a Action in relation to real property claimed through letters patent or grant from the state. 40 Sec.32 10 5.12a Action to recover principal or interest upon bonds as defined in CPA Sec. 47-b. 20 Sec.63 20 5.11 Action upon a money judgment rendered in a court of record or duly docketed. 20 Sec.44 20 5.llb ;g Action for dower. 20 Sec. 33 5 5.13(1) ~ Action for ejectment after annulment of letters patent. 20 Sec. 33 10 5.12b 0 Action for the recovery of real property. 15 Sec.34 10 5.J2a ~ (J'l 0 Action to redeem real property from a mortgage. 15 Sec. 46 10 5.12c 1::1 c,, Action exclusively within equity jurisdiction. 10 Sec.53 5 5.13(1) Action by the people founded upon the spoliation or other misappropria- tion of public property. 10 Sec.1226 5 5.13(5) £:is.: ~ Action not otherwise specially provided for. 10 Sec.53 5 5.13 (1) Action upon a contract. 6 Sec.48(1) 5 5.13 (2) ~ VJ Action upon a judgment rendered in a court not of record, if not docketed. 6 Sec.48(7) 5 5.12d Action for damages for personal injuries other than resulting from negligence. 6 Sec. 48(3) 3 5.14(7) Action upon a sealed instrument (except as provide in C.P .A. Sections 47-a and 47-b). 6 Sec.47 5 5.13(3) Action upon bond and/or mortgage secured by real property. 6 Sec.47-a 5 5.13 (4) Action to recover a chattel. 6 Sec. 48(4) 3 5.14(5) Action to recover upon a liability created by a statute, except a penalty or forfeiture. 6 Sec. 48(2) 3 5.14(2) *In years. INDEX NO. FILED: DUTCHESS COUNTY CLERK 01/16/2024 2022-51335 03:14 PM NYSCEF DOC. NO. 141 RECEIVED NYSCEF: 01/16/2024 BUFFALO LAW REVIEW OCd I~4~ a) a) ~- '0 ~4~ 4~~ -4-4 '4.'4. an an an .- ' .- ' an an cc 0;> 0 r. 4 in in in' cn m. m- 4 m. ma en 4- U.~ cc' '- '4* 00 0 ~o" U2 U2 En cc En McEc o in in m V) m m %D m m mm 4 0 0 0 0a) o a 0 a) 43 0 C) .0 90 0d 0 0 0 . .0 0 03 0. tD 0 0 J 0 (U 0 '14 a) 4.- ~0 .4 0g 0. 0 aZd 0d o4 cn .0 = . a oa CI .0. 4. 40 '0 0.0 INDEX NO. FILED: DUTCHESS COUNTY CLERK 01/16/2024 2022-51335 03:14 PM NYSCEF DOC. NO. 141 RECEIVED NYSCEF: 01/16/2024 PROPOSED CHANGES p. :('4q4- zi -1- .- 44'44 ! 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