R 2101.Form of papers

The Committee recommends an amendment to rule 2101(f) of the CPLR to increase the time for raising objections to defects in form. Currently, the time in which objection to a defect in form must be raised is only two days from receipt of the paper objected to. The Committee believes that two days is an unreasonably short period of time for counsel to review a paper served and raise objections to it where necessary. Instead, the Committee recommends that the period of time be amended from “two” to “fifteen” days. The effect of the change will be that the focus of any debate over the form of a paper will concern solely the proper form and the underlying facts, not the number of days allowed for objection. The Committee extends its gratitude to the Nassau County Bar Association Appellate Practice Committee for the opportunity to review this procedural practice issue, which it raised in the context of a notice of appeal.

Many members of both Bench and Bar have suggested that greater use be made of new technologies in the filing and service of legal papers in civil proceedings. If properly regulated, such technologies can expedite litigation and reduce its administrative costs to the parties.

This measure is offered in response to these suggestions. It would authorize conduct of two experiments in the filing and exchange of legal documents by means other than the traditional mailing or personal delivery of paper. One experiment would make use of telefax machines and another would make use of electronic mail (or any other available medium for the electronic transmission of documents). The telefax experiment would be conducted in no more than six counties (at least one in each of the four Judicial Departments), as selected by the Chief Administrative Judge with the approval of the Administrative Board of the Courts. The electronic transmission experiment would be conducted in one of New York City’s five counties and in no more than two counties outside the City, likewise selected by the Chief Administrative Judge with the approval of the Administrative Board of the Courts. Both experiments would extend through July 1, 2003, with the Chief Administrative Judge being required, at least three months in advance of that sunset, to report to the Governor, the Legislature and the Chief Judge of the Senate his evaluation of them. Both experiments would apply to the filing of a summons and complaint with a court to commence an action and, as well, to the exchange of legal papers between counsel for the parties in civil litigation.

1996 Recommendations of Family Court Advisory and Rules Committee:

The Family Court Advisory and Rules Committee seeks an amendment to the Civil Practice Law and Rules to provide needed flexibility in the size of paper permitted to be utilized in the uniform forms promulgated for the statewide automated registry of orders of protection and warrants.

One of the greatest challenges presented by the “Family Protection and Domestic Violence Intervention Act of 1994” [Laws of 1994, ch. 222, 224] is its requirement that the court system, the Division of State Police and other criminal justice agencies collaborate to create a statewide automated registry of orders of protection and related warrants. Executive Law § 221-a. The registry is designed to assure that the courts and law enforcement officials have available a system that will provide timely and accurate information relating to pending orders of protection and warrants, as well as critical historical information regarding prior orders pertaining to the family. In accordance with chapter 356 of the Laws of 1995, the registry became operational on October 1, 1995.

Implementation of the registry is a daunting task, in part because the system must include orders issued not only by judges of the Unified Court System, numbering over 1000, but also those issued by the approximately 2300 town and village justice courts. In 1995, the Legislature authorized the establishment of a central facility, operated by the Unified Court System, to perform data entry and inquiry functions for all of the courts, including the town and village justice courts. The central facility must enter detailed information, including various forms of identifying information regarding the parties, specified court action information, an indication of the date the offender was served, the date of expiration of the order and the terms and conditions of the order. Executive Law § 221-a. The sheer volume of paper required to be transmitted to the data entry center for the estimated 350,000 orders of protection issued annually is staggering.

A fully automated system is in the process of installation in the high-volume courts, which will eventually permit electronic generation and transmission of orders to the data entry center. However, pending that installation, these courts, and for the foreseeable future, all of the town and village courts, are required to transmit the orders to the center by facsimile or courier for entry onto the system. Copies of the orders must be filed with law enforcement and given to the parties as well.

Newly-revised uniform forms for orders of protection and temporary orders of protection in criminal, matrimonial and Family Court cases were promulgated by the Chief Administrative Judge on November 1, 1996. These forms include the extensive data required for the registry, as well as notices regarding the “full faith and credit” mandate of the federal “Violence Against Women Act.” See Public Law 103-322. All but the criminal form, which has been produced on 8 ½ by 14-inch paper, are two pages in length, because of the requirement in the Civil Practice Law and Rules that all documents, with specified exceptions, be produced by 8 ½ by 11-inch paper.

Use of multi-page forms has proven cumbersome, not only for the data entry and court staff, but also for law enforcement agencies and the parties who must receive copies of the orders. The Family Court Advisory and Rules Committee, with the support of the Civil Practice Advisory Committee, is, therefore, recommending legislation to exempt orders of protection and temporary orders of protection from the 8 ½ by 11-inch rule in subdivision (a) of rule 2101 of the Civil Practice Law and Rules.

1994 Recommendations of Advisory Committee on Civil Practice:

The Committee recommends that CPLR 2101(a) be amended to provide that a printed or typed summons shall be in clear type of no less than twelve-point size, and that each other printed or typed paper served or filed in an action, except an exhibit, shall be in clear type of no less than ten-point size.

The Committee has become aware that some smmonses and complaints and other pleadings served in actions contain language typed or printed in such small or obscure type as to be barely legible. Great harm is possible, especially where a summons is served on a person who is unable to read the small print or type. The provisions of CPLR 4544, precluding the admission into evidence of printed contracts or agreements involving consumer credit transactions or residential leases that are printed in small print, and the provisions of CPLR 8019(e), relating to the size of printed type on papers filed with the county clerk for recording and indexing, are instructive in setting type-size limits. However, neither resolves the problem of excessively small type used in legal papers served by one party on another, especially a summons commencing an action.

The Committee has examined carefully various sizes and styles of type and print, and concludes that the type used in printed or typed summonses should be at least twelve-point in size, and in other papers served in the action, at least ten-point in size.

No attempt is made to regulate the size of hand-written letters, which the courts may scrutinize for legibility, nor the size of print or type in exhibits, which, necessarily, may be of any size.

In addition, the Committee proposes the elimination from the subdivision of the archaic reference, now unnecessary, to the change in the size of most legal papers from 8- ½ by 14 inches (legal size) to 8- ½ by 11 inches (letter size), effected on September 1, 1974.

In order to provide the Bar with sufficient time to make any necessary preparation to implement this provision, it would not take effect until January 1, 1996.

Revision Notes:

[1973] This change is prompted by the unprecedented and increasing cost of preparing papers for appeal and review. The mandatory requirement will insure uniform size of papers throughout the entire course of a case, so that reproduction can be effected without stenographic recopying of papers. Certain papers, such as printed forms, and exhibits, will be excepted, as at present, because of the practical difficulties which would be encountered in mandating a change in their size.

The change is in response to a formal resolution of the Committee on State Administrative Law of the New York State Bar Association in respect to papers in Article 78 proceedings, as well as growing complaints of attorneys in all areas of the law. Furthermore, it is in keeping with a general trend throughout the United States.

[1974] Under this rule, effective September 1, 1974, most papers served or filed in actions or proceedings commenced thereafter, must be “letter” size (11 by 8 ½ inches). Information has recently been presented from many sources indicating that some courts and other governmental units have on hand substantial supplies of “legal” size forms. In order to permit the use of these supplies, and in the interests of conservation and economy this extension is recommended.

(See also Advisory Committee Notes preceding this section, under subheading “Form of papers.”) Subd (a) is derived from RCP 10. The term “writing” includes all means for the inscription of words on paper, such as handwriting, typewriting, or the various methods of mechanical duplicating or printing. The last sentence is derived from NJ R Civ P 4:5–9. “Printed” is used to denote all types of writing other than cursive handwriting.

The first sentence of this subd (b) is derived from RCP 10. In lieu of the specific material on names of process, technical words, abbreviations and numbers, a general requirement of ordinary English usage is made. Presumably, under former law, an affidavit or exhibit annexed to a paper need not itself be indorsed by the attorney, if the paper is so indorsed, despite the wording of rule 11 of the rules of civil practice. The similar requirement of subdivision (d), as well as that of a caption in subdivision (c), would apply only to the paper to which the affidavit or exhibit is annexed. This subdivision, however, requires the annexed affidavit or exhibit to be translated if it is in a foreign language. Although this requirement is new, it achieves the same result reached under the English language requirement of RCP 10. Hurwitz v Hurwitz, 214 App Div 823, 210 NY Supp 865 (2d Dep’t 1925); Friedman v Prescetti, 199 App Div 385, 192 NY Supp 55 (1st Dept 1922). The requirement that oral and written evidence submitted at a trial be in English is a well-established principle of the common law followed in this state. See 3 Wigmore, Evidence § 811 (3d ed 1940); 5 id. § 1393. In the event that a witness at a trial does not adequately understand and speak English, the questions to him and his answers must be translated by a sworn interpreter. The rules on evidence of some jurisdictions contain an express provision to this effect. See, e. g., Cal Code Civ Proc § 1884. The New York statutes provide for the appointment of permanent official interpreters to be attached to the courts and for the appointment of temporary interpreters where needed. NY Const art VI, § 15; NY County Law § 218; NY Judiciary Law §§ 106, 172, 199, 380–386; NYC Ct Act § 8; NYC Crim Cts Act §§ 87, 162; NYC Dom Rel Ct Act § 23; NYC Munic Ct Code § 7-a; NY Code Crim Proc § 55; NY Surr Ct Act § 24. In the case of papers served or filed, however, the only provision for translation was found in CPA § 359, which was added in 1944. This section is limited in application to oaths or affidavits taken without the state or by a person serving with the armed forces. It requires such oaths or affidavits, in order to be filed or used in a court, to be accompanied by an English translation made by a person designated by a Supreme Court justice, county judge or surrogate, and signed, acknowledged and certified by such person under oath before the judge to be a true and accurate translation. The actual practice in instances not covered by CPA § 359 is that the party filing or serving the paper provides his own translator. The English translation then accompanies the foreign language original together with an affidavit by the translator stating his qualifications and certifying the accuracy of the translation. Since the adverse party has access to the foreign language original, he has the opportunity to object to the accuracy of the translation. The court can decide any dispute and, if necessary, appoint a translator for this purpose. Such a procedure is much less cumbersome and time-consuming than the procedure provided for in CPA § 359 and at the same time includes adequate safeguards against an inaccurate translation.

Subd (c) requires captions on all papers served or filed as distinguished from the former law which provided for a caption on the complaint only. Civ Prac Act § 255(1). The specification by the plaintiff in a Supreme Court action of the county where trial is desired has been eliminated in favor of a simple statement of the venue. It is unnecessary to recite both, since they are identical. The requirement that a paper be labeled is a convenience to the parties and the court; with respect to pleadings, it is needed as a basis for such provisions as that of new CPLR § 3011 requiring a reply to a counterclaim “denominated as such.” The provision that the caption include a file number is the practice in most courts by local rule with respect to papers to be filed. It has been extended to papers to be served. The final sentence is a rewording of part of Federal rule 10(a) and merely ratifies the practice which has developed in New York, in the absence of any statute or rule, relating to captions in papers other than complaints. It becomes necessary as a result of the inclusion of the first sentence, requiring a caption on all papers.

Subd (d) is based upon rule 11 and part of rule 13 of the RCP. Indorsement is required rather than subscription. Under present law, the latter need not be a handwritten signature, but may be typed or printed (Smith v Kerr, 49 Hun 29, 1 NY Supp 454 (Sup Ct, Gen’l T 1888)) and its functions seem entirely fulfilled by the former. Former rule 16, authorizing special rules for the indorsement to be placed on papers and for filing in each department, has been omitted. Although trial courts have adopted local rules with respect to indorsements and filing of papers (see, e. g., Bronx Co. Sup Ct Rule XIV; Nassau Co. Sup Ct Rule 25; NY Co Sup Ct Rule VIII; Richmond Co Sup Ct Rule 11; Bronx Co. Surr Ct Rule I; Kings Co. Surr Ct Rule II; NY Co Surr Ct Rule I; Queens Co. Surr Ct Rule III; Richmond Co Surr Ct Rule III; Westchester Co Surr Ct Rule I; NY C Ct Rule XIX; NYC Munic Ct Rule II), most of the provisions of these local rules are similar to the new subdivision. There is no strong reason why indorsements on papers should not be uniform throughout the state. Filing systems, on the other hand, present some administrative problems that may differ with the volume of business and the facilities and staff available in each county. Although this is recognized, specific authorization for flat-filing does not appear to be necessary. The rule is designed to achieve a uniformity among courts, counties and departments in details of form of papers, thus correcting a constant annoyance and unnecessarily complicated office procedure for the lawyer who practices in more than one court.

The first sentence of subd (e) is derived from part of Rule 10 of the RCP; the second sentence is based upon Rule 14. No substantive change in the law is intended, but these sources appear inconsistent. The opening phrases of each sentence have therefore been added to clarify the provision. Copies, of course, must conform to the other requirements of this rule, so that the specific requirement of legibility for copies has been omitted. This subdivision makes it possible to eliminate references to copies in many provisions of the CPLR. See, for example, the many provisions of article 3, referring to service “of a summons.” The first sentence of this subd (b) represents the former law as to mistakes, irregularities and defects in general. NY CPA § 105. Since this rule is cast in mandatory language, the provision of the last sentence of Rule 10 of the RCP has been omitted. Thus, while the court should disregard a non-prejudicial defect, it would allow the defect to be corrected in order that it may be efficiently filed and dealt with. No change from former practice is intended in this respect. This subdivision places upon the party served the burden of objecting to defective papers which would result in prejudice. In such event, it would be incumbent upon the party making the error in form to serve a new or amended paper. This waiver provision is derived from RCP 12, which provides for objection within 24 hours—a period that appears unreasonably short and has been extended to two days. The waiver by a party does not affect the eligibility of a paper for filing or submission to court; it merely prohibits such party from asserting prejudice to himself. Thus, the final sentence of RCP 12 seems unnecessary and has been omitted.

Add, L 1962, ch 308, § 1, eff Sept 1, 1963; amd, L 1964, ch 388, § 6, eff Sept 1, 1964; L 1965, ch 773, § 6, eff Sept 1, 1965; L 1994, ch 100, § 2; L 1996, ch 131, § 1, eff June 11, 1996; L 1999, ch 367, § 2, eff July 27, 1999; L 2011, ch 473, § 2, eff Jan 1, 2012.