R 2222.Docketing order as judgment.

This provision is derived from RCP 74, with a number of alterations.

The first sentence of rule 74 in terms allows docketing of any order directing the payment of money, other than motion costs. The second sentence provides that an order affecting the title to real property, “if founded on petition, where no complaint is filed”—i.e., in a special proceeding—may be enrolled and docketed as a judgment and indexed with notices of pendency of action. Both sentences require a court direction for such docketing or indexing.

General Rule of Practice 27, from which rule 74 was derived, allowed the enrollment and docketing of orders and judgments directing the payment of money or affecting the title to property, but was limited in both respects to those “founded on petition, where no complaint is filed”; it also differed from the RCP rule in containing no provision for indexing with notices of pendency and requiring only a request of a party rather than a court order.

The new CPLR rule has been drafted to conform with the general plan of the new rules for enforcement of orders and judgments. Orders directing the payment of money, including motion costs, are enforceable in the same way as money judgments under new CPLR § 5101. Consequently, the rule provides that all such orders may be docketed as judgments. While it is unlikely that the docketing procedure will often be utilized or necessary to enforce payment of motion costs, it is best to have the procedure available to discourage recalcitrancy in this respect. The former final order in a special proceeding is termed a judgment in new CPLR rule 2411, and consequently any such determination directing the payment of money will be docketable and enforceable in the same manner as other judgments.

The alternative of indexing orders affecting title to real property with notices of pendency has been dropped. Docketing is a much more efficient method of apprising interested persons of a change in the title to real property than a notice of pendency. Such a notice only indicates that the title is subject to litigation and, under recently enacted § 121-a of the CPA, is only effective for three years unless extended upon motion. See 2 NY Jud Conference Rep 114–16 (1957). Yet, under former law, there was no provision for docketing a judgment affecting real property and a notice of pendency apparently must serve the notice function even after a judgment has determined the status of the property. The second sentence of RCP 74 probably originated because a notice of pendency was not available in a special proceeding, where no complaint is filed, unless specifically authorized.

The new rules instead allow the docketing of all judgments and orders affecting the title to real property. New CPLR § 5018(a) does this for judgments, which, because of new rule 411 also includes the former final order in a special proceeding, and the instant rule makes the same provision for orders.

The requirement of a court order for docketing under RCP rule 74 seems useless. The practice in New York county, for example, is to insert such a direction automatically in orders directing the payment of money. The new rule allows docketing at the option of the parties.

The former provision for enrollment—i.e., making and filing a judgment-roll—is unnecessary, since under new rule 2220(a) all papers used on the motion and any opinion or memorandum in writing must in any event be filed with the order.

Rule amended to include orders affecting the possession, use or enjoyment of real property, since persons whose possession, use or enjoyment of such property is affected should be entitled to the notice that docketing affords.

Add, L 1962, ch 308, § 1; amd, L 1970, ch 661, eff May 8, 1970.