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.
§ 2512.Undertaking by the state, municipal corporation or public officer
Article 25. Undertakings · Last amended 1976 · Last verified July 21, 2026
In one sentenceCPLR 2512 exempts the state, a municipal corporation, and a public officer acting on their behalf from posting an undertaking, substituting a court-fixed damages cap set at what a private party's undertaking would have been, with only the appellate court able to set that cap on appeal.
Full Text of CPLR 2512
Plain-English Summary
Government litigants get different treatment when a statute would otherwise require an undertaking. CPLR 2512(1) reads any law authorizing or requiring a party to post an undertaking as excluding the state, a domestic municipal corporation, or a public officer acting on the state's or the corporation's behalf. Instead of posting security, those parties remain liable for damages under whatever the underlying statute provides, capped at an amount the court fixes — set at whatever level would have applied to a private party's undertaking in the same situation.
Subdivision (2) narrows who gets to set that cap when the case is on appeal: only the court the appeal is taken to may fix the amount limiting the government party's damages liability under this section. That keeps the cap-setting authority with the court positioned to weigh the stakes of the pending appeal, instead of leaving it with the court below.
Frequently Asked Questions
Does the State of New York have to post a bond in litigation?
No. CPLR 2512(1) excludes the state, a domestic municipal corporation, and a public officer acting on their behalf from any statutory requirement to post an undertaking.
What replaces the undertaking requirement for a government party?
The government party remains liable for damages as the underlying statute provides, in an amount the court fixes at whatever level a private party's undertaking would have been.
Who sets the damages cap for a government party on appeal?
Only the court to which the appeal is taken may fix the amount limiting the government party's liability under CPLR 2512(2).
Does CPLR 2512 apply to a public officer sued in a personal capacity?
No. It applies to a public officer acting on behalf of the state or a municipal corporation, not to claims against an officer in an individual capacity unrelated to that official role.
Why does New York exempt government parties from posting undertakings?
The exemption reflects that the state and municipal corporations are treated as good for any damages liability a court fixes, without needing a third-party surety or deposit to guarantee payment.
Advisory Committee Notes
This section is derived from CPA §§ 162, 570, 820 and the first sentence of § 571. CPA § 162 exempted the specified plaintiffs from giving an undertaking required by statute or rule, while CPA § 820 provided that such plaintiff should be liable for damages sustained by the opposing party by reason of an order of arrest or injunction or a warrant of attachment to the same extent as sureties to an undertaking would have been if an undertaking had been given. It has generally been held that CPA § 820 was not self-executing. City of White Plains v Griffen, 169 Misc 706, 708, 8 NYS2d 32, 34 (Sup Ct 1938). Thus, if the amount of the responsibility of the municipal corporation, public officer, or people for damages was not specified in the injunction, attachment, or arrest order, there was no liability in the event that it was later determined that such plaintiff was not entitled to the relief granted. Ibid. See also, City of Utica v Hanna, 249 NY 26, 162 NE 573 (1928). This result has been reached because “[s]ureties would be liable to an extent not greater than the sum specified by the court or judge. They would not be liable generally . . . . If the liability of a municipal corporation is to be a liability of the same extent as that of sureties on an undertaking, the judge who grants the injunction must fix the extent in the one case as in the other . . . . In any case, [the plaintiff] counts the cost, and assumes a liability whose maximum is a determinate amount . . . . A plaintiff [should have] the opportunity, if he thinks the security excessive, to abandon his injunction . . . . [T]he right to resort to the courts shall be kept free from the menace of unknown and unknowable penalties which intimidate the suitor and clog his liberty of action.” City of Yonkers v Federal Sugar Refining Co. 221 NY 206, 211, 212, 116 NE 998, 999, 1000 (1917) (per Cardozo, J.).
The provisions of CPA §§ 162 and 820 are consolidated since each provision necessarily qualified the other. The limitation of the application of CPA § 820 to orders of arrest, injunction, and warrants of attachment is not retained. Instead, this section applies to all cases where an undertaking is required by statute or rule to secure the adverse party from damages it might sustain as a result of the granting of the relief requested to the party invoking the statute or rule. This is intended to include, in addition to injunction, attachment and arrest, undertakings under CPA §§ 586, 698, 927 and 1105, and any provisional relief where the danger that the adverse party may be wrongfully deprived of liberty and property exists.
The last clause of the section makes it clear that the fixing of damages is in lieu of the giving of a bond where it would be required of a private party.
Amendment History
Add, L 1962, ch 308, § 1; amd, L 1965, ch 628, § 1, eff Sept 1, 1965; L 1976, ch 264, § 1, eff Sept 1, 1976.
Source & verification. Provision text, History, and Advisory
Committee Notes are reproduced verbatim from the Consolidated Laws of New York.
Last verified July 21, 2026.
· Official source
Also known as: does the state have to post a bond New Yorkmunicipal corporation undertaking exemptionpublic officer surety bond New Yorkgovernment party litigation bond New York