R 3222.Action on submitted facts.

The Legislature abolished the provisional remedy of civil arrest in 1979 by repealing Article 61 of the CPLR. The amendments of CPLR 3222(b) (1) and CPLR 6001 are proposed merely to conform these sections to reflect the 1979 repeal of the provisional remedy of civil arrest. CPLR 3222(b) (1), governing the submission on agreed facts (a procedure which dispenses with summons service and other adversary proceedings), makes certain provisional remedies unavailable. Arrest was among them, but since arrest no longer exists as a remedy, the reference to it should be eliminated.

CPLR 6001 lists the official provisional remedies. It still refers to arrest. The amendment would strike the reference.

Subd (a) of this rule is derived from CPA §§ 546 and 547, with some simplification of the language of the former provisions. This procedure should be distinguished from that prescribed by CPLR § 3031 (see CPA § 218-a; NY RP 118), under which an action may be commenced and issue joined without pleadings, by filing an agreed statement of the claims and defenses between the parties. Under the latter rule, the pleading stage of the action alone is omitted; the questions of fact and of law still remain to be tried. Under the instant rule, on the other hand, the parties must agree as to the facts upon which the controversy depends and, apart from the possibility of drawing inferences of fact from the facts stated under subdivision (b)(4), nothing remains for the court but the determination of any issues of law presented by the agreed facts. This subdivision is not limited to “parties of full age,” as was § 546. Thus, actions by or against infants may be presented for judgment on submitted facts. Cf. CPLR § 1201. There is no reason to make the procedure unavailable in these cases, for the court can insure the protection of the infant’s interests. On its face, § 546 would seem to have been applicable to all types of controversies, but courts have indicated that it did not apply to matrimonial cases. See, e. g., Fraioli v Fraioli, 1 AD2d 967, 150 NYS2d 665 (2d Dept 1956). This exception has been explicitly stated in this subdivision. This subdivision makes two other changes in former law. First, the affidavit formerly required has been eliminated and replaced by the statement specified in the next to last sentence of the subdivision. Cf. CPLR § 3031. Second, the submission, if presented to the Supreme Court, is required to specify the particular county where the papers are to be filed. Under § 547, if the submission did not designate the county clerk with whom the papers were to be filed they might have been filed with any such clerk.

Subd (b) of this rule is taken from CPA § 548 and the last sentence of CPA § 547. The portion of § 548 which related to the judgment-roll has been placed in CPLR rule 5017, relating to judgment-rolls generally; but the requirement that the copy of the judgment must be certified has been dropped. Subparagraph 3 of this subdivision contains a new provision which allows parties a choice of stipulating for hearing by Appellate Division, Special Term, or a specified judge or referee. This additional flexibility gives some of the advantages of arbitrations and may make the procedure more desirable from a litigant’s point of view. The second sentence and part of the last sentence of former § 548, which related to costs, have been omitted. The matter of costs was stated in the second sentence of § 548 to be “always in the discretion of the court.” The limitation in that sentence that costs “cannot be taxed for any proceeding before notice of trial” is unnecessary, since no such proceedings are contemplated by this procedure. Deletion of the prohibition of costs on dismissal, contained in the last sentence of § 548, permits such costs to be left to the discretion of the court. Subparagraph 4 of this subdivision is new. It is designed to overcome the rule that the courts, upon a submission of a controversy, may not draw any inferences from the facts stated except those that follow as a matter of law. See, e. g., Lafrinz v Whitney, 233 NY 107, 134 NE 852 (1922); People v Hewson, 224 NY 136, 120 NE 115 (1918); Gorman’s Restaurant v O’Connell, 275 App Div 166, 88 NYS2d 230 (1st Dept), affd 299 NY 733, 87 NE2d 454 (1949). This rule is rigorously applied, and excludes the power to find any additional fact “even if the submitted facts logically and reasonably admit of further important inferences which a trier of the fact might very well draw.” Cohen v Manufacturers Safe Deposit Co. 297 NY 266, 269, 78 NE2d 604, 606 (1948). In the Cohen case, for example, the court refused to determine the right to possession of some currency that the plaintiff found in a booth within the defendant’s safe deposit vault, although the defendant’s control over the vault was clearly indicated by the facts submitted. See id. at 272–74, 78 NE2d at 608–09 dissenting opinion of Thacher, J.; cf. Capasso v Square Sanitarium, Inc. 285 App Div 1131, 140 NYS2d 781 (1st Dept 1955); Graham v East 88th Street Corp. 282 App Div 754, 122 NYS2d 634 (1st Dept 1953). This has been undoubtedly a major factor hampering the usefulness of the action on submitted facts.

Add, L 1962, ch 308, eff Sept 1, 1963; amd, L 1984, ch 313, § 1, eff July 3, 1984; L 1986, ch 355, § 9, eff July 17, 1986.