Article 21-A. Filing of Papers in the Courts

NY CPLR § 2111. FILING OF PAPERS IN THE TRIAL COURTS BY FACSIMILE TRANSMISSION AND BY ELECTRONIC MEANS

(a) Notwithstanding any other provision of law, the chief administrator of the courts, with the approval of the administrative board of the courts, may promulgate rules authorizing a program in the use of facsimile transmission only in the court of claims and electronic means in the supreme court, the civil court of the city of New York, surrogate’s courts and the court of claims for:  (i) the commencement of civil actions and proceedings, and (ii) the filing and service of papers in pending actions and proceedings.  Provided, however, the chief administrator shall consult with the county clerk of a county outside the city of New York before the use of electronic means is to be authorized in the supreme court of such county, afford him or her the opportunity to submit comments with respect thereto, consider any such comments and obtain the agreement thereto of such county clerk.

(b) 

• 1. Except as otherwise provided in paragraph two of this subdivision, participation in this program shall be strictly voluntary, and will take place only upon consent of all parties in the action or special proceeding;  except that a party’s failure to consent to participation shall not bar any other party to the action or proceeding from filing and serving papers by facsimile transmission or electronic means upon the court or any other party to such action or proceeding who has consented to participation.  Commencement of an action by electronic means or by facsimile transmission shall not require the consent of any other party.  No party shall be compelled, directly or indirectly, to participate in e-filing.  All parties shall be notified clearly, in plain language, about their options to participate in e-filing.  Where a party is not represented by counsel, the clerk shall explain such party’s options for electronic filing in plain language, including the option for expedited processing, and shall inquire whether he or she wishes to participate, provided however the unrepresented litigant may participate in the program only upon his or her request, which shall be documented in the case file, after said party has been presented with sufficient information in plain language concerning the program.
• 2. In the rules promulgated pursuant to subdivision (a) of this section, the chief administrator may eliminate the requirement of consent to participation in this program in:
  • (A) one or more classes of cases (excluding matrimonial actions as defined by the civil practice law and rules, election law proceedings, proceedings brought pursuant to article seventy or seventy-eight of this chapter, proceedings brought pursuant to the mental hygiene law, residential foreclosure actions involving a home loan as such term is defined in section thirteen hundred four of the real property actions and proceedings law and proceedings related to consumer credit transactions as defined in subdivision (f) of section one hundred five of this chapter, except that the chief administrator, in accordance with this paragraph, may eliminate the requirement of consent to participate in this program insofar as it applies to the initial filing by a represented party of papers required for the commencement of residential foreclosure actions involving a home loan as such term is defined in section thirteen hundred four of the real property actions and proceedings law and the initial filing by a represented party of papers required for the commencement of proceedings related to consumer credit transactions as defined in subdivision (f) of section one hundred five of this chapter) in supreme court in such counties as he or she shall specify, and
  • (B) one or more classes of cases in surrogate’s court in such counties as he or she shall specify, and

  • (C) actions in the civil court of the city of New York brought by a provider of health care services specified in paragraph one of subsection (a) of section five thousand one hundred two of the insurance law against an insurer for failure to comply with the rules and regulations promulgated by the superintendent of financial services pursuant to subsection (b) of section five thousand one hundred eight of such law.

    • (i) Notwithstanding the foregoing, the chief administrator shall not eliminate the requirement of consent in any county until after he or she shall have consulted with members of the organized bar including but not limited to city, state, county and women’s bar associations;  with institutional legal service providers;  with not-for-profit legal service providers;  with attorneys assigned pursuant to article eighteen-B of the county law;  with unaffiliated attorneys who regularly appear in proceedings that are or have been affected by any program of electronic filing in such county that requires consent or who would be affected by a program of electronic filing in such county should the requirement of consent be eliminated;  with any other persons in the county as deemed to be appropriate by the chief administrator;  and with the county clerk of such county (where the affected court is the supreme court of a county outside the city of New York), and

      (ii) only after affording them the opportunity to submit comments with respect thereto, considering any such comments, including but not limited to comments related to unrepresented litigants and, in the instance of any county outside the city of New York, obtaining the agreement thereto of the county clerk thereof.  All such comments shall be posted for public review on the office of court administration’s website.

• 2-a. [Expires and deemed repealed Sept. 1, 2017, pursuant to L.2015, c. 237, § 11 .] Notwithstanding the provisions of paragraph two of this subdivision, the exclusion in such paragraph of residential foreclosure actions involving a home loan as such term is defined in section thirteen hundred four of the real property actions and proceedings law from those classes of cases in which the chief administrator may eliminate the requirement of consent to participation in a program in the use of electronic means shall not apply to any county in which, prior to the effective date of this section, the chief administrator had eliminated the requirement of consent to participation in such a program in such foreclosure actions, specifically Erie, Essex, New York, Queens, Rockland, Suffolk and Westchester counties;  and the exclusion in such paragraph of proceedings related to consumer credit transactions as defined in subdivision (f) of section one hundred five of this chapter from those classes of cases in which the chief administrator may eliminate the requirement of consent to participation in a program in the use of electronic means shall not apply to any county in which, prior to the effective date of this section, the chief administrator had eliminated the requirement of consent to participation in such a program in such proceedings related to consumer credit transactions, specifically Erie, New York, Onondaga, Rockland and Westchester counties.
• 3. Where the chief administrator eliminates the requirement of consent as provided in paragraph two of this subdivision, he or she shall afford counsel the opportunity to opt out of the program, via presentation of a prescribed form to be filed with the clerk of the court where the action is pending.  Said form shall permit an attorney to opt out of participation in the program under any of the following circumstances, in which event, he or she will not be compelled to participate:
  • (A) where the attorney certifies in good faith that he or she lacks the computer hardware and/or connection to the internet and/or scanner or other device by which documents may be converted to an electronic format;  or

  • (B) where the attorney certifies in good faith that he or she lacks the requisite knowledge in the operation of such computers and/or scanners necessary to participate.  For the purposes of this subparagraph, the knowledge of any employee of an attorney, or any employee of the attorney’s law firm, office or business who is subject to such attorney’s direction, shall be imputed to the attorney.

    Notwithstanding any other provision of this subdivision, where a party is not represented by counsel, the clerk shall explain such party’s options for electronic filing in plain language and shall inquire whether he or she wishes to participate, provided however the unrepresented litigant may participate in the program only upon his or her request after said party has been presented with sufficient information in plain language concerning the program;  and a party not represented by counsel who has chosen to participate in the program shall be afforded the opportunity to opt out of the program for any reason via presentation of a prescribed form to be filed with the clerk of the court where the proceeding is pending;  and a court may exempt any attorney from being required to participate in the program upon application for such exemption, showing good cause therefor.

(c) For purposes of this section, “the filing and service of papers in pending actions and proceedings” shall include the filing and service of a notice of appeal pursuant to section fifty-five hundred fifteen of this chapter.