A07517 Summary:
BILL NO | A07517 |
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SAME AS | No Same As |
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SPONSOR | Dinowitz |
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COSPNSR | |
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MLTSPNSR | |
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Amd §509, add R514, CPLR | |
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Relates to venue in matrimonial actions regarding the children of the parties. |
A07517 Memo:
Go to topNEW YORK STATE ASSEMBLY
MEMORANDUM IN SUPPORT OF LEGISLATION
submitted in accordance with Assembly Rule III, Sec 1(f)   BILL NUMBER: A7517 SPONSOR: Dinowitz
  TITLE OF BILL: An act to amend the civil practice law and rules, in relation to venue in matrimonial actions This is one in a series of measures being introduced at the request of the Chief Administrative Judge upon the recommendation of his Matrimoni- al Practice Advisory and Rules Committee. This measure, which is offered at the request of the New York County matrimonial judges, would add a new CPLR rule 514 to govern venue in matrimonial actions. Enactment of this measure should promote the Chief Judge's Excellence Initiative by enabling more efficient disposition of uncontested divorce cases while, at the same time, furthering access to justice. Plaintiffs regularly utilize CPLR 509 to designate venue in the county of their choice (often New York County), even though none of the parties are residents of that county. The reason why CPLR 509 designations of venue are so frequent is partly for the convenience of attorneys who do not want to travel to file papers, and partly to take advantage of what is widely believed to be the expedited processing of divorces in certain counties such as New York County. The problems arising from being "A Mecca for Matrimonial Matters" were pointed out in Castaneda v Castane- da, 36 Misc 3d 504, at 506 (Sup Ct 2012), where Justice Matthew Cooper discussed the burden on New York County's judicial resources, especially for uncontested divorces.* Besides pointing out the huge burden on resources of New York County and the unfairness to residents of New York County who must compete for limited judicial resources, Justice Cooper noted that CPLR 509 desig- nations increase the likelihood that defendants who reside in foreign counties will not respond to a summons and will default in the action. Rather than travel to a distant county, which may be expensive and time consuming, defendant is more likely to do nothing or to just mail back the defendant's affidavit consenting to the uncontested divorce. Justice Cooper suggests that one of the reasons a plaintiff in a distant county may choose to file in New York County is that he or she knows his or her spouse will be likely to default if they must travel to Manhattan. As a result, divorce mills flourish, and the number of uncontested divorces processed in counties like New York County increases. When these defend- ants begin to understand the consequences of having defaulted - i.e., that critical issues relating to spousal support, custody and support of children, and distribution of marital property have been inadequately addressed in the action - they try to vacate the default judgment or bring actions for post judgment relief to m odify the terms. "A good portion of the post judgment matrimonial motions heard in this county are those brought by out-of-county defendants seeking to vacate default judgments." (Castaneda v Castaneda, supra, at 511). Clearly, CPLR 509 designations of venue in counties not related to the residence of the parties or their children works at cross purposes to the goals of effi- ciency and access to justice. We are aware that the problem is not limited to New York County. Erie County, where Buffalo is located, and Monroe County, where Rochester is located, both have sizable numbers of filings, as do Nassau, Suffolk and Westchester**. The other boroughs of New York City, aside from Richmond, each have an even greater number***. New York County unquestionably still bears the greatest burden with its 11,340 uncontested divorce filings in 2016 and its 10,382 uncontested divorce filings in 2017. Nevertheless, there can be no doubt that the need for divorce venue reform is a statewide issue, not limited to New York County. Compounding the need for this measure is a new law enacted in 2017 to amend CPLR 503(a) to permit, as another option to venue related to resi- dence of the parties, venue in which a substantial part of the events or omissions giving rise to the claim occurred. This new law (L. 2017, c. 366) was not designed with matrimonial actions in mind. But adding another venue option unrelated to residence without changing plaintiff's ability to designate a venue unrelated to residence pursuant to CPLR 509, which remains intact, it only underscores the immediate need for this measure. Not only will this measure override CPLR 509 designations (except where expressly permitted in cases where addresses of the parties are not a matter of public record or where confidentiality orders exist), it also will override the provisions of the new law. A number of thoughtful proposals have been made in the last few years concerning ways to change the CPLR rules by bar association groups and judges and clerks in New York County. These proposals would have over- ridden the ability of plaintiffs to designate the place of trial in divorce actions by amending CPLR 509. Under existing CPLR 509, only the plaintiff has this ability, and under existing CPLR 510(1), only the defendant may demand a change in the designation.**** Courts do not have the power to change designations of venue in matrimonial actions made by plaintiffs outside of the county of residence of one of the parties if defendants do not ask for a change in venue.***** One such proposal to change the divorce venue rules would have applied only to divorces involving minor children of the marriage. The Committee agrees that in divorces involving minor children venue should be related to residence so that the courts can make appropriate decisions as to custody and parenting time and support as to the child, having, where appropriate, the involvement of an attorney for the child familiar with the services available where the child resides. However, our Committee believes that all divorce actions should have venue related to residence. Another such proposal by the New York State Bar Standing CPLR Committee, which our Committee was asked to review, would have applied to all matrimonial actions, but that proposal requires venue to be the county of residence, of one of the parties, not taking into account at all the residence of the children. We note that this measure addresses concerns expressed in the past by Sanctuary for Families regarding when the address of either party or their child(ren) is not a matter of public record or is subject to an existing confidentiality order. The measure provides that, in such cases where confidentiality and safety are paramount concerns, the place of trial designated by plaintiff may be as specified pursuant to CPLR 509. We also note that this measure provides only one good cause exception rather than two, as was the case in our original proposal. The latter could be read as allowing sua sponte transfers of venue by judges. Concerns were expressed to us by the New York State Bar Association Family Law Section about the possibility of sua sponte transfers of venue to a county with no nexus to the parties simply because the judges in that county were less busy, when the venue originally designated was proper to begin with. The present measure makes no provision for such transfer. Rather than allow courts to transfer venue to another county, a time-consuming process fraught with delays, this measure requires that venue be proper in the first place, but gives the court authority for good cause shown to allow the trial to proceed in the county where it was brought. This provision might be used where neither party to the divorce action or their child(ren) resides in New York State. Such designation of venue would be improper under this measure, which requires that venue be the residence of one of the parties or their child(ren). However, the plaintiff could make a motion to have it remain in the county designated under the good cause exception where, fo r example, the parties and their child(ren) had recently left the state. The good cause exception might also be useful to a low-income litigant who could only find pro bono or reduced fee representation in a county that was not the residence of the parties or their child(ren). Under this measure in its present form, delays in transferring venue sua sponte will be avoided. It is only when the court decides not to allow the trial to proceed when a venue transfer will be needed. Thus, the percentage of transfers of venue will be much smaller. Moreover, by having a separate CPLR rule for matrimonial venue, much as there is a separate rule for consumer credit in CPLR 513, this measure avoids the cumbersome drafting problems entailed in amending sections of the CPLR (such as CPLR 509 and 510) intended to apply to all types of actions. Proposed CPLR 514 should have no impact on non-matrimonial actions. Finally, CPLR 514, as proposed in this measure, expressly overrides CPLR 509 in the event of a conflict. This measure, which would have no fiscal impact, would take effect 60 days after becoming law and apply to matrimonial actions commenced on or after such effective date.   LEGISLATIVE HISTORY: OCA 2017-52; S.5736-A (2018); A.9920 (2018) * Court statistics show that in 2011 there were 49,785 uncontested divorces filed statewide of which 14,352 were filed in New York County and 27,687 were filed in all of New York City. Thus, in 2011, approxi- mately 29% of the statewide uncontested filings were filings in New York County and approximately 52% of New York City uncontested filings were in New York County. In 2012, there were 46,201 uncontested divorces filed statewide of which 13,519 were filed in New York County and 24,465 were filed in all of New York City. Thus, in 2012, approximately 29% of the statewide uncontested filings were filings in New York County and approximately 55% of New York City uncontested filings were in New York County. In 2013, there were 47,500 uncontested divorces filed statewide of which 14,479 were filed in New York County and 26,051were filed in all of New York City. Thus, in 2013, approximately 30% of the statewide uncontested filings were filings in New York County and approximately 56% of New York City uncontested filings were in New York County. In 2014, there were 46,974 uncontested divorces filed statewide of which 13,662 were filed in New York County and 25,990 were filed in all of New York City. Thus, in 2014 approximately 29% of the statewide uncontested filings were filings in New York County and approximately 53% of New York City uncontested filings were in New York County. In 2015, there were 47,358 uncontested divorces filed statewide of which 12,799 were filed in New York County and 26,295 were filed in all of New York City. Thus, in 2015 approximately 27% of the statewide uncontested filings were filings in New York County and approximately 49% of New York City uncontested filings were in New York County. In 2016, there were 45,150 uncontested divorces filed statewide of which 11,340 were filed in New York County and 24,327 were filed in all of New York City. Thus, in 2016 approximately 25% of the statewide uncontested filings were filings in New York County and approximately 47% of New York City uncontested filings were in New York County. In 2017, there were 42,857 uncontested divorces filed statewide of which 10,382 were filed in New York County and 23,208 were filed in all of New York City. Thus, in 2017 approxi- mately 24% of the statewide uncontested filings were filings in New York County and approximately 45% of New York City uncontested filings were in New York County. These figures show that the burden on New York Coun- ty has remained constant since 2011 but has decreased from 29% to 24% of statewide uncontested filings and from 52% to 45% of New York City uncontested filings. See Appendix "0-1" showing court statistics attached which have been updated through 2017. **In 2014, Erie County, where Buffalo is located, had 2,130 uncontested divorce filings, and Monroe County, where Rochester is located, had 1,281 uncontested divorce filings. Similarly, uncontested divorce filings for 2014 for Nassau County were 1,633, for Suffolk County were 2,423, and for Westchester County were 1,978 (see OCA Supreme Court Civil Matrimonials Filed and Disposed Comparison Report 2013 and 2014 contained in Appendix "0-1"). In 2015, Erie County had 1,909 uncontested divorce filings, and Monroe County had 1,367 uncontested divorce filings. Similarly, uncontested divorce filings for 2015 for Nassau County were 2,014, for Suffolk County were 2,366, and for Westchester County were 2,097 (see OCA Supreme Court Civil Matrimonials Filed and Disposed Comparison Report 2014 and 2015 contained in Appendix "0-1"). In 2016, Erie County had 1,762 uncontested divorce filings, and Monroe County had 1,339 uncontested divorce filings. Similarly, uncontested divorce filings for 2016 for Nassau County were 1,818, for Suffolk Coun- ty were 2,396, and for Westchester County were 2,004 (see OCA Supreme Court Civil Matrimonials Filed and Disposed Comparison Report 2015 and 2016 contained in Appendix "G-1"). In 2017, Erie County had 1,350 uncon- tested divorce filings, and Monroe County had 1,285 uncontested divorce filings. Similarly, uncontested divorce filings for 2017 for Nassau County were 1,695, for Suffolk County were 2,272, and for Westchester County were 2,062 (see OCA Supreme Court Civil Matrimonials Filed and Disposed Comparison Report 2016 and 2017 contained in Appendix "G-1"). *** In 2014 Uncontested divorce filings for the Bronx were 3,914, for Kings were 4,331, for Queens were 3,556, and for Richmond were 527 (see OCA Supreme Court Civil Matrimonials Filed and Disposed Comparison Report 2013 and 2014 contained in Appendix "G-1"). In 2015, Uncontested divorce filings for the Bronx were 3,845, for Kings were 4,389, for Queens were 4,719, and for Richmond were 543 (see OCA Supreme Court Civil Matrimonials Filed and Disposed Comparison Report 2014 and 2015 contained in Appendix "G-1"). In 2016, Uncontested divorce filings for the Bronx were 4,382, for Kings were 3,983, for Queens were 4,013, and for Richmond were 609 (see OCA Supreme Court Civil Matrimonials Filed and Disposed Comparison Report 2015 and 2016 contained in Appendix "G-1"). In 2017, Uncontested divorce filings for the Bronx were 4,365, for Kings were 3,550, for Queens were 4352, and for Richmond were 559 (see OCA Supreme Court Civil Matrimonials Filed and Disposed Comparison Report 2016 and 2017 contained in Appendix "G-1"). **** In the Practice Commentaries, Vincent Alexander explains: "CPLR 510 specifies three grounds for a motion to change venue. Subdivision (1) provides for such motion when venue is improper, i.e., plaintiff has failed to comply with the rules specified in CPLR 501 and 503-508 or some other venue-regulating statute (e.g., CPLR 7502(a)). Only the defendant may make this motion; if the plaintiff places venue in an improper county, she forfeits the right to select a proper one." See N.Y. CPLR 510 (McKinney). ***** "A change of venue requires a motion. That the change cannot be made by the court sua sponte is an old rule, generally still followed." (16 Siegel, N.Y. Prac. § 116 (5th ed.)).
A07517 Text:
Go to top STATE OF NEW YORK ________________________________________________________________________ 7517 2019-2020 Regular Sessions IN ASSEMBLY May 8, 2019 ___________ Introduced by M. of A. DINOWITZ -- (at request of the Office of Court Administration) -- read once and referred to the Committee on Judici- ary AN ACT to amend the civil practice law and rules, in relation to venue in matrimonial actions The People of the State of New York, represented in Senate and Assem- bly, do enact as follows: 1 Section 1. Section 509 of the civil practice law and rules, as amended 2 by chapter 773 of the laws of 1965, is amended to read as follows: 3 § 509. Venue in county designated. Notwithstanding any provision of 4 this article except for rule 514, the place of trial of an action shall 5 be in the county designated by the plaintiff, unless the place of trial 6 is changed to another county by order upon motion, or by consent as 7 provided in subdivision (b) of rule 511 of this article. 8 § 2. The civil practice law and rules is amended by adding a new rule 9 514 to read as follows: 10 Rule 514. Venue in matrimonial actions. (a) This rule applies to all 11 actions wherein all or part of the relief granted is divorce, all 12 actions brought in supreme court for custody or visitation, all applica- 13 tions to modify a supreme court order of custody or visitation, all 14 actions wherein all or part of the relief granted is the dissolution, 15 annulment or declaration of the nullity of a marriage, all proceedings 16 to obtain a distribution of marital property following a foreign judg- 17 ment of divorce, and all post-judgment proceedings following a judgment 18 of divorce. 19 (b) Notwithstanding anything to the contrary in this article, the 20 place of trial in an action subject to subdivision (a) of this rule 21 shall be in a county in which either party resides or, if there are 22 minor children of the marriage, the place of trial may also be in the 23 county where one of such children resides; except that where any of the 24 addresses of these residences is not a matter of public record, or where EXPLANATION--Matter in italics (underscored) is new; matter in brackets [] is old law to be omitted. LBD10156-01-9A. 7517 2 1 any of these addresses is subject to an existing confidentiality order 2 pursuant to section 254 of the domestic relations law or section 154-b 3 of the family court act, the place of trial designated by the plaintiff 4 in any action specified in subdivision (a) of this rule may be as speci- 5 fied in section 509 of this article. 6 (c) In any action specified in subdivision (a) of this rule, the court 7 may, for good cause shown, allow the trial to proceed before it, 8 notwithstanding that venue would not lie pursuant to subdivision (b) of 9 this rule. Good cause applications shall be made by motion or order to 10 show cause. 11 § 3. This act shall take effect on the sixtieth day after it shall 12 have become a law and shall apply to matrimonial actions commenced on or 13 after such date.