NEW 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.)).
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.
LBD10156-01-9
A. 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.
