Bill Text: NY S02578 | 2011-2012 | General Assembly | Introduced
Bill Title: Authorizes the imposition of monetary sanctions in any civil action or proceeding upon a written finding of the court that a party or attorney has brought a claim or employed procedures entirely without merit and in bad faith; authorizes an additional interest at 150% of the legal rate in cases where frivolous delaying tactics had been interposed to avoid entry of a money judgment; requires notice be given of the courts view that sanctions may be called for prior to imposition of sanctions; provides for appellate review of order granting sanctions; provides that an action shall not be deemed frivolous solely because a novel or unusual argument or principle of law was advanced.
Spectrum: Partisan Bill (Democrat 1-0)
Status: (Introduced - Dead) 2011-03-08 - COMMITTEE DISCHARGED AND COMMITTED TO JUDICIARY [S02578 Detail]
Download: New_York-2011-S02578-Introduced.html
S T A T E O F N E W Y O R K
________________________________________________________________________
2578
2011-2012 Regular Sessions
I N S E N A T E
January 26, 2011
___________
Introduced by Sen. KRUGER -- read twice and ordered printed, and when
printed to be committed to the Committee on Codes
AN ACT to amend the civil practice law and rules, in relation to
expenses, penalties and additional interest for frivolous actions or
procedures and to repeal certain provisions of such law relating ther-
eto
THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:
1 Section 1. Section 8303-a of the civil practice law and rules is
2 REPEALED and a new section 8303-a is added to read as follows:
3 S 8303-A. EXPENSES, PENALTIES AND ADDITIONAL INTEREST FOR FRIVOLOUS
4 ACTION OR PROCEDURE. (A) IF IN A CIVIL ACTION OR PROCEEDING, A CLAIM IS
5 COMMENCED OR CONTINUED BY A PLAINTIFF, OR A COUNTERCLAIM, DEFENSE, CROSS
6 CLAIM OR THIRD-PARTY CLAIM IS COMMENCED OR CONTINUED BY A DEFENDANT, OR
7 AN APPLICATION, A MOTION OR CROSS MOTION FOR AN ORDER IS MADE OR CONTIN-
8 UED, THAT IS FOUND BY THE COURT AT ANY TIME DURING THE PROCEEDINGS OR
9 UPON JUDGMENT TO BE FRIVOLOUS, THE COURT SHALL AWARD EXPENSES TO ANY
10 PARTY ADVERSELY AFFECTED BY THE FRIVOLOUS CONDUCT.
11 (B) FOR PURPOSES OF THIS SECTION:
12 (I) "ACTION OR PROCEDURE" INCLUDES, BUT IS NOT LIMITED TO, THE MAKING
13 OR OPPOSING OF AN APPLICATION OR A MOTION, INCLUDING A MOTION FOR SANC-
14 TION PURSUANT TO THIS SECTION OR THE ASSERTION OF A CLAIM, COUNTERCLAIM,
15 DEFENSE, CROSS CLAIM OR THIRD-PARTY CLAIM.
16 (II) "FRIVOLOUS" MEANS ENTIRELY WITHOUT MERIT AND NOT ADVANCED IN GOOD
17 FAITH OR SOLELY INTENDED TO HARASS OR MALICIOUSLY INJURE ANOTHER.
18 (III) "EXPENSES" MEANS THE LEGAL EXPENSES INCURRED BY A PARTY DIRECTLY
19 ATTRIBUTABLE TO A FRIVOLOUS ACTION OR PROCEDURE, INCLUDING REASONABLE
20 ATTORNEY'S FEES AND DISBURSEMENTS.
21 (C) THE EXPENSES AWARDED UNDER SUBDIVISION (A) OF THIS SECTION SHALL
22 BE ASSESSED EITHER AGAINST THE PARTY BRINGING OR USING THE FRIVOLOUS
23 ACTION OR PROCEDURE OR AGAINST THE ATTORNEY FOR SUCH PARTY, OR AGAINST
24 BOTH, AS MAY BE DETERMINED BY THE COURT, BASED UPON THE CIRCUMSTANCES OF
25 THE CASE. SUCH EXPENSES SHALL BE IN ADDITION TO ANY OTHER AWARD GRANTED
26 TO ANY PARTY ADVERSELY AFFECTED BY THE FRIVOLOUS CONDUCT.
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD07286-01-1
S. 2578 2
1 (D) IN ADDITION TO ANY EXPENSES AWARDED UNDER THIS SECTION, OR AS AN
2 ALTERNATIVE SANCTION, THE COURT MAY IMPOSE UPON THE PARTY BRINGING OR
3 USING A FRIVOLOUS ACTION OR PROCEDURE OR UPON THE ATTORNEY FOR SUCH
4 PARTY, OR UPON BOTH, A PENALTY NOT TO EXCEED TWO HUNDRED FIFTY DOLLARS,
5 TO BE AWARDED TO ANY PARTY ADVERSELY AFFECTED BY THE FRIVOLOUS CONDUCT.
6 (E) IN ADDITION TO ANY EXPENSES AWARDED OR PENALTY IMPOSED UNDER THIS
7 SECTION, OR AS AN ALTERNATIVE SANCTION, IF IN AN ACTION FOR THE RECOVERY
8 OF A SUM OF MONEY THE COURT FINDS THAT THE PARTY LIABLE FOR PAYMENT OF
9 SUCH SUM OR ATTORNEY FOR SUCH PARTY HAS BROUGHT ANY FRIVOLOUS ACTION OR
10 PROCEDURE IN ORDER TO DELAY JUDGMENT, THE COURT SHALL AWARD TO EACH
11 CLAIMANT AGAINST WHOM SUCH ACTION OR PROCEDURE WAS BROUGHT OR USED ADDI-
12 TIONAL INTEREST ON THE UNPAID PORTION OF SUCH SUM AT ONE HUNDRED FIFTY
13 PERCENT OF THE LEGAL RATE FROM THE DATE WHEN THE SUM WAS DUE TO THE
14 CLAIMANT, WHICH DATE SHALL BE STATED IN THE AWARD, UNTIL THE SUM IS PAID
15 IN FULL.
16 (F) AN AWARD OF ANY EXPENSES OR ADDITIONAL INTEREST OR THE IMPOSITION
17 OF ANY PENALTY UNDER THE PROVISIONS OF THIS SECTION SHALL BE MADE ONLY
18 UPON MOTION OF ANY PARTY ADDRESSED TO THE JUDGE BEFORE WHOM THE FRIVO-
19 LOUS ACTION OR PROCEDURE PROCEEDED, OR UPON THE COURT'S OWN MOTION. THE
20 COURT SHALL CONDUCT A HEARING ON THE MOTION TO DETERMINE WHETHER AN
21 AWARD OF EXPENSES OR ADDITIONAL INTEREST SHOULD BE GRANTED OR A PENALTY
22 IMPOSED, AND THE AMOUNT OF SUCH AWARD, ADDITIONAL INTEREST OR PENALTY.
23 (G) IF THE COURT DETERMINES FROM A PRELIMINARY CONSIDERATION OF THE
24 MOTION AND PRIOR TO A HEARING THAT THE ACTION OR PROCEDURE MOVED AGAINST
25 IS FRIVOLOUS, IT SHALL WHENEVER POSSIBLE GIVE NOTICE ON THE RECORD TO
26 THE PARTIES OF SUCH PRELIMINARY DETERMINATION. IF WITHIN TEN DAYS
27 FOLLOWING SUCH NOTICE THE PARTY OR ATTORNEY DISCONTINUES THE ACTION OR
28 PROCEDURE, NO EXPENSES OR ADDITIONAL INTEREST SHALL BE AWARDED OR PENAL-
29 TY IMPOSED; PROVIDED, HOWEVER, THAT NO NOTICE SHALL BE REQUIRED FOR THE
30 COURT AFTER A HEARING TO AWARD EXPENSES OR ADDITIONAL INTEREST OR TO
31 IMPOSE A PENALTY FOR A FRIVOLOUS ACTION OR PROCEDURE BASED UPON THE
32 SUBMISSION TO THE COURT OF A FALSE STATEMENT MADE UNDER OATH.
33 (H) AN ORDER AWARDING EXPENSES OR ADDITIONAL INTEREST OR IMPOSING A
34 PENALTY UNDER THIS SECTION SHALL BE IN WRITING, SHALL RECITE IN DETAIL
35 THE CONDUCT OR CIRCUMSTANCES JUSTIFYING THE ORDER AND SHALL SPECIFY IN
36 DETAIL THE METHOD BY WHICH THE AMOUNT OF THE AWARD WAS COMPUTED AND THE
37 CALCULATION THEREOF.
38 (I) ANY ORDER AWARDING EXPENSES OR ADDITIONAL INTEREST OR IMPOSING A
39 PENALTY UNDER THIS SECTION MAY BE APPEALED, AS A MATTER OF RIGHT, TO THE
40 APPROPRIATE APPELLATE COURT, WHICH SHALL REVIEW THE MATTER DE NOVO.
41 (J) NO FINDING SHALL BE MADE THAT ANY ACTION OR PROCEDURE WAS FRIVO-
42 LOUS SOLELY BECAUSE A NOVEL OR UNUSUAL ARGUMENT OR PRINCIPLE OF LAW WAS
43 ADVANCED IN SUPPORT THEREOF.
44 (K) THIS SECTION SHALL PROVIDE THE EXCLUSIVE REMEDY FOR A FRIVOLOUS
45 ACTION OR PROCEDURE. HOWEVER SUCH REMEDY SHALL NOT BE DEEMED TO PRECLUDE
46 AN ACTION AUTHORIZED PURSUANT TO THIS CHAPTER OR AN ACTION FOR MALICIOUS
47 PROSECUTION OR ABUSE OF PROCESS.
48 (L) ALL PRECEDING PROVISIONS OF THIS SECTION SHALL NOT APPLY TO:
49 (I) PROCEEDINGS IN A SMALL CLAIMS PART OF ANY COURT;
50 (II) LANDLORD-TENANT PROCEEDINGS; AND
51 (III) PROCEEDINGS IN THE FAMILY COURT COMMENCED UNDER ARTICLE THREE,
52 SEVEN, EIGHT OR TEN OF THE FAMILY COURT ACT.
53 S 2. This act shall take effect immediately and shall apply to an
54 action or proceeding commenced on or after the effective date of this
55 act.
