Burden of Proof: The CPLR’s ‘Diamond’ Anniversary: Has It Lost its Sparkle

By David Paul Horowitz and Katryna L. Kristoferson with Jay C. Carlise II and Hon. Mark C. Dillon

We all know that civil procedure in the Supreme and county courts of New York State is governed by the CPLR (Civil Practice Law and Rules). What may come as a surprise is that this month marks 60 years since the enactment of the CPLR on Sept. 1, 1963.

To mark this momentous anniversary, Katryna and I are joined by two of today’s leading CPLR experts: Professor Emeritus Jay C. Carlisle, II, of the Elizabeth Haub School of Law at Pace University, and Justice Mark C. Dillon of the Appellate Division, Second Department. We are pleased to acknowledge them as fellow “CPLR Geeks.”

The goal of this collaborative effort is to offer different perspectives on the CPLR from the vantage point of the bench, the legal academy, and a relatively new and, sadly, a long-in-the-tooth practitioner. There is much we agree on, and there are points on which we diverge. Together, we acknowledge the critical role the CPLR has played in our professional lives and offer some suggestions for change.

Origins of the CPLR

By Jay C. Carlisle II

As we celebrate the 60th anniversary of the New York Civil Practice Law and Rules, it is instructive to briefly note that codification of procedure in New York State began with the Revised Statutes of 1827/28, the Tidd Revisions, modeled on British civil practice. In 1848, the state Legislature enacted a Code of Civil Procedure (the Field Code), which was further revised in 1850 but not adopted by the New York State Legislature. It was adopted, in whole or part, by 30 other states and the federal court system. Thus, the tradition of legislative control over the statutory development of civil procedure statutes started and has continued for almost 175 years. The Legislature has refused to give authority to the judiciary to amend, revise or change codes of civil procedure. For many years this unfortunate practice has been the exact opposite of the Federal Rules Enabling Act, which delegates control to the federal judiciary to make procedural changes without interference by political considerations.

For 30 years after the 1850 Field Code, the Legislature passed a series of amendments that led to its enactment of the Code of Civil Procedure (the Throop Revision) in 1880. It did not satisfy the bench and bar but provided stimulus for further reform. In 1913, a Board of Statutory Consolidation (the Rodenbeck Commission) proposed a set of 401 rules that was rejected by the Legislature. Finally in 1920, the Legislature adopted the Civil Practice Act (CPA), which made few changes in form or substance to the Throop Revision. Momentum for change accelerated in 1938 with the adoption of the Federal Rules of Civil Procedure, but the Legislature had little interest in procedural reform. The Judicial Council, created in 1934, was able to sponsor piecemeal amendments to the Civil Practice Act but was confronted with an overwhelming complex of ancient, disorganized and irrelevant statutes.

In 1955, the Temporary Commission on the Courts, chaired by Harrison Tweed, appointed the Advisory Committee on Practice and Procedure. The committee members were distinguished lawyers from all geographic areas of the state. The committee reporter was then Professor Jack B. Weinstein of Columbia University School of Law, who gathered an academic support group of procedural law experts to work with the committee to create procedural proposals for the Legislature. The first issue for the joint effort by the practicing bar and the academy was whether to adopt in full or in part the Federal Rules of Civil Procedure. After considerable debate, the committee decided to adopt a hybrid approach with a focus on practical and pragmatic changes, revisions and reforms. Thus, the committee followed many New York rules under the Civil Practice Act but tidied them up. If a federal rule or rule of another state was better than New York’s practice, and there was no appreciable difference between the two, the committee gave deference to the federal rule. This approach generated an enormous amount of work, as evidenced by the committee’s published notes. The committee identified key areas of reform and examined statutes, cases and literature, including those in other jurisdictions. Long working meetings were held regularly at the New York City Bar Association, and extensive research and draft opinions were exchanged amongst committee members and over 30 New York State bar associations. The First Preliminary Report of the Advisory Committee, issued in 1957, was followed by succeeding interim reports in 1958, 1959 and 1960. The revisions as finally proposed appear in Advisory Committee on Practice and Procedure, Final Report (1961) and the Sixth Report of the Senate Finance Committee for the Proposed Revision of the Civil Practice Act and Rules (1962).

Many of the Advisory Committee proposals were enacted, some with minor revisions, by the Legislature, but the committee’s goal of conferring a general rule making power on the courts was completely frustrated by the Legislature. Other major reforms advanced by the Advisory Committee were not enacted, but during the past 60 years some of the committee’s original proposals have been passed by the Legislature. Thus, the CPLR, as enacted in 1963, was an impressive document and a monumental achievement, realized through the efforts of the practicing bar and the legal academy. The CPLR has lasted longer than any prior procedural code in New York and is one of the nation’s oldest codes of civil practice.

Not All Those Who Wander (the CPLR) Are Lost

By Katryna L. Kristoferson

As a semi-new attorney, practicing for a little over five years, when I took the bar exam in 2017, there was no focus on, or testing of, New York substantive or procedural law. Taking New York practice in law school had become optional.

Upon first inspection, there are many clear, straightforward sections in the CPLR. For when to file an answer or pre-answer motion in response to a complaint, see CPLR 3012(a): “Service of an answer or reply shall be made within 20 days after service of the pleading to which it responds.”

But upon deeper inspection, even CPLR 3012(a) gets a bit muddied. What does it mean to be served? From New York State Bar Association what date do those 20 days begin to run? (And let’s not forget that 20 days is sometimes 30 days.)

Other provisions set forth certain rules to follow but allow for revisions by the court to the time proscribed. See CPLR 3212(a):

Any party may move for summary judgment in any action, after issue has been joined; provided however, that the court may set a date after which no such motion may be made, such date being no earlier than 30 days after the filing of the note of issue. If no such date is set by the court, such motion shall be made no later than 120 days after the filing of the note of issue, except with leave of court on good cause shown.

This can lead to some confusion in practice, or at the least, time spent tracking down every court order issued in a case to determine if the court had set a time frame other than the one set forth above. It’s times like these that attorneys benefit from the fact that New York is almost entirely an electronic filing state for all case types, with the exception of Article 70 and 78 proceedings, matrimonial, mental hygiene law and election law matters, or those involving a pro se litigant.

Take a wrong turn (i.e., reviewing the wrong statute or subsection), and you may find yourself a little lost, heading down a rabbit hole. I can think of a few times my research was misdirected due to a misunderstanding of the provision I reviewed or thought applied to the issue.

What can help? For me, and for those lucky enough to have the same opportunity, working with someone who has experience in New York litigation. A mentor when navigating the CPLR for the first time can be invaluable, saving hours of research on odd issues that many attorneys end up learning through trial and error. Ultimately, there is no shortcut to investing the time to learn the provisions of the CPLR, and let’s not forget that Rule 1.1 of the New York Rules of Professional Conduct requires that all of us be competent in the tasks we undertake:

Competence

(a) A lawyer should provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.

Even with “competence” your focused and diligent research can lead you to the dreaded answer, “it depends.” When researching nuanced or niche legal issues relating to the CPLR, finding a case that is on point with the facts in your case is not for the faint of heart. While more often than not you will land on relevant case law, it can be tiresome vetting the facts, and it becomes tempting to shoehorn your facts to fit a case, to get an answer – any answer.

While many benefit from working at a large firm, with built-in experience and knowledge on a plethora and array of CPLR areas, some also find this benefit while working at smaller firms. As for solo practitioners, or those working in a firm that does not do a lot of civil litigation, they are left navigating the muddied CPLR waters through various channels, such as the Westlaw McKinney’s practice commentaries (I have relied upon the commentaries of Justice Dillon and others on many occasions), CLEs and their own research. The best advice I’ve come across so far: network, network, network and find a mentor. You never know when your esoteric legal issue is one that someone else has encountered.

It’s hard to say whether my introduction into practice would have felt smoother had I taken a New York practice class in law school. However one gets there, as a litigator in New York State there is no escaping the CPLR and the necessity of mastering it. And it behooves all in practice to take time to not just read the CPLR on an ad hoc basis but to do whatever we can to understand and master the provisions relevant to our client’s cases.

The Red Chevy Impala, and the Synergy Between the CPLR and the Uniform Rules

By Hon. Mark C. Dillon

The original version of the CPLR differentiated between “sections” and “rules.”1 The difference was that “sections,” such as CPLR 302’s requirements for longarm jurisdiction, could only be amended or rescinded by the state Legislature. “Rules,” by contrast, could be changed by the then-existing Judicial Conference (the predecessor of OCA) operating under the authority of Judiciary Law Section 229(3), unless the recommended changes were expressly rejected by an affirmative act of the Legislature.[2] Many of the most prominent provisions of the CPLR, such as 2214, 2221, 3211, 3212, 3216, 3404 and 5015, were denominated as “rules.” The vesting of rule making authority in the judiciary was wise, as it allowed for the expeditious review and self-amendment of those procedures [3] apart from the cumbersome and political waters associated with statutory amendments. However, just as God giveth, God can taketh away, and the State Legislature repealed the relevant Judiciary Law provision in 1978 [4],assuming sole responsibility for rulemaking by means of CPLR 102.5 The CPLR’s continued identification of “sections” and “rules” is therefore a relic of the past with no practical significance today.

Nature abhors a vacuum. With time, the chief administrative judge needed to promulgate procedural rules that, while not intended to contradict the CPLR, supplemented its provisions where the CPLR was silent. For instance, CPLR 3402(a) requires the filing of a note of issue to place an action upon a court’s trial calendar, while Uniform Rule 202.21 sets forth the information that the document must contain as well as directing a 20-day deadline for seeking to vacate the note. The Uniform Rules for the New York State Trial Courts were published for the first time on Jan. 6, 1986. [6] By virtue of the Uniform Rules, certain provisions of the CPLR have been, in effect, “amended” without actual enactments by the state Legislature. With the Uniform Rules, the judiciary has reclaimed certain of the rulemaking authority that had been previously taken away, with the implicit acquiescence of the Legislature since 1986. Practitioners have learned to take heed of the particulars of applicable Uniform Rules (and sometimes, learning so the hard way).

This is not to say that the state Legislature has been an absentee landlord of the CPLR. To the contrary. Judiciary Law Section 212 was also amended in 1978 to provide in subdivision (l)(g) that the chief administrative judge “[r]eceive and consider proposed amendments to the [CPLR] … and conduct studies and recommend changes therein.” As a result, the state’s chief administrator has been a helpful consigliere to the Legislature, providing constructive prodding on an as-needed, issue by-issue basis from 1978 to present.

Indeed, since its original enactment, the CPLR has been amended with a level of frequency, sometimes in large measure and sometimes small. An example of a significant change to the CPLR was the state’s conversion in 1992 to commencement by filing in the Supreme and county courts.[7] This revolutionized the initiatory stages of litigations and constructively injected judges early into litigated disputes. A seemingly minor amendment that has had great impact was to CPLR 2001 in the year 2007, permitting mistakes, omissions, defects or irregularities in the filing of actions to be overlooked or corrected absent prejudice to a substantial right of another party. Plaintiffs may breathe a sigh of relief as to that one. More recently, CPLR 203(2) and 214-a, which define the statute of limitations for medical malpractice, were amended to include a discovery rule for actions alleging a medical provider’s negligent failure to diagnose cancer, which serves a useful and commonsense purpose and demonstrates that the CPLR can have some heart.

The mere adoption in New York of the Federal Rules of Civil Procedure, which are entirely adequate for the federal courts, would be an inadequate substitute to guide our state’s procedures. The FRCP fails to address a number of state-specific practice areas such as the selection of venue, the statute of limitations, longarm jurisdiction and the enforcement of judgments.

The bottom line that emerges is that the CPLR effectively informs the state’s bench and bar what to do, by who, where, when and how. The intention of the CPLR’s drafters 60 years ago that the judiciary have rule-making authority is now realized through the Uniform Rules, providing a synergistic balance between the statutes and rules. Amendments to the CPLR have proven sufficiently nimble these past 60 years to earn an extension of its overall lease a bit longer.

The CPLR, while not perfect, is like a classic 1963 red Chevrolet Impala with a V-8 engine, capable of providing reliable transportation and turning heads while driving it to the county courthouse, so long as it periodically receives new tires, brakes, oil and buffing. And while we may always envision a shiny new car with bells and whistles worthy of George Jetson, the reality is that, gas mileage aside, a future new car in 2028 will cost more money than we anticipate, the car seat will not be quite as comfortable for our posteriors, it may run afoul of the Lemon Law, its delivery may be unexpectedly delayed and we might not like the color. What do we do then?

DNR for the CPLR

By David Paul Horowitz

In 2013, I was privileged to edit a special edition of the Bar Journal celebrating the 50th anniversary of the CPLR. Paling alongside articles by the giants of the CPLR (Hon. Jack Weinstein, Prof. David Siegel and Prof. Jay C. Carlisle, II) was a reprint of a 2010 “Burden of Proof” column I wrote tided “CPR for the CPLR,” and a new submission for 2013, “DNR for the CPLR?” Get where I’m going with this? I’m ready to drop the question mark.

Professor Carlisle points out that the CPLR at 60 has lasted longer than any previous New York code of civil procedure. That was also true at age 50, and while I am no ageist, I’m not so sure the framework upon which the CPLR was erected is well suited for further renovations, which means I’m not certain I join Justice Dillon’s conclusion: ”Amendments to the CPLR have proven sufficiently nimble these past 60 years to earn an extension of its overall lease a bit longer.” And if we are comparing the CPLR to a “classic 1963 red Chevrolet Impala,” the Impala more closely resembles an unrestored gas guzzler still equipped with bench seats and hand-cranked windows and whose luster will not be restored by a coat of polish. We can do better. To use a wine analogy, the CPLR has not aged well, so I believe we should act before it’s only good for cooking.

Finally, Katryna L. Kristoferson makes the argument, politely, that for a post-2015 New York law grad gaining admittance to the New York Bar via the UBE, the study of New York practice is largely MIA in law schools today and totally absent from any bar prep course (why teach what isn’t tested?), making navigating New York’s procedural rules a Sisyphean task for the newly admitted attorney and a merely Herculean one for the experienced attorney.

The CPLR is designed to provide a fair balance between the rights of competing litigants, and I believe that goal is satisfied. Yes, we will all have pet peeve provisions, or feel a particular rule favors defendants or plaintiffs, but on the whole the CPLR sets up a level playing field. But is it fair to the judges and attorneys who live and die by it? Integrating the Uniform Rules with CPLR provisions is not an easy task; adding in the necessity of engrafting judicial district, individual county rules and individual judges’ rules further complicates the job. And what chance does a prose litigant have?

While I do not question the role of the New York State Legislature in setting procedural rules that impact policy for example, statutes of limitations (the recent enactments of revival statute that enable both child and adult victims of sexual abuse to sue their abusers notwithstanding the running of the conventional limitations periods (CPLR 214(g) and (j) make the point) – does the Legislature need to approve the time for service by mail, the necessary elements for a judicially enforceable stipulation or the form of papers generally? When it comes to regulating the provision of medical services, the Legislature should, of course, control the licensure of physicians and hospitals, rights of patients and broader societal issues such as the right to die. But just as we would not expect the Legislature to engage in rulemaking for standards of care and the day-to-day provision of medical services, shouldn’t the vast majority of civil practice rules be left to the stakeholders?

So, two questions remain when it comes to the CPLR. First, continued evolution or revolution? Second, if the choice is revolution, how does that come about?

My answer to the first question is revolution. As part of a wholesale revision of the CPLR, there should be an integration of the CPLR and Uniform Rules, and it might be wise to consider limitations on procedural rulemaking further down the food chain. This is not to say that I am opposed to judges having the flexibility to vary procedural rules tailored to the needs of a particular case, with adequate notice all involved, and I have always appreciated (and sometimes benefited from) a certain elasticity in the application of the CPLR and its forgiving nature (certainly as compared to the Federal Rules of Civil Procedure). Speaking of the federal rules, I wholeheartedly agree with Justice Dillon that a wholesale adoption of those rules is not the answer, a position Professor Carl isle points out the framers of the CPLR considered and rejected. But I do believe that a revamped CPLR might consider paralleling (structurally, not substantively) those rules so that practitioners from all jurisdictions and law schools, all of whom took Federal Civil Procedure in law school, would have some familiarity in finding New York rules (notwithstanding that the Federal Rules are no walk in the park – just look at Rule 26).

Having opted for revolution, the second question is problematic. As Professor Carlisle points out, the CPLR had Judge Weinstein as helmsperson. Who will fill those big shoes today? And there will certainly be no lack of stakeholders’ competing interests that will have to be balanced, tension between the bench and bar and ensuring that the work does not prove the adage that a camel is a horse designed by a committee. And then there is the question of funding this massive undertaking. Here, the Legislature could play a pivotal role, demonstrating the importance of the rules of civil practice by providing adequate resources to get the job done. But we should not be put off because the task is a difficult one, and perhaps it is karma that John F. Kennedy was president when the CPLR took effect (substitute “draft a new code of procedure” for “go to the moon”):

We choose to go to the moon. We choose to go to the moon in this decade and do the other things, not because they are easy, but because they are hard, because that goal will serve to organize and measure the best of our energies and skills, because that challenge is one that we are willing to accept, one we are unwilling to postpone, and one which we intend to win, and the others, too.

I would have been happy to retire at 60. Shouldn’t we give our tired workhorse CPLR that opportunity?

Conclusion

So please join us in celebrating the 60th anniversary of the CPLR, and after the party hats are put away and the cake is all gone, consider how we move forward to make New York’s civil procedure worthy of the 21st century and of the Empire State, with its tradition of being a leader in civil procedure.

Endnotes

1. David Paul Horowitz, CPR far the CPLR, 85 N.Y. Sr. B. J. 36, Oct. 2013.

2. Judiciary Law§ 229, renumbered to Judiciary Law§ 230 (1962 N.Y. Laws ch. 309, § 4), as amended (1963 N.Y. Laws ch. 325) but later repealed (1978 N.Y. Laws ch. 156, § 6).

3. Jay C Carlisle, Happy Anniversary to the CPLR, 85 N.Y. Sr. B. J. 18, 20, Oct. 2013.

4. 1978 N.Y. Laws ch. 156, § 6. See also David D. Siegel, Statute Versus ‘Rule,’ 28 SIEGELPR 3, Jan. 1995.

5. Joseph M. McLaughlin, Practice Commentaries, McKinney’s Cons. Laws ofN.Y., Cl02:l (1990).

6. 22 N.Y.CR.R. §§ 202,205,206,207,208,212,214.

7. CPLR 306-a. See also CPLR 306-6.

Please see NYSBA.com for the printed article.