N.Y. Civil Practice Law & Rules § 2111: Filing of papers in the trial courts by facsimile transmission and by electronic means

§ 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 courts of New York having civil jurisdiction

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 hereunder in the supreme court or

the county 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. Participation in this program may be required or may be

voluntary as provided by the chief administrator, except that it shall

be strictly voluntary as to any party to an action or proceeding who is

not represented by counsel.

2. (A) Where participation in this program is to be voluntary:

(i) commencement of an action or proceeding by facsimile transmission

or electronic means shall not require the consent of any other party;

nor shall a party's failure to consent to participation in an action or

proceeding 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;

(ii) all parties shall be notified clearly, in plain language, about

their options to participate in filing by electronic means;

(iii) no party to an action or proceeding shall be compelled, directly

or indirectly, to participate;

(iv) where a party is not represented by counsel, the court 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.

(B) Where participation in this program is to be required:

(i) such requirement shall not be effective in a court in a county

unless, in addition to consulting with the county clerk of such county

and obtaining his or her agreement thereto if the court is a supreme

court or county court, the chief administrator shall:

(1) first consult with members of the organized bar including but not

limited to city, state, county, and women's bar associations and, where

they practice in such court in such county, with (a) institutional

service providers, (b) not-for-profit legal service providers, (c)

attorneys assigned pursuant to article eighteen-B of the county law, (d)

unaffiliated attorneys who regularly appear in proceedings that are or

have been affected by a program of electronic filing in such county, and

(e) any other persons as deemed to be appropriate by the chief

administrator;

(2) afford all those with whom he or she consults pursuant to item one

of this clause the opportunity to submit comments with respect to the

program, which comments, including but not limited to comments related

to unrepresented litigants, he or she shall consider and shall post for

public review on the office of court administration's website; and

(ii) as provided in paragraph three of this subdivision, no party who

is not represented by counsel nor any counsel in an affected case who

opts out of participation in the program shall be required to

participate therein.

3. Where the chief administrator requires participation in electronic

filing as provided in paragraph one 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. Such 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.