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NYCLAs Supreme Court Committee and Civil Court Practice Section Comments on OCA Proposal to Adopt 22 NYCRR Section 202.5
February 21, 2013
Comments on OCA Proposal to Adopt 22 NYCRR Section 202.5-c
After review of the Office of Court Administration’s (OCA) proposed adoption of 22 NYCRR Section 202.5-c, relating to proof of service by mail through attorney’s affirmation, the New York County Lawyers’ Association Supreme Court Committee and Civil Court Practice Section voted to oppose the adoption for the following reasons:
- The reference in the amendment to “regular office [mailing] procedures” is unspecific language that could invite a time-consuming factual inquiry as to the actual steps taken to effect service, and could call into question an entire office’s mailing practices.
- The proposed attorney affirmation in referencing “regular office [mailing] procedures” should, at the very least, detail what those procedures are.
- The attorney making out the affirmation may not have actual knowledge as to the “regular office [mailing] procedures” and, accordingly, the proposal is an invitation for representations based upon generalized understanding and/or hearsay.
- The proposed attorney’s affirmation, however precise, could result in additional litigation as to what date “mailing” within the meaning of the CPLR, in fact, occurred.
- As the proposal is intended to “cure” a perceived fault in court interpretation of the CPLR, any correction, if adopted, should amend the CPLR.
- As the proposal is intended to have the effect of a gloss on generally applicable provisions of the CPLR, if adopted, it should not be limited to practice only before the Supreme Court and County Court, but should also apply to all the state’s courts, including the Civil Court.