Bill Text: NY A06875 | 2011-2012 | General Assembly | Amended


Bill Title: Establishes guidelines for information subpoenas.

Spectrum: Slight Partisan Bill (Democrat 5-3)

Status: (Introduced - Dead) 2011-06-22 - substituted by s4530b [A06875 Detail]

Download: New_York-2011-A06875-Amended.html
                           S T A T E   O F   N E W   Y O R K
       ________________________________________________________________________
                                        6875--B
                              2011-2012 Regular Sessions
                                 I N  A S S E M B L Y
                                     April 5, 2011
                                      ___________
       Introduced  by  M.  of A. LENTOL, SCHROEDER, LUPARDO, CERETTO, P. LOPEZ,
         ZEBROWSKI -- Multi-Sponsored by -- M. of A. McENENY, RA --  read  once
         and  referred  to the Committee on Codes -- committee discharged, bill
         amended, ordered reprinted as amended and recommitted to said  commit-
         tee  --  reported  and  referred  to  the  Committee on Rules -- Rules
         Committee discharged, bill amended, ordered reprinted as  amended  and
         recommitted to the Committee on Rules
       AN  ACT  to amend the civil practice law and rules and the general busi-
         ness law, in relation to prohibited debt collection practices
         THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
       BLY, DO ENACT AS FOLLOWS:
    1    Section 1.  Subparagraph (i) of paragraph 3 of subdivision (a) of rule
    2  5224  of  the civil practice law and rules, as amended by chapter 452 of
    3  the laws of 2006, the opening paragraph as amended by chapter 552 of the
    4  laws of 2006, is amended to read as follows:
    5    (i) information subpoenas, served on an  individual  or  entity  other
    6  than  the  judgment debtor, may be served on an individual, corporation,
    7  partnership or sole proprietorship only if the judgment creditor or  the
    8  judgment  creditor's  attorney  has  a  reasonable belief that the party
    9  receiving the subpoena has in their  possession  information  about  the
   10  debtor  that will assist the creditor in collecting his or her judgment.
   11  Any information subpoena served  pursuant  to  this  subparagraph  shall
   12  contain  a  certification  signed by the judgment creditor or his or her
   13  attorney stating the following: I HEREBY CERTIFY THAT  THIS  INFORMATION
   14  SUBPOENA COMPLIES WITH RULE 5224 OF THE CIVIL PRACTICE LAW AND RULES AND
   15  SECTION  601 OF THE GENERAL BUSINESS LAW THAT I HAVE A REASONABLE BELIEF
   16  THAT THE PARTY RECEIVING THIS SUBPOENA HAS IN THEIR POSSESSION  INFORMA-
   17  TION  ABOUT  THE  DEBTOR THAT WILL ASSIST THE CREDITOR IN COLLECTING THE
   18  JUDGMENT. By signing the certification, the judgment creditor or  attor-
   19  ney  certifies that, to the best of that person's knowledge, information
   20  and belief, formed after an inquiry reasonable under the  circumstances,
        EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                             [ ] is old law to be omitted.
                                                                  LBD10417-06-1
       A. 6875--B                          2
    1  that the individual or entity receiving the subpoena has relevant infor-
    2  mation about the debtor.
    3    S  2.    Subdivision  9 of section 601 of the general business law, as
    4  added by chapter 753 of the laws of 1973, is amended and a new  subdivi-
    5  sion 10 is added to read as follows:
    6    9. Use a communication which simulates in any manner legal or judicial
    7  process  or  which  gives  the appearance of being authorized, issued or
    8  approved by a government, governmental agency, or attorney at  law  when
    9  it is not[.]; OR
   10    10. IF SUCH PRINCIPAL CREDITOR OR AGENT SENDS MORE THAN FIFTY INFORMA-
   11  TION  SUBPOENAS  PER MONTH, FAIL TO KEEP COMPLETE RECORDS CONCERNING ALL
   12  INFORMATION SUBPOENAS SENT BY SUCH PRINCIPAL CREDITOR OR  AGENT.    SUCH
   13  RECORDS  SHALL  BE  MAINTAINED  FOR  FIVE YEARS. CONTEMPORANEOUS RECORDS
   14  SHALL BE  KEPT THAT SET FORTH WITH  SPECIFICITY  THE  GROUNDS  FOR  SUCH
   15  PRINCIPAL CREDITOR OR AGENT'S REASONABLE BELIEF, WHICH MUST BE CERTIFIED
   16  AND  ACCOMPANY  EACH  INFORMATION  SUBPOENA  PURSUANT  TO RULE FIFTY-TWO
   17  HUNDRED TWENTY-FOUR OF THE CIVIL PRACTICE LAW AND RULES, THAT THE  PARTY
   18  RECEIVING  THE  SUBPOENA  HAS  IN  ITS  POSSESSION INFORMATION ABOUT THE
   19  DEBTOR THAT WILL ASSIST THE CREDITOR IN COLLECTING HIS OR HER JUDGEMENT.
   20  IN ADDITION TO ANY OTHER PENALTY THAT MY BE IMPOSED, FAILURE TO MAINTAIN
   21  RECORDS IN ACCORDANCE WITH THIS SUBDIVISION SHALL SUBJECT SUCH PRINCIPAL
   22  CREDITOR OR AGENT TO A CIVIL PENALTY OF NOT MORE THAN FIFTY DOLLARS  PER
   23  SUBPOENA,  UP TO A MAXIMUM OF FIVE THOUSAND DOLLARS PER VIOLATION, IN AN
   24  ACTION BROUGHT BY THE ATTORNEY GENERAL.
   25    S 3. Section 602 of the general business law is amended  by  adding  a
   26  new subdivision 3 to read as follows:
   27    3. ANY AGGRIEVED PERSON OR ENTITY SERVED WITH MORE THAN FIFTY INFORMA-
   28  TION  SUBPOENAS  PER  MONTH  BY A PRINCIPAL CREDITOR OR HIS OR HER AGENT
   29  SHALL ALSO HAVE A CAUSE OF ACTION TO CHALLENGE COMPLIANCE WITH  SUBDIVI-
   30  SION  TEN  OF SECTION SIX HUNDRED ONE OF THIS ARTICLE AND/OR THE CERTIF-
   31  ICATION REQUIREMENTS OF RULE FIFTY-TWO HUNDRED TWENTY-FOUR OF THE  CIVIL
   32  PRACTICE  LAW AND RULES. IN SUCH ACTION, A SUCCESSFUL PLAINTIFF SHALL BE
   33  AWARDED TEN DOLLARS FOR  EACH  INFORMATION  SUBPOENA  SERVED  UPON  SUCH
   34  PLAINTIFF  WHERE  IT  IS  SHOWN THAT THE REQUIRED CERTIFICATION FOR SUCH
   35  INFORMATION SUBPOENA WAS NOT MADE PURSUANT  TO  RULE  FIFTY-TWO  HUNDRED
   36  TWENTY-FOUR  OF  THE  CIVIL  PRACTICE  LAW  AND RULES, THAT THE REQUIRED
   37  RECORD FOR SUCH INFORMATION SUBPOENA  WAS  NOT  MAINTAINED  PURSUANT  TO
   38  SUBDIVISION  TEN OF SECTION SIX HUNDRED ONE OF THIS ARTICLE, OR THAT THE
   39  SPECIFIC GROUNDS FOR THE CERTIFICATION REQUIRED TO ACCOMPANY SUCH INFOR-
   40  MATION SUBPOENA PURSUANT TO RULE FIFTY-TWO HUNDRED  TWENTY-FOUR  OF  THE
   41  CIVIL PRACTICE LAW AND RULES WERE NOT REASONABLE. A SUCCESSFUL PLAINTIFF
   42  MAY ALSO BE AWARDED COURT COSTS AND ATTORNEY FEES.
   43    S  4.  This  act shall take effect on the thirtieth day after it shall
   44  have become a law and shall apply to information subpoenas served on  or
   45  after such date.
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