Bill Text: NY A07552 | 2013-2014 | General Assembly | Introduced

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Bill Title: Authorizes the chief administrator of the courts to establish rules for special proceedings authorized under section 9-518 of the uniform commercial code relating to wrongful financial statements.

Spectrum: Partisan Bill (Democrat 1-0)

Status: (Introduced - Dead) 2014-01-17 - enacting clause stricken [A07552 Detail]

Download: New_York-2013-A07552-Introduced.html

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                           S T A T E   O F   N E W   Y O R K
       ________________________________________________________________________
                                         7552
                              2013-2014 Regular Sessions
                                 I N  A S S E M B L Y
                                     May 23, 2013
                                      ___________
       Introduced  by  M. of A. WEINSTEIN -- (at request of the Office of Court
         Administration) -- read once and referred to the Committee on  Judici-
         ary
       AN ACT to amend the civil practice law and rules, the judiciary law, the
         penal  law  and  the  uniform commercial code, in relation to wrongful
         financing statements filed under the uniform commercial code
         THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
       BLY, DO ENACT AS FOLLOWS:
    1    Section  1.  Subdivision  (c) of section 403 of the civil practice law
    2  and rules is amended to read as follows:
    3    (c) Manner of service. A notice of petition shall  be  served  in  the
    4  same  manner  as a summons in an action EXCEPT THAT A NOTICE OF PETITION
    5  IN A SPECIAL PROCEEDING BROUGHT PURSUANT TO PARAGRAPH ONE OF SUBDIVISION
    6  (D) OF SECTION 9-518 OF THE UNIFORM COMMERCIAL CODE SHALL BE  SERVED  BY
    7  MAILING  IT BY FIRST CLASS MAIL TO THE PERSON TO BE SERVED AT HIS OR HER
    8  LAST KNOWN RESIDENCE, PROOF OF SUCH SERVICE  SHALL  BE  FILED  WITH  THE
    9  CLERK  OF  THE  COURT DESIGNATED IN THE NOTICE OF PETITION WITHIN TWENTY
   10  DAYS OF SUCH MAILING AND SERVICE SHALL BE COMPLETE FIVE DAYS AFTER  SUCH
   11  FILING.
   12    S  2.  Subdivision 2 of section 212 of the judiciary law is amended by
   13  adding a new paragraph (s) to read as follows:
   14    (S) ESTABLISH RULES FOR SPECIAL PROCEEDINGS AUTHORIZED BY  SUBDIVISION
   15  (D)  OF  SECTION  9-518  OF  THE UNIFORM COMMERCIAL CODE. SUCH RULES MAY
   16  AUTHORIZE THE COURT IN WHICH SUCH A SPECIAL  PROCEEDING  IS  PENDING  TO
   17  ORDER A REFEREE TO HEAR AND DETERMINE SUCH SPECIAL PROCEEDING.
   18    S  3.  The penal law is amended by adding a new section 175.37 to read
   19  as follows:
   20  S 175.37 OFFERING A FALSE INSTRUMENT FOR FILING IN RETALIATION  FOR  THE
   21             PERFORMANCE OF OFFICIAL DUTIES.
   22    A PERSON IS GUILTY OF OFFERING A FALSE INSTRUMENT FOR FILING IN RETAL-
   23  IATION FOR THE PERFORMANCE OF OFFICIAL DUTIES WHEN HE OR SHE COMMITS THE
        EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                             [ ] is old law to be omitted.
                                                                  LBD08971-01-3
       A. 7552                             2
    1  OFFENSE  OF  OFFERING A FALSE INSTRUMENT FOR FILING IN THE SECOND DEGREE
    2  AND:
    3    1.  SUCH INSTRUMENT IS A FINANCING STATEMENT THE CONTENTS OF WHICH ARE
    4  PRESCRIBED BY SECTION 9-502 OF THE UNIFORM COMMERCIAL CODE; AND
    5    2. THE COLLATERAL COVERED IN SUCH FINANCING STATEMENT IS THE  PROPERTY
    6  OF  A  PUBLIC  SERVANT  WHO  IS  A  STATE OR LOCAL OFFICER AS DEFINED BY
    7  SECTION TWO OF THE PUBLIC OFFICERS LAW OR WHO OTHERWISE IS  A  JUDGE  OR
    8  JUSTICE OF THE UNIFIED COURT SYSTEM; AND
    9    3.  IT  IS ON ACCOUNT OF THAT PUBLIC SERVANT'S PERFORMANCE OF OFFICIAL
   10  DUTIES IN HIS OR HER CAPACITY AS A STATE OR LOCAL OFFICER  OR  JUDGE  OR
   11  JUSTICE  OF  THE  UNIFIED COURT SYSTEM THAT SUCH FINANCING INSTRUMENT IS
   12  FILED.
   13    OFFERING A FALSE INSTRUMENT FOR FILING IN RETALIATION FOR THE PERFORM-
   14  ANCE OF OFFICIAL DUTIES IS A CLASS D FELONY.
   15    S 4. Section 9-518 of the uniform commercial code is amended by adding
   16  a new subdivision (d) to read as follows:
   17    (D) SPECIAL PROCEEDING TO REDACT OR  EXPUNGE  A  WRONGFULLY  FILED  OR
   18  AMENDED  FINANCING STATEMENT.   (1) PROVIDED HE OR SHE IS AN EMPLOYEE OF
   19  THE STATE OR A POLITICAL SUBDIVISION THEREOF, A PERSON IDENTIFIED  AS  A
   20  DEBTOR IN A FINANCING STATEMENT FILED PURSUANT TO THIS SUBPART MAY BRING
   21  A  SPECIAL  PROCEEDING AGAINST THE FILER OF SUCH STATEMENT OR ANY AMEND-
   22  MENT THEREOF, OR AGAINST THE PERSON ON WHOSE BEHALF  THE  STATEMENT  WAS
   23  FILED  OR  AMENDED,  TO INVALIDATE THE FILING OR AMENDMENT THEREOF WHERE
   24  SUCH STATEMENT WAS WRONGFULLY FILED OR AMENDED. SUCH SPECIAL  PROCEEDING
   25  SHALL  BE  GOVERNED BY ARTICLE FOUR OF THE CIVIL PRACTICE LAW AND RULES,
   26  AND SHALL BE COMMENCED IN THE SUPREME COURT OF ALBANY COUNTY, THE COUNTY
   27  OF THE PETITIONER'S RESIDENCE OR A COUNTY WITHIN THE  JUDICIAL  DISTRICT
   28  IN  WHICH ANY PROPERTY COVERED BY THE FINANCING STATEMENT IS LOCATED. NO
   29  FEE PURSUANT TO ARTICLE EIGHTY OF THE CIVIL PRACTICE LAW AND RULES SHALL
   30  BE COLLECTED IN SUCH SPECIAL PROCEEDING.
   31    (2) THE PETITION IN A SPECIAL PROCEEDING HEREUNDER SHALL PLEAD THAT:
   32    (A) THE FINANCING STATEMENT FILED OR AMENDED BY THE RESPONDENT  PURSU-
   33  ANT TO SECTION 9-509 WAS WRONGFULLY FILED OR AMENDED;
   34    (B)  SUCH  FINANCING  STATEMENT  DOES  NOT  RELATE TO AN INTEREST IN A
   35  CONSUMER-GOODS TRANSACTION OR ANY OTHER COMMERCIAL  TRANSACTION  BETWEEN
   36  THE PETITIONER AND THE RESPONDENT;
   37    (C)  IT  IS  ON  ACCOUNT  OF  THE PETITIONER'S PERFORMANCE OF OFFICIAL
   38  DUTIES IN HIS OR HER CAPACITY AS AN EMPLOYEE OF THE STATE OR A POLITICAL
   39  SUBDIVISION THEREOF THAT SUCH FINANCING INSTRUMENT WAS FILED; AND
   40    (D) PROMPT REDACTION OR INVALIDATION OF  THE  FINANCING  STATEMENT  IS
   41  NECESSARY  TO  AVERT  OR  MITIGATE PREJUDICE TO THE PETITIONER OR TO THE
   42  ADMINISTRATION OF GOVERNMENT.
   43    (3) IF THE COURT DETERMINES THAT THE RESPONDENT  WRONGFULLY  FILED  OR
   44  AMENDED, OR CAUSED TO BE WRONGFULLY FILED OR AMENDED, A FINANCING STATE-
   45  MENT PURSUANT TO SECTION 9-509, THE COURT SHALL ORDER THE EXPUNGEMENT OF
   46  SUCH  STATEMENT  OR ITS REDACTION IN THE PUBLIC RECORDS IN THE OFFICE IN
   47  WHICH SUCH STATEMENT IS FILED, AS APPROPRIATE, AND MAY GRANT  ANY  ADDI-
   48  TIONAL RELIEF AUTHORIZED BY SECTION 9-625. IN SUCH CASE, THE COURT SHALL
   49  CAUSE  A  COPY  OF  ITS ORDER TO BE FILED WITH THE SECRETARY OF STATE OR
   50  OTHER APPROPRIATE FILING OFFICE PURSUANT TO THIS  CHAPTER.    THE  COURT
   51  ALSO  MAY  ENJOIN  THE  RESPONDENT  FROM  FILING OR AMENDING ANY FURTHER
   52  FINANCING STATEMENT PURSUANT TO THIS ARTICLE WITHOUT LEAVE OF THE COURT.
   53  IF THE RESPONDENT IS INCARCERATED AT THE TIME THE COURT ISSUES AN  ORDER
   54  CONTAINING  SUCH  AN  INJUNCTION,  THE COURT SHALL CAUSE THE HEAD OF THE
   55  CORRECTIONAL FACILITY IN WHICH THE RESPONDENT IS INCARCERATED TO RECEIVE
   56  A COPY OF SUCH DETERMINATION.
       A. 7552                             3
    1    (4) FOR PURPOSES OF THIS SUBDIVISION, A FINANCING STATEMENT IS  WRONG-
    2  FULLY FILED OR AMENDED WHERE, AT THE TIME OF ITS FILING OR AMENDMENT, IT
    3  CONTAINS A FALSE STATEMENT OR FALSE INFORMATION.
    4    S  5.  This  act  shall  take  effect  immediately;  provided that the
    5  provisions of section three of this act shall not take effect until  the
    6  first  of November next succeeding the date on which this act shall have
    7  become a law; provided, further, subdivision 2 of section 175.35 of  the
    8  penal  law, as added by section three of this act, shall apply solely to
    9  the filing or amendment of financing statements under subpart 1 of  part
   10  5 of article 9 of the uniform commercial code on or after such effective
   11  date.