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.