New York State - Judiciary - JUD - Article 4

ARTICLE 4 APPELLATE DIVISION
Section 70. Judicial departments.
71. Designations by governor of justices of appellate division.
72. Revocation of designation of justice of appellate division.
75. Location of appellate court in each department.
76. Appellate division may compel sheriff to attend to room in which court is held.
77. Courthouse of appellate division in first department.
78. Justices of appellate division in first department may make rules for management of law libraries and court-houses of appellate division and supreme court.
79. Appointment of terms of appellate division in each department.
80. Time for appointment of terms of appellate division in the first department.
81. Associate justice of appellate division to preside in absence of presiding justice.
82. Quorum and number necessary to a sitting and decision of appellate division.
85. Power of appellate division as to calendars and administration of justice.
86. Designation by appellate division of special and trial terms of the supreme court.
88. Designation by presiding justice of appellate division of justice to hold term of supreme court.
89. Disposition of records, books and papers; rules.
90. Admission to and removal from practice by appellate division; character committees.
91. Designation and compensation of papers in first, second, tenth and eleventh judicial districts for publication of calendars and notices.
92. General powers conferred upon presiding justice and appellate division in first department.
93. Appointment of clerks and deputy clerks of the appellate divisions.
94. Appointment of clerical and other assistants of appellate division in first department.
95. Appointment of clerical and other assistants of appellate division in second department.
97. Appointment of consultation clerks in third and fourth departments.
98. Appointment of confidential stenographer and assistant deputy clerk in third and fourth judicial departments.
99. Appointment of attendants by justices of the appellate division.
99-a. Appointment of employees of appellate divisions in the third and fourth departments.
100. Power of justices of appellate division of first department to appoint confidential clerk of the appellate term.
101. Power of justices of appellate division of second department to appoint clerical and other personnel of the appellate term.
102. Power of justices of appellate division in first department to appoint special deputy clerks for each part or term of the supreme court in the first judicial district.
103. Power of justices of appellate division in first department to designate supreme court jury clerk.
104. Power of justices of appellate division in first department to appoint stenographers for the supreme court.
105. Power of justices of appellate division in first department to appoint typists.
106. Power of justices of appellate division in first department to appoint interpreters for supreme court.
107. Power of justices of appellate division in first department to regulate attendance and duties of officers of supreme court in first district.
108. Retirement of officers and employees by the justices of the appellate division, first department.
109. Appointment of a calendar clerk in the ninth judicial district.
§ 70. Judicial departments. The state is hereby divided into four judicial departments. The first department shall consist of the counties embraced within the first and twelfth judicial districts; the second department shall consist of the counties embraced within the second, ninth, tenth, eleventh and thirteenth judicial districts; the third department shall consist of the counties embraced within the third, fourth and sixth judicial districts; the fourth department shall consist of the counties embraced within the fifth, seventh and eighth judicial districts.
§ 71. Designations by governor of justices of appellate division. From all the justices elected to the supreme court the governor shall designate those who shall constitute the appellate division in each department, and he shall designate the presiding justice thereof, who shall act as such during his term of office, and shall be a resident of the department. The other justices shall be designated for terms of five years, or the unexpired portions of their respective terms of office, if less than five years. From time to time, as the terms of such designations expire, or vacancies occur, the governor shall make new designations. He may also, on request of any appellate division, make temporary designations in case of the absence or inability to act of any justice in such appellate division, for service during such absence or inability to act. In case any appellate division shall certify to the governor that one or more additional justices are needed for the speedy disposition of the business before it, the governor may designate an additional justice or justices; but when the need for such additional justice or justices shall no longer exist, the appellate division shall so certify to the governor and thereupon service under such designation or designations shall cease. A majority of the justices designated to sit in any appellate division shall at all times be residents of the department. A designation of a justice of the appellate division of the supreme court must be in writing, and filed in the office of court administration.
§ 72. Revocation of designation of justice of appellate division. Upon the written request of a justice designated for the appellate division, the governor may revoke his designation by an order to be filed in the office of court administration. Where such designation is revoked, the governor may prescribe the duties to be performed by such justice in holding court in any part of the state, from the time of such revocation until the taking effect of the next appointment of terms, as prescribed in this chapter, for the judicial department in which such justice resides.
§ 75. Location of appellate court in each department. The appellate court shall be located, respectively, in the first department, in the county of New York; in the second department, in the borough of Brooklyn; in the third department, in the city of Albany; and in the fourth department, in city of Rochester; but terms thereof may be held elsewhere in such departments, whenever in the discretion of the justices thereof, respectively, public interests may require.
§ 76. Appellate division may compel sheriff to attend to room in which court is held. The appellate division of the supreme court may enforce the performance of the duty by the sheriff of causing the room in which a term of the appellate division is held, to be properly heated, ventilated, lighted, and kept comfortably clean and in order.
§ 77. Courthouse of appellate division in first department. The building erected under chapter one hundred ninety-six of the laws of eighteen hundred ninety-seven is hereby constituted the courthouse of the appellate division of the supreme court in the first department, and shall be under the control and supervision of the justices thereof. Such justices are hereby authorized to appoint a custodian of such building, who shall be janitor thereof, and such engineers, cleaners and other persons as in their opinion shall be necessary for the preservation, safety and care thereof. The custodian of such building shall, under the direction of such justices have general charge thereof and of the records, books and papers therein, so far as may be necessary to preserve and protect the same, and shall be responsible to them for the preservation thereof, and shall, with the approval in writing of such justices or a majority of them, purchase the supplies necessary for the maintenance of the building, and for lighting, heating and keeping such building and furniture therein in repair and with the approval of such justices make necessary contracts therefor. The engineers, cleaners and other persons who shall be appointed pursuant to this section, other than the custodian of such building, shall be selected by such justices in pursuance of such rules as may from time to time be prescribed in regard thereto by the state civil service commission. The compensation to be paid to the custodian, engineer, cleaners and other persons appointed pursuant to this section shall be fixed by the justices of the appellate division of the supreme court in the first department, and shall, together with the amount to be paid for the supplies furnished for the maintenance of such building and for lighting, heating and keeping such building and the furniture therein in repair, be a county charge, and shall be paid by the comptroller of the city of New York upon the certificate of the presiding justice thereof or a majority of the justices assigned to such appellate division.
§ 78. Justices of appellate division in first department may make rules for management of law libraries and court-houses of appellate division and supreme court. The justices of the appellate division in the first department shall from time to time make such rules as they may deem necessary for the management and protection of the law libraries and for the protection and management of the court-houses and court-rooms of the appellate division and of the supreme court.
§ 79. Appointment of terms of appellate division in each department. The terms of the appellate divisions of the supreme court are to be appointed by the appellate division in each department, and are to be held at such times and places and shall continue as long as the appellate division deems proper.
An appointment of a term or terms of an appellate division must be made and filed in the office of court administration at least thirty days before the commencement of such term or terms. The governor may, when in his opinion the public interest so requires, appoint one or more extraordinary terms of the appellate division of the supreme court in any department. He must designate the time and place of holding the same and he must give notice of the appointment in such manner as, in his judgment, the public interest requires.
§ 80. Time for appointment of terms of appellate division in the first department. The justices of the appellate division in the first department shall fix a time and place for holding the terms of the appellate division in the first department on or before the first day of December in each year.
§ 81. Associate justice of appellate division to preside in absence of presiding justice. If the presiding justice is not present at the sitting of the appellate division, the associate justice presiding in the department having served the longest time as such, or, if two are present who have served the same length of time, the elder of them must act as presiding justice until a presiding justice attends.
§ 82. Quorum and number necessary to a sitting and decision of appellate division. No more than five justices of the appellate division in any department shall sit in any case. In each department four of the justices shall constitute a quorum, and the concurrence of three shall be necessary to a decision. If three justices do not concur in a decision, a reargument must be ordered.
§ 85. Power of appellate division as to calendars and administration of justice. The appellate division of each department may provide by rule for the manner of making up calendars in each county embraced within the department; for the classification, for the purposes of trial, of actions placed upon such calendars and for the making up of two or more calendars within such classification; for the continuance on such calendars, from term to term, of actions for which notes of issue have been once served and filed, without a second or further serving and filing thereof; and also from time to time may provide rules as it may deem necessary generally to promote the efficient transaction of business and the orderly administration of justice therein.
§ 86. Designation by appellate division of special and trial terms of the supreme court. The justices of the appellate division in each department shall have power to fix the times and places for holding special and trial terms of the supreme court held therein, and to assign the justices in the departments to hold such terms; or make rules therefor; and may from time to time make additional appointments and designations, or change or alter those already made.
The justices of the appellate division in the first department shall from time to time as they may deem necessary fix a time and place in the first judicial district for holding special terms for condemnation proceedings affecting property in the city of New York located within the counties of New York and Bronx and assign the justices to hold the same. The justices of the appellate division in the second department shall from time to time as they may deem necessary fix a time and place in the second judicial district for holding special terms for condemnation proceedings affecting property in the city of New York located within such district; and in the eleventh judicial district for such proceeding affecting property in such city located within the county of Queens, and assign the justices to hold the same. The assignment of any justice to hold a special term for condemnation proceedings shall not have the effect of revoking his assignments to other parts or terms of the supreme court and when not actually engaged in holding such special term he shall hold such other parts or terms of the court to which he has been or may be assigned. Any designation or assignment to service in the said special term for condemnation proceedings may at any time be revoked by the appellate division so designating.
§ 88. Designation by presiding justice of appellate division of justice to hold term of supreme court. If it appear to the satisfaction of the presiding justice of the appellate division in any department that a special or trial term of the supreme court duly appointed therein is in danger of failing, he may designate a justice who resides in that department to hold such term in the absence of the justice assigned thereto. If in the opinion of such presiding justice it is not practicable to make a designation from his department, he shall so inform the governor who may thereupon designate for such term a justice from any department.
§ 89. Disposition of records, books and papers; rules. 1. Notwithstanding any other provisions of law except as hereinafter provided, the chief administrator of the courts, with the advice and consent of the administrative board of the courts, shall adopt rules providing for the retention and disposition of records in all courts and agencies of the unified court system, including records of commissioners of jurors. Such rules shall provide, among other things, that, unless a permanent record by microphotography or other method of microimaging first is made and permanently retained, judgment rolls and other records, books and papers that affect the mental illness or the sanity or competency of any person shall be retained for at least fifty years; and that the judgment rolls and other records, books and papers that affect the marital rights or status or the custody or lineage of any person and judgment rolls regardless of their age that affect title to real property shall be retained permanently.
2. Notwithstanding any other provisions of law, the justices of the appellate division of the supreme court in each judicial department may on application of the district attorney of any county within its judicial department, direct, by order, that the district attorney destroy, sell or otherwise dispose of or cause to be destroyed, sold or otherwise disposed of any records, books or papers in the care, custody or control of the district attorney which are more than twenty-five years old and are no longer in current use, the retention of which in the opinion of the justices of the appellate division would serve no legal, practical or useful purpose, except permanent records of criminal cases, printed and bound volumes of cases on appeal and original indictments. The justices of the appellate division as a condition of such disposition may require the written consent of any state or local department or agency having an interest in such records, books or papers.
§ 90. Admission to and removal from practice by appellate division; character committees. 1. a. Upon the state board of law examiners certifying that a person has passed the required examination, or that the examination has been dispensed with, the appellate division of the supreme court in the department to which such person shall have been certified by the state board of law examiners, if it shall be satisfied that such person possesses the character and general fitness requisite for an attorney and counsellor-at-law and has satisfied the requirements of section 3-503 of the general obligations law, shall admit him to practice as such attorney and counsellor-at-law in all the courts of this state, provided that he has in all respects complied with the rules of the court of appeals and the rules of the appellate divisions relating to the admission of attorneys.
b. Upon the application, pursuant to the rules of the court of appeals, of any person who has been admitted to practice law in another state or territory or the District of Columbia of the United States or in a foreign country, to be admitted to practice as an attorney and counsellor-at-law in the courts of this state without taking the regular bar examination, the appellate division of the supreme court, if it shall be satisfied that such person is currently admitted to the bar in such other jurisdiction or jurisdictions, that at least one such jurisdiction in which he is so admitted would similarly admit an attorney or counsellor-at-law admitted to practice in New York state to its bar without examination and that such person possesses the character and general fitness requisite for an attorney and counsellor-at-law and has satisfied the requirements of section 3-503 of the general obligations law, shall admit him to practice as such attorney and counsellor-at-law in all the courts of this state, provided, that he has in all respects complied with the rules of the court of appeals and the rules of the appellate divisions relating to the admission of attorneys. Such application, which shall conform to the requirements of section 3-503 of the general obligations law, shall be submitted to the appellate division of the supreme court in the department specified in the rules of the court of appeals.
c. The members of the committee appointed by the appellate division in each department to investigate the character and fitness of applicants for admission to the bar, shall be entitled to their necessary traveling, hotel and other expenses, incurred in the performance of their duties, payable by the state out of moneys appropriated therefor, upon certificate of the presiding justice of the appellate division by which such committee is appointed.
d. The committee on character and fitness appointed by the appellate division of the supreme court in the first judicial department and the committee on character and fitness appointed by the appellate division of the supreme court of the second judicial department, may each, with the written consent of the justices of each of such appellate divisions or a majority of such justices, acting for their respective appellate divisions, from time to time, appoint and remove a secretary, stenographers and assistants, and procure a suitable office for each committee, properly furnished and equipped and all books, stationery, blanks, postal cards, expressage and postage stamps as shall be required for the proper performance of the duties of each such committee.
e. The salaries of such secretary, stenographers and assistants shall be fixed for each department by the justices of the appellate division in each department or a majority of them in each department.
f. The salaries of such secretary, stenographers and assistants and the necessary expenses under the terms of this act in the first judicial department, shall, in the said first judicial department, be paid by the comptroller of the city of New York.
g. The salaries of such secretary, stenographers and assistants and the necessary expenses under the terms of this act in the second judicial department shall be certified by the presiding justice of such department to the state comptroller who shall audit the same. The state department of taxation and finance shall pay such salaries and expenses and shall apportion the same among the counties comprising the second judicial department. Such counties shall reimburse the state for such compensation. The time and method of such apportionment and the time and method of such reimbursement shall be as specified in section seventy-four of this chapter.
2. The supreme court shall have power and control over attorneys and counsellors-at-law and all persons practicing or assuming to practice law, and the appellate division of the supreme court in each department is authorized to censure, suspend from practice or remove from office any attorney and counsellor-at-law admitted to practice who is guilty of professional misconduct, malpractice, fraud, deceit, crime or misdemeanor, or any conduct prejudicial to the administration of justice; and the appellate division of the supreme court is hereby authorized to revoke such admission for any misrepresentation or suppression of any information in connection with the application for admission to practice.
It shall be the duty of the appellate division to insert in each order of suspension or removal hereafter rendered a provision which shall command the attorney and counsellor-at-law thereafter to desist and refrain from the practice of law in any form, either as principal or as agent, clerk or employee of another. In addition it shall forbid the performance of any of the following acts, to wit:
a. The appearance as an attorney or counsellor-at-law before any court, judge, justice, board, commission or other public authority.
b. The giving to another of an opinion as to the law or its application, or of any advice in relation thereto.
In case of suspension only, the order may limit the command to the period of time within which such suspension shall continue, and if justice so requires may further limit the scope thereof.
If an attorney and counsellor-at-law has been heretofore removed from office, the appellate division shall upon application of any attorney and counsellor-at-law, or of any incorporated bar association, and upon such notice to the respondent as may be required, amend the order of removal by adding thereto as a part thereof, provisions similar to those required to be inserted in orders hereafter made.
If a certified copy of such order or of such amended order, be served upon the attorney and counsellor-at-law suspended or removed from office, a violation thereof may be punished as a contempt of court.
2-a. a. The provisions of this subdivision shall apply in all cases of an attorney licensed, registered or admitted to practice in this state who has failed after receiving appropriate notice, to comply with a summons, subpoena or warrant relating to a paternity or child support proceeding involving him or her personally, or who is in arrears in payment of child support or combined child and spousal support which matter shall be referred to the appropriate appellate division by a court pursuant to the requirements of section two hundred forty-four-c of the domestic relations law or pursuant to section four hundred fifty-eight-b or five hundred forty-eight-b of the family court act.
b. Upon receipt of an order from the court based on arrears in payment of child support or combined child and spousal support pursuant to one of the foregoing provisions of law, the appropriate appellate division within thirty days of receipt of such order, if it finds such person to be so licensed, registered or admitted, shall provide notice to such attorney of, and initiate, a hearing which shall be held by it at least twenty days and no more than thirty days after the sending of such notice to the attorney. The hearing shall be held solely for the purpose of determining whether there exists as of the date of the hearing proof that full payment of all arrears of support established by the order of the court to be due from the licensed, registered or admitted attorney have been paid. Proof of such payment shall be a certified check showing full payment of established arrears or a notice issued by the court or the support collection unit where the order is payable to the support collection unit designated by the appropriate social services district. Such notice shall state that full payment of all arrears of support established by the order of the court to be due have been paid. The licensed attorney shall be given full opportunity to present such proof of payment at the hearing in person or by counsel. The only issue to be determined as a result of the hearing is whether the arrears have been paid. No evidence with respect to the appropriateness of the court order or ability of the respondent party in arrears to comply with such order shall be received or considered by the disciplinary committee.
c. Upon receipt of an order from the court based on failure to comply with a summons, subpoena, or warrant relating to a paternity or child support proceeding, the appropriate appellate division within thirty days of receipt of such order, if it finds such person to be so licensed, registered or admitted, shall provide notice to such attorney that his or her license shall be suspended within sixty days of such notice to the attorney unless the conditions in paragraph e of this section are met.
d. Notwithstanding any inconsistent provision of this section or of any other provision of law to the contrary, the license to practice law in this state of an attorney admitted to practice shall be suspended by the appellate division if, at the hearing provided for by paragraph b of this subdivision, the licensed attorney fails to present proof of payments as required by such subdivision. Such suspension shall not be lifted unless the original court or the support collection unit, where the court order is payable to the support collection unit designated by the appropriate social services district, issues notice to the appellate division that full payment of all arrears of support established by the order of the original court to be due have been paid.
e. Notwithstanding any inconsistent provision of this section or of any other provision of law to the contrary, the license of an attorney admitted to practice law in this state shall be suspended by the appellate division, in accordance with paragraph c of this subdivision unless the court terminates its order to commence suspension proceedings. Such suspension shall not be lifted unless the court issues an order to the appellate division terminating its order to commence suspension proceedings.
f. The appellate division shall inform the original court of all actions taken hereunder.
g. This subdivision two-a applies to paternity and child support proceedings commenced under, and support obligations paid pursuant to any order of child support or child and spousal support issued under provisions of section two hundred thirty-six or two hundred forty of the domestic relations law, or article four, five, five-A or five-B of the family court act.
h. Notwithstanding any inconsistent provision of this section or of any other provision of law to the contrary, the provisions of this subdivision two-a shall apply to the exclusion of any other requirements of this section and to the exclusion of any other requirement of law to the contrary.
3. The suspension or removal of an attorney or counsellor-at-law, by the appellate division of the supreme court, operates as a suspension or removal in every court of the state.
4. a. Any person being an attorney and counsellor-at-law who shall be convicted of a felony as defined in paragraph e of this subdivision, shall upon such conviction, cease to be an attorney and counsellor-at-law, or to be competent to practice law as such.
b. Whenever any attorney and counsellor-at-law shall be convicted of a felony as defined in paragraph e of this subdivision, there may be presented to the appellate division of the supreme court a certified or exemplified copy of the judgment of such conviction, and thereupon the name of the person so convicted shall, by order of the court, be struck from the roll of attorneys.
c. Whenever an attorney shall be convicted of a crime in a court of the United States or of any state, territory or district, including this state, whether by a plea of guilty or nolo contendere or from a verdict after trial or otherwise, the attorney shall file, within thirty days thereafter, with the appellate division of the supreme court, the record of such conviction.
The failure of the attorney to so file shall be deemed professional misconduct provided, however, that the appellate division may upon application of the attorney, grant an extension upon good cause shown.
d. For purposes of this subdivision, the term serious crime shall mean any criminal offense denominated a felony under the laws of any state, district or territory or of the United States which does not constitute a felony under the laws of this state, and any other crime a necessary element of which, as determined by statutory or common law definition of such crime, includes interference with the administration of justice, false swearing, misrepresentation, fraud, willful failure to file income tax returns, deceit, bribery, extortion, misappropriation, theft, or an attempt or conspiracy or solicitation of another to commit a serious crime.
e. For purposes of this subdivision, the term felony shall mean any criminal offense classified as a felony under the laws of this state or any criminal offense committed in any other state, district, or territory of the United States and classified as a felony therein which if committed within this state, would constitute a felony in this state.
f. Any attorney and counsellor-at-law convicted of a serious crime, as defined in paragraph d of this subdivision, whether by plea of guilty or nolo contendere or from a verdict after trial or otherwise, shall be suspended upon the receipt by the appellate division of the supreme court of the record of such conviction until a final order is made pursuant to paragraph g of this subdivision.
Upon good cause shown the appellate division of the supreme court may, upon application of the attorney or on its own motion, set aside such suspension when it appears consistent with the maintenance of the integrity and honor of the profession, the protection of the public and the interest of justice.
g. Upon a judgment of conviction against an attorney becoming final the appellate division of the supreme court shall order the attorney to show cause why a final order of suspension, censure or removal from office should not be made.
h. If the attorney requests a hearing, the appellate division of the supreme court shall refer the proceeding to a referee, justice or judge appointed by the appellate division for hearing, report and recommendation.
After said hearing, the appellate division may impose such discipline as it deems proper under the facts and circumstances.
5. a. If such removal or debarment was based upon conviction for a serious crime or upon a felony conviction as defined in subdivision four of this section, and such felony conviction was subsequently reversed or pardoned by the president of the United States, or governor of this or another state of the United States, the appellate division shall have power to vacate or modify such order or debarment, provided, however, that if such attorney or counsellor-at-law has been removed from practice in another jurisdiction, a pardon in said jurisdiction shall not be a basis for application for re-admission in this jurisdiction unless he shall have been readmitted in the jurisdiction where pardoned.
b. If such removal or debarment was based upon conviction for a felony as defined in subdivision four of this section, the appellate division shall have power to vacate or modify such order or debarment after a period of seven years provided that such person has not been convicted of a crime during such seven-year period.
c. An attorney and counsellor-at-law who has been convicted of a felony without the state and whose name has been struck from the roll of attorneys prior to July thirteenth, nineteen hundred seventy-nine by virtue of the provisions of subdivision four of this section may, if he alleges that such felony committed without the state would not constitute a felony if committed within the state, petition the appellate division to vacate or modify such debarment. If the appellate division finds that the felony of which the attorney and counsellor-at-law has been convicted without the state would not constitute a felony if committed within the state, it shall grant a hearing and may retroactively vacate or modify such debarment and impose such discipline as it deems just and proper under the facts and circumstances.
The attorney and counsellor-at-law shall petition for reinstatement by filing in the appellate division a copy of the order of removal together with a request for a hearing pursuant to the provisions of this paragraph. Upon such application, the order of removal shall be deemed an order of suspension for the purposes of a proceeding pursuant to this paragraph.
6. Before an attorney or counsellor-at-law is suspended or removed as prescribed in this section, a copy of the charges against him must be delivered to him personally within or without the state or, in case it is established to the satisfaction of the presiding justice of the appellate division of the supreme court to which the charges have been presented, that he cannot with due diligence be served personally, the same may be served upon him by mail, publication or otherwise as the said presiding justice may direct, and he must be allowed an opportunity of being heard in his defense. In all cases where the charges are served in any manner other than personally, and the attorney and counsellor-at-law so served does not appear, an application may be made by such attorney or in his behalf to the presiding justice of the appellate division of the supreme court to whom the charges were presented at any time within one year after the rendition of the judgment, or final order of suspension or removal, and upon good cause shown and upon such terms as may be deemed just by such presiding justice, such attorney and counsellor-at-law must be allowed to defend himself against such charges.
The justices of the appellate division in any judicial department, or a majority of them, may make an order directing the expenses of any disciplinary proceedings, and the necessary costs and disbursements of the petitioner in prosecuting such charges, including the expense of any preliminary investigation in relation to professional conduct of an attorney and counsellor-at-law, to be paid out of funds appropriated to the office of court administration for that purpose.
6-a. a. Where the appellate division of supreme court orders the censure, suspension from practice or removal from office of an attorney or counsellor-at-law following disciplinary proceedings at which it found, based upon a preponderance of the legally admissible evidence, that such attorney or counsellor-at-law wilfully misappropriated or misapplied money or property in the practice of law, its order may require him or her to make monetary restitution in accordance with this subdivision. Its order also may require that he or she reimburse the lawyers' fund for client protection of the state of New York for awards made to the person whose money or property was wilfully misappropriated or misapplied.
b. Monetary restitution, as authorized hereunder, shall be made to the person whose money or property was wilfully misappropriated or misapplied and shall be for the amount or value of such money or property, as found in the disciplinary proceedings. In the event that such person dies prior to completion of such restitution, any amount remaining to be paid shall be paid to the estate of the deceased.
c. Any payment made as restitution pursuant to this subdivision shall not limit, preclude or impair any liability for damages in any civil action or proceeding for an amount in excess of such payment; nor shall any order of the appellate division made hereunder deprive a criminal court of any authority pursuant to article sixty of the penal law.
d. An order issued pursuant to this subdivision may be entered as a civil judgment. Such judgment shall be enforceable as a money judgment in any court of competent jurisdiction by any person to whom payments are due thereunder, or by the lawyers' fund for client protection where it has been subrogated to the rights of such person.
e. Where an attorney or counsellor-at-law is permitted to resign from office, the appellate division may, if appropriate, issue an order as provided herein requiring him or her to make payments specified by this subdivision.
f. Notwithstanding any other provision of this subdivision, no order may be issued hereunder unless the person required to make payments under such order first is given an opportunity to be heard in opposition thereto.
7. In addition to the duties prescribed by section seven hundred of the county law, it shall be the duty of any district attorney within a department, when so designated by the justices of the appellate division of the supreme court in such department, or a majority of them, to prosecute all proceedings for the removal or suspension of attorneys and counsellors-at-law or the said justices, or a majority of them may appoint any attorney and counsellor-at-law to conduct a preliminary investigation and to prosecute any disciplinary proceedings and, during or upon the termination of the investigation or proceedings, may fix the compensation to be paid to such attorney and counsellor-at-law for the services rendered, which compensation shall be a charge against the county specified in his certificate and shall be paid thereon.
8. Any petitioner or respondent in a disciplinary proceeding against an attorney or counsellor-at-law under this section, including a bar association or any other corporation or association, shall have the right to appeal to the court of appeals from a final order of any appellate division in such proceeding upon questions of law involved therein, subject to the limitations prescribed by section three of article six of the constitution of this state.
9. No objection shall be taken to the appointment of any member of the bar to act as referee or judge in a disciplinary proceeding under this section on the ground that he is a member of a bar association or other corporation or association which is the petitioner therein.
10. Any statute or rule to the contrary notwithstanding, all papers, records and documents upon the application or examination of any person for admission as an attorney and counsellor at law and upon any complaint, inquiry, investigation or proceeding relating to the conduct or discipline of an attorney or attorneys, shall be sealed and be deemed private and confidential. However, upon good cause being shown, the justices of the appellate division having jurisdiction are empowered, in their discretion, by written order, to permit to be divulged all or any part of such papers, records and documents. In the discretion of the presiding or acting presiding justice of said appellate division, such order may be made either without notice to the persons or attorneys to be affected thereby or upon such notice to them as he may direct. In furtherance of the purpose of this subdivision, said justices are also empowered, in their discretion, from time to time to make such rules as they may deem necessary. Without regard to the foregoing, in the event that charges are sustained by the justices of the appellate division having jurisdiction in any complaint, investigation or proceeding relating to the conduct or discipline of any attorney, the records and documents in relation thereto shall be deemed public records.
§ 91. Designation and compensation of papers in first, second, tenth and eleventh judicial districts for publication of calendars and notices. 1. The justices of the appellate division in the first department, or a majority of them, shall be vested with and exercise from time to time the power to designate a daily law journal, published in the first judicial department, in which shall be published all calendars of such courts of record in and for the first judicial department as such justices shall select, together with every notice and advertisement of judicial proceedings which shall be required to be published in one or more papers in such judicial department. Such calendars, unless otherwise provided by the justices of the appellate division, shall contain the numbers and titles of the causes and names of the attorneys appearing therein, with such particulars and notices in respect to such calendars or the causes thereon as may be specified by the clerk of the appellate division under the order of the appellate division.
2. The justices of the appellate division in the second department, or a majority of them, are hereby authorized to contract, from year to year, for the payment to the owner of the daily law journal designated pursuant to law by the justices of the appellate division in the first department for the publication of legal notices, of such compensation as they deem to be fair and reasonable for publishing calendars, decisions, opinions, disposition of cases, judgments, notices of pendency, liens, assignments, appointments of referees and receivers, assignments of justices and judges and other similar matters relating to the courts in the second, tenth and eleventh judicial districts; but this shall not in any way be construed to include notices or advertisements in actions or judicial proceedings required by law to be published in one or more newspapers.
The amount of such compensation shall be annually included in the budget of the appellate division in the second department. Such compensation shall be certified by the presiding justice of such department to the state comptroller who shall audit the same. The state department of taxation and finance shall pay such compensation and shall apportion the same among the counties comprising the second, tenth and eleventh judicial districts. Such counties shall reimburse the state for such compensation. The time and method of such apportionment and the time and method of such reimbursement shall be as specified in section seventy-four of this chapter.
3. The justices of the appellate division in the first department, or a majority of them, shall, any provision of law to the contrary notwithstanding, from time to time designate such newspapers in such department as in their opinion have such a circulation as is calculated to give public notice of a legal publication, and from time to time revoke such designation. To entitle a newspaper to such a designation, it must file with the clerk of the appellate division a statement, duly verified, showing approximately the size and extent of its circulation, the time and place of its regular publication, and a statement of its charges for legal publications.
Whenever a notice, summons, citation, order or other paper shall be required by any provision of law, or by the order of any court or judge thereof, or of a surrogate or of the clerk of a court or any other official or individual, to be published in a newspaper in the first department, or public notice of any application to a court or judge or other officer shall be required to be given by publication thereof in a newspaper in the first department, or where any court or judge thereof or a surrogate or other judicial officer or public officer is authorized or required to designate a newspaper in the first department for the publication of any notice, summons, citation, order or other paper, the newspaper designated by any court or judge thereof, or surrogate or other judicial or public officer, shall be a newspaper designated by the appellate division of the supreme court in the first department as hereinbefore provided, and no such publication shall be deemed to give the notice required to be given if the same is published in any newspaper in the first department which has not been designated by an order of the appellate division of the supreme court in the first department; and the publication of such notice, summons, citation, order or other paper in any undesignated newspaper in the first department shall not be deemed a compliance with any such provision of law or order of any court or judge.
§ 92. General powers conferred upon presiding justice and appellate division in first department. Except as otherwise provided in this article, all the powers heretofore conferred by law upon the presiding justice of the general term of the supreme court in the first judicial department, the chief judge of the court of common pleas for the city and county of New York, and the chief judge of the superior court of the city of New York, either or all of them, are vested in the presiding justice of the appellate division of the supreme court in the first department. All the powers heretofore conferred by law upon the general term of the supreme court in the first judicial department, upon the general term of the superior court of the city of New York and upon the general term of the court of common pleas for the city and county of New York, are conferred upon and vested in the appellate division of the supreme court in the first department. And all the powers conferred by law upon the supreme court in the first judicial district, upon the superior court of the city of New York and upon the court of common pleas for the city and county of New York, other than as courts of first instance in actions and special proceedings, are also conferred upon and vested in said appellate division.
§ 93. Appointment of clerks and deputy clerks of the appellate divisions. 1. The justices of the appellate division of the supreme court in each department shall, from time to time, appoint and shall have the power to remove a clerk.
2. The presiding justice of the appellate division of the supreme court in each of the third and fourth departments, shall, with the approval of the other justices of said department, have power to appoint and remove a deputy to the clerk of said appellate division.
§ 94. Appointment of clerical and other assistants of appellate division in first department. The justices of the appellate division of the supreme court in the first judicial department, or a majority of them, are authorized to appoint and at pleasure remove a clerk, deputy clerk and all necessary other assistants in said court and to prescribe the duties and fix the salaries thereof. Except as provided in the state finance law, such salaries and all other necessary expenses of such appellate division, shall be audited by the state comptroller out of moneys appropriated therefor by law. The state department of taxation and finance shall pay such salaries in equal biweekly installments and shall apportion the total amount of such salaries and expenses among the counties comprising the first judicial department. Such counties shall reimburse the state for such salaries and expenses. The time and method of such reimbursement shall be as specified in section seventy-four of this chapter. Provided, however, that the present deputy clerk, assistant clerks, confidential clerk, typewriter operators, crier and assistant to the crier of said appellate division shall be continued in office.
§ 95. Appointment of clerical and other assistants of appellate division in second department. The justices of the appellate division of the supreme court in the second judicial department, or a majority of them, are authorized to appoint and at pleasure remove deputy clerks and other necessary assistants and attendants, and to prescribe the duties and fix the salaries thereof. Except as provided in the state finance law, such salaries shall be certified by the presiding justice of such appellate division to the state comptroller who shall audit the same. The state department of taxation and finance shall pay such salaries in equal semi-monthly instalments, and shall apportion the total amount thereof among the counties comprising the second judicial department. Such counties shall reimburse the state for such salaries. The time and method of such apportionment and the time and method of such reimbursement shall be as specified in section seventy-four of this chapter.
§ 97. Appointment of consultation clerks in third and fourth departments. The presiding justice of the appellate division of the supreme court in each of the third and fourth departments, with the approval of the other justices of said department, shall have power to appoint and remove a consultation clerk, who shall be an expert stenographer.
§ 98. Appointment of confidential stenographer and assistant deputy clerk in third and fourth judicial departments. The justices of the appellate division of the supreme court, in each of the third and fourth judicial departments, may appoint and at their pleasure remove a confidential stenographer to the court, who shall also act as an assistant deputy and stenographer to the clerk of said court, at an annual salary to be fixed by said justices at not to exceed five thousand dollars per annum. The salary of each such confidential stenographer shall be certified by the presiding justice of the department to which the stenographer is appointed to the state comptroller who shall audit the same. The state department of taxation and finance shall pay such salaries in monthly installments and shall apportion the amount of the salary of the confidential stenographer to the appellate division of the supreme court in each of the third and fourth judicial departments among the counties comprising the third and fourth judicial departments respectively. Such counties shall reimburse the state for such salaries. The time and method of such apportionment and the time and method of such reimbursement shall be as specified in section seventy-four of this chapter.
§ 99. Appointment of attendants by justices of the appellate division. 1. Each of the justices of the appellate division of the supreme court in the first department shall appoint and at pleasure remove four attendants upon the court. Each of said attendants may also be removed by the appellate division, but not until he has been informed of the cause of the proposed removal and has been allowed an opportunity to make an explanation.
2. The justices of the appellate division of the supreme court in the second department, or a majority of them, are authorized to appoint and at pleasure remove all necessary attendants.
3. The justices of the appellate division of the supreme court in each of the third and fourth departments shall have power to appoint and remove not more than three attendants, one of whom shall act as crier.
§ 99-a. Appointment of employees of appellate divisions in the third and fourth departments. The justices of the appellate division of the supreme court in the third and fourth departments, or a majority of them, are authorized to appoint and at pleasure remove not more than two additional employees, than are employed at the time this act takes effect, to prescribe the duties and fix the salaries thereof. Except as provided in the state finance law, such salaries shall be certified by the appropriate presiding justice of each such appellate division to the state comptroller who shall audit the same. The state department of taxation and finance shall pay such salaries in equal semi-monthly instalments, and shall apportion the total amount thereof among the counties comprising the appropriate judicial department. Such counties shall reimburse the state for such salaries. The time and method of such apportionment and the time and method of such reimbursement shall be as specified in section seventy-four of this chapter.
§ 100. Power of justices of appellate division of first department to appoint confidential clerk of the appellate term. The justices of the appellate division of the supreme court in the first department, or a majority of them, are authorized to appoint in their discretion, and at pleasure remove, a confidential clerk of the appellate term of the said supreme court, or such tribunal as may hereafter be charged with the duty of hearing appeals from the city court of the city of New York and the municipal court of the city of New York, or either of them in the first department, and fix the salary of said confidential clerk. The board of estimate of the city of New York is authorized and empowered to provide the means to pay such salary.
§ 101. Power of justices of appellate division of second department to appoint clerical and other personnel of the appellate term. The justices of the appellate division of the supreme court in the second department, or a majority of them, are authorized to appoint in their discretion, and to remove at pleasure, for the appellate term of the supreme court in the second department, a chief clerk, one deputy clerk, one assistant deputy clerk, and all necessary other assistants and personnel in said court, and to prescribe the duties and fix the salaries thereof. Except as provided in the state finance law, such salaries and all other necessary expenses of such appellate term, shall be paid by the state comptroller out of moneys appropriated therefor by law. The state department of taxation and finance shall pay such salaries in equal biweekly installments and shall apportion the total amount of such salaries and expenses among the counties comprising the second judicial department. Such counties shall reimburse the state for such salaries and expenses. The time and method of such reimbursement shall be as specified in section seventy-four of this chapter.
§ 102. Power of justices of appellate division in first department to appoint special deputy clerks for each part or term of the supreme court in the first judicial district. The justices of the appellate division of the supreme court in the first department, or a majority of them, shall appoint and at pleasure remove, for each part or term of the supreme court in the first judicial district a special deputy clerk of the supreme court, and all necessary assistants to each of such special deputies and fix the salaries thereof. The board of estimate of the city of New York is authorized and empowered to provide the means to pay such salaries.
§ 103. Power of justices of appellate division in first department to designate supreme court jury clerk. The justices of the appellate division of the supreme court in the first department, or a majority of them, shall designate and at pleasure revoke such designation and make a new designation of two of the special deputy clerks appointed pursuant to section one hundred and two and assigned to a trial term, one of whom shall be supreme court jury clerk for the county of New York and one of whom shall be supreme court jury clerk for the county of the Bronx.
§ 104. Power of justices of appellate division in first department to appoint stenographers for the supreme court. The justices of the appellate division of the supreme court in the first department, or a majority of them, must appoint, and may at pleasure remove, a stenographer for each part or term of the supreme court.
§ 105. Power of justices of appellate division in first department to appoint typists. The justices of the appellate division of the supreme court in the first department, or a majority of them, may appoint, and at pleasure remove, one or more typists, as shall be necessary, for the appellate term, or for the special and trial terms of the supreme court in the first judicial district.
§ 106. Power of justices of appellate division in first department to appoint interpreters for supreme court. The justices of the appellate division of the supreme court in the first department, or a majority of them, may appoint and at pleasure remove such number of interpreters for the supreme court as in their opinion shall be necessary.
§ 107. Power of justices of appellate division in first department to regulate attendance and duties of officers of supreme court in first district. The justices of the appellate division of the supreme court in the first department shall from time to time make such rules as they may deem necessary to regulate the attendance and prescribe the duties of criers, interpreters, stenographers, librarians, clerks, assistants and attendants of the supreme court in the first judicial district, except the confidential attendants of the justices of the supreme court, whose attendance shall be regulated and duties prescribed by the justice who appointed such confidential attendant.
§ 108. Retirement of officers and employees by the justices of the appellate division, first department. 1. The appellate division of the supreme court in the first department is authorized in its discretion to retire any clerk, assistant clerk, clerk to a justice, general law assistant to justices, stenographer, typewriter, interpreter, librarian, assistant librarian, crier, assistant crier, telephone operator or attendant who shall have served as such in such appellate division or in the supreme court in and for the first judicial district or in any court which has been consolidated with the supreme court, or as an appointee of a justice of such court or courts, or in the court of general sessions, or who has had charge of the records of any such court in the office of the clerks of the counties of New York and Bronx, and who shall have become physically or mentally incapacitated for the further performance of the duties of his position. Such person, however, shall have been employed prior to such retirement for at least twenty years in the aggregate in one or more of such positions heretofore mentioned, or such person immediately prior to such retirement shall have been employed continuously for at least ten years in one or more of such positions including service in the court of general sessions, and in addition thereto shall have also served or been employed at any time prior thereto in one or more places or positions in any court, department or office of the state or of the county or city of New York, or as an appointee of a justice of such court or courts. Such combined employment, however, shall aggregate at least twenty years. Any person or persons retired from service pursuant to this subdivision shall be paid out of the funds apportioned to the supreme court of the first department an annual sum for annuity to be determined by such appellate division but not exceeding one-half of the average amount of his annual salary or compensation for a period of two years preceding the time of such retirement.
Such annuity shall be paid in equal monthly installments during the lifetime of the person or persons so retired.
2. Any clerk, assistant clerk, clerk to a justice, stenographer, typewriter, interpreter, librarian, assistant librarian, crier, assistant crier, telephone operator or attendant who shall have served as such in such appellate division or in the supreme court in and for the first judicial district or in any court which has been consolidated with the supreme court in and for the first judicial district, or as an appointee of a justice of such court or courts, or who has had charge of the records of any such court in the office of the clerks of the counties of New York and Bronx, who shall have been employed for at least twenty-five years in the aggregate in one or more of such positions or who shall have immediately prior to retirement been employed without interruption of more than six months for at least twelve and one-half years in one or more of such positions, and in addition thereto shall have also served or been employed at any time prior thereto in one or more places or positions in any court, department or office of the state or of the county or city of New York, or as an appointee of a justice of such court or courts. Such combined employment, however, shall aggregate at least twenty-five years. Upon his own application in writing to the appellate division of the supreme court in the first department, he shall be retired by such appellate division and shall be awarded, granted and paid an annual sum for annuity equal to one-half of the average amount of his annual salary or compensation for a period of two years preceding the time of such retirement. Any such employee or officer who loses such position or employment without any fault or misconduct on his part after fourteen years' total service in one or more of the positions or employments heretofore specified in or connected with such appellate division or supreme court in and for the first judicial district or in any court which has been consolidated with the supreme court in and for the first judicial district, or as an appointee of a justice of such court or courts, or as a clerk to a justice of such appellate division or the supreme court, or who has had charge of the records of any such court in the office of the clerks of the counties of New York and Bronx, shall be entitled forthwith to retirement and to an annual sum or annuity as hereinafter provided and shall be retired by such appellate division as of the date of the loss of such position or employment. Such employee or officer, however, so losing his position or employment shall have, within one full calendar month after the loss of such position or employment, made or had application made on his behalf in writing to such appellate division for such retirement, and shall be awarded, granted and paid an annual sum for annuity equal to as many twenty-fifths of one-half of the average amount of his annual salary or compensation for a period of two years preceding the date of the loss of his position or employment as he has served aggregate years. Any additional service rendered, prior to such services last above specified, in one or more places or positions in any court, department or office of the state or of the county or city of New York by an employee or officer so losing such position or employment shall also be credited in estimating such aggregate years of service. Such annuity shall be paid in equal monthly installments during the lifetime of the person or persons so retired. Any person or persons retired from service pursuant to this subdivision of this section shall be paid out of the funds apportioned to the supreme court of the first department, and from moneys to be apportioned to such court for such purposes to be raised as hereinafter provided, and from the contributions to the retirement fund in such manner as the appellate division shall provide by order upon such retirement. Such annuities shall be a charge upon the counties of New York and Bronx and the board of estimate of the city of New York shall provide for the raising of the necessary funds therefor and for paying the same in accordance with the order made on retirement. The comptroller of the city of New York shall deduct and retain monthly from the salary or compensation of each employee or officer one per centum of his monthly salary. Such moneys so deducted or retained shall be paid into what shall be known as the retirement fund, which fund and all moneys which shall form a part thereof as hereinafter provided, or thereafter accrue to it, shall be held by such comptroller for the purposes of this section with his usual powers of disposition and investment, subject, however, to the direction, control and approval of such appellate division. Every person to whom this section applies, shall be deemed to consent and agree to the deduction made and provided for herein and shall receipt in full for his salary or compensation and such payment shall be a full and complete discharge and acquittance of all claims or demands whatsoever for the services rendered by such person during the period covered by such payment.
3. If any employee or officer who is eligible for retirement pursuant to this section shall have served for a period of fifty years in the aggregate in one or more of the positions enumerated in this section, and shall be retired after such period of service, pursuant to this section, he shall be awarded, granted and paid an annual sum for annuity equal to the salary received by him at the time of his retirement.
4. If any officer or employee who is eligible for retirement pursuant to this section shall have served for a period of more than twenty-five years but less than fifty years in the aggregate in one or more of the positions enumerated in this section, and shall be retired, after such period of service, pursuant to this section, he shall be awarded, granted and paid in addition to the annuity provided in subdivision two of this section an annual sum for annuity equal to one per cent of the salary received by him at the time of his retirement for each year of such service in excess of twenty-five years but not to exceed in all three-quarters of the salary received by him at the time of his retirement.
5. The board of estimate of the city of New York is authorized to adopt a resolution providing that the deduction from the salary or compensation of an employee or officer made pursuant to this section need not be made and that no contribution in lieu thereof need be made by such an employee or officer during the one year period commencing with July first, nineteen hundred sixty and, by similar resolution, provide that no such deduction need be made and that no contribution in lieu thereof need be made by such an employee or officer during the one year period commencing with July first, nineteen hundred sixty-one.
6. The board of estimate of the city of New York is authorized to adopt a resolution providing that the deduction from the salary or compensation of an employee or officer made pursuant to this section need not be made and that no contribution in lieu thereof need be made by such an employee or officer during the one year period commencing with July first, nineteen hundred sixty-two.
7. The mayor of the city of New York is authorized to adopt an executive order providing that the deduction from the salary or compensation of an employee or officer made pursuant to this section need not be made and that no contribution in lieu thereof need be made by such an employee or officer during the one year period commencing with July first, nineteen hundred sixty-three.
8. The mayor of the city of New York is authorized to adopt an executive order providing that the deduction from the salary or compensation of an employee or officer made pursuant to this section need not be made and that no contribution in lieu thereof need be made by such an employee or officer during the one year period commencing with July first, nineteen hundred sixty-four.
9. The mayor of the city of New York is authorized to adopt an executive order providing that the deduction from the salary or compensation of an employee or officer made pursuant to this section need not be made and that no contribution in lieu thereof need be made by such employee or officer during the one-year period commencing with July first, nineteen hundred sixty-five.
10. The mayor of the city of New York is authorized to adopt an executive order providing that the deduction from the salary or compensation of an employee or officer made pursuant to this section need not be made and that no contribution in lieu thereof need be made by such employee or officer during the one-year period commencing with July first, nineteen hundred sixty-six.
11. The mayor of the city of New York is authorized to adopt an executive order providing that the deduction from the salary or compensation of an employee or officer made pursuant to this section need not be made and that no contribution in lieu thereof need be made by such employee or officer during the one-year period commencing with July first, nineteen hundred sixty-seven.
12. The mayor of the city of New York is authorized to adopt an executive order providing that the deduction from the salary or compensation of an employee or officer made pursuant to this section need not be made and that no contribution in lieu thereof need be made by such employee or officer during the one-year period commencing with July first, nineteen hundred sixty-eight.
13. The mayor of the city of New York is authorized to adopt an executive order providing that the deduction from the salary or compensation of a employee or officer made pursuant to this section need not be made and that no contribution in lieu thereof need be made by such employee or officer during the one-year period commencing with July first, nineteen hundred sixty-nine.
14. The mayor of the city of New York is authorized to adopt an executive order providing that the deduction from the salary or compensation of an employee or officer made pursuant to this section need not be made and that no contribution in lieu thereof need be made by such employee or officer during the one year period commencing with July first, nineteen hundred seventy.
§ 109. Appointment of a calendar clerk in the ninth judicial district. The administrative judge of the ninth judicial district is authorized to appoint and at pleasure remove a calendar clerk for the ninth judicial district, to prescribe his duties and fix his salary. The salary of the calendar clerk shall be certified by the administrative judge to the state comptroller who shall audit the same. The state department of taxation and finance shall pay such salary in biweekly instalments and shall apportion the amount of the salary of the calendar clerk among the counties comprising the ninth judicial district. Such counties shall reimburse the state for such salary. The time and method of such appointment and the time and method of such reimbursement shall be as specified in section seventy-four of this chapter.