Opinion 94 - 30


This opinion represents the views of the Office of the State Comptroller at the time it was rendered. The opinion may no longer represent those views if, among other things, there have been subsequent court cases or statutory amendments that bear on the issues discussed in the opinion.

[edited for publication]

COUNTY CLERK -- Fees (amount of index fees remitted to State)

FEES -- Court Fees (amount of index fees remitted to State)

CIVIL PRACTICE LAW AND RULES, §8018(a); JUDICIARY LAW, §39(2)(e): County clerks outside of the City of New York are required to remit to the Commissioner of Taxation and Finance $160 of the $165 collected pursuant to the first unnumbered paragraph of CPLR, §8018(a).

This is in reply to your inquiry regarding payments made to New York State by your county clerk pursuant to section 8018(a) of the Civil Practice Law and Rules (CPLR) and section 39(2)(e) of the Judiciary Law.

The county clerk has been collecting an index fee of $165 pursuant to the first unnumbered paragraph of section 8018(a) of the CPLR(1) and has been remitting all but $5 of this amount to the State of New York in accordance with section 39(2)(e) of the Judiciary Law. You ask whether, under section 39(2)(e), the county clerk is only required to remit $95 of such fee to the State and whether, consequently, the county has been making overpayments to the State.

Prior to May of 1990, section 8018 of the CPLR required a county clerk to collect a fee of $100 for the assignment of an index number to an action pending in a court of which he or she is the clerk. Section 39(2)(e) required that $95 of any fees collected by a county clerk outside the City of New York be paid to the State Commissioner of Taxation and Finance.

Chapter 190 of the Laws of 1990 amended section 8018(a) of the CPLR to increase the fee from $100 to $165 effective May 25, 1990. This Chapter did not amend the language of section 39(2)(e).

Chapter 190 of the Laws of 1990 was the omnibus revenue bill enacted to balance the State budget for fiscal year 1990-91 and increased general fund revenues by $1.269 billion dollars for that fiscal year. The memorandum of the Assembly Budget Committee (NY Legis Ann, 1990, p 90) clearly indicates that the increased court fees were part of the revenues to be deposited into the State's general fund in order to balance the State budget. It is evident from the legislative record that the Legislature inadvertently failed to amend the language of section
39(2)(e) of the Judiciary Law to conform this section with the increased fees to be collected under section 8018(a).

It is a general rule of statutory construction that the courts may not supply by construction words or phrases which were omitted from a statute. Where, however, the legislative intent is clear, words obviously omitted by mistake may be supplied to prevent inconsistency, unreasonableness or unconstitutionality (People v Harris Corp , 104 AD2d 130, 483 NYS2d 442 [1984]; McKinney's Cons Law of N.Y. Book 1, Statutes, §363).

It is our view that the increased court fees were enacted to provide additional revenues for the State and the failure to amend section 39(2)(e) of the Judiciary Law was an inadvertent omission by the Legislature. In order to be consistent with the legislative intent, we believe section 39(2)(e) must be interpreted to require the county clerks outside of the City of New York
to remit $160 of the $165 fee collected pursuant to the first unnumbered paragraph of section 8018(a) of the CPLR to the Commissioner of Taxation and Finance.

Therefore, it is our opinion that the county clerk has been remitting to the State the appropriate amounts from the fees collected in accordance with section 8018(a) of the CPLR.

December 12, 1994
Barbara M. Westbrook, Esq., Sr. Ass't County Attorney
County of Broome

1. In addition, pursuant to the third unnumbered paragraph of section 8018(a), a county clerk is entitled, for the assignment of an index number, to an additional fee of $5 which is to be used for support of the local government records management improvement fund. In counties outside the City of New York, $4.75 of this fee is to be paid to the Commissioner of Education for deposit into the fund, while such counties retain $.25. In counties within the City of New York, the entire $5.00 fee must be remitted to the Commissioner of Education. This provision expires on December 31, 1995. Since the disposition of this additional fee is expressly covered by statute and is not in dispute, the impact and disposition of the additional $5 fee is not addressed in the opinion which addresses only the disposition of the $165 fee.