Opinion 96 - 23

FEES -- Court Fees (towns not exempt from) -- Exemption (of towns from court fees)

TOWNS -- Liability (for court fees)

CIVIL PRACTICE LAW AND RULES, §8017: Section 8017 of the Civil Practice Law and Rules does not grant a broad exemption to towns, or other municipalities (except in certain instances counties) from the statutory court fees which clerks are required to charge or collect.

This is in reply to an inquiry from your office requesting an opinion regarding section 8017 of the Civil Practice Law and Rules ("CPLR"). You have asked whether this provision would exempt a town from the payment of statutory court fees. The town has asserted that it is entitled to an exemption because it is a representative of the State under CPLR, §1301.

Generally, governmental entities are not exempt from court filing fees unless a statute expressly so provides (see 1989 Opns St Comp No. 89-19, p 41; 1988 Opns St Comp No. 88-38, p 75; 1981 Opns St Comp No. 81-398, p 437). Section 8017(a) of the CPLR provides:

Notwithstanding any other provision of this article or any other general, special or local law relating to fees of clerks, no clerk shall charge or collect a fee from the state, or an agency or officer thereof, for any service rendered in an action in which any of them is involved, nor shall any clerk charge or collect a fee for filing, recording or indexing any paper, document, map or proceeding filed, recorded or indexed for the county, or an agency or officer thereof acting in an official capacity nor for furnishing a transcript, certification or copy of any paper, document, map or proceeding to be used for official purposes.

It is a general rule of statutory construction that legislative intent is primarily to be determined from the language used in the act, considering its most natural and obvious sense and that words of ordinary import are to be construed according to their ordinary and usual meaning. Further, where the words of a statute are clear and unambiguous, resort to other means of interpretation is impermissible (McKinney's Cons Law of N.Y. Book 1, Statutes, §§76, 232).

The language of this section clearly exempts the State or any agency or officer thereof from fees of court clerks. However, there is no similar broad exemption for municipalities. Although this section prohibits a clerk from charging a fee for the filing or recording of any document for the county, it has been interpreted by the Attorney General as applying only "to the county served by the county clerk in which the papers were filed" (1965 Atty Gen [Inf Opns] 151). Consequently, even the exemption granted to counties by this provision is limited. In addition, it is reasonable to conclude that this express limited legislative exemption for counties suggests that the Legislature regarded the statutory fee as generally applicable to municipal corporations.

Further, with regard to the assertion by the town that a town is entitled to a general exemption because it is a representative of the State under section 1301 of the CPLR, we note that such section provides:

An action brought in behalf of the people, except an action to recover a penalty or forfeiture expressly given by law to a particular officer, shall be brought in the name of the state.

We do not believe that this provision supports the position of the town. As stated in the practice commentaries for section 1301, "... [t]his section merely declares the right of the Attorney General to bring and defend all actions and proceedings in which the State is interested" (McLaughlin, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, §1301, p 354).

Further, we note that section 65 of the Town Law provides in part:

1. Any action or special proceeding for or against a town, or for its benefit, and upon a contract lawfully made with it, or with any of its officers or agents authorized to contract in its behalf, or to enforce any liability created, or duly enjoined upon it, or upon any of it officers or agents for which it is liable, or to recover damages for any inquiry to any property or rights for which it is liable, shall be in the name of the town . [emphasis added]

Again, this provision does not support the town's position that all actions or proceedings brought by a town are brought as a representative of the State or in the name of the State (see also, e.g., Town Law, §135[1]).⁽¹⁾

Therefore, it is our opinion that section 8017 of the CPLR does not grant a broad exemption to towns, or other municipalities (except in certain instances counties) from the statutory court fees which clerks are required to charge or collect. Furthermore, we are aware of no other provision of law which would grant such a general exemption.

November 12, 1996
Honorable Jonathan Lippman, Chief Administrative Judge
NYS Office of Court Administration

1. The town has not cited any other statute which would authorize the town to bring a specific type of legal action as a representative of the State. If such a statute exists, it would be necessary to examine it to determine whether the town qualified for the exemption contained in section 8017 of the CPLR.