HON. EDWIN J. KUZDALE County Attorney, Chautauqua County

This is in response to your recent letter requesting an opinion of the Attorney General on the following questions:

1. Must a county clerk, other than the county clerk of the county where an action is pending, assign an index number to the action if the action is heard in his county?

2. If the second county clerk must assign the action another index number, is that county clerk entitled to the fee for assigning the index number?

CPLR § 8018(a) controls the assignment of index numbers, and provides in part as follows:

"(a) Amount of fee. A county clerk is entitled, for the assignment of an index number to an action pending in a court of which he is clerk, to the following fee, payable in advance:

"1. in the counties within the city of New York, twenty-five dollars, and in the counties of Nassau, Suffolk and Westchester, five dollars; and

"2. in the county of Orange, five dollars; and

"3. in all other counties, three dollars. * * *"

CPLR § 8018(a) provides that an index number is to be assigned to an action pending in a court of which the county clerk is the clerk of the court. If the county clerk renders a service other than in his capacity as a clerk of the court or other than in an action pending in a court of which he is clerk, the fees for specified services are enumerated in CPLR § 8021. The county clerk is only authorized to assign an index number to an action if that action is pending in a court of which he is the clerk. Consequently, a county clerk cannot assign an index number to an action pending in a city court, because that action if not pending in a court of which he is clerk and an index number for that action must be assigned by the clerk of the city court (Uniform City Court Act, § 1911 [a] [1]).

An action is pending in a court only when it has been commenced in that court and has not yet been terminated by a final judgment or order, or when the action has been transferred pursuant to a court order. An action is commenced in a court by the service of a summons upon the defendant (CPLR § 304). If the initial pleadings are filed in the action, the papers are filed with the clerk of the court specified in the caption of the action pursuant to CPLR § 2101(c). An action may only be commenced and pending in one county. A hearing or trial may be held in another county pursuant to the provisions of CPLR § 512, but in that event, the statute requires that the decision and all papers relating to the trial must be filed and the judgment entered in the county where the action is pending.

An index number can only be assigned by the county clerk of the county in which the action is pending (CPLR § 8018[a]). Since an action can be pending in only one county, it follows that there will always be only one county clerk who may assign an index number to an action. If an action is transferred from one court to another pursuant to an order for change of venue, CPLR § 8018(b) provides that no fee shall be charged for assigning an index number. If a motion, hearing or trial in an action is held in a court of which the county clerk who assigned the index number is not the clerk of the court, there is no need for a second index number because the action is still pending in the court which originally assigned the index number. If papers are filed with the county clerk other than the county clerk who assigned the index number, a new index number should not be assigned, and therefore, no additional fee may be charged.

CPLR § 8021 enumerates the fees chargeable by a county clerk for rendering services in an action which is not pending in a court of which the county clerk is the clerk of the court. No fee is expressly provided for by statute for assigning an index number by this second county clerk, and therefore if a fee were to be charged, the second county clerk would be in violation of Judiciary Law, § 252 which provides as follows:

"Each clerk of a court must perform all the duties required of him, in the course and practice of the court, without fee or reward, except as expressly prescribed by Law."

CPLR § 8018(b) enumerates various exemptions from the fee chargeable by a county clerk for assigning an index number, but none of the exemptions is applicable to the present discussion. There appears to be no reason or purpose in requesting a new index number from a county clerk of a county in which an action is not pending but where a hearing or trial will be held. The unified court system is intended to simplify the record keeping and filing procedures in the courts of the state, and this objective would be hampered if a new index number were to be assigned by each county clerk in every county where a motion, hearing, reference or trial was held. The unified court system intends that only one index number be assigned to an action, the index number to be assigned by the county clerk who is the clerk of the court in which the action is pending, and all other proceedings in that action, wherever heard or held, are to retain that index number, and all papers in the action are to be filed with the county clerk who issued the index number.

Based on all of the above, it is our opinion that a county clerk, other than the county clerk who is the clerk of the court in which an action is pending, may not assign an index number to such action. Therefore, the county clerk may not charge a fee for assigning an index number to an action which is pending in a court of which the county clerk is not also the clerk of the court.