2, 3, 4, 10 Practice Test Flashcards
What commences an action (CPLR 304):
Generally, the filing of the summons and complaint (or summons with notice) (A special proceeding is commenced by the filing of the petition)
The service of a notice of petition commences a special proceeding. T/F?(CPLR 304):
FALSE. Generally, the FILING of the petition commences a special proceeding
Filing under Section CPLR 304 means the delivery of the summons with notice or summons and complaint to the clerk of court. T/F?:
FALSE. Definition of “filing” includes payment to the clerk of the required fee. ALSO, where the court finds that immediate filing can’t be done, SIGNING by the court of an order requiring filing at specified date & time within 5 days of signing of the order commences the action.
At the time of the filing the petition and notice of petition, the clerk is required to date stamp the original papers, but not copies thereof. T/F? (CPLR 304):
FALSE. Clerk must stamp the original AND one copy.
If Filing is by fax, clerk must return a date stamped copy of___________ and the index #. (CPLR 304):
The first page of the papers
If filing is by electronic means, clerk must notify filing party of ________ & date & time of filing. (CPLR 304):
Index Number
A Summons shall specify: (4 things) (CPLR 305):
- Basis of venue
- Residence of plaintiff (if based on residence)
- Index number
- Date filed with clerk
In a consumer credit transaction, county of residence of defendant (if w/in NYS) and county where transaction took place (if w/in the state) must appear on the summons. T/F? (CPLR 305):
True
A ____________is used to bring a new party into an action. (CPLR 30 5):
Supplemental Summons
In a Supreme Court case, generally service must be made within _____ days after filing summons and complaint. (CPLR 306b):
120
Personal service on an attorney general may not be made to assistant attorney general. T/F? (CPLR 307):
FALSE. MAY be made to an assistant attorney general within the state
In service to a person of suitable age and discretion, mailing must be done within ______days of service to person of suitable age and discretion. (CPLR 308):
20
In nail and mail, filing proof of service must be done within _____ of nailing or mailing, whichever is done last. (CPLR 308)
20
In nail and mail and service to person of suitable age and discretion, service is complete____ days after filing proof of service. (CPLR 308)
10
An infant of the age of ____ or over must also be served. (CPLR 309)
14
To serve a partnership, who may be served? (CPLR 310)
Any Partner
A corporation can be served by serving any employee. T/F? (CPLR 311)
False
To serve NYC, you can serve the mayor. T/F? (CPLR 311)
FALSE. (can do so in any other city EXCEPT NYC)
If service cannot be made as per the prescribed methods, service may be made in any manner the court directs. T/F? (CPLR 310a & 311a)
True
You need a court order to serve by mail. T/F? (CPLR 312a)
False
Service by mail can be done by plaintiff or any other person. T/ F?
True
.
Acknowledgment of receipt must be mailed or delivered within _____ days of receipt. (CPLR 312a)
30
Answer must be filed within ____ days after signed acknowledgment is mailed or delivered to sender. (CPLR 312a)
20
A court order is needed for service by publication. T/F? (CPLR 316)
True
Summarize Service by publication requirement. (CPLR 316) 1st Publication shall be made within 30 days after the order is granted.
-2newspapers, at least 1
-in English language, at least 1in each of 4 consecutive weeks. -service is complete on 28th day after day of 1st publication
matrimonial actions:
1 newspaper at least once in each of 3 consecutive weeks. Mailing of summons is also required/ matrimonial actions. Service complete on the 21st day after publication.
A person not served by personal delivery has up to __ year after he discovers default judgment to come in and defend action (but no more than 5 years after entry of judgment) (CPLR 317)
One
When summons is served by personal delivery within NYS, defendant has ___ days after service is complete to answer. (CPLR 320)
20
When a summons is served by other than personal delivery (except 312a), defendant has ___ days after service is complete to answer. (CPLR 320)
30
A corporation and voluntary association must appear by _______________. (CPLR 321)
Attorney
Where the court directs that a new party be joined in the action and the order is not made upon the new party’s motion, a summons shall be served upon such party.
A. third party B. interpleader
C. supplemental D. duplicate
C.) Supplemental (CPLR 305)
Which of the following is false: Proof of service may be: 1. in the form of a certificate, if service was made by sheriff. 2. in the form of affidavit, if service was made by person. 3. in the form of affidavit, if service was made by authorized public officer. 33. A. 1 and 3 only B. 1 only C. 3 only D. 2 and 3 only
C (CPLR 306)
If proof of service in an action commenced in supreme or county court is not filed with the clerk of the court within 120 days after date of filing of the summons and complaint:
A. action will be automatically dismissed. B. defendant may move for dismissal
C. time to file is automatically extended by 10 days.
D. None of the above.
B. CPLR 306-b
In personal service upon an infant, if the infant is of the age of ____ or over, the summons shall also be personally served on the infant.
A. 7 B. 10 C. 14 D. 16
C. CPLR 309
Which of following is false? Personal service on partnership may be made by personally serving summons on: 1. any one of the partners. 2. the managing agent of partnership, & mailing to the named partner. 3. the spouse of any one of the partners & mailing to a partner. 4. person in charge of partnership office in
NYS, and mailing to partner.
A. 1 & 4 only B. 2 only. C. 3 only D. 2 & 3 only
C CPLR 310
A person to whom summons was not personally delivered and who does not appear may be allowed to defend the action within_____year(s) after he obtains knowledge of the entry of judgment. However, the preceding period cannot extend more than____years after such entry.
A. one…. five
B. four…. seven
C. five…. seven
D. seven…. twenty
A CPLR 317
Which of the following statements are true? A court may exercise personal jurisdiction over any non-domiciliary, his executor or administrator who in person or through an agent: 1. transacts business within NYS or contracts anywhere to supply goods or services in NYS; or 2. commits a tortious act without the state (except defamation of character); or 3. owns, uses or possesses any real property in the state. A. 1, 2 & 3 B. 1 & 2 only C. 2 & 3 only D. 1 & 3 only.
D CPLR 302
Which of the following 2 statements are true? Filing may be done by facsimile transmission (FAX) or by electronic means (CPLR 2103 (f)) 1. If filing is by fax, clerk must return date stamped copy of first page of papers and the index number. 2. If filing is by electronic means, clerk must notify filing party of index number, date and time of filing. A. 1 only B. 2 only C. Both 1 & 2 D. Neither 1 nor 2
C CPLR 304
A summons shall specify: 1. basis of venue designated (and plaintiff’s address if that is basis of venue) 2. index number
3. date of filing with the clerk of the court
A. 1 & 2 only B.) 1 & 3 only C.) 1, 2 & 3 D. 2 & 3 only
C.) CPLR 305
A summons in a consumer credit transaction shall: 1. prominently display at top of the summons the words "consumer credit transaction," and 2. specify the county of residence of the defendant (if defendant lives within NYS), and 3. specify county where transaction took place, if outside NYS. A. 1, 2 & 3 B. 1 only C. 1 & 3 only D. 1 & 2 only
D. CPLR 305
Which of the following 2 statements are correct? 1. Generally, proof of service must specify papers served, date, time, and address of service (if no address, place and manner of service) and facts showing service was done by an authorized person in an authorized manner. 2. If service is made by delivery to an individual, proof of service (affidavit) shall include description of person-sex, skin color, hair color, approx. age, weight and height, and other identifying features. A. 1 only B. 2 only C. Both 1 & 2 D. Neither 1 nor 2
C. CPLR 306
One method of personal service on a state officer sued in his official capacity is to deliver the summons to the____________or designee of the agency.
A. secretary of the agency
B. supervisor of the office
C. person of suitable age & discretion at agency
D. chief executive officer
D. CPLR 307
Which is not correct? Personal service on infant may be made by personally serving summons within NYS:
A. upon a parent or any guardian, or
B. other person having legal custody, or
C. if infant is married, to adult spouse with whom infant resides or,
D. if none are within NYS, to any teacher at the infant’s school.
D. CPLR 309
Which of the following statements, relating to service of
defendant in parenthesis is not correct?
A. (NYC) You can serve mayor or other person designated by him to receive process.
B. (Any city other than NYC) You can serve the mayor, comptroller, treasurer, counsel, clerk.
C. (County). You can serve chairman or clerk of board of supervisors, clerk, attorney or treasurer.
D. (Town) You can serve supervisor or clerk
A. CPLR 311
Which is false relating to service by publication? Order shall direct that the following be published:
A. summons and a brief statement of nature of action and relief sought
B. notice to plaintiff
C. sum of money for which judgment will be taken in case of default (except in medical malpractice)
D. brief description of real property (if it is subject of litigation)
B. CPLR 316
Which of the following statements is not correct?
A. 325 (a) The supreme court, upon motion, can remove a case
from a court where an action was commenced by mistake to the proper court.
B. 325 (b) Upon motion, a court having the necessary jurisdiction to grant the relief that parties are entitled to may remove to itself an action in a court which has the required jurisdiction.
C. 325 (c) On consent to a court of limited jurisdiction (amount of damages demanded is reduced to within the monetary jurisdiction of the court of limited jurisdiction).
D. 325(d) Without consent (at the court’s discretion) to a court of limited jurisdiction (however, the monetary limit remains that of the original court).
B CPLR 325
Which of the following statements is not correct?
A. 325(d) Without consent (at the court’s discretion) to a court of limited jurisdiction (however, the monetary limit remains that of the original court).
B. 325 (e) Upon motion, the supreme court can remove a case from the supreme court to the surrogate’s court where a decedent’s estate is not affected.
C. 325 (f) If county judge is incapacitated, supreme court may remove an action from county court to itself.
D. 325 (g) A judge of a county court may transfer a case from one local court to another in the same county or adjoining county where it appears that the case will not be disposed of within a reasonable time due to death, disability, incapacity of judge-or inability to form a jury.
B CPLR 325
Which of the following statements are false?
A. If an order of removal is made by a court other than the court where the action is pending, a conformed copy of the order of removal shall be filed in the court where the action is pending.
B. When the clerk where the action is pending receives the order, he shall forthwith deliver to other court all papers and records in the action, and certified copies of all minutes
C. The receiving clerk shall file, enter & record the papers as required.
D. Subsequent proceedings shall be had in the court to which the case has been removed as if the action had been originally commenced there and no process, provisional remedy or other proceeding taken in the court from which the action was removed shall be invalid as a result of the removal
A. CPLR 326
In an action a summons and______are used. (CPLR 402)
Complaint
In a special proceeding a petition and_______are used. (CPLR 402)
Notice of petition
Notice of petition must be served at least____ before hearing time. (CPLR 403):
8 days
If notice of petition is served at least 12 days before hearing, answer must be served at least____ before hearing if notice of petition so specifies.(CPLR 403)
7 days
Motions in a special proceeding, made before the time at which the petition is noticed to be heard, shall be heard ________noticed to be heard (CPLR 406)
At that time
The court may sever a claim or counterclaim.T/F? (CPLR 407)
True
Generally, in a special proceeding, leave of the court is not required for disclosure. (CPLR 408) T/F?
False
The court shall make a summary determination upon the pleadings, papers and admissions to the extent that no triable issues of fact are raised. (CPLR 409) T/F?
True
The court, when making a determination on relief requested in a special proceeding may make any orders permitted in a motion for summary judgment (CPLR 409) T/F?
True
The parties in a special proceeding are called:
A. claimant and respondent.
B. plaintiff and defendant
C. petitioner and respondent.
D. petitioner and defendant.
C. CPLR 401
Petition and notice of petition must be served:
A. at least 3 days before hearing.
B. at least 5 days before hearing.
C. at least 8 days before hearing.
D. at least 12 days before hearing.
C. CPLR 403
Choose the best answer: Court may order severance of a claim, counterclaim, or cross-claim:
A. prior to commencement of trial only.
B. before the first witness is sworn.
C. at any time.
D. only upon motion of plaintiff or defendant.
C. CPLR 407
If a notice of petition is served at least 12 days before hearing, answer must be served 7 days before hearing if notice of petition so demands. Any reply must be served at least\_\_\_\_day(s) before hearing time. A. 1 B. 2 C. 3 D. none of the above.
A. CPLR 402
If a notice of petition is served at least 12 days before hearing, answer must be served 7 days before hearing if notice of petition so demands. Any reply must be served at least\_\_\_\_day(s) before hearing time. A. 1 B. 2 C. 3 D. none of the above.
A. CPLR 402
If the motion to correct a pleading in a special proceeding is granted, the party who made the motion shall serve and file his answer within\_\_\_\_\_day(s) of service of the amended pleading. If the motion is denied, he shall file his answer within\_\_\_\_days of service of the order denying the motion with notice of entry. A. 5...2 B. 5...7 C. 8...2 D. 7...2
A. CPLR 405
Parties should be joined when necessary for complete relief of parties or when parties might be inequitably affected by a judgment refers to a.) necessary or
b.) permissive joinder?(CPLR 1001)
B.) permissive joinder
Misjoinder of parties is not ground for dismissal of an action.(CPLR 1003) T/F?
True
A_______is a person exposed to multiple liability as a result of adverse claims.(CPLR 1006)
Stakeholder
Defendant stakeholder may bring in a claimant who is not a party by filing a summons and________ (CPLR 1006)
Interpleader complaint
Third party summons and complaint and all prior pleadings shall be served upon the third party defendant within ____ days of filing. (CPLR 1007)
120
Defendant serving a third party complaint shall be styled a____________and the person so served shall be styled a_________(CPLR 1007)
Third party plaintiff/defendant
A person may intervene
A.)as of right
b.) by permission when the person’s claim or defense and the main action have a common question of law or fact?
b.) by permission (CPLR 1013)
Upon the substitution of a party in an action, the time for taking procedural steps is extended until ______days after substitution is made.(CPLR 1022)
15
Regarding intervention as of right, a person may intervene when: 1. a statute confers the absolute right to intervene. 2. judgment on claim for damages to property might be favorable to his interests. A. 1 only B. 2 only C. both 1 & 2 D. neither 1 nor 2
A. CPLR 1012
A person may intervene by permission: 1. when a statute confers the right to intervene in the discretion of the court.2. when person's claim/defense have common question law/fact with the main action. A. 1 only B. 2 only C. both 1& 2 D. neither 1 nor 2
C. CPLR 1013
Upon substitution of party, time for taking procedural steps is extended as to all parties until 15 days after\_\_\_\_\_\_\_\_\_\_\_. A. motion for substitution was made B. the answer is filed C. service is complete D. substitution is made
D. CPLR 1022
Parties may be added at any stage of the action without leave of the court within____ days after service of the original summons, or anytime before period for responding to that
summons expires, or within _____days after service of a pleading responding to the summons.
A. 10…10
B. 20…20
C. 15…15
D. 20…30
B. CPLR 1003
