7. Interlocatory papers

Question 1

How are the pleadings served?

Answer 1

Interlocutory Papers

Question 2

How can interlocutory papers be served?

Answer 2

Regular first class mail to the other party’s attorney

Question 3

When are interlocutory papers deemed to be served?

Answer 3

Upon the mailing, not the receipt

Question 4

What is the time limit on the defendant’s response to the plaintiff’s service of process?

Answer 4

1. If service of process was made by personal delivery within the state of NY, the answer must be served within 20 days of the personal delivery. 2. If the defendant was served with process under any other circumstances, Defendant must serve his answer no later than 30 days after service is complete.

Question 5

What is a pre-answer motion to dismiss?

Answer 5

Allows a Defendant to dismiss a complaint without ever having to serve an answer.

Question 6

What is the CPLR section for a motion to dismiss?

Answer 6

CPLR 3211

Question 7

When is a 3211 motion to dismiss allowed?

Answer 7

Prior to the service of the answer on one or more of eight specified grounds:

1. Documentary evidence as the basis for a defense
2. Other action pending between the same parties on the same cause of action
3. Want of capacity
4. Non-joinder of a necessary party
5. Failure to state a cause of action
6. Additional affirmative defenses
7. Lack of personal jurisdiction
8. Lack of subject matter jurisdiction

Question 8

What is documentary evidence as the basis for a defense?

Answer 8

A legally operative document (such as a mortgage, deed, or a written contract)

Question 9

What is want of capacity?

Answer 9

When the Plaintiff does not have capacity to come into court (like an infant)

Question 10

What is a failure to state a cause of action?

Answer 10

When the pleadings, on their face, are substantively insufficient.

Question 11

When must a motion to dismiss based on a failure to state a claim be dismissed?

Answer 11

If there is any basis for relief under the substantive law

Question 12

What are the three possible defects that result in a lack of personal jurisdiction?

Answer 12

1. Lack of a proper basis
2. Improper service of process
3. Defective form of the summons

Question 13

What are the additional affirmative defenses?

Answer 13

1. Statute of limitations
2. Payment
3. Arbitration award
4. Release
5. Estoppel (Collateral)
6. Res Judicata
7. infancy
8. Bankruptcy discharge
9. Statute of frauds

Question 14

What is res judicata?

Answer 14

A case in which there has been a final judgment and is no longer subject to appeal

Question 15

What is the time limit on making a 3211 pre-answer motion to dismiss?

Answer 15

Any time before service of the answer is due

Question 16

What happens to the time to serve the answer itself once a 3211 pre-answer motion to dismiss is served?

Answer 16

It is automatically extended.

Question 17

When must a defendant serve an answer after a motion to dismiss is granted?

Answer 17

You will not have to serve an answer because the action will be dismissed

Question 18

If the motion is denied, when must the Defendant serve an answer?

Answer 18

Within 10 days of the denial

Question 19

Is a defendant required to file a 3211 pre-trial motion to dismiss if he has any of the listed affirmative defense?

Answer 19

No

Question 20

How many times may a defendant file a 3211 motion to dismiss?

Answer 20

Only one, but the defendant may do so on multiple grounds

Question 21

What if the Defendant makes a 3211 motion on only one of several possible grounds and he loses the motion?

Answer 21

A pre-answer motion to dismiss on any of the grounds listed in 3211 does not preclude raising any of the other grounds as defenses in the answer, except for lack of personal jurisdiction.

Question 22

How can a defendant avoid waiving his personal jurisdiction objections?

Answer 22

Option 1: Before serving an answer, make a 3211 motion, and be sure to include lack of personal jurisdiction.

Option 2: Make no 3211 motion on any ground, and instead serve an answer that includes lack of personal jurisdiction as an affirmative defense.

Question 23

What one particular type of defect in personal jurisdiction requires additional consideration?

Answer 23

Improper service of process — If it is in the answer, you must, within 60 days after serving the answer, follow up with a motion for summary judgment on the ground of improper service.

Question 24

What defenses listed in 3211 are never waived?

Answer 24

1. Non-joinder of a necessary party
2. Failure to state a cause of action
3. Lack of subject matter jurisdiction

Question 25

What are a Defendant’s options in responding to a summons and notice?

Answer 25

Defendant would serve either:

1. A demand for the complaint, or
2. A notice of appearance

Question 26

What is the function of a demand for a complaint or a notice of appearance?

Answer 26

For the Defendant to avoid a default

Question 27

What is the effect of a demand for a complaint or a notice of appearance?

Answer 27

To put the burden on the Plaintiff to serve the compliant.

Question 28

What is the Defendant’s time limit for serving either a demand for a complaint or a notice of appearance?

Answer 28

The same response times that would apply if he were responding to a summons and complaint. (If service of process was made by personal delivery within the state of NY, the answer must be served within 20 days of the personal delivery. If the defendant was served with process under any other circumstances, Defendant must serve his answer no later than 30 days after service is complete.)

Question 29

is a demand for a complaint or a notice of appearance, by itself, a waiver of personal jurisdiction objections?

Answer 29

No. he may still object to personal jurisdiction in either his answer, or his 3211 motion to dismiss.

Question 30

What is the purpose of a motion for summary judgment?

Answer 30

To permit either party to make a showing before trial that even though the claims are sufficient on their face, there is no genuine issue of material fact requiring a trial.

Question 31

When may a motion for summary judgment be made?

Answer 31

Only after the answer has been served

Question 32

What party can make a motion for summary judgment?

Answer 32

Any party, on any claim, or any defense in the pleadings

Question 33

What kind of evidence is used in a motion for summary judgment?

Answer 33

The party moving for summary judgment in the form of affidavits from persons with actual knowledge of the facts, relevant documents, or discovery materials.

Question 34

What must the evidence show in a motion for summary judgment?

Answer 34

That no genuine triable issue of fact exists, reasonable persons cannot differ, and that is why they are entitled to judgment as a matter of law.

Question 35

What must an opponent do in order to defeat motion for summary judgment?

Answer 35

They must come forward with the same kind evidence which shows that a triable issue of fact does exist.

Question 36

May the opponent to a motion for summary judgment rely solely on the pleadings?

Answer 36

No

Question 37

Can the party that loses one of these motions take an immediate appeal to the appellate division while the action is still pending?

Answer 37

Yes. These are called interlocutory appeals.

Question 38

What is the time limit for filing an interlocutory appeal?

Answer 38

30 days

Question 39

What happens if you miss the 30 day deadline for an interlocutory appeal?

Answer 39

You will have to wait, and take your appeal from the final judgment.