Appearances and Pleadings Flashcards
Appearance -
Fulfilling requirement after being served
- notice of appearance - contest service or PJ
- Serving an answer;
- motion to extend time to answer
a. motion to dismiss; or
b. motion to correct a pleading
Demand for Complaint
D served with notice only,
can demand complaint.
Effect of Appearance
in the case Prevents Default identifies attorney gets documents served. object to PJ File motion to dismiss MUST RAISE OBJECTION TO PJ AT FIRST OPPORTUNITY OTHERWISE WAIVED Notice of Appearance will not waive objection to personal jurisdiction
Limited Appearance
in rem or quasi in rem jurisdiction.
attachment suit is about the property in question -
appearance is not limited.
if D loses on jurisdiction question and stays in the case,
waived jurisdiction objection.
If quasi in rem suit seeking money damages - not property itself
appears and argues about jurisdiction and subsequently loses,
appearance is LIMITED TO THE VALUE OF THE PROPERTY.
Informal Appearance
D is held to appear if he participates on the merits
even without the formal steps to appear
If you act like a party in a case, you will be treated like one.
General Rules of Pleadings
- Must be in English
- Pleadings liberally construed,
defects ignored if no substantial rights are prejudiced. - Inconsistency in pleadings is permitted
- Statements need be sufficiently particular
give court notice of transactions and occurrences
and statement elements of each CoA or defense - May be amended as of right so long as no substantial right of the party is affected
Particularity Requirements of Defamation Suits
Must state the particular words complained of but application to P may be stated generally.
Particularity Requirement of Misrepresentation, Fraud, Mistake, Willful Default, Breach of Trust, or Undue Influence
Complaint must state in detail the circumstances constituting the wrong.
Particularity Requirements for Separation or Divorce Action
Circumstances of alleged misconduct,
time and place of acts complained
stated with particularity.
Particularity Requirements for Action on a Judgement
Must state the extent to which judgement has been satisfied already
whether by D or a 3rd party
Particularity Requirement for Actions based on Foreign Country Law
Substance of the foreign law relied upon must be stated
Particularity Requirement for Negligent Operation of a Motor Vehicle where both Parties are Covered by Liability Insurance
Must state that P has sustained a serious injury.
NY’s No Fault Insurance Law prohibits personal injury suits except where damages claimed exceed a certain amount.
Particularity Requirements for complaints against a corporation
Must specify the state or country under whose laws the corporation was created, if known.
Demand for Relief Requirements
claim must include a demand for relief
may contain alternative relief.
Court may grant any type of relief within its jurisdiction
requested or not
default judgements are limited to relief stated.
Demand for Relief in Declaratory Judgement Requirements
Must specify rights and other legal relations on which declaration is sought.
Must state whether further or consequential relief is or could be claimed.
Demand for Relief in Personal Injury or Wrongful Death Requirement
Complaint MAY NOT state the amount of damages requested.
May state only a general prayer for relief
Demand for Relief for Complaints brought in Supreme Court
Must state damages exceed jurisdictional limits of lower courts,
Time to answer a complaint
Personally Served within the state - 20 days from date of service to answer.
Otherwise - 30 days from date of service to answer
Contents of Answer Required
For each statement made in the complaint a party must either:
- Admit the statement
- Deny the statement
- State that he lacks sufficient knowledge to do either.
Affirmative Defenses - 10
The following must be pleaded in an answer or reply to a counterclaim or the defense is waived
- Collateral Estoppel
- Contributory Negligence
- Discharge in Bankruptcy
- Illegality
- Infancy
- Payment
- Release
- Res Judicata
- Statute of Frauds
- SoL
Move for a More Definite Statement
When a pleading is so unclear that a party cannot reasonably be required to frame a response he may move for a more definite statement.
Scandalous or Prejudicial items contained in Pleading
Where a scandalous or prejudicial matter is involved, a party may move to strike any scandalous or prejudicial items if included unnecessarily.
Timing Requirements of Corrected Pleadings
Notice of a motion of corrected pleading must be served in 20 days of service of the challenged pleading.
If denied, responsive pleading must be served within 10 days of notice of denial of motion.
If Granted, amended pleadings must be submitted in 10 days.
Counterclaims in General
- Need not be related to Plaintiffs claims
- Related counterclaims - are permissive should be brought.
- No compulsory counterclaims in NY.
- Failure to bring a related counterclaim party risks collateral estoppel
- Unrelated counterclaims may waive objection to PJ.
Reply to Answer
answer includes counterclaim - P permitted to reply.
Failure to answer - admission on allegations made.
Answer without counterclaim - party may file reply by leave of court.
If permitted - no further claims - simply deny counterclaims.
Additional CoA should be added by amending complaint.
Bill of Particulars
BoP may be required by any party or
prevents the party from serving interrogatories.
Demand must be in writing
served in 30 days.
Objection to one item does not relieve a party from answering the others within the 30 day time frame.
Failure to timely or completely comply with a demand for a bill of partculars
Demanding party may move to compel
Court finds failure was willful and improper it may impose penalties including:
1. resolving issues against the non-responsive party
2. prohibiting party from conducting its case
3. striking all or part of non-responsive parties pleadings; or
4. rendering default judgement against it.
Amended and Supplemental Pleadings
amend pleadings without permission of court provided it is done once.
Within 20 days of serviced
before a response is served
or within 20 days of service of the responsive pleading
Verification of Pleadings in General
Some pleadings are required to be verified.
Where public policy is that people should not be making such claims loosely.
Verification is available for all pleadings.
Verification of one party will be sufficient.
Verification not required where an infant or incompetent pleads or where matters would be considered privileged and thus prevent testimony of a witness on the matter
When any Pleading is verified
All subsequent pleadings in the action must be verified
Pleadings required to be verified
All matrimonial actions
A defense that does not answer to the merits - (SoL)
A Complaint must be verified if it charges a defendant:
- Confessed or suffered a judgement
- Executed a conveyance, assignment or other instrument
- was involved in or privy to a transaction that delivered money or personal property with the intent to hinder, delay or defraud creditors.
- Was involved in any fraud affecting a right or property of another
- A corporation with a nonpayment of a promissory note
3 Ways to meet the Appearance Requiement
Any D who is Personally Served in NY must appear within 20 days of the completion of service. D served by any other means has 30 days.
- Serve an Answer responding to the complaint.
- Serve a notice of appearance - period.
- Make a motion effecting the time to answer ***
a. Make a Motion to Correct a Pleading
b. Make a Motion to dismiss -
YOU MUST MAKE AN OBJECTION TO PERSONAL JURISDICTION IN THE ANSWER OR MOTION TO DISMISS AT THE FIRST OPPORTUNITY OR IT WILL BE WAIVED
Filing a notice of appearance and effect on ability to object to personal jurisdiction
Does not waive the objection to personal jurisdiction because you still have time to make a motion to dismiss or file an answer.
Objection to PJ must be made in these two responses or it is waived.
Filing a counterclaim on an objection to personal jurisdiction
If the counterclaim is unrelated to the main claim, you undermine your objection to personal jurisdiction because you are invoking the authority of the court.
If the counterclaim is related, the objection to PJ will stand.
To avoid this a party may make a motion to dismiss which includes an objection to PJ, and if unsuccessful, file a counter claim.
Effect of failing to bring a related counterclaim
A party who fails to make a related counterclaim may be collaterally estopped from bringing the action once the matter is decided on its merits.
Cross-Claims
Claims brought between parties on the same side.
Classic example is contribution
Timing of Appearance
When personally served in NY
When Served by any other means
- in hand service - 20 days
2. other means - 30 days from completion of service
Counterclaims - effect on objection to PJ
Unrelated Counterclaim - invokes power of court - PJ objection fails
Related Counterclaim - objection to PJ will stand
Failure to plead an affirmative defense - options
Amend pleadings
so long as no substantial right of a party is effected
