Article 10 Parties Generally

Question 1

  CPLR 1001
If a person who should be a plaintiff refuses to join in an action:
(a)   he may be made a defendant if the court can exercise personal jurisdiction over him
(b)   the court must dismiss the action
(c)   a guardian at law must be appointed by the court to protect the person’s interests
(d)   none of the above.

Answer 1

 Answer: (a)
CPLR 1001(a) provides that when a person who should join as a party (e.g., a person necessary if complete relief is to be accorded between the parties) refuses to do so, he may be made a defendant in the action. It should be noted that a person who refuses to join an action may only be made a defendant in the action if some basis for exercising personal jurisdiction over him exists. If one does not, while the person cannot be made a defendant, the action does not have to be dismissed. See factors listed in CPLR 1001(b).

Question 2

 CPLR 1001
Select all correct answers.
In determining whether to permit an action to proceed without the joinder of a necessary party, the court should consider:
(a)   whether the plaintiff has an effective remedy in case the action is dismissed on account of the nonjoinder
(b)   whether an effective judgment may be rendered in the absence of a person who is not Joined
(c)   whether jurisdiction may be obtained over the necessary party by substituted service
(d)   the effect on court calendar congestion of permitting the action to proceed.

Answer 2

Answers: (a) and (b)
CPLR 1001(b) provides that the court, in determining whether to allow the action to proceed without the joinder of a necessary party, should consider, among others, the elements stated in choices (a) and (b).
Choices (c) and (d) are unsupported by the CPLR.

Question 3

 CPLR 1001
Select the correct statement:
(a)   An action may not continue without joinder of all necessary parties.
(b)   When jurisdiction cannot be obtained over a necessary party except by his consent or appearance, the court, in the interest of justice, may allow the action to proceed without joinder of the necessary party.
(c)   When a person who should be a plaintiff refuses to join the action he may be made a third-party plaintiff.
(d)   The difference between permissive joinder and necessary joinder is that permissive joinder refers to the situation where parties may be joined in an action only when they consent, and necessary joinder refers only to situations where parties can be forced to join.

Answer 3

 Answer: (b)
CPLR 1001 provides that an action may continue without joinder of a necessary party in the court’s discretion when justice requires and jurisdiction cannot be obtained.

Choice (a) is incorrect since an action may, in the court’s discretion, continue without joinder of certain necessary parties.
Choice (c) is incorrect since such an individual may be made a defendant.
Choice (d) is incorrect since permissive joinder refers to the situation where a party may be joined while necessary joinder refers to the situation where a party generally “must” be joined (although even in this instance the court may allow the action to proceed without joinder of all necessary parties).

Question 4

    CPLR 1002
Select the best statement:
(a)   Each plaintiff joined in an action must be interested in obtaining all the relief demanded.
(b)   Each defendant joined in an action must be interested in defending against every claim included in the action.
(c)   Both (a) and (b) are correct.
(d)   Neither (a) nor (b) is correct.

Answer 4

  Answer: (d)
CPLR 1002(c) provides that each plaintiff and defendant need not be interested in every claim or all the relief demanded. Therefore, choices (a), (b) and (c) are incorrect.

Question 5

 CPLR 1002
In order to have permissive joinder of parties:
1.   there must be a common question of law or fact
2.   the parties must be united in interest
3.   the parties must not be united in interest
4.   the rights asserted by the various parties must arise out of the same transaction, occurrence, or series of transactions or occurrences.
(a)   1 only
(b)   1, 2 and 3
(c)   1 and 4
(d)   1 and 3.

Answer 5

 Answer: (c)
CPLR 1002 provides that in order to have permissive joinder the rights asserted by the various parties must arise out of the same transaction, occurrence, or series of transactions or occurrences; and that there must be a common question of law or fact. It is not a requirement for permissive joinder that the parties be united in interest.

Question 6

   CPLR 1002
If several plaintiffs injured in a truck accident sue the trucking company in one action, this is said to be an example of:
(a)   severance
(b)   parties united in interest
(c)   mandatory consolidation of claims
(d)   joinder.

Answer 6

 Answer: (d)
CPLR 1002(a) provides that when a number of plaintiffs seek to sue a defendant to assert rights arising from a common occurrence (i.e., the same accident) and there exists common questions of law or fact then they are permitted to join their claims in one action against the defendant. Thus choice (d) is correct (i.e., joinder).

Question 7

   CPLR 1003
Select the correct statement:
(a)   Misjoinder of parties is a ground for dismissal of an action.
(b)   Nonjoinder of a party who should be joined is a ground for dismissal of an action with prejudice.
(c)   Parties may be dropped by the court at any stage of the action.
(d)   Parties may be added or dropped by the court only before the first witness is sworn.
(e)   Both (b) and (d) are correct.

Answer 7

Answer: (c)
CPLR 1003 provides that parties may be dropped by the court, on motion or on the court’s own initiative, at any stage of the action.
Choice (a) is incorrect since misjoinder is not grounds for dismissal.
Choice (b) is incorrect since nonjoinder of a necessary party is grounds for dismissal without prejudice.
Choice (d) has no support in the CPLR.

Question 8

     CPLR 1003
Select the best answer.
When may parties be added to an action?
(a)   At any stage of the action if by leave of court or by stipulation of all parties who have appeared.
(b)   Only with permission of the court, within 20 days after service of the original summons.
(c)   Only after the first witness is sworn.
(d)   At any stage of the action, upon any party’s insistence.

Answer 8

 Answer: (a)
CPLR 1003 provides that parties may be added to an action at any stage of the action if by leave of court or by stipulation of all parties who have appeared, or once without leave of court under certain circumstances.

Choice (a) is correct.
Choice (b) is incorrect because parties may be added once without leave of court within 20 days after service of the original summons.
Choices (c) and (d) are unsupported by the CPLR.

Question 9

   CPLR 1003
Select the best answer.
If there is a misjoinder of parties, the case should be:
(a)   dismissed, without prejudice
(b)   continued, letting the misjoined party stay on since this way the court will be able to “kill two birds with one stone”
(c)   dismissed, with prejudice
(d)   continued, and the improperly joined party dropped
(e)   either (a) or (d) at the court’s discretion.

Answer 9

 Answer: (d)
CPLR 1003 provides that misjoinder of parties is not a ground for dismissal. Therefore the case should be continued. A misjoined party should be dropped by the court pursuant to CPLR 1003.

Question 10

   CPLR 1004
Select the correct statement:
(a)   An action must be dismissed for nonjoinder of a necessary party
(b)   A guardian of an infant’s property may be sued without joining the infant against whose interest the action is brought as a party
(c)   The court may order the addition or deletion of a party only on a motion by one of the parties
(d)   Misjoinder of parties may be a ground for dismissal of an action.

Answer 10

 Answer: (b)
CPLR 1004 provides that an executor, administrator, guardian of the property of an infant, committee or conservator may sue or be sued without joining the person for or against whose interest the action is brought.

Question 11

  CPLR 1004
Select the correct statement.
Except where otherwise prescribed by court order:
(a)   a guardian of an infant’s property may sue or be sued in that capacity without joining the infant as a party
(b)   the trustee of an express trust who sues or is sued in that capacity must join with him the person for or against whose interest the action is brought
(c)   the conservator of the property of a conservatee who sues or is sued in that capacity must join with him the conservatee as a party
(d)   the committee of the property of a judicially declared incompetent who sues or is sued in that capacity must join with him the judicially declared incompetent as a party.

Answer 11

Answer: (a)
CPLR 1004 provides that a guardian of an infant’s property may sue or be sued without joining the infant.
Choices (b), (c) and (d) are incorrect since each represented person described need not be joined with the representative.

Question 12

  CPLR 1006
A person who may be exposed to multiple liability as a result of adverse claims and who utilizes the interpleader statute is called a:
(a)   stakeholder
(b)   claimant
(c)   petitioner
(d)   plaintiff.

Answer 12

  Answer: (a)
CPLR 1006(a) provides that a stakeholder is a person who may be exposed to multiple liability as the result of adverse claims. An insurance company is probably the most common example of a stakeholder, with those claiming to have rights under the policy constituting the adverse claimants.
Choice (b) is incorrect since a claimant is one who makes a claim.
Choice (c) is incorrect since a petitioner is the party who brings a special proceeding.
Choice (d) is incorrect since a plaintiff is the party who brings an action.

Question 13

   CPLR 1006
Select the best statement:
(a)   In order to bring an interpleader action, the claims of the various claimants must have a common origin
(b)   A defendant who is sued by a single adverse claimant can bring other adverse claimants into the action by filing a summons and interpleader complaint, and serving the adverse claimants with such items and all prior pleadings served in the action
(c)   In an interpleader action, the stakeholder cannot be discharged before a final judgment concerning the rights of the adverse claimants
(d)   Only (a) and (c) are correct

Answer 13

   Answer: (b)
The situation described in choice (b) is referred to in CPLR 1006(b) and is called defensive interpleading.

Question 14

   CPLR 1007
A defendant serving a third-party complaint shall be known as
(a)   a third-party plaintiff
(b)   an intervenor
(c)   a third-party defendant
(d)   a stakeholder.

Answer 14

 Answer: (a)
CPLR 1007 provides that a defendant serving a third-party complaint shall be styled a third-party plaintiff.

Question 15

 CPLR 1007
To implead a claim against one not already joined in the action, a defendant would generally have to:
(a)   get court permission
(b)   file a third party summons and complaint with the clerk, and serve the third party summons and complaint within 120 days of such filing
(c)   move to compel plaintiff to join the third party
(d)   start a separate lawsuit against the third-party and then move to consolidate the two actions.

Answer 15

Answer: (b)
Implead refers to the defendant’s act of asserting a third-party claim against one not already joined in the action. CPLR 1007 provides that a defendant may proceed against a person not already a party by (i) filing a third party summons and complaint with the clerk of the court in which the main action is pending and (ii) serving upon the third party defendant the third party summons and complaint and all prior pleadings, within 120 days of the filing. All other choices are unsupported by the CPLR

Question 16

    CPLR 1008
A third-party defendant responds to the claim asserted against him by serving:
(a)   a notice of defense
(b)   a reply
(c)   an answer
(d)   a third-party response.

Answer 16

Answer: (c)
CPLR 1008 provides that the third-party defendant responds to the claim by serving an answer. All other choices are unsupported by the CPLR.

Question 17

CPLR 1009
When an answer to a third-party complaint is served upon plaintiff’s attorney:
(a)   plaintiff may amend his complaint within twenty days to assert a claim against the third-party defendant, without court permission to do so
(b)   plaintiff cannot amend his complaint to assert a claim against a third-party defendant, even if he does so within ten days
(c)   plaintiff may only amend his complaint to assert a claim against a third-party defendant, if he has court permission to do so
(d)   plaintiff may amend his complaint within thirty days to assert a claim against the third-party defendant, without court permission to do so.

Answer 17

  Answer: (a)
CPLR 1009 provides that within twenty days after service of the answer to the third party complaint upon the plaintiffs attorney, the plaintiff may amend his complaint to assert any claim against the third- party defendant. Leave of court (i.e., permission) is not necessary.

It should be noted that the term “plaintiff” here refers to the plaintiff in the original action, and not to the third-party plaintiff who asserted the third-party claim against the third-party defendant.

Question 18

 CPLR 1010
Select all correct answers.
A third-party claim (i.e., one asserted by a third-party plaintiff against a third-party defendant):
(a)   must be tried separately from the main claim
(b)   may be tried separately from the main claim
(c)   may be dismissed without prejudice
(d)   must be tried jointly with the main claim.

Answer 18

 Answer: (b) and (c)
CPLR 1010 provides that the court may order a separate trial of the third-party claim or may dismiss the third-party complaint without prejudice.

Question 19

 CPLR 1011
A third-party defendant may proceed:
(a)   only against a third-party plaintiff
(b)   only against a plaintiff
(c)   only against a plaintiff or a third-party plaintiff
(d)   against any person who may be liable to him for all or part of the third-party claim
(e)   only against a party already in the action.

Answer 19

Answer: (d)
CPLR 1011 provides that a third-party defendant may proceed against any person who is or may be liable to him for all or part of the third party claim.

Question 20

 CPLR 1012
Under the CPLR, in certain instances a person can intervene in an action (i.e., become a party to an action at his own initiative). The CPLR distinguishes between two types of intervention: intervention as a matter of right and permissive intervention (i.e., permitted only in the court’s discretion). In this regard, which of the following statement is correct:
(a)   Intervention as a matter of right exists only when a statute confers an absolute right to intervene.
(b)   While intervention as a matter of right requires that a timely motion be made, permissive intervention does not.
(c)   While permissive intervention requires that a timely motion be made, intervention as a matter of right does not.
(d)   Both intervention as a matter of right and permissive intervention require that a timely motion be made.
(e)   Both (a) and (c) are correct.

Answer 20

Answer: (d)
CPLR 1012(a)
CPLR 1012(a) and 1013 clearly indicate that both intervention as a matter of right and permissive intervention require that a timely motion be made. Thus, the only correct choice is (d).

Question 21

 CPLR 1012
If the constitutionality of a statute of the State is involved in an action, the court must notify which of the following, if not already a party to the action:
(a)   the Attorney-General
(b)   the legislature
(c)   the representative who sponsored the bill
(d)   the District Attorney of the county where the action is pending
(e)   the New York State Constitutional Preservation Committee.

Answer 21

Answer: (a)
CPLR 1012(b) requires that the court shall notify the Attorney- General when the constitutionality of a statute is in issue in an action to which the State is not already a party. This gives the Attorney-General the opportunity to intervene in support of the constitutionality of the statute. Proof of such service on the Attorney-General must be filed with the court.

Question 22

   CPLR 1015(b)
If one or more of the defendants in an action dies, and the right sought to be enforced survives against the remaining defendants, the action shall:
(a)   abate
(b)   proceed
(c)   proceed only on consent of the remaining defendants
(d)   abate only on consent of the remaining defendants.

Answer 22

Answer: (b)
CPLR 1015(b) provides that upon the death of one or more of the plaintiffs or defendants in an action in which the right sought to be enforced survives only to the surviving plaintiffs or against the surviving defendants, the action shall proceed (i.e., not abate). Thus, choice (b) is the only correct answer.

Question 23

CPLR 1019
In an action by or against a public officer, if the public officer dies or otherwise ceases to hold office:
(a)   the action abates, and a new action, if commenced, must be brought within ninety days
(b)   the action may be continued by or against the public officer’s successor, on a showing of need to do so
(c)   the action abates, and a new action is not authorized
(d)   the public officer’s successor will automatically be substituted in his place.

Answer 23

 Answer: (b)
CPLR 1019 states that if a public officer dies or otherwise ceases to hold office, the action may be continued by or against his successor if it is shown that there is need to do so. In practice, the “office” of the public officer is usually named instead of the public officer himself.
Choices (a), (c) and (d) are unsupported by the CPLR.

Question 24

CPLR 1021
Select the correct statement as to a motion for substitution:
(a)   It may be made only by the successors of a party
(b)   It may be made only by the representatives of a party
(c)   It may be made only by the successors or representatives of a party
(d)   It may be made by the successors or representatives of a party, or by any party.

Answer 24

Answer: (d)
CPLR 1021 provides that substitution of a party may be made by the successors or representatives of a party, or by any party.

Question 25

 CPLR 1021
Select the correct statement as to substitution:
(a)   The event requiring substitution must occur before final judgment
(b)   If the event requiring substitution occurs in the middle of a trial and substitution is not made within a reasonable time, the action must be dismissed with prejudice as to the party for whom substitution should have been made
(c)   If the event requiring substitution is the death of a party, the action must be dismissed
(d)   If the event requiring substitution occurs after final judgment, substitution may be made either in the court from or to which an appeal could be or is taken, or the court of original instance.

Answer 25

Answer: (d)
CPLR 1021 provides that if the event requiring substitution occurs after final judgment, substitution may be made in either the court of original instance or the court from or to which an appeal could be or is taken.
Choice (a) is incorrect since substitution may occur after final judgment.
Choices (b) and (c) are unsupported by the CPLR.

Question 26

  CPLR 1022
Unless otherwise ordered, if the time for making a motion for a (i) new trial, (ii)   taking an appeal, or (iii) any other procedural step, has not expired before the occurrence of an event permitting substitution of a party, the period is extended as to all parties until   days after substitution is made.
(a)   ten
(b)   fifteen
(c)   twenty
(d)   thirty

Answer 26

 Answer: (b)
CPLR 1022 provides for fifteen days.

Question 27

 CPLR 1023
Select the best statement:
(a)   When a public commission sues in its official capacity, it must be designated by the name of the person in charge of the commission
(b)   When a public officer is sued in his official capacity he may be designated by his official title instead of his actual name
(c)   When a public officer sues in his official capacity and is designated by his official title, the court may require that the public officer’s actual name be added
(d)   Only (b) and (c) are correct
(e)   (a), (b), and (c) are correct.

Answer 27

Answer: (d)
CPLR 1023 provides that when a public officer, body, board, commission or other public agency may sue or be sued in its official capacity, it may be designated by its official title, subject to the power of the court to require names to be added. Thus, only choices (b) and (c) are correct.

Question 28

CPLR 1024
If the name or identity of a person who may properly be made a party is not known:
(a)   the action may proceed against such person as an unknown party by designating what is known of his name or identity
(b)   the action may not proceed as to that party
(c)   the action may proceed as to that party provided permission of the court is first obtained
(d)   the action may proceed as to that party provided that if the person’s name and identity does not become known before final judgment, the judgment will be unenforceable.

Answer 28

Answer: (a)
CPLR 1024 states that an action against an unknown party may proceed by designating what is known of his name or identity (e.g., white male known as “Thompson” residing at 1537 Butler Street).

Question 29

  CPLR 1025
Select all correct statements:
(a)   Two or more partners may sue or be sued, as to partnership matters, only in their individual names
(b)   Two or more partners may sue or be sued, as to partnership matters, in the partnership name
(c)   An action relating to an unincorporated association must be brought in the name of the association
(d)   An action relating to an unincorporated association may be brought in the name of its treasurer.

Answer 29

 Answer: (b) and (d)
CPLR 1025 provides that two or more persons conducting a business as a partnership may sue or be sued in the partnership name. Thus, choice (b) is correct. NOTE that if the plaintiff wishes to be able to enforce a judgment against the individual partners’ assets, he should name and serve each individual partner. An unincorporated association may sue or be sued in the name of its president or treasurer. Thus, choice (d) is correct.

Question 30

      CPLR 1026
With regard to an action brought to review an administrative or operational determination of the Court of Appeals, the proper party to name as defendant is:
(a)   each individual judge of the Court of Appeals
(b)   the Chief Judge of the Court of Appeals
(c)   the administrative board of the courts, in its representative capacity
(d)   the Chief Administrator of the Courts, in his representative capacity
(e)   no one, since such determinations are never subject to review.

Answer 30

Answer: (d)
CPLR 1026 provides that the Chief Administrator of the courts is the only proper party to be named in any action or proceeding to review an administrative or operational determination of the Chief Judge of the Court of Appeals, the Court of Appeals or the administrative board of the courts.