Article 3 Flashcards
What commences an action?
Generally, the filing of a summons & complaint OR summons with notice .
What commences a special proceeding?
The filing of the petition
The service of a notice of petition commenced a special proceeding T/F?
FALSE
The FILING of the petition commences a special proceeding
Filing under CPLR 304 means the delivery of the summons with notice or summons and complaint to the clerk of the court.
T/F?
FALSE
Definition of “filing@ includes PAYMENT to the clerk of the required Fee.
At the time of filing the petition and notice of petition, the clerk is required to date stamp the original papers but not the copies.
T/F?
FALSE
Clerk must stamp the original AND one copy
If filing is by fax, the clerk must return a date stamped copy of ______ and the index #
The first page of the papers!
If filing is by electronic means, clerk must notify filing party of ______ and date and time of filing.
Index Number
A summons shall specify FOUR things
- Basis of venue
- Residence of Plaintiff (if based on residence)
- Index Number
- Date filed with the clerk
In a consumer credit transaction, county of residence of defendant ( if in NYS) and county where transaction took place ( if in NYS) must appear on summons.
T/F?
TRUE
A _____ is used to bring a new party into an action.
Supplemental Summons
In a Supreme Court case, generally service must be made within ___\ days after filing summons and complaint
120 days
Personal service on an attorney general may not be made to assistant attorney general.
T/F?
FALSE
It 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 with ___ days of service to person of suitable age and discretion.
20 DAYS
In mail and mail, filing proof of service must be done within ____ days of nailing or mailing, whichever is done last.
20 DAYS
In mail and mail, service to a person of suitable age and discretion is complete ____ days after FILING proof of service
10 days
An infant under the age of ____ or over must also be served.
14 yrs old
To serve a partnership, who may be served?
Any partner
A corporation can be served by serving any employee.
T/F?
FALSE
To serve NYC, you can serve the mayor.
T/F?
FALSE
you can serve the mayor only in places outside of NYC
If service cannot be made as per the prescribed methods, service may be made in any manner the court directs.
T/F?
TRUE
You need a court order to serve by mail.
T/F?
FALSE
Service by mail can be done by plaintiff or any other person
T/F?
TRUE
Acknowledgement of receipt must be mailed or delivered within ____ days of receipt
30 DAYS
Answer must be filed within ___ days after signed acknowledgement is mailed or delivered to sender .
20 Days
A court order is needed for service by publication.
T/F?
TRUE
Service by Publication requirement for NON MATRIMONIAL CASES
1st publication must be made within 30 days of order
2 newspapers, at least one in English.
Must be in 1 in each newspaper for 4 consecutive weeks
Service is complete on 28th day after 1st day of publication
Service by publication in MATRIMONIAL cases
1 newspaper
At least once each week for 3 consecutive weeks
Mailing of summons also required
Service is complete day after 21st day
A person NOT served by personal delivery has up to _______ after they discover default judgement to come in and defend action but NO MORE THAN ____ after entry of judgement
1 year
5 years
When summons is served by personal delivery in NYS defendant has ____ days after service is complete to answer.
20 days
When a summons Is served by anything other than personal delivery the defendant has ____ days after service is complete to answer
30 days
A corporation and voluntary association must appear by ____
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 is called A. Third party B. Interpleader C. Supplemental D. Duplicate
C. Supplemental
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 office
A. 1&3 only
B.1 only
C. 3 only
D. 2&3 only
C. 3 only
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 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. Defendant may move for dismissal.
Where service is by mail and mail or by delivery to person of suitable age and discretion and then mailing, delivery and mailing must be done within 20 days of each other. In such cases service is complete \_\_\_ days after filing proof of service. A. 10 B. 20 C. 30 D. None of the above
A. 10 days.
In personal service upon an infant, if the infant is of the age of \_\_\_ and over, the summons shall also be personally served on the infant. A. 7 B. 10 C. 14 D. 16
C. 14 yrs old
Which of the 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 and mailing to the named partner
3. The spouse of any one of the partners and mailing to the partner
4. Person in charger of partnership in office in NYS AND Mailing to partner.
A. 1&4 only
B. 2 only
C. 3 only
D. 2&3 only
C. 3 only
A person to whole summons was not personally delivered and who does not appear may be allowed to defend the action within \_\_\_\_ after he obtains knowledge of the entry of judgement. How ever the preceding period cannot extend more than \_\_\_ after such entry. A.1 year…5year B. 4 years… 7 years C. 5 years…. 7 years D. 7 years… 20 years
A. 1 year… 5 years
Which of the following statements are true? A court may excessive personal jurisdiction over any non-domiciliary, his executor or administrator who in person or through agent
1. Transacts business within NYS or contracts anywhere to supply goods or services in NYS
2. Commits a tortious act without the state( except defamation of character)
3. Owns, uses, or posses any real property in the state.
A. 1,2&3
B.1&2 only
C. 2&3 only
D. 1&3 only
D. 1&3 only
Which of the following 2 statements are true. Filing may be done by facsimile transmission (FAX) or by electronics means
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 electronics means, clerk must notify filing party of index number date and time of filing
A. 1 only
B. 2 only
C. Both
D. Neither
C. Both are correct.
