Article 3 Jurisdiction & Service, Appearance Of Court

Question 1

CPLR 301
The traditional basis by which the courts of a state may exercise jurisdiction over a person (i.e., in personam jurisdiction) is:
(a)   presence of the person within the state
(b)   enforcement power of the state
(c)   the plaintiffs selection of venue
(d)   the ability of the court to seize persons located out of the state.

Answer 1

Answer: (a)
CPLR 301 states that a court may exercise such jurisdiction over per sons as might have been exercised heretofore. Generally, this refers to the exercise of jurisdiction over the person by virtue of the person’s presence within the state.

CPLR 302 extends the traditional basis of jurisdiction over a person to include persons located outside the state who perform certain acts that are closely connected to New York State.

Question 2

  CPLR 302
If a nondomiciliary makes a contract outside New York to supply goods or services in New York:
(a)   a New York court has a statutory basis for exercising personal jurisdiction
(b)   a New York court does not have any basis for exercising personal jurisdiction
(c)   only a court of the state where the contract was made may exercise personal jurisdiction
(d)   only Federal courts have personal jurisdiction in such an instance.

Answer 2

 Answer: (a)
CPLR 302(a)(l) provides that if a nondomiciliary (e.g., person not domiciled in New York) contracts outside New York to supply goods or services in this State, a statutory basis for exercising personal jurisdiction exists.

NOTE that the state in which the contract was made and the Federal courts may also have personal jurisdiction but choices (c) and (d) are incorrect because they are not the only courts.

Question 3

  CPLR 302
A nondomiciliary who regularly does business within New York State commits a tort outside the state which injures a person within the State. As to this:
(a)   New York courts have a statutory basis for exercising personal jurisdiction
(b)   New York courts have no basis for exercising personal jurisdiction
(c)   New York courts only have personal jurisdiction over domiciliary
(d)   there is nothing in the CPLR covering this question

Answer 3

Answer: (a)
CPLR 302(a)(3) provides that there is personal jurisdiction over a non domiciliary who commits a tort outside New York (e.g., manufactures a defective product) which injures a person in New York. This is a classic example of “long-arm” jurisdiction.

Question 4

 CPLR 302
In which one of the following would a New York court have no statutory basis for exercising personal jurisdiction over a nondomiciliary of the state, where the alleged torturous conduct occurred inside the state:
(a)   defamation of character
(b)   restraint of trade
(c)   malpractice
(d)   assault and battery
(e)   a statutory basis would exist for all of the above.

Answer 4

Answer: (a)
CPLR 302(a)(2) which provides a statutory basis for a New York court to exercise personal jurisdiction over a nondomiciliary who commits a torturous act within New York expressly exempts defamation from its scope.

Question 5

  CPLR 302
The ABC Company, a corporation located and doing business in Ohio, manufactures a defective spray can which is distributed nationally. The spray can has a propensity to explode and cause severe physical injury to the user. Jones, a New York State resident, could obtain New York “long-arm jurisdiction” over ABC in which of the following instances:
1.   Jones is injured when he uses the spray can in New York
2.   Jones is injured when he uses the spray can on a motor trip to New Jersey
3.   Jones is injured when he uses the spray can in Ohio
(a)   1, 2 and 3
(b)   1 and 2, only
(c)   1 and 3, only
(d)   1, only

Answer 5

  Answer: (d)
CPLR 302(a)(3) enables the state to exercise “long-arm jurisdiction” over any nondomiciliary if the nondomiciliary commits a tortuous act without the state (e.g., manufacturing a defective product) causing injury to a person within the state (e.g., as with Jones when he was in New York) if the nondomiciliary expects or should reasonably expect the act to have consequences in the state (e.g., is a national distributor) and derives substantial revenue from interstate commerce.
Choice (d) is correct. All other choices are incorrect because the injury occurred outside New York.

Question 6

  CPLR 302
Select all correct answers.
Quinn’s Quilting is a small home-based handcrafting company located in Utah. Quinn usually makes handcraft items and sells them from his porch. In order to meet demand, Quinn has hastened production, thereby crafting defective products. In an action commenced in a New York court by Roberts, a New York resident, New York could obtain “long arm jurisdiction” over Quinn in which of the following situations:
(a)   Roberts buys a defective product from Quinn in Utah and is injured by the product in New York. Roberts sues for damages sustained by the injury.
(b)   Quinn travels to Glens Falls, New York to sell Roberts a non defective product but does not deliver it. Roberts sues for breach of contract.
(c)   Quinn drives to New York City, strikes Roberts during an argument, and thereafter returns to Utah. Roberts sues for damages sustained by the blow.
(d)   Quinn enters into a contract to supply quilts to Roberts in New York. Quinn subsequently mails non-defective products to Roberts in New York but fails to ship the entire product as promised. Roberts sues for breach of contract.

Answer 6

   Answer: (b), (c) and (d)
CPLR 302(a)(l) states that New York may obtain personal jurisdiction over a nondomiciliary who (i) transacts any business within the state, or (ii) contracts anywhere to supply goods in New York. Thus, choices (b) and (d) are correct. CPLR 302(a)(2) states that New York may obtain personal jurisdiction over a nondomiciliary who commits a tortious act (i.e., an act that injures another) within the state. Thus choice (c) is correct.
Choice (a) is incorrect under CPLR 302(a)(3) because there is an insufficient connection to New York (i.e., no regular solicitation of business in New York or substantial revenue from interstate commerce).

Question 7

 CPLR 302(d)
Plaintiff, a UK domiciliary, obtains a defamation judgment against Defendant, a New York domiciliary, for comments appearing in the UK and New York. Plaintiff obtains a judgment in the UK and seeks to attach assets of Defendant in New York. The New York Courts have personal jurisdiction over:
(a)   Plaintiff, only
(b)   Defendant, only
(c)   Plaintiff and defendant
(d)   none of the above.

Answer 7

Answer: (c)
The New York Courts have jurisdiction over the defendant because he is a resident of New York. The Court also has “long arm” jurisdic- tion over plaintiff by virtue of CPLR 302(d).

Question 8

   CPLR 303
A person not subject to personal jurisdiction who commences an action in New York State and on whose behalf no attorney has appeared is deemed to designate the ________ as his agent for the service of a summons by the defendant.
(a)   judge
(b)   defendant’s attorney
(c)   clerk of the court
(d)   Secretary of State.

Answer 8

 Answer: (c)
CPLR 303 provides that the clerk of the court is deemed the agent of a person not subject to personal jurisdiction who commences an action in New York and on whose behalf no attorney has appeared. This provision is for the benefit of the defendant to commence a new action against the plaintiff in case the court in which he is currently being sued would not have jurisdiction over his counterclaim. If the counterclaim would be within the court’s jurisdiction, defendant does not need this section since the plaintiff, by bringing suit in that court, is deemed to have submitted to the exercise of personal jurisdiction over him by that court.

Question 9

      CPLR 304
Under the CPLR, an action is commenced by:
(a)   filing a summons and complaint (or summons and notice)
(b)   filing a summons and complaint with the sheriff of the county in which plaintiff resides
(c)   filing a notice of petition with the clerk of the court
(d)   service of the summons and complaint upon the defendant.

Answer 9

Answer: (a)
CPLR 304. The CPLR provides that an action is generally commenced by filing the summons and complaint (or summons and notice). See CPLR 304 for clarification. Thus, choice (a) is correct.

Question 10

 CPLR 304
A special proceeding may be commenced by:
I.   filing a petition
II.   serving a notice of petition and a petition
III.   filing a summons and complaint.
(a)   I, only
(b)   I and II, only
(c)   II and III, only
(d)   I, II and III.

Answer 10

  Answer: (a)
CPLR 304 provides that a special proceeding is commenced by filing a petition in accordance with CPLR 2102. Thus, choice (a) is correct. Service no longer commences a special proceeding. Therefore, choices (b), (c) and (d) are incorrect. The filing of a summons and complaint commences an action.

Question 11

    CPLR 305
If a court directs that a new party be joined in an action and the order is not made upon the new party’s motion, which of the following shall be filed with the clerk and served upon the new party:
(a)   a supplemental summons
(b)   a certified copy of the court’s order
(c)   an original summons together with a certified copy of the court’s order
(d)   an order to show cause and a petition why he should not be joined
(e)   an amended summons.

Answer 11

Answer: (a)
CPLR 305(a) provides that a supplemental summons must be filed with the clerk and then served on the new party to join the court-ordered party.

Question 12

  CPLR 305
With respect to proof of service of a summons:
(a)   it may not be amended
(b)   it may only be amended in a court’s discretion
(c)   it may be amended as a matter of right within six months of being filed
(d)   it may be amended as a matter of right within three months of being filed.

Answer 12

 Answer: (b)
CPLR 305(c) provides that proof of service may be amended in the court’s discretion.
Choices (c) and (d) are incorrect since the CPLR does not prescribe a time limit.

Question 13

 CPLR 306
In the case of personal service, proof of service shall include:
(a)   the address of the person who served the summons
(b)   only the date of service and the name of the person upon whom service was made
(c)   a description of the physical premises where service was made
(d)   a description of the person served as to sex, skin color, hair color, approximate age, height and weight, and other identifying features.

Answer 13

Answer: (d)
CPLR 306(b) provides that when personal service is made, proof of service shall include a full description of the person served as contained in choice (d). This is to ensure that the defendant is actually served.
Choice (b) is incorrect since this is not what is only required. Choices (a) and (c) are not required under CPLR 306.

Question 14

  CPLR 306
Proof of service shall be:
(a)   in affidavit form when made by a sheriff
(b)   in the form of an acknowledgment by plaintiff
(c)   sworn to before a clerk of the court having jurisdiction
(d)   in the form of a certificate, when made by an authorized public officer.

Answer 14

 Answer: (d)
In cases other than when a signed acknowledgment is provided by the defendant, CPLR 306(d) requires a proof of service to be in the form of an affidavit unless service is made by a sheriff or other authorized public officer, in which case it shall be made in the form of a certificate.

Question 15

 CPLR 306-a
Select the correct answer.
Upon an action commenced in the Supreme or County Court by the filing of the summons and complaint.
(a)   the clerk shall serve a copy of the summons and complaint on the defendant
(b)   an index number shall be assigned and the index number fee shall be paid
(c)   the clerk shall file proof of service
(d)   the plaintiff shall file proof of service.

Answer 15

Answer: (b)
CPLR 306-a provides that upon filing the summons and complaint, an index number shall be assigned and the index number fee shall be paid. Choice (b) is correct.
Choice (a) is incorrect because the plaintiff serves the summons and complaint.
Choices (c) and (d) are incorrect and have no support in the CPLR.

Question 16

  CPLR 306-a
State the correct procedure by which an action is generally commenced and objection is made if service is not timely filed in the Supreme and County Courts:
I   summons and complaint are served upon defendant within the statutory period
II   summons and complaint are filed
III   if service is not timely made, the defendant motions to dismiss.
(a)   I and II only
(b)   I, II, then III
(c)   II, I, then III
(d)   II and I only.

Answer 16

 Answer: (c)
Choice (c) lists the correct procedure by which an action is commenced and objection is made if service is not timely. In this regard, sections CPLR 306-a and 306-b must be read together.
NOTE: See special service rules when statute of limitations is less than four months. Generally, however, service must be made within 120 days after commencement of the action.

Question 17

  CPLR 307
Personal service upon the State of New York shall be made by delivering the summons to:
(a)   the office of the Lieutenant-Governor
(b)   the office of the State Comptroller
(c)   the Attorney-General of the State, only at his office
(d)   an Assistant Attorney-General at an office of the Attorney-General.

Answer 17

Answer: (d)
CPLR 307(1) provides that personal service is made upon delivery of the summons to an Assistant Attorney-General at any office of the Attorney-General. In this regard, note that acknowledged personal service by mail pursuant to CPLR 312-a is available with respect to service upon the state.
All other choices are unsupported by the CPLR.

Question 18

CPLR 307
If personal service on a state officer sued solely in an official capacity is made to obtain personal jurisdiction, such service:
(a)   must be made only on the chief executive officer of the agency
(b)   must be made only on the chief executive officer of the agency or one of his two top deputies
(c)   may be made on the Attorney-General of the state
(d)   may be made on the official.

Answer 18

Answer: (d)
CPLR 307(2) provides that personal service on a state officer sued solely in an official capacity or state agency, which shall be required to obtain personal jurisdiction over such an officer or agency must be made on the individual or a person designated by the chief executive officer to accept the summons.

NOTE that mailing by certified mail, return receipt requested, to the specified offices and also personal service to an assistant attorney- general is also permissible.

Question 19

 CPLR 308
When service of a summons is made by delivering the summons within the state to a person of suitable age and discretion at defendant’s actual place of business and mailing a copy of the summons to the defendant’s last known residence, proof of such service must be filed within ____ days with ______.
(a)   thirty.…. the clerk of the court
(b)   thirty.…. opposing counsel
(c)   twenty.…. counsel
(d)   twenty.…. the clerk of the court
(e)   twenty.…. the judge.

Answer 19

 Answer: (d)
CPLR 308(2) provides that the maximum number of days to file proof of service is twenty days. The statute clarifies that “actual place of business” includes any location which, through regular solicitation or advertisement, is held out as its place of business.

Question 20

 CPLR 308
Select the best answer.
Personal service on a nondomiciliary when long-arm jurisdiction does not exist may be made by which one of the following:
(a)   delivery of the summons to him personally, wherever he is found
(b)   delivery of the summons to him personally, within the State
(c)   delivery of the summons to a person of suitable age and discretion at his home and sending a copy to his business office in an envelope which clearly states that it contains important legal papers
(d)   affixing the summons to the door of his last known residence and sending a copy to his actual place of business by first class mail
(e)   either (b), (c), or (d).

Answer 20

 Answer: (b)
CPLR 308 provides that personal service may be made by personally serving the potential defendant within New York State.
Choice (a) is incorrect since personal service outside New York is insufficient to acquire personal jurisdiction over a nondomiciliary when long-arm jurisdiction does not exist.
Choice (c) is incorrect since CPLR 308(2) states the envelope must not indicate that the papers contained therein relate to an action.
Choice (d) is incorrect since CPLR 308(4) requires that the summons be affixed to defendant’s actual residence (last known residence will not suffice).

Question 21

 CPLR 309
With regard to a person age seventeen who is married, personal service may be properly effectuated by serving:
(a)   the seventeen year old without having to serve anyone else
(b)   an adult spouse with whom the seventeen year old resides, without having to serve anyone else
(c)   the seventeen year old and her adult spouse with whom she resides
(d)   a guardian appointed by the court and the seventeen-year-old’s parents.

Answer 21

 Answer: (c)
CPLR 309(a) requires that a person under eighteen be served through a guardian, parent, person having legal custody, or an adult spouse with whom the person resides. If the person is age fourteen years or older he must also be served. Thus, (c) is the only correct answer.

Question 22

    CPLR 309
In a civil action, a fifteen year old infant is named as a defendant. At the time service is made, the infant is home with his father and mother. In order to make proper service, the following should be served:
(a)   the infant only
(b)   the father or the mother, only
(c)   father, mother and infant
(d)   either parent and infant.

Answer 22

 Answer: (d)
CPLR 309(a) provides that personal service upon a single parent is sufficient. Since the infant is fourteen or over he must also be served Thus, (d) is the only correct answer.

Question 23

       CPLR 310
Select all correct answers.
Personal service on a partnership may be made within the state:
(a)   by serving any partner
(b)   by delivering the summons to the person in charge of the partnership office, and mailing a copy to the last known residence of the partner intended to be served
(c)   if other proper service cannot be made with due diligence, by affixing a copy of the summons to the door of the partnership’s actual place of business, and mailing a copy of the summons to the partner intended to be served, at the partnership office
(d)   if other proper service cannot be made with due diligence, service may be made in such manner as the court directs, upon motion without notice.

Answer 23

  Answers: (a), (b), (c) and (d)
CPLR 310 All the choices are correct.
NOTE also that acknowledged personal service by mail pursuant to CPLR 312-a is available.

Question 24

  CPLR 310-a
Personal service upon a domestic limited partnership may be made upon:
(a)   an officer such as the Chairman of the Board
(b)   any limited partner
(c)   any managing or general agent
(d)   the person instigating the matter of which is being complained.

Answer 24

Answer: (c)
CPLR 310-a indicates that service may be made upon any managing or general partner of the limited partnership.
All other choices are unsupported by the CPLR.

Question 25

  CPLR 311
Personal service on a corporation may be made by delivery of the summons to:
1.   an assistant cashier
2.   a director
3.   a security guard
4.   an administrative assistant
(a)   1, 2, 3 and 4
(b)   1, 2 or 3 only
(c)   2 only
(d)   1 or 2 only
(e)   none of the above.

Answer 25

Answer: (d)
CPLR 311(a)1. provides that personal service on a corporation may be made by delivery of the summons to (i) an officer, (ii) a director, (iii) a managing or general agent, (iv) a cashier or assistant cashier, or (v) any other authorized agent.
NOTE, in this regard “cashier” means “corporate treasurer” rather than a check-out person at a cash register.
Acknowledged personal service by mail pursuant to CPLR 312-a is available with respect to service upon a corporation.

Question 26

 CPLR 311
Personal service of a summons on the City of New York may be made on the:
(a)   Mayor
(b)   Corporation Counsel
(c)   Comptroller
(d)   Clerk of New York County
(e)   any of the above.

Answer 26

Answer: (b)
CPLR 311(a)2. provides that personal service of a summons on the City of New York shall be made on the Corporation Counsel (i.e., the City’s legal officer) or a person designated by him to receive legal process.
All other choices are unsupported by the CPLR.

Question 27

    CPLR 312
Personal service on a court of three or more judges is made by:
(a)   only serving each judge separately with a summons
(b)   only serving each Judge with an order to show cause
(c)   delivering the summons to any one of the judges
(d)   delivering the summons to the Office of Court Administration.

Answer 27

Answer: (c)
CPLR 312 provides that personal service on a court of three or more judges is made by delivering the summons to any one of the judges. In this regard, note that acknowledged personal service by mail pursuant to CPLR 312-a is available with respect to service upon a court.

Question 28

    CPLR 312-a
Personal service by mail upon a natural person may be attempted by mailing the defendant:
1.   the summons and complaint
2.   two copies of a statement of service by mail
3.   an acknowledgment of receipt
4.   a self-addressed stamped return envelope.
(a)   1 only
(b)   1 and 2 only
(c)   1 and 3 only
(d)   2 and 3 only
(e)   1, 2, 3 and 4.

Answer 28

Answer: (e)
CPLR 312-a(a) provides that as an alternative to the methods of personal service authorized by CPLR 307, 308, 310, 311 or 312, personal service by mail may be attempted by mailing, to the defendant, all of the items listed in this question. This provision parallels Federal Civil Practice.
NOTE that service under CPLR 312-a is not complete (or effective) unless the defendant, authorized employee of the defendant, defendant’s attorney or employee of the defendant’s attorney completes and returns the acknowledgment of receipt within thirty days.

Question 29

 CPLR 312-a
In order to complete personal service by mail, the defendant, an authorized employee of the defendant, defendant’s attorney or an employee of the defendant’s attorney must complete the acknowledgment of receipt and mail or deliver it to plaintiff within ______________ of its receipt.
(a)   ten days
(b)   twenty days
(c)   thirty days
(d)   forty-five days.

Answer 29

Answer: (c)
CPLR 312-a(b) clearly indicates that choice (c) is correct.

30 days

Question 30

CPLR 312-a
If a defendant properly acknowledges receipt of service of a mailed summons and complaint, he must serve an answer within _________ days after the ________ was mailed.
(a)   twenty.…. summons and complaint
(b)   twenty.…. signed acknowledgment of receipt
(c)   thirty.…. summons and complaint
(d)   thirty.…. signed acknowledgment of receipt.

Answer 30

Answer: (b)
CPLR 312-a(b)2 states that where a summons is served with a complaint, the defendant must serve an answer within twenty days after the date the signed acknowledgment of receipt is mailed or delivered to the sender.

Question 31

     CPLR 312-a
If a defendant refuses or fails to return the signed acknowledgment of receipt, the plaintiff is entitled to:
(a)   a default judgment
(b)   proceed with the action against defendant
(c)   the reasonable expense of alternative service on defendant
(d)   dispense with the formality of service of process.

Answer 31

 Answer: (c)
CPLR 312-a(f) provides that when a defendant does not return a signed acknowledgment of receipt, the reasonable expense of serving process shall be taxed as a disbursement to the party serving process, on notice pursuant to CPLR 8402.
Choice (a) is incorrect because a party must be properly served before a default judgment may be entered against him.
Choice (b) is incorrect because an action cannot commence without proper service.
Choice (d) is incorrect and unsupported by the CPLR.

Question 32

   CPLR 313
Service of a summons outside New York may be used to acquire personal jurisdiction over a person domiciled in New York if the service is made:
(a)   only in states adjoining New York
(b)   only in states which have a reciprocal statute concerning service on their domiciliaries
(c)   only in the United States
(d)   anywhere in the world.

Answer 32

Answer: (d)
CPLR 313 provides that when there already exists a basis for personal jurisdiction (e.g., an individual being domiciled in New York), that person may be served anywhere outside New York.

Question 33

    CPLR 313
Select all correct answers.
Service of a summons outside New York may be used to acquire jurisdiction over a person domiciled in New York if the service is made by:
(a)   a sixteen year old authorized to serve process under the laws of the State in which service is made
(b)   the plaintiff personally
(c)   a duly qualified attorney of the State in which service is made
(d)   any New York resident over eighteen and not a party to the action.

Answer 33

Answer: (a), (c) and (d)
CPLR 313 provides that a New York domiciliary (i.e., someone over whom New York has a personal jurisdictional predicate) may be served outside New York State (i) in the same manner as service is made within New York by any person authorized to make service within New York (e.g., a New York nonparty resident over eighteen years of age), (ii) by any person authorized to make service by the other State, territory, possession or country or (iii) by a duly qualified attorney (or equivalent) in the other jurisdiction.

Question 34

  CPLR 316
Which of the following is clearly improper service by publication pursuant to an order in a non-matrimonial action:
(a)   publication in two Spanish language newspapers designed to give notice to a Spanish-speaking defendant
(b)   publication in a negligence action, in two newspapers having a circulation of under five hundred thousand copies
(c)   publication in two newspapers which are distributed only once a week
(d)   publication in two newspapers which are published daily.

Answer 34

 Answer: (a)
CPLR 316(a) requires publication in two newspapers, at least one in the English language, for a specified time, at least once in each of four successive weeks. Thus, choice (a) would be improper service by publication.

Question 35

   CPLR 316
With regard to service by publication in a non-matrimonial action, service is deemed complete on a specified number of days after the first publication. The correct number of days is:
(a)   fifteen
(b)   eighteen
(c)   twenty-eight
(d)   thirty-one.

Answer 35

 Answer: (c)
CPLR 316(c) provides that with respect to service by publication in non-matrimonial actions, service is complete on the twenty-eighth day after the first publication.

Question 36

  CPLR 316
Where there has been service by publication in a matrimonial action, service is deemed complete on ________________ after the first publication.
(a)   the following day
(b)   the thirtieth day
(c)   the twenty-first day
(d)   the fifteenth day.

Answer 36

Answer: (c)
CPLR 316(c) provides that generally service by publication is complete twenty-eight days after the day of the first publication. However, in MATRIMONIAL actions, service is complete on the TWENTY-FIRST DAY after the first publication.

Question 37

  CPLR 317
Select the best answer.
Where there has been service by publication in an action other than for divorce, annulment or partition, and the court finds that the defendant did not personally receive notice of the summons in time to defend, and has a meritorious defense, the defendant may be allowed to defend the action
(a)   only before entry of the judgment
(b)   within two years after entry of the judgment
(c)   within eighteen months after defendant obtains knowledge of entry of the judgment
(d)   within one year after defendant obtains knowledge of entry of the judgment, but in no event more than five years after such entry.

Answer 37

 Answer: (d)
CPLR 317 provides additional protection to individuals against whom a default judgment has been entered in actions commenced other than by personal delivery. This provision enables the defendant to defend the action within one year after obtaining knowledge of entry of the judgment but in no event more than five years after such entry. In addition, a party who was personally served may be able to have the default judgment against him vacated under CPLR 5015(a)(1).

Question 38

   CPLR 318
The designation of an agent to accept service of a summons may be made by:
(a)   a natural person, corporation or partnership
(b)   only a corporation
(c)   only a partnership
(d)   only a corporation or partnership.

Answer 38

 Answer: (a)
CPLR 318 provides that a natural person (i.e., a human), corporation or partnership may designate an agent to receive service of a summons.

Question 39

   CPLR 318
The designation of an agent to accept service of a summons shall be filed in:
(a)   the office of Secretary of State
(b)   the office of the principal making the designation
(c)   the office of the State Attorney-General
(d)   the office of the clerk of the county in which the principal resides or has its principal office.

Answer 39

Answer: (d)
CPLR 318 provides that the written designation of an agent to accept service of a summons shall be filed in the office of the clerk of the county in which the one designating the agent (i.e., the principal) resides or has its principal office.

Question 40

  CPLR 320
As a general rule, the appearance of a defendant in a case without any other action on her part is most nearly equivalent to:
(a)   the conferring of subject matter jurisdiction upon the court
(b)   personal service in the State of the summons upon the defendant
(c)   a confession of judgment
(d)   a settlement of the action.

Answer 40

Answer: (b)
CPLR 320(b) provides that generally an appearance in an action gives rise to personal jurisdiction over the defendant unless an objection to personal jurisdiction has been made. Thus, an appearance without objection to personal jurisdiction is equivalent to personal service in the State.
Choice (a) is incorrect since the parties may never waive subject matter jurisdiction (i.e., the authority of the Court to preside over a matter).
Choices (c) and (d) are incorrect since a mere appearance does not give rise to a settlement or a confession of judgment.

Question 41

  CPLR 320
A defendant upon whom personal service of a summons and complaint has been made within the State has _____ days after service to appear in the action:
(a)   ten
(b)   twenty
(c)   fifteen
(d)   thirty.

Answer 41

Answer: (b)
CPLR 320(a) provides that an appearance must be made by the defendant within twenty days after personal service in New York State. If service is made in any other manner, appearance must be made within thirty days of the date that the CPLR deems appearance complete. For example with regard to “nail and mail” service under CPLR 308(4) service is deemed complete ten days after the proof of service is filed, then defendant has forty days after proof of service is filed to appear.

Question 42

 CPLR 320
A defendant appears in an action by:
(a)   signing an admission of service
(b)   serving an answer or notice of appearance
(c)   obtaining counsel to defend him
(d)   phoning plaintiff to discuss the action
(e)   making any type of motion.

Answer 42

 Answer: (b)
CPLR 320(a) clearly states that a defendant appears by serving an answer or notice of appearance. A defendant also may appear by making a motion which has the effect of extending the time to answer.
Choice (a) is incorrect since an admission of service is irrelevant to appearance in the action.
Choice (c) is incorrect since retaining counsel is a matter strictly bet ween the defendant and attorney.
Choice (d) is incorrect since the discussion takes place outside the judicial proceeding.
Since all motions do not extend the time to answer, choice (e) is incorrect.

Question 43

  CPLR 321
If a party appears in an action by an attorney, the party:
(a)   may also act in person as a matter of right
(b)   may not also act in person
(c)   may also act in person with consent of the court
(d)   may also act in person with consent of his attorney.

Answer 43

 Answer: (c)
CPLR 321(a) provides that once a party appears by attorney, he may not act in person in the action except by consent of the court.
Choice (a) is incorrect since court permission is necessary to act in person.
Choice (b) is incorrect since court approval to act in person may be granted.
Choice (d) is incorrect since the attorney’s permission is neither sufficient nor required at all.

Question 44

 CPLR 321
Generally, an attorney of record may be changed:
(a)   only with the consent of an adversary
(b)   without restriction
(c)   only by the Court upon ninety days notice to all parties
(d)   by filing with the clerk a consent to the change signed by the retiring attorney and signed and acknowledged by the party.

Answer 44

 Answer: (d)
CPLR 321(b)(1) provides that an attorney of record (i.e., attorney registered with the court as representing a party) may be changed by filing with the court clerk a consent to change signed by the retiring attorney and signed and acknowledged by the party.
Choice (a) is incorrect since an attorney may be changed without the consent of an adversary.
Choice (c) is incorrect since there is no ninety day notice requirement.

Question 45

  CPLR 321
If an attorney appearing for a party dies before judgment, the party is afforded a certain amount of time to appoint another attorney, during which no further proceedings in the action can be taken against the party without leave of court. The time period for which this protection extends is:
(a)   until twenty days after the death of his attorney
(b)   until thirty days after the death of his attorney
(c)   until thirty days after notice to appoint another attorney has been served on the party either personally or as directed by the court
(d)   until sixty days after the death of his attorney.

Answer 45

 Answer: (c)
CPLR 321(c) provides that if before judgment an attorney dies or becomes disabled, no further action may be taken against his client without leave of court until thirty days after notice to appoint another attorney has been served (or as otherwise directed by the court).

Question 46

  CPLR 321(d)
An attorney may appear on behalf of a party in a civil action or proceeding for limited purposes:
(a)   only if he or she has local co-counsel assisting him or her;
(b)   unless otherwise directed by the court;
(c)   only if the limited purpose for which the attorney appears is one listed in the CPLR;
(d)   An attorney may never appear for limited purposes.

Answer 46

 Answer (b)                                                                    
Correct answer is (b) per CPLR 321(d)

Question 47

   CPLR 325
If an action is pending in one court but it appears that the damages sustained are less than demanded and within the jurisdictional limits of a court of lower jurisdiction, a waiver of jury trial in the first court:
(a)   is inoperative after removal to the lower court
(b)   continues in effect after removal to the lower court
(c)   is not referred to in the applicable CPLR section
(d)   is operative after removal but only if the removal is ordered by the Appellate Division.

Answer 47

Answer: (a)
CPLR 325(c) and (d) provides that if an action is pending in one court (e.g., Supreme Court) and it appears that the amount of damages are less than that demanded in the complaint and within the jurisdiction of a lower court (e.g., New York City Civil Court) but for the original demand, the higher court may remove the case to the lower court and any waiver of a jury trial is inoperative after such removal.

Question 48

  CPLR 325
“Removal” of an action most nearly means:
(a)   the transfer of the action from one court to another
(b)   the dismissal of the action
(c)   the voluntary termination of the action by the parties
(d)   the transfer of the action from a court to a non-judicial forum for determination there.

Answer 48

Answer: (a)
CPLR 325 contains the grounds for removal in New York. Removal in this context refers to a transfer of the action from one court to another court (e.g., Supreme Court to New York City Civil Court).

Question 49

  CPLR 326
An order to stay proceedings for the purpose of removing an action may be made:
(a)   by the court in which the action is pending or the court to which removal is sought
(b)   only by the court in which the action is pending
(c)   only by the court to which removal is sought
(d)   only by the Appellate Division.

Answer 49

 Answer: (a)
CPLR 326(a) provides that an order to stay proceedings (i.e., suspend the action) for the purpose of removing (i.e., transferring) the action may be made in the court in which the action is pending or the court in which removal is sought. All other choices are unsupported by the CPLR.

Question 50

  CPLR 327
When a court finds that in the interest of substantial justice the action should be heard in another forum, the court may:
(a)   only on its own motion stay or dismiss the action
(b)   only on the motion of the plaintiff, stay or dismiss the action
(c)   only on the motion of the defendant, stay or dismiss the action
(d)   none of the above.

Answer 50

  Answer: (d)
CPLR 327(a) provides that when the court finds that in the interest of substantial justice the action should be heard in another forum (e.g., the current forum is inconvenient or causes an undue hardship), the court may, upon a party’s motion, stay (i.e., suspend or dismiss) the action. Thus, (a), (b), and (c) are incorrect.

Question 51

   CPLR 328
In connection with a proceeding in a tribunal outside the State a New York court may order service of any document upon any person who is domiciled or can be found within the State. This order may be issued by:
(a)   any New York court
(b)   only the Supreme Court
(c)   only a County Court
(d)   either the Supreme Court or a County Court
(e)   any New York court which would have jurisdiction if the action was brought in New York.

Answer 51

 Answer: (d)
CPLR 328(a) provides that the Supreme Court or a County Court may, upon application or in response to letters rogatory (i.e., a request by a lawful court of another jurisdiction that a court assist as necessary in the taking of the testimony of an individual), order service of any document upon any person domiciled or found in New York. All other choices are unsupported by the CPLR.