Article 30 Remedies and Pleading Flashcards
CPLR 3001
A declaratory judgment:
(a) can be rendered by any court
(b) can be rendered to determine legal rights on a given topic even though there are no parties involved
(c) can be rendered to determine the rights and legal relations of the parties to a controversy
(d) can be rendered only by an appellate court.
Answer: (c)
CPLR 3001 provides that a declaratory judgment has the effect of a final judgment as to the rights and other legal relations of the parties to a justiciable controversy. Thus, a declaratory judgment “declares” the rights of the parties.
Choices (a) and (d) are incorrect since only the Supreme Court may render a declaratory judgment.
Choice (b) is incorrect since a declaratory judgment cannot determine legal rights without the existence of “parties.”
CPLR 3002
Select the correct statement.
(a) When there is a cause of action against an agent and his undisclosed principal, the commencement of an action against the agent after disclosure of the principal bars an action against the principal.
(b) If an action on a written agreement ends in a judgment denying recovery, an action to reform the agreement and to enforce it as reformed is thereby barred.
(c) When an action is commenced against one person although the cause of action exists against several persons, the cause of action against the others is not thereby barred.
(d) A claim for damages sustained by misrepresentation in the inducement of a contract is inconsistent with a claim for rescission of the contract.
Answer: (c)
CPLR 3002(a) provides that where causes of action exist against several persons, the commencement or maintenance of an action against one shall not be deemed an election of remedies which bars an action against the others. Thus, choice (c) is correct.
CPLR 3004
If a party seeks to rescind a transaction that is void or voidable because of fraud:
(a) he must prior to commencing the action tender restoration of any benefits he has received as the result of the transaction
(b) the court may make tender of restoration of the benefits a condition of its judgment
(c) the court may in the judgment adjust the equities between the parties so unjust enrichment is avoided
(d) only (b) and (c) are correct
(e) none of the above.
Answer: (d)
CPLR 3004 provides that a party who seeks to rescind a transaction that is void or voidable because of fraud shall not be denied relief because of a failure to tender before judgment restoration of such benefits; but the court may make a tender of restoration a condition of its judgment and may otherwise in its judgment adjust the equities between the parties so that unjust enrichment is avoided. Thus, only choices (b) and (c) are correct.
CPLR 3011
Which of the following is not a pleading:
(a) a complaint
(b) an answer
(c) a bill of particulars
(d) an answer with counterclaim.
Answer: (c)
CPLR 3011 sets forth the types of pleadings in an action. An answer may include a counterclaim.
Choices (a), (b) and (d) are pleadings. A bill of particulars is an amplification of a pleading, but is not a pleading itself. Choice (c) is not a pleading.
CPLR 3011
An answer:
1. is the response to a complaint
2. may include a counterclaim against a plaintiff
3. may include a cross-claim against a defendant.
(a) 1, 2 and 3
(b) 1, only
(c) 1 and 2, only
(d) 1 and 3, only.
Answer: (a)
CPLR 3011 provides that all three statements are correct. Thus, choice (a) is correct.
CPLR 3011
Select the correct statement.
(a) The response to an interpleader complaint is called a reply.
(b) A defendant’s pleading against another claimant is called an interpleader complaint.
(c) The response to a counterclaim is called an answer.
(d) If a cross-claim contains a demand for a response, the response is called a reply.
Answer: (b)
CPLR 3011 provides that a defendant’s pleading against another claimant is called an interpleader complaint. Thus, choice (b) is correct.
Choice (a) is incorrect since the response to an interpleader complaint is called an answer.
Choice (c) is incorrect since the response to a counterclaim is called a reply.
Choice (d) is incorrect since the response to a cross-claim which contains a demand for a response is called an answer.
CPLR 3011
Which of the following is a pleading?
I complaint
II answer
III reply
IV answer with cross-claim
V bill of particulars.
(a) I, II and III, only
(b) I and II, only
(c) I, II and V, only
(d) I, II, III and IV, only
(e) I, II, III, IV and V.
Answer: (d)
CPLR 3011 indicates that all except a bill of particulars are pleadings. A bill of particulars, itself, is not a pleading. Rather it is an amplification of a pleading as authorized under CPLR 3041.
CPLR 3011
Select all correct statements:
(a) The response to a counterclaim is called a reply.
(b) The response to an interpleader complaint is called an answer.
(c) A defendant’s pleading against a person not already a party and who is not a claimant is called a third-party complaint.
(d) The response to a cross-claim, when a response is demanded, is called an answer.
Answer: (a), (b), (c) and (d)
CPLR 3011 provides that all choices for this question are correct.
NOTE that with regard to choice (c), if the person is also a claimant the pleading is called an interpleader complaint.
CPLR 3011
A reply is served:
(a) by the defendant if there are inconsistencies in the plaintiff’s complaint
(b) by the plaintiff if corrections in the plaintiff’s complaint are to be made
(c) by the plaintiff if the defendant sets up a counterclaim in his answer
(d) by the plaintiff if he intends to set up a counterclaim.
Answer: (c)
CPLR 3011 provides that there shall be a reply to a counterclaim (i.e., a claim by defendant against plaintiff). All other choices are unsupported by the CPLR.
CPLR 3012
Select the best answer in connection with the service pleadings:
(a) the complaint may be served with the summons.
(b) in an action arising out of a consumer credit transaction, the complaint shall be served with the summons
(c) a subsequent pleading asserting new or additional claims for relief shall be served upon a party who has not appeared in the manner provided for service of a summons
(d) in any other case, a pleading shall be served in the manner provided for service of papers generally
(e) options (a) through (d) are either all correct or all incorrect.
Answer: (e)
Option (e) is the best answer because all options, (a) through (d) are correct, as amended eff. 5/7/22, per Ch. 593, L. 2021.
Note the words “may” in statement (a) and “shall” in statement (b) and the distinction they incur.
CPLR 3012
When a complaint is not served with the summons and the defendant serves a written demand for the complaint, service of the complaint must be made within _______ days after service of the demand.
(a) seven
(b) ten
(c) fifteen
(d) twenty
(e) thirty.
Answer: (d)
CPLR 3012(b) provides that the applicable time limit is twenty days.
CPLR 3012-b, CPLR 3012-a
In which of the following actions is a certificate of merit executed by the attorney for the plaintiff required:
1. medical malpractice
2. residential foreclosure
3. commercial disputes
4. podiatric malpractice.
(a) 1, 2 and 4 only
(b) 1, 2 and 3 only
(c) 1 and 4 only
(d) 2 only.
Answer: (a)
Pursuant to CPLR 3012-a and CPLR 3012-b a certificate of merit is required in medical, dental, and podiatric malpractice as well as residential foreclosure actions.
CPLR 3013
Statements in a pleading shall be sufficiently particular to give the court and the parties notice of:
(a) the transactions, occurrences, or series of transactions or occurrences intended to be proved
(b) the material elements of each cause of action
(c) the material elements of each defense
(d) only (a) and (b) are correct
(e) (a), (b) and (c) are all correct.
Answer: (e)
CPLR 3013 provides that statements in a pleading shall be sufficiently particular to give the court and parties notice of the transactions, occurrences, or series of transactions or occurrences intended to be proved, and the material elements of each cause of action or defense. Thus, choices (a), (b) and (c) are all correct.
CPLR 3014
Select all correct statements.
(a) Separate causes of action or defenses shall be separately stated and numbered.
(b) Separate causes of action or defenses need not be consistent with each other.
(c) All causes of action or defenses must be contained in a single paragraph of not more than three hundred words.
(d) A hypothetical cause of action or defense is not permitted.
Answers: (a) and (b)
CPLR 3014 states that separate causes of action or defenses shall be separately stated and numbered and may be stated regardless of consistency (e.g., I was not driving the automobile and if l was, I was driving with due care).
Choice (c) is obviously incorrect.
Choice (d) is incorrect since causes of action or defenses may be stated alternatively or hypothetically.
CPLR 3015
Select the best answer.
(a) The performance or occurrence of a condition precedent in a contract must be pleaded.
(b) Where any party is a corporation, the complaint shall so state.
(c) A judgment of a court may be pleaded without stating matter showing jurisdiction to render it.
(d) Only (b) and (c) are correct.
(e) (a), (b) and (c) are all correct.
Answer: (d)
CPLR 3015(a) provides that the performance or occurrence of a condition precedent in a contract need not be pleaded. Thus, choice (a) is incorrect. CPLR 3015(b) provides that where a party is a corporation, the complaint shall so state. Thus, choice (b) is correct. CPLR 3015(c) provides that a judgment of a court may be pleaded without stating matter showing jurisdiction to render it. Thus, choice (c) is correct.
CPLR 3015
If the plaintiff is required to be licensed by the City of New York Department of Consumer Affairs, and the action stems from the licensed business conduct, the complaint must allege:
(a) the plaintiff was duly licensed at the time services were rendered
(b) name and number of the license, and
(c) how long the license was issued
(d) (a) and (b) only.
Answer: (d)
CPLR 3015 requires the complaint to state (a) and (b), as well as the name of the governmental agency that issued the license.
CPLR 3016
In an action for libel or slander:
(a) only a general description of the language complained of need be set forth in the complaint
(b) the particular words complained of must be set forth in the complaint
(c) the complaint must state specifically the manner in which the words complained of apply to the plaintiff
(d) the complaint must show either the language complained of or its application to the plaintiff, but both are not required.
Answer: (b)
CPLR 3016(a) provides that in an action for libel or slander, the particular words complained of shall be set forth in the complaint.
Choice (a) is incorrect because a general description is insufficient.
Choice (c) is incorrect since the application of the words to the plaintiff may be stated generally.
Choice (d) is incorrect since both must be pleaded although not with the same degree of specificity.
CPLR 3016
In an action arising out of a consumer credit transaction, where a purchaser, borrower or debtor is a defendant, the contract or other written instrument on which the action is based shall be attached to the:
(a) statement
(b) complaint
(c) summons
(d) report
(e) contract
Answer (b)
The answer is derived from new subdivision (j) which is effective 5/7/22, per Ch. 593, L.2021.
CPLR 3016(Revised, 2022)
If the account in the preceding question was a revolving credit account, the charge-off statement may be attached to the ______________ instead of the __________________ or other ___________ _______________.
(a) report, complaint, final statement
(b) statement, complaint, written report
(c) summons, complaint, written instrument
(d) complaint, contract, written instrument
(e) contract, complaint, final report
Answer______
Answer(d) subdivision
(Revised, 2022)CPLR 3016
See subdivision 5(B) regarding required itemization of the amount sought on revolving credit accounts.
CPLR 3017
Select the best statement.
(a) Generally a complaint contains a demand for relief.
(b) Relief in the alternative may not be demanded.
(c) The court may generally grant any type of relief within its jurisdiction appropriate to the proof, whether or not demanded.
(d) Only (a) and (b) are correct.
(e) Only (a) and (c) are correct.
Answer: (e)
CPLR 3017(a) provides that as a general rule every complaint must contain a demand for relief. Thus, choice (a) is correct. The statute also provides that relief in the alternative may be demanded. Thus, choice (b) is incorrect. The statute provides that the court may grant any type of relief within its jurisdiction appropriate to the proof, whether or not demanded. Thus, choice (c) is correct.
Finally, note that in an action to recover damages for personal injuries or wrongful death, there shall be a prayer for general relief but an amount of damages sought must not be stated in the original demand.
CPLR 3018
If a party in a responsive pleading indicates that he lacks knowledge or information sufficient to form a belief as to the truth of a statement contained in the pleading to which he is responding:
(a) it has the effect of an admission as to the truth of the statement
(b) it has the effect of a denial as to the truth of the statement
(c) it has neither the effect of an admission nor a denial
(d) the effect is to be determined solely by the court.
Answer: (b)
CPLR 3018(a) provides that in a responsive pleading, a response that a party lacks knowledge or information sufficient to form a belief shall have the effect of a denial. Thus, choice (b) is correct.
CPLR 3018
P brought suit against D. There was a final judgment for D on the merits. P is now barred from bringing a second suit against D on the same cause of action by the defense of:
(a) statute of frauds
(b) stare decisis
(c) payment
(d) res judicata.
Answer: (d)
CPLR 3018(b) lists “res judicata” as an affirmative defense (i.e., one which must be raised in the responsive pleading). Res judicata means the matter has been decided in a previous action.
Choice (a) is incorrect since the statute of frauds relates to the doctrine that certain agreements must be in writing.
Choice (b) is incorrect since “stare decisis” refers to the principle that courts will adhere to prior decisions as precedent.
Choice (c) is obviously incorrect.
CPLR 3019
Select the best answer.
(a) A counterclaim is generally asserted by a defendant against a plaintiff.
(b) A cross-claim is generally asserted by a plaintiff against a defendant.
(c) Both (a) and (b) are correct.
(d) Neither (a) nor (b) is correct.
Answer: (a)
CPLR 3019(a) provides that a counterclaim is generally asserted by a defendant against a plaintiff. Thus, choice (a) is correct. CPLR 3019(b) provides that a cross-claim is generally asserted by a defendant against another defendant. Thus, choice (b) is incorrect. It should be noted that a counterclaim or cross-claim need not be related to the main claim in order to be asserted.
CPLR 3020
To verify a pleading means:
(a) to have it double checked for accuracy
(b) to have it signed by at least two attesting witnesses
(c) to include in the pleading a statement under oath that the pleading is true to the knowledge of the deponent, except as to matters alleged on information and belief, and that as to those matters he believes them to be true
(d) both (a) and (b) are correct
(e) both (b) and (c) are correct.
Answer: (c)
CPLR 3020(a) states that a verification is a statement under oath that the pleading is true to the knowledge of the deponent, except as to matters alleged on information and belief, and that as to those matters he believes them to be true. Thus, choice (c) is correct. The other choices have no support in the CPLR.
