Article 30 Remedies and Pleading

Question 1

  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 1

 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.”

Question 2

 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 2

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.

Question 3

  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 3

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.

Question 4

 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 4

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.

Question 5

 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 5

  Answer: (a)
CPLR 3011 provides that all three statements are correct. Thus, choice (a) is correct.    

Question 6

   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 6

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.

Question 7

 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 7

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.

Question 8

 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 8

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.

Question 9

    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 9

 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.

Question 10

  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 10

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.

Question 11

 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 11

Answer: (d)
CPLR 3012(b) provides that the applicable time limit is twenty days.

Question 12

   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 12

 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.

Question 13

   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 13

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.

Question 14

  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.

Answer 14

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.

Question 15

  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 15

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.

Question 16

  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 16

 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.

Question 17

 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 17

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.

Question 18

    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 18

 Answer (b)
The answer is derived from new subdivision (j) which is effective 5/7/22, per Ch. 593, L.2021.

Question 19

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 19

Answer(d) subdivision
(Revised, 2022)CPLR 3016
See subdivision 5(B) regarding required itemization of the amount sought on revolving credit accounts.

Question 20

 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 20

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.

Question 21

 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 21

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.

Question 22

 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 22

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.

Question 23

 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 23

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.

Question 24

   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 24

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.

Question 25

  CPLR 3020
Who may verify a pleading on behalf of New York State if New York State is a party to an action:
(a)   only the Attorney-General or an Assistant Attorney-General
(b)   only the Governor
(c)   any person acquainted with the facts
(d)   no one, since the pleadings of New York State are automatically deemed verified.

Answer 25

Answer: (c)
CPLR 3020(d) provides that if the party is the State, a governmental subdivision or a public officer in behalf of any of them, the party’s verification may be made by any person acquainted with the facts. All other choices are unsupported by the CPLR.

Question 26

   CPLR 3022
Select the best answer.
(a)   A defectively verified pleading shall be treated as an unverified pleading.
(b)   If a defectively verified pleading is served where the adverse party is entitled to a verified pleading, it may be treated as a nullity, provided that notice with due diligence is given to the attorney of the party who served the defectively verified pleading.
(c)   (a) and (b) are both correct.
(d)   Neither (a) nor (b) is correct.

Answer 26

Answer: (c)
CPLR 3022 provides that a defectively verified pleading shall be treated as an unverified pleading. Where a pleading is served without a sufficient verification in a case where the adverse party is entitled to a verified pleading, he may treat it as a nullity, provided he gives notice with due diligence to the attorney of the adverse party that he elects to do so. Thus, choices (a) and (b) are both correct.

Question 27

  CPLR 3024
If a pleading is so vague or ambiguous that a party cannot reasonably frame a response he may move for a more definite statement. This motion shall be served within days after the challenged pleading is served.
(a)   five
(b)   ten
(c)   fifteen
(d)   twenty.

Answer 27

 Answer: (d)
CPLR 3024(c) provides that such a motion shall be served within twenty days after the challenged pleading is served. NOTE that if the motion is denied, the responsive pleading shall be served within ten days after service of notice of entry of the order and, if it is granted, an amended pleading complying with the order shall be served within that time.

Question 28

 CPLR 3025
A party may amend his pleading _______ without leave of court within twenty days after its service, or at any time before the period for responding to it expires, or within twenty days after service of a pleading responding to it.
(a)   once
(b)   twice
(c)   three times
(d)   an indefinite number of times
(e)   zero times (leave of court is always required).

Answer 28

Answer: (a)
CPLR 3025(a) provides that once is the correct answer.

Question 29

   CPLR 3025
A supplemental pleading may be served:
(a)   at any time by leave of court or by stipulation of all parties
(b)   only within twenty days after service of the original pleading
(c)   only within sixty days after issue is joined, and before trial
(d)   only within thirty days after issue is joined, and before trial.

Answer 29

Answer: (a)
CPLR 3025(b) provides that a party may supplement his pleading at any time by leave of court or by stipulation of all parties.
NOTE that a supplemental pleading usually contains new matters which have occurred since the original pleading was served; and any motion to amend or supplement pleadings must be accompanied by the proposed or supplemental pleading clearly showing the changes or additions to be made.

Question 30

 CPLR 3031
An action may be commenced without the service of a summons, or may be continued after the service of a summons, without pleadings, by the filing of a statement, signed and acknowledged by all the parties or signed by their attorneys, specifying plainly and concisely the claims and defenses between the parties and the relief requested. This procedure is known as:
(a)   the New York Summary Judgment Procedure
(b)   the New York Summary Proceedings Procedure
(c)   the New York Simplified Procedure for Court Determination of Disputes
(d)   the New York Alternative Procedure for the Simplified Resolution of Disputes.

Answer 30

   Answer: (c)
CPLR 3031 provides that such procedure shall be known as the New York Simplified Procedure for Court Determination of Disputes.

Question 31

  CPLR 3033
Any written contract, otherwise valid under the substantive law, to submit any existing or future controversy to the court pursuant to the New York Simplified Procedure for Court Determination of Disputes, shall be construed as an implied consent of the parties to the jurisdiction of:
(a)   the New York State Supreme Court
(b)   the New York City Civil Court
(c)   any County Court of New York State
(d)   the New York Simplified Procedure Commission
(e)   none of the above.

Answer 31

Answer: (a)
CPLR 3033 provides that such a contract shall be construed as an implied consent of the parties to the jurisdiction of the New York State Supreme Court.

Question 32

    CPLR 3036 & 3037
Select the best answer with respect to the New York Simplified Procedure for Court Determination of Disputes:
(a)   Appellate review is not available.
(b)   The provisions of the CPLR pertaining to venue do not apply.
(c)   Generally the rules as to the admissibility of evidence do not apply.
(d)   Only (b) and (c) are correct.
(e)   None of the above is correct.

Answer 32

Answer: (c)
CPLR 3037 enumerates the instances when appellate review is available. Thus, choice (a) is incorrect. CPLR 3036(8) provides that the provisions of the CPLR pertaining to venue do apply. Thus, choice (b) is incorrect. CPLR 3036(1) provides that generally the rules as to the admissibility of evidence shall be dispensed with.

Question 33

   CPLR 3042
If a party served with a demand for a bill of particulars willfully fails to provide particulars that the court finds ought to have been provided, the court:
(a)   must dismiss the action
(b)   must hold the disobeying party in contempt of court
(c)   may make only a final order on the matter, as is just
(d)   may make a final or conditional order on the matter, as is just.

Answer 33

Answer: (d)
CPLR 3042 provides that the court may make such final or conditional order as is just, including such relief as is set forth in CPLR 312

Question 34

  CPLR 3042
Within how many days of service of a demand for a bill of particulars must the party so served respond to the demand?
(a)   10
(b)   20
(c)   30
(d)   35.

Answer 34

Answer: (c)
CPLR 3042(a) states that the party on whom the demand is served must serve a bill of particulars within 30 days. If the party objects to any item, the reasons for the objection must be stated.

Question 35

CPLR 3044
Select the correct statement.
(a)   All bills of particulars must be verified.
(b)   Only a bill of particulars subsequent to a verified pleading must be verified.
(c)   In a negligence action, all bills of particulars must be verified.
(d)   No bill of particulars is required to be verified.

Answer 35

 Answer: (c)
CPLR 3044 provides that if a pleading is verified, a subsequent bill of particulars shall also be verified. Additionally, a bill of particulars with respect to a cause of action for negligence shall be verified whether such pleading be verified or not. Thus, choice (c) is correct.

Question 36

   CPLR 3043
Select all correct answers.
In an action to recover for personal injuries which of the following particulars may be required:
(a)   the date of the occurrence
(b)   the approximate location of the occurrence
(c)   a description of the injuries claimed to be permanent
(d)   the length of time confined to bed
(e)   the length of time incapacitated from employment.

Answer 36

Answer: (a), (b), (c), (d) and (e)
CPLR 3043(a) provides that all of the listed information in the question may be required.