Article 32 Accelerated Judgment Flashcards
CPLR 3212
The CPLR provides that a motion for summary judgment may be generally made:
(a) before the answer is served
(b) after issue has been joined
(c) after the complaint is served
(d) after trial commences.
Answer: (b)
CPLR 3212(a) provides that a party may generally move for summary judgment after issue has been joined. However, CPLR 3212 empowers the court to set a date after which no such motion may be made, subject to certain constraints. If the court does not act, the motion cannot be made later than 120 days after the filing of the note of issue, except with leave of court on good cause.
Thus, choice (b) is the best answer. With respect to the main claim, issue is joined when the answer is served. With respect to a counterclaim, issue is joined when the reply is served.
CPLR 3212
A motion for summary judgment may be made:
(a) only by a plaintiff
(b) only by a defendant
(c) by any party
(d) by a plaintiff, but only if the defendant has asserted a counterclaim against him.
Answer: (c)
CPLR 3212(a) states that any party may move for summary judgment. Thus, choice (c) is correct.
CPLR 3212
A motion for summary judgment shall be granted if, upon all the papers and proof submitted, ______ shall be established sufficiently to warrant the court as a matter of law in directing judgment in favor of any party.
(a) a cause of action
(b) a defense
(c) either a cause of action or a defense
(d) none of the above.
Answer: (c)
CPLR 3212(b) provides that summary judgment should be granted if either a cause of action or a defense shall be established sufficiently to warrant the court as a matter of law in directing judgment in favor of any party (i.e., where no issue of fact to be decided is sufficient to require a trial).
CPLR 3212
Select the best answer.
If it appears that the only triable issues of fact arising on a motion for summary judgment relate to the amount of damages, the court may, when appropriate for the expeditious disposition of the controversy, order an immediate trial of such issues of fact raised by the motion:
(a) before the court without a jury
(b) before a referee
(c) before the court and a jury
(d) only (a) and (b) are correct
(e) (a), (b) and (c) are all correct.
Answer: (e)
CPLR 3212(c) clearly indicates that choices (a), (b) and (c) are all correct.
Note new subdivision (j) pertaining to an action to collect a debt arising out of a consumer credit transaction where a consumer is a defendant.
CPLR 3213
Select all correct answers.
A notice of motion for summary judgment together with supporting papers in lieu of a complaint may be served together with a summons in:
(a) any action
(b) a personal injury action
(c) an action based upon an instrument only for the payment of money
(d) a matrimonial action
(e) an action based upon a judgment.
Answers: (c) and (e)
CPLR 3213 provides that a motion for summary judgment, in lieu of complaint, may be made by the plaintiff when an action is based upon an instrument for the payment of money only (e.g., promissory note) or upon any judgment.
CPLR 3215
An application for a default judgment where plaintiff’s claim is for a sum certain may be made to the clerk within _______ after default.
(a) ninety days
(b) six months
(c) five years
(d) one year.
Answer: (d)
CPLR 3215(a) provides for a period of one year after the default.
CPLR 3216
Select all correct answers.
Before an action may be dismissed for neglect to prosecute:
(a) issue must have been joined
(b) one year must have elapsed since issue was joined or 6 months must have elapsed since the issuance of the preliminary court conference order where issued, whichever is later
(c) a written demand to resume prosecution must have been served
(d) there must have been a default in complying with the written demand to resume prosecution.
Answers: (a), (b), (c) and (d)
CPLR 3216(b) requires that all four listed things must have occurred before an action may be dismissed for neglect to prosecute. With respect to a plaintiff’s action against a defendant, issue is joined when defendant’s answer is served.
CPLR 3217
Select the best answer.
(a) A claim once commenced can only be discontinued by order of the court.
(b) After a cause has been submitted to the jury to determine the facts, the court may not order an action discontinued except upon the stipulation of all the parties appearing in the action.
(c) Both (a) and (b) are correct.
(d) Neither (a) nor (b) is correct.
Answer: (b)
CPLR 3217(a) enumerates the instances where a claim can be voluntarily discontinued without a court order. Thus, choice (a) is incorrect. CPLR 3217(b) provides that after a cause has been submitted to the court or the jury to determine the facts the court may not order an action discontinued except upon the stipulation of all the parties appearing in the action. Thus, choice (b) is correct.
NOTE: All notices, stipulations or certificates filed pursuant to 3217 must be filed by the defendant.
CPLR 3217(e)
A voluntary discontinuance of an action upon a sealed instrument:
(a) tolls the statute of limitations to bring a new proceeding on the same facts for a period equal to the time period that the current action was pending;
(b) tolls the statute of limitations to bring a new proceeding on the same facts for six months;
(c) tolls the statute of limitations to bring a new proceeding on the same facts for 12 months;
(d) does not toll the statute of limitations to bring a new proceeding on the same facts.
Answer: (d) (New, 2022)
Correct answer is (d) per CPLR 3217(e).
CPLR 3218
As a general rule, a judgment by confession may be entered without an action, either for money due or to become due, only if accompanied by an affidavit which meets the requirements of the CPLR. The time within which such affidavit must be filed and the confessed judgment entered is _______ from the execution of the affidavit.
(a) ninety days
(b) one year
(c) three years
(d) five years
(e) thirty days.
Answer: (c)
CPLR 3218(b) provides that three years is the applicable time limit.
Note amendment to subdivision (a)1 regarding the interest rate for consumer debt, eff. 4/30/22, per Ch. 831, L. 2021.
CPLR 3219
At any time not later than ______ days before trial, a defendant against whom a contract claim is asserted may deposit in court a sum he deems sufficient to satisfy the claim, thereby requiring the plaintiff to accept such sum in full settlement or, if the plaintiff rejects it and gets no higher award at trial, to forfeit interest and costs from the time of the offer.
(a) ten
(b) twenty
(c) thirty
(d) sixty
(e) ninety.
Answer: (a)
CPLR 3219 provides that not less than ten days before trial is the applicable time period.
CPLR 3220
Select all correct statements with respect to an offer to liquidate damages conditionally:
(a) Such an offer can only be made in a contract action.
(b) Such an offer must be made not later than ten days before trial.
(c) If the offer is accepted, and the plaintiff wins on the liability issue at trial, the damages awarded shall be the amount offered.
(d) If the offer is not accepted, and the damages awarded at trial are not greater than the amount offered, plaintiff must pay the expenses to which the defendant was put in trying damages.
Answers: (a), (b), (c) and (d)
CPLR 3220 clearly indicates that choices (a), (b), (c) and (d) are all correct.
CPLR 3221
An offer to compromise may be made:
(a) in any action
(b) in other than a matrimonial action
(c) only in an action based on contract
(d) only in a personal injury action.
Answer: (b)
CPLR 3221 allows an offer to compromise in any action except a matrimonial action. Thus, choice (b) is correct.
CPLR 3222
Which of the following actions may not be commenced by filing with the clerk a submission of the controversy, acknowledged by all parties in the form required to entitle a deed to be recorded:
(a) a contract action
(b) a personal injury action
(c) a matrimonial action
(d) a wrongful death action.
Answer: (c)
CPLR 3222 allows an action other than a matrimonial action to be commenced on submitted facts. Thus, choice (c) is correct.
