Article 34 Calendar Practices; Trial Preferences Flashcards
CPLR 3401
Calendar practice and rules regulating the hearing of cases shall be adopted by the:
(a) Administrative Judge of a court
(b) Appellate Divisions
(c) Chief Administrator of the Courts
(d) Chief Judge of the Court of Appeals.
Answer: (c)
CPLR 3401 provides that the Chief Administrator of the Courts shall adopt rules regulating the hearing of cases.
CPLR 3402
A case may be placed upon the calendar by filing and serving:
(a) a summons
(b) a bill of particulars
(c) a note of issue
(d) a complaint and answer.
Answer: (c)
CPLR 3402(a) states that at any time after issue is first joined (i.e., complaint and answer are served), or at least forty days after service of a summons has been completed irrespective of joinder of issue, any party may place a case upon the calendar by filing a note of issue with the clerk.
CPLR 3403
Select all correct answers.
A trial preference is an order giving a case a preferred position on the calendar. Which of the following actions is entitled to a preference:
(a) an action to recover damages for medical malpractice
(b) an action brought by the State
(c) an action brought against the State
(d) any action upon the application of a party who has reached the age of seventy.
Answers: (a), (b), (c) and (d)
CPLR 3403(a) provides that each of the listed actions is entitled to a trial preference. NOTE that a terminally ill plaintiff is also entitled to a trial preference, provided that it is alleged that the terminal condition is a result of the defendant’s conduct, culpability or negligence.
CPLR 3403
Which of the following is not entitled to a trial preference:
(a) action to recover damages for medical, dental or podiatric malpractice
(b) any action upon application of a party who has reached 70 years of age
(c) action to recover damages for chiropractic malpractice
(d) an action where the interests of justice will be served by an early trial.
Answer: (c)
CPLR 3403 provides for a trial preference in certain specified situations, including an action to recover damages for medical, dental or podiatric malpractice. The CPLR, however, does not provide for a trial preference in chiropractic malpractice actions.
CPLR 3403(a)(7)
A civil action which has been revived because it involves an accusation of child sexual abuse or sexual offenses:
(a) is a criminal case and should not be in the civil court;
(b) is not entitled to a preference;
(c) is entitled to a preference;
(d) is only entitled to a preference if the plaintiff will still be a minor at the time of the scheduling of the trial.
Answer: (c) (New, 2022)
Correct answer is (c) per CPLR 3403(a)(7).
CPLR 3404
A case in the Supreme Court which has been struck from the calendar and not restored within ______ thereafter shall be deemed abandoned and shall be dismissed for neglect to prosecute.
(a) three months
(b) six months
(c) one year
(d) three years.
Answer: (c)
CPLR 3404 provides that one year is the applicable time period.
CPLR 3405
For all courts other than the New York City Civil Court, the Chief Judge of the Court of Appeals may promulgate rules for the arbitration of claims for the recovery of money not exceeding _________ dollars.
(a) one thousand
(b) three thousand
(c) five thousand
(d) six thousand.
Answer: (d)
CPLR 3405 provides that the applicable amount for courts other than the New York City Civil Court is six thousand dollars. The applicable amount for the New York City Civil Court is ten thousand dollars.
CPLR 3406
Not more than ________ days after issue is joined, the plaintiff in an action to recover damages for dental, medical or podiatric malpractice shall file with the clerk of the court in which the action is commenced a notice of dental, medical or podiatric malpractice action, on a form to be specified by the Chief Administrator of the Courts.
(a) twenty
(b) sixty
(c) ninety
(d) one hundred and twenty
(e) one hundred and eighty.
Answer: (b)
CPLR 3406(a) provides that the applicable time period within which such notice must be filed is sixty days. CPLR 3406(b) mandates that the Chief Administrator of the Courts adopt special calendar control rules for dental, medical and podiatric malpractice actions. The statute requires that the timetable for disclosure shall provide for completion of disclosure not later than twelve months after such notice is filed and shall require that all parties be ready for trial not later than eighteen months after such notice is filed.
CPLR 3407
If plaintiff asserts in his pleading that he is terminally ill as a result of the culpable conduct of another party to the action, and properly requests a preliminary conference as a result, the court:
I must issue an order establishing a schedule for the completion of discovery
II must issue an order directing the period in which the note of issue and certificate of readiness be filed
III must issue an order that the action receive a trial preference.
(a) I, only
(b) I and II, only
(c) II and III, only
(d) I, II and III.
Answer: (d)
CPLR 3407 provides that the court must issue an order addressing all three of the items listed in the question. Additionally, the court must also make an order regarding commencement of the trial.
CPLR 3408
In the case of a residential foreclosure action involving a subprime home loan, any defendant appearing pro se shall be deemed to have made:
(a) a motion to dismiss
(b) a motion to proceed as a poor person
(c) a motion pro hac vice
(d) a dismissal of the action.
Answer: (b)
CPLR 3408(b) provides that there must be a deemed motion to proceed as a poor person.
CPLR 3408
At any mandatory settlement conference in a subprime residential foreclosure action, the plaintiffs counsel appearing:
(a) must be fully authorized to dispose of the case
(b) must present to defendant his or her rights and responsibilities
(c) must produce the HUD-1 form that settled the mortgage
(d) must attend in person.
Answer: (a)
CPLR 3408 provides that plaintiffs counsel must be fully authorized to dispose of the case. CPLR 3408 allows the plaintiffs counsel to attend the settlement conference by telephone or video conference, with court permission.
