Article 4 Special Proceedings Flashcards
CPLR 401
After a special proceeding is commenced, as to third party practice or intervention:
(a) none is allowed
(b) leave of court is required
(c) consent is required of the person bringing the proceeding
(d) consent is required of the person against whom the proceeding is brought.
Answer: (b)
CPLR 401 provides that once a special proceeding is commenced, no party shall be joined or inter-pleaded and no third party practice or intervention shall be allowed, except by leave of court (i.e., court’s permission).
Choice (a) is obviously incorrect.
Choices (c) and (d) are incorrect since both choices are unsupported by the CPLR.
CPLR 401
The opposing parties in a special proceeding are styled:
(a) petitioner and respondent
(b) plaintiff and defendant
(c) petitioner and defendant
(d) plaintiff and respondent.
Answer: (a)
CPLR 401 provides that the moving party in a special proceeding is called a petitioner and any adverse party is called a respondent. This contrasts with an action where the parties are called plaintiff and defendant.
CPLR 402
The pleading in which a cause of action for a special proceeding is stated is called a:
(a) complaint
(b) notice of claim
(c) petition
(d) bill of particulars.
Answer: (c)
CPLR 402 provides that in a special proceeding there shall be a petition which shall comply with the requirements for a complaint. Thus a petition contains the petitioner’s statement of the proceeding. This is the equivalent of a complaint which is used in an action.
CPLR 402
In a special proceeding the party against whom the claim is made (i.e., the respondent) states his defense in:
(a) an answer
(b) a reply
(c) a response
(d) a bill of particulars.
Answer: (a)
CPLR 402 provides that the ANSWER is the adverse party’s (i.e., respondent’s) response to a petition in a special proceeding. An answer is also the defendant’s pleading in an action.
Choice (b) is incorrect since a reply denotes a response to a counterclaim or to new matter in the answer. For example, if the respondent asserts a counterclaim against the petitioner (i.e., the person bringing the special proceeding), then the petitioner may respond to the counterclaim in a reply.
Choice (c), while quite tempting, is incorrect.
Choice (d) is incorrect since a bill of particulars relates to a statement which details (or particularizes) a pleading.
CPLR 403
In a special proceeding, the party bringing the proceeding must serve the papers on any adverse party at least _______ days before the time the matter is noticed to be heard:
(a) five
(b) eight
(c) ten
(d) twelve.
Answer: (b)
CPLR 403(b) provides that the party bringing a special proceeding (i.e., petitioner) must serve the papers (i.e., notice of petition, petition and affidavits) at least eight days before the matter is noticed to be heard.
CPLR 403
In a special proceeding, if the petition is served eight days before the return date, the answer and supporting affidavits shall be served at least _______ days before such return date:
(a) two
(b) three
(c) five
(d) seven.
Answer: (a)
CPLR 403(b) provides that the answer and supporting affidavits in a special proceeding, with one exception, must be served at least TWO days before the time set for the matter to be heard. The exception is that if a notice of petition is served at least twelve days before the return date, then the answer shall be served at least seven days before the return date if the petition so demands. In such an instance the petitioner serves a reply to the answer one day before the return date.
CPLR 403
In a special proceeding, a notice of petition shall be served:
(a) in the same manner as a summons
(b) only as directed by the Court
(c) by first class mail
(d) only by personal service.
Answer: (a)
CPLR 403(c) states that a notice of petition shall be served in the same manner as a summons. Hence, all methods of service contained in Article 3 are applicable to the notice of petition.
CPLR 404
In a special proceeding, an objection in point of law, made by the respondent, may:
(a) not be raised
(b) only be raised by a motion to dismiss the petition
(c) only be raised by setting it forth in the answer
(d) be raised by a motion to dismiss the petition, or by setting it forth in the answer
(e) only be raised on appeal.
Answer: (d)
CPLR 404(a) provides that the respondent in a special proceeding may raise an objection to a point of law (i) by a motion to dismiss the petition or (ii) by setting it forth in the answer.
CPLR 404
In a special proceeding, an objection in point of law may:
(a) only be raised by the court
(b) only be raised by respondent
(c) only be raised by petitioner
(d) be raised by respondent or petitioner
(e) not be raised at all.
Answer: (d)
CPLR 404 provides that objections in point of law may be made by the petitioner or the respondent.
CPLR 405
The time in which a party in a special proceeding must make a motion to strike prejudicial matters unnecessarily inserted in a pleading is:
(a) three days
(b) five days
(c) eight days
(d) within the time allowed for his responsive pleading.
Answer: (d)
CPLR 405(b) provides that either party may move to strike scandalous or prejudicial matter unnecessarily inserted in a pleading by so moving within the time allowed for his responsive pleading.
CPLR 406
In a special proceeding, motions made before the time at which the petition is noticed to be heard shall be heard
(a) on the return date of the petition
(b) three days from the date the motion was made
(c) five days from the date the motion was made
(d) seven days from the date the motion was made.
Answer: (a)
CPLR 406 provides that if a motion is made in a special proceeding prior to the time at which the petition is noticed to be heard (i.e., the return date), then such motion shall also be heard on the return date.
CPLR 407
In a special proceeding, if the court orders severance as to any claim or party, as to such claim or party the special proceeding:
(a) must be dismissed
(b) must continue as an action
(c) must continue as a separate special proceeding
(d) may continue as an action or as a separate special proceeding
(e) none of the above.
Answer: (d)
CPLR 407 provides that if the court orders a severance of a claim, counterclaim or cross-claim or as to a particular party, as to such claim or party the special proceeding may continue as an action or as a separate special proceeding.
CPLR 408
In a special proceeding, except for (i) admissions as to matters of fact, papers, documents and photographs, (ii) proceedings in a Surrogate’s Court and (iii) proceedings relating to express trusts pursuant to Article 77, disclosure:
(a) is available as a matter of right upon service of a request for disclosure upon an adversary
(b) is not permitted
(c) is available as a matter of right upon motion
(d) requires leave of court.
Answer: (d)
CPLR 408 contains the general rule that leave of court (i.e., permission) is required for disclosure (i.e., prehearing discovery).
CPLR 409
At a hearing conducted for a special proceeding:
(a) each party shall furnish to the court all the papers served upon him
(b) each party shall furnish to the court all the papers served by him
(c) all papers furnished to the court shall be filed, unless otherwise ordered
(d) both (b) and (c) are correct.
Answer: (d)
CPLR 409(a) requires, among other things, that (i) each party furnishes to the court all papers served by him and (ii) all papers furnished to the court shall be filed, unless the court orders otherwise.
Choice (a) is incorrect since a party is not required to furnish papers served upon him by his adversary.
CPLR 410
At the hearing of a special proceeding:
(a) all issues must be determined by the court without a jury
(b) all issues must be determined by their submission to a jury
(c) trial by jury is available only for issues triable as a matter of right by a jury
(d) trial by jury of all issues is available at the request of any party.
Answer: (c)
CPLR 410 states that if issues are triable of right by jury, the court shall give the parties an opportunity to demand a jury trial of such issues.
