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Court Clerk Exam > CPLR 32 > Flashcards

CPLR 32 Flashcards

1
Q

Ifapersonpurchasesanon-commercialitemonaninstallmentplanfor personal use under $1500 and defaults on payment, CPLR 3201:
A) May allow the creditor to enter a judgment by confession.
B) Must allow the debtor additional time to pay.
C) Cannot permit a judgment by confession entered on an affidavit before default.
D) Allows the entry of judgment as long as notice is provided.

A

C) Cannot permit a judgment by confession entered on an affidavit before default

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2
Q

T/F Judgment by confession may be entered prior to a default in payment for a purchased item under $1500 for non-business use.

A

False. Judgment by confession on an affidavit executed prior to a default in payment is void and unenforceable under CPLR 3201.

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3
Q

T/F A judgment entered in violation of CPLR 3201 may still be enforceable if the court allows.

A

False. Any judgment entered in violation of CPLR 3201 is void and unenforceable.

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4
Q

A party may file a motion to dismiss a cause of action on the grounds that:
A) The party asserting the cause of action does not have legal capacity to sue.
B) The court must have personal jurisdiction over the plaintiff.
C) The case was already tried in another court, and judgment was entered. D) The court has jurisdiction, and the cause of action is valid.

A

A) The party asserting the cause of action does not have legal capacity to sue

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5
Q

Under CPLR 3211, a motion to dismiss for failure to state a cause of action:
A) Must be granted automatically.
B) Can be waived if not raised in a motion or responsive pleading.
C) Cannot be raised by the court on its own motion.
D) May not be opposed.

A

B) Can be waived if not raised in a motion or responsive pleading

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6
Q

Which of the following is NOT a ground for a motion to dismiss under CPLR 3211?
A) Counterclaim may not be properly interposed.
B) Cause of action cannot be maintained due to statute of limitations. C) Defense is founded on documentary evidence.
D) The court lacks jurisdiction over the plaintiff.

A

D) The court lacks jurisdiction over the plaintiff

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7
Q

InwhatinstancecanamotiontodismissbemadeatanytimeunderCPLR 3211?
A) If the defense is based on documentary evidence.
B) If the court lacks subject matter jurisdiction.
C) If a counterclaim is improperly interposed.
D) If the defendant is immune from liability under the not-for-profit corporation law.

A

B) If the court lacks subject matter jurisdiction

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8
Q

A court may treat a motion to dismiss as a motion for summary judgment under CPLR 3211 when:
A) The court lacks personal jurisdiction. B) The parties request it.
C) The issues raised in the motion warrant immediate trial. D) The defendant is a minor.

A

C) The issues raised in the motion warrant immediate trial

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9
Q

T/F Under CPLR 3211, no more than one motion to dismiss shall be permitted.

A

TRUE

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10
Q

T/F A motion to dismiss under CPLR 3211 can only be made before trial begins.

A

False. Some motions, such as those based on lack of subject matter jurisdiction, may be made at any time.

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11
Q

T/F A cause of action may be dismissed under CPLR 3211 if the same cause of action is pending in any court in another state.

A

True

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12
Q

T/F If a motion to dismiss is based on failure to state a cause of action, the opposing party cannot request leave to replead.

A

False. The opposing party may request leave to replead if the motion is granted.

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13
Q

T/F A motion to dismiss based on lack of jurisdiction over the person of the defendant is waived if not raised in a motion or responsive pleading.

A

True

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14
Q

Under CPLR 3212, when can a motion for summary judgment be made?
A) Any time before trial begins.
B) After joinder of issue, up to a date set by the court. C) Only after the final verdict.
D) Only before the filing of the note of issue.

A

B) After joinder of issue, up to a date set by the court

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15
Q

What is the earliest a motion for summary judgment can be made under CPLR 3212?
A) 15 days after filing of the note of issue.
B) 30 days after filing of the note of issue.
C) 60 days after the start of the trial.
D) 120 days after the conclusion of discovery.

A

B) 30 days after filing of the note of issue

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16
Q

If no specific date is set by the court, a motion for summary judgment under CPLR 3212 must be made within:
A) 90 days of the filing of the note of issue.
B) 60 days after discovery is completed.
C) 120 days after filing of the note of issue.
D) 30 days after the filing of the note of issue.

A

C) 120 days after filing of the note of issue

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17
Q

The court shall grant a motion for summary judgment under CPLR 3212 when:
A) The defense requests it.
B) The court finds that papers and proof warrant dismissal as a matter of law. C) The plaintiff does not respond to the motion.
D) The trial has already commenced.

A

B) The court finds that papers and proof warrant dismissal as a matter of law

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18
Q

When shall the court deny a motion for summary judgment under CPLR 3212?
A) If the defendant objects to the motion.
B) If the motion requires a jury trial.
C) If the papers and proof presented require a trial of any issue of fact. D) If the motion was filed after discovery was completed.

A

C) If the papers and proof presented require a trial of any issue of fact

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19
Q

T/F Under CPLR 3212, a motion for summary judgment cannot be made later than 120 days after the filing of the note of issue, unless the court grants leave.

A

True

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20
Q

T/F The court must grant a motion for summary judgment if the papers and proof presented so warrant as a matter of law.

A

True

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21
Q

T/F A court shall deny a motion for summary judgment if the facts are clear and there are no material issues requiring a trial.

A

False. The court shall grant summary judgment if the facts are clear and no issues require a trial.

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22
Q

T/F A motion for summary judgment can be made at any time before trial, regardless of the note of issue.

A

False. A motion for summary judgment must be made within the timeframe set by the court or within 120 days after filing of the note of issue.

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23
Q

Under CPLR 3212, the court may grant summary judgment to a party other than the moving party if:
A) The court believes it is appropriate.
B) The court finds that such party is entitled to judgment based on the facts.
C) The motion for summary judgment is opposed. D) Both parties request it in writing.

A

B) The court finds that such party is entitled to judgment based on the facts

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24
Q

In what scenario may the court order an immediate trial under CPLR 3212?
A) When the motion for summary judgment involves a factual dispute. B) When both parties agree to a bench trial.
C) After a cross-motion has been filed.
D) Only after the court denies summary judgment.

A

A) When the motion for summary judgment involves a factual dispute

25
Q

What action may the court take regarding a cause of action that is the subject of a motion to dismiss under CPLR 3212?
A) Deny the motion outright.
B) Sever the cause of action.
C) Grant the motion without hearing the facts. D) Require additional evidence before ruling.

A

B) Sever the cause of action

26
Q

What can the court do if a motion to dismiss is filed, but other causes of action remain pending?
A) Reserve decision on the motion to dismiss until the other causes of action are determined.
B) Deny the motion to dismiss immediately.
C) Grant summary judgment on all causes of action.
D) Require the plaintiff to withdraw the motion.

A

A) Reserve decision on the motion to dismiss until the other causes of action are determined

27
Q

T/F The court may grant summary judgment to a party other than the moving party if that party is entitled to judgment based on the facts.

A

True

28
Q

T/F The court can order an immediate trial of any issue of fact raised by a motion for summary judgment.

A

True

29
Q

T/F The court cannot sever a cause of action that is the subject of a motion to dismiss.

A

False. The court can sever the cause of action that is the subject of a motion to dismiss.

30
Q

T/F If other causes of action are pending, the court may reserve decision on the motion to dismiss until those other causes are determined.

A

True

31
Q

Under CPLR 3213, a motion for summary judgment in lieu of a complaint may be made in an action based upon:
A) Any tort claim involving personal injury.
B) An instrument for the payment of money only. C) A dispute involving property rights.
D) A contract that Is yet to be signed.

A

B) An instrument for the payment of money only

32
Q

A motion for summary judgment in lieu of complaint under CPLR 3213 can also be made in an action based upon:
A) Any verbal agreement between the parties. B) An oral contract for the sale of goods.
C) Any judgment.
D) A letter of intent to negotiate.

A

C) Any judgment

33
Q

The minimum time a motion for summary judgment in lieu of complaint must be noticed to be heard, if served by personal delivery, is:
A) 10 days after service. B) 20 days after service. C) 30 days after service. D) 40 days after service.

A

B) 20 days after service

34
Q

f a motion for summary judgment in lieu of complaint is served by a method other than personal delivery, the minimum time before the motion may be heard is:
A) 15 days after service is complete. B) 20 days after service is complete. C) 30 days after service is complete. D) 40 days after service Is complete.

A

C) 30 days

35
Q

Under CPLR 3214, when a judge has been assigned to supervise disclosure, all motions preliminary to trial:
A) Must be handled by the supervising judge.
B) May be referred to the assigned judge whenever practicable. C) Can only be heard after the trial begins.
D) Must be referred to a different judge to avoid conflicts.

A

B) May be referred to the assigned judge whenever practicable

36
Q

What effect does the service of a motion to dismiss (except when based on improper service) have on disclosure under CPLR 3214?
A) It speeds up the disclosure process.
B) It stays disclosure unless the court orders otherwise. C) It cancels all scheduled disclosure deadlines.
D) It requires disclosure to continue uninterrupted.

A

B) It stays disclosure unless the court orders otherwise

37
Q

T/F Under CPLR 3213, a motion for summary judgment in lieu of a complaint may be made in an action based upon a judgment.

A

True

38
Q

T/F The minimum time a motion for summary judgment in lieu of complaint must be noticed to be heard is 20 days after service if made by personal delivery.

A

True

39
Q

T/F A motion for summary judgment in lieu of complaint can be made for any action, regardless of the underlying cause of action.

A

False. The motion can only be made in an action based on an instrument for the payment of money only or a judgment.

40
Q

T/F Service of a motion to dismiss automatically stays disclosure in all cases, even if the court orders otherwise.

A

False. The service of a motion to dismiss stays disclosure unless the court orders otherwise.

41
Q

Under CPLR 3215, when may a plaintiff apply to the clerk for a default judgment if the claim is for a sum certain?
A) At any time before trial.
B) Within six months after the default. C) Within one year after the default. D) Within two years after the default.

A

C) Within one year after the default

42
Q

If the plaintiff fails to apply for a default judgment within one year after the defendant’s default, what must the court do?
A) Automatically extend the time to apply.
B) Dismiss the complaint as abandoned on its own initiative or on motion.
C) Grant a default judgment anyway.
D) Send a notice to both parties requesting a status update.

A

B) Dismiss the complaint as abandoned on its own initiative or on motion

43
Q

In a default judgment, if the clerk enters judgment against less than all defendants, the clerk must:
A) Wait for the remaining defendants to appear.
B) Enter an order severing the action as to the remaining defendants. C) Notify the plaintiff to amend the complaint.
D) Enter judgment against all defendants automatically.

A

B) Enter an order severing the action as to the remaining defendants

44
Q

What must be included with a request for a default judgment entered by the clerk?
A) A notarized affidavit from the defendant.
B) An affidavit by the plaintiff or plaintiff’s attorney stating that after reasonable inquiry, they believe the statute of limitations has not expired.
C) A motion to extend the time for filing the default judgment.
D) A copy of the original contract In dispute.

A

B) An affidavit by the plaintiff or plaintiff’s attorney stating that after reasonable inquiry, they believe the statute of limitations has not expired

45
Q

T/F A plaintiff must apply for a default judgment within one year of the defendant’s default, or the complaint will be dismissed as abandoned.

A

True

46
Q

T/F A default judgment can be entered in a matrimonial action in favor of the non-moving party.

A

False. A default judgment may not be entered in favor of the non- moving party in a matrimonial action.

47
Q

T/F In small claims actions, the requirement to provide additional notice before entry of a default judgment applies.

A

False. The additional notice requirement does not apply to small claims actions.

48
Q

T/F When a verified complaint has been served, it can be used as an affidavit of the facts constituting the claim and the amount due for a default judgment.

A

True

49
Q

T/F Upon failure to comply with a stipulation of settlement, a default judgment may be entered by the clerk upon affidavit and supporting papers.

A

True

50
Q

Under CPLR 3216, when may the court dismiss an action for want of prosecution?
A) When a defendant files a motion immediately after the complaint is served. B) After one year has elapsed since joinder of issue and a demand to resume prosecution has been served.
C) When the plaintiff fails to appear for a hearing.
D) When no settlement has been reached within six months of filing.

A

B) After one year has elapsed since joinder of issue and a demand to resume prosecution has been served

51
Q

What must a written demand to resume prosecution include under CPLR 3216?
A) A request for additional discovery materials.
B) A warning that failure to comply will be grounds for dismissal and a requirement to file a notice of issue within 90 days.
C) A demand for immediate judgment in favor of the defendant.
D) A request to delay the trial due to scheduling conflicts.

A

B) A warning that failure to comply will be grounds for dismissal and a requirement to file a notice of issue within 90 days

52
Q

What is the minimum period of time that must pass after joinder of issue before a motion for dismissal for want of prosecution can be filed?
A) Six months. B) Nine months. C) One year.
D) Two years.

A

C) One year

53
Q

If a party seeking dismissal for want of prosecution under CPLR 3216 serves a written demand, how must it be delivered?
A) Via first-class mail.
B) By personal delivery.
C) By registered or certified mail. D) By email.

A

C) By registered or certified mail

54
Q

What is the consequence of failing to comply with a demand to resume prosecution within the 90-day period under CPLR 3216?
A) The court will automatically grant summary judgment.
B) The court may dismiss the action for want of prosecution. C) The defendant may be required to respond to discovery. D) The trial will be postponed for an additional year.

A

B) The court may dismiss the action for want of prosecution

55
Q

T/F A party may move for dismissal for want of prosecution under CPLR 3216 after one year has passed since joinder of issue.

A

true

56
Q

T/F Under CPLR 3216, a written demand to resume prosecution must be served via registered or certified mail.

A

True

57
Q

T/F A plaintiff has 60 days to serve and file a notice of issue after receiving a demand to resume prosecution under CPLR 3216.

A

False. The plaintiff has 90 days to serve and file a notice of issue after receiving the demand.

58
Q

T/F A motion for dismissal for want of prosecution may be filed without serving a written demand under CPLR 3216.

A

False. A written demand must be served before filing the motion.

59
Q

T/F Failure to comply with a demand to resume prosecution may result in the court dismissing the action for want of prosecution.

A

True

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