CPLR ART 10 Volume 2

Question 1

1011. Successive third-party proceedings; counterclaims -

When a counterclaim is filed against plaintiff he may proceed as a defendant and bring a third party practice (CPLR 1007) against another party

This is used when an Outside person wants to join in a lawsuit and become a Party.

Answer 1

1011. Successive third-party proceedings; counterclaims -

When a counterclaim is filed against plaintiff he may proceed as a defendant and bring a third party practice (CPLR 1007) against another party

This is used when an Outside person wants to join in a lawsuit and become a Party.

Question 2

1012 Intervention as of right; notice to attorney-general, city, county, town or village where constitutionality in issue

You can intervene in an action by timely motion when:

1. The Statute of the state confers an ___________ to intervene

Answer 2

absolute right

Question 3

1012 Intervention as of right; notice to attorney-general, city, county, town or village where constitutionality in issue

You can intervene in an action by timely motion when:

2. When the representations of your interests are ___________ and you may be bound by the judgment

Answer 3

not adequate

Question 4

1012 Intervention as of right; notice to attorney-general, city, county, town or village where constitutionality in issue

You can intervene in an action by timely motion when:

3. When the action involves disposition of _________________ and you may be adversely affected by the judgment

Answer 4

real or personal property

Question 5

1012 Intervention as of right; notice to attorney-general, city, county, town or village where constitutionality in issue

You can intervene in an action by timely motion when:

4. lf the constitutionality of a statute of the State, or rule or regulation, is involved the ____________ must be notified and has an absolute right to intervene

The court CANNOT consider the case unless proof of service of the notice is filed

Answer 5

Attorney General

Question 6

1012 Intervention as of right; notice to attorney-general, city, county, town or village where constitutionality in issue

You can intervene in an action by timely motion when:

5. lf the constitutionality of local law, ordinance, rule or regulation of a City, Town or Village is involved, it must be notified and has an ____________ to intervene

Answer 6

absolute right

Question 7

1012 Intervention as of right; notice to attorney-general, city, county, town or village where constitutionality in issue

You can intervene in an action by timely motion when:

6. If a lawsuit involves public retirement benefits, the court must notify the __________ of the state of New York, who may intervene in the case or file an amicus curiae brief.

Answer 7

comptroller

Question 8

1013- lntervention by Permission (in the courts discretion)+

You can intervene with the court’s permission when:

1. When NYS statute confers a right to intervene in the ____________.
2. When the claim of the action has a common question of ________or ________.

• In exercising its discretion, the court shall consider whether the intervention will unduly delay the determination of the action or prejudice the substantial rights of any party.

Answer 8

court’s discretion………. law or fact

Question 9

1014- Proposed lntervention Pleading

A motion to intervene shall include a _____________ setting forth the claim for which the intervention is sought

Answer 9

pleading

Question 10

1015- Substitution upon death+

Upon death:

• Actions do not abate but parties are __________.
• ln cases involving multiple plaintiffs or defendants, often the death is noted ________________ and the action proceeds with the ______________________

Exception: Matrimonial and Alimony proceedings abate upon death, therefore if your spouse succumbs a mysterious death during your divorce, you’re good to go

Answer 10

substituted…… on the record…………… surviving parties

Question 11

1016- Substitution of Committee or Conservator

lf a party is adjudicated incompetent or a conservator has been appointed, the court will order the caption to be amended to now name the _________ or _____________ as the party (Pre MHL Article 81 terms)

Answer 11

committee or conservator

Question 12

1017- Substitution in Case of Receivership

The court will order substitution of a party if a __________ is appointed or corporation dissolves

Answer 12

receiver

Question 13

1018- Substitution Upon Transfer of lnterest

Upon any transfer of interest the action may be continued by or against the original parties, unless the court joins the ___________ in the action

Answer 13

transferee

Question 14

1019- Substitution of Public Officers

• lf a person in their capacity as a public officer is made a party to an action and then ceases to hold office, his or her __________ may then be named a party
• Before the substitution is made, the successor and, unless the court otherwise orders, the party shall be given reasonable notice of the motion and accorded an opportunity to object

Answer 14

successor

Question 15

1020- Substitution of lndemnitors

An indemnitor is a party that agrees to take on the risk of another.

lf an undertaking is given indemnifying an officer against an action, the ___________ may be substituted for the officer

Answer 15

indemnitor

Question 16

1021- 1021. Substitution procedure; dismissal for failure to substitute; presentation of appeal.

• lf a party needs to be substituted a motion may be filed within _______________ , however if this action is POST JUDGMENT (Appeal) the motion may be made within ___________ from the event requiring substitution.
• lf a person who should be substituted does not appear voluntarily, he may be made a ______________

Answer 16

a reasonable time ……..FOUR(4) MONTHS………… party defendant

Question 17

1021- 1021. Substitution procedure; dismissal for failure to substitute; presentation of appeal.

Substitution for an appeal is made either to the court in which the ____________ is taken or the court of ___________________.

Answer 17

appeal….. original instance

Question 18

1021- 1021. Substitution procedure; dismissal for failure to substitute; presentation of appeal.

Before judgment, if a required substitution is NOT made, the action may be ____________ as to the party for whom the substitution should have been made. This (IS/IS NOT) on the merits unless the court indicates.

For an appeal, the appeal could be dismissed, conditions imposed, or prevented from being taken

Answer 18

Dismissed…. IS NOT

Question 19

1021- 1021. Substitution procedure; dismissal for failure to substitute; presentation of appeal.

Whether before or after judgment, if the substitution is required because of death of a party, and one is not made, the court may order the _______________ to show cause why the action or appeal shouldn’t be dismissed.

Answer 19

dead person’s estate

Question 20

1022- Substitution Extension of Time +

Extension of time for the requirement to take any procedural steps in the action is extended ___________ after the substitution of a party is made*

Answer 20

FIFTEEN (15)DAYS

Hint: (Extension of time) is 15 letters for 15 Days

Compare this to 30 days for substitution of counsel, “30 for new attorney”

Question 21

1023- Public Body or Officer

When a public officer, body, board or commission is named in a case it may be designated by its ___________

Answer 21

official title

Question 22

1024- Unknown Parties

A party may proceed against an unknown party using as much of the name as they have, to be amended at a later date if and when the true name becomes known

Answer 22

1024- Unknown Parties

A party may proceed against an unknown party using as much of the name as they have, to be amended at a later date if and when the true name becomes known

Question 23

1025- Partnerships and Unincorporated Associations

• Two or more persons conducting a business as a partnership may sue or be sued in the name of ___________
• Actions may be brought by or against the ___________ or ______________ of an unincorporated association on behalf of the association

Answer 23

the partnership. …. president or treasurer

Question 24

1026 Review of Determinations by Administrative Officers of the Unified Court System

Any actions brought to review the determination of

• the chief judge of the court of appeals, of the court of appeals, or of the administrative board of the courts,

the only proper party to be named therein shall be the _____________________

Answer 24

Chief Administrator of the Courts