CPLR ART 10 Volume 2 Flashcards
- 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.
- 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.
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:
- The Statute of the state confers an ___________ to intervene
absolute right
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:
- When the representations of your interests are ___________ and you may be bound by the judgment
not adequate
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:
- When the action involves disposition of _________________ and you may be adversely affected by the judgment
real or personal property
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:
- 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
Attorney General
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:
- 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
absolute right
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:
- 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.
comptroller
1013- lntervention by Permission (in the courts discretion)+
You can intervene with the court’s permission when:
- When NYS statute confers a right to intervene in the ____________.
- 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.
court’s discretion………. law or fact
1014- Proposed lntervention Pleading
A motion to intervene shall include a _____________ setting forth the claim for which the intervention is sought
pleading
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
substituted…… on the record…………… surviving parties
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)
committee or conservator
1017- Substitution in Case of Receivership
The court will order substitution of a party if a __________ is appointed or corporation dissolves
receiver
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
transferee
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
successor
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
indemnitor
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 ______________
a reasonable time ……..FOUR(4) MONTHS………… party defendant
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 ___________________.
appeal….. original instance
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
Dismissed…. IS NOT
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.
dead person’s estate
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*
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”
1023- Public Body or Officer
When a public officer, body, board or commission is named in a case it may be designated by its ___________
official title
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
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
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
the partnership. …. president or treasurer
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 _____________________
Chief Administrator of the Courts
