CPLR ART 11 & 12 Flashcards
1101- Motion for Permission to Proceed as Poor Person
Persons may upon motion, request of the court where the action is triable or the court to which an appeal has been taken, to proceed as a _____________
poor person
1101- Motion for Permission to Proceed as Poor Person
When the motion is brought to the court in which the appeal has been or will be taken, such court must decide the motion on the merits and not return it to ____________
the trial court
1101- Motion for Permission to Proceed as Poor Person
The person making the motion shall file an affidavit setting forth:
- The amount and sources of his or her income
- A list of his or her property or value
- That he or she is unable to pay the costs
- The nature of the action
- Sufficient facts as to the merit of the contentions
- Whether any person is interested in the recovery sought could pay for such costs
1101- Motion for Permission to Proceed as Poor Person
The person making the motion shall file an affidavit setting forth:
- The amount and sources of his or her income
- A list of his or her property or value
- That he or she is unable to pay the costs
- The nature of the action
- Sufficient facts as to the merit of the contentions
- Whether any person is interested in the recovery sought could pay for such costs
1101- Motion for Permission to Proceed as Poor Person
An executor, administrator or other representative may move for permission on behalf of a ____________. _____________, or _____________ poor person.
deceased, infant or incompetent
1101- Motion for Permission to Proceed as Poor Person
The court may require a certificate to be filed by an attorney as to the __________________
merit of the contentions
1101- Motion for Permission to Proceed as Poor Person
lf the action has already been commenced then a notice of motion shall be served on all parties including the ________________ in the county where the action is triable, or if in NYC then upon ____________________
County Attorney …………… Corporation counsel
1101- Motion for Permission to Proceed as Poor Person
A plaintiff may seek to commence his or her action without the payment of fees by filing a form affidavit indicating they cannot pay the costs of the action.
- If the court approves the application they will send an order to the applicant that all fees are waived
- If the court denies the application, it will send out an order that the case will be dismissed if the appropriate fees are not paid within ___________________ of the date of the order
ONE HUNDRED AND TWENTY (120) DAYS
1101- Motion for Permission to Proceed as Poor Person
When a person is represented by the _____________ or other legal service organization, then it is not necessary to file a motion if such society has made the determination that fees cannot be paid.
The society’s attorneys will have to file _______________ indicating this is the case
When a person or child is represented by a legal aid society or other legal service, if the case ____________, it will be presumed that they shall continue to be eligible for poor person relief
legal aid society………… a certification….. is appealed
1101- Motion for Permission to Proceed as Poor Person
**Fees for INCARCERATED INDIVIDUALS (Formerly inmates): know this!
The incarcerated individual must file a ______________ to proceed with reduced filing fee rates.
form affidavit
1101- Motion for Permission to Proceed as Poor Person
**Fees for INCARCERATED INDIVIDUALS (Formerly inmates): know this!
The court must obtain from the facility where the incarcerated individual is housed or from the central office of the department of corrections, the incarcerated individual’s Trust Fund Account Statement for the last ___________.
{For incarcerated individuals who have been confined for less than 6 months, the court will obtain a trust fund account statement from the central office of the department of corrections and community supervision in Albany if transferred from out of state or the prior or current facility if transferred from a federal or local facility.
The court may also seek further information from the prior or current facility, if they deem it necessary.}
SIX (6) MONTHS.
1101- Motion for Permission to Proceed as Poor Person
**Fees for INCARCERATED INDIVIDUALS (Formerly inmates): know this!
- If the court finds the incarcerated individual does not have the necessary funds to proceed then they will approve the request.
- They may pay a minimum of ______________ but not more than ______________ in filing fees to the court.
- This rule holds true EXCEPT for ARTICLE 78 proceedings by inmates alleging failure to correctly award or certify _____________
FIFTEEN (15)………. FIFTY (50) DOLLARS……. jail time credit
1101- Motion for Permission to Proceed as Poor Person
**Fees for INCARCERATED INDIVIDUALS (Formerly inmates): know this!
(Bard) If an incarcerated individual wins a judgment in excess of the filing fee, the court will award them the filing fee as a ____________
taxable disbursement.
1102- Privileges for poor persons:
The court may assign ____________ in its order allowing a person to proceed as a poor person.
an attorney
1102- Privileges for poor persons:
Stenographic Transcript:
- The court clerk must notify the stenographer when a person is appearing as a poor person within ___________ of receiving the order.
- The stenographer must within _____________ make and certify _____________ transcripts of the stenographic minutes. One for the poor person or his attorney and one for the clerk together with an __________ stating the fact and date of such delivery and filing.
- The expense of such transcripts shall be _________ charge or, in the counties within the city of New York, ________ charge
TWO(2)DAYS…….. TWENTY(20)DAYS ………. TWO(2) typewritten….affidavit….. a county………. a city
1102- Privileges for poor persons:
Poor persons may submit typewritten briefs for their appeal furnishing _____________ legible copy to each of the appellate judges
one (1)
1102- Privileges for poor persons:
A poor person shall not be liable for the payment of any costs or fees unless a recovery by ___________ or ____________ is had in his favor. The court may then direct him to pay out of the recovery ______________ as well as legal fees for his attorney
judgment or by settlement ….. court costs
** 1103. Distribution of recovery in favor of poor person.
Any recovery or judgment in favor of poor person is paid to ______________ where the action is triable for distribution pursuant to court order
the clerk of the court
ARTICLE 12 INFANTS, INCOMPETENTS, AND CONSERVATEES:
General info: An infant is someone who has not attained the age of ___________
EIGHTEEN (18) YEARS
1201- Representation of infant, incompetent Person, or Conservatee
Unless the court appoints a ___________ , then the infant is to appear by Guardian of his property, if there is no such guardian, then his parents having legal custody if they are living, if not, then whoever has legal custody.
Guardian Ad litem
1201- Representation of infant, incompetent Person, or Conservatee
lf the infant is married then they will appear by the __________ residing with the infant
adult spouse
1201- Representation of infant, incompetent Person, or Conservatee
Incompetents are represented by __________ of their property
committee
1201- Representation of infant, incompetent Person, or Conservatee
Conservatees shall appear by __________ of their property
conservator
1201- Representation of infant, incompetent Person, or Conservatee
(Bard) An infant, incompetent, or conservatee shall appear by their _________ if they have no other legal representative
guardian ad litem
1202- **Appointment of Guardian Ad litem*
This is done by the court on its own motion at any stage of an action which is triable, or upon the motion of:
- An infant party himself if over the age of __________
- A __________, _________ or a guardian, committee of the property or conservator
- Any other party to the action if a motion has not been made by 1 or 2 above within ________ of completion of service
relative….. Friend….Fourteen (14)…… TEN (10 )DAYS
1202- **Appointment of Guardian Ad litem*
Notice of motion of the appointment of the guardian ad litem shall be served on the guardian of his property, committee, or conservator or upon whom they reside if no such representative exists.
Also served on the infant themselves if they are over the age of ___________ and have not been declared to be incompetent
FOURTEEN (14)
1202- **Appointment of Guardian Ad litem*
Written consent by the proposed _________ must be submitted to the court before an order of appointment can be effective
Guardian Ad litem
1203- Default Judgment
No default judgment can be entered against infant or incompetent until his representative has appeared in the action or at least ____________ have passed since the appointment of Guardian Ad litem
TWENTY(20)DAYS
1203- Default Judgment
No default judgment may be entered against an adult incapable of inadequately protecting his rights for whom a guardian ad litem has been appointed unless __________ have expired since the appointment.
TWENTY (20) DAYS
1204- Compensation of Guardian Ad Litem
A Guardian ad litem can receive reasonable compensation for their services upon filing an _______________
Affidavit of services rendered
1205- Liability for Costs
Infant, incompetent or conservatees shall not be responsible for costs unless _____________ otherwise
the court orders
1206- Disposition of Proceeds
Any property the infant, incompetent or conservatees may be entitled to after costs and disbursements must be paid to the GUARDIAN of his property, committee, or conservator to be held for the use of the infant, incompetent, or conservatee
EXCEPT:
- 1. ln the case of an infant who is married and resides with an ____________ - the money is held by such spouse
- 2. If the value of the property does not exceed ___________ the court may order it distributed to a person who resides with or has an interest in the welfare of the infant, incompetent, or conservatee and held for their use and benefit.
adult spouse………… $10,000,
1206- Disposition of Proceeds
(Bard) The court may order that money be deposited in a bank, trust company, savings bank, credit union, or insured savings and loan association, or it may order that a structured settlement agreement be executed.
1206- Disposition of Proceeds
(Bard) The court may order that money be deposited in a bank, trust company, savings bank, credit union, or insured savings and loan association, or it may order that a structured settlement agreement be executed.
1206- Disposition of Proceeds
No money shall be held from an infant who has obtained the age of _________ unless a court order specifically states to withhold it.
Any order made prior to September 1, 1974 directing payment to be made to infant without further court order upon reaching the age of 21 shall be deemed to designate the age of 18 years
18
1207- Settlement of Action or Claim:
Upon motion of the guardian of the property, parent having legal custody, spouse of infant, committee or conservator, a motion can be made for ___________ commenced by infant, incompetent, or conservatee.
If no action has been commenced yet, then a SPECIAL PROCEEDING may be commenced for such relief by filing a PETITION
An order on such motion shall have the effect of _____________
settlement of an action …… a judgment
1207- Settlement of Action or Claim:
lf no justice of the Supreme court is available in the county, then the settlement will go before a __________________ who will have the same power as a Justice of the Supreme Court even if it exceeds the jurisdictional limits of _____________
County Judge in County Court ……. County court.
1207- Settlement of Action or Claim:
- An order on a motion for settlement of an action commenced by infant, incompetent, or conservatee shall have the effect of a ___________
- Such order, or the judgment in a special proceeding, shall be entered without costs and shall approve the fee for the infant’s, incompetent’s or conservatee’s ___________ if any
judgment………….. attorney,
1208- Settlement Procedure
An affidavit by the representative of the infant or incompetent’s representative shall include:
- Who they are as representative, names, residence and relationship
- infant’s or incompetent’s pedigree info, ex. Name, age
- Circumstances giving rise to the action, etc… etc…
- The nature and extent of damages
(and the name of each physician who attended or treated the infant or incompetent or who was consulted, the medical expenses, the period of disability, the amount of wages lost, and the present physical condition of the infant or incompetent;)
- The nature and extent of damages
- The terms of the settlement
- The facts surrounding any other motion pertaining to the same claim
- Any reimbursement received
- Any other claims submitted by family members from the same cause of action
1208- Settlement Procedure
An affidavit by the representative of the infant or incompetent’s representative shall include:
- Who they are as representative, names, residence and relationship
- infant’s or incompetent’s pedigree info, ex. Name, age
- Circumstances giving rise to the action, etc… etc…
- The nature and extent of damages
(and the name of each physician who attended or treated the infant or incompetent or who was consulted, the medical expenses, the period of disability, the amount of wages lost, and the present physical condition of the infant or incompetent;)
- The nature and extent of damages
- The terms of the settlement
- The facts surrounding any other motion pertaining to the same claim
- Any reimbursement received
- Any other claims submitted by family members from the same cause of action`
1208- Settlement Procedure
An affidavit by the attorney shall include:
- His reasons for recommending the ___________
- That he has no involvement in the opposing party’s ________
- The services rendered by him
settlement….. interests
1208- Settlement Procedure
During the settlement procedure, Medical or hospital reports shall be included in the supporting papers
They need not be ____________
verified
1208- Settlement Procedure
Appearance before court.
- On the hearing, the moving party or petitioner, the infant or incompetent, and his attorney shall attend before the court unless attendance is excused for good cause.
1208- Settlement Procedure
Appearance before court.
- On the hearing, the moving party or petitioner, the infant or incompetent, and his attorney shall attend before the court unless attendance is excused for good cause.
1208- Settlement Procedure
***If an infant is not represented by an Attorney, then the papers for settlement may be prepared by the ______________ or _________________ **
adverse attorney or an adverse party
1209- Arbitration of Controversy+
No controversy involving infant, incompetent, or conservatees shall be sent to _______________ except pursuant to court order
Arbitration
1210- Guardian of infants
Petition for appointment of a Guardian may be made by:
- The infant, if they are the age of __________ or more
- _________ or _________ of the infant
FOURTEEN (14)……. Relative or Friend
1210- Guardian of infants
- lf the infant is over the age of ____________ the court SHALL examine him for his voluntary nomination or for preference for suitable Guardian.
- lf the infant is under FOURTEEN (14) _________ must appoint suitable Guardian
FOURTEEN (14) ….. the court
1210- Guardian of infants
The court SHALL make an order requiring an ___________ in an amount according to the Surrogate’s Court Procedure Act
UNDERTAKING
1210- Guardian of infants
Upon appointment of a Guardian, the Guardian SHALL file a certified copy of the order of appointment with the __________________ of the county of Appointment
Clerk of the Surrogate’s Court
1211- Allowance of infants Support
A petition being made for the allowance of an infant’s support, maintenance or education shall be made in ______________, ____________, or _____________ court and must set forth:
- The amount of the infant’s property or income, where situated and how invested
- Whether parents are alive or, if not, anyone else supporting them, and their ability to support the infant
- Whether previous orders asking for some of the money has been made
Supreme, County or Surrogates
1211- Allowance of infants Support
Such notice of this request for the allowance of an infant’s support, maintenance or education SHALL be given to:
- The ____________ of the property if they are not the petitioner making the request
- (NEW) all ___________ and guardians of the infant;
- The infant if over ________________
Guardian ………… parents……….. FOURTEEN (14) YEARS
