CPLR ART 2 Flashcards by C P

201 Application of Article

No court shall extend the time limited by law for the commencement of an action.

201 Application of Article
No court shall extend the time limited by law for the commencement of an action.

How well did you know this?

Not at all

Perfectly

201 Application of Article

A written agreement (CAN/CANNOT) lessen the time allowed by law to bring an action

CAN

How well did you know this?

Not at all

Perfectly

202 Cause of Action Accruing Without the State

lf an action commenced due to a cause outside of the state, such action must comply with the limitations of time here in this state (AND/OR) the state where the action occurred,

How well did you know this?

Not at all

Perfectly

202 Cause of Action Accruing Without the State

“Cause of action accruing without the state. An action based upon a cause of action accruing without the state cannot be commenced after the expiration of the time limited by the laws of either the state or the place without the state where the cause of action accrued, except that where the cause of action accrued in favor of a resident of the state the time limited by the laws of the state shall apply.”

202 Cause of Action Accruing Without the State

How well did you know this?

Not at all

Perfectly

203 Method of Computing Periods of limitation

The time within which an action must be commenced, shall be computed from the time the cause of action ____________ to the time the claim is __________

Accrued….. interposed

The lawsuit must start (commence) within the time period prescribed in this section (statute of limitations) for the particular lawsuit that is filed (e.g., breach of contract, auto accident)

How well did you know this?

Not at all

Perfectly

203 Method of Computing Periods of limitation

**Statute of Limitation is measured from time that cause of action __________ to the date that the Action is _______________.

Accrued….. interposed

How well did you know this?

Not at all

Perfectly

203 Method of Computing Periods of limitation

Accrued - when the person suffered ________

the injury.

How well did you know this?

Not at all

Perfectly

203 Method of Computing Periods of limitation

Action Interposed- ending time when time period stops. Generally stops when ___________ on defendant.

papers are served

How well did you know this?

Not at all

Perfectly

203 Method of Computing Periods of limitation

Two types of actions for interposed:

1) Claim Commenced by __________

2) Claim Commenced by _______

Service….. Filing.

How well did you know this?

Not at all

Perfectly

203 Method of Computing Periods of limitation

Action Commenced by Service, complete…:

WHEN Summons is ________ on the defendant

Served

How well did you know this?

Not at all

Perfectly

203 Method of Computing Periods of limitation

Action Commenced by Service, complete…:

WHEN The first _________ against the defendant is made pursuant to court order and _________ is completed

Publication……. publication

How well did you know this?

Not at all

Perfectly

203 Method of Computing Periods of limitation

Action Commenced by Service, complete…:

An order for a provisional remedy is granted provided defendant is served by other methods or first publication made within _________ , or

(Bard) when a defendant dies within thirty days after the order is granted, but before service or publication is completed, service is made on the defendant’s executor or administrator within _______ after letters are issued (for this purpose seizure of a chattel in an action to recover a chattel is a provisional remedy

THIRTY days.. sixty (60) days

How well did you know this?

Not at all

Perfectly

203 Method of Computing Periods of limitation

Action Commenced by Service, complete…:

WHEN order of __________ (order for the surrender/seizure of property or debts to satisfy a future judgment) is granted, if the summons is served in accordance with the provisions of section 6213

attachment

How well did you know this?

Not at all

Perfectly

203 Method of Computing Periods of limitation

Action Commenced by Service, complete…:

WHEN the summons is delivered to the sheriff of that county outside the city of New York or is filed with the clerk of that county within the city of New York in which the defendant is known or last known to reside, be employed or do business, or if the defendant is a corporation of a county in which it may be served or in which the cause of action arose.

In all cases, the summons must be served upon the defendant or first published and completed, within _________ after the period of limitation would have expired but for this provision or

Served upon the defendant’s executor or administrator within _________ after letters are issued, where the defendant dies within _________ after the period of limitation would have expired but for this provision and before the summons is served upon the defendant or publication is completed.

60 days…….. sixty days…..60 days

203 Method of Computing Periods of limitation

Action Commenced by Service, complete…:

WHEN the summons is delivered to the sheriff of that county outside the city of New York or is filed with the clerk of that county within the city of New York in which the defendant resides, is employed or is doing business, or, if not known, where the defendant is known to have last resided, been employed, or been engaged in business, or if the defendant is a corporation, of a county in which it may be served or in which the cause of action arose

In all cases, the summons must be served upon the defendant or first published and completed, within _________ after the period of limitation would have expired but for this provision or

How well did you know this?

Not at all

Perfectly

203 Method of Computing Periods of limitation

Action Commenced by Service, complete…:

For actions commenced in a court not of record, the summons is delivered for service to any officer authorized to serve it in a county, city or town in which it is known or last known the defendant resides, is employed or is doing business, or where the defendant is a corporation, in a county, city or town in which it may be served.

In this case, summons must be served within _______ of delivery

OR Served upon the defendant’s executor or administrator within _______ after letters are issued, where the defendant dies within ___________ after the period of limitation would have expired but for this provision

60 days….. sixty days…. 60 days

203 Method of Computing Periods of limitation

Action Commenced by Service, complete…:

For actions commenced in a court not of record, the summons is delivered for service to any officer authorized to serve it in a county, city or town in which the defendant resides, is employed or is doing business or, if not known, where the defendant is known to have last resided, been employed, or been engaged in business, or where the defendant is a corporation, in a county, city or town in which it may be served.

In this case, summons must be served within _______ of delivery

How well did you know this?

Not at all

Perfectly

203 Method of Computing Periods of limitation

_______________ stops the clock for the Statute of Limitations.

ACTION COMMENCED-

How well did you know this?

Not at all

Perfectly

203 Method of Computing Periods of limitation

__________ stops the clock. Tolls (suspends) the calculation of time.

STAY-

203 Method of Computing Periods of limitation

When an action is commenced by filing: a claim is interposed against a defendant when such action is ________________

actually commenced

203 Method of Computing Periods of limitation

Defense or counterclaim.

Defense or counterclaim- interposed when served:

A defense or counterclaim is interposed when ________________ .
- This differs from an amended pleading which is considered interposed against a defendant at the time the ___________ pleading was interposed

the pleading containing it is served………. original

203 Method of Computing Periods of limitation

When calculating the time with which an action must be commenced, it is computed from the time when the facts were discovered or could have been discovered with reasonable diligence or the specific period otherwise provided (as you will soon see), whichever is longer

I.E. In general, the statute of limitation is two years unless otherwise specified

203 Method of Computing Periods of limitation

Failure to diagnose cancer- SOL starts to run when the person knew or should have known of the doctor’s failure to diagnose or a maximum of _____________ from the alleged misdiagnosis.

seven years

In medical, dental or podiatric malpractice cases where the plaintiff alleges that the defendant negligently failed to diagnose cancer or malignant tumor, the statute of limitations does not begin to run until the later of either: when the person knows or reasonably should have known of the alleged negligence and that it caused injury; Such action shall be commenced no later than seven (7) years or the date of the last treatment where there is continuous treatment for such injury, illness or condition.

203 Method of Computing Periods of limitation

(New) A party cannot unilaterally waive, postpone, cancel, toll, revive, or reset, or extend the statute of limitations for a cause of action on a bond or note, the payment of which is secured by a mortgage upon real property, or upon a bond or note and mortgage so secured, or upon a mortgage of real property, or any interest therein has accrued

203 Method of Computing Periods of limitation

204- Stay of commencement of action; demand for arbitration

Temporary stoppage of lawsuit. Time of Stay is not calculated in the SOL

When the commencement of an action is stayed by a court, the duration of the stay is not part of the time that the action must be commenced

204- Stay of commencement of action; demand for arbitration

Temporary stoppage of lawsuit. Time of Stay is not calculated in the SOL

When the commencement of an action is stayed by a court, the duration of the stay is not part of the time that the action must be commenced

204- Stay of commencement of action; demand for arbitration

When a demand to arbitrate is filed, the time awaiting the determination on such demand is not part of the time with which the action must be commenced.

The time for the action to be commenced shall not be extended beyond ___________ by this provision after such final determination

ONE (1) YEAR

205- Termination of action When an action is terminated, the plaintiff has a right to file a new action upon the same occurrences within _________ even though the statute of limitations may have expired, unless the action was terminated by: 1. Voluntary Discontinuance 2. Failure to obtain personal jurisdiction 3. Dismissal for failure to prosecute 4. Final judgment upon the merits

SIX (6) MONTHS

205- Termination of action (Bard) If a defendant serves an answer in a lawsuit and the lawsuit is terminated, if the plaintiff re-commences the action, the defendant can assert the same causes of action or defenses in a new lawsuit against the same plaintiff if the causes of action or defenses were timely asserted in the prior lawsuit.

205- Termination of action This section also applies to a proceeding brought under the __________________ but shall not apply to Termination of certain actions related to real property.

workers' compensation law

(BRAND NEW SECTION) 205-a. Termination of certain actions related to real property. If an action upon a bond or note, the payment of which is secured by a mortgage upon real property, or upon a bond or note and mortgage so secured, or upon a mortgage of real property, or any interest therein is timely commenced and is terminated in any manner other than: - a voluntary discontinuance, - a failure to obtain personal jurisdiction over the defendant, - a dismissal of the complaint for any form of neglect, {including, but not limited to failure to strike out pleadings or parts thereof after order, default, Want of prosecution, case abandonment,} - for violation of any court rules or individual part rules, - for failure to comply with any court scheduling orders, or - by default due to nonappearance for conference or at a calendar call, - or by failure to timely submit any order or judgment, - or upon a final judgment upon the merits, the original plaintiff, or upon death, his or her executor or administrator, may commence a new action upon the same transaction(s) or occurrence(s) within _____________ following the termination, provided that the new action would have been timely commenced within the applicable limitations period prescribed by law at the time of the commencement of the prior action and that service upon the original defendant is completed within such six-month period. a successor in interest or an assignee of the original plaintiff shall not be permitted to commence the new action, unless pleading and proving that such assignee is acting on behalf of the original plaintiff; ONE __________ extension may be granted

six months…....six-month period.......... six month

Section 206-Special situation When a demand is necessary to entitle a person to commence an action, the time to commence the action is computed from the time when the right to make the demand __________ .

is complete I.E Time for SOL starts (accrual) when the Right to make the demand is complete.

207 Defendant Absent From State or Under False Name When a defendant leaves the state, the time within which the action must be commenced shall be computed from the time he ______________ to the state

enters or returns

207 Defendant Absent From State or Under False Name The statute is actually tolled (suspended) after a cause of action has accrued, when the defendant leaves the state for a period of ______________ or more or remains in the state under a false name Exceptions: - The person has an agent for service within the state - A foreign corporation has a person within the state who can be served - Personal jurisdiction can be obtained without personal delivery to the defendant within the state

FOUR(4) MONTHS

Section 214c- Certain Actions to be Commenced Within Three Years If an action is commenced after the periods listed above, the plaintiff must allege and prove that SCIENCE HAD NOT YET DISCOVERED a way to identify the alleged injury before the SOL ran out.

214-g. Certain child sexual abuse cases This section outlines the revival of a period in which people who were the victims of certain sex crimes against children could commence an action which would otherwise be barred because of SOL or they had not filed a notice of claim or notice of intention to file a claim. The action must be commenced not earlier than ____________ after, and not later than _____________ after the effective date of this section. A dismissal of a previous action before this section was effective on grounds that it was beyond SOL or for failure to file a notice of claim or intention to file a claim shall not be grounds for dismissal of a revival action pursuant to this section.

six (6) months......... two (2) years and six months

Section 216- Abbreviation of Period to One Year After Notice 1. lf a claimant is given notice that another person is seeking recovery of money in excess of _____________ for the same claim, such claimant has __________ to commence the action (Bard) This limitation does not extend the time within which the claimant's cause of action would otherwise be barred.

FIFTY(50)DOLLARS. ONE(1)YEAR

Section 216- Abbreviation of Period to One Year After Notice 2. If another person has filed an action to recover a sum of money exceeding $50, the defendant in that action can motion the court for an order to give notice to the claimant of the action. The defendant can make the motion within _________ of the date they were served with the complaint or the date they received the claim, whichever occurs later. The court will grant the order if it finds that: - The claimant is not a party to the action. - The action was brought without collusion between the defendant and the plaintiff. - The claimant cannot, with due diligence, be served with process in such a manner as to obtain jurisdiction over his person. - The order will specify that notice must be given to the claimant by sending a copy of the summons and complaint in the action, the order, and a notice to the claimant's last known address by __________ . - If registration of mail to a particular country or part thereof is discontinued or suspended, notice to a claimant whose last known address is within such country or part thereof shall be given by ordinary mail, under the terms and conditions that the court may direct. - - Proof that the notice has been mailed shall be filed within _________ from the date of the order; otherwise the order becomes inoperative. Upon such filing, notice shall be deemed to have been given on the tenth day after the date of such order.

20 days .......... registered mail............ ten days

Section 216- Abbreviation of Period to One Year After Notice 3. If the court is satisfied that the conditions have been met and there is no collusion, it will issue an order staying further prosecution of the action for up to___________ from the date the notice was given to the claimant. The court, upon motion, may impose on the defendant, as a condition of granting or continuing the order, the furnishing of an undertaking in an amount to be fixed by the court. The stay will be lifted and the undertaking may be discharged or modified if the claimant intervenes or institutes another action to recover money in excess of $50.00.

one year

Section 216- Abbreviation of Period to One Year After Notice 4. A motion for any relief as prescribed in this subdivision shall be made on notice to __________ to the action.

all other parties

Section 216- Abbreviation of Period to One Year After Notice 5. - If two or more people claim to be the authorized agent of the same person to collect a sum of money exceeding $50, they are considered __________ - Even if an action has been commenced in the name of or on behalf of the person for whom he claims to be the duly authorized agent, any such adverse claimant may be notified of the pendency of an action and may intervene in the action and be designated as claiming to be or as the alleged deputy, officer or agent.

adverse claimants.

Section 216- Abbreviation of Period to One Year After Notice 6. (a) If an action has been filed for the recovery of a sum of money exceeding $50, and the defendant's records show that someone other than the plaintiff has the exclusive right to demand, sue for, and recover the money, either in their own name or as the authorized agent of the plaintiff, and the defendant has not received notice of any change in that right or authority, then the person appearing on the records will be considered to have made an adverse claim to the money and may be treated as an _____________

adverse claimant.

Section 216- Abbreviation of Period to One Year After Notice (B) If an action is filed to recover specific personal property worth more than $50, and someone who is not a party to the lawsuit claims an interest in the property, the defendant can ask the court for permission to notify the claimant of the lawsuit. - The defendant must make the motion within __________ of receiving the claimant's claim or date of service of the complaint. - Upon the granting of such an order, the provisions of subdivision (a) shall apply insofar as they are compatible with the subject matter of the action.

20 days

Section 2l8- Transitional Provisions ln general, the time with which to bring an action is governed by this article. lf a cause of action accrued before this article became effective, then the time to bring an action will be determined by the prior laws in effect or this article whichever is (LONGER/SHORTER).

Longer