CPLR ART 3 Volume 3 Flashcards
- Service by publication authorized
The court, upon motion without notice, shall order service of a summons by publication in an action WHERE Service Outside the State WILL NOT Give __________ if service cannot be made by another prescribed method with due diligence
Personal Jurisdiction
- Service by publication.
The order of service by publication shall direct:
- First publication shall be made within _____________ of the order being granted
- The _________ to be published together with notice to the defendant
- A brief statement to the nature of the action
- The relief and sum of money sought (EXCEPT for _____________
- lf the action is to recover a judgment affecting title to real property, description of property
- ***Publish in __________ newspapers, _________ of which in English, ____________ a week for __________ consecutive weeks.
- *Service is complete on the __________ day after the day of first publication
THIRTY (30 )DAY…….. summons…….. Medical Malpractice cases)…. TWO(2) …… one ……… Once (1) ………. Four (4)……. 28th
2-1-4
- Service by publication.
***For Matrimonials:
- __________ English newspaper, __________ per week for ____________ consecutive weeks
Special rule for Matrimonials:
- The summons, complaint, or summons and notice in an action for divorce or separation, order and papers on which the order was based shall be filed on or before the _______ day of publication.
- A copy of the summons and notice of publication must be mailed to the person to be served on or before the _________ day of publication unless the court dispenses with mailing.
- *Service is complete on the ________ after the day of first publication for Matrimonials
One (1)…….. Once (1) ……. THREE{3)
first ….. first….. 21st day
or 1-1-3
317 - Defense by person to whom summons not personally delivered
A person who was NOT served by personal delivery, whom a default judgment was entered against, may move to vacate the default within ________ after obtaining knowledge of the default, but in no event more than __________ after the entry of Judgment upon a finding of the court that he did not personally receive notice of the summons in time to defend and has a meritorious defense.
This section does not apply to ____________ actions
ONE(1)YEAR ……… FIVE (5) YEARS……….. Matrimonial
318 - Designation of an Agent for Service
is made in writing and is executed and acknowledged in the same manner as a ________ , with the consent of the agent endorsed thereon. lt is filed in the office of the clerk of the county where the _____________ to be served resides or has their office.
The designation shall remain in effect for _________ from such filing unless it has been revoked by the filing of a revocation, or by the death, judicial declaration of incompetency or legal termination of the agent or principal.
Deed….principal.. three years
320 - DEFENDANT’S APPEARANCE)+
(An appearance by a party marks the official participation in the case by that person. All parties must appear in the case, or they will be in default. A person does not have to physically be present in the courtroom to officially appear in the case).
A plaintiff appears by instituting an action, while a defendant appears by:
- Making a _______ (which extends time to answer)
- Serving an _____________
- Serving a _______________
Motion…..Answer….Notice of Appearance
Hint: MAN (You must know this, ok man)
320 - DEFENDANT’S APPEARANCE)+
Time for Appearance
The time for appearance differs depending on how the defendant was served.
Personal Delivery- If the papers were served by handing them directly to the defendant, the defendant has ____________ after service of the summons to appear.
The time to appear is extended to __________ after service is complete when:
- (1) Person being sued is an official of the state
- (2) Suing a natural person and service was accomplished by all methods of service except personal delivery.
- (3) Service by publication or through a designated agent
- (4) Person was served outside of NYS
Basically, all other forms of service besides personal delivery on a natural person within New York State
twenty (20) DAYS…… thirty (30) days
320 - DEFENDANT’S APPEARANCE)+
(Bard) Generally, when a defendant __________ in a lawsuit, it is considered the same as if they had been personally served with a summons.
appears
320 - DEFENDANT’S APPEARANCE)+
Where the defendant appears during the period of publication of a summons against him, the service by publication shall be deemed ___________ by the appearance. Neat.
completed
- Attorneys.
Parties can have counsel or proceed Pro se….EXCEPT for _______________, _____________, ____________ - They MUST have counsel
infants, incompetents, and conservatees
- Attorneys.
A _________________ or _______________ (MAY/SHALL) appear by an attorney.
Shall (must)…. Corporation OR voluntary association
- Attorneys.
Any consent to change attorney must be signed by the __________ and signed and acknowledged by the party.
It is then filed with the clerk of the court
retiring attorney
- Attorneys.
An attorney of record may withdraw as counsel upon _____________ to the client, the opposing counsel and all other parties.
MOTION ON NOTICE
- Attorneys.
- **lf because of death or other incapacity, a party’s attorney becomes disabled or unable to act before judgment, leave of the court is required before any other step may be taken against that party unless he is given _______________ notice to appoint an attorney* *
- Compare to CPLR 5574 Appeals (_________ extension)
THIRTY(30)DAYS…. Sixty (60) days
HINT: THIRTY FOR NEW ATTORNEY … HEY THAT RHYMES
- Attorneys.
- (Brand New for 2022) An attorney may appear on behalf of a party in a civil action or proceeding for limited purposes, but must file a _____________________ defining the purposes for which they are appearing and signed by such attorney.
- This is filed in addition to any self-represented appearance that the party may have already filed with the court
- Upon completion of the purpose, the attorney shall file a notice of completion of limited scope appearance which shall constitute the attorney’s withdrawal from the action or proceeding
- Both the appearance and withdrawal are permitted following the above filings, unless directed by the court
notice of limited scope appearance
322- Authority for Attorney Appearance in Real Property Actions
An attorney representing a party in a real property action must demonstrate the __________ to represent such person to the defendant
authority
322- Authority for Attorney Appearance in Real Property Actions
Authority of non-resident defendant’s attorney.
- The attorney for a non-resident defendant in an action affecting real property shall file with the clerk written authority for his appearance, executed and acknowledged in the form required to entitle a deed to be recorded, and shall serve either a copy of such authority or notice of such filing on the plaintiff’s attorney within __________ after appearing or making a motion.
- This rule does not apply to an attorney representing an official, agency or instrumentality of, or corporation wholly owned by, the United States
twenty (20) days
- Grounds for removal.
Where the Plaintiff filed the action in the wrong court, the case (MAY/MUST) be removed to the proper court.
MAY
- Grounds for removal.
When a mistake is made with respect to the choice of court where action is commenced, the _____________ UPON MOTION may move the action to proper court
Supreme Court
- Grounds for removal.
- If the court where the action is brought does not have jurisdiction, a court that does have jurisdiction may remove the action to __________ upon motion
- A waiver of jury trial in the first court (IS/IS NOT) inoperative after the removal.
Itself ………. IS
- Grounds for removal.
- Upon consent of the parties if it is determined that a court of lower monetary jurisdiction can now preside as a result of ___________, the action may be moved to such court
{If the amount of damages is reduced, the case can be moved to a lower court with lower monetary jurisdiction. All parties to the case must agree to the move, except for a defendant who has not filed a counterclaim and over whom the lower court would have had jurisdiction if the action had originally been commenced there}
- A waiver of jury trial in the first court (IS/IS NOT) inoperative after the removal.
reduced damages……… IS
- Grounds for removal.
The __________________ can move an action to a lower court ___________ consent where it appears there are reduced damages that are within the jurisdiction of such lower court and the lower court would have had jurisdiction but for the amount of damages demanded.
- A waiver of jury trial in the first court (IS/IS NOT) inoperative after the removal.
- lf the action is so removed, then the verdict or judgment shall be subject to the limitation of monetary jurisdiction of the __________ court where the action was commenced
appellate division….without……. IS………. originating
- Grounds for removal.
Actions may be moved for various reasons from Supreme to Surrogates, County to Supreme or from one local court to another for various reasons
- Grounds for removal.
Actions may be moved for various reasons from Supreme to Surrogates, County to Supreme or from one local court to another for various reasons
- Grounds for removal.
- Where an action pending in the supreme court affects the administration of a decedent’s estate which is within the jurisdiction of the surrogate’s court, the supreme court, upon motion, may remove the action to such surrogate’s court upon the prior order of the surrogate’s court.
- The right of jury trial (SHALL/SHALL NOT) be preserved in the subsequent proceedings.
SHALL
- Grounds for removal.
Where a ___________ judge is incapable of acting in an action pending in the ___________ court, the ___________ may remove the action to itself. An objection to jurisdiction that might have been taken in the ___________ court may be taken in the ___________ court after the removal.
county…..county ……. supreme court……… county ……..supreme
- Grounds for removal.
Where it is unlikely that an action or proceeding pending in a district court, town court, village court or city court will be disposed of within a reasonable period of time for various reasons, upon consent of all parties, a judge of the ____________ may order that it be transferred for disposition by the lower court to any other district court, town court, village court or city court in the _________ or _________ county provided that such other court has jurisdiction of the subject matter of the action or proceeding and jurisdiction over the classes of persons named as parties.
county court…… same or an adjoining
- Grounds for removal.
The case cannot be transferred between courts after the ___________ is issued.
Notice of trial
326 Procedure on Removal
An order to stay proceedings for the purpose of moving for removal may be made by the court in which the action is __________ or the court to which removal is __________.
Pending…. Sought
326 Procedure on Removal
- Where an order of removal is made by a court OTHER than the court in which the action is pending, a certified copy of the order shall be filed with the clerk of the court in which the action _________
- The _____________ must then FORTHWITH send to the new court all papers, records, certified copies of minutes and entries.
is pending.………clerk of the court
326 Procedure on Removal
When proceedings are removed to a different court, all prior proceedings on the case held in the original court ___________
remain valid.
326 Procedure on Removal
When proceedings are removed to a different court, a _________ is given for any fees that have already been paid in the originating court
credit
327- lnconvenient Forum
(Bard) On motion of any party, a court may stay or dismiss a case in part or in whole in the interest of justice if it finds that the case should be heard in another forum, even if the parties involved are domiciled or reside in New York.
This does not apply to an action arising out of or relating to a contract, agreement or undertaking to which section 5-1402 of the general obligations law applies, and the parties to the contract have agreed that the law of this state shall govern their rights or duties in whole or in part.
327- lnconvenient Forum
(Bard) On motion of any party, a court may stay or dismiss a case in part or in whole in the interest of justice if it finds that the case should be heard in another forum, even if the parties involved are domiciled or reside in New York.
This does not apply to an action arising out of or relating to a contract, agreement or undertaking to which section 5-1402 of the general obligations law applies, and the parties to the contract have agreed that the law of this state shall govern their rights or duties in whole or in part.
327- lnconvenient Forum
lf the forum is not convenient, the court has the power __________ to exercise a change in jurisdiction even though jurisdiction and venue are properly placed.
upon motion
327- lnconvenient Forum
lf the court finds that in the interest of substantial justice the action should be heard in another __________ , the court may __________ or _________ the action in whole or in part on any condition that may be just. lt could be based on location of witnesses
forum…….. stay or dismiss
327- Inconvenient Forum
The court ____________ on its own motion to raise the issue of inconvenient forum.
- It is only upon motion of either side that the court can consider whether to stay or dismiss the action.
- Exception: Where the parties have agreed that the law of NYS shall govern rights or duties in whole or in part by contract or agreement, the court (SHALL/SHALL NOT) stay or dismiss an action based on inconvenient forum action on this ground
lacks the authority……….. SHALL NOT
328- Assistance to Tribunals and Litigants Outside the state
- Upon application of a person or in response to letters rogatory (formal request) issued by a tribunal outside the state, the Supreme Court or County Court can order that a person who is domiciled or can be found in this state be served with any document issued in connection with a proceeding in a tribunal outside this state
- The order shall direct the ______________
manner of service.
328- Assistance to Tribunals and Litigants Outside the state
Service may also be made upon a person here in this state under the circumstances above without a ___________
court order
328- Assistance to Tribunals and Litigants Outside the state
The effect of the service (DOES/DOES NOT) by itself recognize an order of judgment or decree rendered outside the state
DOES NOT
