CPLR Art 32 Flashcards
- Confession of judgment before default on certain installment contracts invalid.
- No judgment by confession shall be entered upon an affidavit that was executed prior to the time a default in a payment of an installment occurs for a purchase of __________ or less in commodities other than for commercial or business use
- A judgment entered in violation to this provision is ________ and unenforceable
$1,500.00…….. two ….. void
- Motion to dismiss.+
A party may file a motion to dismiss upon one of the following grounds:
- There is a defense based on __________
- The court does not have jurisdiction of _____________
- The plaintiff does not have _________ to sue
- There is _________ in another court for the same cause of action between the same parties
- IC SPARE RIBS -Don’t remember them? See CPLR 3018
- A __________ might not properly be imposed
- The pleading fails to state ____________
- The court does not have jurisdiction of __________
- The court does not have jurisdiction due to improper out of state _____________ or __________
- ___________ , a necessary party is absent
- The party is immune from liability due to”_______________ law”
- A party may move for judgment dismissing the defense on the ground that the defense is not stated or has no __________
- The court may treat a motion on the grounds above or to dismiss the defense as a motion for summary judgment and order immediate trial of the issues raised on the motion, if appropriate, whether or not issue was joined.
1 documentary evidence……..
2 the subject matter……
3. legal capacity
4 another action pending……
5 (affirmative defenses)
6 counterclaim ……
8 a cause of action…….
9 the person……. service or service by publication……..
10 Non-joinder………
11 not for profit corporation……….
merit
- Motion to dismiss.+
A motion to dismiss should be brought at any time before service of the __________ is required on one of the grounds mentioned above. Only _________ such motion shall be permitted
responsive pleading ………. ONE (1)
- Motion to dismiss.+
- An objection to the summons and pleadings not being properly served is waived unless within ________ of raising the objection in a responsive pleading,the objecting party moves for judgment on that ground
- This does not apply to a proceeding to collect debt from:
- ____________ transaction; or
- proceedings for ___________ that default on rent or failure to vacate premises after expiration of their lease
SIXTY (60) DAYS……… a consumer credit …….. tenants
- Motion to dismiss.+
Service of a notice of motion to dismiss prior to the service of the pleading responding to the cause of action extends the time to serve the pleading until ________ after service of notice of entry of the order
TEN (10) DAYS
- Motion to dismiss.+
- All ________ pending hearings and motions in the action shall be stayed upon the filing of a motion to dismiss made pursuant to this section.
- The stay shall remain in effect until notice of entry of the order ruling on the motion.
- Limited discovery may be granted for the issues raised in the _____________
Discovery…….. motion to dismiss
- Motion to dismiss.+
- In a proceeding against a licensed architect, engineer, land surveyor, or landscape architect, a motion to dismiss on the grounds that the required notice of claim was not served shall be granted unless the non-moving party demonstrates that the defendant’s conduct was negligent and the cause of injury.
- The court shall grant a ________________ in the hearing of such motion.
preference
3212- Motion for Summary Judgment (Know this section)+
Any party may move for summary judgment in any action after the issue has ________ . There are time frames for this that should be memorized:
- The court can set a date for when no motions for summary judgment may be brought, but such date must be no earlier than ______________ after filing the note of issue.
- If the court does not set a date, then such motion must be brought within __________ of filing the __________.
been joined …….. been joined THIRTY (30) DAYS……… 120 DAYS…… note of issue
EXPLANATION:
The court can set a cutoff date for when motions for summary judgment can no longer be brought. However, the date CANNOT be within a 30-day window following the filing of the note of issue.
If the Court does NOT set a cutoff date for when motions for summary judgment can no longer be brought, then there is a 120 day window starting when the note of issue is filed where any party can file a motion for summary judgment.
3212- Motion for Summary Judgment (Know this section)+
A motion for summary judgment should be supported by __________ and any other available proof showing that there are no defenses to the cause of action or that the cause of action has no merit.
- If this burden is met the court shall direct judgment in favor of either party.
- The motion will likewise be denied if either party shows facts that would require a trial to determine the issues
affidavit
3212- Motion for Summary Judgment (Know this section)+
If it appears that any party other than the moving party is entitled to a summary judgment, the court may grant such judgment without the necessity of a _____________
cross motion
3212- Motion for Summary Judgment (Know this section)+
- An immediate trial may be ordered when the motion for summary judgment results in the sole issue of _________ left to be determined (or a motion to dismiss or motion to dismiss defense)
- In matrimonial actions, no motion for summary judgment will be granted in favor of the ___________
- In any other action, __________ may be granted as to one or more causes of action, or part thereof, in favor of any one or more parties, to the extent warranted, on such terms as may be just, and the court may also direct that the cause of action as to which summary judgment is granted shall be ____________ from any remaining cause of action, or that the entry of the summary judgment shall be held in abeyance pending the determination of any remaining cause of action.
damages………. non-moving party …. summary judgment…….. severed
3212- Motion for Summary Judgment (Know this section)+
- (NEW) At the time of serving a notice of motion for summary judgment against a consumer defendant in an action to collect a debt, the plaintiff must submit to the clerk a stamped, unsealed envelope addressed to the defendant with an additional notice in _________ font in English and Spanish.
- The notice will outline the basic information of the case, the process to oppose the motion, and information on free legal help.
- The chief administrative judge shall issue a Spanish translation of the notice
12 point
3212- Motion for Summary Judgment (Know this section)+
- In an action to collect a debt, the clerk promptly shall mail to the defendant the envelope containing the additional notice and note the date of mailing in the case record.
- Summary judgment shall not be entered based on defendant’s failure to oppose the motion unless there has been compliance with this section and at least __________ have elapsed from the date of mailing by the clerk or ____________ if the plaintiff’s notice of motion demands additional time
fourteen (14) days………. nineteen (19) days
3213- Motion for Summary Judgment in Lieu of Complaint
- When an action is based upon an instrument for the payment of _________only, or upon any ___________, the plaintiff may serve with the summons, a notice of motion for summary judgment and supporting papers in lieu of ___________
- The summons directs the defendant to serve answering papers to the motion by the return date of the motion.
- If the return date of the motion is longer than the normal time to answer a complaint, the plaintiff can require the answer no more than ___________ days prior to the hearing date of the motion
- No default judgment may be entered pursuant to subdivision (a) of section 3215 prior to the hearing date of the motion.
money …judgment…. a complaint. …… TEN(10) DAYS
3213- Motion for Summary Judgment in Lieu of Complaint
If the motion for summary judgment in Lieu of Complaint is denied the moving and answering papers shall be deemed the _________ and ________ respectively
complaint and answer
3213- Motion for Summary Judgment in Lieu of Complaint
NEW: In any action to collect a debt arising out of a consumer credit transaction where a consumer is a defendant, the additional notice required pursuant to CPLR 3212 shall be applicable to a ________ made pursuant to this section
motion
3214- Motions Heard by Judge Supervising Disclosure:Stay of Disclosure
If a judge is assigned to supervise ________ , then all motions preliminary to trial should be assigned to that same judge (whenever practicable)
disclosure
3214- Motions Heard by Judge Supervising Disclosure:Stay of Disclosure
In general, service of the following motions will stay disclosure until determination of the motion:
- Motion to _______ .
- Motion for ___________
- Motion for Summary Judgment in ______________
Dismiss……. Summary Judgment …….. Lieu of Complaint
3214- Motions Heard by Judge Supervising Disclosure:Stay of Disclosure
If the motion is based solely on the defense of __________ , disclosure shall not be stayed unless the court orders otherwise.
improper service
- Default judgment.+
An application to the court for default judgment under this section may be made by motion at any trial term in which the action is triable or at any special term in which a motion in the action could be made. Any reference shall be had in the _________ in which the action is triable.
county
- Default judgment.+
- When a DEFENDANT fails to appear, plead or proceed to trial of an action, the plaintiff may seek a default judgment against him.
- If the plaintiff’s claim is for a sum certain, application may be made to the clerk within ________ after the default.
- The clerk will then enter judgment for the amount demanded in the complaint plus __________ and _____________ .
- Upon entering a judgment against less than all defendants, the clerk shall also enter an order __________ the action as to them.
ONE(1)YEAR…costs and interest….. severing
- Default judgment.+
- If the PLAINTIFF fails to proceed to trial or if the court orders a dismissal for any other neglect to proceed, the defendant has ________ to make application to the clerk for a judgment against the plaintiff for costs
- Where the case is not one in which the clerk can enter judgment, the plaintiff shall apply to ______________ for judgment
ONE (1) YEAR…….the court
- Default judgment.+
- If the plaintiff fails to request a default judgment within _________ of the default, the court shall dismiss the complaint as ______________ without costs on its own initiative or on motion of the defendant who decided to show his face just to move the court to dismiss the action against him.
- Interestingly this motion by the defendant does not constitute an appearance in the action
one year………. abandoned
- Default judgment.+
- Whenever an application for Default judgment is made to the court or to the clerk under this section, and the defendant has appeared, they shall be entitled to ___________ notice of the time and place of the application
- The court may dispense with the requirement of notice when a defendant who has appeared has failed to proceed to trial of an action reached and called for trial.
FIVE (5) DAYS
- Default judgment.+
If a defendant who has failed to appear in an action before the motion for judgment is heard, the defendant who has failed to appear may serve on the plaintiff at any time before the motion for judgment is heard a written demand for notice of any reference or assessment by a jury, the plaintiff must give the defendant at least __________ notice of the time and place of the reference or assessment by a jury.
five days’
- Default judgment.+
- There is also a requirement that when the default judgment is based upon non-payment of a contractual obligation of a natural person, an additional notice must be given to the defendant at least ________ before entry of judgment by mailing a copy of the summons by ____________ mail to the residence of the defendant in an envelope stating “personal and confidential” and not indicating such notice is from an attorney
- If a copy of the summons is returned before the entry of a default judgment as undeliverable by the post office or if the place of residence of the defendant is unknown, a copy of the summons shall then be mailed to the defendant at their place of employment or, if residence and employment is unknown, last known residence
- The additional notice may be mailed simultaneously with or after service of the summons on the defendant. Where there has been compliance with the mailing, failure of the defendant to receive the additional notice shall not preclude the entry of default judgment.
- This requirement shall not apply to cases in the _________ part of any court, or to any summary proceeding to recover possession of real property, or to actions affecting title to real property, except residential mortgage foreclosure actions.
TWENTY (20) DAYS……… first class…….. small claims
- Default judgment.+
- When a default judgment based upon non-appearance is sought against a domestic or authorized foreign corporation an affidavit shall be submitted that an additional service of the summons by first class mail has been made upon the corporation at its last known address at least ___________ before the entry of judgment.
- The additional notice may be mailed simultaneously with or after service of the summons on the defendant. Where there has been compliance with the mailing, failure of the defendant to receive the additional notice shall not preclude the entry of default judgment.
- This requirement shall not apply to cases in the small claims part of any court, or to any summary proceeding to recover possession of real property, or to actions affecting title to real property
twenty (20) days
- Default judgment.+
(Bard) In an action upon a contract where the complaint demands judgment for a _________ only, if the answer admits the plaintiff’s claim but sets up a counterclaim demanding an amount less than the plaintiff’s claim, the plaintiff may take judgment for the excess as upon a default.
sum of money
- Default judgment.+
If, after commencement of an action, a stipulation of settlement is made that provides for entry of a judgment without further notice in the event of failure to comply with the stipulation, the clerk will enter judgment on the stipulation and an affidavit as to the failure to comply, together with a complaint or a concise statement of the facts on which the claim was based, and, if applicable, a statement that the interest rate for consumer debt applies.
- Default judgment.+
If, after commencement of an action, a stipulation of settlement is made that provides for entry of a judgment without further notice in the event of failure to comply with the stipulation, the clerk will enter judgment on the stipulation and an affidavit as to the failure to comply, together with a complaint or a concise statement of the facts on which the claim was based, and, if applicable, a statement that the interest rate for consumer debt applies.
- Default judgment.+
If a stipulation of settlement provides for a judgment to be entered for failure to comply with the terms of the stipulation, then the clerk shall enter judgment upon submission of __________ of the failure to comply with the stipulation
an affidavit
- Default judgment.+
A request for a default judgment entered by the clerk, must be accompanied by an affidavit by the plaintiff or plaintiff’s attorney stating that after reasonable inquiry, he or she has reason to believe that the ___________ has not expired.
statute of limitations
3216- Want of Prosecution
- Where a party neglects to proceed in an action or delays prosecution against a party who may be liable to them or unreasonably fails to serve and file a note of issue, the court on its own initiative or upon motion may dismiss the party’s pleadings, such dismissal is not on the merits
- Prior to issuing such dismissal there are three requirements that first be met, here they Are:
- _______ must have been joined in the action
- ___________ elapsed since joinder of issue or _________ since the issuance of a preliminary court conference order, whichever is later
- The party seeking the relief must serve a written demand by registered or certified mail requiring the plaintiff to resume prosecution and to have them serve and file a note of issue within __________ of receiving the demand
- In the event that the party upon whom the demand is served serves and files a note of issue within such________ period, the same shall be deemed sufficient compliance with such demand and diligent prosecution of the action
- If the plaintiff continues to not comply after the three above steps have been met, then the action will be dismissed
- This section does NOT apply to the dismissal of _________ cases
Issue ……. ONE (1) YEAR…….. SIX months …… NINETY(90) DAYS…… ninety day…. abandoned
3217- Voluntary Discontinuance
An action may be discontinued ______________ both with and without a court order.
voluntarily
3217- Voluntary Discontinuance
To discontinue an action WITHOUT an order of the court, one of the three must be done:
- Serve upon all parties a notice of discontinuance at anytime before a responsive pleading is served or within __________ if no responsive pleading is required, to be followed by filing the notice with proof of service upon the court
- By filing with the clerk before the case is submitted to the court or jury, a ________ in writing signed by the attorneys of record of all parties, as long as no party is an infant, incompetent or conservatees
- By filing with the clerk before the case is submitted to the court or jury, a certificate or notice of ___________ excluding a parcel of land that is the subject matter of the action
In all other circumstances beyond those listed above, to discontinue an action an order of the court is required, however no action shall be discontinued once submitted to the court or jury to ____________ , except upon stipulation of all parties appearing in the action.
TWENTY(20)DAYS…… stipulation……… discontinuance….. render a decision
3217- Voluntary Discontinuance
- Actions discontinued are generally without prejudice and not based on _________
- The exception is if any party has voluntarily discontinued a proceeding based on or including the same cause of action ________
the Merits……… before
3217- Voluntary Discontinuance
KNOW THIS:
**AII notices, stipulations or certificates mentioned in this section shall be filed with the county clerk by the ________ **
defendant
3217- Voluntary Discontinuance
(NEW) (Bard) The voluntary discontinuance of an action on a bond, note, mortgage, or interest therein (on 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, ) does not affect the limitations period to commence an action or to interpose a claim, unless expressly prescribed by statute.
3217- Voluntary Discontinuance
(NEW) (Bard) The voluntary discontinuance of an action on a bond, note, mortgage, or interest therein (on 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, ) does not affect the limitations period to commence an action or to interpose a claim, unless expressly prescribed by statute.
3218 - JUDGMENT BY CONFESSION
Upon an affidavit executed by the defendant, he may ________ to a judgment to be entered. This can be done without an __________, either for ________ due or to secure the plaintiff against a contingent ___________
Confess ……….. action…… money……. liability
3218 - JUDGMENT BY CONFESSION
The defendant’s affidavit for judgment by confession must state the _________ to be entered, authorize the entry of the judgment, the _______ of residence of the defendant, (NEW) if applicable, stating the ________ for consumer debt, and the facts which led to the debt owed or what constituted the liability to the plaintiff
sum of the judgment…….. county ……. interest rate
3218 - JUDGMENT BY CONFESSION
- At any time within __________ after the defendant’s affidavit is executed,it may be filed with the clerk of the county where the defendant resided when executing the confession.
- The clerk shall then enter the judgment in the Supreme Court with costs of ____________ . No judgment of confession can be entered for a dead defendant
- The judgment may be docketed and enforced in the same manner and with the same effect as a judgment in an action in the ___________ court.
THREE (3)YEARS………… FIFTEEN (15) DOLLARS…… supreme
3218 - JUDGMENT BY CONFESSION
- (NEW) No judgment by confession may be entered after the defendant’s ________
- A non-natural person resides in any county where it has a place of ________
- (NEW) a ____________ agency engaged in the enforcement of civil or criminal law against a person or a non-natural person may file an affidavit in __________ within the state.
Death…… business.government… any county
3218 - JUDGMENT BY CONFESSION
Where the debt for which the judgment is entered is not all due, execution may be issued only for the sum which _________ .
has become due
3218 - JUDGMENT BY CONFESSION
One or more joint debtors may confess a judgment for a joint debt due or to become due, however, the judgment shall be entered and enforced against _______ who confessed it and will not bar action against those who haven’t.
only those
3219- Tender
- At any time but not later than _________ before trial a party against whom a cause of action is based may without court order deposit with the clerk of the court for safekeeping an amount that they feel should sufficiently satisfy the claim against them.
- They will then serve upon the claimant a written ______ of the payment to satisfy the claim and serve a copy of it upon the clerk
- The clerk does not consider this money as a payment into court but simply puts it into a safe or vault for safekeeping
TEN(10) DAYS ……. TENDER
3219- Tender
Within ________ , the claimant, if they are satisfied with the amount deposited, may withdraw the funds upon the filing of an affidavit that the amount is in full satisfaction of the claim. The clerk will then enter a ________ dismissing the pleading
TEN(10) DAYS…… judgment
3219- Tender
If the amount tendered is not accepted and therefore not withdrawn, then upon request, the party who deposited it will receive it back and the case goes on. If no request for the money is made by either side then the clerk (not being a bank) is left with no choice but to consider it money paid to the county _______ or commissioner of _________
Treasurer….. finance
3219- Tender
If the tender is not accepted by the plaintiff and then the plaintiff does not obtain a more favorable judgment than the tender had provided, then costs for ______ the action from the time of ________ the tender is to be paid by the plaintiff
Defending… posting
3220- Offer to Liquidate Damages Conditionally
- This section provides for a defendant to serve upon a claimant no later than _________ before trial a written offer to allow a judgment of a specified amount to be entered against him. The claimant then has ___________ to accept the offer. If damages are awarded to the plaintiff after trial, it will be in the amount of the offer if it was accepted. If the offer was not accepted and the award of damages after trial was less than the offer, then the costs of defending the action from the time the offer was made is upon the plaintiff.
- At no time is the offer made known to _________
TEN(10) DAYS……….. TEN(10)DAYS…….. the jury
3221- Offer to Compromise
Except for matrimonial actions, at any time and not later than __________ before trial, any party against whom a claim is asserted may serve upon the claimant a written offer to allow a judgment to be filed against him for a sum or property with costs.
TEN(10)DAYS
3221- Offer to Compromise
- If within _________ after service of a written offer to allow a judgment, the claimant serves a written notice accepting the offer, either party may thereafter file the summons, complaint and offer with proof of acceptance.
- The ________ will then enter the judgment accordingly
TEN(10)DAYS….. clerk
3221- Offer to Compromise
lf the offer is not accepted and the claimant fails to obtain a more favorable judgment, he shall not recover costs from the time of the offer, but shall pay costs from that time
3221- Offer to Compromise
lf the offer is not accepted and the claimant fails to obtain a more favorable judgment, he shall not recover costs from the time of the offer, but shall pay costs from that time
3221- Offer to Compromise
- No offer of judgment shall be made known to _______
a jury
3222- Action on Submitted Facts+
With the exception of a _________ action, an action may be commenced by filing with the clerk a submission of a controversy acknowledged by the parties in a form required for a deed to be recorded. The submission must state that the controversy is real and that it is made in good faith for the purpose of determining the rights of the parties
matrimonial
3222- Action on Submitted Facts+
If made to the ________ court, the submission shall specify the particular county clerk with whom the papers are to be filed
supreme
3222- Action on Submitted Facts+
Following the filing of a submission of controversy, subsequent proceeding are then had according to _________
the CPLR
3212- Motion for Summary Judgment (Know this section)+
- In a proceeding against a licensed architect, engineer, land surveyor, or landscape architect, a motion for summary judgment on the grounds that the required notice of claim was not served shall be granted unless the non-moving party demonstrates that the defendant’s conduct was negligent and the cause of injury. The court shall grant a __________ in the hearing of such motion.
preference
