CPLR Art 32 Volume 1 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 (upon any plan of deferred payments whereby the price or cost is payable in _________ or more installments).
- 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 on motion
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 ___________ to determine the issues
affidavit…….. a trial
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 _______________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
summary judgment ……………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 (Default of defendant or plaintiff) 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 __________ preliminary to trial should be assigned to that same judge (whenever practicable)
disclosure…….. motions
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 _________ term in which the action is triable or at any _________ term in which a motion in the action could be made.
- Any reference shall be had in the _________ in which the action is triable.
trial …special ….. 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 compliant 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 __________ in the action
one year………. abandoned…….. appearance
- 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
