CPLR Art 32 Volume 2 Flashcards
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 (Voluntary Discontinuance) 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 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 at the cost of ____________ .
- No judgment of confession can be entered for a _____________ 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…dead … supreme
HINT: CON-FESS-ION = THREE SYLLABLES = THREE YEARS
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
