CPLR Art 40 & 41 Volume 1 Flashcards
4001- Powers of Referees
The court can appoint a referee to determine an _______ , perform an ______ or______ and _______
act Issue……….. inquire and report
4011- Sequence of Trial
The court will regulate the sequence of trial for _______ and _________ disposition of the matters at issue in a setting of “proper __________ ”.
efficiency and unprejudiced …. decorum
4012- Marked Pleadings Furnished
The party who files the note of issue should provide the judge with copies of each _______ plainly marked indicating which statements are ______ and which are being controverted
Pleading …. admitted
4013- Trial Elsewhere Than Courthouse
Upon stipulation of the parties the judge may direct the trial to occur at a place outside ___________
the courthouse
4016- Opening and Closing Statements
An attorney for each plaintiff and an attorney for each defendant having their own separate right MAY make an opening statement, similarly they MAY also make a closing statement but in the inverse order to opening statements
PADA - DAPA
4016- Opening and Closing Statements
The attorney during closing statements in a ________ or ___________ case may make reference to a monetary compensation for damages. If such reference is made then the court upon the request of any party shall instruct the jury that:
- The attorney’s reference to specific dollar amounts are permitted as ______
- That it is not _________ and should not be considered as such
- Damages are solely for the _________ to decide
personal injury….. wrongful death …… argument ….. evidence….. jury
4017- Objections
- Formal exceptions to rulings of the court are unnecessary, however, at the time a court makes a ruling or order, a party shall make known to the court what action he wants the court to take or his objection to the action of the court.
- Failure to so make known objections may restrict review upon ________
appeal
4018- Increased Damages
Where the statute grants increased damages, the decision, report or verdict shall specify the sum awarded as ___________ and judgment shall be entered for the increased amount
single damages
4019- Recording In Camera Interviews of infants
- A court shall not conduct an in camera interview of an infant to fix custody or modify judgments and orders of custody in matrimonial actions without a _________ of such interview.
- Such record can be made part of an _________ to be forwarded to the appellate division under seal
stenographic record………. appeal
4101- Issues Triable by a Jury Revealed Before Trial
In the following actions the issues of fact shall be tried by a jury unless waived:
- An action for __________ (concerns marriages)
- An action involving ___________
- An action for __________
- An action for _____________- (possession of land)
- An action for _________
- An action to recover a _____________
- An action for a _________________
(Or any other action entitled to jury by the __________)
Dower ……. Real Property…… Nuisance…….Ejectment……….Waste……… Chattel………. sum of Money….. constitution
4101- Issues Triable by a Jury Revealed Before Trial
What’s DR. NEWCM?
Dower ……. Real Property…… Nuisance…….Ejectment……….Waste……… Chattel………. sum of Money….. constitution
4102- Demand and Waiver of Trial by Jury
- Any party may demand a trial by jury when such right exists by serving on all parties and filing a note of issue containing a ___________
- Any other party may demand a jury by serving such jury demand within ____________ of being served the note of issue.
- *The note of issue must be served _____________
jury demand. …FIFTEEN (15) DAYS………first
4102- Demand and Waiver of Trial by Jury
If no demand for trial by jury is made by either side, it’s considered _________
waived.
4102- Demand and Waiver of Trial by Jury
- If a demand for jury trial covers only certain issues, the other side may, within __________ , file a demand for jury trial as to the other issues.
- You should also know that a party may not __________ a demand for a jury trial without the consent of the other parties!
TEN (10) DAYS….. withdraw
4102- Demand and Waiver of Trial by Jury
A party does not waive their right to a jury trial by joining a claim with another claim that does not have a right to a jury trial, or by asserting counterclaim, cross-claim or third party claim an action that does not have a right to a jury trial.
4102- Demand and Waiver of Trial by Jury
A party does not waive their right to a jury trial by joining a claim with another claim that does not have a right to a jury trial, or by asserting counterclaim, cross-claim or third party claim an action that does not have a right to a jury trial.
4102- Demand and Waiver of Trial by Jury
The chief administrator of the courts may by rule provide that a party shall be deemed to have demanded trial by jury by filing a note of issue not containing ______________ of trial by jury.
an express waiver
4103- Issues Triable by a Jury; Demand and Waiver of Trial by Jury
If during trial its revealed certain issues are now______________ as of right for the adverse party, then the court shall give such adverse party a right to demand a jury trial. Failure to do so shall be deemed a waiver.
triable by jury
4104- Number of Jurors
A CIVIL JURY SHALL BE COMPOSED OF _______ PERSONS
SIX
4105- Persons Who Constitute the CIVIL Jury
The first _________ persons whose names are drawn and called and are approved by the parties shall constitute the CIVIL jury
SIX
4106- Alternate Jurors- (KNOW THIS)
________ or _______ alternate jurors (MAY/SHALL) be drawn upon the request of a party.
ONE OR MORE…… MAY
4106- Alternate Jurors- (KNOW THIS)
Alternate jurors are drawn at the same time and in the same manner, with the same qualifications as _________ , and they will be subject to the same examinations and challenges
regular jurors
4106- Alternate Jurors- (KNOW THIS)
After the final submission of the case the court may ________ the alternates to insure availability if needed.
retain
4106- Alternate Jurors- (KNOW THIS)
- If a regular juror dies or becomes ill or is unable to perform their duties before or during the final submission of the case they may be replaced by such alternate or retained alternate.
- The court may even allow an alternate to take over during deliberations for a juror who is unable to perform.
4106- Alternate Jurors- (KNOW THIS)
- If a regular juror dies or becomes ill or is unable to perform their duties before or during the final submission of the case they may be replaced by such alternate or retained alternate.
- The court may even allow an alternate to take over during deliberations for a juror who is unable to perform.
4107- Judge Present at Examination of Jurors
A judge is only present at examination of jurors upon application of _________
a party
4108- Challenges Generally
- An objection to a juror is made by a ________ unless the parties stipulate to excuse the juror.
- A challenge to a juror or the panel of jurors shall be tried and determined by _________
Challenge……… the court
4109- Peremptory Challenges (KNOW THIS - THEY WILL ASK)
- The plaintiff or plaintiffs shall have a combined total of ___________ peremptory challenges plus _________ for every _______ alternates
- The defendant or defendants shall have a combined total of __________ peremptory challenges plus __________ for every _______ alternates
THREE(3) …….. ONE (1) ….two……. THREE(3)……. ONE(l) … two
4109- Peremptory Challenges (KNOW THIS - THEY WILL ASK)
The court in its discretion may authorize _______ equal to each side as it deems appropriate as well the court may determine how to allocate a side’s combined total challenges among the multiple parties within
additional challenges
