CPLR Art 42, 43, 44 Flashcards
4201- Powers of Referees to Report
A referee to inquire and report shall have power to issue _______ , administer _____ , and direct parties to engage in ________
Subpoenas….. oaths……. disclosure
4211- Issues to be Decided by the Court
The court shall decide any issue not required to be tried by _______ unless it is referred to a ________ to determine
a jury …….. referee
4212- Advisory Jury; Referee to Report
- Upon motion of any party or on its own initiative, the court may submit any issue of fact needed to be decided to an _____ or upon exceptional circumstances to a ____ to report.
- An order under this rule shall specify the issues to be submitted.
- The procedures to be followed in the use of an advisory jury shall be the same as those for _________ selected under article forty-one.
advisory jury …. referee… a jury
4212- Advisory Jury; Referee to Report
When no issues remain to_______ the court shall render a decision directing judgment in an action
be tried
4213- Decision of the Court
- Before the case is finally submitted, the court shall afford the parties an opportunity to submit requests for ___________
- Each request shall be _______ and so phrased that the court may conveniently pass on it.
- The decision of the court may be ________ or _________ and shall state the facts it deems essential
findings of facts.. numbered …… oral ……. in writing
4213- Decision of the Court
In any action to recover damages for personal injury, injury to property or wrongful death, a decision awarding damages shall include elements of ____________ and ___________ and the amount of award assigned to each element.
- Ex: Loss of earnings, medical expenses,pain and suffering etc. Future damages shall be itemized
special and general damages
4213- Decision of the Court
The decision of the court shall be rendered within _______ after the matter is finally submitted or after a motion whichever is later, unless the parties agree to extend the time
SIXTY (60) DAYS
4301- Powers of Referee to Determine
A referee’s powers under this section shall be the powers of the court EXCEPT:
- The power to ______ himself of his duties (not in the bathroom, folks. Get your head in the game!)
- To appoint a ________
- To adjudge any person except a _______ before him, guilty of contempt
- (The term referee shall also include “_____________”)
Relieve ……. successor……. judicial hearing officer)
4311- Order of Reference
- An order of reference directs the referee to determine the entire action or specific issues, perform acts or receive and report evidence only.
- It may specify or limit the powers of the referee and the time for the filing of his report and may fix a time and place for the hearing
4311- Order of Reference
- An order of reference directs the referee to determine the entire action or specific issues, perform acts or receive and report evidence only.
- It may specify or limit the powers of the referee and the time for the filing of his report and may fix a time and place for the hearing
4312- Number of Referees; Qualifications
The court may designate either _______ or ________ referees; in the case of a JHO as a referee there shall be _________
ONE or THREE …………. only ONE
4312- Number of Referees; Qualifications
Except upon consent of the parties, referees appointed shall be ________ in good standing.
attorneys
4312- Number of Referees; Qualifications
Where a referee may be designated by _________ , they may designate __________ of referees.
the parties ……. any number
4312- Number of Referees; Qualifications
- Generally a person to whom all the parties object may not be designated as a referee, this is not the case however in ________ actions
- (Bard) In matrimonial actions, a referee nominated by a party cannot be appointed to determine an issue but must be a _______ or _____________ referee appointed by the chief administrator of the courts.
matrimonial……….. JHO……… special
4312- Number of Referees; Qualifications
No person shall serve as referee if they hold the position of:
- Court ______ or _________
- ________ or _________ to a judge
- A ________ or _________ to an attorney for a party in the action or occupies the same office as the attorney
Clerk or Clerk….. Secretary or Stenographer……… partner or clerk
4312- Number of Referees; Qualifications
A ______ shall not serve as a referee in a court in which he is a ______ , except by written consent of the parties and without compensation
Judge …… judge
4312- Number of Referees; Qualifications
In Uncontested Matrimonials a _________ or ________ or any other non - judicial employee who is an attorney in good standing may be appointed without fee to serve as a referee by the administrative judge to hear and report to the court
Court Clerk, Law Secretary
4313- Notice
The clerk shall send a copy of the order of reference to the referee who will notify the parties of a time and place for a hearing within _____ of the day of the order, unless he declines to serve
TWENTY (20) Days
4314- Successor Referee
If the referee dies, resigns, declines to serve, is removed, if a new trial is granted or on motion of any party including the court’s own motion, a successor referee may be designated unless (the stipulation which was the basis for) the order of reference expressly provides otherwise
4314- Successor Referee
If the referee dies, resigns, declines to serve, is removed, if a new trial is granted or on motion of any party including the court’s own motion, a successor referee may be designated unless (the stipulation which was the basis for) the order of reference expressly provides otherwise
4315- Referee to be Sworn
- A referee other than a _____ or ___________ must be ______ to faithfully and fairly perform the acts asked of him.
- Any person authorized to take acknowledgments of ________ by the real property law may administer the oath.
- The oath may be waived by consent of _________
JHO …special referee … sworn … deeds.. all parties
4316- Procedure Where More Than One Referee
- When there is more than one referee they must all meet together to hear the allegations and proofs.
- It is a _______ however that determines time and place for trial, decides any questions, signs a report, adjourns or settles a case
majority
4316- Procedure Where More Than One Referee
- Any of the referees may administer an _____ to a witness;
- A _____ of those present at a time and place appointed for the trial may adjourn the trial to a future day.
Majority …. oath
4317- When Reference to Determine May be Used
The parties may stipulate that any issue shall be determined by ____
- The ______ shall forthwith enter an order referring the issue for trial to the named referee.
- Where the stipulation does not name a referee the ______ will designate one
Referee…. clerk . court
4317- When Reference to Determine May be Used
Leave of the court and designation by it of the referee is required in:
- _____ Actions
- Actions against a corporation involving ______
- (actions against a corporation to obtain a dissolution, to appoint a receiver of its property, or to distribute its property, unless such action is brought by the attorney-general) - Actions where the defendant is an ___
Matrimonial …..property……. infant
4317- When Reference to Determine May be Used
- The court may order a ________ to determine a cause of action or an issue ____________ the mutual consent of the parties
- Actions and issues above include actions to foreclose mechanic’s liens; or to determine an issue of damages separately triable and not requiring a trial by jury; or where otherwise authorized by law.
reference……… without
4317- When Reference to Determine May be Used
A ________ of the testimony along with exhibits or copies thereof shall be provided to the parties upon payments of the appropriate fees
transcript
4318- Conduct of Trial
The referee shall conduct the trial the same way as a judge trying an issue _______
without a jury
4319- Decision
The decision of the referee shall be made within _______ after the matter is submitted to him. If it is not filed within that time, the court may grant a new trial upon motion of a party and the referee shall not be entitled to fees.
- Take note: This is half the time the judge has to render a decision
THIRTY (30) Days
4320- Reference to Report
Unless otherwise stipulated, a transcript of the testimony together with the exhibits or copies thereof shall be filed with ________
the report.
4321- Fees and Expenses
- An order or a stipulation for a reference shall determine the method and basis of computing the referees’ fees and providing for their payment.
- The court may also make an order for payment for _________
- Unless otherwise ordered, such fees and expenses of the referee shall be taxed as costs.
- This does not apply to the _______
reasonable expenses…… JHO
4401- Motion for Judgment During Trial
- Any party may move for a judgment after the close of the ______ upon the ground that they are entitled to a judgment as a matter of law or at any time on the basis of admissions.
- They must specify the grounds for the motion
evidence
4401- Motion for Judgment During Trial
The motion for judgment does not waive the right to ______ or to present further evidence even where it is made by all parties.
trial by jury
4401a- Motion for Judgment
A motion for a judgment at the end of the plaintiff’s case must be granted in an action for medical malpractice based solely on lack of ___________ if no expert medical testimony was provided by the plaintiff to support the insufficiency of the ___________
informed consent……. consent
4402- Motion for Continuance or New Trial
At any time during trial, the court on motion of any party may grant a ________ or a new trial in the interest of justice
continuance
4403- Motion for new trial or to confirm or reject or grant other relief after reference to report or verdict of advisory jury+
- Within ________ after the verdict of an advisory jury or the report of a referee, upon the motion of either party or on its own initiative the court can confirm or reject in whole or in part such verdict or report.
- The court may make new findings without the taking of new testimony, and may order a new trial
FIFTEEN (15) DAYS
4404- Post Trial Motion for Judgment and New Trial
After a jury trial, upon the motion of any party or on its own initiative, the court may set aside a verdict or any judgment entered thereon and direct that judgment be entered in favor of a party entitled to judgment as a matter of law or it may order a new trial where:
- the verdict is contrary to the weight of ________, or
- in the interest of _______ , or
- where the jury cannot agree after _________
the evidence……….. justice………. a reasonable time
4404- Post Trial Motion for Judgment and New Trial
- After a trial not triable of ______ , upon the motion of any party or on its own initiative, the court may set aside its decision or any judgment
- It may make new findings of fact or conclusions of law, with or without taking additional testimony, render a new decision and direct entry of judgment, or it may order a new trial of a cause of action or separable issue.
right by a jury
4404- Post Trial Motion for Judgment and New Trial
A POST-TRIAL motion under this article shall be made before the judge who presided at the trial and must be made within _______ after the decision, verdict or discharge of the jury. The court shall have no power to grant any relief once an appeal has been filed
- Keep in mind this differs from the time for filing an appeal which is 30 days
FIFTEEN (15) DAYS
4404- Post Trial Motion for Judgment and New Trial
- Every ground for post trial relief should be made within ________ post trial motion
- Each party shall raise by the motion or by demand every ground for post-trial relief then available to him.
ONE(1)
