CPLR Art 42, 43, 44 Flashcards

1
Q

4201- Powers of Referees to Report

A referee to inquire and report shall have power to issue _______ , administer _____ , and direct parties to engage in ________

A

Subpoenas….. oaths……. disclosure

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2
Q

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

a jury …….. referee

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3
Q

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.
A

advisory jury …. referee… a jury

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4
Q

4212- Advisory Jury; Referee to Report

When no issues remain to_______ the court shall render a decision directing judgment in an action

A

be tried

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5
Q

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
A

findings of facts.. numbered …… oral ……. in writing

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6
Q

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

A

special and general damages

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7
Q

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

A

SIXTY (60) DAYS

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8
Q

4301- Powers of Referee to Determine

A referee’s powers under this section shall be the powers of the court EXCEPT:

  1. The power to ______ himself of his duties (not in the bathroom, folks. Get your head in the game!)
  2. To appoint a ________
  3. To adjudge any person except a _______ before him, guilty of contempt
  • (The term referee shall also include “_____________”)
A

Relieve ……. successor……. judicial hearing officer)

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9
Q

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
A

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
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10
Q

4312- Number of Referees; Qualifications

The court may designate either _______ or ________ referees; in the case of a JHO as a referee there shall be _________

A

ONE or THREE …………. only ONE

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11
Q

4312- Number of Referees; Qualifications

Except upon consent of the parties, referees appointed shall be ________ in good standing.

A

attorneys

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12
Q

4312- Number of Referees; Qualifications

Where a referee may be designated by _________ , they may designate __________ of referees.

A

the parties ……. any number

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13
Q

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.
A

matrimonial……….. JHO……… special

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14
Q

4312- Number of Referees; Qualifications

No person shall serve as referee if they hold the position of:

  1. Court ______ or _________
  2. ________ or _________ to a judge
  3. A ________ or _________ to an attorney for a party in the action or occupies the same office as the attorney
A

Clerk or Clerk….. Secretary or Stenographer……… partner or clerk

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15
Q

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

A

Judge …… judge

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16
Q

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

A

Court Clerk, Law Secretary

17
Q

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

A

TWENTY (20) Days

18
Q

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

A

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

19
Q

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 _________
A

JHO …special referee … sworn … deeds.. all parties

20
Q

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
A

majority

21
Q

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.
A

Majority …. oath

22
Q

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

A

Referee…. clerk . court

23
Q

4317- When Reference to Determine May be Used

Leave of the court and designation by it of the referee is required in:

  1. _____ Actions
  2. 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)
  3. Actions where the defendant is an ___
A

Matrimonial …..property……. infant

24
Q

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.
A

reference……… without

25
Q

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

A

transcript

26
Q

4318- Conduct of Trial

The referee shall conduct the trial the same way as a judge trying an issue _______

A

without a jury

27
Q

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
A

THIRTY (30) Days

28
Q

4320- Reference to Report

Unless otherwise stipulated, a transcript of the testimony together with the exhibits or copies thereof shall be filed with ________

A

the report.

29
Q

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 _______
A

reasonable expenses…… JHO

30
Q

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
A

evidence

31
Q

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.

A

trial by jury

32
Q

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 ___________

A

informed consent……. consent

33
Q

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

A

continuance

34
Q

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
A

FIFTEEN (15) DAYS

35
Q

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 _________
A

the evidence……….. justice………. a reasonable time

36
Q

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.
A

right by a jury

37
Q

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
A

FIFTEEN (15) DAYS

38
Q

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.
A

ONE(1)