CPLR ARTS 4, 5, 6 Flashcards
Section 401 – Parties
The parties are referred to as the _________ and ____________ .
PETITIONER and RESPONDENT
Section 401 – Parties
There is ________ joinder, interpleader, or third party practice after commencement of proceeding, except by _____________ .
NO….LEAVE OF COURT
402- Pleadings
These are the only pleadings in special proceedings:
___________________________________________
PAR (petition, answer and reply) (8-2-0, 12-7-1)
Versus the pleadings in an action: CAR (complaint, answer and reply)
402- Pleadings
Actions under this article are commenced by a ___________ and ____________ instead of a Summons and Complaint.
NOTICE OF PETITION……. PETITION
403- Notice of Petition, Service, Order to Show Cause
Notice of petition must state the time and place of the hearing on the petition and _________________ , if any.
supporting affidavits
403- Notice of Petition, Service, Order to Show Cause
The time for service of the notice of petition and answer is as follows:
8 days notice given:
Petition - 8 days —> Answer- ____ days —>reply - ____ days
Or if 12 days notice given:
Petition - 12 —> Answer - _____ days —> Reply- ____ day
8-2-0
12-7-1
403- Notice of Petition, Service, Order to Show Cause
Notice of Petition is to be served in the same manner as a __________ , however if the court grants an Order to show cause in lieu of notice of petition it is to be served at a time and in manner as court directs
summons
404- Objections in Point of Law
The respondent may raise an objection in point of law in his answer or by bringing a motion to dismiss.
lf the motion is denied the court may allow the respondent to answer, usually within __________ from service of the order with notice of entry. The petitioner may then re-notice the matter for hearing upon __________ notice or the respondent may re-notice the hearing in the answer upon __________ notice
FIVE(5) DAYS ………. two days………. seven days
404- Objections in Point of Law
The petitioner may raise an objection in point of law to new matter contained in the _________ by setting it forth in his __________ or by moving to strike such matter on the day the petition is noticed or re-noticed to be heard.
answer……. reply
405- Correction of Defects in Papers+
Either party can move to correct a defect or omission in the record or to strike__________ or ________ matter unnecessarily placed in a pleading or a more definite statement of a pleading which is so vague or ambiguous that he cannot reasonably be required to frame a response.
This is done by notice of motion or order to show cause within the time allowed for ______________
- Extension for time to plead is not automatically granted.
scandalous or prejudicial…….. the responsive pleading
406- Motions
Motions in special proceedings made at or before the time the petition is due to be heard are heard at the ___________ petition is due to be heard
same time
407- Severance
The court may at any time order severance of a claim, counter claim, cross claim or of a party and order a separate special proceeding or action as to that claim or party
407- Severance
The court may at any time order severance of a claim, counter claim, cross claim or of a party and order a separate special proceeding or action as to that claim or party
408 - Disclosure+
Leave of the court is ________ for parties to engage in disclosure except for a “____________ “ under CPLR 3123.
REQUIRED…….. notice to admit
408 – Disclosure+
A “notice to admit” under 3123 may be served not later than ____________ before the petition is noticed to be heard and the response denying or admitting shall be served not later than ___________ before the petition is noticed to be heard
THREE(3)DAYS …….. ONE (1) DAY
HINT: CPLR 3123 - THE ANSWER IS IN THE FIRST TWO NUMBERS OF THE SECTION 3-1
409- Hearing
At the time of the hearing each side will furnish to the court all papers served ____________. The court then conducts a hearing and shall make a summary determination assuming there are no triable issues of fact.
by them.
410- Trial
lf there are triable issues of fact then they will be tried forthwith and if triable by jury the court will give the parties an opportunity to demand a jury trial
Failure to make such demand within the time limited by the court, or, if no such time is limited, before _______________ , shall be deemed __________ of the right to trial by jury.
trial begins……….a waiver
410- Judgment
- A Special Proceeding is terminated in a __________ rather than an order.
- The court shall direct that judgment be entered determining the ________________ to a special proceeding
JUDGMENT………… rights of the parties
Article 5 - Venue
- The ___________ generally designates the place of venue. lt must be stated on the summons. lf based on ____________ , then it must indicate such on the summons.
- Failure to specify __________ on summons is a defect in form absent showing of prejudice and does not void the Summons
Plaintiff …… plaintiff’s residence……. venue
501 - Contractual Provisions Fixing Venue
Parties can agree in writing in advance, before an action is commenced, to the place of trial, and it shall be enforced upon a motion subject to provisions of CPLR 510 (2) & 514
501 - Contractual Provisions Fixing Venue
Parties can agree in writing in advance, before an action is commenced, to the place of trial, and it shall be enforced upon a motion subject to provisions of CPLR 510 (2) & 514
502- Conflicting venue Provisions
lf there is a conflict as to venue due to joinder of claims or parties, the ____________ shall order at least one proper venue for one of the parties or claims
court upon motion
503- Venue Based on Residence
- Venue shall be in the county where_________ reside when the action was commenced, or if none of the parties resided in the state, then in any county designated by the _________
- lf a party is a resident of more than one county then it shall be deemed a resident of ________
one of the parties ….. plaintiff ……. each such county
503- Venue Based on Residence
Residence:
Executor, administrator, trustee, etc. shall be deemed a resident of the county of his _________ as well as the actual county of _____________
Appointment…….. his residence
503- Venue Based on Residence
Residence:
Infant appearing by Guardian ad Litem…Residence of __________
the infant
503- Venue Based on Residence
Residence:
For a Corporation - its residence is where its _________ is located.
- If it’s a railroad or other common carrier, it could also be where the ___________ took place
principal office…….. cause of action
503- Venue Based on Residence
Residence:
Unincorporated association - A president or treasurer of an unincorporated association, suing or being sued on behalf of the association, shall be deemed a resident where the association has its ___________ , as well as the county in which he actually _________.
principal office……… resides.
503- Venue Based on Residence
Residence:
Partnership or individually-owned business - __________ or where the partner or individual owner being sued _____________
Principal office…….. resides
503- Venue Based on Residence
Residence:
Assignee - In a lawsuit for money only brought by an assignee who is not an assignee for the benefit of creditors or a holder in due course of a negotiable instrument, the assignee’s residence is considered to be the same as the ____________ residence at the time of the original assignment.
original assignor’s
503- Venue Based on Residence
Consumer Credit Transaction- The county of residence of the __________ or where _________________ governs
Defendant ……… the transaction took place
504- Actions against counties, cities, towns, villages, school districts and district corporations.
Venue is as follows:
Against a County - ___________
in such County
504- Actions against counties, cities, towns, villages, school districts and district corporations.
Venue is as follows:
A City - (EXCEPT NYC) town, village, school district or district corporation - in a _________ in which such city is situated, if situated in more than one ____________ , then in either ___________
County……… county….. county
504- Actions against counties, cities, towns, villages, school districts and district corporations.
Venue is as follows:
NYC - The _________ where the cause of action arose unless outside city limits, then ______________
County ……… NY County (Manhattan)
505 Actions involving Public Authorities
Generally actions against public authorities are in the county where their _____________ are located or where it has facilities involved in the action
principal offices
505 Actions involving Public Authorities
NYC Transit- The ____________ within the five boroughs where the cause of action occurred unless it occurred outside of NYC, then in the _________________
County……….. County of NY (Manhattan)
506- Where Special Proceedings Are Commenced
Special Proceedings are commenced in ____________________ where the proceeding is triable or in the case of:
- ART 78 special proceeding (proceeding against a body or officer) - in any ____________________ where the allegation against body or officer occurred, or where the _____________ of the Respondent is located
ANY COUNTY WITHIN THE JUDICIAL DISTRICT ………….. county within the judicial district…….. principal office
506- Where Special Proceedings Are Commenced
Special Proceedings are commenced in ____________________ where the proceeding is triable or in the case of:
- Proceeding against a Justice of the Supreme Court, a Judge of a County Court, or the court of general sessions then in the _______________ where action originated or in an adjoining department based on the unavailability of the proper department
ANY COUNTY WITHIN THE JUDICIAL DISTRICT …… appellate division of the judicial department
HINT:
If you disagree with the order of any of the above judges, you have to APPEAL them, so APPELLATE DIVISION
Those courts are in a judicial district, so you have to go above their heads to the judicial DEPARTMENT which comprises judicial districts, so JUDICIAL DEPARTMENT.
506- Where Special Proceedings Are Commenced
Special Proceedings are commenced in ____________________ where the proceeding is triable or in the case of:
- Most actions against State departments…ex. Dept of Transportation, Tax commissioner, Regents of SUNY, are held in the_________________
ANY COUNTY WITHIN THE JUDICIAL DISTRICT ……. Supreme court of Albany County
506- Where Special Proceedings Are Commenced
Special Proceedings are commenced in ____________________ where the proceeding is triable or in the case of:
- Commissioner of Education, taxation and finance, etc. - Generally _____________
ANY COUNTY WITHIN THE JUDICIAL DISTRICT …..Albany County
506- Where Special Proceedings Are Commenced
Special Proceedings are commenced in ____________________ where the proceeding is triable or in the case of:
- Proceedings against the Commissioner of Education can be held in the ________________________ This is usually where the kid goes to school
ANY COUNTY WITHIN THE JUDICIAL DISTRICT …..Supreme Court in the County of residence of the Petitioner.
506- Where Special Proceedings Are Commenced
Special Proceedings are commenced in ____________________ where the proceeding is triable or in the case of:
- NYC TAX APPEALS Tribunal - __________________
ANY COUNTY WITHIN THE JUDICIAL DISTRICT …..Appellate Division First Department
HINT:
APPEALS - Appellate divisions
TAX - You pay your taxes FIRST before you get your paycheck
507 Real Property Actions
The place of the action shall be in the _____________ where the property is located…easy peasy
county
508 Actions to recover a Chattel (Personal Property)
The place of the action shall be in the__________ where the property is located
county
509 Venue in County Designated
ln general, the place of trial of an action SHALL be in the county designated by the ____________ , unless changed to another county by order on motion or consent of the parties
plaintiff
510 Grounds for change of place of trial
The Court upon motion may change the place of trial when:
- lt is not the ____________ (by written demand with or before the answer)
- Reason to believe an _________ trial cannot be had
- __________ of witnesses and the ends of justice will be promoted
proper County …. impartial ….. Convenience
511- Change of Place of Trial
PROCEDURE TO CHANGE VENUE IF “IT IS NOT THE PROPER COUNTY”
- Written demand served on Plaintiff by Defendant ________ OR _________ THE ANSWER
(Remember, this motion is filed by the DEFENDANT because, usually, it’s the plaintiff that decides the venue in civil matters)
WITH OR BEFORE
511- Change of Place of Trial
PROCEDURE TO CHANGE VENUE IF “IT IS NOT THE PROPER COUNTY”
- Plaintiff has ___________ to agree with change or disagree by serving on defendant an affidavit indicating such.
- lf plaintiff objects, defendant has ___________ from service of original demand to move for change of venue. Essentially within ten days after the plaintiff’s five days to respond.
FIVE (5) DAYS….. FIFTEEN (15) DAYS
511- Change of Place of Trial
PROCEDURE TO CHANGE VENUE IF “IT IS NOT THE PROPER COUNTY”
- (Maybe need to know?) Defendant may notice such motion to be heard as if the action were pending in the county he specified, unless plaintiff within ______________ after service of the demand serves an affidavit showing either that the county specified by the defendant is not proper or that the county designated by him is proper.
FIVE (5) DAYS
511- Change of Place of Trial
PROCEDURE TO CHANGE VENUE IF “IT IS NOT THE PROPER COUNTY”
- lf the change is agreed upon by the parties, or an order directing change is entered, the clerk SHALL _____________ deliver to the clerk of the county where the action is going all papers and certified copies of all minutes and entries
FORTHWITH
511- Change of Place of Trial
PROCEDURE TO CHANGE VENUE IF “IT IS NOT THE PROPER COUNTY”
An appeal from an order changing the place of trial shall be taken in the _________ in which the motion for the order was heard and determined.
department
511- Change of Place of Trial
PROCEDURE TO CHANGE VENUE IF “IT IS NOT THE PROPER COUNTY”
The proceedings (WILL/WILL NOT) be stayed unless it appears from the papers that the change is sought with due diligence.
will NOT
511- Change of Place of Trial
A motion to change venue on any other ground other than improper county is made within a __________ after the commencement of the action
a reasonable time
512- Change of place of trial in NON JURY actions
The place of trial of an action or any issue triable without a jury may be, in the discretion of the court, in ______________ in which the action is triable
any county within the judicial district
513- Misplacement of Venue in Consumer Credit Transactions
When it appears that a summons is filed in the improper county, the Clerk (SHALL/SHALL NOT) accept a summons for filing and shall reject it, stamping it rejected with date and shall enter such date in the register maintained by him together with the NAME OF THE COUNTIES where summons may be properly filed.
Service is complete __________ after being filed in the proper county along with proof of service of not only the Summons but also of a notice to the defendant by registered or certified mail setting forth the following:
- Proper county
- The date of the filing of the summons
- The date to answer or file notice of appearance…..remember (MAN)
- The address at which the answer or notice is to be filed.
SHALL NOT…… TEN(10) DAYS
(NEW LAW FOR 2021) 514. Actions relating to consumer goods
For the purposes of this section, “consumer goods” shall mean goods, wares, paid merchandise or services purchased or paid for by a consumer, the intended use or benefit of which is intended for the personal, family or household purposes of such consumer
(NEW LAW FOR 2021) 514. Actions relating to consumer goods
For the purposes of this section, “consumer goods” shall mean goods, wares, paid merchandise or services purchased or paid for by a consumer, the intended use or benefit of which is intended for the personal, family or household purposes of such consumer
(NEW LAW FOR 2021) 514. Actions relating to consumer goods
- Any clause in a consumer goods contract that designates, restricts, or limits the venue in which a claim can be adjudicated or arbitrated is ________ as against public policy.
- This does not affect the validity of any other aspect of a contract
void
601- Joinder of claims+
- Joinder of claims is done by either plaintiff or defendant against ___________ parties.
- They may join ____________ as they have against an adverse party. They (DO/DO NOT) have to be related, but if too complex or complicated may be tried in succession.
- There may be like __________ of claims when there are multiple parties
Adverse………. as many claims …..DO NOT…. joinder
601- Joinder of claims+
Two or more plaintiffs may join NO MORE THAN ___________ against the same defendant in separate consumer credit transactions as long as they are represented by the same attorney
FIVE (5) CLAIMS
602- Consolidation
- Joint Trials and consolidations means putting two or more actions together, based on common questions of law and fact. lt is done _____________ !
- The difference is Joint trials keep their ______________, while consolidated trials are fused together under __________ , resulting in one judgment, one bill of costs
UPON MOTION……. separate identity…….. one caption
602- Consolidation
The two courts that have the power to remove cases from lower courts are __________ and __________courts.
- Cases removed for consolidation or joint trials can only be removed from _______ courts to __________ courts
Supreme and County ……….. lower…… higher
602- Consolidation
- Where an action is pending in the _________ it may, upon motion, remove to itself an action pending in another court and consolidate it or have it tried together with that in the supreme court.
- Where an action is pending in the__________ , it may, upon motion, remove to itself an action pending in a city, municipal, district or justice court in the county and consolidate it or have it tried together with that in the county court.
supreme court ….. county court
603- Severance and Separate Trials
The courts can sever any claim or may order a separate trial to avoid prejudice or in furtherance of convenience, ______ to the trial of the others
prior
604/ UR2O2.42 - Change by Supreme Court of Place of Trial+
__________ upon motion of any party can order an issue of fact pending in another court to be tried in the __________ of another county.
Supreme Court……… Supreme Court
604/ UR2O2.42 - Change by Supreme Court of Place of Trial+
- After the issue is tried, the clerk in the Supreme Court will certify the minutes and file with the clerk where __________ so it may continue there with any subsequent proceedings.
- This is with EXCEPTION to actions involving real property pending in a ____________
the action came from………. County court
