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CPLR - FUTURE CLERK 2023: THE CLERKENING > CPLR ARTS 4, 5, 6 > Flashcards

CPLR ARTS 4, 5, 6 Flashcards

1
Q

Section 401 – Parties

The parties are referred to as the _________ and ____________ .

A

PETITIONER and RESPONDENT

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2
Q

Section 401 – Parties

There is ________ joinder, interpleader, or third party practice after commencement of proceeding, except by _____________ .

A

NO….LEAVE OF COURT

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3
Q

402- Pleadings

These are the only pleadings in special proceedings:

___________________________________________

A

PAR (petition, answer and reply) (8-2-0, 12-7-1)
Versus the pleadings in an action: CAR (complaint, answer and reply)

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4
Q

402- Pleadings

Actions under this article are commenced by a ___________ and ____________ instead of a Summons and Complaint.

A

NOTICE OF PETITION……. PETITION

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5
Q

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.

A

supporting affidavits

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6
Q

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

A

8-2-0

12-7-1

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7
Q

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

A

summons

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8
Q

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

A

FIVE(5) DAYS ………. two days………. seven days

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9
Q

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.

A

answer……. reply

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10
Q

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.
A

scandalous or prejudicial…….. the responsive pleading

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11
Q

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

A

same time

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12
Q

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

A

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

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13
Q

408 - Disclosure+
Leave of the court is ________ for parties to engage in disclosure except for a “____________ “ under CPLR 3123.

A

REQUIRED…….. notice to admit

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14
Q

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

A

THREE(3)DAYS …….. ONE (1) DAY

HINT: CPLR 3123 - THE ANSWER IS IN THE FIRST TWO NUMBERS OF THE SECTION 3-1

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15
Q

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.

A

by them.

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16
Q

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.

A

trial begins……….a waiver

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17
Q

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
A

JUDGMENT………… rights of the parties

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18
Q

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
A

Plaintiff …… plaintiff’s residence……. venue

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19
Q

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

A

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

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20
Q

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

A

court upon motion

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21
Q

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 ________
A

one of the parties ….. plaintiff ……. each such county

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22
Q

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 _____________

A

Appointment…….. his residence

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23
Q

503- Venue Based on Residence

Residence:

Infant appearing by Guardian ad Litem…Residence of __________

A

the infant

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24
Q

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
A

principal office…….. cause of action

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25
Q

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 _________.

A

principal office……… resides.

26
Q

503- Venue Based on Residence

Residence:

Partnership or individually-owned business - __________ or where the partner or individual owner being sued _____________

A

Principal office…….. resides

27
Q

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.

A

original assignor’s

28
Q

503- Venue Based on Residence

Consumer Credit Transaction- The county of residence of the __________ or where _________________ governs

A

Defendant ……… the transaction took place

29
Q

504- Actions against counties, cities, towns, villages, school districts and district corporations.

Venue is as follows:

Against a County - ___________

A

in such County

30
Q

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 ___________

A

County……… county….. county

31
Q

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 ______________

A

County ……… NY County (Manhattan)

32
Q

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

A

principal offices

33
Q

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 _________________

A

County……….. County of NY (Manhattan)

34
Q

506- Where Special Proceedings Are Commenced

Special Proceedings are commenced in ____________________ where the proceeding is triable or in the case of:

  1. 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
A

ANY COUNTY WITHIN THE JUDICIAL DISTRICT ………….. county within the judicial district…….. principal office

35
Q

506- Where Special Proceedings Are Commenced

Special Proceedings are commenced in ____________________ where the proceeding is triable or in the case of:

  1. 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
A

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.

36
Q

506- Where Special Proceedings Are Commenced

Special Proceedings are commenced in ____________________ where the proceeding is triable or in the case of:

  1. Most actions against State departments…ex. Dept of Transportation, Tax commissioner, Regents of SUNY, are held in the_________________
A

ANY COUNTY WITHIN THE JUDICIAL DISTRICT ……. Supreme court of Albany County

37
Q

506- Where Special Proceedings Are Commenced

Special Proceedings are commenced in ____________________ where the proceeding is triable or in the case of:

  1. Commissioner of Education, taxation and finance, etc. - Generally _____________
A

ANY COUNTY WITHIN THE JUDICIAL DISTRICT …..Albany County

38
Q

506- Where Special Proceedings Are Commenced

Special Proceedings are commenced in ____________________ where the proceeding is triable or in the case of:

  1. Proceedings against the Commissioner of Education can be held in the ________________________ This is usually where the kid goes to school
A

ANY COUNTY WITHIN THE JUDICIAL DISTRICT …..Supreme Court in the County of residence of the Petitioner.

39
Q

506- Where Special Proceedings Are Commenced

Special Proceedings are commenced in ____________________ where the proceeding is triable or in the case of:

  1. NYC TAX APPEALS Tribunal - __________________
A

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

40
Q

507 Real Property Actions

The place of the action shall be in the _____________ where the property is located…easy peasy

A

county

41
Q

508 Actions to recover a Chattel (Personal Property)

The place of the action shall be in the__________ where the property is located

A

county

42
Q

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

A

plaintiff

43
Q

510 Grounds for change of place of trial

The Court upon motion may change the place of trial when:

  1. lt is not the ____________ (by written demand with or before the answer)
  2. Reason to believe an _________ trial cannot be had
  3. __________ of witnesses and the ends of justice will be promoted
A

proper County …. impartial ….. Convenience

44
Q

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)

A

WITH OR BEFORE

45
Q

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.
A

FIVE (5) DAYS….. FIFTEEN (15) DAYS

46
Q

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.
A

FIVE (5) DAYS

47
Q

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
A

FORTHWITH

48
Q

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.

A

department

49
Q

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.

A

will NOT

50
Q

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

a reasonable time

51
Q

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

A

any county within the judicial district

52
Q

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:

    1. Proper county
    1. The date of the filing of the summons
    1. The date to answer or file notice of appearance…..remember (MAN)
    1. The address at which the answer or notice is to be filed.
A

SHALL NOT…… TEN(10) DAYS

53
Q

(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

A

(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

54
Q

(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
A

void

55
Q

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
A

Adverse………. as many claims …..DO NOT…. joinder

56
Q

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

A

FIVE (5) CLAIMS

57
Q

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
A

UPON MOTION……. separate identity…….. one caption

58
Q

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
A

Supreme and County ……….. lower…… higher

59
Q

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.
A

supreme court ….. county court

60
Q

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

A

prior

61
Q

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.

A

Supreme Court……… Supreme Court

62
Q

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 ____________
A

the action came from………. County court

CPLR - FUTURE CLERK 2023: THE CLERKENING (58 decks)

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