CPLR ARTS 4, 5, 6, & 9

Question 1

Section 401 – Parties

The parties are referred to as the _________ and ____________ .

Answer 1

PETITIONER and RESPONDENT

Question 2

Section 401 – Parties

There is NO joinder, interpleader, or third party practice after commencement of proceeding, except by _____________ .

Answer 2

LEAVE OF COURT

Question 3

402- Pleadings

These are the only pleadings in special proceedings:

___________________________________________

Answer 3

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

Question 4

402- Pleadings

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

Answer 4

NOTICE OF PETITION……. PETITION

Question 5

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.

Answer 5

supporting affidavits

Question 6

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

Answer 6

8-2-0

12-7-1

Question 7

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

Answer 7

summons

Question 8

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

Answer 8

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

Question 9

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 9

answer……. reply

Question 10

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.

Answer 10

scandalous or prejudicial…….. the responsive pleading

Question 11

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

Answer 11

same time

Question 12

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

Answer 12

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

Question 13

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

Answer 13

REQUIRED…….. notice to admit

Question 14

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

Answer 14

THREE(3)DAYS …….. ONE (1) DAY

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

Question 15

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.

Answer 15

by them.

Question 16

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.

Answer 16

trial begins……….a waiver

Question 17

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

Answer 17

JUDGMENT………… rights of the parties

Question 18

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

Answer 18

Plaintiff …… plaintiff’s residence……. venue

Question 19

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

Answer 19

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

Question 20

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

Answer 20

court upon motion

Question 21

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 ________

Answer 21

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

Question 22

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 _____________

Answer 22

Appointment…….. his residence

Question 23

503- Venue Based on Residence

Residence:

Infant appearing by Guardian ad Litem…Residence of __________

Answer 23

the infant

Question 24

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

Answer 24

principal office…….. cause of action

Question 25

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 _________.

Answer 25

principal office……… resides.

Question 26

503- Venue Based on Residence

Residence:

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

Answer 26

Principal office…….. resides

Question 27

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.

Answer 27

original assignor’s

Question 28

503- Venue Based on Residence

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

Answer 28

Defendant ……… the transaction took place

Question 29

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

Venue is as follows:

Against a County - ___________

Answer 29

in such County

Question 30

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 ___________

Answer 30

County……… county….. county

Question 31

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 ______________

Answer 31

County ……… NY County (Manhattan)

Question 32

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

Answer 32

principal offices

Question 33

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 _________________

Answer 33

County……….. County of NY (Manhattan)

Question 34

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

Answer 34

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

Question 35

506- Where Special Proceedings Are Commenced

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

2. 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

Answer 35

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.

Question 36

506- Where Special Proceedings Are Commenced

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

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

Answer 36

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

Question 37

506- Where Special Proceedings Are Commenced

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

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

Answer 37

ANY COUNTY WITHIN THE JUDICIAL DISTRICT …..Albany County

Question 38

506- Where Special Proceedings Are Commenced

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

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

Answer 38

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

Question 39

506- Where Special Proceedings Are Commenced

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

6. NYC TAX APPEALS Tribunal - __________________

Answer 39

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

Question 40

507 Real Property Actions

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

Answer 40

county

Question 41

508 Actions to recover a Chattel (Personal Property)

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

Answer 41

county

Question 42

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

Answer 42

plaintiff

Question 43

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

Answer 43

proper County …. impartial ….. Convenience

Question 44

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)

Answer 44

WITH OR BEFORE

Question 45

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.

Answer 45

FIVE (5) DAYS….. FIFTEEN (15) DAYS

Question 46

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.

Answer 46

FIVE (5) DAYS

Question 47

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

Answer 47

FORTHWITH

Question 48

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.

Answer 48

department

Question 49

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.

Answer 49

will NOT

Question 50

511- Change of Place of Trial

A motion to change venue on any other ground other than improper county is made within __________ after the commencement of the action

Answer 50

a reasonable time

Question 51

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

Answer 51

any county within the judicial district

Question 52

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
• 2. The date of the filing of the summons
• 3. The date to answer or file notice of appearance…..remember (MAN)
• 4. The address at which the answer or notice is to be filed.

Answer 52

SHALL NOT…… TEN(10) DAYS

Question 53

(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

Answer 53

(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

Question 54

(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

Answer 54

void

Question 55

901. Prerequisites to a Class Action

One or more members may sue or be sued as a representative for the whole class if:

• 1. The class is so numerous that joinder of all members is impracticable
• 2. There are questions of law and fact common to the class more controlling than any individual’s issues
• 3. The claims or defenses of the representatives are typical of those of the class
• 4. The representatives will fairly and adequately protect the interests of the class
• 5. The class action is the best method for the adjudication of the controversy

Answer 55

901. Prerequisites to a Class Action

One or more members may sue or be sued as a representative for the whole class if:

• 1. The class is so numerous that joinder of all members is impracticable
• 2. There are questions of law and fact common to the class more controlling than any individual’s issues
• 3. The claims or defenses of the representatives are typical of those of the class
• 4. The representatives will fairly and adequately protect the interests of the class
• 5. The class action is the best method for the adjudication of the controversy

Question 56

901. Prerequisites to a Class Action

(Bard) A class action cannot be brought to recover a penalty or minimum measure of recovery created or imposed by statute unless the statute specifically authorizes such recovery in a class action.

Answer 56

901. Prerequisites to a Class Action

(Bard) A class action cannot be brought to recover a penalty or minimum measure of recovery created or imposed by statute unless the statute specifically authorizes such recovery in a class action.

Question 57

902. Order Allowing Class Action

Within ___________ after the time for all defendants to serve responsive pleadings has expired, the plaintiff SHALL move for an order allowing the class action to proceed.

Such order can be conditional or amended before a final decision on the merits by the court’s own motion or on motion of the parties.

Answer 57

SIXTY (60) DAYS

Question 58

902. Order Allowing Class Action

Factors for the court to consider in making the decision whether or not to allow a class action suit are as follows:

• 1. The interest in class members in individually being able to control the prosecution
• 2. The impracticability or inefficiency of prosecuting or defending separate actions
• 3. The state of any litigation already begun by or against any members of the class
• 4. The desirability or lack thereof in having the litigation in a particular forum
• 5. The difficulties likely to occur in managing the class action

Answer 58

902. Order Allowing Class Action

Factors for the court to consider in making the decision whether or not to allow a class action suit are as follows:

• 1. The interest in class members in individually being able to control the prosecution
• 2. The impracticability or inefficiency of prosecuting or defending separate actions
• 3. The state of any litigation already begun by or against any members of the class
• 4. The desirability or lack thereof in having the litigation in a particular forum
• 5. The difficulties likely to occur in managing the class action

Question 59

903. Description of Class

• The court’s order permitting the class shall ________ the class.
• The court may limit the class to those members who do not request ___________ within a specified time after notice

Answer 59

Describe…….. exclusion

Question 60

904.- Notice of Class Action

ln class actions for injunctive relief (a court-ordered act or prohibition against an act) or declaratory relief (a judge’s determination), notice (IS/IS NOT) required to be given to the class unless the court finds it’s necessary and the costs of notice will not prevent the action

ln all other cases reasonable notice (MAY/SHALL) be given (Example: For a money judgment)

Answer 60

IS NOT…. SHALL

Question 61

904.- Notice of Class Action

The content of the notice is subject to the court’s approval, and the court shall consider:

• 1. The cost of giving notice
• 2. The resources of the parties
• 3. The stake of each member of the class

Answer 61

904.- Notice of Class Action

The content of the notice is subject to the court’s approval, and the court shall consider:

• 1. The cost of giving notice
• 2. The resources of the parties
• 3. The stake of each member of the class

Question 62

904.- Notice of Class Action

• The court can decide by ___________ as to who should bear the expense of notice although it is usually the _________ who bears the expense
• The Court may decide that each side bears part of it

Answer 62

preliminary hearing……. plaintiff

Question 63

905. Judgment

The Judgment of the court either for or against the class shall include and describe those whom the court considers members of the class

Answer 63

905. Judgment

The Judgment of the court either for or against the class shall include and describe those whom the court considers members of the class

Question 64

906- Actions Conducted Partially as Class Actions

Particular issues can be maintained as a class action, as well as classes can be divided into ____________

Answer 64

subclasses

Question 65

907- Orders ln Conduct of Class Actions

During the course of class actions the court may make certain orders including:

• 1. The course of the proceedings to prevent undue repetition or complication
• 2. Directing certain notice to be given to members of the class for the protection and fair conduct of the action
• 3. imposing conditions on the parties or on intervenors
• 4. Requiring the pleadings to be amended to include proper parties
• 5. Directing a money judgment to be paid in a lump sum or installments
• 6. Any orders dealing with similar procedural actions

Answer 65

907- Orders ln Conduct of Class Actions

During the course of class actions the court may make certain orders including:

• 1. The course of the proceedings to prevent undue repetition or complication
• 2. Directing certain notice to be given to members of the class for the protection and fair conduct of the action
• 3. imposing conditions on the parties or on intervenors
• 4. Requiring the pleadings to be amended to include proper parties
• 5. Directing a money judgment to be paid in a lump sum or installments
• 6. Any orders dealing with similar procedural actions

Question 66

907- Orders ln Conduct of Class Actions

The orders may be altered or amended as may be desirable from time to time.

Answer 66

907- Orders ln Conduct of Class Actions

The orders may be altered or amended as may be desirable from time to time.

Question 67

908- Dismissal, Discontinuance or Compromise

A class action SHALL NOT be dismissed, discontinued or compromised without approval of the court. lf it is to be, then notice must be given to the __________ in such manner as the court directs

Answer 67

members

Question 68

909- Attorneys Fees

After a favorable award the court (MAY/SHALL) award attorney fees (to the representatives) based upon the reasonable value of services rendered, and may allow recovery of such fees from the opponent of the class

Answer 68

MAY

Question 69

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

Answer 69

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

Question 70

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

Answer 70

FIVE (5) CLAIMS

Question 71

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

Answer 71

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

Question 72

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

Answer 72

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

Question 73

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.

Answer 73

supreme court ….. county court

Question 74

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, prior to the trial of the others

Answer 74

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, prior to the trial of the others

Question 75

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.

Answer 75

Supreme Court……… Supreme Court

Question 76

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 ____________

Answer 76

the action came from………. County court