CPLR by the numbers Volume 1 Flashcards
203 Method of Computing Periods of limitation
Action Commenced by Service, complete…:
An order for a provisional remedy is granted provided defendant is served by other methods or first publication made within _________ , or
(Bard) when a defendant dies within thirty days after the order is granted, but before service or publication is completed, service is made on the defendant’s executor or administrator within _______ after letters are issued (for this purpose seizure of a chattel in an action to recover a chattel is a provisional remedy
THIRTY days.. sixty (60) days
203 Method of Computing Periods of limitation
Action Commenced by Service, complete…:
WHEN the summons is delivered to the sheriff of that county outside the city of New York or is filed with the clerk of that county within the city of New York in which the defendant is known or last known to reside, be employed or do business, or if the defendant is a corporation of a county in which it may be served or in which the cause of action arose.
In all cases, the summons must be served upon the defendant or first published and completed, within _________ after the period of limitation would have expired but for this provision or
Served upon the defendant’s executor or administrator within _________ after letters are issued, where the defendant dies within _________ after the period of limitation would have expired but for this provision and before the summons is served upon the defendant or publication is completed.
203 Method of Computing Periods of limitation
Failure to diagnose cancer- SOL starts to run when the person knew or should have known of the doctor’s failure to diagnose or a maximum of _____________ from the alleged misdiagnosis.
seven years
204- Stay of commencement of action; demand for arbitration
When a demand to arbitrate is filed, the time awaiting the determination on such demand is not part of the time with which the action must be commenced.
The time for the action to be commenced shall not be extended beyond ___________ by this provision after such final determination
ONE (1) YEAR
205- Termination of action
When an action is terminated, the plaintiff has a right to file a new action upon the same occurrences within _________ even though the statute of limitations may have expired, unless the action was terminated by:
Voluntary Discontinuance
Failure to obtain personal jurisdiction
Dismissal for failure to prosecute
Final judgment upon the merits
SIX (6) MONTHS
(BRAND NEW SECTION) 205-a. Termination of certain actions related to real property.
If an action upon a bond or note, the payment of which is secured by a mortgage upon real property, or upon a bond or note and mortgage so secured, or upon a mortgage of real property, or any interest therein is timely commenced and is terminated in any manner other than:
a voluntary discontinuance,
a failure to obtain personal jurisdiction over the defendant,
a dismissal of the complaint for any form of neglect, {including, but not limited to failure to strike out pleadings or parts thereof after order, default, Want of prosecution, case abandonment,}
for violation of any court rules or individual part rules,
for failure to comply with any court scheduling orders, or
by default due to nonappearance for conference or at a calendar call,
or by failure to timely submit any order or judgment,
or upon a final judgment upon the merits,
the original plaintiff, or upon death, his or her executor or administrator, may commence a new action upon the same transaction(s) or occurrence(s) within _____________ following the termination, provided that the new action would have been timely commenced within the applicable limitations period prescribed by law at the time of the commencement of the prior action and that service upon the original defendant is completed within such six-month period.
a successor in interest or an assignee of the original plaintiff shall not be permitted to commence the new action, unless pleading and proving that such assignee is acting on behalf of the original plaintiff;
ONE __________ extension may be granted
six months…….six-month period………. six month
207 Defendant Absent From State or Under False Name
The statute is actually tolled (suspended) after a cause of action has accrued, when the defendant leaves the state for a period of ______________ or more or remains in the state under a false name
Exceptions:
The person has an agent for service within the state
A foreign corporation has a person within the state who can be served
Personal jurisdiction can be obtained without personal delivery to the defendant within the state
FOUR(4) MONTHS
214-g. Certain child sexual abuse cases
This section outlines the revival of a period in which people who were the victims of certain sex crimes against children could commence an action which would otherwise be barred because of SOL or they had not filed a notice of claim or notice of intention to file a claim.
The action must be commenced not earlier than ____________ after, and not later than _____________ after the effective date of this section.
A dismissal of a previous action before this section was effective on grounds that it was beyond SOL or for failure to file a notice of claim or intention to file a claim shall not be grounds for dismissal of a revival action pursuant to this section.
six (6) months……… two (2) years and six months
214-h. Certain actions by public water suppliers to recover damages for injury to property
A public water supplier or wholesale water supplier can commence an action against any person for damages to property caused by a contaminant in a source of water supply within _______________ of the latest of the following events: detection of the contaminant, the last wrongful act by any person whose conduct contributed to the presence of the contaminant, or the date the contaminant is last detected.
Any civil claim or cause of action involving an emerging contaminant that was barred as of the effective date of this subdivision because the applicable period of limitation has expired is hereby revived and may be commenced and prosecuted provided such action, civil claim, or cause of action is commenced either before or within _____________ following the effective date of this subdivision.
three (3) years……… one year and six months
On a bond - Action to recover principal and interest upon a written instrument
TWENTY(20) YEARS
On a money judgment - Presumed to be paid and satisfied at the expiration of ____ year(s) from the time the party recovering it was first entitled to enforce it
TWENTY (20) YEARS
By the state or grantee of the state for Real property
TWENTY(20) YEARS
The default in payment pursuant to court order for the payment of Support, Alimony or Maintenance (___ years to enforce from default)
TWENTY(20) YEARS
This is NOT retroactive to before the statute enactment
NEW 213c - A civil claim or cause of action to recover civil damages from a defendant by victim of Rape in the first, second, third degree, Criminal sexual act in the first, second, third degree, incest in the second degree as defined in section 255.26 of the penal law (where the crime committed is rape in the second degree), criminal sexual act in the second degree, Aggravated sexual abuse in the first degree, or Course of sexual conduct against a child in the first degree
A criminal charge or conviction is not required to commence an action under this section
TWENTY (20) YEARS
Possession necessary to recover Real property - RPAPL
10 years
Annulment of Letters patent
10 years
Redeem on a mortgage
10 years
To recover under an affidavit of support of an NONCITIZEN (formerly alien)
10 years
When criminal benefits from crime
10 years
NEW NEW NEW An action by a victim of sex trafficking, compelling prostitution, labor trafficking or aggravated labor trafficking, may be commenced within ____ YEARS after such victimization occurs, but such ___ year period is tolled and won’t begin to run during any period while the victim is still subject to such conduct
15 years
KNOW THIS Any action where a specific time period is not set by law
SIX(6)YEARS
action on a contract
SIX(6)YEARS
Action on a Bond or note secured by Real Property
SIX (6)YEARS
action by state upon the misappropriation of public property
SIX(6)YEARS
Action based on mistake
SIX (6)YEARS
Action by corporation against a director, officer or stockholder
or to procure a judgment on the ground of fraud, or to enforce a liability, penalty or forfeiture, or to recover damages for waste or for an injury to property or for an accounting in conjunction therewith.
SIX (6)YEARS
An action based upon fraud, although it can be the greater of the ___ years from the date of the cause of action or ____ YEARS from the time the plaintiff discovered the fraud or could have discovered the fraud
SIX (6) YEARS… 2 (2) YEARS
overcharge penalties for non-payment of rent
SIX(6)YEARS
An action by the attorney general for Fraudulent Practices In Respect to Stocks, Bonds and Other Securities or Repeated fraudulent or illegal acts in conducting or transacting business
Six years
Here the general rule is an action against a convicted defendant for any loss or injury resulting from any crime they committed must be commenced within ____ YEARS from the date of the crime
SEVEN YEARS
- REMEMBER 7-3-10
- NOTE THAT Action by Victim of Conduct of Certain Sexual Offenses WAS RECENTLY UPDATED TO TWENTY YEARS
Action against a Sheriff or other Officer for the non- payment of money collected upon an execution
THREE(3) YEARS
Action to recover upon a liability, penalty or forfeiture
THREE(3) YEARS
Action to recover a chattel or damages for the taking of detaining of a chattel
THREE(3) YEARS
Action to recover damages to injury to property (not exposure to certain substances)
THREE(3) YEARS
Action to recover damages for personal injury
THREE(3) YEARS
Action to recover damages for Malpractice (Not Medical, Dental, Podiatric)
THREE(3) YEARS
Action to annul a marriage on the ground of fraud
THREE (3) YEARS
Consumer Credit Transactions (214-I)
THREE(3) YEARS
Payments, affirmations, or other activity on the debt after expiration do not revive or extend the SOL
(New) 214-j. Certain sexual offense actions.
Similar to 214-G, this section revives (resets) the SOL which has expired for a claim or action brought against any party alleging intentional or negligent acts or omissions by a person for physical, psychological, or other injury or condition suffered as a result of conduct which would constitute a sexual offense (PL 130) or incest (PL 255.26 or 255.27) committed against such person who was EIGHTEEN YEARS OF AGE OR OLDER
The action thereon may be commenced not earlier than ___________ after, and not later than _____________ after the effective date of this section
A dismissal of a previous action before this section was effective on grounds that it was beyond SOL or for failure to file a notice of claim or intention to file a claim shall not be grounds for dismissal of a revival action pursuant to this section.
six months………. one year and six months
Actions for Medical, Dental or Podiatric Malpractice
To be commenced within TWO(2) YEARS and SIX(6)MONTHS of the act, omission or failure complained of.
There is an exception, if you discover a foreign object in your body, you have ONE(1)YEAR
When an infant plaintiff is injured by malpractice, plaintiff will have the shorter of:
(i) 2 yrs & 6 months from date of 18th birthday, or
(ii) 10 yrs from date cause of action accrued
Recover Damages from Exposure to Certain Herbicides
This is for military people who served between 1962 and 1975 in lndo-China. Such action must commence within TWO(2)YEARS from the date of the discovery of injury or two years from the date the discovery of such injury should have taken place by reasonable diligence, whichever is later
Where the discovery of the cause of the injury is alleged to have occurred less than five years after discovery of the injury or when with reasonable diligence such injury should have been discovered whichever is earlier, an action may be commenced or a claim filed within one year
If an action is commenced after the periods listed above, the plaintiff must allege and prove that SCIENCE HAD NOT YET DISCOVERED a way to identify the alleged injury before the SOL ran out.
Actions against Licensed Engineers and Architects
Any person asserting a claim for personal injury, death or damage against an architect, engineer, land surveyor etc., must give written notice of such claim NINETY(90) DAYS prior to filing the claim if the cause of action occurred more than TEN(10)YEARS prior. The notice of claim shall be filed with the court along with proof of service within THIRTY (30)DAYS of service of the notice of claim
Service of a notice of claim shall toll the SOL for 120 days after service
Action to recover damages for personal injury caused by the infusion of blood resulting in the contraction of HIV and/or AIDS
may be commenced within TWO(2) YEARS of the effective date of this section
214F- NEW EFF. 02/21/2016- Action to Recover Damages for Personal injury Caused by Contact with or Exposure to Any Substance found within an Area Designated as a Superfund site
3 years from discovery, or within three years of such designation of such an area as a superfund site, whichever is latest
Action to recover damages for personal injury caused by contact with or exposure to toxic burn pits
3 years from the date of discovery of the injury
An action against a sheriff, coroner, constable, or officer upon a liability incurred by him while doing an act within his official capacity (except non-pay of money from execution CPLR 214)
ONE (1) YEAR
An action against an officer for the escape of a prisoner
ONE (1) YEAR
An action to recover damages for assault, battery, false imprisonment, malicious prosecution, libel, slander, false words or violation of a right to privacy
ONE (1) YEAR
An action to enforce a penalty or forfeiture by a private person: ____________.
The state has ______ year(s).
ONE (1) YEAR……… three(3)
An action upon an arbitration award
ONE (1) YEAR
An action to recover any overcharge of interest
ONE (1) YEAR
An action by a tenant to recover damages from the landlord
ONE (1) YEAR
An action against a defendant based upon the same occurrence from which a criminal action arises, the plaintiff has ___ year(s) from the termination from the criminal action, exception is ___ year(s) if criminal action is for certain sexual offenses
ONE (1) YEAR…. FIVE (5) YEARS
(NEW) An action to recover damages resulting from domestic violence shall be commenced within ________
TWO (2) YEARS
lf a claimant is given notice that another person is seeking recovery of money in excess of FIFTY(5O)DOLLARS for the same claim, such claimant has ____ YEAR(S) to commence the action
Abbreviation of Period to One Year After Notice
Proceedings against a Body or Officer (Article 78 proceeding)
Unless a shorter period is provided in the law, such proceeding must be commenced within FOUR(4) MONTHS after the determination to be reviewed becomes final or the respondent’s refusal to perform its duty occurs
Disability due to infancy or insanity extends the SOL to two years after such time
Every action for damages or injury to real or personal property or wrongful death against any political subdivision of the state, public authority or other similar entity shall not be commenced unless a “notice of claim” has been served within the required time limit by the general municipal law (generally ____ days).
Except in an action for wrongful death, damages, injury, etc. upon such entity, shall not be commenced more than ______ after the cause of action has accrued or within the time period otherwise prescribed by any provision of law, whichever is longer.
90 DAYS…. one year and ninety days
Section 208- Infancy/Insanity
-lf a person is unable to commence an action due to infancy or insanity the statute is tolled as follows:
-lf the normal time to commence the action is three years or more, then the time to bring an action is extended to three years after the “disability’ ends
+ 3 years from the end of the disability (Insanity or turning 18)
-lf the normal time to commence the action is less than three years, then it is extended:
until the disability ceases (person turns 18)
The time with which an action must be commenced shall not be extended beyond TEN(10)YEARS with the exception of Medical, Dental or Podiatric malpractice*
This section shall not apply to an action to recover a penalty or forfeiture, or against a sheriff or other officer for an escape.
Defendant Absent From State or Under False Name
When a defendant leaves the state, the time within which the action must be commenced shall be computed from the time he enters or returns to the state
The statute is actually tolled (suspended) after a cause of action has accrued, when the defendant leaves the state for a period of FOUR(4) MONTHS or more or remains in the state under a false name
NEW Section 208(b)- Victims of sex crimes committed when victim was under 18
- Grants long extension for victims of sexual crimes that were committed prior to the victim’s 18th birthday
- Extends the time to file until the victim’s 55th Birthday.
- Also revived claims that expired under old SL law. Claim can be filed 6 months after law went into effect, but not more than 2 & 1/2 years after law effective (214-g).
Section 210- Death of Claimant or Person Liable
- Upon the death of a claimant before the time has expired with which an action may have been taken, an action may be commenced by his representative within ONE(1) YEAR after his death
- lf the death is upon a person against whom a cause of action exists, the period of EIGHTEEN (18) MONTHS after the death, is not part of the time which an action may be commenced against his executor or administrator
Section 210- Death of Claimant or Person Liable
The time within which an executor or administrator can commence an action to recover personal property wrongfully taken after the death of the decedent but before letters are issued is computed from the time the letters are issued or from ___________ after the death, whichever event first occurs.
three years
214C - Personal injury caused by exposure to certain substance
3 years from date of discovery
Where the discovery of the cause of the injury is alleged to have occurred less than five years after discovery of the injury or when with reasonable diligence such injury should have been discovered whichever is earlier, an action may be commenced or a claim filed within one year
SOL
Actions in tort against municipalities
- 1 year, 90 days
- Notice of claim must be filed w municipality w/in 90 days of accrual
- Action cannot be brought until at least 30 days after filing notice of claim w/out payment
- Villages must be given written notice of dangerous/defective conditions of public ways, and given a reasonable time to correct condition
SOL: Medical Debt
3 years: An action on a medical debt by a hospital or a health care professional shall be commenced within three years of treatment. CPLR SECTION 213-D
Failure to diagnose cancer SOL
SOL starts to run when the person knew or should have known of the doctor’s failure to diagnose or maximum of seven years from the alleged missing diagnosis.
214-h. Certain actions by public water suppliers to recover damages for injury to property
A public water supplier or wholesale water supplier can commence an action against any person for damages to property caused by a contaminant in a source of water supply within ____________ of the latest of the following events: detection of the contaminant, the last wrongful act by any person whose conduct contributed to the presence of the contaminant, or the date the contaminant is last detected.
Any civil claim or cause of action involving an emerging contaminant that was barred as of the effective date of this subdivision because the applicable period of limitation has expired is hereby revived and may be commenced and prosecuted provided such action, civil claim, or cause of action is commenced either before or within one year and _______ following the effective date of this subdivision.
Three (3) years……. six months
304 Method of Commencing Action or Special Proceeding
Where a court finds circumstances prevent the immediate filing, the SIGNING of an Order requiring subsequent filing in not less than ___________ will begin the action
FIVE(5)DAYS
305a- Index number in an action or proceeding commenced in supreme or county court
Now this is odd: lf a person other than the plaintiff serves the Summons, obtained the index number and paid the fee, the clerk shall issue an order directing the plaintiff to pay such person within ______________ for the fee or the case may be dismissed without prejudice, upon application
THIRTY(3O) DAYS
306-b. Service of the summons and complaint, summons with notice, third-party summons and complaint, or petition with a notice of petition or order to show cause.
Service of the summons and complaint, summons with notice, 3rd party summons with complaint or petition with notice of petition or order to show cause SHALL be made within ______________ after the commencement of the action or proceeding.
120 days
306-b. Service of the summons and complaint, summons with notice, third-party summons and complaint, or petition with a notice of petition or order to show cause.
lf statute of limitations in a particular proceeding is 4 months or less then service must be complete within ________________ of the expiration of the statute. (Art.78 proceeding, election law, etc.)
FIFTEEN (15) DAYS
306c- Notice of Commencement of an Action for Personal lnjuries
lf an individual has suffered personal injuries and is receiving medical assistance as provided for in the Social Services Law and is involved in litigation for these injuries, then within ____________ of service being complete, notice of the commencement of the action must be sent to the Social Services District or Department of Health within that County by certified mail, return receipt requested, or electronically
Proof of sending such notice shall be filed with the court in accordance with CPLR 306
Sending such notice shall not be a jurisdictional requirement to commence an action.
SIXTY(60) DAYS
306-d Consumer credit transaction Notice
No default judgment based on the defendant’s failure to answer shall be entered unless there has been compliance with this section, and at least _____________ have elapsed from the date of mailing by the clerk; or if the additional notice is returned to the court as undeliverable.
twenty days
307- Personal Service Upon the State
The chief executive officer of every such agency shall designate at least ________, in addition to himself or herself, to accept personal service on behalf of the agency.
one person
308 Personal service Upon Natural Person- (YOU MUST KNOW THIS SECTION)
Suitable Age and Discretion-
By delivering to someone of suitable age at the person’s last known residence or actual place of business, dwelling or abode AND mailing the summons by ____________ to their last known residence or place of business bearing the legend “Personal and Confidential”. Delivery and mailing must be made within _____________ of each other. Proof of service MUST be filed with the court (clerk) within _______________ of the latter of the delivery or mailing. Service is then complete ___________ after filing proof of Service
first class mail ……. TWENTY(20) DAYS…….. TWENTY(20) DAYS…… TEN (10) DAYS
308 Personal service Upon Natural Person- (YOU MUST KNOW THIS SECTION)
Substituted service- (Nail and Mail)
This can be done when service cannot be made with due diligence by methods of Personal Delivery or SAD service. lt involves affixing the summons to the actual place of business or usual abode and by mailing the summons to the last known residence or the actual place of business bearing the legend “Personal and confidential”.
Such affixing and mailing to be effected within _______________ of each other. Proof of service to be filed within ________________ of the latter. Service is complete _____________ thereafter
Except: Nail and Mail service in a _________ Action requires court order
TWENTY(20)DAYS……… TWENTY(20)DAYS…….. TEN(10)DAYS……….
Matrimonial
308 Personal service Upon Natural Person- (YOU MUST KNOW THIS SECTION)
Designation of agent for service-(as per CPLR 318)
- A person may be designated by a natural person, corporation or partnership as agent for service.
- The designation SHALL be in writing and executed in the same manner as a _______ with the consent of the agent.
- The writing is to be filed in the office of the county clerk in which the __________resides or has his office.
- The designation will remain in effect for ____________ , unless revoked by filing a revocation, death etc.
- This type of service requires court order for ___________ action
deed….principal …..THREE(3)YEARS……Matrimonial
309 Personal Service Upon an infant, lncompetent or Conservatee
lf the infant is of the age of ______________ or over, then service must be made upon the infant as well, within the state.
FOURTEEN(I4)
Partnership (Sec. 310)- (similar to service on an individual)
Is made by serving any one of _________
Personal service within the state may also be made by serving the managing or general __________or person in charge of ____________ AND by mailing the summons to the partner to be served by _____________ to his or her last known residence or the place of business of the partnership.
Proof of service must be filed within ___________ and service is complete ____________ thereafter.
the partners…. agent ….the office….First class mail…. TWENTY(20)DAYS ……. TEN (10) DAYS
312-a. Personal service by mail.
- No other method need be attempted before using service by mail.
- No process server is needed.
- What is mailed to the defendant is the pleadings along with ___________ copies of the “___________ “ and “___________ “, along with a return envelope with postage prepaid.
- If another method of service is attempted, the plaintiff must indicate in a notice to the defendant if service was previously attempted by _________
- lf the defendant is willing to accept such service he/she completes the acknowledgment and mails it back acknowledging service within __________ of receipt
- Service is complete on the date the ______________________ is mailed or delivered to sender.
- The ____________________________ is proof of service
TWO (2)…… Statement of service by mail………. Acknowledgment of receipt….. mail….. THIRTY (30) DAYS…signed acknowledgment of receipt……. signed acknowledgment of receipt
312-a. Personal service by mail.
The defendant must ANSWER the summons within _____________ after the date the signed acknowledgment of receipt is mailed or delivered to the sender
The acknowledgment of receipt of service shall be subscribed and affirmed as true under penalties of perjury and shall have the same force and effect as an ____________
TWENTY(20) DAYS ………..affidavit.
312-a. Personal service by mail.
Where the signed acknowledgment of receipt is not returned within ______________ after receipt of the documents mailed, the costs of the alternative method of service can be entered as a judgment against the defendant
thirty (30) days
- Service by publication.
The order of service by publication shall direct:
- First publication shall be made within _____________ of the order being granted
- The _________ to be published together with notice to the defendant
- A brief statement to the nature of the action
- The relief and sum of money sought (EXCEPT for _____________
- lf the action is to recover a judgment affecting title to real property, description of property
- ***Publish in __________ newspapers, _________ of which in English, ____________ a week for __________ consecutive weeks.
- *Service is complete on the __________ day after the day of first publication
THIRTY (30 )DAY…….. summons…….. Medical Malpractice cases)…. TWO(2) …… one ……… Once (1) ………. Four (4)……. 28th
2-1-4
- Service by publication.
***For Matrimonials:
- __________ English newspaper, __________ per week for ____________ consecutive weeks
Special rule for Matrimonials:
- The summons, complaint, or summons and notice in an action for divorce or separation, order and papers on which the order was based shall be filed on or before the _______ day of publication.
- A copy of the summons and notice of publication must be mailed to the person to be served on or before the _________ day of publication unless the court dispenses with mailing.
- *Service is complete on the ________ after the day of first publication for Matrimonials
One (1)…….. Once (1) ……. THREE{3)
first ….. first….. 21st day
or 1-1-3
317 - Defense by person to whom summons not personally delivered
A person who was NOT served by personal delivery, whom a default judgment was entered against, may move to vacate the default within ________ after obtaining knowledge of the default, but in no event more than __________ after the entry of Judgment upon a finding of the court that he did not personally receive notice of the summons in time to defend and has a meritorious defense.
This section does not apply to ____________ actions
ONE(1)YEAR ……… FIVE (5) YEARS……….. Matrimonial
318 - Designation of an Agent for Service
is made in writing and is executed and acknowledged in the same manner as a ________ , with the consent of the agent endorsed thereon. lt is filed in the office of the clerk of the county where the _____________ to be served resides or has their office.
The designation shall remain in effect for _________ from such filing unless it has been revoked by the filing of a revocation, or by the death, judicial declaration of incompetency or legal termination of the agent or principal.
Deed….principal.. three years
320 - DEFENDANT’S APPEARANCE)+
Time for Appearance
The time for appearance differs depending on how the defendant was served.
Personal Delivery- If the papers were served by handing them directly to the defendant, the defendant has ____________ after service of the summons to appear.
The time to appear is extended to __________ after service is complete when:
- (1) Person being sued is an official of the state
- (2) Suing a natural person and service was accomplished by all methods of service except personal delivery.
- (3) Service by publication or through a designated agent
- (4) Person was served outside of NYS
Basically, all other forms of service besides personal delivery on a natural person within New York State
twenty (20) DAYS…… thirty (30) days
- Attorneys.
- **lf because of death or other incapacity, a party’s attorney becomes disabled or unable to act before judgment, leave of the court is required before any other step may be taken against that party unless he is given _______________ notice to appoint an attorney* *
- Compare to CPLR 5574 Appeals (_________ extension)
THIRTY(30)DAYS…. Sixty (60) days
HINT: THIRTY FOR NEW ATTORNEY … HEY THAT RHYMES
322- Authority for Attorney Appearance in Real Property Actions
Authority of non-resident defendant’s attorney.
- The attorney for a non-resident defendant in an action affecting real property shall file with the clerk written authority for his appearance, executed and acknowledged in the form required to entitle a deed to be recorded, and shall serve either a copy of such authority or notice of such filing on the plaintiff’s attorney within __________ after appearing or making a motion.
- This rule does not apply to an attorney representing an official, agency or instrumentality of, or corporation wholly owned by, the United States
twenty (20) days
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
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
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
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
- 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.
SIXTY (60) DAYS
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
1003- Nonjoinder and misjoinder of parties.
A motion to add or drop parties may be made at any stage of the action, sua sponte (on the court’s own motion) or by stipulation of the parties
Parties may be added _________ without leave (permission) of the court within:
- ___________ from the service of the original summons or before time to answer has expired or __________ from the time a responsive pleading is served
ONCE…… Twenty (20) DAYS…… Twenty (20) DAYS
1007-IMPLEADER/THIRD-PARTY PRACTICE (Third Party Plaintiff)
- Service of a Third party complaint, summons, and all prior pleadings must be done in ___________ from filing.
- The original plaintiff must also be served to keep them in the loop.
- The third party defendant must then answer
120 days
1009- Claim by Plaintiff against Third Party Defendant
The original plaintiff has ___________ from the service of the answer by the third party defendant, to amend his complaint without leave of the court to now sue the third party defendant directly
TWENTY(20) DAYS
1021- 1021. Substitution procedure; dismissal for failure to substitute; presentation of appeal.
- lf a party needs to be substituted a motion may be filed within _______________ , however if this action is POST JUDGMENT (Appeal) the motion may be made within ___________ from the event requiring substitution.
- lf a person who should be substituted does not appear voluntarily, he may be made a ______________
a reasonable time ……..FOUR(4) MONTHS………… party defendant
1022- Substitution Extension of Time +
Extension of time for the requirement to take any procedural steps in the action is extended ___________ after the substitution of a party is made*
FIFTEEN (15)DAYS
Hint: (Extension of time) is 15 letters for 15 Days
Compare this to 30 days for substitution of counsel, “30 for new attorney”
1101- Motion for Permission to Proceed as Poor Person
A plaintiff may seek to commence his or her action without the payment of fees by filing a form affidavit indicating they cannot pay the costs of the action.
- If the court approves the application they will send an order to the applicant that all fees are waived
- If the court denies the application, it will send out an order that the case will be dismissed if the appropriate fees are not paid within ___________________ of the date of the order
ONE HUNDRED AND TWENTY (120) DAYS
1101- Motion for Permission to Proceed as Poor Person
**Fees for INCARCERATED INDIVIDUALS (Formerly inmates): know this!
The court must obtain from the facility where the incarcerated individual is housed or from the central office of the department of corrections, the incarcerated individual’s Trust Fund Account Statement for the last ___________.
{For incarcerated individuals who have been confined for less than 6 months, the court will obtain a trust fund account statement from the central office of the department of corrections and community supervision in Albany if transferred from out of state or the prior or current facility if transferred from a federal or local facility.
The court may also seek further information from the prior or current facility, if they deem it necessary.}
SIX (6) MONTHS.
1101- Motion for Permission to Proceed as Poor Person
**Fees for INCARCERATED INDIVIDUALS (Formerly inmates): know this!
- If the court finds the incarcerated individual does not have the necessary funds to proceed then they will approve the request.
- They may pay a minimum of ______________ but not more than ______________ in filing fees to the court.
- This rule holds true EXCEPT for ARTICLE 78 proceedings by inmates alleging failure to correctly award or certify _____________
FIFTEEN (15)………. FIFTY (50) DOLLARS……. jail time credit
1102- Privileges for poor persons:
Stenographic Transcript:
- The court clerk must notify the stenographer when a person is appearing as a poor person within ___________ of receiving the order.
- The stenographer must within _____________ make and certify _____________ transcripts of the stenographic minutes. One for the poor person or his attorney and one for the clerk together with an __________ stating the fact and date of such delivery and filing.
- The expense of such transcripts shall be _________ charge or, in the counties within the city of New York, ________ charge
TWO(2)DAYS…….. TWENTY(20)DAYS ………. TWO(2) typewritten….affidavit….. a county………. a city
1102- Privileges for poor persons:
Poor persons may submit typewritten briefs for their appeal furnishing _____________ legible copy to each of the appellate judges
one (1)
ARTICLE 12 INFANTS, INCOMPETENTS, AND CONSERVATEES:
General info: An infant is someone who has not attained the age of ___________
EIGHTEEN (18) YEARS
1202- **Appointment of Guardian Ad litem*
This is done by the court on its own motion at any stage of an action which is triable, or upon the motion of:
- An infant party himself if over the age of __________
- A __________, _________ or a guardian, committee of the property or conservator
- Any other party to the action if a motion has not been made by 1 or 2 above within ________ of completion of service
relative….. Friend….Fourteen (14)…… TEN (10 )DAYS
1202- **Appointment of Guardian Ad litem*
Notice of motion of the appointment of the guardian ad litem shall be served on the guardian of his property, committee, or conservator or upon whom they reside if no such representative exists.
Also served on the infant themselves if they are over the age of ___________ and have not been declared to be incompetent
FOURTEEN (14)
1203- Default Judgment
No default judgment can be entered against infant or incompetent until his representative has appeared in the action or at least ____________ have passed since the appointment of Guardian Ad litem
TWENTY(20)DAYS
1203- Default Judgment
No default judgment may be entered against an adult incapable of inadequately protecting his rights for whom a guardian ad litem has been appointed unless __________ have expired since the appointment.
TWENTY (20) DAYS
1206- Disposition of Proceeds
Any property the infant, incompetent or conservatees may be entitled to after costs and disbursements must be paid to the GUARDIAN of his property, committee, or conservator to be held for the use of the infant, incompetent, or conservatee
EXCEPT:
- 1. ln the case of an infant who is married and resides with an ____________ - the money is held by such spouse
- 2. If the value of the property does not exceed ___________ the court may order it distributed to a person who resides with or has an interest in the welfare of the infant, incompetent, or conservatee and held for their use and benefit.
adult spouse………… $10,000,
1206- Disposition of Proceeds
No money shall be held from an infant who has obtained the age of _________ unless a court order specifically states to withhold it.
Any order made prior to September 1, 1974 directing payment to be made to infant without further court order upon reaching the age of 21 shall be deemed to designate the age of 18 years
18
1210- Guardian of infants
Petition for appointment of a Guardian may be made by:
- The infant, if they are the age of __________ or more
- _________ or _________ of the infant
FOURTEEN (14)……. Relative or Friend
1210- Guardian of infants
- lf the infant is over the age of ____________ the court SHALL examine him for his voluntary nomination or for preference for suitable Guardian.
- lf the infant is under FOURTEEN (14) _________ must appoint suitable Guardian
FOURTEEN (14) ….. the court
1211- Allowance of infants Support
Such notice of this request for the allowance of an infant’s support, maintenance or education SHALL be given to:
- The ____________ of the property if they are not the petitioner making the request
- (NEW) all ___________ and guardians of the infant;
- The infant if over ________________
Guardian ………… parents……….. FOURTEEN (14) YEARS
2003- irregularity in Judicial Sale
lf a substantial right of a party was prejudiced due to improper notice, time or manner regarding a court ordered sale, then the court may set aside the sale within ___________ after the sale was made
ONE (1) YEAR
2101- Forms of Papers
- Writing shall be legible with _________ ink on ________ paper
- Beneath each signature shall be __________ the name signed
- Each paper except an exhibit, shall be in black ink and in __________ size or _______ for Summons
- Each paper shall be in the English language unless an __________ is attached with translation etc.
Black ……… white ……. printed ……. 10 point …. 12 point… affidavit of translator
2101- Forms of Papers
- **A defect in the form of a paper shall be ___________ by the court as long as a substantial right of a party is not prejudiced.
- Leave to correct the defect shall be freely given and the party who was served with the defective papers has __________ to return the papers with a statement of objections or the defect will be waived
Disregarded……. FIFTEEN (15) DAYS
This is a good one to know people, it just screams test question, can you hear it?
REJECT THE PAPERS = 15 LETTERS = 15 DAYS
2103- Service of Papers
Papers may be served by any person the age of __________ or over and not a party to the action
EIGHTEEN (18)
2103- Service of Papers
lf a party appears by Attorney, papers shall be served upon Attorney by one of the following ways:
- Mailing to the address designated by attorney or last known address;
- ___________ are added to the time prescribed for service when served by mail within the state, and
- __________ are added to the time prescribed for service when served by mail from outside the state but WITHIN the United States
FIVE(5)DAYS …. SIX(6)DAYS
2103- Service of Papers
lf a party appears by Attorney, papers shall be served upon Attorney by one of the following ways:
- Mailing by Overnight delivery
_____________ is added for this service
One (1) business day
2103- Service of Papers
- Papers served on one party shall be served on _______ in the action
- Upon demand by a party, the plaintiff shall supply that party with a list of those who __________ and the names and addresses of their attorneys.
- Where the same attorney appears for two or more parties, _________ copy need be served
all parties…… have appeared………. only one
2214- Motion Papers; Service;Time
A notice of motion and supporting affidavits shall be served at least _________ before the time at which the motion is to be heard. Answering affidavits shall be served at least _________ before such time and Reply will be on the day it is noticed to be heard. If notice of motion is served at least _________ before the time it is to be heard then the answer shall be served at least __________ before and the reply _________ before.
Don’t forget Mail ADD _______ days
EIGHT(8)DAYS……. TWO(2)DAYS ……… SIXTEEN (16) DAYS……….. SEVEN (7) DAYS……… ONE (1) DAY…. FIVE (5)
2215- Relief Demanded by Other than Moving Party+
At least _________ or in certain instances under CPLR 2214 (b) up to _________ days before the time at which a motion is noticed to be heard, a party may serve a CROSS MOTION for relief or relief in the alternative
Remember….CROSS MOTION - Served a minimum of _________ prior to motion being heard.
THREE(3) DAYS …… SEVEN…… THREE(3) DAYS
Look at the three OOO’s and think of THREE(3) DAYS
2215- Relief Demanded by Other than Moving Party+
If a cross motion is served by mail it must be served ___________ earlier than prescribed in this rule, if served by overnight delivery then _________ earlier. Obviously the standard rule of adding five days for mailing does not apply here
THREE(3) DAYS…. ONE (1) DAY
2219- Time and Form of Order
Time for the court to decide upon a motion once submitted for decision:
- *For a PROVISIONAL REMEDY it is ___________
- *For ANY OTHER MOTION it is ___________
TWENTY (20) DAYS….SIXTY (60) DAYS
FutureClerk 2023: The Clerkening hint: Pro Vision is 20/20, perhaps that will help you remember 20 days
2221- Motion Affecting Prior Order
Motion for leave to Reargue:
- Shall be identified as such
- Shall be based upon matters of fact or law overlooked or misapprehended by the judge who determined the prior motion, (no new facts allowed).
- Shall be made within ___________ after service of the copy of the prior order and written notice of its entry. This rule shall not apply to motions to reargue a decision made by the appellate division or the court of appeals.
THIRTY (30) DAYS
2302- Authority to Issue Subpoena
When you need a COURT ORDER:
- Compel attendance of an incarcerated witness - A motion for such subpoena shall be on ___________ notice to the person in charge of the penitentiary.
- To compel the production of an original record or document where a certified copy or transcript is admissible as evidence - A motion for such subpoena shall also be made on __________ notice to the custodian of such records
ONE (1) DAYS……….. ONE (1) DAYS
2303- Service of Subpoena
- Any person subpoenaed shall be paid or tendered in advance authorized traveling expenses and ____________ witness fee
- Article 8001 “Fees” indicates: A person for whom their attendance is compelled shall receive ___________ dollars for each day’s attendance plus __________ as travel expenses for each mile traveled. EXCEPT: Travel wholly within a city, like on a subway ride
ONE (1) DAYS……… FIFTEEN (15.00) …….. .23 cents
2306- Hospital Records, Medical Records
Subpoena for Hospital or Medical Records shall be served at least _________ before the time for the production of the records
(Copies certified as correct by the superintendent or head of the hospital, department or bureau or his assistant, or the officer, may be produced unless otherwise ordered by a court)
THREE(3)DAYS
2307- Books Papers and Other Things
- A subpoena for books, papers and other things on a library, department or bureau of the state SHALL be issued by a justice of the _____________ Court where such record is located or by a judge in the court where the action is triable.
- A motion for the subpoena will be on _________ notice to the custodian of the book or item and the Subpoena itself must be served at least __________ in advance of the required production
Supreme……. ONE (1)DAYS…….. TWENTY-FOUR (24) HOURS
2308- Disobedience of a Subpoena
Judicial:
The person not complying with the subpoena could be liable to the person who requested the Judicial subpoena for a penalty of ____________ plus damages sustained by reason of failure to comply. These are new amounts…Know This!
ONE HUNDRED AND FIFTY (150) DOLLARS
2308- Disobedience of a Subpoena
Non-Judicial:
- Failure to comply with a subpoena not issued by the court, (ex. Administrative hearing or Arbitration hearing) requires the person issuing the Subpoena to move in Court for compliance.
- If the court finds it to be an authorized Subpoena, it may impose costs not exceeding __________ and another ____________ payable to the person on whose behalf the subpoena was issued, plus damages
FIFTY(50) Dollars……… FIFTY(50) Dollars
2308- Disobedience of a Subpoena
Non-Judicial:
- The court may issue a warrant to have the sheriff bring the subpoenaed person to the location that they were subpoenaed to attend.
- If upon their arrival they refuse to comply with the subpoena, then they can be incarcerated indefinitely until they comply, just like for failure to comply with a subpoena issued by a court above
- If a person insists on refusing to comply with the subpoena, the court can direct him to be held in custody until he submits to do the act which he is being required to do. He shall be brought out for review at intervals of no more than every_________ to see if he has a change of heart
NINETY(90) DAYS
2308- Disobedience of a Subpoena
Non-Judicial:
Failure to comply with Social service subpoena or from another state’s child support act, a penalty may be imposed not to exceed __________ , which would not need to be paid if there is immediate compliance
FIFTY (50.00) DOLLARS
2402- Computation of Time for Publication of Notice
The period of publication of a legal notice shall be computed by excluding the _______ day of publication and including the day which completes the full period of publication or the day which the act or event of which notice is given is to take place
first
3012- Service of Pleadings and Demand for Complaint
- Generally the time to respond by filing an answer is within __________ of the service of the Summons.
- Likewise service of a reply shall be made within ____________ after service of the pleading to which it responds.
TWENTY(20) DAYS ………. TWENTY(20) DAYS
3012- Service of Pleadings and Demand for Complaint
- If a Summons is served without a complaint then the defendant has __________ to serve a written demand for the complaint.
- Service of the complaint shall be made within __________ after service of the demand.
- After the receipt of the complaint, the __________ to answer begins to run.
- The complaint shall be served within __________ of the notice of appearance, when there is no demand
- The court upon motion may dismiss the action if ___________ of the complaint is not made,
- a demand for complaint or motion to dismiss (DOES/DOES NOT) constitute an appearance in the action
TWENTY(20) DAYS……. TWENTY(20) DAYS……. TWENTY(20) DAYS………. TWENTY(20) DAYS….. service… DOES NOT
3012- Service of Pleadings and Demand for Complaint
If however service is not made by personally delivering the Summons to the person to be served and is made by the other methods in Section 308, or if service is made on the defendant by delivering the summons and complaint to an official of the state authorized to receive service in his behalf, then service of the answer shall be made within _______________ after service is complete
THIRTY (30) DAYS
3012a- CERTIFICATE OF MERIT: For Medical, Dental or Podiatric Malpractice +
The Complaint shall be accompanied by a certificate executed by the plaintiff’s attorney Stating:
-The attorney has reviewed the case and consulted with at least __________ doctor, dentist or podiatrist depending on the type of alleged malpractice and there is reason to believe there is a basis for the action
ONE (1)
3012a- CERTIFICATE OF MERIT: For Medical, Dental or Podiatric Malpractice +
If the consultation with a doctor could not be obtained before the statute of limitations runs out, then the attorney has _________ to file the certificate from service of the complaint
NINETY (90) DAYS
3012a- CERTIFICATE OF MERIT: For Medical, Dental or Podiatric Malpractice +
The certificate filed could also state that the attorney was unable to obtain the consultation despite making _______ good faith attempts with ________ separate physicians and none would agree to such a consultation. (The white coat wall of silence…lol)
THREE…… THREE
3012a- CERTIFICATE OF MERIT: For Medical, Dental or Podiatric Malpractice +
Only ________ certificate per action is required, no matter how many defendants there are
ONE (1)
3012a- CERTIFICATE OF MERIT: For Medical, Dental or Podiatric Malpractice +
If a plaintiff requests the medical or dental records of their treatment and the defendant does not provide them, then no certificate will be required by counsel for the plaintiff until _________ after the records are produced
NINETY(90)DAYS
3012a- CERTIFICATE OF MERIT: For Medical, Dental or Podiatric Malpractice +
- An attorney submitting a certificate does not need to divulge the identity of the practitioner or the contents of the consultation if they are ___________ in getting a consultation or don’t have time to get one due to ______ .
- If they are unsuccessful after the _______ attempts, the court may require the attorney to divulge the identities.
Successful ……SOL………..three
3012b Certificate of Merit in Certain Residential Foreclosure Actions
_________ certificate(s) is required per action
ONE (1)
- Particularity in specific actions
In actions arising out of personal injuries incurred due to negligence in operating a motor vehicle, the complaint shall state that the plaintiff’s sustained serious injury or economic loss greater than the ___________ of_______________ per person of various expenses following the injury, e.g. medical costs, loss of earnings, etc.
basic economic loss…………. $50,000
3024- Motions to Correct Pleadings
- A party may move to strike any scandalous or prejudicial matter unnecessarily inserted in a pleading
- Such motions to correct must be served within ____________ after being served with the pleading.
- If the Judge grants the motion to correct the pleading, then the amended pleading must be served within ____________ of service of the notice of entry of the order on motion.
- If it is denied, then the defendant’s responsive pleading must be served within the same ______________ period
TWENTY (20) DAYS ……… TEN (10) DAYS ……….. TEN (10) DAY
3025- Amended and Supplemental Pleadings
A party may amend his pleading ___________ without leave (permission) of the court within:
- ____________ of service of the original pleading (Same as Supplemental Summons See CPLR 305 and 1003)
- Before the time to answer the original pleading ___________
- Within ____________ of service of the responsive pleading to the original pleading
ONCE ………. TWENTY (20) DAYS…..expires…. TWENTY (20) DAYS……….
3025- Amended and Supplemental Pleadings
The answer made to an amended or supplemental pleading shall be made within _________ of its service
TWENTY (20) DAYS
3033 through 3036- The New York Simplified Procedure for Court Determination of Disputes”
In the simplified procedure:
- If a party to a contract to submit a dispute to the court believes that the other party has not fulfilled their obligations under the contract, they can file a motion on __________ ‘s notice with the court to have the terms of the statement settled and the dispute resolved through the New York Simplified Procedure for Court Determination of Disputes.
- The court will then consider whether there is a substantial question of fact as to whether the contract exists or was breached. If there is a substantial question of fact, the court will proceed with a trial without a jury unless a party requests a jury.
eight (8) day
3042- Procedure for Bill of Particulars
- A party may make a demand for the Bill of Particulars.
- Within _________ of the service of the demand, the party must comply and serve the Bill of Particulars unless they object, although they must still respond on items they ________________
THIRTY (30)DAYS…… don’t object to
3043- Bill of Particulars in Personal Injury Actions
- Supplemental Bill of Particulars in Personal Injury Actions - Can be done anytime even AFTER filing of __________ as long as it’s at least __________ before trial.
- The other party can newly exercise any and all rights to discovery within __________ upon receiving the supplemental bill but only with respect to such continuing special damages and disabilities.
THIRTY(30)DAYS …… SEVEN(7)DAYS
3045* Arbitration of Damages for Medical,Dental or Podiatric malpractice
- Any time after filing the ____________ but no later than __________ after filing the special notice required for medical, dental or podiatric malpractice, the defendant can demand that the plaintiff elect to consent to the arbitration of damages upon concession of liability
- Within __________ of the demand, the plaintiff must elect to proceed to such Arbitration or not
- If within ___________ of the plaintiff agreeing to proceed to this arbitration, the defendant serves a “___________ “ the issue of damages, including the proximate cause, will be subject to Arbitration.
- A “________________” will not be binding upon the defendant for any other purpose
Bill of Particulars…… SIXTY (60) DAYS……… TWENTY(20) DAYS………. TWENTY (20)DAYS …… concession of liability……… concession of liability
- Confession of judgment before default on certain installment contracts invalid.
- No judgment by confession shall be entered upon an affidavit that was executed prior to the time a default in a payment of an installment occurs for a purchase of __________ or less in commodities other than for commercial or business use
- A judgment entered in violation to this provision is ________ and unenforceable
$1,500.00…….. two ….. void
- Motion to dismiss.+
A motion to dismiss should be brought at any time before service of the __________ is required on one of the grounds mentioned above. Only _________ such motion shall be permitted
responsive pleading ………. ONE (1)
- Motion to dismiss.+
- An objection to the summons and pleadings not being properly served is waived unless within ________ of raising the objection in a responsive pleading,the objecting party moves for judgment on that ground
- This does not apply to a proceeding to collect debt from:
- ____________ transaction; or
- proceedings for ___________ that default on rent or failure to vacate premises after expiration of their lease
SIXTY (60) DAYS……… a consumer credit …….. tenants
- Motion to dismiss.+
Service of a notice of motion to dismiss prior to the service of the pleading responding to the cause of action extends the time to serve the pleading until ________ after service of notice of entry of the order
TEN (10) DAYS
3212- Motion for Summary Judgment (Know this section)+
Any party may move for summary judgment in any action after the issue has ________ . There are time frames for this that should be memorized:
- The court can set a date for when no motions for summary judgment may be brought, but such date must be no earlier than ______________ after filing the note of issue.
- If the court does not set a date, then such motion must be brought within __________ of filing the __________.
been joined …….. been joined THIRTY (30) DAYS……… 120 DAYS…… note of issue
EXPLANATION:
The court can set a cutoff date for when motions for summary judgment can no longer be brought. However, the date CANNOT be within a 30-day window following the filing of the note of issue.
If the Court does NOT set a cutoff date for when motions for summary judgment can no longer be brought, then there is a 120 day window starting when the note of issue is filed where any party can file a motion for summary judgment.
3212- Motion for Summary Judgment (Know this section)+
- (NEW) At the time of serving a notice of motion for summary judgment against a consumer defendant in an action to collect a debt, the plaintiff must submit to the clerk a stamped, unsealed envelope addressed to the defendant with an additional notice in _________ font in English and Spanish.
- The notice will outline the basic information of the case, the process to oppose the motion, and information on free legal help.
- The chief administrative judge shall issue a Spanish translation of the notice
12 point
3212- Motion for Summary Judgment (Know this section)+
- In an action to collect a debt, the clerk promptly shall mail to the defendant the envelope containing the additional notice and note the date of mailing in the case record.
- Summary judgment shall not be entered based on defendant’s failure to oppose the motion unless there has been compliance with this section and at least __________ have elapsed from the date of mailing by the clerk or ____________ if the plaintiff’s notice of motion demands additional time
fourteen (14) days………. nineteen (19) days
3213- Motion for Summary Judgment in Lieu of Complaint
- When an action is based upon an instrument for the payment of _________only, or upon any ___________, the plaintiff may serve with the summons, a notice of motion for summary judgment and supporting papers in lieu of ___________
- The summons directs the defendant to serve answering papers to the motion by the return date of the motion.
- If the return date of the motion is longer than the normal time to answer a complaint, the plaintiff can require the answer no more than ___________ days prior to the hearing date of the motion
- No default judgment may be entered pursuant to subdivision (a) of section 3215 prior to the hearing date of the motion.
money …judgment…. a complaint. …… TEN(10) DAYS
- Default judgment.+
- When a DEFENDANT fails to appear, plead or proceed to trial of an action, the plaintiff may seek a default judgment against him.
- If the plaintiff’s claim is for a sum certain, application may be made to the clerk within ________ after the default.
- The clerk will then enter judgment for the amount demanded in the complaint plus __________ and _____________ .
- Upon entering a judgment against less than all defendants, the clerk shall also enter an order __________ the action as to them.
ONE(1)YEAR…costs and interest….. severing
- Default judgment.+
- If the PLAINTIFF fails to proceed to trial or if the court orders a dismissal for any other neglect to proceed, the defendant has ________ to make application to the clerk for a judgment against the plaintiff for costs
- Where the case is not one in which the clerk can enter judgment, the plaintiff shall apply to ______________ for judgment
ONE (1) YEAR…….the court
- Default judgment.+
- If the plaintiff fails to request a default judgment within _________ of the default, the court shall dismiss the complaint as ______________ without costs on its own initiative or on motion of the defendant who decided to show his face just to move the court to dismiss the action against him.
- Interestingly this motion by the defendant does not constitute an appearance in the action
one year………. abandoned
- Default judgment.+
- Whenever an application for Default judgment is made to the court or to the clerk under this section, and the defendant has appeared, they shall be entitled to ___________ notice of the time and place of the application
- The court may dispense with the requirement of notice when a defendant who has appeared has failed to proceed to trial of an action reached and called for trial.
FIVE (5) DAYS
- Default judgment.+
If a defendant who has failed to appear in an action before the motion for judgment is heard, the defendant who has failed to appear may serve on the plaintiff at any time before the motion for judgment is heard a written demand for notice of any reference or assessment by a jury, the plaintiff must give the defendant at least __________ notice of the time and place of the reference or assessment by a jury.
five days’
- Default judgment.+
- There is also a requirement that when the default judgment is based upon non-payment of a contractual obligation of a natural person, an additional notice must be given to the defendant at least ________ before entry of judgment by mailing a copy of the summons by ____________ mail to the residence of the defendant in an envelope stating “personal and confidential” and not indicating such notice is from an attorney
- If a copy of the summons is returned before the entry of a default judgment as undeliverable by the post office or if the place of residence of the defendant is unknown, a copy of the summons shall then be mailed to the defendant at their place of employment or, if residence and employment is unknown, last known residence
- The additional notice may be mailed simultaneously with or after service of the summons on the defendant. Where there has been compliance with the mailing, failure of the defendant to receive the additional notice shall not preclude the entry of default judgment.
- This requirement shall not apply to cases in the _________ part of any court, or to any summary proceeding to recover possession of real property, or to actions affecting title to real property, except residential mortgage foreclosure actions.
TWENTY (20) DAYS……… first class…….. small claims
- Default judgment.+
- When a default judgment based upon non-appearance is sought against a domestic or authorized foreign corporation an affidavit shall be submitted that an additional service of the summons by first class mail has been made upon the corporation at its last known address at least ___________ before the entry of judgment.
- The additional notice may be mailed simultaneously with or after service of the summons on the defendant. Where there has been compliance with the mailing, failure of the defendant to receive the additional notice shall not preclude the entry of default judgment.
- This requirement shall not apply to cases in the small claims part of any court, or to any summary proceeding to recover possession of real property, or to actions affecting title to real property
twenty (20) days
3216- Want of Prosecution
- Where a party neglects to proceed in an action or delays prosecution against a party who may be liable to them or unreasonably fails to serve and file a note of issue, the court on its own initiative or upon motion may dismiss the party’s pleadings, such dismissal is not on the merits
- Prior to issuing such dismissal there are three requirements that first be met, here they Are:
- _______ must have been joined in the action
- ___________ elapsed since joinder of issue or _________ since the issuance of a preliminary court conference order, whichever is later
- The party seeking the relief must serve a written demand by registered or certified mail requiring the plaintiff to resume prosecution and to have them serve and file a note of issue within __________ of receiving the demand
- In the event that the party upon whom the demand is served serves and files a note of issue within such________ period, the same shall be deemed sufficient compliance with such demand and diligent prosecution of the action
- If the plaintiff continues to not comply after the three above steps have been met, then the action will be dismissed
- This section does NOT apply to the dismissal of _________ cases
Issue ……. ONE (1) YEAR…….. SIX months …… NINETY(90) DAYS…… ninety day…. abandoned
3217- Voluntary Discontinuance
To discontinue an action WITHOUT an order of the court, one of the three must be done:
- Serve upon all parties a notice of discontinuance at anytime before a responsive pleading is served or within __________ if no responsive pleading is required, to be followed by filing the notice with proof of service upon the court
- By filing with the clerk before the case is submitted to the court or jury, a ________ in writing signed by the attorneys of record of all parties, as long as no party is an infant, incompetent or conservatees
- By filing with the clerk before the case is submitted to the court or jury, a certificate or notice of ___________ excluding a parcel of land that is the subject matter of the action
In all other circumstances beyond those listed above, to discontinue an action an order of the court is required, however no action shall be discontinued once submitted to the court or jury to ____________ , except upon stipulation of all parties appearing in the action.
TWENTY(20)DAYS…… stipulation……… discontinuance….. render a decision
3218 - JUDGMENT BY CONFESSION
- At any time within __________ after the defendant’s affidavit is executed,it may be filed with the clerk of the county where the defendant resided when executing the confession.
- The clerk shall then enter the judgment in the Supreme Court with costs of ____________ . No judgment of confession can be entered for a dead defendant
- The judgment may be docketed and enforced in the same manner and with the same effect as a judgment in an action in the ___________ court.
THREE (3)YEARS………… FIFTEEN (15) DOLLARS…… supreme
3219- Tender
- At any time but not later than _________ before trial a party against whom a cause of action is based may without court order deposit with the clerk of the court for safekeeping an amount that they feel should sufficiently satisfy the claim against them.
- They will then serve upon the claimant a written ______ of the payment to satisfy the claim and serve a copy of it upon the clerk
- The clerk does not consider this money as a payment into court but simply puts it into a safe or vault for safekeeping
TEN(10) DAYS ……. TENDER
3219- Tender
Within ________ , the claimant, if they are satisfied with the amount deposited, may withdraw the funds upon the filing of an affidavit that the amount is in full satisfaction of the claim. The clerk will then enter a ________ dismissing the pleading
TEN(10) DAYS…… judgment
3220- Offer to Liquidate Damages Conditionally
- This section provides for a defendant to serve upon a claimant no later than _________ before trial a written offer to allow a judgment of a specified amount to be entered against him. The claimant then has ___________ to accept the offer. If damages are awarded to the plaintiff after trial, it will be in the amount of the offer if it was accepted. If the offer was not accepted and the award of damages after trial was less than the offer, then the costs of defending the action from the time the offer was made is upon the plaintiff.
- At no time is the offer made known to _________
TEN(10) DAYS……….. TEN(10)DAYS…….. the jury
3221- Offer to Compromise
Except for matrimonial actions, at any time and not later than __________ before trial, any party against whom a claim is asserted may serve upon the claimant a written offer to allow a judgment to be filed against him for a sum or property with costs.
TEN(10)DAYS
3221- Offer to Compromise
- If within _________ after service of a written offer to allow a judgment, the claimant serves a written notice accepting the offer, either party may thereafter file the summons, complaint and offer with proof of acceptance.
- The ________ will then enter the judgment accordingly
TEN(10)DAYS….. clerk
