Defendant's Response Flashcards
Time Constraints on Responding
- If service was hand-to-hand & in NY –> 20 days
- If service was mailed w/ a signed acknowledgment –> 20 days of mailing the signed acknowledgement
- ALL other methods of service –> D has 30 days from when service was completed
NOTE: where a period of time prescribed by law is measured from the service of a paper and service is by mail, five days shall be added to the prescribed period (2103(b)(2))
D’s options for responding
- Notice of Appearance: response D gives when P has served him w/ S+N, NOT a S+C; can be served w/ or w/o the demand for complaint –> P must serve complaint w/in 20 days
- Motion for Corrective Pleading arguing complaint was vague/ambiguous
- Answer: denials/admissions of allegations (failure to deny is an implied admission), affirmative defenses, counterclaims, cross-claims
- Motion to dismiss in lieu of an answer
Three Affirmative Defenses that are NEVER waived, and can be asserted at any point (with permission)-
1- No SMJ
2- failure to join a necessary party
3- failure to state a cause of action
Counterclaims
All Counterclaims are Permissive- D can counterclaim any claims that they have against P, related or not to Ps action, following the denials and defenses in the answer. D may also save any and all counterclaims for a separate suit.
- reply required in 20 days
Cross-claims
any cross claim against any other D; no requirement that cross claims be related to Ps complaint
- Cross-claim requires an answer only if the pleading containing the cross-claim demands one. In the absence of a demand, the allegations of the cross-claim are deemed denied
REMEMBER: Parties MUST serve copies of their pleadings and other interlocutory papers on all other parties who have appeared in the action
- service by regular first class mail or personal delivery are most common methods
- must serve the papers on the attorney of the other party
- service of an interlocutory paper by mail is deemed made upon the mailing (mailbox rule)
- Service by mail must be made through a post office or official depository under the exclusive care and custody of the United States Postal Service within NY
CPLR 3211 Affirmative Defenses for a Motion to Dismiss in Lieu of a Complaint (could also be in the answer)
DOWNFALL
SPARERIBS
- Documentary evidence as the basis for a defense
- Other action pending for same CoA
- Want of capacity of the P
- Non-joinder of a necessary party
- Failure to state a cause of action
- ADDITIONAL AFFIRMATIVE DEFENSES (spareribs)
- Lack of PJ– includes improper service or just plain old not subject to personal jurisdiction/long-arm
- Lack of SMJ
- Statute of Limitations
- Payment
- Arbitration Award
- Release
- Estoppel
- Res Judicata
- Infancy of the D
- Bankruptcy discharge
- Statute of frauds
Rules for Considering Motion to Dismiss for Failure to State a Cause of Action
- pleadings are to be liberally construed
- Plaintiff is entitled to every favorable inference that can be drawn from the allegations of the complaint
- P must allege the material elements of each cause of action
- the motion should be denied if there is any basis for relief under the substantive law
- Note: It is not necessary that the claim pleaded be given any particular name. It can even be named wrong. It is sufficient if the pleading alleges any CoA that the law recognizes and offers relief
How long does D have to answer if motion to dismiss in lieu of an answer is denied?
10 days
What if D makes a motion to dismiss in lieu of complaint and only raises one 3211 ground in it?
Motion to dismiss on any ground does not preclude raising other grounds in the answer EXCEPT lack of PJ!! That is waived!!
Most of the other 3211 defenses are waived if not put in the subsequent answers.
Necessary party, failure to state a cause of action, and lack of SMJ are NEVER waived.
How to preserve personal jurisdiction defenses?
- put them in a pre-answer 3211 motion to dismiss; OR
- make no 3211 motion on any ground, and instead include them in the answer
Special rule for pleading improper services of process
The objection of improper service, even if properly included in motion to dismiss + answer, will be waived if D does not make a follow-up motion for summary judgment on that ground w/in 60 days
What happens if D makes a demand for complaint and/or notice of appearance, and P fails to meet the 20-day time limit to serve the complaint?
D may move to dismiss the action based on Ps noncompliance. To avoid dismissal P must show (1) reasonable excuse for the delay; and (2) make an evidentiary showing of merit to Ps CoA (affidavit of merit– written statement under oath by witnesses w/ personal knowledge of facts)
Amendment as of Right
- Each party is entitled to amend her pleading once as a matter of right, i.e., without the need to obtain judicial permission. When making an amendment as of right, the party can put anything into the pleading that could have been in the original.
The one amendment as of right can be made by either party: - w/in 20 days after the pleading itself has been served;
- w/in the period that the adverse party has for responding to your earlier pleading (so that when the D has a 30 day answering period, the P may amend the complaint w/in that period)
- w/in 20 days after a responsive pleading is served
Amendment by Leave of Court
- When the period for the amendment as of right has expired, or the party has already used up her amendment as of right, a motion for leave to amend is required
- as a matter of pubpol, permiss to amend shall be freely given
- won’t get permission if: (1) prejudice would result; (2) amendment itself is patently w/o merit
