Defendant's Response

Question 1

How must D respond to a summons and complaint?

Answer 1

Either serve an answer or make a pre-answer motion to dismiss.

Question 2

How must D respond to a summons and notice?

Answer 2

Either make a demand for the complaint or a notice of appearance.

Question 3

What is must be included in D’s answer?

Answer 3

D must deny any of P’s allegations he wants to contest. If D does not deny an allegation, that’s considered an admission.

D must contest personal jurisdiction in the answer if D didn’t move to dismiss earlier.

Question 4

What can D include in his answer?

Answer 4

Affirmative defenses, counterclaims against P, and cross-claims against other Ds.

Question 5

When any party files a pleading, who must be served?

Answer 5

All parties who have made an appearance in the action.

Question 6

What are the non-waivable affirmative defenses?

Answer 6

1. nonjoinder of a necessary party
2. failure to state a cause of action, and
3. lack of subject matter jurisdiction

Question 7

Is service of an interlocutory paper complete upon receipt or mailing?

Answer 7

Mailing

Question 8

Who must be served interlocutory papers and by what methods?

Answer 8

The attorneys for all parties who have made an appearance in the action - and it can be done personally or by regular mail.

Question 9

How much time does D have to serve the answer if he was personally served in NY?

Answer 9

Within 20 days of delivery.

Question 10

How much time does D have to serve the answer if he was served by First Class Mail + Acknowledgment?

Answer 10

D has 20 days from the date he mailed back the acknowledgment.

Question 11

If D is not served personally in NY or by Mail+Acknowledgment, how much time does D have to answer?

Answer 11

30 days after service is complete.

Question 12

If P served a summons and notice - and D serves a demand for the complaint or notice of appearance timely - how much time does P have to serve the complaint?

Answer 12

P has 20 days after D served the demand or notice of appearance to serve D with the complaint.

Question 13

If P timely serves the complaint (after having served notice), how much time does D have to serve the answer or a pre-answer MTD?

Answer 13

D has 20 days from service of the complaint to serve the answer or pre-answer motion to dismiss

Question 14

If P’s service of the complaint is untimely (after D has made a demand for the complaint), what is D’s remedy?

Answer 14

D can move to dismiss the action for P’s non-compliance.

Question 15

If P’s service of the complaint is untimely - must the court dismiss?

Answer 15

Not if P can show a reasonable excuse for the delay, and P makes an evidentiary showing of merit by affidavit of merit.

Question 16

What is an affidavit of merit?

Answer 16

A written statement, under oath, by P or another witness who has personal knowledge of the facts giving rise to the complaint.

Question 17

Has D waived personal jurisdiction if he serves the demand or notice of motion without raising it?

Answer 17

No - not until he makes a pre-answer MTD or serves the answer without mentioning PJ will it be waived.

Question 18

Do the parties have a right to amend their pleadings?

Answer 18

Each party has a right to amend their pleading 1 time. If they can amend, they can add anything they could have raised in their original pleading (including challenges to PJ that were omitted).

Question 19

When can either party amend if they have a right to?

Answer 19

Within 20 days of D serving the answer.

Question 20

If a party has already amended once, can they amend again?

Answer 20

Only with court permission. The court will decide whether the amendment will make the opponent suffer incurable prejudice.