F. Appearances & Pleadings Flashcards
What is the time limit for Defendant to appear in an action (avoiding default)?*
Service of process by personal delivery within NY
- Within 20 days after personal delivery
Service of process by other methods
- Within 30 days after service of process
What is required for change of attorney?
Notice of Consent
1) Notice of consent
- Signed by Retiring Attorney
- Signed + Acknowledged by Party
2) Sent to ALL Parties’ Attorneys
Court Order
1) Notice to Client
2) Notice to ALL Parties’ Attorneys
3) Notice to unpresented parties
What type of pleadings are allowed with NO court order?*
- Complaint
- Answer
- Counterclaim (+ Reply) (discretionary, unlike Federal Procedure)
- Crossclaim (+ Reply if demanded!!)*
- TP complaint (+ Reply)
- Interpleader complaint (+ Reply)
*If Crossclaim does NOT demand Reply => Crossclaim is deemed ‘denied’
What may Defendant deny in its answer?
- Statements known/believed to be untrue
- Statements which D lacks knowledge/sufficient information to form belief
OTHERWISE deemed admitted
What type of affirmative defence may Party raise? When must they be raised?*
Any matter likely to;
- Take adverse party by surprise
- Raise fact issues NOT appearing on face of prior pleading
Examples
- Collateral estoppel
- Release
- Res judicata
- Statute of Frauds
- Statute of Limitations
- Lack of PJ
Must be raised in first appearance/motion/answer
- OTHERWISE waived
- UNLESS amended beforehand
Are there any requirements for Counterclaims (D vs P) in NY?
Legal/Equitable cause of action vs P
NO need to arise out of same transaction/occurrence of which P’s claim arises
NO need to be related to P’s claim
Are there any requirements for Crossclaims (D1 vs D2) in NY?
NO need to be related to P’s claim
What type of pleadings requires verification?*
Matrimonial actions
Article 78 proceedings
Subsequent pleadings
- UNLESS privileged matters
Negligence cases
NOT initial pleadings
- UNLESS minor exception
What is required for verification?*
1) Statement by party under oath
2) Pleading is true to Deponent’s knowledge
What is required/time limit for amendments to pleadings?*
With leave of court
- Set forth additional/subsequent transactions/occurrences
With NO leave of court
- Within 20 days after service of pleading/response
- Any time before response time expires
What is the time limit for answers to amended pleadings?*
Within 20 days after service of amended pleading
What is Bill of Particulars?*
Amplifying pleadings
- NOT obtaining evidence
What is required for securing Bill of Particulars?*
1) Serve written demand (including specifics)
2) On Party from whom particulars are sought
Available in ALL actions in NY
What is required for amendment of Bill of Particulars?
Amend before filing note of issue
NO leave of court required
