NY BAR REVIEW CIVIL PRACTICE AND PROCEDURE LAW COURSE

Question 1

permissive joinder of claims by multiple plaintiffs as well as the joinder of multiple defendants by plaintiff is permitted if claims are what?

Answer 1

arise out of same transaction/occurrence/series of transactions/occurrences AND have in common ANY question of law or fact

Question 2

nonjoinder of a necessary party may be ground for what?

Answer 2

dismissal

Question 3

misdjoinder of a necessary party may be ground for dismissal?

Answer 3

NO

Question 4

how may parties be added?

Answer 4

1. leave of court, at any state in the action.
2. stipulation of all parties who have appeared.
3. one time without leave of court within 20 days after service of summons
4. within the time period for responding to summons
5. within 20 days after service of a pleading responding to it.

Question 5

what is an impleader?

Answer 5

third party practice.
def is permitted to proceed ag a person nota party who is or  may be liable to def for all or part of pl's claim ag def, by bringing in that person so that the original claim and related claim ag the added person may be decided in a single suit.

Question 6

the original party def is called what?

Answer 6

the third party pl

Question 7

the impleaded party is called what?

Answer 7

the third party def

Question 8

a party may commence a third-party action when?

Answer 8

after service of their answer

Question 9

third party summons and complaint must be filed with whom?

Answer 9

clerk of court

Question 10

third party summons and complaint must be filed with clerk of court and served together with all prior pleadings on whom?

Answer 10

third party def

Question 11

third party summons and complaint must be filed with clerk of court and served together with all prior pleadings on third party def when?

Answer 11

within 120 days of such filing

Question 12

third party def must serve an ANSWER upon third party pl that may contain what?

Answer 12

any defenses they have ag pl’s claims or third party’s claims

Question 13

third party def ANSWER may assert what?

Answer 13

any counterclaims or crossclaims the third party def has against any party to the action

Question 14

within how many days after service of the answer to the third party complaint, may the pl amend their complaint without leave of court to assert ag third party def any claim pl has ag such party?

Answer 14

20

Question 15

what is attachment?

Answer 15

form of seizure of def’s property by sheriff

Question 16

what does sheriff do in attachment?

Answer 16

holds property for potential satisfaction of judgment in pl’s favor, helping secure enforcement of money judgment

Question 17

when is attachment available?

Answer 17

only in action for money judgment

Question 18

attachment will be granted based on what?

Answer 18

MOTION demonstrating one of grounds in CPLR 6201

Question 19

what is CPLR 6201?

Answer 19

def is non-domiciliary residing without the state or is a foreign corporation not qualified to do business in the state.
def resides or is domiciled in the state and cannot be personally served despite diligent efforts to do so.
def, with intent to defraud their creditors or frustrate the enforcement of a judgment that might be rendered in pl's favor, has assigned, disposed of, encumbered or secreted property, or removed it from the state or is about to do any of these acts.

Question 20

what must pl making a motion for order of attachment show?

Answer 20

a probability of success on the merits through affidavits

Question 21

what must pl making a motion for order of attachment provide?

Answer 21

an undertaking set by the court

Question 22

when must pl making a motion for order of attachment file?

Answer 22

within 10 days of granting of the order, pl MUST file order of attachment and papers upon which it is based, including summons and complaint.

Question 23

what if the order of attachment is granted before service is made?

Answer 23

summons and complaint must be served within 60 days, subject to extension upon application to court upon good cause shown.

Question 24

what is preliminary injunction?

Answer 24

a court order that seeks to safeguard rights asserted by pl in pending action or special proceeding to preserve status quo until case can be fully adjudicated on the merits

Question 25

on what grounds may preliminary injunctive relief be granted?

Answer 25

def threatens to harm pl's rights in subject of the action and such harm could render judgment ineffectual. 
pl seeks  judgment restraining def from injurious conduct that would also injure pl if committed during course of action

Question 26

when may a preliminary injunction not be available?

Answer 26

in an action seeking solely money damages

Question 27

what is the proceeding for getting a preliminary injunction?

Answer 27

motion in a pending action, made on notice to def.

notice of motion may be served with or after summons or any time before final judgment

Question 28

supporting affidavits and other evidence for a preliminary injunction MUST show what?

Answer 28

that the underlying action falls within one of the grounds for a preliminary injunction specified in CPLR 6301.

Question 29

in addtion to CPLR 6301 grounds for preliminary injunction, courts REQUIRE a showing of what?

Answer 29

likelihood of success on merits of the action.
threat of irreparable injury.
balance of equities in pl’s favor.

Question 30

prior to getting a preliminary injunction, the pl will have to submit what?

Answer 30

an undertaking in amt set by court so that if it is finally determined that pl wasnt entitled to such relief, he will pay the def all damages and costs which were sustained by reason of the injunction.

Question 31

what does a temporary restraining order provide?

Answer 31

immediate injunctive relief while the court determines a motion for preliminary injunction.

Question 32

can a temporary restraining order be granted without notice?

Answer 32

YES

Question 33

what must a pl demonstrate for a temporary restraining order?

Answer 33

immediate and irreparable injury, loss , or damages will result unless def is restrained before a hearing on the motion for preliminary injunction can be held

Question 34

what is the court of appeals in NY?

Answer 34

it is the highest court in the court system.
it has no original jurisdiction but exercises only appellate jurisdiction without regards to the amount in controversy.
its jurisdiction is generally limited to questions of law

Question 35

how many judicial depts does the appellate division of the supreme court have?

Answer 35

4

Question 36

what is the appellate division?

Answer 36

a single statewide appellate court, divided into FOUR judicial depts., and is the principal intermediate appeals court. trial courts in a given dept. are required to follow precedent set by another dept. until the court of appeals or the dept in which the trial sits pronounces a contrary rule. the appellate divisions should accept the decisions of sister depts. as persuasive authority, but are free to reach a contrary result

Question 37

what is stare decisis?

Answer 37

once a court has answered a question, the same question in other cases must elicit the same response from the same court or lower courts in that jurisdiction.

Question 38

the first judicial dept. of appellate term of sup court consists of ?

Answer 38

2 counties within NYC

Question 39

the second judicial dept. of appellate term of sup court consists of ?

Answer 39

3 counties within NYC and 7 other counties

Question 40

what does the appellate terms hear?

Answer 40

appeals from civil and criminal courts of NYC

Question 41

what does the appellate terms of the 2nd dept hear?

Answer 41

appeals from district, county (EXCLUDING felonies), city, town, village courts

Question 42

what jurisdiction does NY sup court have, as a principal trial court?

Answer 42

general original jurisdiction of all cases in law and equity without monetary limitation, unless jurisdiction has been specifically proscribed.
in some cases, jurisdiction is concurrent with that of other courts.
it has EXCLUSIVE subject matter jurisdiction over matrimonial actions.
hears ALL FELONIES.

Question 43

what jurisdiction does court of claims have, as a principal trial court?

Answer 43

exclusive jurisdiction over tort and contract claims against NYS

Question 44

what jurisdiction does county court have, as a principal trial court?

Answer 44

it exists ONLY in 3rd and 4th judicial depts., which include counties that are all OUTSIDE nyc, and have jurisdiction over ALL criminal matters, but primarily hear FELONIES.
limited jurisdiction over civil cases where amount to be recovered does not exceed 25k.
jurisdiction over summary proceedings to recover possession of real property.
jurisdiction over appeals from city, town, and village courts.

Question 45

what jurisdiction does surrogate court have, as a principal trial court?

Answer 45

all proceedings relating to affairs of decedents, probate of wills, administration of estates, guardianship of property of minors, concurrent jurisdiction with sup ct over wrongful death actions.
full equity powers in matters over which it has jurisdiction.

Question 46

what jurisdiction does family court have, as a principal trial court?

Answer 46

child abuse proceedings.
child neglect proceedings.
spousal and child support proceedings.
proceedings to determine paternity.
proceedings for permanent termination of parental rights.
person in need of supervision proceedings.
family offense proceedings, concurrent and simultaneous with the criminal courts.
juvenile delinquency proceedings.
custody and support proceedings when referred by sup ct.

Question 47

what jurisdiction does NYC CIVIL court have?

Answer 47

within city of new york, over monetary actions where amount to be recovered doesn’t exceed 25k and over summary proceedings to recover possession of real property.

Question 48

what jurisdiction does NYC CRIMINAL court have?

Answer 48

criminal jurisdiction within the city of NY over MISDEMEANORS and violations

Question 49

what jurisdiction does district court and city court have?

Answer 49

district court is ONLY in 2nd jud dept and city courts all have jurisdiction over monetary actions where amount to be recovered doesnt exceed 15k

Question 50

what jurisdiction does town court and village court have?

Answer 50

jurisdiction over monetary actions where amount to be recovered doesnt exceed 3k.
criminal jurisdiction over MISDEMEANORS and violations.

Question 51

excluding town and village courts, how are actions commenced?

Answer 51

paper filing, electronic filing.

of summons and complaint or summons with notice with the clerk of court in county where action is brought

Question 52

how is a special proceeding commenced?

Answer 52

paper wiling, electronic filing.

of notice of petition and petition w clerk in county where special proceeding is brought.

Question 53

information about NYS courts electronic filing system can be found where?

Answer 53

website of UNIFORM COURT SYSTEM at nycourts.gov/efile

Question 54

nondomiciliary who commences an action in NY, even if is not otherwise subject to personal jurisdiction in NY, does or does NOT submit themselves to personal jurisdiction in any separate action brought ag them by any party to the pending action ?

Answer 54

YES, does

Question 55

nondomiciliary who commences an action in NY, even if is not otherwise subject to personal jurisdiction in NY, is or is NOT deemed to have designated their NY atty as agent upon whom process may be served in separate action?

Answer 55

YES, is

Question 56

defendant can use CPLR 303 to acquire what over the pl in a separate action and its in place of interposing what?

Answer 56

jurisdiction.

counterclaim.

Question 57

upon commencement by filing, service in an action MUST be made within how many days?

Answer 57

120

Question 58

if method of service of process requires two acts, what are they ?

Answer 58

deliver and mail.

affix and mail.

Question 59

if method of service of process requires two acts, what is required concerning the time period?

Answer 59

both acts MUST be performed within the 120 day period

Question 60

in action /proceeding in which statute of limitations is 4 months or less, such as CPLR ART 78 proceeding, service of process is to be made no later than how many days after date on which relevant statute of limitation expires?

Answer 60

15

Question 61

if service is NOT timely made, upon motion, MUST what?

Answer 61

dismiss action without prejudice as to def not served, or , upon good cause shown, or , in interest of justice, extend time for service even if applicable statute of limitations has expired

Question 62

how does a court measure an application for extension of time to serve?

Answer 62

good cause requires a threshold showing of reasonable diligence in attempting to effect service on def.
interest of justice is broader and more flexible. 
diligence in effecting service. 
expiration of statute of limitations.
meritourious nature of claim.
length of delay. 
promptness of request.
prejudice to defendant.
other relevant factors.

Question 63

how MUST personal service in an action upon a natural person be made?

Answer 63

personal delivery.
delivery and mail.
service upon an agent.
affix and mail.
court ordered service.
adhere to particular provisions of CPLR 308.

Question 64

service under CPLR 308, 2

Answer 64

delivery of process to person of suitable age and discretion at actual place of business, dwelling place, usual place of abode of def, mailing process to def at his last known address, actual place of business, AND thereafter, filing PROOF OF SERVICE.

Question 65

service under CPLR 308, 4

Answer 65

affix process to door of actual place of business, dwelling place, usual place of abode of def, mail process to def at his last known residence or actual place of business, AND thereafter, file PROOF OF SERVICE.
this type of service is NOT available UNLESS service under subsection 1 and 2 cannot be made with due diligence

Question 66

how to personal serve upon a partnership?

Answer 66

on any one of the partners, managing or general agent of partnership or person in charge of partnership office within the state at such office, mailing process to partner intended to be served by first class mail to their last known residence or partnership place of business, AND thereafter filing proof of service

Question 67

if filing of proof of service is required, it is a prerequisite to what?

Answer 67

completion of service and thus the def’s time to respond does NOT begin to run until service is complete

Question 68

how to personally serve a domestic or foreign corporation?

Answer 68

serve an officer, director, managing agent, general agent, cashier, assistant cashier, service upon registered agent, secretary of state.

Question 69

how to personally serve a domestic or foreign limited liability company?

Answer 69

serve process on any member of LLC, if mgt of LLC is vested in its members or any manager of LLC, if mgt of the LLC is vested in one or more managers or by service upon sec of state

Question 70

how to serve outside of New York State?

Answer 70

any person domiciled in state or subject to personal jurisdiction under long arm statute may be served outside state in same manner as service is made within state by same parties authorized to make service within or without the state. papers may be served by any person over 18 who’s not a party in the action.

Question 71

what are the types of jurisdiction over persons, property and status?

Answer 71

in personam.
in rem.
quasi in rem.

Question 72

what are the 5 bases for in personam jurisdiction?

Answer 72

presence.
consent.
domicile.
doing business.
long arm.

Question 73

how does a pl demonstrate personal jurisdiction?

Answer 73

MUST have general jurisdiction or long arm jurisdiction.

Question 74

what is general jurisdiction?

Answer 74

it permits a court to hear all claims ag an entity

Question 75

what is specific jurisdiction?

Answer 75

it permits a court to hear only those claims that arise out of entity’s contacts within the state

Question 76

how is a foreign corporation subjected to general personal jurisdiction in NY?

Answer 76

it is present and doing business in the state, it is engaged in CONTINUOUS, PERMANENT, SUBSTANTIAL ACTIVITY IN NY

Question 77

general personal jurisdiction can NO longer be asserted ag a foregin corporation based solely on what?

Answer 77

its continuous and systematic business activity in NY. due process limits the exercise of general jurisdiction to a state in which the corporation is AT HOME.

Question 78

if a corporation is NOT incoroporated in NY or maintaining its principal place of business here,NY courts will exercise general personal jurisdiction when ?

Answer 78

when the foreign corporation’s operations are so substl and of such a nature as to render the corporation essentially at home

Question 79

presence , domicile, doing business, confer what?

Answer 79

general jurisdiction

Question 80

long arm statute confers what?

Answer 80

specific jurisdiction.

Question 81

what is specific jurisdiction?

Answer 81

cause of action must arise out of def’s state connected activity

Question 82

personal jurisdiction over whom?

Answer 82

non domiciliary who in person or through an agent transacts any business within NY or contracts to supply goods or services here; commits a tortious act within NY, EXCEPT as to a cause of action for defamation.

Question 83

court of appeals

Answer 83

highest court in ct system.
no original jurisdition.
only appellate jurisdiction without regard to amt in controversy.
jurisdiction limited to questions of law.
principal intermediate appeals ct.

Question 84

appellate division is single statewide and divided into

Answer 84

4 judicial depts

Question 85

stare decisis

Answer 85

trial cts in a given dept are required to follow precedent set by another dept until ct of appeals or dept in which trial ct sits pronounces contrary rule

Question 86

appellate divisions should accept whose decisions

Answer 86

sister depts. as persuasive authority. BUT they are still FREE to reach a contrary result!

Question 87

appellate terms of sup ct / first judicial dept

Answer 87

2 counties within NYC

Question 88

appellate terms of sup ct / 2nd judicial dept

Answer 88

3 counties within NYC + 7 other counties

Question 89

appellate terms of 1st and 2nd depts hear what typeof appeals

Answer 89

civil and criminal cts of NYC

Question 90

appellate term of 2nd dept hears appeals from which cts

Answer 90

district, county (NO felonies), city, town, village

Question 91

sup ct jurisdiction

Answer 91

general original of all cases in law and equity w/o monetary limitation unless its jurisdiction has been specifically proscribed

Question 92

in some cases, sup ct jurisdiction is concurrent with that of?

Answer 92

other cts

Question 93

sup ct jurisdiction has exclusive subject matter jurisdition over which claims / actions?

Answer 93

matrimonial and wrongful death

Question 94

in NYC, sup ct hears all

Answer 94

FELONIES

Question 95

commercial division of sup ct handles claims meeting what

Answer 95

minimum monetary threshold and involving multitude of commercial disputes

Question 96

after commencement of an action, any party may seek what

Answer 96

assignment of commercial case to commercial division and upon transfer, parties are subject to specific rules of practice for commercial division

Question 97

specific rules of practice for commercial division

Answer 97

electronic submission and form of papers, atty appearances, limitations on discovery, discovery of electonically stored info, adherence to discovery schedules and discovery disputes, motions, trials

Question 98

ct of claims exclusive jurisdiction over?

Answer 98

tort claims + contract claims = AGAINST NYS

Question 99

ct of claims may NOT exercise what?

Answer 99

equitable jurisdiction.

Question 100

ct of claims does NOT have jurisdiction over whom?

Answer 100

non-state actors

Question 101

county cts exist where

Answer 101

in all counties outside of NYC

Question 102

county cts have jurisdiction over what?

Answer 102

all criminal matters.
hear primarily felonies.
have limited jurisdiction over civil cases where amt to be recovered does NOT exceed 25K.
have jurisdiction over summary proceedings to recover possession of real property.
have jurisdiction over appeals from city / town / village cts.

Question 103

surrogate ct has jurisdiction over what?

Answer 103

all proceedings relating to affairs of decedents / will probate / administration of estates / guardianship of minors’ property.
has concurrent jurisdiction w family ct over adoptions.
has concurrent jurisdiction w sup ct over allocation and distribution of proceeds of wrongful death actions.

Question 104

surrogate ct has full equity powers in what

Answer 104

in matters over which it has jurisdiction

Question 105

family ct has jurisdiction over what

Answer 105

child abuse.
neglect proceedings.
spousal and child support proceedings.
proceedings to determine paternity.
proceedings for permanent termination of parental rights.
person in need of supervision proceedings.
family offense proceedings / concurrent and simultaneous w criminal cts.
juvenile delinquency proceedings.
adoptions.
custody and support proceedings - when referred by sup ct.

Question 106

NYC civil ct has jurisdiction

Answer 106

within city of NY, over:
monetary actions where amt to be recovered doesnt exceed 25K
summary proceedings to recover possession of real property.

Question 107

NYC criminal ct has criminal jurisdiction

Answer 107

within city of NY over:
misdemeanors.
violations.

Question 108

district ct - where?

Answer 108

in 2nd judicial dept:
nassau county.
suffolk county.
jurisdiction over monetary actions where amt to be recovered does NOT exceed 15K.
have criminal jurisdiction over misdemeanors and violations.

Question 109

city cts have jurisdiction over

Answer 109

monetary actions where amt to be recovered does NOT exceed 15K.
have criminal jurisdiction over misdemeanors and violations.

Question 110

town cts and village courts have jurisdiction over

Answer 110

monetary actions where amt to be recovered does NOT exceed 3K.
have criminal jurisdiction over misdemeanors and violations.

Question 111

actions commenced how?

Answer 111

paper filing / electronic filing of summons and complaint and summons w notice w clerk of ct in county where action brought

Question 112

special proceeding commenced how?

Answer 112

paper filing / electronic filing of notice of petition and petition w clerk of ct in county where special proceeding is brought

Question 113

in some counties as to certain types of actions, commencement by electronic filing is what

Answer 113

mandatory

Question 114

in other matters, e filing is what

Answer 114

authorized

Question 115

NYSCEF

Answer 115

NYS courts electronic filing system found on uniform court system website:
iapps.courts.state.ny.us/nyscef/homepage

Question 116

nondomiciliary commencing action in NY, even if isnt otherwise subject to personal jurisdiction in NY, causes what?

Answer 116

submits himself to personal jurisdiction in separate action brought against him by any party to the pending action and is deemed to have designated his NY atty as agent upon whom process may be served in such separate action

Question 117

CPLR 303

Answer 117

acquire jurisdiction over pl in separate action instead of interposing a counterclaim

Question 118

upon commencement by filing, service in an action MUST be made when?

Answer 118

within 120 days

Question 119

if particular method of serving process requires two acts

Answer 119

1. deliver and mail
2. affix and mail
   both acts MUST be performed within 120 day period

Question 120

in action/proceeding where statute of limitations is 4 months / less, (such as CPLR ART 78 proceeding), service of process is to be made when?

Answer 120

NO LATER THAN 15 days after date on which relevant statute of limitations expires

Question 121

if service isnt timely made

Answer 121

ct, upon motion, MUST dismiss action WITHOUT prejudice as to def not served,
OR
upon good cause shown or in interest of justice, EXTEND time for service.

Question 122

if applicable statute of limitations expired since, pl MUST

Answer 122

make a motion, or raise the issue in response to def’s motion to dismiss, for an extension of time to serve while the action/proceeding is still pending OR commencement of a new action will be TIME BARRED

Question 123

ct standards by which measuring an application for extension of time to serve

Answer 123

good cause- show reasonable diligence in attempting to effect service on def.
OR 
interest of justice
OR
diligence in effecting service 
expiration of statute of limitations
meritorious nature of claim
length of delay and promptness of request
prejudice to def 
and others

Question 124

PERSONAL SERVICE

in an action upon natural person MUST be made by

Answer 124

personal delivery
deliver and mail
service upon an agent
affix and mail
court ordered service

Question 125

delivery of process

Answer 125

to a person of suitable age and discretion
at the actual place of business / dwelling place / usual place of abode of def.
mailing process to def at last known residence / actual place of business.
filing proof of service.

Question 126

other type of service

Answer 126

affixing process to door of actual place of business/ dwelling place/ usual place of abode of def, thereafter filing proof of service.
this is NOT available unless service under subsection 1 & 2 cannot be made w due diligence

Question 127

mailing to def’s actual place of BUSINESS

Answer 127

MUST be by first class mail
envelope labeled PERSONAL & CONFIDENTIAL
MUST NOT indicate it is from an atty

Question 128

if method of service requires filing of proof of service

Answer 128

such filing is a prerequisite to completion of service, and service is complete 10 days after filing.

Question 129

def’s time to respond begins when

Answer 129

service is complete

Question 130

personal service upon partnership / CPLR 310

Answer 130

serving process on any 1 of partners

Question 131

partnership may also be served by serving whom

Answer 131

managing agent
general agent
person in charge of partnership office within state at such office
mailing process to partner intended to be served by first class mail to his last known residence or partnership place of business, then filing proof of service

Question 132

personal service upon domestic/foreign corp is made how?

Answer 132

by serving officer/director/managing agent/general agent/cashier/assistant cashier/registered agent/sec of state

Question 133

personal service upon domestic/foreign limited liability co. is made how?

Answer 133

by serving process on any member of LLC, if mgt of LLC is vested in members
OR
an manager of LLC, if mgt of LLC is vested in 1/more managers
OR
by service upon sec of state

Question 134

person domiciled in state or subject to personal jurisdiction under long arm statute may be served outside state how?

Answer 134

in same manner as service is made within state by same parties authorized to make service within or without the state

Question 135

papers may be served by whom?

Answer 135

any person over age 18, not a party in the action

Question 136

jurisdiction over persons, property, status categories

Answer 136

in personam
in rem
quasi in rem

Question 137

in personam jurisdiction’s 5 potential bases

Answer 137

presence
consent
domicile
doing business
long arm jurisdiction

Question 138

for pl to demonstrate personal jurisdiction over def, pl MUST have

Answer 138

general jurisdiction or long arm jurisdiction

Question 139

general jurisdiction

Answer 139

permits a court to hear all claims ag an entity

Question 140

specific jurisdiction

Answer 140

permits ct to hear ONLY claims arising out of entity’s contacts within the state

Question 141

foreign corp subject to general personal jurisdiction in NY if

Answer 141

present and doing business in the state.

if it is engaged in continuous, permanent, substl activity in NY

Question 142

daimler v. bauman decision

Answer 142

general personal jurisdiction can no longer be asserted ag foreign corp based solely on corp’s continuous and systematic business activity in NY.
due process limits exercise of general jurisdiction to state in which corp is AT HOME.
if corp is not incorporated in NY or maintaining its principal place of business here, NY cts will only exercise general personal jurisdiction in exceptional case - when foreign corp’s operations are so substl and of such nature as to render corp essentially AT HOME

Question 143

state long arm statute confers only

Answer 143

specific jurisdiction, cause of action MUST arise out of def’s state connected activity

Question 144

re cause of action arising from enumerated acts, NY cts may exercise personal jurisdiction over non domiciliary who in person or through an agent does what?

Answer 144

transacts any business within NY or contracts to supply goods or services here.
commits tortious act within NY, except as to cause of action for defamation.
commits tortious act outside NY that causes injury within NY. injuried person/damaged property MUST be located in state at time of injury/damage, except as to cause of action for defamation, if def regularly does or solicits business, or engages in any other persistent course of conduct in NY, or expects or reasonably should expect the act to have consequences in NY and derives substl revenue from interstate or international commerce.
OR
owns/uses/possesses real property within NY.

Question 145

personal jurisdiction over non resident def in what type of action

Answer 145

matrimonial, if certain prerequisites are satisfied

Question 146

long arm jurisdiction assertion MUST not exceed what

Answer 146

limits imposed by due process clause of U.S. and NY Constitutions

Question 147

place of trial

Answer 147

county in which pl/def resides at time of commencement of action. county in which substl part of events or omission giving rise to claim occurred
OR
if neither party resides in the state, any county designated by pl.

Question 148

corporation is resident where?

Answer 148

of county in which principal office is located

Question 149

partnership is resident where?

Answer 149

of county in which has principal office + county where partner suing or being sued actually resides

Question 150

actions ag municipal def’s place of trial is where?

Answer 150

county in which the municipal def is located

Question 151

place of trial of action in which judgment would affect title to real property is where?

Answer 151

county where real property is situated

Question 152

court may change venue when?

Answer 152

UPON MOTION,
upon grounds that venue was improperly placed,
impartial trial cannot be had in proper county,
OR
if convenience of material witnesses and ends of JUSTICE will be promoted by change

Question 153

court is permitted, eventho has jurisdiction, to decline to entertain action when?

Answer 153

after examining ALL relevant factorsof private inconvenience and public interest, including whether chosen forumis significantly inconvenient for trial of action and whether more appropriate forum is available

Question 154

NY does not require alternative forum as a precondition to what?

Answer 154

forum non conveniens dismissal

Question 155

in NY, ct may stay or dismiss action, in entirety, or in part, upon what conditions?

Answer 155

just.
waiver of defenses - lack of jurisdiction or statute of limitations.
if alternate venue is another NY ct, ct may not transfer the case, unlike federal procedure, which permits such transfer

Question 156

action must be commenced within limitations period in art 2, unless diff time is prescribed where?

Answer 156

by law or shorter time prescribed by written agreement

Question 157

ct cannot extend time limited by law for what?

Answer 157

commencement of action

Question 158

NY’s borrowing statute

Answer 158

if nonresident pl’s claim accrued outside of NY, claim MUST be timely under both NY law and that of place of accrual.

Question 159

out of state claim that accrues in favor of NY resident will be governed by NY SOL regardless of whether what?

Answer 159

other state’s statute of limitations is shorter than that of NY

Question 160

pl must interpose the claim within the applicable what?

Answer 160

statute of limitations

Question 161

in all cts except justice cts, a claim is deemed interposed when?

Answer 161

initiatory papers are filed w the clerk

Question 162

if there are several def’s and theyre united in interest, commencement as to one will do what?

Answer 162

preserve the action as ag the others

Question 163

united in interest doctrine

Answer 163

assertion of claim ag def after expiration of statute of limitations will RELATE BACK to commencement date of timely action ag related party when:

1. claims ag parties arose out of same conduct/transaction/occurrence
2. def reasonably should have known that pl made a mistake in failing to timely identify proper parties
3. def and party originally sued have such unity of interest that, by reason of their relationship, def can be charged w such notice of action that he will not be prejudiced in defending the case

Question 164

when is a defense / counterclaim interposed?

Answer 164

when a pleading containing it is served, and it is not barred if it was not barred at time claims asserted in complaint were interposed

Question 165

if def / counterclaim arose from transactions or occurrences upon which claim in complaint depends, defense or counterclaim is what?

Answer 165

NOT barred to the extend of the demand in the complaint, even if time barred at time claims asserted in complaint were interposed

Question 166

claim asserted in amended pleading is deemed to have been interposed when?

Answer 166

at time claims in original pleading were interposed provided original pleading gave notice of same conduct / transaction / occurrence

Question 167

where limitations pd is measured from discovery of wrong, action must be commenced when?

Answer 167

within stated limitations period from wrong itself OR 2 years from discovery of the wrong, whichever is longer

Question 168

adverse possession claims / limitations pd

Answer 168

10 years

Question 169

6 yrs limitations pd

Answer 169

1. action for breach of contract, express or implied, except as otherwise provided
2. action based on fraud - greater of 6 yrs from time fraud was perpetrated or 2 yrs from time fraud was discovered or could with reasonable diligence have been discovered
3. action for which no limitation is specifically prescribed by law

Question 170

3 yrs limitations pd

Answer 170

1. action to recover damages for personal injuries.
2. action to recover damages for injury to property
3. action to recover damages for malpractice, NOT MEDICAL, DENTAL OR PODIATRIC. regardless of whether the underlying theory is based in contract / tort.

Question 171

2.5 yrs limitations pd

Answer 171

from day of alleged act / omission / failure.
if continuous treatment for same illness / injury / condition that gave rise to alleged act / omission, statute is tolled till date of last treatment.
if action based upon discovery of foreign object left in patient’s body, excluding devices placed in patient for ongoing treatment, commencement pd tolled till earlier of 1 year of date of discovery or of date of discovery of facts which would reasonably lead to discovery.
if action based upon failure to diagnose cancer or malignant tumor, by act / omission, commencement pd tolled till later of either when person knows or reasonably should have known of act / omission and knows or reasonably should have known that act / omission has caused injury, NO LATE THAN 7 YRS FROM ACT/OMISSION or date of last treatment where there is continuous treatment.

1. medical malpractice
2. dental malpractice
3. podiatric malpractice

Question 172

1 yr statute of limitations

Answer 172

1. action to recover damages for intentional torts, such as assault, defamation
2. action upon arbitration award

Question 173

4 months statute of limitations

Answer 173

after determination to be reviewed becomes final and binding.
1. special proceeding under ART 78.
UNLESS shorter time is provided in law authorizing proceeding.

Question 174

1 year AND 90 days statute of limitations

Answer 174

after cause of action accrues

1. actions ag municipalities to recover damages for personal injury or property damage, other than for wrongful death,

Question 175

2 years statute of limitations

Answer 175

after decedent’s date of death

1. wrongful death actions

Question 176

action may NOT be maintained ag municipality / fire district / school district to recover damages alleged to have been sustained by reason of what?

Answer 176

negligence / wrongful act of def UNLESS notice of claim has been served in accordance w general municipal law.

Question 177

notice of claim served on municipality / fire district / school district re negligence / wrongful act must be served within how many days after claim arises or in wrongful death, from apptmt of representative of decedent’s estate

Answer 177

90 days

Question 178

notice of claim re negligence / wrongful act served on municipality / fire district / school district must be

Answer 178

in writing.
sworn to by or on behalf of, claimant.
shall set forth name and address of claimant and his atty.
nature of claim.
time when and placer where and manner in which claim arose.
items of damage or injuries claimed to have been sustained.

Question 179

ct, in its discretion, may EXTEND time to serve notice of claim re negligence / wrongful act served on municipality / fire district / school district, but it shall not exceed what?

Answer 179

statute of limitation for commencing action ag municipality or other public corp - 1 year and 90 days after happening of event, or in wrongful death, within 2 years of death of decedent - general municipal law.

Question 180

whether to extend time to serve a notice of claim, court MUST consider what?

Answer 180

whether municipality or its insurance carrier had actual knowledge of facts constituting claim within 90 days of event and all other relevant factors, including whether claimant was an infant or incapacitated, whether claimant justifiably relied upon settlement representations of rep of municipality, and whether delay in serving the notice of claim substly prejudiced the municipality in maintaining its defense on the merits.
statutory factors are a non exhaustive list of factors ct should weigh

Question 181

time limits for service of notice of calim and for commencing an action as set forth in gen munic law also apply to actions for

Answer 181

property damage.
personal injury.
wrongful death.
ag any politicial subdivision of the state, state agency, public authority, public benefit corp, that is entitled to receive notice of claim as condition precedent for commencement of action

Question 182

when cause of actions accrues ag def and def is absent from STATE, limitations period is what?

Answer 182

tolled until def returns

Question 183

if def leaves the state AFTER cause of action accrues and REMAINS out of state continuously for 4+ months, then?

Answer 183

period of absence is NOT part of limitations pd.
absence of def will suspend running of SOL if there is statutory authority for obtaining jurisdiction over def by some manner other than by personal delivery of process w/in the state, where there is a resident agent that may be served, or if jurisdiction over the person of the def can be effected out of state pursuant to long arm jurisdiction.

Question 184

infancy and insanity are what?

Answer 184

disabilities which MAY toll applicable SOL

Question 185

if applicable SOL is LESS than 3 years, SOL does NOT what?

Answer 185

run during entire period of disability

Question 186

if applicable pd is 3+ years, pl will have at least how many years to sue from time disability ceases?

Answer 186

3 years.

applies ONLY when pl is under such disability at time cause of action accrues

Question 187

maximum toll permitted in case of insanity is how many years?

Answer 187

10

as it is for infant’s cause of action for medical / dental / podiatric malpractice.

Question 188

in other cases involving infant, there is NO what?

Answer 188

10 yr maximum limit

Question 189

NY CHILD VICTIMS ACT

Answer 189

from 8.14.19 and for 1 year thereafter, SOL and any notice of claim requirements for civil actions related to sexual offense from penal law, committed ag child are lifted and such actions granted trial preference.

Question 190

civil action may be commenced ag any party whose what?

Answer 190

intentional or negligenct acts or omissions are alleged to have resultedin commission of said conduct, on or before pl reaches 55 yo, re NY CHILD VICTIMS ACT

Question 191

where pl dies before expiration of SOL period, his executor / administrator has greater of what?

Answer 191

that limitation pd or 1 year from death in which to sue

Question 192

when def dies before suit, how much time is tacked onto whatever limitations pd remains?

Answer 192

18 months

Question 193

if action timely commenced and terminated in any manner other than final judgment on merits, voluntary discontinuance, neglect to prosecute, or lack of personal jurisdiction, and SOL has or is abt to expire, pl may nonetheless commence a new action upon same transaction or occurrence when?

Answer 193

within 6 mths after termination, provided service upon def is effected within such 6 mth pd.

Question 194

applicaiton of the 6 mth period is NOT needed if SOL hasnt what?

Answer 194

run, when new action is commenced

Question 195

def appears in action by serving what?

Answer 195

answer.
making motion which has effect of extending time to answer.
serving a notice of appearance.

Question 196

if def was served by personal delivery within NYS, time to appear is when?

Answer 196

no later than 20 days from delivery

Question 197

in most other cases, including service outside NYS, and service under cplr 308 2-5, time to appear is when?

Answer 197

no later than 30 days after service is complete

Question 198

appearance by def confers what>?

Answer 198

jurisdiction over def’s person, unless objection to jurisdiction is raised in motion or answer, or def makes limited appearance in actions based on quasi in rem or in rem jurisdiction

Question 199

any party may appear in an action how?

Answer 199

pro se.

through an atty.

Question 200

corporation or LLC MUST appear how?

Answer 200

thru an atty

Question 201

once party appears in action thru atty, atty of record may be changed how?

Answer 201

w c’s consent by filing consent to change attys signed by retiring atty and signed and acknowledged by party

Question 202

notice of change of atty MUST be given to whom?

Answer 202

to attys for all parties

Question 203

atty of record may also withdraw from representation or be changed how?

Answer 203

w/o c’s consent by ct order upon motion on notice to c, to attys of record for all other parties to action and to any unrepresented parties

Question 204

pleadings permitted in an action are which?

Answer 204

complaint.
answer. - may include counterclaim. cross claim.
reply to counterclaim labeled as such.
3rd party complaint.
answer to inerpleader complaint or 3rd party complaint.
answer to cross claim that contains demand for answer.

Question 205

if no answer is demanded, cross claim is deemed what?

Answer 205

denied

Question 206

no other pleadings are permitted without what?

Answer 206

ct order

Question 207

party in its answer MUST deny sttmts known or believed to be what?

Answer 207

untrue and/or specify sttmt of which he lacks knowledge or info sufficient to form belief

Question 208

allegation NOT addressed by either kind of denial is deemed what?

Answer 208

admitted

Question 209

part MUST specifically raise what?

Answer 209

affirmative defense any matter, which, if not pleaded, would be likely to take adverse party by surprise or would rais efact issues not appearing on face of prior pleading.

Question 210

statute contains list of traditional affirmative def’s such as which?

Answer 210

collateral estoppel.
release.
res judicata.
statute of frauds.
statute of limitations.

Question 211

the affirmative defenses are waived if not raised in what?

Answer 211

answer or pre answer motion to dismiss

Question 212

culpable conduct claimed in diminution of damages is what?

Answer 212

an affirmative def to be pleaded and proved by party asserting def

Question 213

what is a counterclaim?

Answer 213

cause of action asserted by def ag pl.
neednt arise out of transaction or occurence out of which pl’s claim arises, nor otherwise be related to pl’s claim.
can be any cause of action the def has ag pl, legal or equitable.

Question 214

every counterclaim in NY is what?

Answer 214

permissive, even if its subject matter related to pl’s claim

Question 215

what is a cross claim?

Answer 215

cause of action by 1 def ag another.

cross claim MAY be asserted bw def’s for any cause of action at all, whether or not related to pl’s claim.

Question 216

what is a verification?

Answer 216

sttmt by party under oath that pleading is true to knowledge of deponent.

Question 217

pleadings need not be what?

Answer 217

verified.

but if they are, each subsequent pleading MUST be verified, unless matter to be verified is privileged.

Question 218

if counterclaim or cross claim in answer is separately verified, then what?

Answer 218

it’s given same effect as if it wre a separate pleading

Question 219

verification of a complaint in a matrimonial action

Answer 219

MANDATORY

Question 220

verification of petition in art 78 proceeding

Answer 220

MANDATORY

Question 221

amendments to pleading may be made once without leave of ct when?

Answer 221

within 20 days after service or
anytime before time to respond expires or
within 20 days after service of pleading responding to it

Question 222

party may amend pleading or may supplement it how?

Answer 222

by setting forth addtl or subsequent transactions or occurrences ONLY by:
leave of ct or
stipulation of parties

Question 223

answer or reply to amended or supplemental pleading MUST be served when?

Answer 223

within 20 days after service of the pleading to which it responds

Question 224

bill of particulars purpose?

Answer 224

amplify pleadings.
NOT to obtain evidence.
its available bw parties in the action.

Question 225

how to secure a bill of particulars?

Answer 225

serve a written demand on party from whom particulars are sought.
party on whom demand is made MUST serve a timely response.
if any particulars are objectionable, include in response a sttmt of objections for particulars not being responded to with reasonable particularity.

Question 226

assertion of an objection to 1 or more of items in demand shall NOT what?

Answer 226

relieve party on whom demand is made from obligation to respond in full within 30 days of service of demand to items of demand to which no objection has been made

Question 227

party may amend bill of particulars how?

Answer 227

once without leave of ct BEFORE note of issue is filed

Question 228

if party fails to timely respond or fails to comply fully w demand, party seeking bill of particulars may what?

Answer 228

move to compel compliance.
or
if failure is willful, seek penalties.

Question 229

if ct determines that a demand for particulars, or any part thereof is improper or unduly burdensome, it may what?

Answer 229

vacate or modify the demand or make such order as is just.

Question 230

in personal injury, items that may be demanded have been what?

Answer 230

codified

Question 231

in personal injury action, party may serve supplemental bill w respect to claims of continuing special damages w/o leave of ct when?

Answer 231

at any time up to 30 days prior to trial.
NO new cause of action may be alleged or new injury claimed.
other party may seek discovery regarding such continuing special damages and disabilities.

Question 232

if pleading is verified, any bill of particulars in respect of it MUST also be what?

Answer 232

verified

Question 233

in negligence case, bill of particulars MUST be verified whether or not pleading is what?

Answer 233

verified

Question 234

what is a necessary party?

Answer 234

person who ought to be a party if complete relief is to be accorded bw parties to the action or who might be inequitably affected by judgment in action

Question 235

necessary parties MUST be what?

Answer 235

joined in action if theyre are subject to jurisdiction of ct.
if are NOT subject toand do not consent to jurisdiction of ct, ct when justice requires may allow action to proceed w/o them

Question 236

permissive joinder of claims by multiple pl’s as well as joinder of multiple def’s by pl is permitted if claims what?

Answer 236

arise out of same transaction / occurrence / series of transactions or occurrences
AND
have in common a question of law / fact

Question 237

nonjoinder of necessary party may be ground for dismissal, but misjoinder of party is what?

Answer 237

NOT

Question 238

parties may be added at ANY stage in action how?

Answer 238

leave of ct
OR
stipulation of all parties who have appeared
OR
one time w/o leave of ct w/in 20 days after service of summons
OR
within time period for responding to summons
OR
within 20 days after service of pleading responding to it

Question 239

3rd party practice: IMPLEADER

Answer 239

procedure whereby def is permitted to proceed ag person not a party, who is or may be liable to def for all or part of pl’s claim ag def, by bringing that person into lawsuit so that original claim and related claim ag added person may be decided in single suit.

Question 240

what is original party def called?

Answer 240

3rd party pl

Question 241

what is the impleaded party called?

Answer 241

3rd party def

Question 242

party may commence 3rd party action after service of ?

Answer 242

their answer

Question 243

3rd party summons and complaint MUST be filed how?

Answer 243

w clerk of ct and served together w all pleadings on pl and 3rd party def w/in 120 days of the filing

Question 244

3rd party def must serve answer upon 3rd party pl that may contain what?

Answer 244

any defenses he ha ag pl’s claims or 3rd party’s claims

Question 245

3rd party def’s answer may assert what?

Answer 245

any counterclaims or crossclaims 3rd party def has ag any party to action

Question 246

w/in 20 days after service of answer to 3rd party complaint, pl may what?

Answer 246

amend his complaint w/o leave of ct to assert ag the 3rd party def any claim pl has ag such party

Question 247

provisional remedy- attachment

Answer 247

form of seizure of def’s property by sheriff, who holds property for potential satisfaction of judgment in pl’s favor, helping secure enforcement of money judgment.

Question 248

attachment available in action for what?

Answer 248

money judgment.

ONLY upon motion demonstrating one of grounds in CPLR 6201.

Question 249

CPLR 6201

Answer 249

attachment in action for money judgment:
when def is nondomiciliary residing w/o the state OR is a foreign corp not qualified to do business in state.
def resides or is domiciled in state and cannot be personally served despite diligent efforts to do so.
OR def, w intent to defraud his creditors or frustrate enforcement of judgment  that might be rendered in pl's favor, has assigned, disposed of, encumbered, secreted property, removed it from state or is about to do any of these acts.

Question 250

pl making motion for order of attchmnt MUST show what and how?

Answer 250

through affidavits and other evidence a probability of success on the merits

Question 251

pl MUST also provide what set by the ct?

Answer 251

undertaking in amount

Question 252

pl MUST file ORDER of attchmnt and papers upon which it was based, including summons and complaint, when?

Answer 252

w/in 10 days of granting the order

Question 253

in event order of attachment is granted before service is made, summons and complaint MUST be served when?

Answer 253

within 60 days, subject to extension upon application to the ct upon good cause shown

Question 254

what is a preliminary injunction ?

Answer 254

ct order seeking to safeguard rights asserted by pl in pending action or special proceeding to preserve status quo till case can be fully adjudicated on merits

Question 255

on what grounds may preliminary injunctive relief be granted?

Answer 255

def threatens to harm pl's rts in subject of action and such harm could render judgment ineffectual.
pl seeks judgment restraining def from injurious conduct that would injure pl if committed during course of action.

Question 256

on what grounds may preliminary injunctive relief NOT be granted?

Answer 256

in aciton seeking solely money damages

Question 257

procedure for getting preliminary injunction is what?

Answer 257

motion in pending action which MUST be made on notice to def.
notice of motion may be served w or after summons or at any time before final judgment

Question 258

supporting affidavits and other evidence for preliminary injunction MUST show what?

Answer 258

underlying action falls w/in one of grounds for preliminary injunction specified in CPLR 6301 / 6312.

Question 259

in addition to specified statutory requirements for preliminary injunction, cts require what?

Answer 259

showing of likelihood of success on merits of action.
threat of irreparable injury.
AND
balance of equities in pl’s favor.

Question 260

before getting preliminary injunction, pl has to submit what?

Answer 260

undertaking in amt set by ct so that if it is finally determined that pl was NOT entitled to such relief, he will pay def ALL damages and costs which were sustained by reason of injunction

Question 261

what is a temporary restraining order?

Answer 261

provides immediate injunctive relief while ct determines motion for preliminary injunction.

Question 262

obtain temporary restraining order how?

Answer 262

without notice.
pl MUST demonstrate that immediate and irreparable injury / loss / damages will result UNLESS def is restrained before a hearing on motion for preliminary injunction can be held.

Question 263

undertaking necessary for temporary restraining order?

Answer 263

discretionary w ct

Question 264

notice of pendency may filed when?

Answer 264

in action in which judgment demanded would affect title to or possession use or enjoyment of REAL PROPERTY.

Question 265

what is a notice of pendency?

Answer 265

prevents potential transferee or mortgagee of property from acquiring status of innocent purchaser for value while action is pending by placing CLOUD on marketability of def’s title for duration of lawsuit

Question 266

or on after commencement of action, notice of pendency is filed in office of clerk of county where?

Answer 266

property is located.
w/o notice to def or leave of ct.
w/o undertaking.
before and after service of process.

Question 267

once notice of pendency is filed, summons MUST be served on def when?

Answer 267

w/in 30 days

Question 268

what is a motion to dismiss?

Answer 268

when a party may move for judgment dismissing 1 or more causes of action asserted ag the party

Question 269

how many grounds on which a party may move to dismiss a complaint / cause of action?

Answer 269

11

Question 270

party may move for judgment dismissing def on which ground?

Answer 270

def is NOT stated or has no merit

Question 271

motion to dismiss may be treated by ct after adequate notice to parties, as one for what?

Answer 271

summary judgment

Question 272

motion to dismuss cause of action to made before service of what is required

Answer 272

responsive pleading

Question 273

if def has 20 days to answer complaint and wishes to make pre answer motion to dismiss complaint under cplr 3211, MUST make motion when

Answer 273

within that time

Question 274

how many pre answer motions to dismiss may be made?

Answer 274

ONLY 1

Question 275

if def makes pre answer motion to dismiss, def may raise what?

Answer 275

any of 3211 ground to dismiss available to def

Question 276

if def makes pre answer motion and fails to include a def based upon lack of personal jurisdiction or lack of jurisdiction cplr 3211, where service was made under cplr 314 - service outside of NY, in certain in rem actions like matrimonial, or 315 - service by publication in such in rem actions, those defenses are what?

Answer 276

waived

Question 277

def based upon 1 of enumerated grounds in 3211 is waived when

Answer 277

not raised by pre answer motion or as defense in answer.
documentary evidence.
lack of legal capacity to sue.
another action pending.
defenses such as collateral estoppel. 
release.
res judicata.
statute of limitations.
statute of frauds.

Question 278

objection based upon lack of subject matter jurisdiction, failure to state cause of action, failure to join necessary party, may be raised when?

Answer 278

ANYTIME by motion
OR
in subsequent pleading

Question 279

these objections may be raised even if what?

Answer 279

pre answer motion was served and defense was not included and even if answer was served w/o raising defense

Question 280

objection that initial pleading was NOT properly served is waived when?

Answer 280

if having raised such objection in responsive pleading, objecting party doesnt move for judgment on such ground w/in 60 days after serving pleading

Question 281

service of notice of motion to dismiss a cause of action before responsive pleading is due extends time to serve responsive pleading till when?

Answer 281

10 days after service of notice of entry of order determining such motion

Question 282

on motion to dismiss pursuant to cplr 3211k, ct affords the pleading what?

Answer 282

a liberal construction and accepts all facts as alleged in pleading to be true, accords pl benefit of every possible favorable inference, and determines only whether facts as alleged fit w/in any cognizable legal theory

Question 283

party may move for summary judgment in what type of action?

Answer 283

ANY action

Question 284

earliest time for making of motion for summary judgment is?

Answer 284

joinder of issue / service of def’s answer

Question 285

latest time for making of motion for summary judgment is?

Answer 285

120 days following filing of note of issue

Question 286

ct may set earlier date but not earlier than how many days after filing of note of issue?

Answer 286

30 days

Question 287

ct can set aside time restriction and allow late summary judgment motion for what reason?

Answer 287

if good cause is shown

Question 288

good cause requires a showing of what?

Answer 288

good cause for delay in making the motion.

that the delay is non prejudicial.

Question 289

that the motion is __________ is NOT good cause that will permit a late filed motion to be heard

Answer 289

meritorious

Question 290

party seeking summary judgment MUST make prima facie showing of what?

Answer 290

entitlement to judgment as matter of law

Question 291

CPLR 3212 b requires that the moving party attach what?

Answer 291

a complete set of pleadings and submit affidavits made by 1 w knowledge of facts and all other available evidentiary proof in admissible form showing that there is NO defense to the cause of action or that the cause of action or defense has no merit.

Question 292

conclusory assertions or assertions and allegations based solely upon info and belief are sufficient or not to obtain summary judgment?

Answer 292

NOT

Question 293

attys affidavit as to facts is sufficient or not, if not based on personal knowledge?

Answer 293

NOT

Question 294

attys affidavit as to facts if based on personal knowledge is sufficient or not?

Answer 294

SUFFICIENT

Question 295

to defeat motion for summary judgment, opposing party MUST show what?

Answer 295

facts sufficient to require trial of any issue of fact

Question 296

ct may search record and if appears that any party other than moving party is entitled to summary judgement, ct may what?

Answer 296

grant such judgment w/o necessity of cross motion

Question 297

summary judgment is granted if what?

Answer 297

upon all papers and proof submitted, judgment is warranted for 1 side or other as matter of law

Question 298

any party may move to vacate what?

Answer 298

judgment / order upon grounds set forth in CPLR 5015, excusable default.
newly discoverable evidence.
fraud.
misrepresentation.
misconduct of adverse party.
lack of jurisdiction to render judgment/order.
reversal.
modification/vacatur of prior judgment / order upon which current judgment / order is based.

Question 299

if ground is party’s excusable default, there is a ____ time limitation for making motion

Answer 299

1 year

Question 300

application to vacate default judgment on ground of excusable default requires what?

Answer 300

excuse for default and affidavit of merits demonstrating meritorious defense

Question 301

motions to vacate on other grounds MUST be made when?

Answer 301

w/in reasonable time

Question 302

ct may vacate judgment / order upon such terms as may be what?

Answer 302

just.

empowering the ct to impose conditions when it vacates a judgment / order.

Question 303

motion requires what?
motion papers.
motion to request for judicial intervention.
motion of affirmation of good faith.

Answer 303

notice of motion specifying time and place of motion.
papers on which it is based.
relief sought.
ground upon which movant believes itself entitled to relief.

Question 304

time and place of hearing of motion can be set when?
motion papers.
motion to request for judicial intervention.
motion of affirmation of good faith.

Answer 304

AFTER movant has filed request for judicial intervention + judge has been assigned to action.

Question 305

if motion pertains to disclosure or a bill of particulars, MUST contain what?
motion papers.
motion to request for judicial intervention.
motion of affirmation of good faith.

Answer 305

affirmation that prior to making motion counsel has conferred w opposing party’s counsel in good faith effort to resolve issues raised by motion

Question 306

general right to disclosure extends to all matters which are what?

Answer 306

material and necessary in prosecution or defense of action regardless of burden of proof

Question 307

disclosure is obtainable from whom?

Answer 307

any party.
officer.
director.
member.
agent.
employee of party.

Question 308

disclosure from nonparty is obtainable if what?

Answer 308

person is about to depart from state or is outsdie state, residing more than 100 miles from place of trial.
too sick or infirm to attend trial.
is treating doctor.
is trial expert of party demanding disclosure.

Question 309

disclosure from nonparty MUST be when?

Answer 309

upon notice stating circumstances / reasons such disclosure is sought or required

Question 310

subpoena requires what?

Answer 310

attendance of nonparty witness

Question 311

subpoena is for what purpose?

Answer 311

give testimony

Question 312

subpoena duces tecum requires what?

Answer 312

nonparty’s productions of documents

Question 313

subpoenas may be issued by whom?

Answer 313

clerk of ct.
judge where there is no clerk.
atty of record of any party to action / special proceeding / administrative proceeding / arbitration.
others.

Question 314

federal practice requires clerk to issue what?

Answer 314

subpoena

Question 315

persons and entities outside of NY are or arent subject to subpoena power of NY ct?

Answer 315

NOT

Question 316

what is immune from disclosure ?

Answer 316

privileged matter/ absolute immunity.
work product of atty / absolute immunity.
material prepared for litigation / conditional immunity - only upon showing that party seeking discovery has substl need of materials in preparation of case and is unable without undue hardship to obtain substl equivalent by other means

Question 317

upon request, each party MUST identify whom?

Answer 317

each person whom party expects to call as expert witness at trial and disclose in reasonable detail:
the subject matter on which each expert is expected to testify.
substance of facts and opinions on which each expert is expected to testify.
qualifications of each expert witness.
summary of grounds for each expert’s opinion.

Question 318

expert’s report need NOT be disclosed nor may a deposition of the expert be taken in absence of what?

Answer 318

ct order issued upon showing of special circumstances and subject to such restrictions and provisions as ct deems appropriate.

Question 319

party w/o ct order may depose person authorized to practice what?

Answer 319

medicine.
dentistry.
podiatry.
who is the party’s treating / retained expert.
in which case the other party is entitled to full disclosure regarding that expert.

Question 320

special rules apply to experts in

Answer 320

medical / dental / podiatric MALPRACTICE ACTIONS

Question 321

any party may obtain a copy of their own what?

Answer 321

sttmt

Question 322

party may obtain discovery of existence and contents of what type of agreement?

Answer 322

any insurance agreement under which any person carrying on an insurance business may be liable to satisfy part or all of judgment which may be entered in action or indemnify or reimburse for payments made to satisfy judgment.
info concerning insurance agreement is NOT by reason of disclosure admissible in evidence at trial.

Question 323

written accident reports prepared in regular course of business operations or practices of any person/ firm / corp / association / other public or private entity MUST be what?

Answer 323

disclosed.
UNLESS prepared by police / peace officer for criminal investigation or prosecution and disclosure would interfere w criminal investigation / prosecution

Question 324

party MUST amend OR supplement response previously given to request for disclosure when?

Answer 324

promptly, upon party’s thereafter obtaining info that response was incorrect or incomplete when made OR
that response though correct and complete when made, no longer is correct and complete AND
circumstances are such that a failure to amend OR supplement response would be materially misleading

Question 325

party MAY obtain full disclosure of what?

Answer 325

films
photographs
video tapes
audio tapes
transcripts
memoranda thereof
involving another party.
all portions of material, including out takes, not just portions party intends to use.

Question 326

although CPLR doesnt specifically address discovery of electronically stored info = ESI, e discovery is generally what?

Answer 326

permissible.

material and necessary requirement contained in CLPR 3101 applies to ESI .

Question 327

rules of commercial division of sup ct and NY uniform rules for trial cts specifically contemplate discovery of ESI in an action and contain list of relevant factors in determining what?

Answer 327

method and scope of electronic discovery

Question 328

factors in determining method and scope of electronic discovery include what?

Answer 328

identifying potential types of ESI and relevant time frame.
manner in which ESI is maintained .
whether it is reasonably accessible.
implementing preservation plan for relevant ESI.
scope and form of production.
identification of privileged or confidential ESI.
anticipated cost and burden of data recovery and proposed allocation of such cost.
ny codes rules and regulations

Question 329

some cts and bar associations have provided working guidelines for discovery of what?

Answer 329

ESI - guidelines for discovery of electronically stored information,
best practices in e discovery in NYS and federal cts,
report of e discovery committee of commercial and federal litigation section of NYS bar association

Question 330

scope of discovery may include info from social media websites such as?

Answer 330

fb

Question 331

party may NOT prevent disclosure of social media data by employing what?

Answer 331

privacy settings or curating materials on public portion of acct

Question 332

requests for social media data should be what?

Answer 332

tailored to nature of controversy at issue and limited in time, as appropriate to specific circumstances of case

Question 333

it is permitted for any party or non party from whom discovery is sought to move for what?

Answer 333

a protective order denying / limiting / conditioning / regulating use of disclosure device to prevent unreasonable annoyance / expenses /harassment / disadvantage / other prejudice

Question 334

disclosure may be obtained w/o leave of ct by 1/more of these devices:

Answer 334

deposition.
interrogatory.
demand for addresses.
discovery and inspection of docs / property.
physical and mental examinations.
requests for admission.

Question 335

any party in any action may serve upon other party written interrogatories subject to which 2 limitations?

Answer 335

interrogatories CANNOT be used if bill of particulars is demanded of same party.
in action seeking damages for personal injury, property damage, wrongful death, predicated solely on cause of action for negligence, interrogatories CANNOT be used w/o leave of ct if deposition is conducted of same party.

Question 336

special interrogatory rules apply in which types of actions?

Answer 336

matrimonial

Question 337

special proceeding is used to establish what?

Answer 337

rt OR enforce obligation in civil matter in expedited fashion.

Question 338

statutory authorization MUST exist for use of what?

Answer 338

special proceeding

Question 339

most common special proceedings are?

Answer 339

proceedings ag a body OR officer
CPLR ART 78 and
first application arising out of arbitrable controversy

Question 340

party initiating special proceeding is the

Answer 340

petitioner

Question 341

adversary in special proceeding is the

Answer 341

respondent

Question 342

in special proceeding, leave of court is required for?

Answer 342

joining any other parties.
any additional pleadings other than 
PETITION
ANSWER
REPLY

Question 343

commencement of special proceeding requires what?

Answer 343

petition and
notice of petition
OR
order to show cause

Question 344

what is a notice of petition

Answer 344

serves to notify respondent of time and place of return date on petition.
identifies affidavits, if any, that are being submitted in support of the petition

Question 345

alternative to notice of petition

Answer 345

order to show case

Question 346

what is an order to show cause?

Answer 346

judicial order obtained ex parte that specifies date and place of hearing

Question 347

respondent may raise an objection in point of law

Answer 347

a defense that can produce summary dismissal of proceeding, either in answer or in motion to dismiss made within time allowed for answer

Question 348

pretrial disclosure is generally NOT available without what?

Answer 348

leave of ct.

EXCEPT for notice to admit under CPLR 3123 / CPLR 408.

Question 349

ART 78 of CPLR governs what

Answer 349

procedure for judicial review of matters that were recognized at common law under prerogative
writs of certiorari
writs of mandamus
writs of prohibition

Question 350

art 78 is the vehicle for judicial review of what?

Answer 350

most administrative action in NY

Question 351

determination sought to be reviewed MUST be what?

Answer 351

final.

Question 352

petitioner MUST exhaust his what before seeking judicial relief?

Answer 352

administrative remedies

Question 353

CPLR 7803 contains list of issued that may be raised in what type of proceeding?

Answer 353

ART 78

Question 354

issued that may be raised in ART 78 proceeding

Answer 354

whether body / officer failed to perform duty enjoined by law.
whether body/officer proceeded/ is proceeding / is about to proceed w/o / in excess of jurisdiction.
whether determination was made in violation of lawful procedure/ was affected by error of law/ was arbitrary and capricious / an abuse of discretion.
whether determination made as result of hearing held, at which evidence was taken, pursuant to direction by law is on entire record supported by substl evidence.

Question 355

ART 78 proceeding is a special proceeding and is governed by procedures of?

Answer 355

CPLR ART 4, unless inconsistent provisions are found in ART 78

Question 356

ART 78 proceeding MUST be commenced where?

Answer 356

sup ct

Question 357

ART 78 proceeding commenced by filing what?

Answer 357

petition w clerk of ct of county in which proceeding is commenced

Question 358

statute of limitations for ART 78 proceeding is?

Answer 358

4 MONTHS after determination to review becomes final and binding upon petitioner unless shorter time is provided in law authorizing proceeding

Question 359

petition and answer in ART 78 proceeding MUST be what?

Answer 359

verified

Question 360

art 78 proceeding may be accompanied by what?

Answer 360

affidavits.

other written proof.

Question 361

answer to art 78 MUST state what

Answer 361

facts showing grounds for respondent’s action of which petitioner complains.

Question 362

what MUST be filed w the answer / art 78?

Answer 362

certified transcript of record of proceedings being challenged by petitioner

Question 363

affidavits or other written proof may be submitted as what?

Answer 363

evidentiary support for respondent’s position / art 78

Question 364

reply MUST be served in response to what in art 78?

Answer 364

any new matter raised in answer

Question 365

art 78 objections in point of law MAY be raised where?

Answer 365

either in answer or in motion to dismiss made within time allowed for answer

Question 366

on the return date of petition in art 78 proceeding, ct is to dispose of case as it woud what?

Answer 366

a motion for summary judgment

Question 367

if pleadings, affidavits, other written proof submitted by parties raise NO triable issue of fact, ct should decide the case how?

Answer 367

on the papers
AND
grant judgment as matter of law for prevailing party

Question 368

if triable issue of fact is raised, ct shall what?

Answer 368

try it

Question 369

art 78 proceedings commenced in sup ct that challenge whether agency’s determination, made as result of hearing held at which evidence was taken, was supported by substl evidence are what?

Answer 369

transferred to appellate division for resolution

Question 370

alternative dispute resolution:

what is arbitration?

Answer 370

procedure for resolving dispute by referring it to an impartial arbitrator / panel of arbitrators , chosen by parties to hear evidence and arguments from each side and then decide the outcome

Question 371

arbitration is less formal than what?

Answer 371

a trial.

may be binding OR nonbinding

Question 372

written agreements to submit controversy to arbitration are enforceable and will be enforced by the cts without regard to what?

Answer 372

merits of underlying claim / CPLR 7501

Question 373

party seeking to resist arbitration may do so only upon which grounds?

Answer 373

whether valid agreement to arbitrate was made.
whether any conditions precedent in agreement have been complied with.
whether claim is barred by statute of limitations.

Question 374

in absence of 1 of 3 enumerated defenses to arbitration, ct shall direct parties to what?

Answer 374

arbitrate

Question 375

cts are expressly prohibited under cplr 7501 from determining whether a claim sought to be arbitrated is what?

Answer 375

tenable, or otherwise passing upon merits of dispute

Question 376

special proceeding is used to bring before the ct the first application arising out of arbitrable controversy which is NOT made by motion in what?

Answer 376

related pending action

Question 377

how does a party initiate arbitration?

Answer 377

by serving upon other party a demand for arbitration or notice of intention to arbitrate complying w cplr 7503 OR by applying to ct for order compelling arbitration

Question 378

party wishing to resist arbitration may apply to what?

Answer 378

stay arbitration upon any of 3 enumerated defenses and if party has been served w demand to arbitrate or notice of intent to arbitrate compliant w cplr 7503, opposing party MUST timely move for stay raising said grounds or they are waived, except that a limitations defense may still be asserted before the arbitrator, who has discretion whether or not to apply bar.

Question 379

if limitations defense is decided by arbitrator, it cannot be later asserted as a basis to what?

Answer 379

vacate or modify an award

Question 380

if demand for arbitration fails to comply w formalities of cplr 7503 and aggrieved party didnt participate in arbitration, said defenses are what?

Answer 380

NOT waived and can still be raised in motion to vacate award

Question 381

provisiional remedies of attachment and preliminary injuction are available in conection with what ?

Answer 381

pending arbitration.
but ONLY upon ground that award to which applicant may be entitled may be rendered ineffectual without such provisional relief

Question 382

arbitrator MUST be what before hearing a dispute?

Answer 382

sworn

Question 383

arbitration parties are afforded rights - which?

Answer 383

right to be heard.
right to present evidence.
right to cross examine witnesses.

Question 384

arbitrators are NOT bound by which rules?

Answer 384

rules of evidence that apply in judicial proceedings

Question 385

in arbitration, each party has a non waivable right to be what?

Answer 385

represented by counsel throughout arbitration proceeding

Question 386

application to confirm award, if desired, MUST be made when?

Answer 386

within 1 year after delivery of award to moving party.

Question 387

application to vate or modify award MUST be made when?

Answer 387

within 90 days after delivery to moving party

Question 388

judicial review of arbitration awards is extremely limited and an award will NOT be vacated for what?

Answer 388

arbitrator’s errors of law and fact

Question 389

cplr 7511 governs grounds for what?

Answer 389

moving to vacate or modify arbitration award.

Question 390

where aggrieved party participated in arbitration or was served w notice of intention to arbitrate and was prejudiced by particular impropriety, there are 4 narrow grounds for vacating arbitration award:

Answer 390

misconduct.
bias.
excess of power.
procedural defects.

Question 391

if aggrieved party didnt participate in arbitration, was not served w notice of intention to arbitrate, or notice did not comply w cplr 7503, grounds for vacatur include what?

Answer 391

ALL those mentioned above and added defenses of non arbitrability, noncompliance w arbitration agreement and statute of limitations.

Question 392

3 grounds for modification of award pursuant to cplr 7511:

Answer 392

miscalculation of figures.
mistake in description of person.
mistake in description of things.
mistake in description of property.
determination of matters not within submission to arbitrate.
imperfection in matters of form not affecting the merits.

Question 393

upon vacating an award, ct may order what?

Answer 393

rehearing

Question 394

what is mediation?

Answer 394

form ofalternative dispute resolution used to resolve disputes bw 2 or more parties

Question 395

3rd party neutral mediator in mediation does NOT what?

Answer 395

decide the case.

he assists the parties to reach a mutually acceptable agreement

Question 396

mediation may be inappropriate if what?

Answer 396

1 party is unwilling to compromise or has a significant advantage in power / control over the other party, such as if parties have history of abuse

Question 397

mediation is ____ & ____

Answer 397

private and confidential

Question 398

mediation is less formal than what?

Answer 398

a trial.

it allows parties to communicate freely and participate fully in process

Question 399

mediation is less expensive than what?

Answer 399

litigation

Question 400

other forms of alternative dispute resolution

Answer 400

neutral evaluation.
collaborative law.
summary jury trials.

Question 401

what is neutral evaluation?

Answer 401

parties present their case to an evaluator who is often an expert in subject matter in dispute

Question 402

what does an evaluator do?

Answer 402

give opinion of strengths and weaknesses of each party’s evidence and arguments and offers an opinion of the likely outcome in ct

Question 403

what is collaborative law?

Answer 403

legal process enabling married couples who have decided to divorce, a way to do so in a cost efficient manner w/o going to ct, while retaining professional guidance of their own atty.
couples bind themselves to process and disqualify their respective lawyers in event either party decides to go to ct

Question 404

what is a summary jury trial?

Answer 404

permits adversaries to present their case in an abbreviated form to a mock jury which reaches a verdict that is advisory only, unless parties agree to make it binding. it gives litigants preview of potential verdict should the case go to trial

Question 405

in order to proceed to a trial in civil action or inquest in special proceeding, party MUST file what?

Answer 405

note of issue + certificate of readiness w clerk of ct.
pay required fee.
serve docs on all parties.

Question 406

by filing a note of issue, party is respresenting to ct that what?

Answer 406

discovery is complete.

case is ready for trial.

Question 407

issues of fact on causes of action for money ONLY are what?

Answer 407

triable by jury, unless jury trial is waived.

Question 408

any party may demand what?

Answer 408

trial by jury, by serving upon all parties and filing note of issue containing demand for trial by jury

Question 409

any party served w note of issue NOT containing the demand may demand a trial by jury how?

Answer 409

by serving upon each party a demand for trial by jury and filingsuch demand in the office where the note of issue was filed w/in 15 days after service of the note of issue

Question 410

if no party demands a trial by jury, rt to trial by jury is deemed what?

Answer 410

waived by all parties

Question 411

jury in civil case MUST consist of how many?

Answer 411

6

Question 412

verdict in civil case MUST be rendered by not less than?

Answer 412

5/6 of jurors constituting jury

Question 413

each party has rt to interpose what?

Answer 413

peremptory challenges and challenges for cause

Question 414

what is a peremptory challenge?

Answer 414

objection to prospective juror for which no reason need be assigned.
limited in number.
cannot be used to exclude juror for discriminatory reasons.

Question 415

what is a challenge for cause?

Answer 415

may be made as often as necessary.

objection that a prospective juror is unable to be impartial for particular reason.

Question 416

lawyers may stipulate to excuse juror challenged for cause or the challenge is decided by whom?

Answer 416

the ct

Question 417

grounds for challenge for cause of juror not impartial?

Answer 417

juror is in employ of a party to the action.
party to action is a corp that juror is a shareholder or stockholder therein.
in damages to person/property action, in which juror is a shareholder, stockholder, director, officer, employee, r in any manner interested in insurance co issuing policies for protection ag liability for damages for injury to persons / property.

Question 418

at time of jury selection, 1 / more alternative jurors are chosen to participate in what?

Answer 418

trial to same extent as regular juror and serves until submission of the case to jury.
when case is submitted, ct may retain alternate jurors to ensure availability if regular juror becomes unable to perform duties of juror, or may dismiss alternate jurors.

Question 419

appeal from final judgment brings what up for review?

Answer 419

non final judgment / order which necessarily affects final judgment.
incidental orders that dont have impact on final judgment are excluded.
all incidental rulings made at trial, evidentiary rulings, provided appellant objected / there was no opportunity to object.

Question 420

court of appeals scope

Answer 420

limited to review of QUESTIONS OF LAW,

Question 421

intermediate appellate ct scope

Answer 421

limited to review of QUESTIONS OF FACT + LAW

Question 422

times w/in which to take an appeal are ___ & ____

Answer 422

mandatory and strictly enforced

Question 423

appeal as of rt MUST be taken when?

Answer 423

w/in 30 days after service by party upon appellant of copy of judgment / order appealed from and written notice of its entry

Question 424

motion for permission to appeal MUST be made when?

Answer 424

w/in 30 days computed from date of service by party upon person seeking to leave appeal of copy of judgment / order to be appealed from and written notice of its entry

Question 425

where serviceis made by mail / overnight delivery service, ___ additional days are added to prescribed period

Answer 425

5

Question 426

an appeal is taken how?

Answer 426

by serving on adverse party a notice of appeal and filing it in office where judgment / order of ct of original instance is entered

Question 427

notice of appeal MUST contain what?

Answer 427

name of party taking the appeal.
judgement / order appealed from.
ct to which appeal is taken.

Question 428

appeal may be taken to ct of appeals how?

Answer 428

AS OF RIGHT from any order of appellate division that finally determines action originating in sup ct / county ct / surrogate ct / family ct / ct of claims / admin agency/ where there is dissent by at least 2 justices on QUESTION OF LAW

Question 429

appeal as of rt to ct of appeals is also available from what?

Answer 429

appellate division order that finally determines action where there is directly involved construction of NY or FEDERAL - CONSTITUTIONS
or
that finally determines actionwhere only question involved on appeal is constl validity of NY / FED statute.

Question 430

appeal may be taken to ct of appeals how

Answer 430

by permission of appellate division
OR
by permission of ct of appeals upon REFUSAL by appellate division
OR
upon direct application to ct of appeals, from any order of appellate division that finally determines action originating in sup ct / county ct / surrogate ct / family ct / ct of claims / admin agency

Question 431

final and non final judgements and intermediate orders are what?

Answer 431

APPEALABLE as of RIGHT to

appellate division if non final order results from motion made on notice