CPLR 2024 V1 PDF

CIVIL PRACTICE LAW & RULES  CIVIL PRACTICE LAW & RULES ARTICLE 2 - LIMITATIONS OF TIME 201 - Application of Article No court shall extend the time limited by law for the commencement of an action. A written agreement can lessen the time allowed by law...

CIVIL PRACTICE LAW & RULES  CIVIL PRACTICE LAW & RULES ARTICLE 2 - LIMITATIONS OF TIME 201 - Application of Article No court shall extend the time limited by law for the commencement of an action. A written agreement can lessen the time allowed by law to bring an action 202 - Cause of Action Accruing Without the State lf an action commenced due to a cause outside of the state, such action must comply with the limitations of time here in this state OR the state where the action occurred 203 - Method of Computing Periods of limitation+ The time within which an action must be commenced, shall be computed from the time the cause of action accrued to the time the claim is interposed An action is commenced by service when: 1. The Summons is served upon the defendant 2. The first publication against the defendant is made pursuant to court order and publication is completed 3. An order for a provisional remedy is granted provided defendant is served by other methods or first publication made within THIRTY (30) DAYS, or the defendant dies within THIRTY (30) DAYS after the order is granted and before the summons is served 4. An order of attachment is granted 5. The Summons is delivered to the sheriff in a county outside the city of New York or filed with the County Clerk within the city of New York, in which case the plaintiff receives an automatic SIXTY (60) DAY extension beyond the normal statutory period for service upon the defendant, publication or service upon the executor upon the death of the defendant 6. For actions commenced in a court not of record, the summons is delivered for service upon the defendant to any officer authorized to serve it where the defendant resides is employed or does business When an action is commenced by filing: a claim is interposed against a defendant when such action is actually commenced A defense or counterclaim is interposed when the pleading containing it is served. This differs from an amended pleading which is considered interposed against a defendant at the time the original pleading was interposed CPLR - 1  When calculating the time with which an action must be commenced, it is computed from the time when the facts were discovered or could have been discovered with reasonable diligence. With the exception of Medical, Dental or Podiatric Malpractice (CPLR 214-a), the action must be commenced within TWO (2) YEARS of the discovery of the facts or the period otherwise provided (as you will soon see), whichever is longer (Bard) In medical, dental or podiatric malpractice cases where the plaintiff alleges that the defendant negligently failed to diagnose cancer or malignant tumor, the statute of limitations does not begin to run until the later of either: when the person knows or reasonably should have known of the alleged negligence and that it caused injury. Such action shall be commenced no later than SEVEN (7) YEARS or the date of the last treatment where there is continuous treatment for such injury, illness or condition. A party cannot unilaterally waive, postpone, cancel, toll, revive, or reset, or extend the statute of limitations for a cause of action on a bond or note, the payment of which is secured by a mortgage upon real property, or upon a bond or note and mortgage so secured, or upon a mortgage of real property, or any interest that has accrued 204 - Stay of commencement of action; demand for arbitration Temporary stoppage of lawsuit. Time of Stay is not calculated in the SOL When the commencement of an action is stayed by a court, the duration of the stay is not part of the time that the action must be commenced When a demand to arbitrate is filed, the time awaiting the determination on such demand is not part of the time with which the action must be commenced. The time for the action to be commenced shall not be extended beyond ONE (1) YEAR by this provision after such final determination 205 - Termination of action+ When an action is terminated, the plaintiff has a right to file a new action upon the same occurrences within SIX (6) MONTHS even though the statute of limitations may have expired, unless the action was terminated by: 1. Voluntary Discontinuance 2. Failure to obtain personal jurisdiction 3. Dismissal for failure to prosecute 4. Final judgment upon the merits CPLR - 2  (Bard) If a defendant serves an answer in a lawsuit and the lawsuit is terminated, if the plaintiff re-commences the action, the defendant can assert the same causes of action or defenses in a new lawsuit against the same plaintiff if the causes of action or defenses were timely asserted in the prior lawsuit. This section also applies to a proceeding brought under the workers' compensation law 205A - Termination of certain actions related to real property If an action upon a bond or note, the payment of which is secured by a mortgage upon real property, or upon a bond or note and mortgage so secured, or upon a mortgage of real property, or any interest therein is timely commenced and is terminated in any manner other than: A voluntary discontinuance, A failure to obtain personal jurisdiction over the defendant, A dismissal of the complaint for any form of neglect, {including, but not limited to failure to strike out pleadings or parts thereof after order, default, Want of prosecution, case abandonment,} For violation of any court rules or individual part rules, For failure to comply with any court scheduling orders, or By default, due to nonappearance for conference or at a calendar call, Or by failure to timely submit any order or judgment, or Upon a final judgment upon the merits, the original plaintiff, or upon death, his or her executor or administrator, may commence a new action upon the same transaction(s) or occurrence(s) within six months following the termination, provided that the new action would have been timely commenced within the applicable limitations period prescribed by law at the time of the commencement of the prior action and that service upon the original defendant is completed within such six-month period. a successor in interest or an assignee of the original plaintiff shall not be permitted to commence the new action, unless pleading and proving that such assignee is acting on behalf of the original plaintiff; ONE SIX-MONTH extension may be granted 206 - Special situation+ When a demand is necessary to entitle a person to commence an action, the time to commence the action is computed from the time when the right to make the demand is complete. I.E Time for SOL starts (accrual) when the Right to make the demand is complete. Time for SOL starts (accrual) when the Right to make the demand is complete. CPLR - 3  When a person is required to make a demand upon a potential defendant in order to entitle the person to commence an action, the time from which the action must be commence will begin to run when the right to make the demand is complete. If a judgment is entered following misconduct on an agent, the SOL on an action to recover damages shall begin to run from the time when the action was finally determined. Except: o Where an injury results from the representation by a person that he is an agent with authority to execute a contract in behalf of a principal, the time within which an action to recover damages for breach of warranty of authority must be commenced by the person injured against the purported agent shall be computed from the time the person injured discovered the facts constituting lack of authority. o In an action based upon breach of a covenant of seizin (God bless you! Seriously, meaning possession of land by freehold, because, why use plain language?) or against incumbrances, the time within which the action must be commenced shall be computed from an eviction o In an action based upon a mutual, open and current account, where there have been reciprocal demands between the parties, the time within which the action must be commenced shall be computed from the time of the last transaction in the account on either side. 207 - Defendant Absent from State or Under False Name When a defendant leaves the state, the time within which the action must be commenced shall be computed from the time he enters or returns to the state The statute is actually tolled (suspended) after a cause of action has accrued, when the defendant leaves the state for a period of FOUR (4) MONTHS or more or remains in the state under a false name Exceptions: o The person has an agent for service within the state o A foreign corporation has a person within the state who can be served o Personal jurisdiction can be obtained without personal delivery to the defendant within the state CPLR - 4 208 - Infancy/Insanity lf a person is unable to commence an action due to infancy or insanity the statute is tolled as follows: lf the normal time to commence the action is THREE (3) YEARS or more, then the time to bring an action is extended to THREE (3) YEARS after the "disability' ends o + 3 years from the end of the disability (Insanity or turning EIGHTEEN (18)) lf the normal time to commence the action is less than THREE (3) YEARS, then it is extended: o Until the disability ceases (person turns EIGHTEEN (18)) o The time with which an action must be commenced shall not be extended beyond TEN (10) YEARS with the exception of Medical, Dental or Podiatric malpractice This section shall not apply to an action to recover a penalty or forfeiture, or against a sheriff or other officer for an escape. Victims of sex crimes committed when victim was under 18+ Grants long extension for victims of sexual crimes that were committed prior to the victim’s EIGHTEENTH (18) birthday Extends the time to file until the victim’s FIFTY-FIFTH (55) Birthday. Also revived claims that expired under old SOL law. Claim can be filed not less than SIX (6) MONTHS after law went into effect, but not more than TWO AND A HALF (2 & ½) years after law was effective (214-g). 209 - War When a cause of action accrues in favor of a resident or non-resident of the state in a foreign country which the United States or an ally is at war, the time elapsed from the commencement of the war and the termination of hostilities is not part of the time with which the action must be commenced This also applies if an action cannot be commenced because any party is a noncitizen subject or citizen of a foreign country at war with the US or an ally; or where the person who can commence an action resides or sojourns in an enemy or enemy-occupied territory (as happens from time to time) 210 - Death of Claimant or Person Liable+ Upon the death of a claimant before the time has expired with which an action may have been taken, an action may be commenced by his representative within ONE (1) YEAR after his death CPLR - 5  lf the death is upon a person against whom a cause of action exists, the period of EIGHTEEN (18) MONTHS after the death, is not part of the time which an action may be commenced against his executor or administrator The time within which an executor or administrator can commence an action to recover personal property wrongfully taken after the death of the decedent but before letters are issued is computed from the time the letters are issued or from three years after the death, whichever event first occurs. Any other person entitled who was an infant or insane at time that cause of action accrued has TWO (2) YEARS after disability ends to sue. 211 - Actions to be Commenced Within twenty years On a bond - Action to recover principal and interest upon a written instrument On a money judgment - Presumed to be paid and satisfied at the expiration of TWENTY (20) YEARS from the time the party recovering it was first entitled to enforce it o Extended if debtor or his representative makes partial payment By the state or grantee of the state for Real property The default in payment pursuant to court order for the payment of Support, Alimony or Maintenance [TWENTY (20) years to enforce from default] o This is NOT retroactive to before the statute enactment A civil claim or cause of action to recover civil damages from a defendant by victim of Rape 1, 2, 3, Criminal sexual act 1, 2, 3, incest 2 (where the crime committed is rape 2 or criminal sexual act 2, criminal sexual act 2, Aggravated sexual abuse 2, or Course of sexual conduct against a child 1 212 - Actions to be commenced within ten or fifteen years - 10 or 15-years Statute of Limitations Possession necessary to recover Real property - RPAPL (TEN (10) YEARS) Annulment of Letters patent (TEN (10) YEARS) Redeem on a mortgage (TEN (10) YEARS) To recover under an affidavit of support of a NONCITIZEN TEN (10) YEARS) o HINT: NONCITIZEN = TEN LETTERS = TEN YEARS When a felon benefits from crime (TEN (10) YEARS) An action by a victim of sex trafficking, compelling prostitution, labor trafficking or aggravated labor trafficking, may be commenced within FIFTEEN (15) YEARS after such victimization occurs, but such FIFTEEN (15) YEAR period is tolled and won't begin to run during any period while the victim is still subject to such conduct CPLR - 6 213 - Actions to be Commenced Within SIX (6) YEARS Most common answer: IF YOU DON’T KNOW IT AND HAVE TO GUESS GO WITH SIX (6). SEX OFFENSES GO LONGER *KNOW THIS* Any action where a specific time period is not set by law Action on a contract Action on a sealed instrument Action on a Bond or note or mortgage secured by Real Property Action by state upon the misappropriation of public property Action based on mistake Action by corporation against a director, officer or stockholder o Or to procure a judgment on the ground of fraud, or to enforce a liability, penalty or forfeiture, or to recover damages for waste or for an injury to property or for an accounting in conjunction therewith. An action based upon fraud, although it can be the greater of the SIX (6) YEARS from the date of the cause of action or TWO (2) YEARS from the time the plaintiff discovered the fraud or could have discovered the fraud with reasonable diligence overcharge penalties for non-payment of rent An action by the attorney general for Fraudulent Practices In Respect to Stocks, Bonds and Other Securities or Repeated fraudulent or illegal acts in conducting or transacting business 213A - Residential rent overcharge No overcharge penalties or damages may be awarded for a period more than SIX (6) YEARS before the action is commenced or complaint is filed (see the simplified statute above in the six-year section) 213B - Action by a Victim of a Criminal Offense - SEVEN YEARS Here the general rule is an action against a convicted defendant for any loss or injury resulting from any crime they committed must be commenced within SEVEN (7) YEARS from the date of the crime Note that action by victim of conduct of certain sexual offenses was recently updated to TWENTY (20) YEARS CPLR - 7 213C - Action by victim of conduct constituting certain sexual offenses. A civil claim or cause of action to recover civil damages from a defendant by victim of the following offenses must be commenced within TWENTY (20) YEARS: Rape 1, 2, 3 Criminal sexual act 1, 2, 3 incest 1 or 2 (incest 2 where the crime committed is rape 2 or criminal sexual act 2), criminal sexual act 2, Aggravated sexual abuse 1, or Course of sexual conduct against a child in 1 (Again, this was also listed above for clarity) A criminal charge or conviction is not required to commence an action under this section 213D - Actions to be commenced within three years; medical debt. An action on a medical debt An action on a medical debt by a hospital or a healthcare professional shall be commenced within THREE (3) YEARS of treatment. 214 - Actions to be commenced within three years: for non-payment of money collected on execution; for penalty created by statute; to recover chattel; for injury to property; for personal injury; for malpractice other than medical, dental or podiatric malpractice; to annul a marriage on the ground of fraud+ The following actions must be commenced within THREE (3) YEARS: Action against a Sheriff or other Officer for the non-payment of money collected upon an execution Action to recover upon a liability, penalty or forfeiture Action to recover a chattel or damages for the taking of detaining of a chattel Action to recover damages to injury to property (not exposure to certain substances) Action to recover damages for personal injury (Not Medical, dental, podiatric or exposure to herbicides or toxic burn pits or against sheriff, coroner or constable; for escape of prisoner; for assault, battery, false imprisonment, malicious prosecution, libel or slander; for violation of right of privacy; for penalty given to informer; on arbitration award.) Action to recover damages for Malpractice (Not Medical, Dental, Podiatric) Action to annul a marriage on the ground of fraud Consumer Credit Transactions (214-I) Acton to recover medical debt (213-D) CPLR - 8 214A - Actions for Medical, Dental or Podiatric Malpractice To be commenced within TWO (2) YEARS and SIX (6) MONTHS of the act, omission or failure complained of, there is an exception, if you discover a foreign object in your body, you have ONE (1) YEAR to bring an action, start searching...lol For negligent failure to diagnose cancer, the plaintiff has TWO (2) YEARS AND SIX (6) MONTHS from when the person knows or should have known of the misdiagnosis to file a lawsuit, but no later than seven years from the date of the alleged negligence; or the date of the last treatment where there is continuous treatment for such injury, illness or condition. When an infant plaintiff is injured by malpractice, plaintiff will have the shorter of: TWO YEARS AND SIX MONTHS (2 & 6) from date of EIGHTEENTH (18) birthday, or TEN (10) YEARS from date cause of action accrued 214B - Action to Recover Damages from Exposure to Certain Herbicides This is for military people who served between 1962 and 1975 in lndo-China. Such action must commence within TWO (2) YEARS from the date of the discovery of injury or two years from the date the discovery of such injury should have taken place by reasonable diligence, whichever is later 214C - Certain Actions to be Commenced Within Three Years This section provides more detail to the standard three-year limitation for actions of personal injury, focusing on "exposure" i.e. THREE (3) YEARS from date of discovery or when the injury should have been discovered with due diligence, whichever is earlier: Personal injury caused by exposure to certain substances Where the discovery of the cause of the injury is alleged to have occurred less than FIVE (5) YEARS after discovery of the injury or when with reasonable diligence such injury should have been discovered whichever is earlier, an action may be commenced, or a claim filed within ONE (1) YEAR This is wild. Okay, maybe it’s not wild, but I love the quirkiness of some of the CPLR. Stump your friends with this one at least.: If an action is commenced after the periods listed above, the plaintiff must allege and prove that SCIENCE HAD NOT YET DISCOVERED a way to identify the alleged injury before the SOL ran out. Not applicable to any action for medical or dental malpractice. CPLR - 9 214D - Limitations of Certain Actions against Licensed Engineers and Architects+ Any person asserting a claim for personal injury, death or damage against an architect, engineer, land surveyor etc., must FIRST give written notice of such claim NINETY (90) DAYS prior to filing the claim if the cause of action occurred more than TEN (10) YEARS prior. The notice of claim shall be filed with the court along with proof of service within THIRTY (30) DAYS of service of the notice of claim If TEN (10) YEARS before —--> NINETY (90) DAYS prior to claim must serve notice of claim —-> then THIRTY (30) DAYS to file notice of claim & proof of service with court Service of such written notice of claim may be made by any of the methods permitted for personal service of a summons upon a natural person, partnership or professional corporation. Service of a notice of claim shall toll the SOL for ONE HUNDRED AND TWENTY (120) days after service 214E - Action to recover damages for personal injury caused by the infusion of blood resulting in the contraction of HIV and/or AIDS May be commenced within TWO (2) YEARS of the effective date of this section 214F - Action to Recover Damages for Personal injury Caused by Contact with or Exposure to Any Substance found within an Area Designated as a Superfund site An action to recover personal damages for injury caused by contact with or exposure to any substance or combination of substances contained within an area designated as a superfund site, may be commenced by the plaintiff within THREE (3) YEARS from discovery (or when it should have been discovered) [i.e. in accordance with 214-c], or within three years of such designation of such an area as a superfund site, whichever is latest 214G - Certain child sexual abuse cases This section outlines the revival of a period in which people who were the victims of certain sex crimes against children could commence an action which would otherwise be barred because of SOL or they had not filed a notice of claim or notice of intention to file a claim. The action must be commenced not earlier than SIX (6) MONTHS after, and not later than TWO (2) YEARS and six months after the effective date of this section. CPLR - 10  A dismissal of a previous action before this section was effective on grounds that it was beyond SOL or for failure to file a notice of claim or intention to file a claim shall not be grounds for dismissal of a revival action pursuant to this section. 214H - Certain actions by public water suppliers to recover damages for injury to property A public water supplier or wholesale water supplier can commence an action against any person for damages to property caused by a contaminant in a source of water supply within THREE (3) YEARS of the latest of the following events: Detection of the contaminant, The last wrongful act by any person whose conduct contributed to the presence of the contaminant, or The date the contaminant is last detected. Any civil claim or cause of action involving an emerging contaminant that was barred as of the effective date of this subdivision because the applicable period of limitation has expired is hereby revived and may be commenced and prosecuted provided such action, civil claim, or cause of action is commenced either before or within one (1) YEAR AND SIX (6) MONTHS following the effective date of this subdivision. 214I (1) - Certain actions arising out of consumer credit transactions to be commenced within three years. An action arising out of a consumer credit transaction where a purchaser, borrower or debtor is a defendant must be commenced within THREE (3) YEARS NOT Medical, dental or podiatric malpractice debt Payments, affirmations, or other activity on the debt after expiration do not revive or extend the SOL 214I (2) - Action to recover damages for personal injury caused by contact with or exposure to toxic burn pits THREE (3) YEARS from the date of discovery of the injury or when it should have been discovered with due diligence, whichever is later 214J - Certain sexual offense actions Similar to 214-G, this section revives (resets) the SOL which has expired for a claim or action brought against any party alleging intentional or negligent acts or omissions by a person for physical, psychological, or other injury or condition suffered as a result of conduct which would constitute a sexual offense (PL 130) CPLR - 11  or incest (PL 255.26 or 255.27) committed against such person who was EIGHTEEN (18) YEARS OF AGE OR OLDER The action thereon may be commenced not earlier than six months after, and not later than one year and six months after the effective date of this section A dismissal of a previous action before this section was effective on grounds that it was beyond SOL or for failure to file a notice of claim or intention to file a claim shall not be grounds for dismissal of a revival action pursuant to this section. 215 - Actions to be commenced within one year: against sheriff, coroner or constable; for escape of prisoner; for assault, battery, false imprisonment, malicious prosecution, libel or slander; for violation of right of privacy; for penalty given to informer; on arbitration award+ The following actions must be commenced within ONE (1) YEAR: An action against a sheriff, coroner, constable, or officer upon a liability incurred by him while doing an act within his official capacity (except non- pay of money from execution CPLR 214) An action against an officer for the escape of a prisoner An action to recover damages for assault, battery, false imprisonment, malicious prosecution, libel, slander, false words or violation of a right to privacy An action to enforce a penalty or forfeiture by a private person (the state has THREE (3) YEARS) An action upon an arbitration award An action to recover any overcharge of interest An action by a tenant to recover damages from the landlord An action against a defendant based upon the same occurrence from which a criminal action arises, the plaintiff has ONE (1) YEAR from the termination from the criminal action, exception is FIVE (5) YEARS if criminal action is for certain sexual offenses (notwithstanding that the time in which to commence such action has already expired or has less than a year remaining) An action to recover damages resulting from domestic violence shall be commenced within TWO (2) YEARS (notwithstanding that the time in which to commence such action has already expired or has less than a year remaining) 216 - Abbreviation of Period to One Year After Notice+ lf a claimant is given notice that another person is seeking recovery of money in excess of FIFTY (50) DOLLARS for the same claim, such claimant has ONE (1) YEAR to commence the action CPLR - 12 217 - Proceedings against a Body or Officer (Article 78 proceeding) Unless a shorter period is provided in the law, such proceeding must be commenced within FOUR (4) MONTHS after the determination to be reviewed becomes final or the respondent's refusal to perform its duty occurs Disability due to infancy or insanity extends the SOL to TWO (2) YEARS after such time 217A - Actions to be commenced within one year and ninety days+ Every action for damages or injury to real or personal property or wrongful death against any political subdivision of the state, public authority or other similar entity shall not be commenced unless a "notice of claim" has been served within the required time limit by the general municipal law (generally NINETY (90) DAYS). Except in an action for wrongful death, damages, injury, etc. upon such entity, shall not be commenced more than ONE (1) YEAR AND NINETY (90) DAYS after the cause of action has accrued or within the time period otherwise prescribed by any provision of law, whichever is longer. Actions in tort against municipalities (The following comes from General Business law which is referenced in the CPLR section) Notice of claim must be filed w municipality w/in NINETY (90) DAYS of accrual o Serve personally, or by registered or certified mail or by electronic means in cities of one million or more O After request, a supplemental claim shall be provided within FIFTEEN (15) DAYS Action cannot be brought until at least THIRTY (30) DAYS after filing notice of claim w/out payment Villages must be given written notice of dangerous/defective conditions of public ways, and given a reasonable time to correct condition 218 - Transitional Provisions ln general, the time with which to bring an action is governed by this article. lf a cause of action accrued before this article became effective, then the time to bring an action will be determined by the prior laws in effect or this article whichever is longer CPLR - 13 ARTICLE 3 - JURISDICTION, SERVICE, APPEARANCE AND CHOICE OF COURT 301 - Jurisdiction over persons, property or status A court may exercise such jurisdiction over persons, property, or status as might have been exercised heretofore. 302 - Personal jurisdiction by acts of non-domiciliaries+ A court can exercise personal jurisdiction over a non-domiciliary, or his executor or administrator when they: Transacts any business within the state, supplying goods or services Commits a tortious act within the state except for defamation of character Commits a tortious act outside the state causing injury to a person or property within the state, except for defamation of character Owns, uses or possesses any real property within the state A court can also have personal jurisdiction over a non-resident defendant in matrimonial actions or family court proceedings involving a demand for support, alimony or maintenance, this is in accordance with article 5-B of the FCA and 5-A of the DRL lf personal jurisdiction is obtained in accordance with this section, an appearance does not confer jurisdiction with regard to other causes of action 303 - Designation of attorney as agent for service+ lf a person commences an action in the state who is not subject to personal jurisdiction on other matters in the state then his attorney, or if there is not one, the clerk of the court is so designated as agent for service on such other matters When a defendant appears here solely under this section, such appearance does not constitute jurisdiction for other causes of action outside of this section. 304 - Method of Commencing Action or Special Proceeding **Know this: An action is commenced by the filing of a Summons and Complaint or Summons with Notice (see CPLR 2102)** A Special proceeding is commenced by the filing of a Petition alone **Where a court finds circumstances prevent the immediate filing, the SIGNING of an Order requiring subsequent filing in not less than FIVE (5) DAYS will begin the action** CPLR - 14  Hint: "Order" 5 letters = 5 Days Filing means: The delivery of the summons with notice, summons and complaint or petition to the clerk of the court in the county in which the action or special proceeding is brought At the time of filing the Clerk stamps the original and a copy, makes a record of the date of filing and returns a date stamped copy with index number for service, keeping the original. Such filing shall not be accepted unless any fee required has been paid. o Filing may be done by Fax or electronic means. lf by Fax, the clerk returns a date stamped copy of the first page A confirmation record by fax machine or computer with an affidavit is evidence of transmission Where filing is by electronic means, the clerk shall forthwith notify the filing party of the index number and the date and time of filing Also, can use same method when serving an attorney (2103) 305 - Summons, Supplemental Summons, Amendment A summons shall specify the basis of venue designated, the index number and the date of filing with the clerk of the court. A third-party summons shall also specify the date of filing of the third-party summons with the clerk of the court. lf an action arises out of a "Consumer Credit Transaction", then the words "Consumer Credit Transaction" must be prominently displayed. lt must also state the last known address of defendant and county where the consumer credit transaction took place Summons with Notice- When a complaint is not served with the summons, an attached notice must state the nature of the action, the relief sought and the amount of money (except medical malpractice). A complaint MUST eventually be filed Where a new party is joined in the action a SUPPLEMENTAL SUMMONS must be filed, with which the new party must answer. This can be done by court order, stipulation of all parties or as a matter of right (CPLR1003). AMENDED SUMMONS - At any time in its discretion, the court may allow a summons or proof of service of a summons to be amended as long as the rights of any party are not prejudiced CPLR - 15  The amendment of pleadings however may sometimes be amended by a party as of right without a court order, where the amendment of Summons requires court order Amended Summons can NOT add additional parties...Supplemental Summons does **Summonses are not pleadings** The only pleadings are: CAR - Complaint, Answer, and Reply (For Actions) PAR- Petition, Answer and Reply (For Special Proceedings) 306 - Proof of service Generally, proof shall contain the following information: Specify papers served Person served Date, Time and address where service made or place and manner of service if no address Personal delivery- description of person served For substituted service, it shall contain the dates, address, and times of attempted service Forms of proof: Sheriff or public officer served = Certificate of service Any other person served = Affidavit of service Signed acknowledgement of receipt of papers A writing admitting service 306A - Index number in an action or proceeding commenced in supreme or county court Upon the filing of an action or special proceeding in the Supreme or County Court, an index number shall be assigned and a fee paid. lf a new party joins the action they also will pay the filing fee but no new index number will be assigned Now this is odd: lf a person other than the plaintiff serves the Summons, obtained the index number and paid the fee, the clerk shall issue an order directing the plaintiff to pay such person within THIRTY (30) DAYS for the fee or the case may be dismissed without prejudice, upon application CPLR - 16 306B - Service of the summons and complaint, summons with notice, third-party summons and complaint, or petition with a notice of petition or order to show cause. Service of the summons and complaint summons with notice, third party summons with complaint or petition with notice of petition or order to show cause SHALL be made within ONE HUNDRED AND TWENTY (120) DAYS after the commencement of the action or proceeding. lf statute of limitations in a particular proceeding is 4 months or less then service must be complete within FIFTEEN (15) DAYS of the expiration of the statute. (Art.78 proceeding, election law, etc.) If Service is not made within these time periods, the court, UPON MOTION: Shall dismiss the action without prejudice as to that defendant, or Upon good cause shown in the interest of justice, extend the time for service (Eff. 1/1/12) 306C - Notice of Commencement of an Action for Personal lnjuries+ lf an individual has suffered personal injuries and is receiving medical assistance as provided for in the Social Services Law and is involved in litigation for these injuries, then within SIXTY (60) DAYS of service being complete, notice of the commencement of the action must be sent to the Social Services District or Department of Health within that County by certified mail, return receipt requested, or electronically Proof of sending such notice shall be filed with the court in accordance with CPLR 306 306D - Consumer credit transaction Notice Additional requirement to submit to the clerk a stamped, unsealed envelope addressed to the defendant with a notice outlining the consequences of not responding to the lawsuit, advice on seeking legal assistance and the basic information on the case itself The clerk promptly shall mail to the defendant the envelope containing the additional notice No default judgment based on the defendant's failure to answer shall be entered unless there has been compliance with this section, and at least TWENTY (20) DAYS have elapsed from the date of mailing by the clerk; or if the additional notice is returned to the court as undeliverable. Receipt of the notice does NOT replace proper service CPLR - 17 307 - Personal Service Upon the State+ Person service is made upon the state by delivering the summons to either the Assistant Attorney General at an office of the Attorney General or to the Attorney General within the state Personal service on a state officer sued in his official capacity is to deliver the summons to the state officer or the chief executive officer of such agency or designee of the agency OR by (mailing the summons by certified mail return receipt requested to one of the above stated persons AND by personal service on the assistant attorney-general at an office of the attorney-general or to the attorney-general within the state) Certified mail must bear the legend "URGENT LEGAL MAIL". Service by certified mail shall not be complete until the summons is received in a principal office of the agency and until personal service upon the assistant attorney-general at an office of the attorney-general or to the attorney-general within the state The chief executive officer of every such agency shall designate at least one person, in addition to himself or herself, to accept personal service on behalf of the agency. 308 - Personal service Upon Natural Person KNOW THIS SECTION IN AND OUT There are five basic methods of service on a natural person: 1. Personal delivery to the person named in the summons 2. SAD service (Upon a person of suitable age and discretion) 3. Personal delivery to the agent for service of the defendant 4. Nail and Mail 5. As the court upon motion directs - Ex. Service by publication Suitable Age and Discretion By delivering to someone of suitable age at the person's last known residence or actual place of business, dwelling or abode AND mailing the summons by first class mail to their last known residence or place of business bearing the legend "Personal and Confidential". Delivery and mailing must be made within TWENTY (20) DAYS of each other. Proof of service MUST be filed with the court (clerk) within TWENTY (20) DAYS of the latter of the delivery or mailing. Service is then complete TEN (10) DAYS after filing proof of Service REMEMBER 20-20-10 CPLR - 18  Substituted service- (Nail and Mail) This can be done when service cannot be made with due diligence by methods of Personal Delivery or SAD service. It involves affixing the summons to the actual place of business or usual abode and by mailing the summons to the last known residence or the actual place of business bearing the legend "Personal and confidential". Such affixing and mailing to be effected within TWENTY (20) DAYS of each other. Proof of service to be filed within TWENTY (20) DAYS of the latter. Service is complete TEN (10) DAYS thereafter Except: Service in a Matrimonial Action requires court order REMEMBER 20-20-10 Designation of agent for service-(as per CPLR 318) A person may be designated by a natural person, corporation or partnership as agent for service. The designation SHALL be in writing and executed in the same manner as a deed with the consent of the agent. The writing is to be filed in the office of the county clerk in which the principal resides or has his office. The designation will remain in effect for THREE (3) YEARS, unless revoked by filing a revocation, death etc. This type of service requires court order for Matrimonial action As the court upon motion directs Upon motion without notice if service has been unable to be effectuated by any other means, and due diligence has been demonstrated, other means of service may be attempted left to the court’s imagination, but generally service by Publication is ordered 309 - Personal Service Upon an infant, lncompetent or Conservatee In the case of an infant, made by personally serving the summons within the state upon the Parent, guardian or person having legal custody of the infant. lf the infant is married, then service upon the adult spouse with whom the infant resides. lf none are within the state, by serving upon any other person with whom the infant resides or is employed by. **If the infant is of the age of FOURTEEN (14) or over, then service must be made upon the infant as well, within the state.** Personal service upon a judicially declared incompetent is made by serving upon the committee appointed to manage the incompetent's affairs and upon the incompetent The court MAY dispense with the service upon the incompetent CPLR - 19  ln the case of conservatees, (now incapacitated persons), personal service is made upon the conservatee and the duly appointed conservator, as in the case of the incompetent, the court MAY dispense with the service upon the conservatee 310 - Partnership (similar to service on an individual) Service upon a partnership Is made by serving any one of the partners. Personal service within the state may also be made by serving the managing or general agent or person in charge of the office AND by mailing the summons to the partner to be served by First class mail to his or her last known residence or the place of business of the partnership. Proof of service must be filed within TWENTY (20) DAYS and service is complete TEN (10) DAYS thereafter. lf service cannot be made by the methods above, Nail and Mail can be done by affixing to the door of the partnership and by mailing to partners last known address or to business address. Lastly, service may be made upon any person designated by the partnership or designated in the county clerk’s office to receive service for the partnership; or as the court directs 310A - Personal Service Upon a limited Partnership Personal Service Upon a limited Partnership is made by serving personally the managing, general agent or general partner or any other person appointed to receive service by the partnership, or as the court directs. SERVE THE MOGG (He’s his own best friend): Managing Agent Other person appointed to receive service General Agent General Partner CPLR - 20 311 - Personal Service Upon a Corporation or Governmental Subdivision Personal service upon a domestic or foreign corporation is made by serving the summons upon: A MAC DOG A ASSISTANT CASHIER M MANAGING AGENT A ANY OTHER AGENT APPOINTED BY LAW C CASHIER D DIRECTOR O OFFICER G GENERAL AGENT **Don't fall for "stockholder'' as they try to trick you** Service upon a Governmental Subdivision Service: Upon City of NY - Corporation Counsel or any other authorize person designated to receive process in a writing filed in the county clerk’s office Any other city - Serve the mayor, comptroller, treasurer, counsel or clerk Upon a county - to the chair or clerk of the board of supervisors, clerk, attorney, or treasurer Upon a town - to the Supervisor or clerk Upon a village - Serve the mayor, clerk, or trustee Upon a school district - to a school officer Upon Park, sewage, or other District - any trustee or board Member As the court directs CPLR - 21 311A - Personal Service Upon a limited liability Company (Bard) Service of process on a limited liability company can be made by delivering a copy personally to any member, manager, agent, or other person designated by the limited liability company to receive process; or as the court directs. 312 - Personal Service Upon a Court, Board or Commission Service upon a court consisting of three or more judges may be made by delivering the summons to any one of them. Service upon a board or commission may be made in general by serving any member of the board or commission 312A - Personal service by mail. No other method need be attempted before using service by mail. No process server is needed. What is mailed to the defendant is the pleadings along with TWO (2) copies of the "Statement of service by mail" and "Acknowledgment of receipt", along with a return envelope with postage prepaid. lf the defendant is willing to accept such service he/she completes the acknowledgment and mails it back acknowledging service within THIRTY (30) DAYS of receipt **Service is complete on the date the signed acknowledgment of receipt is mailed or delivered to sender** The signed acknowledgment of receipt is proof of service The defendant must ANSWER the summons within TWENTY (20) DAYS after the date the signed acknowledgment of receipt is mailed or delivered to the sender The acknowledgement of receipt of service shall be subscribed and affirmed as true under penalties of perjury and shall have the same force and effect as an affidavit. If another method of service is attempted, the plaintiff must indicate in a notice to the defendant if service was previously attempted by mail Where the signed acknowledgement of receipt is not returned within THIRTY (30) DAYS after receipt of the documents mailed, the costs of the alternative method of service can be entered as a judgment against the defendant CPLR - 22 313 - Service without the state giving personal jurisdiction (Bard) A person domiciled in New York or subject to the jurisdiction of the New York courts can be served with a summons outside of New York in the same manner as service is made within New York. Service can be effectuated by any person authorized to make service within the state who is a resident of the state or by any person authorized to make service by the laws of the state, territory, possession or country in which service is made or by any duly qualified attorney, solicitor, barrister, or equivalent in such jurisdiction. 314 - Service Outside the State NOT Giving Personal Jurisdiction: Service may be made without the state by any person authorized by section 313 in the same manner as service is made within the state: In a matrimonial action In an action where the person's interest or lien upon specific real or personal property located in New York. This includes lawsuits seeking to exclude the person from the property, enforce, regulate, define, or limit their interest in the property, or otherwise affect the title to the property, including interpleaders. Where a levy upon property of the person to be served has been made within the state pursuant to an order of attachment or a chattel of such person has been seized in an action to recover a chattel. Example: If one of the spouses of a marriage is a domiciliary of the state, the marriage is deemed present within the state even though there may not be personaI jurisdiction over the other spouse. ln this instance the court cannot award alimony. This is jurisdiction over...the marriage only. 315 - Service by publication authorized The court, upon motion without notice, shall order service of a summons by publication in an action described in section 314 if service cannot be made by another prescribed method with due diligence CPLR - 23 316 - Service by publication Know this section well. It is RIPE for questions. RIPE, I say! The order of service by publication shall direct: First publication shall be made within THIRTY (30) DAYS of the order being granted The summons to be published together with notice to the defendant A brief statement to the nature of the action The relief and sum of money sought (EXCEPT for Medical Malpractice cases) If the action is to recover a judgment affecting title to real property, description of property Publish in TWO (2) newspapers, one of which in English, Once (1) a week for FOUR (4) consecutive weeks. or 2-1-4 Service is complete on the TWENTY-EIGHTH (28) day after the day of first publication For Matrimonials: ONE (1) English newspaper, ONCE (1) per week for THREE {3) consecutive weeks or 1-1-3 The summons, complaint, or summons and notice in an action for divorce or separation, order and papers on which the order was based shall be filed on or before the first day of publication. A copy of the summons and notice of publication must be mailed to the person to be served on or before the first day of publication unless the court dispenses with mailing. Service is complete on the TWENTY-FIRST (21) day after the day of FIRST (1) publication for Matrimonials 317 - Defense by person to whom summons not personally delivered+ A person who was NOT served by personal delivery, whom a default judgment was entered against, may move to vacate the default within ONE (1) YEAR after obtaining knowledge of the default, but in no event more than FIVE (5) YEARS after the entry of Judgment upon a finding of the court that he did not personally receive notice of the summons in time to defend and has a meritorious defense. This section does not apply to Matrimonial actions 318 - Designation of an Agent for Service Designation of an Agent for Service is made in writing and is executed and acknowledged in the same manner as a deed, with the consent of the agent CPLR - 24  endorsed thereon. It is filed in the office of the clerk of the county where the principal to be served resides or has their office. It is in effect for THREE (3) YEARS unless revoked or terminated The designation shall remain in effect for three years from such filing unless it has been revoked by the filing of a revocation, or by the death, judicial declaration of incompetency or legal termination of the agent or principal. 320 - DEFENDANT’S APPEARANCE+ An appearance by a party marks the official participation in the case by that person. All parties must appear in the case, or they will be in default. A person does not have to physically be present in the courtroom to officially appear in the case). A plaintiff appears by instituting an action, while a defendant appears by: Making a Motion - which extends time to answer Serving an Answer Serving a Notice of Appearance Hint: MAN (You must know this, ok man) Time for Appearance The time for appearance differs depending on how the defendant was served. Personal Delivery- If the papers were served by handing them directly to the defendant, the defendant has TWENTY (20) DAYS after service of the summons to appear. The time to appear is extended to THIRTY (30) DAYS after service is complete when: 1. Person being sued is an official of the state 2. Suing a natural person and service was accomplished by all methods of service except personal delivery. 3. Service by publication or through a designated agent under sections 314 or 315. 4. Person was served outside of NYS (313) Basically, all other forms of service besides personal delivery on a natural person within New York State (Bard) Generally, when a defendant appears in a lawsuit, it is considered the same as if they had been personally served with a summons. CPLR - 25  Where the defendant appears during the period of publication of a summons against him, the service by publication shall be deemed completed by the appearance. Neat. 321 - Attorneys Parties can have counsel or proceed Pro se However, infants, incompetents, and conservatees MUST have counsel **A Corporation OR voluntary association must appear by an attorney.** Any consent to change attorney must be signed by the retiring attorney and signed and acknowledged by the party. lt is then filed with the clerk of the court An attorney of record may withdraw as counsel upon MOTION ON NOTICE to the client, the opposing counsel and all other parties. **If because of death or other incapacity, a party's attorney becomes disabled or unable to act before judgment, leave of the court is required before any other step may be taken against that party unless he is given THIRTY (30) DAYS notice to appoint an attorney** Compare to CPLR 5574 Appeals (SIXTY (60) DAY extension) HINT: THIRTY FOR NEW ATTORNEY... HEY THAT RHYMES An attorney may appear on behalf of a party in a civil action or proceeding for limited purposes but must file a notice of limited scope appearance defining the purposes for which they are appearing and signed by such attorney. This is filed in addition to any self-represented appearance that the party may have already filed with the court Upon completion of the purpose, the attorney shall file a notice of completion of limited scope appearance which shall constitute the attorney's withdrawal from the action or proceeding Both the appearance and withdrawal are permitted following the above filings, unless directed by the court CPLR - 26 322 - Authority for Attorney Appearance in Real Property Actions An attorney representing a party in a real property action must demonstrate the authority to represent such person to the defendant Authority of non-resident defendant's attorney. The attorney for a non-resident defendant in an action affecting real property shall file with the clerk written authority for his appearance, executed and acknowledged in the form required to entitle a deed to be recorded, and shall serve either a copy of such authority or notice of such filing on the plaintiff's attorney within TWENTY (20) DAYS after appearing or making a motion. This rule does not apply to an attorney representing an official, agency or instrumentality of, or corporation wholly owned by, the United States 325 - Grounds for removal+ Where the Plaintiff filed the action in the wrong court, the case may be removed to the proper court. When a mistake is made with respect to the choice of court where action is commenced, the Supreme Court UPON MOTION may move the action to proper court If the court where the action is brought does not have jurisdiction, a court that does have jurisdiction may remove the action to itself upon motion A waiver of jury trial in the first court is inoperative after the removal. Upon consent of the parties if it is determined that a court of lower monetary jurisdiction can now preside as a result of reduced damages, the action may be moved to such court A waiver of jury trial in the first court is inoperative after the removal. The appellate division can move an action to a lower court without consent where it appears there are reduced damages that are within the jurisdiction of such lower court and the lower court would have had jurisdiction but for the amount of damages demanded. A waiver of jury trial in the first court is inoperative after the removal. Now this is interesting: lf the action is so removed, then the verdict or judgment shall be subject to the limitation of monetary jurisdiction of the originating court where the action was commenced Actions may be moved for various reasons from Supreme to Surrogates, County to Supreme or from one local court to another for various reasons CPLR - 27  The case cannot be transferred between courts after the Notice of trial is issued. 326 - Procedure on Removal An order to stay proceedings for the purpose of moving for removal may be made by the court in which the action is pending or the court to which removal is sought. Where an order of removal is made by a court other than the court in which the action is pending, a certified copy of the order shall be filed with the clerk of the court in which the action is pending. The clerk of the court must then FORTHWITH send to the new court all papers, records, certified copies of minutes and entries. All prior proceedings on the case held in the original court remain valid. A credit is given for any fees that have already been paid in the originating court 327 - Inconvenient Forum lf the forum is not convenient, the court has the power upon motion to exercise a change in jurisdiction even though jurisdiction and venue are properly placed. lf the court finds that in the interest of substantial justice the action should be heard in another forum, the court may stay or dismiss the action in whole or in part on any condition that may be just. lt could be based on location of witnesses The court lacks the authority on its own motion to raise the issue of inconvenient forum. It is only upon motion of either side that the court can consider whether to stay or dismiss the action on this ground Exception: Where the parties have agreed that the law of NYS shall govern rights or duties in whole or in part by contract or agreement, the court SHALL NOT stay or dismiss an action based on inconvenient forum 328 - Assistance to Tribunals and Litigants Outside the state Upon application of a person or in response to letters rogatory (formal request) issued by a tribunal outside the state, the Supreme Court or County Court can order that a person who is domiciled or can be found in this state be served with any document issued in connection with a proceeding in a tribunal outside this state The order shall direct the manner of service. Service may also be made upon a person here in this state under the circumstances above without a court order CPLR - 28  The effect of the service does not by itself recognize an order of judgment or decree rendered outside the state ARTICLE 4 - SPECIAL PROCEEDINGS 401 - Parties The parties are referred to as the PETITIONER and RESPONDENT. There is NO joinder, interpleader, or third-party practice after commencement of proceeding, except by LEAVE OF COURT. 402 - Pleadings These are the only pleadings in special proceedings: **PAR (petition, answer and reply) (8-2-0, 12-7-1)** o Note the difference in the pleadings in an action: CAR (complaint, answer and reply) Actions under this article are commenced by a NOTICE OF PETITION and PETITION instead of a Summons and Complaint. Where there is no adverse party the petition shall state the result of any prior application for similar relief and shall specify the new facts, if any, that were not previously shown. 403 - Notice of Petition, Service, Order to Show Cause Notice of petition must state the time and place of the hearing on the petition and supporting affidavits, if any. The time for service of the notice of petition and answer is as follows: Petition: 8 days —> Answer-2 days —>reply - 0 days; or If TWELVE (12) DAYS notice given: o Petition - 12 —> Answer - 7 days —> Reply - 1 day To be served in the same manner as a summons, however if the court grants an Order to show cause in lieu of notice of petition it is to be served at a time and in manner as court directs CPLR - 29 404 - Objections in Point of Law The respondent may raise an objection in point of law in his answer or by bringing a motion to dismiss. lf the motion is denied the court may allow the respondent to answer, usually within FIVE (5) DAYS from service of the order with notice of entry. The petitioner may then re-notice the matter for hearing upon TWO (2) DAYS notice or the respondent may re-notice the hearing in the answer upon SEVEN (7) DAYS notice The petitioner may raise an objection in point of law to new matter contained in the answer by setting it forth in his reply or by moving to strike such matter on the day the petition is noticed or re-noticed to be heard. 405 - Correction of Defects in Papers+ Either party can move to correct a defect or omission in the record or to strike scandalous or prejudicial matter unnecessarily placed in a pleading or a more definite statement of a pleading which is so vague or ambiguous that he cannot reasonably be required to frame a response. This is done by notice of motion or order to show cause within the time allowed for the responsive pleading Extension for time to plead is not automatically granted. 406 - Motions Motions in special proceedings made at or before the time the petition is due to be heard, are heard at the same time petition is due to be heard 407 - Severance The court may at any time order severance of a claim, counter claim, cross claim or of a party and order a separate special proceeding or action as to that claim or party 408 - Disclosure+ Leave of the court is REQUIRED for parties to engage in disclosure except for a "notice to admit" under CPLR 3123. A "notice to admit" under 3123 may be served not later than THREE (3) DAYS before the petition is noticed to be heard and the response denying or admitting shall be served not later than ONE (1) DAY before the petition is noticed to be heard CPLR - 30  409 - Hearing At the time of the hearing each side will furnish to the court all papers served by them. The court then conducts a hearing and shall make a summary determination assuming there are no triable issues of fact. 410 - Trial lf there are triable issues of fact then they will be tried forthwith and if triable by jury the court will give the parties an opportunity to demand a jury trial Failure to make such demand within the time limited by the court, or, if no such time is limited, before trial begins, shall be deemed a waiver of the right to trial by jury. This has real life consequences! In former President Trump’s 2024 defamation trial, his counsel failed to request trial by jury, so it was deemed waived! 411 - Judgment A Special Proceeding is terminated in a JUDGMENT rather than an order. The court shall direct that judgment be entered determining the rights of the parties to a special proceeding ARTICLE 5 - VENUE Note: The plaintiff generally designates the place of venue. It must be stated on the summons. If based on plaintiff's residence, then it must indicate such on the summons. Failure to specify venue on summons is a defect in form absent showing of prejudice and does not void the Summons 501 - Contractual Provisions Fixing Venue Parties can agree in writing in advance, before an action is commenced, to the place of trial, and it shall be enforced upon a motion subject to provisions of CPLR 510 (2) & 514 502 - Conflicting venue Provisions lf there is a conflict as to venue due to joinder of claims or parties, the court upon motion shall order at least one proper venue for one of the parties or claims CPLR - 31 503 - Venue Based on Residence Venue shall be in the county where one of the parties reside when the action was commenced, or if none of the parties resided in the state, then in any county designated by the plaintiff lf a party is a resident of more than one county then it shall be deemed a resident of each such county Executor, administrator, trustee, etc. shall be deemed a resident of the county of his appointment as well as the actual county of his residence Infant appearing by Guardian ad Litem - Residence of the infant For a Corporation - its residence is where its principal office is located. If it's a railroad or other common carrier, it could also be where the cause of action took place Unincorporated association - A president or treasurer of an unincorporated association, suing or being sued on behalf of the association, shall be deemed a resident where the association has its principal office, as well as the county in which he actually resides. Partnership or individually-owned business - Principal office or where the partner or individual owner being sued resides Assignee - In a lawsuit for money only brought by an assignee who is not an assignee for the benefit of creditors or a holder in due course of a negotiable instrument, the assignee's residence is considered to be the same as the original assignor's residence at the time of the original assignment. Consumer Credit Transaction - The county of residence of the defendant or where the transaction took place governs (New) Student debt - In an action to recover tuition, fees, room and board, educational benefit payments, student loans, or other such charges incurred by a student in furtherance of such student's education owed to the state of New York, the place of trial shall be the residence of a defendant, if one resides within the state, or, in other cases, as set forth in this article. CPLR - 32 504 - Actions against counties, cities, towns, villages, school districts and district corporations. Venue is as follows: Against a County - in such County A City (EXCEPT NYC) - town, village, school district or district corporation - in a county in which such city is situated, if situated in more than one county, then in either county NYC - The county where the cause of action arose unless outside city limits, then NY County (Manhattan) 505 - Actions involving Public Authorities Generally, actions against public authorities are in the county where their principal offices are located or where it has facilities involved in the action NYC Transit - The county within the five boroughs where the cause of action occurred unless it occurred outside of NYC, then in the County of NY (Manhattan) 506 - Where Special Proceedings Are Commenced Special Proceedings are commenced in ANY COUNTY WITHIN THE JUDICIAL DISTRICT where the proceeding is triable or in the case of: 1. ART 78 special proceeding (proceeding against a body or officer) - in any county within the judicial district where the allegation against body or officer occurred, or where the principal office of the Respondent is located 2. Proceeding against a Justice of the Supreme Court, a Judge of a County Court, or the court of general sessions then in the appellate division of the judicial department where action originated or in an adjoining department based on the unavailability of the proper department 3. Most actions against State departments...ex. Dept of Transportation, Tax commissioner, Regents of SUNY, are held in the Supreme court of Albany County 4. Commissioner of Education, taxation and finance, etc. - Generally, Albany County 5. However: Proceedings against the Commissioner of Education can be held in the Supreme Court in the County of residence of the Petitioner. This is usually where the kid goes to school 6. NYC TAX APPEALS Tribunal - Appellate Division First Department 7. (NEW) A proceeding challenging apportionment by the legislature shall be commenced in the supreme court in any of the following designated counties in a judicial department where at least one petitioner resides: a. First judicial department: New York county; b. Second judicial department: Westchester county; c. Third judicial department: Albany county; or d. Fourth judicial department: Erie county CPLR - 33 507 - Real Property Actions The place of the action shall be in the county where the property is located... Easy peasy, clerky squeezy 508 - Actions to recover a Chattel (Personal Property) The place of the action shall be in the county where the property is located 509 - Venue in County Designated ln general, the place of trial of an action SHALL be in the county designated by the plaintiff, unless changed to another county by order on motion or consent of the parties 510 - Grounds for change of place of trial The Court upon motion may change the place of trial when: 1. lt is not the proper County (by written demand with or before the answer) 2. Reason to believe an impartial trial cannot be had 3. Convenience of witnesses and the ends of justice will be promoted 511 - Change of Place of Trial This section is… a little funky [In the legal way, pursuant to the Decree of ‘74 by the most honorable Parliament Funkadelic]. It’s not too complicated, but the way it’s written can be confusing. PROCEDURE TO CHANGE VENUE IF "IT IS NOT THE PROPER COUNTY" (#1 IN 510 ABOVE): Written demand served on Plaintiff by Defendant WITH OR BEFORE THE ANSWER o Remember, this motion is filed by the DEFENDANT because, usually, it’s the plaintiff that decides the venue in civil matters Plaintiff has FIVE (5) DAYS to agree with change or disagree by serving on defendant an affidavit indicating such. If plaintiff objects, defendant has FIFTEEN (15) DAYS from service of original demand to move for change of venue. Essentially within ten days after the plaintiff’s five days to respond. Defendant may notice such motion to be heard as if the action were pending in the county he specified, unless plaintiff within FIVE (5) DAYS after service of the demand serves an affidavit showing either that the CPLR - 34  county specified by the defendant is not proper or that the county designated by him is proper. lf the change is agreed upon by the parties, or an order directing change is entered, the clerk SHALL FORTHWITH deliver to the clerk of the county where the action is going all papers and certified copies of all minutes and entries o An appeal from an order changing the place of trial shall be taken in the department in which the motion for the order was heard and determined. The proceedings will NOT be stayed unless it appears from the papers that the change is sought with due diligence. **A motion to change venue on any other ground is made within a reasonable time after the commencement of the action** 512 - Change of place of trial in NON-JURY actions The place of trial of an action or any issue triable without a jury may be, in the discretion of the court, in any county within the judicial district in which the action is triable 513 - Misplacement of Venue in Consumer Credit Transactions When it appears that a summons is filed in the improper county, the Clerk SHALL NOT accept a summons for filing and shall reject it, stamping it rejected with date and shall enter such date in the register maintained by him together with the NAME OF THE COUNTIES where summons may be properly filed. Service is complete TEN (10) DAYS after being filed in the proper county along with proof of service of not only the Summons but also of a notice to the defendant by registered or certified mail setting forth the following: 1. Proper county 2. The date of the filing of the summons 3. The date to answer or file notice of appearance (Remember MAN) 4. The address at which the answer or notice is to be filed. 514 - Actions relating to consumer goods For the purposes of this section, "consumer goods" shall mean goods, wares, paid merchandise or services purchased or paid for by a consumer, the intended use or benefit of which is intended for the personal, family or household purposes of such consumer Any clause in a consumer goods contract that designates, restricts, or limits the venue in which a claim can be adjudicated or arbitrated is void as against public policy. This does not affect the validity of any other aspect of a contract CPLR - 35 ARTICLE 10 - PARTIES 1001 - Necessary joinder of parties Necessary joinder involves parties who need to be joined for complete relief or parties who may be inequitably affected by the judgment When a person who should join as a plaintiff refuses to do so he may be made a defendant. A party SHALL be summoned by the court to appear in the action if there is jurisdiction over them and they have not joined in the action When the consent of a necessary party is needed for jurisdiction over them, the court may allow the action to proceed without the necessary party based on: 1. Whether there is another effective remedy the plaintiff has if dismissal is granted for Non-joinder 2. The prejudice which may accrue from the Non-joinder to the defendant 3. Whether and by whom the prejudice might have been avoided now or in the future 4. The feasibility of a protective provision by court order or in the judgment 5. Whether an effective judgment may be rendered in the absence of the person who is not joined 1002 - Permissive Joinder Permissive joinder of plaintiffs or defendants may occur when: 1. Claims arise out of the same transaction or occurrence 2. The action involves common questions of law or fact a. (e.g. Two people who have the same claim against one defendant, Defendant failed to pay Mastercard and Visa.) Joined parties do not have to be seeking all the same relief or defending against all the same allegations. The court may order separate trials to prevent prejudice This is interesting. The court can make an order to separate to prevent a party from being embarrassed, delayed, or put to expense by the inclusion of a party against whom he asserts no claim and, who asserts no claim against him. That’s right. EMBARRASSMENT! CPLR - 36 1003 - Nonjoinder and misjoinder of parties. Nonjoinder - Parties who should be in an action and aren't - This lS a ground for Dismissal Misjoinder - Parties improperly joined is NOT ground for Dismissal HINT: "If you MIS, you can't dismiss" A motion to add or drop parties may be made at any stage of the action, sua sponte (on the court's own motion) or by stipulation of the parties Parties may be added ONCE without leave (permission) of the court within: TWENTY (20) DAYS from the service of the original summons or before time to answer has expired or TWENTY (20) DAYS from the time a responsive pleading is served The court may order any claim against a party severed and proceeded with separately. 1004 - When joinder unnecessary+ Sometimes Joinder is Unnecessary, for example the Guardian of the property of an infant does not have to join in the action with the infant 1005 - Penguins; generally Penguins can’t fly, especially penguins that have been drinking. 1006 - Interpleader+ An interpleader is a procedural device to protect a person at risk with multiple liabilities A claimant is a person who has made or may be expected to make such a claim. A stakeholder may commence an action of interpleader against two or more claimants. When a debt or asset is claimed by two or more people, the third party in possession of the asset is the STAKEHOLDER and may commence an action of interpleader against the two or more CLAIMANTS in order to protect themselves Ex. Donnie is the holder of a winning lottery ticket being claimed by Darlene and Melissa. In this instance Donnie is exposed to multiple liabilities as both Darlene and Melissa may separately sue him for their CPLR - 37  rights to the ticket. In this instance Donnie is the Stakeholder, while Darlene and Melissa are the Claimants. There could be a DEFENSIVE INTERPLEADER when the stakeholder brings in another claimant by serving upon them a Summons, interpleader Complaint, and all prior pleadings. Example: Donnie (a defendant stakeholder) brings in Dan who originally gave him the lottery ticket by serving him with a Summons and interpleader complaint as well as all prior pleadings served in the action If a stakeholder seeks to bring in a claimant in an interpleader action as defense and there is a pending action between the claimant and the stakeholder based on the same claim, the court may dismiss the interpleader complaint, consolidate or jointly try the actions, or stay the pending action until final disposition of the interpleader action. 1007 - IMPLEADER/THIRD-PARTY PRACTICE (Third Party Plaintiff) Used after the service of an answer. A defendant may proceed against a party not a party to the action if it is believed by defendant that this person is liable to him Example: Buying ice cream with chunks of glass in it. You sue the grocery store who sues the manufacturer of the ice cream. The grocery store becomes known as the third-party plaintiff and the maker of the ice cream is the third-party defendant. Another simple representation of impleader is a three-car accident. A car stopped at a traffic light is rear-ended by a car behind it who was hit by a car behind it. The Car at the front of the line sues the car in the middle and the car in the middle sues the car at the end. Done filing a third-party summons and complaint with the clerk of the court in the county in which the main action is pending, for which a separate index number shall not be issued but a separate index number fee shall be collected. A defendant serving a third-party complaint shall be styled a third-party plaintiff and the person so served shall be styled a third-party defendant Service of this Third-party complaint, summons, and all prior pleadings must be done in ONE HUNDRED AND TWENTY (120) DAYS from filing. The original plaintiff must also be served to keep them in the loop. The third-party defendant must then answer CPLR - 38 1008 - Answer of third-party defendant; defenses The third-party defendant will answer by serving upon the third-party plaintiff. They may assert in their answer all defenses except that the original summons and complaint was not properly served or that jurisdiction was not obtained over the third-party plaintiff. All other rights like the right to counter-claim, cross claim and appeal stand 1009 - Claim by Plaintiff against Third Party Defendant The original plaintiff has TWENTY (20) DAYS from the service of the answer by the third-party defendant, to amend his complaint without leave of the court to now sue the third-party defendant directly 1010 - Dismissal or separate trial of third-party complaint. The court can separate these actions or dismiss the third-party action if prejudice or delay may affect the primary claim 1011 - Successive third-party proceedings; counterclaims When a counterclaim is filed against plaintiff he may proceed as a defendant and bring a third-party practice (CPLR 1007) against another party 1012 - Intervention as of right; notice to attorney-general, city, county, town or village where constitutionality in issue This is used when an outside person wants to join in a lawsuit and become a Party. You can intervene in an action by timely motion when: 1. The Statute of the state confers an absolute right to intervene 2. When the representations of your interests are not adequate, and you may be bound by the judgment 3. When the action involves disposition of real or personal property and you may be adversely affected by the judgment 4. lf the constitutionality of a statute of the State, or rule or regulation, is involved the Attorney General must be notified has an absolute right to intervene a. The court CANNOT consider the case unless proof of service of the notice is filed 5. lf the constitutionality of local law, ordinance, rule or regulation of a City, Town or Village is involved, it must be notified and has an absolute right to intervene CPLR - 39  6. If a lawsuit involves public retirement benefits, the court must notify the comptroller of the state of New York, who may intervene in the case or file an amicus curiae brief. a. Saturday Morning PSA: Amicus curiae brief means “friend of the court” brief. It is a legal document written by a person or organization in order to advise the court on a matter without becoming a party. Now you know and knowing is half the battle. 1013 - Intervention by Permission (in the court’s discretion)+ 1. When NYS statute confers a right to intervene in the court’s discretion 2. When the claim of the action has a common question of law or fact 1014 - Proposed lntervention Pleading A motion to intervene shall include a pleading setting forth the claim for which the intervention is sought 1015 - Substitution upon death Actions do not abate but parties are substituted. ln cases involving multiple plaintiffs or defendants, often the death is noted on the record and the action proceeds with the surviving parties Exception: Matrimonial and Alimony proceedings abate upon death, therefore if your spouse succumbs a mysterious death during your divorce, you're good to go 1016 - Substitution of Committee or Conservator lf a party is adjudicated incompetent or a conservator has been appointed, the court will order the caption to be amended to now name the committee or conservator as the party (You’ll learn more about them in MHL 81) 1017 - Substitution in Case of Receivership The court will order substitution of a party if a receiver is appointed or corporation dissolves Ex. A small carpet-cleaning business entering into receivership just before an interdimensional cross rip 1018 - Substitution Upon Transfer of lnterest Upon any transfer of interest, the action may be continued by or against the original parties, unless the court joins the transferee in the action CPLR - 40 1019 - Substitution of Public Officers lf a person in their capacity as a public officer is made, a party to an action and then ceases to hold office, his or her successor may then be named a party Before the substitution is made, the successor and, unless the court otherwise orders, the party shall be given reasonable notice of the motion and accorded an opportunity to object 1020 - Substitution of lndemnitors An indemnitor is a party that agrees to take on the risk of another. lf an undertaking is given indemnifying an officer against an action, the indemnitor may be substituted for the officer 1021 - Substitution procedure; dismissal for failure to substitute; presentation of appeal+ lf a party needs to be substituted a motion may be filed within a reasonable time, however if this action is POST JUDGMENT (Appeal) the motion may be made within FOUR (4) MONTHS from the event requiring substitution. lf a person who should be substituted does not appear voluntarily, he may be made a party defendant 1022 - Substitution Extension of Time **Extension of time for the requirement to take any procedural steps in the action is extended FIFTEEN (15) DAYS after the substitution of a party is made** Hint: (Extension of time) is 15 letters for 15 Days Compare this to THIRTY (30) DAYS for substitution of counsel, "30 for new attorney" The party is obviously only half as important as the party. Just kidding… ask any attorney. 1023 - Public Body or Officer When a public officer, body, board or commission is named in a case it may be designated by its official title CPLR - 41 1024 - Unknown Parties A party may proceed against an unknown party using as much of the name as they have, to be amended at a later date if an