NEW YORK STUDENT SUPPLEMENT. to Accompany CIVIL LITIGATION THIRD EDITION. Peggy N. Kerley, Joanne Banker Hames, Paul A. Sukys.

NEW YORK STUDENT SUPPLEMENT to Accompany CIVIL LITIGATION THIRD EDITION Peggy N. Kerley, Joanne Banker Hames, Paul A. Sukys Prepared by Cathy Okrent

CONTENTS PART I INTRODUCTION TO CIVIL LITIGATION FOR THE PARALEGAL Chapter 1 Litigation and the Paralegal... 1 Chapter 2 The Courts and Jurisdiction... 3 PART II INITIATING LITIGATION Chapter 3 Preliminary Considerations... 7 Chapter 4 Investigation and Evidence... 10 Chapter 5 The Initial Pleadings... 11 Chapter 6 Responses to the Initial Pleading... 29 Chapter 7 Motion Practice... 40 PART III DISCOVERY Chapter 8 Overview of the Discovery Process... 53 Chapter 9 Depositions... 56 Chapter 10 Interrogatories... 57 Chapter 11 Physical and Mental Examinations... 59 Chapter 12 Request For Documents... 60 Chapter 13 Request for Admissions... 62 PART IV PRETRIAL, TRIAL, AND POSTTRIAL Chapter 14 Settlements, Dismissals, and Alternative Dispute Resolution... 63 Chapter 15 Trial Techniques... 73 Chapter 16 Posttrial Practice... 76 ii

INTRODUCTION In the United States, civil litigation is conducted at both the federal and state levels. In the federal court system, the Federal Rules of Civil Procedure control. These rules are used in all federal courts. It is to be noted that not all litigation takes place at the federal level. In fact, the majority of lawsuits are handled in state courts, where state law rather than federal law controls. The purpose of this supplement is to point out the differences between federal practice and practice unique to New York State courts. Specific rules and procedures in New York civil litigation that differ substantially from federal litigation are highlighted. Some aspects of the federal system particular to New York will also be noted. This supplement is cross-referenced to the pages and sections of Civil Litigation, Third Edition. When reading a page or pages, check the supplement to see if the page and section have supplemental material for New York practice. Where no material is found for the particular page and section, the federal practice does not vary significantly from state practice. The materials and information included are for educational purposes. The law is constantly changing. It is very important that all laws be researched prior to reliance on them. Now, the rules for service of papers have been amended to include service by facsimile transmission and other electronic means. The New York State Supplement is designed for New York paralegal courses in civil law using the textbook Civil Litigation by Kerley, Hames, and Sukys. Since the textbook is based on federal rules, the student pocket part is a cross-referencing device between the textbook and the civil laws of New York state pursuant to Civil Practice Laws and Rules (CPLR). The student pocket part compliments the textbook by employing the same numbering system for easy reference by students and instructors. While this supplement is a brief and handy reference guide to the CPLR, it does not supplant the Civil Practice Laws and Rules or act as a substitute for further research. The student or instructor should refer directly to each statute or rule cited for details. The Civil Practice Laws and Rules is referred to daily in New York civil practice and is updated yearly in response to changing laws and statutes. It is available from a variety of legal publishers in hard- and soft-cover, looseleaf, and bound editions.; in software; and on the Internet. iii

PART I INTRODUCTION TO CIVIL LITIGATION FOR THE PARALEGAL CHAPTER 1 LITIGATION AND THE PARALEGAL KEY POINTS New York has its own rules of civil procedure, known as the Civil Practice Laws and Rules (CPLR). New York also has its own unique court rules, known as the Uniform Rules for the New York State Trial Courts. New York also has local court rules, in addition to rules of certain individual judges. The summons and complaint must be filed with the court prior to service. New York has its own New York State Code, Rules, and Regulations. WHAT CIVIL LITIGATION IS Rules of Civil Litigation New York has its own rules of civil procedure, known as the Civil Practice Laws and Rules, which is commonly referred to as the CPLR. These rules are similar to the Federal Rules of Civil Procedure. However, in New York, when civil litigation is conducted at the state level, the CPLR applies. The CPLR can be found online at assembly.state.ny.us/ cgi-bin/claws?law=16 Civil Law versus Criminal Law Criminal Law New York has its own rules of criminal procedure, known as the Criminal Procedure Law (CPL). In New York, civil and criminal procedure are not merged. See CPRL 106. Constitution Textbook references to the Constitution mean the United States Constitution. Be mindful that New York also has its own constitution, called the Constitution of the State of New York. References in the New York State Supplement refer to the latter. See assembly.state.ny.us/cgi-bin/const Civil Rules In addition to New York s rules of civil procedure (CPLR), New York also has court rules known as Uniform Rules for the New York State Trial Courts. Certain jurisdictions have local court rules as well. Likewise, certain judges have their own rules. See www.courts.state.ny.us/ucsrules.html Standards of Proof The standard of proof for most civil cases in New York is the preponderance of the evidence standard. In some of the more serious civil cases, where issues such as fraud or paternity are involved, a higher standard known as clear and convincing proof is used. The standard of evidence used in criminal cases is that of guilt beyond a reasonable doubt. An Overview of Civil Litigation Usually the initial document used to start litigation is called the plaintiff s complaint. Less often, an action is commenced without a complaint by serving a summons with notice. Pursuant to CPLR 305(b), a summons with notice shall contain a notice stating the nature of the action, the relief sought, and the sum for which judgment is demanded (except in medical malpractice actions). See www.nysba.org/public/courts.html#civil Petition In New York either a (1) notice of petition and a petition, or (2) an order to show cause is used to commence a special proceeding. See CPLR, Article 4. Also see CPLR 304. This is different than the general litigation process. Complaint The summons and complaint or summons with notice is filed with the clerk of the court in the county in which the action is brought to commence an action. Such delivery may also be accomplished by fax or electronic means. See CPLR 304. Upon filing the summons and complaint or summons with notice in an action commenced in Supreme Court or county court, an index number shall be assigned and a fee paid. See CPLR 306-a. The index number and the date of filing must be noted on the summons. See CPLR 305. 1

DIFFERENT TYPES OF CIVIL LAWSUITS $1,000 Suit A suit for $1,000 would be handled in small claims courts. Small claims limits may vary by jurisdiction. A summary of the courts of the New York State court system can be found at www.nysba.org/public/courts.html ALTERNATIVES AND LIMITATIONS TO LITIGATION Arbitration Arbitration of certain claims not exceeding $6,000 exclusive of interest is mandatory in certain courts outside the civil court of the city of New York and of certain claims not exceeding $10,000 exclusive of interest in the civil court of the city of New York. See CPLR 3405. In medical, dental, or podiatric malpractice actions, a defendant may demand that the plaintiff elect whether to consent to arbitration of damages upon a concession of liability. See CPLR 3045. Arbitration is governed by Article 75 of the CPLR in great detail. Health care arbitration is addressed by Article 75-A of the CPLR. See www.courts.net/ny/index.html Employees Generally, employees cannot sue their employers if they are injured on the job. See Worker s Compensation Law. SOURCES OF THE LAW Primary Sources State Code New York has its own New York State Code, Rules, and Regulations. Lawyers Cooperative Publishing, publishers of the official New York Reports and CLS New York Statutes, provides sources for cases and statutes. See www.currentlegal. www.currentlegal.com/lawlibrary/42.htm Secondary Sources Forms The New York State Bar Association, Blumberg s, and other legal publishers produce forms for New York practice. Forms can be found online at www.findlaw.com SKILLS REQUIRED OF THE LITIGATION PARALEGAL Continuing Legal Education Local Legal Newspapers The New York State Law Journal is a newspaper that reports New York legal developments, and can be found online at www.law.com Recent CPLR Decisions For some of the more recent decisions concerning the CPLR, see www.nysba.org/committees/cplr/recent.html Advice on New York Practice See www.nylj.com/verdicts/nypractice.html Court Cases and Statutes See www.findlaw.com/11stategov/ny/laws.html Statutes For New York state statutes, see www.cplr.org Periodicals The New York State Bar Association publishes New York State Law Digest, a monthly publication of the latest New York legal developments regarding cases and statutes, and a magazine, New York State Bar Journal, which is published eight times each year. See www.nysba.org Professional Organizations Contact city and county bar associations, special interest bar associations, and: New York State Bar Association One Elk Street Albany, New York 12207 (518) 463-3200 www.nysba.org Some of the local paralegal associations are: Long Island Paralegal Association 1877 Bly Road East Meadow, NY 11554 www.paralegals.org Manhattan Paralegal Association, Inc. P.O. Box 4006 Grand Central Station New York, NY 10163 www.paralegals.org/manhattan/home.html Paralegal Association of Rochester, Inc. P.O. Box 40567 Rochester, NY 14604 Email: Rochester@paralegals.org Southern Tier Association of Paralegals P.O. Box 2555 Binghamton, NY 13902 www.paralegals.org/southerntier/home.html Western New York Paralegal Association, Inc. P.O. Box 207, Niagara Square Station Buffalo, NY 14201 www.paralegals.org/westernnewyork/home.html West/Rock Paralegal Association P.O. Box 668 New City, NY 10956 www.paralegals.org/westrock/home.html 2

CHAPTER 2 THE COURTS AND JURISDICTION In New York, the court of appeals (not the Supreme Court) is the highest state court. The defendant appears by serving an answer or a notice of appearance, or by making a motion. A defendant may attack personal jurisdiction in his answer, or a motion is brought to dismiss for lack of jurisdiction. Generally, venue is determined by the county where either party resided when the action was commenced. Venue can be changed by motion. KEY POINTS THE COURTS AND LITIGATION Higher Courts In New York, the court of appeals is the highest state court. It hears both criminal and civil appeals and is located in the capital of New York, Albany. New York s highest court, the court of appeals, consists of six associate judges and one chief judge. The New York State court system has two levels of appeal or review. A summary guide to the New York court system is located at www.nylj.com/guide United States Court of Appeals New York State is part of the second circuit for appeals to the United States Court of Appeals under the federal court system. See www.courts.net/ny/index.html United States Supreme Court References to the Supreme Court in Civil Litigation refer to the United States Supreme Court and not the New York State Supreme Court. Intermediate Appellate Courts Courts of Appeal The appellate division of the Supreme Court is the intermediate appellate court. Up to five justices may sit in any case, with four justices required for a quorum. It hears both civil and criminal appeals. The state is divided into four geographical areas called departments. Each department has its own appellate division. In the first and second departments, there is an appellate term of the Supreme Court which hears appeals from local and county courts. See www.courts.net/ ny/index.html Courts of Last Resort Supreme Court In New York, the Supreme Court is not a court of last resort. It is a trial court of original and general jurisdiction, both criminal and civil. The Supreme Court is the only court in the state with jurisdiction to dissolve a marriage. The Supreme Court is divided into twelve (12) judicial districts. FEDERAL COURT SYSTEM Miscellaneous Federal Trial Courts United States District Courts New York is sectioned by four judicial districts divided geographically into the Northern, Southern, Eastern, and Western districts. State Court System Trial courts include city courts, town courts, village courts, county courts, Supreme Court, New York City civil and criminal courts (limited to New York City). See www.nysba.org/public/ courts.html STATE COURT SYSTEMS District courts (limited to eastern Nassau and Suffolk County), and certain specialized courts: family courts, surrogate court, and court of claims. Neither family court nor the court of claims has jury trials. New York state is divided into four departments and twelve (12) judicial districts under the New York state court system. For recent court decisions, see www.nycourts.com New York State Courts In New York, courts can hear only certain types of cases. For example, the surrogate court deals with the settlement of estates and related probate matters. Other courts may hear cases limited to certain amounts of money damages. An example: County courts cannot hear cases with claims exceeding $25,000, whereas the Supreme Court has unlimited jurisdiction to hear claims with no ceiling as to amount requested in the action. See www.nysba.org/public/courts.html 3

JURISDICTION Subject Matter Jurisdiction of the Federal Courts Exclusive versus Concurrent Jurisdiction See CPLR 325 for grounds for removal to other New York state courts. This is done by parties on motion, or by the court. A notice of removal is not required. Removal There is no notice of removal in New York state courts. A motion for removal might be made by the affected party. See CPLR 326 for procedure on removal. Motion to Quash For New York dismissal motion, see CPLR 3211(a)(8). State Long-Arm Statutes CPLR 302 lists acts by nondomiciliaries subjecting them to in-state suit. Out-of-state residents can be sued in New York state in actions involving demands for alimony. Corporations not authorized under the laws of New York state may also be subject to suit in New York. Also see 253 of the vehicle and traffic law, for service of summons on nonresident owners and operators of motor vehicles. Subject Matter Jurisdiction in the State Courts General Jurisdiction The New York Supreme Court is the trial court with general jurisdiction. Appellate Jurisdiction In New York, appeals are heard by an intermediate level appellate court, the appellate division (the appellate term in the first and second departments only), and the highest appellate court, the court of appeals in Albany. Personal Jurisdiction: Jurisdiction over Defendant See CPLR 302 for grounds for obtaining personal jurisdiction over nonresidents who transact business within the state, or contract to supply goods or services in the state, or commit a tortious act within the state (or even outside the state if acts committed result in New York State consequences), or use or possess real property in the state of New York. See www.assembly.state.ny.us/cgi-bin/claws?law=16 Waiver by Appearance General Appearance The defendant appears by serving an answer, or a notice of appearance, or by making a motion. See CPLR 320 regarding distinction between general and limited appearance by defendants. Challenging Personal Jurisdiction A defendant in New York may attack personal jurisdiction in his answer. Generally, a motion to dismiss for lack of jurisdiction is brought. See CPLR 321 l(a)(8). Internet Presence Interactive Internet presence is sufficient to support a jurisdictional basis for New York long-arm jurisdiction. Citigroup, Inc. v. City Holding Co., U.S. District Ct., S.D.N.Y., NYLJ 6/9/00. Quasi in Rem Jurisdiction Attachment See CPLR 314(3) for levy on property pursuant to an order of attachment. VENUE Venue In state courts, venue is determined by Article 5 of the CPLR. Usually, except where otherwise set by law, the place of trial shall be where either party resided when the action was commenced, and if none, in a county selected by the plaintiff. See CPLR 503. Changing Venue See CPLR 511(b) for a motion to change the place of trial based on venue. If the county designated is not a proper county, such motion should be served with the answer or before the answer is served. A motion to change the place of trial based on any other ground should be made within reasonable time after the start of the action. 4

Figure 2-1 Outline of New York State Court System. Courtesy New York State Bar Association, copyright 2000. Court of Appeals Appellate Divisions One in each department (4) Appellate Term First and Second depts. only Supreme Court Statewide Court of Claims Statewide Family Court One each county, except One for New York City (Five counties in NYC) Surrogate Court One in each county (62) County Court One in each county outside of NYC (57) New York City Civil Court New York City Criminal Court District Court Nassau and Suffolk City Courts Outside NYC Town Court Village Court Figure 2-2 Judicial Districts of New York State. Courtesy New York State Bar Association, copyright 2000. Clinton St. Lawrence Franklin Jefferson V Lewis Hamilton IV Essex Warren Chautauqua Niagara Erie VIII Cattaraugus Orleans Monroe Genesee VII Wayne Oswego Oneida Onondaga Ontario Seneca Madison Cayuga Wyoming Livingston Yates Cortland Tompkins VI Schuyler Chenango Allegany Steuben Chemung Tioga Broome Herkimer Otsego Delaware Fulton Montgomery Schoharie Schenectady Albany Greene III Saratoga Rensselaer Columbia Washington Ulster Sullivan I Orange Bronx New York Richmond XII IX II Rockland Dutchess Putnam Westchester Nassau Kings Queens X XI Suffolk 5

Figure 2-3 New York State Counties by Judicial Department and District. Courtesy New York State Bar Association, copyright 2000. FIRST DEPARTMENT First Judicial District New York Twelfth Judicial District Bronx SECOND DEPARTMENT Second Judicial District Kings Richmond Ninth Judicial District Dutchess Orange Putnam Rockland Westcheste r Tenth Judicial District Nassau Suffolk Eleventh Judicial District Queens THIRD DEPARTMENT Third Judicial District Albany Columbia Greene Rensselaer Schoharie Sullivan Ulster Fourth Judicial District Clinton Essex Franklin Fulton Hamilton Montgomery Saratoga Schenectady St. Lawrence Warren Washington Sixth Judicial District Broome Chemung Chenango Cortland Delaware Madison Otsego Schuyler Tioga Tompkins FOURTH DEPARTMENT Fifth Judicial District Herkimer Onondaga Oswego Jefferson Lewis Oneida Seventh Judicial District Cayuga Livingston Monroe Ontario Seneca Steuben Wayne Yates Eighth Judicial District Allegany Cattaraugus Chautauqua Erie Genesee Niagara Orleans 6

PART II INITIATING LITIGATION CHAPTER 3 PRELIMINARY CONSIDERATIONS KEY POINTS Certain causes of actions must be specifically pleaded. New York statute of limitations must be consulted before each action is commenced as they differ from those of other states, as well as the federal statutes, and may be changed from time to time by the state legislature. Claims against the state of New York and public corporations require a notice of claim to start the action. Attorneys are bound by the Lawyer s Code of Professional Responsibility and subject to disciplinary action. DETERMINING THE EXISTENCE OF A CAUSE OF ACTION In New York, statements in pleadings should be sufficiently particular to give the court and parties notice of the transactions, occurrences, or series of transactions or occurrences intended to be proved and the material elements of each cause of action or defense. See CPLR 3013. In New York, automobile accidents are covered by what is commonly referred to as the no-fault statute. In order to bring an action for injuries following an automobile accident, specific conditions must be met. A serious injury, as defined by 5102 of the Insurance Law, is needed for the suit to succeed in court. Elements of a Cause of Action Certain issues must be pleaded to pursue specific actions in New York. Examples of actions that must be pleaded with particularity include libel or slander, fraud or mistake, separation or divorce, judgment, law of a foreign country, sale and delivery of goods, personal injury, and gross negligence or intentional infliction of harm. See CPLR 3016. Certificate of Merit In any action for medical, dental, or podiatric malpractice, the complaint must be accompanied by a certificate of merit executed by the attorney for the plaintiff. See CPLR 3012-a. TIME LIMITATIONS Statute of Limitations Actions brought against the state of New York must be commenced within two years from accrual of cause of action. See 10 of the Court of Claims Act. Contracts There is a six-year statute of limitations for contract actions except when otherwise agreed, or four years if an action is brought pursuant to the Uniform Commercial Code (UCC). Property Damage There is a three-year statute of limitations. See CPLR 214(4). Personal Injury Action There is a three-year statute of limitations. See CPLR 214(5). Legal Malpractice There is a three-year statute of limitations. See CPLR 214(6). Medical, Dental or Podiatric Malpractice There is a two-and-one-half year statute of limitations. See CPLR 214-a. Wrongful Death There is a two-year statute of limitations. See Estates, Powers, and Trust Law, 5-4.1. Intentional Torts Statute of limitations is one year. See CPLR 215(3). Claims Statutes Claims In New York, a notice of claim must be served when actions are brought against the state of New York, as well as for actions brought against public corporations; See Court of Claims Act 10 and General Municipal Law 50-e. See www.nyscourtofclaims.state.ny.us 7

ETHICAL CONSIDERATIONS IN ACCEPTING A CASE In New York, attorneys are bound by the Lawyer s Code of Professional Responsibility, which can be found at www.nysba.org/opinions/codes/anchor1.html. When an attorney does decide to accept a case, a retainer agreement is signed by the client, authorizing the attorney to act for the client and acknowledging the fee arrangement. For ethics opinions, see www.nysba.org/opinions/opinions.html the client will be adversely affected. See PDR 1200.24. The Professional Disciplinary Rules can be found at www.nycourts.com/docs/ad1/rules/unifiedi.htm Communicating with the Opposing Party It is unethical in New York for the attorney to personally contact an opposing party who is represented by counsel. See PDR 1200.35. Domestic Relations Matters An attorney shall provide a prospective client with a statement of client s rights and responsibilities at the initial conference and prior to signing the written retainer agreement. See Professional Disciplinary Rules, (PDR) 1400.2. See www.nysba.org/opinions/codes/code.02.html#heading8 ETHICAL CONSIDERATIONS AFTER ACCEPTING A CASE Frivolous Claims Costs will be assessed against a plaintiff or defendant in actions to recover damages for personal injury, injury to property, or wrongful death, if such party s action in support or defense of the case shall be found to be frivolous. See CPLR 8303-a. Costs will also be awarded for frivolous claims made during health care arbitrations. See CPLR 7564(b). Conflict of Interest A lawyer in New York must decline employment if the exercise of independent professional judgment on behalf of Confidentiality A lawyer shall not knowingly reveal a confidence or secret of a client. See PDR 1200.19. Honesty A lawyer shall not engage in conduct involving dishonesty, fraud, deceit, or misrepresentation. See PDR 1200.3. Fee-sharing Attorneys and paralegals in New York may not split fees. This is a violation of the Lawyer s Code of Professional Responsibility and subject to disciplinary action. See PDR 1200.17. Preserving Identity of Funds and Property of Others A lawyer shall not commingle property or funds of a client with his or her own. A separate client trust fund must be maintained. Records for such accounts, as well as copies of all retainer and compensation agreements with clients must be kept for at least seven years. See PDR 1200.46. 8

Figure 3-1 Retainer and Request for Hospital Record. Forms may be purchased from Julius Blumberg, Inc., NYC 10013, or any of its dealers. Reproduction prohibited. 9

CHAPTER 4 INVESTIGATION AND EVIDENCE KEY POINTS Contact New York s secretary of state for information regarding domestic corporations, limited liability companies, limited partnerships, and limited liability partnerships. Accident reports can be obtained from the New York State Department of Motor Vehicles. A medical authorization is required to obtain medical records. Weather reports can be obtained from the National Climatic Data Center Expert testimony is governed by CPLR 3101(d) and CPLR 4515. STEPS FOR LOCATING THE AGENT OF CORPORATIONS OR PARTNERSHIPS Partnership and corporate information is available from the secretary of state s office: Secretary of State 162 Washington Avenue Albany, New York 12210 Telephone: (518) 474-4750 See the New York State Department of State at www.dos. state.ny.us/corp/corpspub.html ACCIDENT REPORTS Contact the Department of Motor Vehicles to obtain a a driving record abstract or accident report. See www.nydmv. state.ny.us/abstract.htm#rrecords MEDICAL RECORDS To obtain medical records you will need a fully executed medical authorization form. See CPLR 3121. WEATHER REPORTS To substantiate the weather conditions on a particular date; see www.ncdc.noaa.gov/ol/climate/stationlocator.html for information from the National Climatic Data Center. EXPERT WITNESSES At the state level, the attorney introducing expert testimony lays a foundation for that expert testimony by asking experts questions as to their education and training. The court itself does not qualify experts. See CPLR 3101(d) and CPLR 4515. See www.nocall.org/experts.htm for expert witness Internet resources. Also see www.findlaw.com/13experts/ witness.html 10

CHAPTER 5 THE INITIAL PLEADINGS All pleadings need not be filed prior to service in New York. The summons and complaint must be filed prior to service. A petition is a method of commencing a special proceeding and is not synonymous with a complaint. Generally, verified complaints are not necessary and apply only to specified situations. New York has waived governmental (sovereign) immunity and permits claims against the state. There is a no compulsory joinder of parties. KEY POINTS Numbered paper is no longer required for New York pleadings. There is no requirement that pleadings be signed in New York, unless verification is required pursuant to the CPLR. INITIAL PLEADINGS Pleadings in General In New York, pleadings need not be filed prior to service upon the opposing party. However, the summons and complaint must now be filed prior to service. See CPLR 306-a. See www.assembly.state.ny.us/cgi-bin/claws?law=16 The Complaint in General In New York, a petition is a method of starting a special proceeding. See CPLR 402. A special proceeding is a quick and economical means of enforcing a claim permitted by statute in certain matters. Examples of these are proceedings to settle an infant s claim. See CPLR 1207 and Article 78 proceedings under CPLR 7801 et seq. Petition A petition is used to start a special proceeding. Verification A verified complaint is not mandatory except where required by the CPLR. Examples of mandatory verified complaints in New York include: An action involving the sale and delivery of goods pursuant to CPLR 3016(f) and matrimonial actions pursuant to Domestic Relations Law 211. PARTIES TO THE LAWSUIT Real Party in Interest CPLR 1004 lists proceedings and situations where suit can be brought by or against representatives of parties rather than against the actual person they are representing. Some examples include: executors, administrators, guardian of property of an infant, the committee of an incompetent, the conservator of the property of a conservatee, and the trustee of an express trust. Status In New York, the fact that a corporation was an Idaho corporation would not be specified in the caption but should be stated in the allegations of the complaint. Each paper served or filed shall begin with a caption setting forth the name of the court, venue, title of the action, the nature of the paper, and index number, if assigned. See CPLR 2101(c). Capacity Minor A minor in New York is someone under eighteen (18) years of age. Guardian ad Litem A parent having legal custody of a child may bring suit on the child s behalf in New York without the appointment of a guardian by the court. See CPLR 1201. Generally, a guardian ad litem is appointed if an infant defendant has no guardian of his property, parent, or other person or agency having legal custody. See CPLR 1201. Corporations and Other Business Entities Two or more people who conduct business as a partnership can sue or be sued in the partnership name. See CPLR 1025. Also see CPLR 310 for service of process provisions. Governmental Agencies New York has waived the sovereign immunity provision to the extent that it permits suits against itself in the court of claims. See CPLR 307 for service provisions. Also see the Court of Claims Act. See www.nyscourtofclaims.state.ny.us 11

Joining Multiple Parties Permissive Joinder Generally, this occurs where there is a common question of law or fact. See CPLR 1002. Compulsory Joinder The term necessary joinder of parties is used. All persons who might be unfairly affected by a judgment in an action should be named. See CPLR 1001. Indispensable Party The court should not proceed in the absence of a person who should be a party. CPLR 3211(a)(10) provides for a dismissal motion where a necessary party has not been served. Class Actions The court must find that certain prerequisites have been satisfied in determining whether or not an action may proceed as a class action. See CPLR 901 et seq. One or more members of a class may sue on behalf of all if: 1. The class is so numerous that joinder of all members is impracticable; 2. There are questions of law or fact common to the class; 3. The claims or defenses of the representatives are typical of the class; 4. The representative parties will fairly and adequately protect the interest of the class; 5. The class is superior to other available methods for resolving the controversy. Generally, except in actions for medical or dental malpractice or actions against municipal corporations, a complaint shall contain a demand for relief. See CPLR 3017. Each paper served or filed shall be endorsed with the name, address, and telephone number of the attorney for the party, or if a party does not appear by an attorney, with the name, address, and telephone number of the party. See CPLR 2101. See 192.41.4.29/form.html concerning forms. Cover Sheet A cover sheet is not used. FILING THE COMPLAINT An action is commenced by filing a summons and complaint or summons with notice with the clerk of the court. See CPLR 304. Individual Assignment System Both the Uniform Rules for the Supreme Court and the county court and the Uniform Rules for the City Courts outside the City of New York have an individual assignment system (IAS) for all civil actions and proceedings. A single judge is assigned to supervise each action and proceeding upon the filing with the court a Request for Judicial Intervention (RJI) in all Supreme Court and county court matters. In city courts, assignments are made to judges upon the filing of the first document in the matter. See 22 NYCRR 202.3(b), 210.3(b). For court rules, see www.nylj.com/rules Interpleader See CPLR 1006. A person who is or may be exposed to multiple liability as a result of adverse claims may commence an action of interpleader against two or more claimants. DRAFTING THE COMPLAINT Numbered paper is no longer required in New York. There is no requirement that pleadings be signed by the attorney. Each paper served or filed shall be durable, white, and, except for summonses, subpoenas, notices of appearance, notes of issue, and exhibits, shall be 8 1 2 by 11 inches in size. Writing should be legible and in black ink. See CPLR 2101. A request for trial by jury is not made in the complaint. This is done on a separate form called a note of issue. See CPLR 3402 and 4102(a). Statements in the pleadings shall be sufficiently particular to give the court and parties notice of the transactions intended to be proved and the material elements of each cause of action or defense. See CPLR 3013. Every pleading shall consist of plain and concise statements in consecutively numbered paragraphs. Each paragraph shall contain a single allegation. Causes of action or defenses may be stated alternatively or hypothetically. See CPLR 3014. Office of Court Administration Requests for Judicial Intervention must now be modified to incorporate the court system s new time frames (standards and goals) for the completion of civil cases. In all cases except contested matrimonials, the estimated time period for the case to be ready for trial must be stated. For routine cases, discovery should be completed and the Note of Issue filed within twelve (12) months of the filing of the RJI. For complex cases, that period will be fifteen (15) months. Contested matrimonials will be subject to specific standards and goals reflecting the time frames set forth in the matrimonial rules. See www.courts.state.ny.us and www.courts.net/ny/index.html Docket Number In New York, cases are assigned index numbers rather than docket numbers. An index number is assigned when the summons and complaint are filed. When the index number is assigned, a fee shall be paid. See CPLR 306-a. The summons shall bear the index number assigned and the date of filing with the clerk of the court. See CPLR 305. Where the case has been assigned to an individual judge, the name of the assigned judge must appear to the right of the caption. 22 NYCRR 202.5. See CPLR 8023. Parties may pay fees with a credit card. 12

THE SUMMONS The summons must be filed prior to service. The court does not issue a summons. The attorney for plaintiff prepares and has the summons and complaint served on the defendant. Pursuant to CPLR 2103(a), a party who is eighteen (18) years of age or older and is not a party to the action may serve the summons and complaint. A summons shall specify the basis of venue designated and if based upon residence of the plaintiff, it shall specify the plaintiff s address and also bear the index number assigned and the date of filing with the clerk of the court. There are special requirements for the summons in a consumer credit transaction. There are also additional requirements for the summons where a summons with notice is served in lieu of a summons and complaint. See CPLR 305. SERVICE OF THE COMPLAINT Service of Process Specific methods of service are detailed in CPLR 308. Ideally, service is made by actually handing over the summons to the person to be served. If this is not possible, the summons can be served upon a person of suitable age and discretion at the defendant s home or office. Service must be followed up with an additional mailing of the summons. If after due diligence the person to be served or a person of suitable age and discretion cannot be located at the home or office of the defendant, then the summons may be affixed to the door of defendant s business or abode. An additional mailing of the summons is required for this method of service. See CPLR 308. Service of papers can be made by any person, not a party, who is eighteen (18) years of age or older. See CPLR 2103(a). New York has a special provision allowing service of process by mail (see CPLR 312-a) or service upon a party s attorney by facsimile (fax). See CPLR 2103(b)(5). Where service cannot be made upon a defendant, the plaintiff may apply to the court by motion for permission to serve the summons by publication. See CPLR 316. Filing of the Complaint The complaint is filed. When the complaint is not served with the summons, the defendant may serve a written demand for the complaint. The service of the complaint shall be made within twenty (20) days after service of the demand. See CPLR 3012(b). Proof of Service An affidavit of service is executed by the person performing service of process. Proof of service shall specify the papers served, the person who was served and the date, time, address, or in the event there is no address, place and manner of service. See CPLR 306. Proof of service shall be filed with the clerk of the court within 120 days after the date of filing of the summons and complaint. See CPLR 306-b. Amending the Complaint A party may amend his pleading once without leave of court within twenty (20) days after its service, or at any time before the period for responding to it expires, or within twenty (20) days after service of a pleading responding to it. See CPLR 3025. Additionally, an agreement may be made between the parties or their attorneys relating to any matter in any action. These agreements are called stipulations. See CPLR 2104. Unknown Party If the name of a party is unknown, a party may proceed against such person by designating so much of his name and identity as is known. If the name becomes known, all subsequent pleadings shall be taken under the true name, See CPLR 1024. 13

Figure 5-1 Note of Issue. Forms may be purchased from Julius Blumberg, Inc., NYC 10013, or any of its dealers. Reproduction prohibited. 14

Figure 5-2 Certificate of Readiness for Trial. Forms may be purchased from Julius Blumberg, Inc., NYC 10013, or any of its dealers. Reproduction prohibited. 15

Figure 5-3 Summons with Notice. Forms may be purchased from Julius Blumberg, Inc., NYC 10013, or any of its dealers. Reproduction prohibited. 16

Figure 5-3 (continued ) 17

Figure 5-4 Summons with Notice, Consumer Credit Transaction. Forms may be purchased from Julius Blumberg, Inc., NYC 10013, or any of its dealers. Reproduction prohibited. 18

Figure 5-4 (continued ) 19

Figure 5-5 Request for Judicial Intervention. Forms may be purchased from Julius Blumberg, Inc., NYC 10013, or any of its dealers. Reproduction prohibited. 20

Figure 5-5 (continued ) 21

Figure 5-6 Summons Without Notice. Forms may be purchased from Julius Blumberg, Inc., NYC 10013, or any of its dealers. Reproduction prohibited. 22

Figure 5-6 (continued ) 23

Figure 5-7 Affidavit of Personal Service on Corporation. Forms may be purchased from Julius Blumberg, Inc., NYC 10013, or any of its dealers. Reproduction prohibited. 24

Figure 5-7 (continued ) 25

Figure 5-8 Application for Index Number. Forms may be purchased from Julius Blumberg, Inc., NYC 10013, or any of its dealers. Reproduction prohibited. 26

Figure 5-9 Affidavit of Service of Summons or Subpoena. Forms may be purchased from Julius Blumberg, Inc., NYC 10013, or any of its dealers. Reproduction prohibited. 27

Figure 5-9 (continued ) 28

CHAPTER 6 RESPONSES TO THE INITIAL PLEADING The time to respond to a complaint varies with the manner of service (e.g., personally, by mail, substituted service, etc.). An action can be commenced by service of summons and complaint, or by service of a summons with notice. General denials are permitted, where appropriate. A party to an action in New York pleads all affirmative defenses that would otherwise take the adverse party by surprise. The answer need not be filed prior to service on the plaintiff. The complaint is not signed by the attorney. While no attorney s signature is required, a verified complaint must be signed by the plaintiff. In New York, there are no compulsory counterclaims. All counterclaims are deemed permissive. There is no demurrer pleading in New York. KEY POINTS Motions are brought by the parties in New York seeking relief from the court RESPONDING TO THE INITIAL PLEADING Time Limits The time to respond to the complaint depends upon the manner of service. If the complaint was personally served, a defendant must respond within twenty (20) days after service is complete. See CPLR 3012(a). In the event of substitute service, additional time to serve an answer is granted. An answer must be served within thirty (30) days after substitute service is complete. See CPLR 3012(c). In New York, a plaintiff need not serve both a summons and complaint to start an action. A plaintiff has the option and can serve a summons with notice in lieu of a summons and complaint. See CPLR 305(B). In the event the defendant is served with a summons with notice, then the defendant s attorney should respond with a notice of appearance and a demand for a complaint or respond by making a motion. See CPLR 320. Stipulation Enlarging Time This agreement between attorneys need not be approved by the court but must be in writing unless made in open court, See CPLR 2104. TYPES OF ANSWERS General Denials General denials are permitted when appropriate. However, when, for example, a plaintiff serves a verified complaint involving sale and delivery of goods pursuant to CPLR 3016(f), the defendant may not respond with a general denial. Defendant must state those items he disputes, whether the dispute relates to delivery or performance and state the reasonable value or agreed price. Affirmative Defenses CPLR 3018(b) lists affirmative defenses to be included in a responsive pleading. A party should plead all matters that would take the adverse party by surprise, or raise issues of fact not appearing on the face of a prior pleading such as: arbitration and award, collateral estoppel, culpable conduct (as set forth in Article 14-A), discharge in bankruptcy, facts showing illegality, fraud, infancy or other disability of party defending, payment, release, res judicata, statute of frauds, or statute of limitations. DRAFTING THE ANSWER The answer need not be filed prior to service on the plaintiff. The pleading paper need not be numbered. See CPLR 2101. Caption The term index number (not docket number) is used in New York. See CPLR 306-a. Body When the defendant denies having specific knowledge or information this is deemed to be a denial. A party shall deny those statements he knows or believes to be untrue. He must specify those statements as to the truth of which he lacks knowledge or information to form a belief, and this 29

shall have the effect of a denial. All other statements are considered admitted, except if no responsive pleading is permitted they are deemed denied. See CPLR 3018. Prayer and Signature In New York, the wherefore clause is not accompanied by the signature of the attorney. The name, address, and telephone number of the law firm preparing the pleading is generally typed at the end of the answer. See CPLR 2101(d). No signature is required. This is to be distinguished from a verified pleading. In the event that a verified complaint is served, the responsive pleading must also be verified. Generally, the party will sign an affidavit as to the truth of the facts alleged in the pleading. See CPLR 3020(a). Medical or Dental Malpractice Action or Action Against a Municipal Corporation In these actions, pleadings shall contain a prayer for general relief, but shall not state the amount of damages sought. See CPLR 3017(c). Verification When a pleading is verified, each subsequent pleading must also be verified. See CPLR 3020(a). Under specific circumstances, for example, if an attorney s client lives out of the county where the attorney maintains his office or an attorney has personal knowledge of the material allegations of the pleadings, then the attorney might sign the verification to the pleading. See CPLR 3020(d)(3). Service and Filing The answer need not be filed after service upon the plaintiff. Counterclaims New York does not divide counterclaims as either compulsory or permissive. In New York, all counterclaims are considered permissive. A defendant s pleading against another claimant is an interpleader complaint, or against any other party not already a party is a third-party complaint. There shall be a reply to a counterclaim denominated as such, an answer to an interpleader complaint, or third-party complaint and an answer to a crossclaim that contains a demand for an answer. If no demand is made, the crossclaim shall be deemed denied. See CPLR 3011. Contribution Except as provided for in section 15-108 of the General Obligations Law, two or more persons who are subject to liability for damages for the same personal injury, injury to property, or wrongful death, may claim contribution among them whether or not an action has been brought or a judgment has been rendered against the person from whom contribution is sought. See CPLR 1401. Also see Article 15 of the CPLR for actions against persons jointly liable and Article 15 of the CPLR for limited liability of persons jointly liable. Third-party Complaints See CPLR 305(a) concerning service of the third-party summons. See CPLR 306-b for service of the third-party complaint. LEGAL CHALLENGES TO THE COMPLAINT There is no demurrer pleading in New York. A motion to dismiss one or more causes of action could be asserted on the grounds that the pleading fails to state a cause of action. See CPLR 3211(a)(7). Amending In the state system, a pleading may be amended once without leave of court within twenty (20) days after its service, or anytime before the period for responding to it expires, or within twenty (20) days after service of a pleading responding to it. See CPLR 3025(a). Pleadings may also be amended by leave of court, or by stipulation of all parties. See CPLR 3025(b). COUNTERCLAIMS, CROSSCLAIMS, AND THIRD-PARTY COMPLAINTS Cross-Complaint In New York, the defendant can bring a claim against the plaintiff as part of the answer. This is called a counterclaim. The defendant in his or her answer may also bring a claim against other defendants. This is called a crossclaim. See CPLR 3019. Motion to Dismiss Under the CPLR, a party may bring a motion to dismiss one or more causes of action. Some of the grounds for a dismissal motion are: 1. Lack of jurisdiction over the subject matter of the cause of action 2. Lack of capacity to sue 3. Another action is pending 4. Infancy 5. Disability 6. Payment 7. Release 8. Bankruptcy 9. Statute of limitations, statute of frauds 10. Failure to state a cause of action 11. Lack of jurisdiction over the person 12. Absence of a necessary party (See CPLR 3211) 30

Dismissal motions can also be brought for forum non conveniens. Some of the grounds for such dismissal motions are: 1. Inconvenient forum. (See CPLR 327) 2. Failure to serve a complaint when demanded. (See CPLR 3012(b)) 3. Failure to comply with demands for disclosure. (See CPLR 3126(3)) 4. Failure to prosecute. (See CPLR 3216) 5. Failure to answer. (See CPLR 3215) It is to be noted that a party has the option of bringing a dismissal motion, or asserting such affirmative defenses in the answer. Motion to Quash Service of Summons A dismissal motion under CPLR 3211(a)(8) would be brought in New York where the defendant contested service. complaint is brought by way of a dismissal motion under CPLR 3211(a)(7), for failure to state a cause of action. FAILURE TO ANSWER Default judgments are governed by CPLR 3215. Generally a default judgment is sought as a result of the defendant s failure to respond to the summons with notice, or to the summons and complaint. If the plaintiffs claim is for a sum, certain application may be made to the clerk of the court. See CPLR 3215(a). However, an assessment of damages by the court is required for all other claims. See CPLR 3215(b). Setting Aside Defaults A motion may be brought pursuant to CPLR 5015(s) for relief from a default judgment based on excusable default. Motions to vacate judgment may be brought on other grounds as well. Motion for More Definite Statement If a pleading is so vague or ambiguous that a party cannot reasonably be required to frame a response, the party may move for a more definite statement. See CPLR 3024(a). Demurrer In New York, a challenge to the legal sufficiency of the Motion to Quash Service of Summons In New York, this is called a motion to dismiss for lack of jurisdiction pursuant to CPLR 3211(a)(8). Demurrer In New York, this is a motion to dismiss for failure to state a cause of action pursuant to CPLR 3211(a)(7). 31

Figure 6-1 Request for Preliminary Conference. Forms may be purchased from Julius Blumberg, Inc., NYC 10013, or any of its dealers. Reproduction prohibited. 32

Figure 6-1 (continued ) 33

Figure 6-2 Affirmation of Good Faith for Preliminary Conference. Forms may be purchased from Julius Blumberg, Inc., NYC 10013, or any of its dealers. Reproduction prohibited. 34

Figure 6-2 (continued ) 35

Figure 6-3 Notice of Issue and Certificate of Readiness for Trial. Forms may be purchased from Julius Blumberg, Inc., NYC 10013, or any of its dealers. Reproduction prohibited. 36

Figure 6-3 (continued ) 37

Figure 6-4 Uniform Transcript of Judgment. Forms may be purchased from Julius Blumberg, Inc., NYC 10013, or any of its dealers. Reproduction prohibited. 38

Figure 6-4 (continued ) 39

CHAPTER 7 MOTION PRACTICE KEY POINTS The motion and notice of hearing can be combined into one document. Motion practice is governed by Article 22 of the CPLR and local court rules as well. An order to show cause is brought where speedy relief is required. The time limit for responding to motions is determined by the manner of service of motions. Sanctions are now available where certain frivolous claims are brought. PREPARING, SERVING, AND RESPONDING Preparation of the Written Papers Article 22 of the CPLR governs motion practice in New York. Additionally, local court rules should be consulted for any other considerations or requirements. See www.cplr.org for the CPLR. Notice of Hearing on the Motion In New York, the motion and notice of hearing on the motion can be combined into one document. See CPLR 2214. Declaration In New York, this is referred to as an affirmation. See CPLR 2309. Memorandum of Points and Authorities This is referred to as a memorandum of law in New York. Responding to Motions Answering affidavits shall be served at least two days before the return date of the motion. See CPLR 2214(b). If the answering affidavit is served by mall, an additional five days must be added to the two days for mailing time. See CPLR 2103(b)(2). COURT PROCEDURES INVOLVING MOTIONS In New York, local court rules determine whether or not oral argument is required on a motion. Hearings Local court rules of the different courts will determine the procedure for hearings. See www.courts.state.ny.us/ ucsrules.htm Service and Filing A notice of motion and supporting affidavit shall be served at least eight days before the motion is noticed to be heard. See CPLR 2214. If service of the motion papers is made by mail, five additional days must be added to the eight-day motion time. See CPLR 2103(b)(2). Order Shortening Time In New York, a party proceeds by way of an order to show cause if the regular motion time cannot be followed. See CPLR 2214(d). Proof of Service by Mail In New York, this is referred to as the affidavit of service by mail. See CPLR 306. Responding to Motions The memorandum of points and authorities that accompanies the affidavits in opposition is referred to as the memorandum of law in New York. Orders After Motions Some motions require that an order be prepared and sent directly to the judge (by the winning party), while other orders must be sent to the judge on notice to the opposing side. See CPLR 2219(a). Sanctions The court will award costs and attorney fees in actions to recover damages for personal injury, injury to property, or wrongful death, when frivolous claims are pursued. See CPLR 8303-a. Costs upon frivolous claims and counterclaims in podiatric, dental, and medical malpractice actions will be awarded to the successful party. See CPLR 8303-a. When a party refuses to comply with an order for disclosure, or willfully fails to disclose information, the court may issue an order striking out pleadings or dismissing the action. See CPLR 3126(b)(3). 40