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9

PART IIInitiating Litigation

CHAPTER 3Preliminary Considerations

KEY POINTS

• Certain causes of actions must be specificallypleaded.

• New York statute of limitations must be consultedbefore each action is commenced as they differfrom those of other states, as well as the federalstatutes, and may be changed from time to time bythe state legislature.

• Claims against the state of New York and publiccorporations require a Notice of Claim to start theaction.

• Attorneys are bound by the Lawyer’s Code of Pro-fessional Responsibility and subject to discipli-nary action.

DETERMINING THE EXISTENCE OF A CAUSE OF ACTION

In New York, statements in pleadings should be suffi-ciently particular to give the court and parties notice of thetransactions, occurrences, or series of transactions or oc-currences intended to be proved and the material elementsof each cause of action or defense. See CPLR 3013.

In New York, automobile accidents are covered bywhat is commonly referred to as the no-fault statute. Inorder to bring an action for injuries following an automo-bile accident, specific conditions must be met. A “seriousinjury” must be pleaded for the suit to proceed in court.See Insurance Law § 5102(d).

ELEMENTS OF A CAUSE OF ACTION

Certain issues must be pleaded to pursue specific actionsin New York. Examples of actions that must be pleaded

with particularity include libel or slander, fraud or mis-take, separation or divorce, judgment, law of a foreigncountry, sale and delivery of goods, personal injury arisingfrom a motor vehicle accident 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 ofmerit executed by the attorney for the plaintiff. See CPLR3012-a.

9

TIME LIMITATIONS

STATUTE OF LIMITATIONS

Actions brought against the state of New York must becommenced 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 limita-tions for contract actions except when otherwise agreed, orfour years if an action is brought pursuant to the UniformCommercial Code (UCC). See CPLR 213.

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PROPERTY DAMAGE. There is a three-yearstatute 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-yearstatute of limitations. See CPLR 214(6).

MEDICAL, DENTAL OR PODIATRIC MAL-PRACTICE. There is a two-and-one-half year statute oflimitations. See CPLR 214-a.

WRONGFUL DEATH. There is a two-year statuteof limitations. See Estates, Powers, and Trust Law, 5-4.1.

INTENTIONAL TORTS. These include assault,battery, false imprisonment, malicious prosecution, libelor slander; for violation of right of privacy under CivilRights Law § 51. The statute of limitations is one year. See CPLR § 215(3).

CLAIMS STATUTES

CLAIMS. In New York, a Notice of Claim must beserved when actions are brought against the state of NewYork, as well as for actions brought against public corpo-rations; See Court of Claims Act § 10 and General Munic-ipal Law § 50-e. See www.nyscourtofclaims.state.ny.us

LACHES. There is no time period for an actionbrought in equity (where the plaintiff has not adequateremedy at law.) Therefore the statute of limitations for eq-uity actions full under the “catch-all” provision of CPLR § 213(1), or six years. The defendant can assert the doc-trine of laches as a defense, even if the matter is broughtwithin the applicable statute of limitations. The defendantwould have to show that (1) plaintiff has undertaken unduedelay in bringing the claim, and (2) that the delay has prej-udiced the defendant.

ETHICAL CONSIDERATIONS IN ACCEPTING A CASE

In New York, attorneys are bound by the Lawyer’s Code ofProfessional Responsibility, which can be found at www.nysba.org/Content/NavigationMenu/Attorney_Resources/Lawyers_Code_of_Professional_Responsibility/CodeofResponsibility.pdf. See also 22 NYCRR Part 1200.

When an attorney accepts a case where the fee isexpected to be over $3,000, they must provide to the clienta “Written Letter of Engagement” pursuant to 22 NYCRR§ 1215. The letter of engagement, or its equivalent in asigned written retainer agreement, shall include: 1. Expla-nation of the scope of the legal services to be provided; and2. Explanation of attorney’s fees to be charged, expensesand billing practices; and, where applicable, shall providethat the client may have a right to arbitrate fee disputesunder Part 137 of the Rules of the Chief Administrator.

For a sample Letter of Engagement, see http://www.nysba.org/Content/NavigationMenu/Attorney_Resources/Letters_of_Engagement/Letters_of_Engagement.htm.

DOMESTIC RELATIONS MATTERS

Attorneys representing clients in certain matrimonial mat-ters must provide prospective clients with a statement ofClients Rights and Responsibilities. The retainer agree-ments for such matters must be in writing and contain cer-tain language. Attorneys may not accept non-refundableretainer fees from such clients, and the client (but not theattorney) has the right to compel the attorney to submit tobinding arbitration of fee disputes. 22 NYCRR Part 1400.

10 PART II Initiating Litigation

ETHICAL CONSIDERATIONS AFTER ACCEPTING A CASE

FRIVOLOUS CLAIMS

Costs can be assessed against a plaintiff or defendant inactions to recover damages for personal injury, injury toproperty, or wrongful death, if such party’s action in sup-port or defense of the case shall be found to be frivolous.See CPLR 8303-a. Costs can also be awarded for a frivo-lous claim or defense made during health care arbitrations.See CPLR 7564(b).

CONFLICT OF INTEREST

A lawyer in New York must decline employment if theexercise of independent professional judgment on behalfof the client will be adversely affected. See DR 5-105 (22 NYCRR § 1200.24).

COMMUNICATING WITH THE OPPOSING PARTY

It is unethical in New York for the attorney to personallycontact an opposing party who is represented by counsel.See DR 7-104 (22 NYCRR § 1200.35).

CONFIDENTIALITY

A lawyer shall not knowingly reveal a confidence or secretof a client. See DR 4-101 (22 NYCRR § 1200.19).

HONESTY

A lawyer shall not engage in conduct involving dishonesty,fraud, deceit, or misrepresentation. See DR 1-102 (22NYCRR § 1200.3).


FEE-SHARING

Attorneys and paralegals in New York may not split fees.This is a violation of the Lawyer’s Code of ProfessionalResponsibility and subject to disciplinary action. See DR3-102 (22 NYCRR § 1200.17).

PRESERVING IDENTITY OF FUNDS AND PROPERTY OF OTHERS

A lawyer shall not commingle property or funds of a clientwith his or her own. A separate client trust fund must be

maintained. Records for such accounts, as well as copiesof all retainer and compensation agreements with clientsmust be kept for at least seven years. See DR 9-102 (22NYCRR § 1200.46).

CHAPTER 4 Investigation and Evidence 11

CHAPTER 4Investigation and Evidence

KEY POINTS

• Contact New York’s secretary of state for informa-tion regarding domestic corporations, limited lia-bility companies, limited partnerships, and limitedliability partnerships.

• Accident reports can be obtained from the NewYork State Department of Motor Vehicles.

• A medical authorization is required to obtain med-ical records.

• Weather reports can be obtained from the NationalClimatic Data Center

• Expert testimony is governed by CPLR 3101(d)and CPLR 4515.

STEPS FOR LOCATING THE AGENT OFCORPORATIONS OR PARTNERSHIPS

Partnership and corporate information is available fromthe secretary of state’s office:

Secretary of State162 Washington AvenueAlbany, New York 12210Telephone: (518) 474-4750

You can access the Department of State’s Corporationand Business Entity Database by going to their website atwww.dos.state.ny.us, and clicking on their link to Corpora-tions. This database includes business and not for profitcorporations, limited partnerships, limited liability com-panies and limited liability partnerships, as well as othermiscellaneous businesses.

All other entities such as general partnerships, soleproprietorships and limited liability partnerships file anassumed name certificate directly with the County Clerkin each county in which the entity conducts or transactsbusiness.

EVIDENCE

ACCIDENT REPORTS. If an accident involvesdeath or personal injury, or property damage in excess of$1,000 to the property of any one individual, the driversmust report it to the state Department of Motor Vehicles.To obtain a copy of an accident report filed by a person orpolice agency with the DMV, complete a the form MV-198C and send it with the proper fee to the DMV. For in-formation about obtaining driver and vehicle records, see the DMV’s website at http://www.nydmv.state.ny.us/abstract. From there, you can access their forms database.

MEDICAL RECORDS. To obtain medicalrecords, you will need a fully executed medical authoriza-tion form that complies with the Health Insurance Porta-bility and Accountability Act of 1996 (HIPAA). For aHIPAA-compliant form, see http://www.courts.state.ny.us/forms/ and select HIPAA form.

WEATHER REPORTS. The Climate Resourcespage (http://www.ncdc.noaa.gov/ ol/climate/climatere-sources.html) from the National Climatic Data Center(NCDC) contains links to all of the NCDC’s informationabout historical weather data. At the “Get/View OnlineClimate Data” link, you can select the data you want.Selecting “Surface Data: Daily” will provide choices ofseveral datasets.


EXPERT WITNESSES. The attorney introducingexpert testimony lays a foundation for that expert testi-mony by asking questions as to the experts education andtraining. The court itself does not qualify experts. SeeCPLR 3101(d) and CPLR 4515. The Internet is a useful

resource for locating the names of experts, or for more in-formation about the opposing side’s expert. It’s best to getreferences, such as other attorneys who have relied uponthat expert.


CHAPTER 5The Initial Pleadings

KEY POINTS

• The Summons and Complaint must be filed priorto service.

• The responsive pleadings need not be filed prior toservice.

• A petition is a method of commencing a specialproceeding and is not synonymous with a com-plaint.

• Generally, verified complaints are not necessaryand 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.

• Numbered paper is no longer required for NewYork pleadings.

• Pleadings must be signed in New York.

INITIAL PLEADINGS

PLEADINGS IN GENERAL

The summons and complaint must be filed prior to service.Responsive pleadings need not be filed prior to serviceupon the opposing party. See CPLR 306-a.

PETITION

In NewYork, a petition is a method of starting a special pro-ceeding. See CPLR 402. A special proceeding is a quick

and economical means of enforcing a claim permitted bystatute in certain matters. Examples of these are proceed-ings to settle an infant’s claim. See CPLR 1207 and Article78 proceedings under CPLR 7801 et seq.

VERIFICATION. A verified complaint is notmandatory except in an action involving the sale and de-livery of goods pursuant to CPLR 3016(f); matrimonialactions pursuant to Domestic Relations Law § 211.

PARTIES TO THE LAWSUIT

REAL PARTY IN INTEREST

CPLR 1004 lists proceedings and situations where suit canbe brought by or against representatives of parties, ratherthan against the actual person they are representing. Someexamples include: an executor, administrator, guardian ofproperty of an infant, the committee of a judicially de-clared incompetent, the conservator of the property of aconservatee, the trustee of an express trust, an insurer assubrogor to an insured, and a person in whose name a con-tract was made for benefit of another.

STATUS

In New York, the fact that a corporation was an Idaho cor-poration would not be specified in the caption but should

be stated in the allegations of the complaint. Each paperserved or filed shall begin with a caption setting forth thename of the court, venue, title of the action, the nature ofthe paper, and the index number. See CPLR 2101(c).

CAPACITY

MINOR. A minor in New York is someone undereighteen (18) years of age.

GUARDIAN AD LITEM. A parent having legalcustody of a child may bring suit on the child’s behalf inNew York without the appointment of a guardian by thecourt. See CPLR 1201. Generally, a guardian ad litem isappointed if an infant defendant has no guardian of hisproperty, parent, or other person or agency having legalcustody. See CPLR 1201.


CHAPTER 5 The Initial Pleadings 13

CORPORATIONS AND OTHER BUSINESSENTITIES. Two or more people who conduct businessas a partnership can sue or be sued in the partnershipname. See CPLR 1025. See CPLR 310 for service ofprocess provisions.

GOVERNMENTAL AGENCIES. New York haswaived the sovereign immunity provision to the extent thatit permits suits against itself in the Court of Claims. SeeCPLR 307 for service provisions. Also see the Court ofClaims Act. See www.nyscourtofclaims.state.ny.us

JOINING MULTIPLE PARTIES

PERMISSIVE JOINDER. Generally, this occurswhere there is a common question of law or fact. SeeCPLR 1002.

COMPULSORY JOINDER. The term necessaryjoinder of parties is used. Persons who ought to be partiesif complete relief is to be accorded or who might be un-fairly affected by a judgment in an action should be madeplaintiffs or defendants. See CPLR 1001.

MOTION PRACTICE. The court should not pro-ceed in the absence of a person who should be a party.CPLR 3211(a)(10) provides statutory support for a motionto dismiss in the absence of such a person.

CLASS ACTIONS

Class Actions are governed by CPLR Article 9. The courtmust find that certain prerequisites have been satisfied indetermining whether or not an action may proceed as aclass action. See CPLR 901. One or more members of aclass may sue on behalf of all if:

1. The class is so numerous that joinder of all mem-bers is impracticable;

2. There are questions of law or fact common to theclass;

3. The claims or defenses of the representatives aretypical of the class;

4. The representative parties will fairly and ade-quately protect the interest of the class;

5. A class action is superior to other available meth-ods for resolving the controversy.

INTERPLEADER

A person who is or may be exposed to multiple liability asa result of adverse claims may commence an action of interpleader against two or more claimants. CPLR 1006.

DRAFTING THE COMPLAINT

Pleadings must be signed by the attorney. Each paperserved or filed shall be durable, white, and, except forsummonses, subpoenas, notices of appearance, notes ofissue, orders of protection, and exhibits, shall be 81 ⁄ 2 by11 inches in size. Writing should be legible and in blackink. CPLR 2101(a). A request for trial by jury is not madein the complaint. This is done on a separate form called anote of issue. See CPLR 3402 and 4102(a).

Statements in the pleadings shall be sufficiently par-ticular to give the court and parties notice of the transac-tions intended to be proved and the material elements ofeach cause of action or defense. See CPLR 3013.

Every pleading shall consist of plain and concisestatements in consecutively numbered paragraphs. Eachparagraph shall contain a single allegation. Causes of ac-tion or defenses may be stated alternatively or hypotheti-cally. See CPLR 3014.

In general a Complaint shall contain a demand for re-lief. CPLR §3017. The exceptions are: actions for personalinjury, wrongful death, medical or dental malpractice, oractions against a municipal corporation. In those actions,the pleadings must contain a request for general relief, butmust not state the amount of damages to which thepleader deems himself entitled. CPLR § 3017(c).

Each paper served or filed shall be indorsed with thename, address, and telephone number of the attorney forthe party, or if a party does not appear by an attorney, withthe name, address, and telephone number of the party. SeeCPLR 2101(d).

COVER SHEET

A cover sheet is not used.

FILING THE COMPLAINT

An action is commenced by filing a summons and com-plaint or summons with notice with the County Clerk. SeeCPLR 304.

INDIVIDUAL ASSIGNMENT SYSTEM

Both the Uniform Rules for the Supreme Court and thecounty court and the Uniform Rules for the City Courts

outside the City of New York have an individual assign-ment system (IAS) for all civil actions and proceedings.For supreme and county court matters, a single judge is as-signed to supervise the action upon filing a Request forJudicial Intervention (RJI) with the County Clerk. In citycourts, assignments are made to judges upon the filing ofthe first document in the matter. See 22 NYCRR 202.3(b),210.3(b). For the RJI form, see www.courts.state.ny.us/forms



OFFICE OF COURT ADMINISTRATION

Requests for Judicial Intervention must now be modifiedto incorporate the court system’s new time frames (stan-dards and goals) for the completion of civil cases. In allcases except contested matrimonials, the estimated timeperiod for the case to be ready for trial must be stated. Forroutine cases, discovery should be completed and the Noteof Issue filed within twelve (12) months of the filing of theRJI. For complex cases, that period will be fifteen (15)months. Contested matrimonials will be subject to specificstandards and goals reflecting the time frames set forth inthe matrimonial rules. See www.courts.state.ny.us

DOCKET NUMBER

In New York, cases are assigned index numbers rather thandocket numbers. An index number is assigned when theSummons and Complaint are filed. When the index num-ber is assigned, a fee shall be paid. See CPLR 306-a. TheSummons shall bear the index number assigned and thedate of filing with the County Clerk. See CPLR 305.Where the case has been assigned to an individual judge,the name of the assigned judge must appear to the right ofthe caption. 22 NYCRR 202.5. CPLR 8023. Parties maypay fees with a credit card.

THE SUMMONS

The attorney prepares the Summons and Complaint, andfiles these prior to service. Then the attorney for plaintiffhas the summons and complaint served on the defendant.A person who is eighteen (18) years of age or older and isnot a party to the action may serve the summons and com-plaint CPLR 2103(a). A summons shall specify the basisof venue designated and if based upon residence of the

plaintiff, it shall specify the plaintiff ’s address and alsobear the index number assigned and the date of filing withthe clerk of the court. There are special requirements forthe summons in a consumer credit transaction. There arealso additional requirements for the summons where asummons with notice is served in lieu of a summons andcomplaint. See CPLR 305.

SERVICE OF THE COMPLAINT

SERVICE OF PROCESS

Specific methods of service are detailed in CPLR 308. Personal service is made by actually handing over thesummons to the defendant. CPLR 308(1).

If this is not possible, the summons can be servedupon a person of suitable age and discretion at the defen-dant’s dwelling this type of office. Service must be fol-lowed up with an additional mailing of the summons.CPLR 308(2).

If after due diligence the person to be served or a per-son of suitable age and discretion cannot be located at thehome or office of the defendant, then the summons may beaffixed to the door of defendant’s business or dwelling. Anadditional mailing of the summons is required for thismethod of service. CPLR 308(4).

Service of papers can be made by any person, not aparty, who is eighteen (18) years of age or older. SeeCPLR 2103(a). New York has a special provision allowingservice of process by mail (see CPLR 312-a) or serviceupon a party’s attorney by facsimile (fax). See CPLR2103(b)(5). Where service cannot be made upon a defen-dant, the plaintiff may apply to the court by motion for permission to serve the summons by publication. SeeCPLR 316.

FILING OF THE COMPLAINT

The complaint is filed with the Summons and served uponthe defendant with the Summons. When the complaint isnot filed with the summons, and therefore not served, thedefendant may serve a written Demand for a 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 perform-ing service of process. Proof of service shall specify thepapers served, the person who was served and the date,time, address, or in the event there is no address, place andmanner of service. See CPLR 306(a). Service shall bemade within 120 days after the initial pleadings are filedCPLR 306-B. There is no longer a requirement that proofof service be filed with the County Clerk.

AMENDING THE COMPLAINT

A party may amend his pleading once without leave ofcourt within twenty (20) days after its service, or at anytime before the period for responding to it expires, orwithin twenty (20) days after service of a pleading re-sponding to it. See CPLR 3025(a). Additionally, an agree-ment may be made between the parties or their attorneysrelating to any matter in any action. These agreements arecalled stipulations. See CPLR 2104.

UNKNOWN PARTY

If the name of a party is unknown, a party may proceedagainst such person by designating so much of his nameand identity as is known. If the name becomes known, allsubsequent pleadings shall be taken under the true name,See CPLR 1024.



Exhibit 5-1 Note of Issue. Forms may be purchased from BlumbergExcelsior, Inc. or any of its dealers. Interactive electronic forms may be purchased at

WWW.BLUMBERG.COM. Reproduction prohibited.



Exhibit 5-2 Certificate of Readiness for Trial. Forms may be purchased from BlumbergExcelsior, Inc. or any of its dealers. Interactive electronic forms may be purchased at




Exhibit 5-3 Summons with Notice. Forms may be purchased from BlumbergExcelsior, Inc. or any of its dealers. Interactive electronic forms may be purchased at


(continued)



Exhibit 5-3 Summons with Notice. Forms may be purchased from BlumbergExcelsior, Inc. or any of its dealers. Interactive electronic forms may be purchased at

WWW.BLUMBERG.COM. Reproduction prohibited. (continued )



Exhibit 5-4 Summons with Notice, Consumer Credit Transaction. Forms may be purchased from BlumbergExcelsior, Inc. or any of its dealers. Interactive electronic forms may be purchased

at WWW.BLUMBERG.COM. Reproduction prohibited.

(continued )



Exhibit 5-4 Summons with Notice, Consumer Credit Transaction. Forms may be purchased fromBlumbergExcelsior, Inc. or any of its dealers. Interactive electronic forms may be purchased

at WWW.BLUMBERG.COM. Reproduction prohibited. (continued)



Exhibit 5-5 Request for Judicial Intervention.

UCS-840 (REV 1/2000)

REQUEST FOR JUDICIAL INTERVENTION

COURT COUNTY INDEX NO. DATE PURCHASED

PLAINTIFF(S):

DEFENDANT(S):

Date issue joined: ______________________ Bill of particulars served (Y/N): [ ]Yes [ ]No...................................................................................................................................................................................

NATURE OF JUDICIAL INTERVENTION (check ONE box only AND enter information)

[ ] Request for preliminary conference

[ ] Note of issue and/or certificate of readiness

[ ] Notice of motion (return date:__________)Relief sought_______________

[ ] Order to show cause (clerk enter return date:__________________)Relief sought_____________________

[ ] Other ex parte application (specify:

____________________________________)

NATURE OF ACTION OR PROCEEDING (Check ONE box only)MATRIMONIAL Malpractice[ ] Contested -CM [ ] Medical/Podiatric -MM[ ] Uncontested -UM [ ] Dental -DM

[ ] *Other Professional -OPMCOMMERCIAL _________________________________[ ] Contract -CONT [ ] Motor Vehicle -MV[ ] Corporate -CORP [ ] *Products Liability -PL[ ] Insurance (where insurer is a _________________________________

party, except arbitration) -INS [ ] Environmental -EN[ ] UCC (including sales, negotiable -UCC [ ] Asbestos -ASB

instruments) [ ] Breast Implant -BI[ ] *Other Commercial -OC [ ] *Other Negligence -OTN

______________________________ _________________________________[ ] *Other Tort (including

REAL PROPERTY intentional) -OT[ ] Tax Certiorari -TAX _________________________________[ ] Foreclosure -FOR SPECIAL PROCEEDINGS[ ] Condemnation -COND [ ] Art. 75 (Arbitration) -ART75[ ] Landlord/Tenant -LT [ ] Art. 77 (Trusts) -ART77[ ] *Other Real Property -ORP [ ] Art. 78 -ART78

______________________________ [ ] Election Law -ELEC[ ] Guardianship (MHL Art. 81) -GUARD81

OTHER MATTERS [ ] *Other Mental Hygiene -MHYG[ ] *______________________________ -OTH [ ] *Other Special Proceeding -OSP

TORTS

(continued )

For Clerk Only

IAS entry date

Judge Assigned

RJI Date

[ ] Notice of petition (return date:_____________)Relief sought __________________

[ ] Notice of medical or dental malpractice action (specify: ________________________)

[ ] Statement of net worth

[ ] Writ of habeas corpus

[ ] Other (specify: ________________________

__________________________________________)



Exhibit 5-5 Request for Judicial Intervention. (continued)

Check “YES” or “NO” for each of the following questions:

Is this action/proceeding against a

YES NO YES NO[ ] [ ] Municipality: [ ] [ ] Public Authority:

(Specify ______________________________) (Specify_______________________________)

YES NO[ ] [ ] Does this action/proceeding seek equitable relief?[ ] [ ] Does this action/proceeding seek recovery for personal injury?[ ] [ ] Does this action/proceeding seek recovery for property damage?

Pre-Note Time Frames:(This applies to all cases except contested matrimonials and tax certiorari cases)

Estimated time period for case to be ready for trial (from filing of RJI to filing of Note of Issue):

Expedited: 0–8 months Standard: 9–12 months Complex: 13–15 months

Contested Matrimonial Cases Only: (Check and give date)

Has summons been served? No Yes, Date____________

Was a Notice of No Necessity filed? No Yes, Date_____________

ATTORNEY(S) FOR PLAINTIFF(S):

Self Name Address Phone #Rep.*

ATTORNEY(S) FOR DEFENDANT(S):


*Self Represented: parties representing themselves, without an attorney, should check the “Self Rep.” box and enter their name,address, and phone # in the space provided above for attorneys.

INSURANCE CARRIERS:

RELATED CASES: (IF NONE, write “NONE” below)Title Index # Court Nature of Relationship

I AFFIRM UNDER PENALTY OF PERJURY THAT, TO MY KNOWLEDGE, OTHER THAN AS NOTED ABOVE, THERE ARE ANDHAVE BEEN NO RELATED ACTIONS OR PROCEEDINGS, NOR HAS A REQUEST FOR JUDICIAL INTERVENTION PREVIOUSLYBEEN FILED IN THIS ACTION OR PROCEEDING.

Dated:(SIGNATURE)

______________________________________________________(PRINT OR TYPE NAME)

______________________________________________________ATTORNEY FOR

ATTACH RIDER SHEET IF NECESSARY TO PROVIDE REQUIRED INFORMATION

\forms\rji2000.wpd



Exhibit 5-6 Summons Without Notice. Forms may be purchased from BlumbergExcelsior, Inc. or any of its dealers. Interactive electronic forms may be purchased at


(continued)



Exhibit 5-6 Summons Without Notice. Forms may be purchased from BlumbergExcelsior, Inc. or any of its dealers. Interactive electronic forms may be purchased at

WWW.BLUMBERG.COM. Reproduction prohibited. (continued)



Exhibit 5-7 Affidavit of Personal Service on Corporation. Forms may be purchased fromBlumbergExcelsior, Inc. or any of its dealers. Interactive electronic forms may be

purchased at WWW.BLUMBERG.COM. Reproduction prohibited.

(continued)



Exhibit 5-7 Affidavit of Personal Service on Corporation. Forms may be purchased fromBlumbergExcelsior, Inc. or any of its dealers. Interactive electronic forms may be purchased at WWW.BLUMBERG.COM. Reproduction prohibited. (continued)



Exhibit 5-8 Application for Index Number. Forms may be purchased from BlumbergExcelsior, Inc. or any of its dealers. Interactive electronic forms may be purchased at




Exhibit 5-9 Affidavit of Service of Summons or Subpoena. Forms may be purchased fromBlumbergExcelsior, Inc. or any of its dealers. Interactive electronic forms may be purchased

at WWW.BLUMBERG.COM. Reproduction prohibited.



Exhibit 5-9 Affidavit of Service of Summons or Subpoena. Forms may be purchased fromBlumbergExcelsior, Inc. or any of its dealers. Interactive electronic forms may be purchased

at WWW.BLUMBERG.COM. Reproduction prohibited. (continued)


• The time for a defendant to respond to a complaintvaries with the manner of service (e.g., person-ally, by mail, substituted service, etc.), upon thedefendant.

• An action can be commenced by service of sum-mons and complaint, or by service of a summonswith notice.

• General denials are permitted, where appropriate.

• A defendant pleads all affirmative defenses thatwould otherwise take the adverse party by surprise.

• The Answer need not be filed prior to service onthe plaintiff.

• If the plaintiff serves a verified Complaint, the de-fendant’s Answer must be verified.

• In New York, there are no compulsory counter-claims. All counterclaims are deemed permissive.

• There is no demurrer pleading in New York.

• Motions are brought by the parties in New Yorkseeking relief from the court.


CHAPTER 6Responses to the Initial Pleading

KEY POINTS

RESPONDING TO THE INITIAL PLEADING

TIME LIMITS

The time to respond to the complaint depends upon themanner of service. If the complaint was personally served,a defendant must respond within twenty (20) days afterservice is complete. See CPLR 3012(a). In the event ofsubstitute service, additional time to serve an answer isgranted. An answer must be served within thirty (30) daysafter substitute service is complete. See CPLR 3012(c).

In New York, a plaintiff need not serve both a sum-mons and complaint to start an action. A plaintiff has theoption and can serve a summons with notice in lieu of asummons and complaint. See CPLR 304, 305(b).

In the event the defendant is served with a summonswith notice, then the defendant’s attorney should respondwith a notice of appearance and a demand for a complaintor respond by making a motion. See CPLR 320, 3012(b).

STIPULATION ENLARGING TIME

This agreement between attorneys need not be approvedby the court but must be in writing, unless made in opencourt. See CPLR 2104.

TYPES OF ANSWERS

GENERAL DENIALS

General denials are permitted when appropriate. However,when a plaintiff serves a verified complaint involving saleand delivery of goods pursuant to CPLR 3016(f), the de-fendant may not respond with a general denial. Defendantmust state those items he disputes, and whether the disputerelates to delivery or performance, reasonable value oragreed price.

AFFIRMATIVE DEFENSES

CPLR 3018(b) lists affirmative defenses to be included ina 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 pleadingsuch as: arbitration and award, collateral estoppel, culpa-ble conduct (as set forth in Article 14-A), discharge inbankruptcy, facts showing illegality, fraud, infancy orother disability of the defendant, payment, release, res ju-dicata, statute of frauds, or statute of limitations.


CHAPTER 6 Responses to the Initial Pleading 31

DRAFTING THE ANSWER

The Answer need not be filed prior to service on the plain-tiff. CPLR 2101 governs the form of the papers.

CAPTION

The term index number (not docket number) is used inNew York. See CPLR 306-a.

BODY

The defendant shall deny those statements he knows or be-lieves to be untrue. If there is a statement as to which helacks knowledge or information to form a belief, he mustspecify so, which will have the effect of a denial. All otherstatements are considered admitted, except if no respon-sive pleading is permitted they are deemed denied. SeeCPLR 3018(a).

PRAYER AND SIGNATURE

The name, address, and telephone number of the law firmpreparing the Answer is typed at the end. See CPLR2101(d). The attorney’s signature is required.

VERIFICATION

In the event that a verified complaint is served, the respon-sive pleading must also be verified. Generally, the party

will sign an affidavit as to the truth of the facts alleged inthe pleading. See CPLR 3020(a). CPLR 3020(b) governswhen an Answer must be verified.

Under specific circumstances, for example, if an attor-ney’s client lives out of the county where the attorneymaintains his office or an attorney has personal knowledgeof the material allegations of the pleadings, then the attor-ney might sign the verification to the pleading. See CPLR3020(d)(3).

SERVICE AND FILING

The Answer need not be filed after service upon the plaintiff.

AMENDING

A pleading may be amended once without leave of courtwithin twenty (20) days after its service, or anytime beforethe period for responding to it expires, or within twenty(20) days after service of a pleading responding to it. SeeCPLR 3025(a). Pleadings may also be amended by leaveof court, or by stipulation of all parties. See CPLR3025(b).

COUNTERCLAIMS, CROSSCLAIMS, AND THIRD-PARTY COMPLAINTS

CROSS-COMPLAINT

The defendant in his or her answer may also bring a claimagainst other defendants. This is called a crossclaim. SeeCPLR 3019. If no demand is made, the crossclaim shall bedeemed denied. See CPLR 3011.

COUNTERCLAIMS

In New York, the defendant can bring a claim against theplaintiff as part of the answer. This is called a counter-claim.

New York does not divide counterclaims as eithercompulsory or permissive. In New York, all counterclaimsare considered permissive. There shall be a reply to acounterclaim denominated as such.

CONTRIBUTION

Except as provided for in section 15-108 of the GeneralObligations Law, two or more persons who are subject to

liability for damages for the same personal injury, injuryto property, or wrongful death, may claim contributionamong them, whether or not an action has been brought ora judgment has been rendered against the person fromwhom contribution is sought. See CPLR 1401. Also seeArticle 15 of the CPLR for actions against persons jointlyliable and Article 15 of the CPLR for limited liability ofpersons jointly liable.

THIRD-PARTY COMPLAINTS

See CPLR 305(a) concerning service of the third-partysummons. See CPLR 306-b for service of the third-partycomplaint.



LEGAL CHALLENGES TO THE COMPLAINT

There is no demurrer pleading in New York. A motion todismiss one or more causes of action could be asserted onthe grounds that the pleading fails to state a cause of ac-tion. See CPLR 3211(a)(7).

MOTION TO DISMISS

Under the CPLR, a party may bring a motion to dismissone or more causes of action. CPLR 3211. Some of thegrounds for a dismissal motion are:

1. A defense is founded upon documentary evi-dence;

2. Lack of jurisdiction over the subject matter of thecause of action

3. Lack of capacity to sue

4. Another action is pending

5. Arbitration and award, collateral estoppel, dis-charge in bankruptcy, infancy or other disabilityof the defendant, payment, release, res judicata,statute of limitations, or statute of frauds;

6. Improper counter-claim;

7. Failure to state a cause of action

8. Lack of jurisdiction over the person;

9. Lack of jurisdiction under CPLR 314 or 315;

10. Absence of a necessary party

Dismissal motions can also be brought for:

1. Inconvenient forum. See CPLR 327

2. Failure to serve a complaint when demanded. SeeCPLR 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 bringinga dismissal motion, or asserting such affirmative defensesin the answer.

MOTION FOR MORE DEFINITE STATEMENT

If a pleading is so vague or ambiguous that a party cannotreasonably be required to frame a response, the party maymove for a more definite statement. See CPLR 3024(a).

DEMURRER

In New York, a challenge to the legal sufficiency of thecomplaint is brought by way of a dismissal motion underCPLR 3211(a)(7), for failure to state a cause of action.

FAILURE TO ANSWER

Default judgments are governed by CPLR 3215. Generallya default judgment is sought as a result of the defendant’sfailure to respond to the summons with notice, or to thesummons and complaint. If the plaintiff ’s claim is for asum certain, application may be made to the County Clerk.See CPLR 3215(a). However, an assessment of damagesby a judge is required for all other claims. See CPLR3215(b).

SETTING ASIDE DEFAULTS

A motion may be brought pursuant to CPLR 5015(s) forrelief from a default judgment based on excusable default.

Motions to vacate judgment may be brought on othergrounds as well.

MOTION TO QUASH SERVICE OF SUMMONS

In New York, this is called a motion to dismiss for lack ofjurisdiction pursuant to CPLR 3211(a)(8).

DEMURRER

In New York, this is a motion to dismiss for failure to statea cause of action pursuant to CPLR 3211(a)(7).



Exhibit 6-1 Request for Preliminary Conference. Forms may be purchased from BlumbergExcelsior, Inc. or any of its dealers. Interactive electronic forms may be purchased at


(continued)



Exhibit 6-1 Request for Preliminary Conference. Forms may be purchased from BlumbergExcelsior, Inc. or any of its dealers. Interactive electronic forms may be purchased at




Exhibit 6-2 Affirmation of Good Faith for Preliminary Conference. Forms may be purchased fromBlumbergExcelsior, Inc. or any of its dealers. Interactive electronic forms may be purchased at


(continued)



Exhibit 6-2 Affirmation of Good Faith for Preliminary Conference. Forms may be purchased fromBlumbergExcelsior, Inc. or any of its dealers. Interactive electronic forms may be purchased at

WWW.BLUMBERG.COM. Reproduction prohibited. (continued).



Exhibit 6-3 Request for Judicial Intervention—Request for Preliminary Conference.

UCS-840 (REV 1/2000)

REQUEST FOR JUDICIAL INTERVENTION

COURT COUNTY INDEX NO. DATE PURCHASED

PLAINTIFF(S):

DEFENDANT(S):

Date issue joined:_______________________ Bill of particulars served (Y/N): [ ]Yes [ ]No...............................................................................................................................................................................

NATURE OF JUDICIAL INTERVENTION (check ONE box only AND enter information)

[ ] Request for preliminary conference

[ ] Note of issue and/or certificate of readiness

[ ] Notice of motion (return date:__________)Relief sought_______________________

[ ] Order to show cause (clerk enter return date:__________________)Relief sought_______________________

[ ] Other ex parte application (specify:____________________________________)

NATURE OF ACTION OR PROCEEDING (Check ONE box only)MATRIMONIAL Malpractice[ ] Contested -CM [ ] Medical/Podiatric -MM[ ] Uncontested -UM [ ] Dental -DM

[ ] *Other Professional -OPMCOMMERCIAL _________________________________[ ] Contract -CONT [ ] Motor Vehicle -MV[ ] Corporate -CORP [ ] *Products Liability -PL[ ] Insurance (where insurer is a _________________________________

party, except arbitration) -INS [ ] Environmental -EN[ ] UCC (including sales, negotiable -UCC [ ] Asbestos -ASB

instruments) [ ] Breast Implant -BI[ ] *Other Commercial -OC [ ] *Other Negligence -OTN

______________________________ _________________________________[ ] *Other Tort (including

REAL PROPERTY intentional) -OT[ ] Tax Certiorari -TAX _________________________________[ ] Foreclosure -FOR SPECIAL PROCEEDINGS[ ] Condemnation -COND [ ] Art. 75 (Arbitration) -ART75[ ] Landlord/Tenant -LT [ ] Art. 77 (Trusts) -ART77[ ] *Other Real Property -ORP [ ] Art. 78 -ART78

_______________________________ [ ] Election Law -ELEC[ ] Guardianship (MHL Art. 81) -GUARD81

OTHER MATTERS [ ] *Other Mental Hygiene -MHYG[ ] *____________________________ -OTH [ ] *Other Special Proceeding -OSP

TORTS

(continued)

For Clerk Only

IAS entry date

Judge Assigned

RJI Date

[ ] Notice of petition (return date:_____________)Relief sought __________________

[ ] Notice of medical or dental malpractice action (specify: ________________________)

[ ] Statement of net worth

[ ] Writ of habeas corpus

[ ] Other (specify: _________________________________________________________________)



Exhibit 6-3 Request for Judicial Intervention—Request for Preliminary Conference. (continued)

Check “YES” or “NO” for each of the following questions:

Is this action/proceeding against a

YES NO YES NO[ ] [ ] Municipality: [ ] [ ] Public Authority:

(Specify ______________________________) (Specify_____________________________)

YES NO[ ] [ ] Does this action/proceeding seek equitable relief?[ ] [ ] Does this action/proceeding seek recovery for personal injury?[ ] [ ] Does this action/proceeding seek recovery for property damage?

Pre-Note Time Frames:(This applies to all cases except contested matrimonials and tax certiorari cases)

Estimated time period for case to be ready for trial (from filing of RJI to filing of Note of Issue):

Expedited: 0–8 months Standard: 9–12 months Complex: 13–15 months

Contested Matrimonial Cases Only: (Check and give date)

Has summons been served? No Yes, Date____________

Was a Notice of No Necessity filed? No Yes, Date_____________

*Self Represented: parties representing themselves, without an attorney, should check the “Self Rep.” box and enter their name,address, and phone # in the space provided above for attorneys.

INSURANCE CARRIERS:

RELATED CASES: (IF NONE, write “NONE” below)Title Index # Court Nature of Relationship

I AFFIRM UNDER PENALTY OF PERJURY THAT, TO MY KNOWLEDGE, OTHER THAN AS NOTED ABOVE, THERE ARE ANDHAVE BEEN NO RELATED ACTIONS OR PROCEEDINGS, NOR HAS A REQUEST FOR JUDICIAL INTERVENTION PREVIOUSLYBEEN FILED IN THIS ACTION OR PROCEEDING.

Dated:(SIGNATURE)

______________________________________________________(PRINT OR TYPE NAME)

______________________________________________________ATTORNEY FOR

ATTACH RIDER SHEET IF NECESSARY TO PROVIDE REQUIRED INFORMATION

\forms\rji2000.wpd

ATTORNEY(S) FOR PLAINTIFF(S):


ATTORNEY(S) FOR DEFENDANT(S):




Exhibit 6-4 Notice of Issue and Certificate of Readiness for Trial. Forms may be purchased fromBlumbergExcelsior, Inc. or any of its dealers. Interactive electronic forms may be purchased at


(continued)



Exhibit 6-4 Notice of Issue and Certificate of Readiness for Trial. Forms may be purchased fromBlumbergExcelsior, Inc. or any of its dealers. Interactive electronic forms may be purchased at




Exhibit 6-5 Uniform Transcript of Judgment. Forms may be purchased from BlumbergExcelsior, Inc. or any of its dealers. Interactive electronic forms may be purchased at


(continued)



Exhibit 6-5 Uniform Transcript of Judgment. Forms may be purchased from BlumbergExcelsior, Inc. or any of its dealers. Interactive electronic forms may be purchased at

WWW.BLUMBERG.COM. Reproduction prohibited. (continued).


CHAPTER 7 Motion Practice 43

CHAPTER 7Motion Practice

KEY POINTS

• The motion and notice of hearing can be com-bined into one document.

• Motion practice is governed by Article 22 of theCPLR and local court rules as well.

• An order to show cause is brought where speedyrelief is required.

• The time limit for responding to motions is deter-mined by the manner of service of motions.

• Sanctions are now available where certain frivo-lous claims are brought.

PREPARING, SERVING, AND RESPONDING

PREPARATION OF THE WRITTEN PAPERS

Article 22 of the CPLR governs motion practice in NewYork. Additionally, local court rules should be consultedfor any other considerations or requirements. Seewww.cplr.org for the CPLR.

NOTICE OF HEARING ON THE MOTION. InNew York, parties do not file a motion and notice of hear-ing on the motion. Instead, the moving party files andserves a Notice of Motion. See CPLR 2214.

DECLARATION. In New York, this is referred toas an affirmation. See CPLR 2106.

MEMORANDUM OF POINTS AND AUTHORI-TIES. This is referred to as a memorandum of law inNew York.

SERVICE AND FILING

A Notice of Motion and supporting affidavit or affirmationshall be served at least eight days before the motion is noticed to be heard. See CPLR 2214. If service of the mo-

tion papers is made by mail, five additional days must beadded to the eight-day motion time. See CPLR 2103(b)(2).

ORDER SHORTENING TIME. In New York, aparty proceeds by way of an Order To Show Cause if theregular motion time cannot be followed. See CPLR2214(d).

PROOF OF SERVICE BY MAIL. In New York,this is referred to as the affidavit of service by mail. SeeCPLR 306.

RESPONDING TO MOTIONS

The memorandum of points and authorities that accompa-nies the affidavits in opposition is referred to as the mem-orandum of law in New York.

RESPONDING TO MOTIONS. Answering affi-davits shall be served at least two days before the returndate of the motion. See CPLR 2214(b). If the answeringaffidavit is served by mall, an additional five days must beadded to the two days for mailing time. See CPLR2103(b)(2).

COURT PROCEDURES INVOLVING MOTIONS

In New York, local court rules determine whether or notoral 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.

ORDERS AFTER MOTIONS

Some motions require that an order be prepared and sentdirectly to the judge (by the winning party), while other or-ders must be sent to the judge on notice to the opposingside. See CPLR 2219(a).


SANCTIONS

The court will award costs and attorney fees in actions torecover damages for personal injury, injury to property, orwrongful death, when frivolous claims are pursued. SeeCPLR 8303-a.

Costs upon frivolous claims and counterclaims in podiatric, dental, and medical malpractice actions will beawarded to the successful party. See CPLR 8303-a.

When a party refuses to comply with an order for dis-closure, or willfully fails to disclose information, the courtmay issue an order striking out pleadings or dismissing theaction. See CPLR 3126(b)(3).


SPECIFIC MOTIONS

PRETRIAL MOTIONS

CPLR 3211 covers the majority of the dismissal motionsin New York.

MOTION FOR A MORE DEFINITE STATE-MENT. A motion to correct pleadings under CPLR3024(a) can be made for a more definite statement. SeeCPLR 3025 concerning motions to amend pleadings.

MOTION FOR JUDGMENT ON THE PLEAD-INGS. In New York, a motion for summary judgment isbrought after issue is joined. The motion will be granted ifthere is no defense to the cause of action or the cause of ac-tion has no merit. See CPLR 3212.

MOTION FOR CHANGE OF VENUE. In NewYork, a change of venue motion can be brought when:

1. The county selected for venue is improper;

2. An impartial trial cannot be had in the propercounty; or

3. The convenience of material witness and the endsof justice will be promoted by the change. SeeCPLR 511.

MOTION TO QUASH RETURN OF SERVICE.A dismissal motion pursuant to CPLR 3211(a)8 is broughtwhen the court does not have jurisdiction over the personof the defendant.

MOTION FOR SUMMARY JUDGMENT. Anyparty can move for summary judgment in any action afterissue has been joined. See CPLR 3212. Issue is joinedafter both the complaint and answer have been served. SeeCPLR 2221 for motions for leave to reargue.

DISCOVERY MOTIONS

Unless otherwise provided by the CPLR or by the court,disclosure shall be obtained by stipulation or on noticewithout leave of court. See CPLR 3102. Protective ordersto deny, limit, condition, or regulate the use of disclosuredevices are governed by CPLR 3103. If a party fails to re-spond or comply with a disclosure request, a motion tocompel may be made pursuant to CPLR 3125.

POSTTRIAL MOTIONS

MOTION FOR JUDGMENT NOTWITHSTAND-ING THE VERDICT. CPLR 4404(a) permits the courtto set aside a verdict or any judgment entered thereon anddirect that judgment be entered in favor of a party wherethe verdict is contrary to the weight of evidence. Such mo-tions must be made within fifteen (15) days after decision,verdict, or discharge of the jury. See CPLR 4405.

MOTION FOR A NEW TRIAL. At any time dur-ing trial, the court may order a new trial in the interest ofjustice. See CPLR 4402.

MOTION TO TAX COSTS. Upon motion of anyinterested party, the court may allow or disallow any itemobjected to before the clerk or order a retaxation before theclerk. See CPLR 8404.

Additionally, the plaintiff ’s attorney may make nu-merous motions in an effort to obtain information from thedefendant in order to collect and enforce a judgment.



Exhibit 7-1 Uniform Notice of Motion. Forms may be purchased from BlumbergExcelsior, Inc. or any of its dealers. Interactive electronic forms may be purchased at


(continued)



Exhibit 7-1 Uniform Notice of Motion. Forms may be purchased from BlumbergExcelsior, Inc. or any of its dealers. Interactive electronic forms may be purchased at




Exhibit 7-2 Information Subpoena to Judgment Debtor or to Witness. Forms may be purchased fromBlumbergExcelsior, Inc. or any of its dealers. Interactive electronic forms may be purchased at


(continued)



Exhibit 7-2 Information Subpoena to Judgment Debtor or to Witness. Forms may be purchased fromBlumbergExcelsior, Inc. or any of its dealers. Interactive electronic forms may be purchased at




Exhibit 7-3 Questions and Answers in Connection with Information Subpoena. Forms may be purchasedfrom BlumbergExcelsior, Inc. or any of its dealers. Interactive electronic forms may be purchased at


(continued)



Exhibit 7-3 Questions and Answers in Connection with Information Subpoena. Forms may be purchasedfrom BlumbergExcelsior, Inc. or any of its dealers. Interactive electronic forms may be purchased at




Exhibit 7-4 Subpoena to Take Deposition of Judgment Debtor (Duces Tecum). Forms may be purchasedfrom BlumbergExcelsior, Inc. or any of its dealers. Interactive electronic forms may be purchased at


(continued)



Exhibit 7-4 Subpoena to Take Deposition of Judgment Debtor (Duces Tecum). Forms may be purchasedfrom BlumbergExcelsior, Inc. or any of its dealers. Interactive electronic forms may be purchased at




Exhibit 7-5 Information Subpoena with Restraining Notice. Forms may be purchased fromBlumbergExcelsior, Inc. or any of its dealers. Interactive electronic forms may be purchased at


(continued)



Exhibit 7-5 Information Subpoena with Restraining Notice. Forms may be purchased fromBlumbergExcelsior, Inc. or any of its dealers. Interactive electronic forms may be purchased at



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