Prepared by

Cathy Okrent

NEW YORKSTUDENT SUPPLEMENT

to Accompany

CIVIL LITIGATIONTHIRD EDITION

Peggy N. Kerley, Joanne Banker Hames, Paul A. Sukys

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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

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In the United States, civil litigation is conducted at both the federal and state levels. Inthe federal court system, the Federal Rules of Civil Procedure control. These rules areused in all federal courts. It is to be noted that not all litigation takes place at the federallevel. In fact, the majority of lawsuits are handled in state courts, where state law ratherthan federal law controls. The purpose of this supplement is to point out the differencesbetween federal practice and practice unique to New York State courts. Specific rules andprocedures in New York civil litigation that differ substantially from federal litigation arehighlighted. 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, ThirdEdition. When reading a page or pages, check the supplement to see if the page andsection have supplemental material for New York practice. Where no material is foundfor the particular page and section, the federal practice does not vary significantly fromstate practice.

The materials and information included are for educational purposes. The law is con-stantly changing. It is very important that all laws be researched prior to reliance onthem. Now, the rules for service of papers have been amended to include service by fac-simile transmission and other electronic means.

The New York State Supplement is designed for New York paralegal courses in civillaw using the textbook Civil Litigation by Kerley, Hames, and Sukys. Since the textbookis based on federal rules, the student pocket part is a cross-referencing device betweenthe textbook and the civil laws of New York state pursuant to Civil Practice Laws andRules (CPLR). The student pocket part compliments the textbook by employing the samenumbering system for easy reference by students and instructors.

While this supplement is a brief and handy reference guide to the CPLR, it does notsupplant the Civil Practice Laws and Rules or act as a substitute for further research. Thestudent 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 andis updated yearly in response to changing laws and statutes. It is available from a varietyof legal publishers in hard- and soft-cover, looseleaf, and bound editions.; in software;and on the Internet.

INTRODUCTION

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PART I INTRODUCTION TO CIVIL LITIGATION FORTHE PARALEGAL

CHAPTER 1 LITIGATION AND THE PARALEGAL

■ New York has its own rules of civil procedure, known as the Civil Practice Laws andRules (CPLR).

■ New York also has its own unique court rules, known as the Uniform Rules for the New YorkState 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.

KEY POINTS

WHAT CIVIL LITIGATION IS

Rules of Civil LitigationNew York has its own rules of civil procedure, known as

the Civil Practice Laws and Rules, which is commonly re-ferred to as the CPLR. These rules are similar to the Fed-eral Rules of Civil Procedure. However, in New York, whencivil litigation is conducted at the state level, the CPLR ap-plies. The CPLR can be found online at assembly.state.ny.us/cgi-bin/claws?law=16

Civil Law versus Criminal LawCriminal Law

New York has its own rules of criminal procedure, knownas the Criminal Procedure Law (CPL). In New York, civiland criminal procedure are not merged. See CPRL 106.

ConstitutionTextbook references to the Constitution mean the United

States Constitution. Be mindful that New York also has itsown constitution, called the Constitution of the State of NewYork. References in the New York State Supplement refer tothe latter. See assembly.state.ny.us/cgi-bin/const

Civil RulesIn addition to New York’s rules of civil procedure (CPLR),

New York also has court rules known as Uniform Rules forthe New York State Trial Courts. Certain jurisdictions havelocal court rules as well. Likewise, certain judges have theirown rules. See www.courts.state.ny.us/ucsrules.html

Standards of ProofThe standard of proof for most civil cases in New York is

the preponderance of the evidence standard. In some of themore serious civil cases, where issues such as fraud or pa-ternity are involved, a higher standard known as clear andconvincing proof is used. The standard of evidence used incriminal cases is that of guilt beyond a reasonable doubt.

An Overview of Civil LitigationUsually the initial document used to start litigation is called

the plaintiff ’s complaint. Less often, an action is commencedwithout a complaint by serving a summons with notice. Pursuantto CPLR 305(b), a summons with notice shall contain a noticestating the nature of the action, the relief sought, and the sumfor which judgment is demanded (except in medical mal-practice 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 specialproceeding. See CPLR, Article 4. Also see CPLR 304. Thisis different than the general litigation process.

Complaint

The summons and complaint or summons with notice isfiled with the clerk of the court in the county in which theaction is brought to commence an action. Such delivery mayalso be accomplished by fax or electronic means. See CPLR304. Upon filing the summons and complaint or summonswith notice in an action commenced in Supreme Court orcounty court, an index number shall be assigned and a feepaid. See CPLR 306-a. The index number and the date offiling must be noted on the summons. See CPLR 305.

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DIFFERENT TYPES OF CIVIL LAWSUITS

$1,000 SuitA suit for $1,000 would be handled in small claims courts.

Small claims limits may vary by jurisdiction. A summaryof the courts of the New York State court system can befound at www.nysba.org/public/courts.html

ALTERNATIVES AND LIMITATIONS TOLITIGATION

ArbitrationArbitration of certain claims not exceeding $6,000 ex-

clusive of interest is mandatory in certain courts outside thecivil court of the city of New York and of certain claims notexceeding $10,000 exclusive of interest in the civil court ofthe city of New York. See CPLR 3405. In medical, dental,or podiatric malpractice actions, a defendant may demandthat the plaintiff elect whether to consent to arbitration ofdamages upon a concession of liability. See CPLR 3045.Arbitration is governed by Article 75 of the CPLR in greatdetail. Health care arbitration is addressed by Article 75-Aof the CPLR. See www.courts.net/ny/index.html

EmployeesGenerally, employees cannot sue their employers if they

are injured on the job. See Worker’s Compensation Law.

SOURCES OF THE LAW

Primary SourcesState Code

New York has its own New York State Code, Rules, andRegulations. Lawyers Cooperative Publishing, publishers ofthe 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 SourcesForms

The New York State Bar Association, Blumberg’s, andother legal publishers produce forms for New York practice.Forms can be found online at www.findlaw.com

SKILLS REQUIRED OF THE LITIGATIONPARALEGAL

Continuing Legal EducationLocal Legal Newspapers

The New York State Law Journal is a newspaper that re-ports New York legal developments, and can be found onlineat www.law.com

Recent CPLR Decisions

For some of the more recent decisions concerning theCPLR, 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 YorkState Law Digest, a monthly publication of the latest NewYork legal developments regarding cases and statutes, and amagazine, New York State Bar Journal, which is publishedeight times each year. See www.nysba.org

Professional Organizations

Contact city and county bar associations, special interestbar associations, and:

New York State Bar AssociationOne Elk StreetAlbany, New York 12207(518) 463-3200www.nysba.org

Some of the local paralegal associations are:

Long Island Paralegal Association1877 Bly RoadEast Meadow, NY 11554www.paralegals.org

Manhattan Paralegal Association, Inc.P.O. Box 4006Grand Central StationNew York, NY 10163www.paralegals.org/Manhattan/home.html

Paralegal Association of Rochester, Inc.P.O. Box 40567Rochester, NY 14604Email: Rochester@paralegals.org

Southern Tier Association of ParalegalsP.O. Box 2555Binghamton, NY 13902www.paralegals.org/SouthernTier/home.html

Western New York Paralegal Association, Inc.P.O. Box 207, Niagara Square StationBuffalo, NY 14201www.paralegals.org/WesternNewYork/home.html

West/Rock Paralegal AssociationP.O. Box 668New City, NY 10956www.paralegals.org/WestRock/home.html

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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 dismissfor lack of jurisdiction.

■ Generally, venue is determined by the county where either party resided when the action wascommenced.

■ Venue can be changed by motion.

KEY POINTS

THE COURTS AND LITIGATION

Higher CourtsIn New York, the court of appeals is the highest state

court. It hears both criminal and civil appeals and is locatedin the capital of New York, Albany. New York’s highest court,the court of appeals, consists of six associate judges andone chief judge. The New York State court system has twolevels of appeal or review. A summary guide to the NewYork court system is located at www.nylj.com/guide

Intermediate Appellate CourtsCourts of Appeal

The appellate division of the Supreme Court is the inter-mediate appellate court. Up to five justices may sit in anycase, with four justices required for a quorum. It hears bothcivil and criminal appeals. The state is divided into fourgeographical areas called departments. Each department hasits own appellate division. In the first and second depart-ments, there is an appellate term of the Supreme Court whichhears appeals from local and county courts. See www.courts.net/ny/index.html

Courts of Last ResortSupreme Court

In New York, the Supreme Court is not a court of lastresort. It is a trial court of original and general jurisdiction,both criminal and civil. The Supreme Court is the only courtin the state with jurisdiction to dissolve a marriage. The SupremeCourt is divided into twelve (12) judicial districts.

FEDERAL COURT SYSTEM

Miscellaneous Federal Trial CourtsUnited States District Courts

New York is sectioned by four judicial districts dividedgeographically into the Northern, Southern, Eastern, andWestern districts.

United States Court of AppealsNew York State is part of the second circuit for appeals

to the United States Court of Appeals under the federal courtsystem. See www.courts.net/ny/index.html

United States Supreme CourtReferences to the Supreme Court in Civil Litigation refer

to the United States Supreme Court and not the New YorkState Supreme Court.

State Court SystemTrial courts include city courts, town courts, village courts,

county courts, Supreme Court, New York City civil and criminalcourts (limited to New York City). See www.nysba.org/public/courts.html

STATE COURT SYSTEMSDistrict courts (limited to eastern Nassau and Suffolk

County), and certain specialized courts: family courts, sur-rogate court, and court of claims. Neither family court northe court of claims has jury trials. New York state is dividedinto four departments and twelve (12) judicial districts un-der the New York state court system. For recent court deci-sions, see www.nycourts.com

New York State CourtsIn New York, courts can hear only certain types of cases.

For example, the surrogate court deals with the settlementof estates and related probate matters. Other courts may hearcases limited to certain amounts of money damages. Anexample: County courts cannot hear cases with claims ex-ceeding $25,000, whereas the Supreme Court has unlimitedjurisdiction to hear claims with no ceiling as to amount re-quested in the action. See www.nysba.org/public/courts.html

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JURISDICTION

Subject Matter Jurisdiction of the Federal CourtsExclusive versus Concurrent Jurisdiction

See CPLR 325 for grounds for removal to other New Yorkstate courts. This is done by parties on motion, or by thecourt. 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.

Subject Matter Jurisdiction in the State CourtsGeneral Jurisdiction

The New York Supreme Court is the trial court with gen-eral jurisdiction.

Appellate Jurisdiction

In New York, appeals are heard by an intermediate levelappellate court, the appellate division (the appellate term inthe first and second departments only), and the highest ap-pellate court, the court of appeals in Albany.

Personal Jurisdiction: Jurisdiction over DefendantSee CPLR 302 for grounds for obtaining personal juris-

diction over nonresidents who transact business within thestate, or contract to supply goods or services in the state, orcommit a tortious act within the state (or even outside thestate if acts committed result in New York State consequences),or use or possess real property in the state of New York. Seewww.assembly.state.ny.us/cgi-bin/claws?law=16

Waiver by AppearanceGeneral Appearance

The defendant appears by serving an answer, or a noticeof appearance, or by making a motion. See CPLR 320 re-garding distinction between general and limited appearanceby defendants.

Challenging Personal JurisdictionA defendant in New York may attack personal jurisdic-

tion in his answer. Generally, a motion to dismiss for lackof jurisdiction is brought. See CPLR 321 l(a)(8).

Motion to Quash

For New York dismissal motion, see CPLR 3211(a)(8).

State Long-Arm StatutesCPLR 302 lists acts by nondomiciliaries subjecting them

to in-state suit. Out-of-state residents can be sued in NewYork state in actions involving demands for alimony. Cor-porations not authorized under the laws of New York statemay also be subject to suit in New York. Also see § 253 ofthe vehicle and traffic law, for service of summons on non-resident owners and operators of motor vehicles.

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 JurisdictionAttachment

See CPLR 314(3) for levy on property pursuant to anorder of attachment.

VENUE

VenueIn 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 wascommenced, and if none, in a county selected by the plain-tiff. See CPLR 503.

Changing VenueSee CPLR 511(b) for a motion to change the place of

trial based on venue. If the county designated is not a propercounty, such motion should be served with the answer orbefore the answer is served. A motion to change the placeof trial based on any other ground should be made withinreasonable time after the start of the action.

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Figure 2-1 Outline of New York State Court System. Courtesy New York State Bar Association, copyright © 2000.

Figure 2-2 Judicial Districts of New York State. Courtesy New York State Bar Association, copyright © 2000.

Albany

Allegany

Bronx

Broome

Cattaraugus

Cayuga

ChautauquaChemung

Chenango

Clinton

Columbia

Cortland

Delaware

Dutchess

Erie

Essex

Franklin

Fulton

Genesee

Greene

Hamilton

Herkimer

Jefferson

Kings

Lewis

Livingston

Madison

Monroe

Montgomery

NassauNew York

NiagaraOneida

Onondaga

Ontario

Orange

Orleans

Oswego

Otsego

Putnam

Queens

Rensselaer

Richmond

Rock-land

St. Lawrence

Saratoga

Schen-ectady

Schoharie

Schuyler

Seneca

Steuben

Suffolk

Sullivan

Tioga

Tompkins

Ulster

Warren

Was

hing

ton

Wayne

West-chester

WyomingYatesVIII

VII

V

IV

VI

III

IX

X

XI

XII

II

I

New York CityCivil Court

New York CityCriminal Court

District CourtNassau and

Suffolk

City CourtsOutside NYC

Town Court Village Court

Court of ClaimsStatewide

Family CourtOne each county, exceptOne for New York City(Five counties in NYC)

Surrogate CourtOne in each county

(62)

County CourtOne in each county

outside of NYC(57)

Supreme CourtStatewide

Appellate TermFirst and Second depts. only

Appellate DivisionsOne in each department

(4)

Court of Appeals

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FIRST DEPARTMENT

First Judicial DistrictNew York

Twelfth Judicial DistrictBronx

SECOND DEPARTMENT

Second Judicial DistrictKingsRichmond

Ninth Judicial DistrictDutchessOrangePutnamRocklandWestcheste r

Tenth Judicial DistrictNassauSuffolk

Eleventh Judicial DistrictQueens

Figure 2-3 New York State Counties by Judicial Department and District.Courtesy New York State Bar Association, copyright © 2000.

THIRD DEPARTMENT

Third Judicial DistrictAlbanyColumbiaGreeneRensselaerSchoharieSullivanUlster

Fourth Judicial DistrictClintonEssexFranklinFultonHamiltonMontgomerySaratogaSchenectadySt. LawrenceWarrenWashington

Sixth Judicial DistrictBroomeChemungChenangoCortlandDelawareMadisonOtsegoSchuylerTiogaTompkins

FOURTH DEPARTMENT

Fifth Judicial DistrictHerkimerOnondagaOswegoJeffersonLewisOneida

Seventh Judicial DistrictCayugaLivingstonMonroeOntarioSenecaSteubenWayneYates

Eighth Judicial DistrictAlleganyCattaraugusChautauquaErieGeneseeNiagaraOrleans

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PART II INITIATING LITIGATION

CHAPTER 3 PRELIMINARY CONSIDERATIONS

■ Certain causes of actions must be specifically pleaded.

■ New York statute of limitations must be consulted before each action is commenced as theydiffer from those of other states, as well as the federal statutes, and may be changed from timeto time by the state legislature.

■ Claims against the state of New York and public corporations require a notice of claim to startthe action.

■ Attorneys are bound by the Lawyer’s Code of Professional Responsibility and subject todisciplinary action.

KEY POINTS

DETERMINING THE EXISTENCE OF ACAUSE 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 by whatis commonly referred to as the no-fault statute. In order tobring an action for injuries following an automobile acci-dent, specific conditions must be met. A “serious injury,” asdefined by 5102 of the Insurance Law, is needed for the suitto succeed in court.

Elements of a Cause of ActionCertain issues must be pleaded to pursue specific actions

in New York. Examples of actions that must be pleaded withparticularity include libel or slander, fraud or mistake, separationor divorce, judgment, law of a foreign country, sale and de-livery of goods, personal injury, and gross negligence orintentional infliction of harm. See CPLR 3016.

Certificate of MeritIn any action for medical, dental, or podiatric malprac-

tice, the complaint must be accompanied by a certificate ofmerit executed by the attorney for the plaintiff. See CPLR3012-a.

TIME LIMITATIONS

Statute of LimitationsActions brought against the state of New York must be

commenced within two years from accrual of cause of ac-tion. See § 10 of the Court of Claims Act.

Contracts

There is a six-year statute of limitations for contract ac-tions except when otherwise agreed, or four years if an ac-tion is brought pursuant to the Uniform Commercial Code(UCC).

Property Damage

There is a three-year statute of limitations. See CPLR214(4).

Personal Injury Action

There is a three-year statute of limitations. See CPLR214(5).

Legal Malpractice

There is a three-year statute of limitations. See CPLR214(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 StatutesClaims

In New York, a notice of claim must be served when ac-tions are brought against the state of New York, as well asfor actions brought against public corporations; See Courtof Claims Act § 10 and General Municipal Law § 50-e. Seewww.nyscourtofclaims.state.ny.us

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ETHICAL CONSIDERATIONS IN ACCEPTINGA CASE

In New York, attorneys are bound by the Lawyer’s Codeof Professional Responsibility, which can be found atwww.nysba.org/opinions/codes/anchor1.html. When an at-torney does decide to accept a case, a retainer agreement issigned by the client, authorizing the attorney to act for theclient and acknowledging the fee arrangement. For ethicsopinions, see www.nysba.org/opinions/opinions.html

Domestic Relations MattersAn attorney shall provide a prospective client with a state-

ment of client’s rights and responsibilities at the initial con-ference and prior to signing the written retainer agreement.See Professional Disciplinary Rules, (PDR) 1400.2. Seewww.nysba.org/opinions/codes/code.02.html#Heading8

ETHICAL CONSIDERATIONS AFTERACCEPTING A CASE

Frivolous ClaimsCosts will be assessed against a plaintiff or defendant in

actions 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 will also be awarded for frivolousclaims made during health care arbitrations. See CPLR 7564(b).

Conflict of InterestA lawyer in New York must decline employment if the

exercise of independent professional judgment on behalf of

the client will be adversely affected. See PDR 1200.24. The Professional Disciplinary Rules can be found atwww.nycourts.com/docs/ad1/rules/unifiedi.htm

Communicating with the Opposing PartyIt is unethical in New York for the attorney to personally

contact an opposing party who is represented by counsel.See PDR 1200.35.

ConfidentialityA lawyer shall not knowingly reveal a confidence or se-

cret of a client. See PDR 1200.19.

HonestyA lawyer shall not engage in conduct involving dishon-

esty, fraud, deceit, or misrepresentation. See PDR 1200.3.

Fee-sharingAttorneys 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 PDR1200.17.

Preserving Identity of Funds and Property of OthersA lawyer shall not commingle property or funds of a cli-

ent with his or her own. A separate client trust fund must bemaintained. Records for such accounts, as well as copies ofall retainer and compensation agreements with clients mustbe kept for at least seven years. See PDR 1200.46.

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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.

10

CHAPTER 4 INVESTIGATION AND EVIDENCE

■ Contact New York’s secretary of state for information regarding domestic corporations, limitedliability 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.

KEY POINTS

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

See the New York State Department of State at www.dos.state.ny.us/corp/corpspub.html

ACCIDENT REPORTSContact 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 RECORDSTo obtain medical records you will need a fully executed

medical authorization form. See CPLR 3121.

WEATHER REPORTSTo substantiate the weather conditions on a particular date;

see www.ncdc.noaa.gov/ol/climate/stationlocator.html for in-formation from the National Climatic Data Center.

EXPERT WITNESSESAt the state level, the attorney introducing expert testi-

mony lays a foundation for that expert testimony by askingexperts questions as to their education and training. Thecourt itself does not qualify experts. See CPLR 3101(d) andCPLR 4515. See www.nocall.org/experts.htm for expert witnessInternet resources. Also see www.findlaw.com/13experts/witness.html

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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 acomplaint.

■ 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.

■ Numbered paper is no longer required for New York pleadings.

■ There is no requirement that pleadings be signed in New York, unless verification is requiredpursuant to the CPLR.

KEY POINTS

INITIAL PLEADINGS

Pleadings in GeneralIn New York, pleadings need not be filed prior to service

upon the opposing party. However, the summons and com-plaint 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 GeneralIn New York, a petition is a method of starting a special

proceeding. See CPLR 402. A special proceeding is a quickand 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.

Petition

A petition is used to start a special proceeding.

Verification

A verified complaint is not mandatory except where re-quired by the CPLR. Examples of mandatory verified com-plaints in New York include: An action involving the saleand delivery of goods pursuant to CPLR 3016(f) and matri-monial actions pursuant to Domestic Relations Law § 211.

PARTIES TO THE LAWSUIT

Real Party in InterestCPLR 1004 lists proceedings and situations where suit

can be brought by or against representatives of parties ratherthan against the actual person they are representing. Someexamples include: executors, administrators, guardian ofproperty of an infant, the committee of an incompetent, the

conservator of the property of a conservatee, and the trusteeof an express trust.

StatusIn New York, the fact that a corporation was an Idaho

corporation would not be specified in the caption but shouldbe 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 index number, if assigned. See CPLR 2101(c).

CapacityMinor

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 suiton the child’s behalf in New York without the appointmentof a guardian by the court. See CPLR 1201. Generally, aguardian ad litem is appointed if an infant defendant has noguardian of his property, parent, or other person or agencyhaving legal custody. See CPLR 1201.

Corporations and Other Business Entities

Two or more people who conduct business as a partner-ship can sue or be sued in the partnership name. See CPLR1025. Also see CPLR 310 for service of process provisions.

Governmental Agencies

New York has waived the sovereign immunity provisionto the extent that it permits suits against itself in the courtof claims. See CPLR 307 for service provisions. Also see theCourt of Claims Act. See www.nyscourtofclaims.state.ny.us

12

Joining Multiple PartiesPermissive Joinder

Generally, this occurs where there is a common questionof law or fact. See CPLR 1002.

Compulsory Joinder

The term necessary joinder of parties is used. All per-sons who might be unfairly affected by a judgment in anaction should be named. See CPLR 1001.

Indispensable Party

The court should not proceed in the absence of a personwho should be a party. CPLR 3211(a)(10) provides for adismissal motion where a necessary party has not been served.

Class ActionsThe court must find that certain prerequisites have been

satisfied in determining whether or not an action may pro-ceed as a class action. See CPLR 901 et seq. One or moremembers of a class may sue on behalf of all if:

1. The class is so numerous that joinder of all membersis impracticable;

2. There are questions of law or fact common to the class;3. The claims or defenses of the representatives are typi-

cal 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 re-

solving the controversy.

InterpleaderSee CPLR 1006. A person who is or may be exposed to

multiple liability as a result of adverse claims may commencean action of interpleader against two or more claimants.

DRAFTING THE COMPLAINTNumbered 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, ex-cept for summonses, subpoenas, notices of appearance, notesof issue, and exhibits, shall be 81⁄2 by 11 inches in size. Writingshould be legible and in black ink. See CPLR 2101. A re-quest for trial by jury is not made in the complaint. This isdone on a separate form called a note of issue. See CPLR3402 and 4102(a).

Statements in the pleadings shall be sufficiently particu-lar to give the court and parties notice of the transactionsintended to be proved and the material elements of each causeof action or defense. See CPLR 3013.

Every pleading shall consist of plain and concise state-ments in consecutively numbered paragraphs. Each para-graph shall contain a single allegation. Causes of action ordefenses may be stated alternatively or hypothetically. SeeCPLR 3014.

Generally, except in actions for medical or dental mal-practice or actions against municipal corporations, a com-plaint 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 SheetA cover sheet is not used.

FILING THE COMPLAINTAn action is commenced by filing a summons and com-

plaint or summons with notice with the clerk of the court.See CPLR 304.

Individual Assignment SystemBoth the Uniform Rules for the Supreme Court and the

county court and the Uniform Rules for the City Courts outsidethe City of New York have an individual assignment system(IAS) for all civil actions and proceedings. A single judgeis assigned to supervise each action and proceeding uponthe filing with the court a Request for Judicial Intervention(RJI) in all Supreme Court and county court matters. 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 court rules, see www.nylj.com/rules

Office of Court AdministrationRequests for Judicial Intervention must now be modified

to 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 time periodfor the case to be ready for trial must be stated. For routinecases, discovery should be completed and the Note of Issuefiled within twelve (12) months of the filing of the RJI. Forcomplex cases, that period will be fifteen (15) months. Contestedmatrimonials will be subject to specific standards and goalsreflecting the time frames set forth in the matrimonial rules.See www.courts.state.ny.us and www.courts.net/ny/index.html

Docket NumberIn New York, cases are assigned index numbers rather

than docket numbers. An index number is assigned whenthe summons 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 the dateof filing with the clerk of the court. See CPLR 305. Wherethe case has been assigned to an individual judge, the nameof the assigned judge must appear to the right of the cap-tion. 22 NYCRR 202.5. See CPLR 8023. Parties may payfees with a credit card.

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THE SUMMONSThe summons must be filed prior to service. The court

does not issue a summons. The attorney for plaintiff pre-pares and has the summons and complaint served on thedefendant. Pursuant to CPLR 2103(a), a party who is eigh-teen (18) years of age or older and is not a party to the ac-tion may serve the summons and complaint. A summonsshall specify the basis of venue designated and if based uponresidence of the plaintiff, it shall specify the plaintiff’s ad-dress and also bear the index number assigned and the dateof filing with the clerk of the court. There are special re-quirements for the summons in a consumer credit transac-tion. There are also additional requirements for the summonswhere a summons with notice is served in lieu of a sum-mons and complaint. See CPLR 305.

SERVICE OF THE COMPLAINT

Service of ProcessSpecific methods of service are detailed in CPLR 308.

Ideally, service is made by actually handing over the sum-mons to the person to be served. If this is not possible, thesummons can be served upon a person of suitable age anddiscretion at the defendant’s home or office. Service mustbe followed up with an additional mailing of the summons.If after due diligence the person to be served or a person ofsuitable age and discretion cannot be located at the home oroffice of the defendant, then the summons may be affixedto the door of defendant’s business or abode. An additionalmailing of the summons is required for this method of ser-vice. See CPLR 308. Service of papers can be made by anyperson, not a party, who is eighteen (18) years of age orolder. See CPLR 2103(a). New York has a special provisionallowing service of process by mail (see CPLR 312-a) orservice upon a party’s attorney by facsimile (fax). See CPLR2103(b)(5). Where service cannot be made upon a defendant,the plaintiff may apply to the court by motion for permis-sion to serve the summons by publication. See CPLR 316.

Filing of the ComplaintThe complaint is filed. When the complaint is not served

with the summons, the defendant may serve a written de-mand for the complaint. The service of the complaint shallbe made within twenty (20) days after service of the de-mand. See CPLR 3012(b).

Proof of ServiceAn affidavit of service is executed by the person performing

service of process. Proof of service shall specify the papersserved, the person who was served and the date, time, ad-dress, or in the event there is no address, place and mannerof service. See CPLR 306. Proof of service shall be filedwith the clerk of the court within 120 days after the date offiling of the summons and complaint. See CPLR 306-b.

Amending the ComplaintA party may amend his pleading once without leave of

court within twenty (20) days after its service, or at anytime before the period for responding to it expires, or withintwenty (20) days after service of a pleading responding toit. See CPLR 3025. Additionally, an agreement may be madebetween the parties or their attorneys relating to any matterin any action. These agreements are called stipulations. SeeCPLR 2104.

Unknown PartyIf the name of a party is unknown, a party may proceed

against 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.

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

15

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.

16

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

17

Figure 5-3 (continued )

18

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

19

Figure 5-4 (continued )

20

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

21

Figure 5-5 (continued )

22

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

23

Figure 5-6 (continued )

24

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

25

Figure 5-7 (continued )

26

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

27

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

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Figure 5-9 (continued )

29

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 asummons with notice.

■ General denials are permitted, where appropriate.

■ A party to an action in New York pleads all affirmative defenses that would otherwise take theadverse 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, averified 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.

■ Motions are brought by the parties in New York seeking relief from the court

KEY POINTS

RESPONDING TO THE INITIAL PLEADING

Time LimitsThe 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 ser-vice is complete. See CPLR 3012(a). In the event of substi-tute service, additional time to serve an answer is granted.An answer must be served within thirty (30) days after sub-stitute service is complete. See CPLR 3012(c).

In New York, a plaintiff need not serve both a summonsand complaint to start an action. A plaintiff has the optionand can serve a summons with notice in lieu of a summonsand complaint. See CPLR 305(B).

In the event the defendant is served with a summons withnotice, then the defendant’s attorney should respond with anotice of appearance and a demand for a complaint or re-spond by making a motion. See CPLR 320.

Stipulation Enlarging TimeThis agreement between attorneys need not be approved

by the court but must be in writing unless made in opencourt, See CPLR 2104.

TYPES OF ANSWERS

General DenialsGeneral denials are permitted when appropriate. How-

ever, when, for example, a plaintiff serves a verified com-plaint involving sale and delivery of goods pursuant to CPLR3016(f), the defendant may not respond with a general de-

nial. Defendant must state those items he disputes, whetherthe dispute relates to delivery or performance and state thereasonable value or agreed price.

Affirmative DefensesCPLR 3018(b) lists affirmative defenses to be included

in a responsive pleading. A party should plead all mattersthat would take the adverse party by surprise, or raise is-sues of fact not appearing on the face of a prior pleadingsuch as: arbitration and award, collateral estoppel, culpableconduct (as set forth in Article 14-A), discharge in bank-ruptcy, facts showing illegality, fraud, infancy or other dis-ability of party defending, payment, release, res judicata,statute of frauds, or statute of limitations.

DRAFTING THE ANSWERThe answer need not be filed prior to service on the plaintiff.

The pleading paper need not be numbered. See CPLR 2101.

CaptionThe term index number (not docket number) is used in

New York. See CPLR 306-a.

BodyWhen the defendant denies having specific knowledge

or information this is deemed to be a denial. A party shalldeny those statements he knows or believes to be untrue.He must specify those statements as to the truth of whichhe lacks knowledge or information to form a belief, and this

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shall have the effect of a denial. All other statements areconsidered admitted, except if no responsive pleading ispermitted they are deemed denied. See CPLR 3018.

Prayer and SignatureIn New York, the wherefore clause is not accompanied

by the signature of the attorney. The name, address, and tele-phone number of the law firm preparing the pleading is generallytyped at the end of the answer. See CPLR 2101(d). No sig-nature is required. This is to be distinguished from a veri-fied 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 factsalleged in the pleading. See CPLR 3020(a).

Medical or Dental Malpractice Action or Action Againsta Municipal Corporation

In these actions, pleadings shall contain a prayer for generalrelief, but shall not state the amount of damages sought.See CPLR 3017(c).

VerificationWhen a pleading is verified, each subsequent pleading

must also be verified. See CPLR 3020(a). Under specificcircumstances, for example, if an attorney’s client lives outof the county where the attorney maintains his office or anattorney has personal knowledge of the material allegationsof the pleadings, then the attorney might sign the verifica-tion to the pleading. See CPLR 3020(d)(3).

Service and FilingThe answer need not be filed after service upon the plaintiff.

AmendingIn the state system, a pleading may be amended once without

leave of court within twenty (20) days after its service, oranytime before the period for responding to it expires, orwithin twenty (20) days after service of a pleading respond-ing to it. See CPLR 3025(a). Pleadings may also be amendedby leave of court, or by stipulation of all parties. See CPLR3025(b).

COUNTERCLAIMS, CROSSCLAIMS, ANDTHIRD-PARTY COMPLAINTS

Cross-ComplaintIn 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 claimagainst other defendants. This is called a crossclaim. SeeCPLR 3019.

CounterclaimsNew York does not divide counterclaims as either com-

pulsory or permissive. In New York, all counterclaims areconsidered permissive. A defendant’s pleading against an-other claimant is an interpleader complaint, or against anyother party not already a party is a third-party complaint.There shall be a reply to a counterclaim denominated assuch, an answer to an interpleader complaint, or third-partycomplaint and an answer to a crossclaim that contains a demandfor an answer. If no demand is made, the crossclaim shallbe deemed denied. See CPLR 3011.

ContributionExcept as provided for in section 15-108 of the General

Obligations Law, two or more persons who are subject toliability for damages for the same personal injury, injury toproperty, or wrongful death, may claim contribution amongthem whether or not an action has been brought or a judg-ment has been rendered against the person from whom con-tribution is sought. See CPLR 1401. Also see Article 15 ofthe CPLR for actions against persons jointly liable and Article15 of the CPLR for limited liability of persons jointly liable.

Third-party ComplaintsSee CPLR 305(a) concerning service of the third-party

summons. See CPLR 306-b for service of the third-partycomplaint.

LEGAL CHALLENGES TO THE COMPLAINTThere is no demurrer pleading in New York. A motion to

dismiss one or more causes of action could be asserted onthe grounds that the pleading fails to state a cause of action.See CPLR 3211(a)(7).

Motion to DismissUnder the CPLR, a party may bring a motion to dismiss

one or more causes of action. Some of the grounds for adismissal motion are:

1. Lack of jurisdiction over the subject matter of the causeof action

2. Lack of capacity to sue3. Another action is pending4. Infancy5. Disability6. Payment7. Release8. Bankruptcy9. Statute of limitations, statute of frauds

10. Failure to state a cause of action11. Lack of jurisdiction over the person12. Absence of a necessary party (See CPLR 3211)

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Dismissal motions can also be brought for forum nonconveniens. Some of the grounds for such dismissal mo-tions 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 adismissal motion, or asserting such affirmative defenses inthe answer.

Motion to Quash Service of SummonsA dismissal motion under CPLR 3211(a)(8) would be

brought in New York where the defendant contested service.

Motion for More Definite StatementIf a pleading is so vague or ambiguous that a party can-

not reasonably be required to frame a response, the partymay move for a more definite statement. See CPLR 3024(a).

DemurrerIn New York, a challenge to the legal sufficiency of the

complaint is brought by way of a dismissal motion underCPLR 3211(a)(7), for failure to state a cause of action.

FAILURE TO ANSWERDefault judgments are governed by CPLR 3215. Gener-

ally a 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 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 bythe court is required for all other claims. See CPLR 3215(b).

Setting Aside DefaultsA 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 groundsas well.

Motion to Quash Service of SummonsIn New York, this is called a motion to dismiss for lack of

jurisdiction pursuant to CPLR 3211(a)(8).

DemurrerIn New York, this is a motion to dismiss for failure to

state a cause of action pursuant to CPLR 3211(a)(7).

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

33

Figure 6-1 (continued )

34

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

35

Figure 6-2 (continued )

36

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

37

Figure 6-3 (continued )

38

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

39

Figure 6-4 (continued )

40

CHAPTER 7 MOTION PRACTICE

■ 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.

KEY POINTS

PREPARING, SERVING, AND RESPONDING

Preparation of the Written PapersArticle 22 of the CPLR governs motion practice in New

York. Additionally, local court rules should be consulted forany other considerations or requirements. See www.cplr.orgfor the CPLR.

Notice of Hearing on the Motion

In New York, the motion and notice of hearing on themotion can be combined into one document. See CPLR 2214.

Declaration

In New York, this is referred to as an affirmation. SeeCPLR 2309.

Memorandum of Points and Authorities

This is referred to as a memorandum of law in New York.

Service and FilingA 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 bymail, five additional days must be added to the eight-daymotion time. See CPLR 2103(b)(2).

Order Shortening Time

In New York, a party proceeds by way of an order to showcause if the regular motion time cannot be followed. SeeCPLR 2214(d).

Proof of Service by Mail

In New York, this is referred to as the affidavit of serviceby mail. See CPLR 306.

Responding to MotionsThe memorandum of points and authorities that accom-

panies the affidavits in opposition is referred to as the memo-randum of law in New York.

Responding to Motions

Answering affidavits shall be served at least two daysbefore the return date of the motion. See CPLR 2214(b). Ifthe answering affidavit is served by mall, an additional fivedays must be added to the two days for mailing time. SeeCPLR 2103(b)(2).

COURT PROCEDURES INVOLVINGMOTIONS

In New York, local court rules determine whether or notoral argument is required on a motion.

HearingsLocal court rules of the different courts will determine

the procedure for hearings. See www.courts.state.ny.us/ucsrules.htm

Orders After MotionsSome motions require that an order be prepared and sent

directly to the judge (by the winning party), while other ordersmust be sent to the judge on notice to the opposing side.See CPLR 2219(a).

SanctionsThe court will award costs and attorney fees in actions to

recover damages for personal injury, injury to property, orwrongful death, when frivolous claims are pursued. See CPLR8303-a.

Costs upon frivolous claims and counterclaims in podi-atric, dental, and medical malpractice actions will be awardedto the successful party. See CPLR 8303-a.

When a party refuses to comply with an order for disclo-sure, or willfully fails to disclose information, the court mayissue an order striking out pleadings or dismissing the ac-tion. See CPLR 3126(b)(3).

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SPECIFIC MOTIONS

Pretrial MotionsCPLR 3211 covers the majority of the dismissal motions

in New York.

Motion for a More Definite Statement

A motion to correct pleadings under CPLR 3024(a) canbe made for a more definite statement. See CPLR 3025 con-cerning motions to amend pleadings.

Motion for Judgment on the Pleadings

In New York, a motion for summary judgment is broughtafter issue is joined. The motion will be granted if there isno defense to the cause of action or the cause of action hasno merit. See CPLR 3212.

Motion for Change of Venue

In New York, a change of venue motion can be broughtwhen:

1. The county selected for venue is improper;2. An impartial trial cannot be had in the proper county; or3. The convenience of material witness and the ends of

justice will be promoted by the change. See CPLR 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 person ofthe defendant.

Motion for Summary Judgment

Any party can move for summary judgment in any actionafter issue has been joined. See CPLR 3212. Issue is joined

after both the complaint and answer have been served. SeeCPLR 2221 for motions for leave to reargue.

Discovery MotionsUnless otherwise provided by the CPLR or by the court,

disclosure shall be obtained by stipulation or on notice withoutleave of court. See CPLR 3102. Protective orders to deny,limit, condition, or regulate the use of disclosure devicesare governed by CPLR 3103. If a party fails to respond orcomply with a disclosure request, a motion to compel maybe made pursuant to CPLR 3125.

Posttrial MotionsMotion for Judgment Notwithstanding the Verdict

CPLR 4404(a) permits the court to set aside a verdict orany judgment entered thereon and direct that judgment beentered in favor of a party where the verdict is contrary tothe weight of evidence. Such motions must be made withinfifteen (15) days after decision, verdict, or discharge of thejury. See CPLR 4405.

Motion for a New Trial

At any time during trial, the court may order a new trialin the interest of justice. See CPLR 4402.

Motion to Tax Costs

Upon motion of any interested party, the court may al-low or disallow any item objected to before the clerk or or-der a retaxation before the clerk. See CPLR 8404.

Additionally, the plaintiff’s attorney may make numer-ous motions in an effort to obtain information from the de-fendant in order to collect and enforce a judgment.

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Figure 7-1 Uniform Notice of Motion. Forms may be purchased from Julius Blumberg, Inc.,NYC 10013, or any of its dealers. Reproduction prohibited.

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Figure 7-1 (continued )

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Figure 7-2 Request for Hospital Record or Medical Report. Forms may be purchased fromJulius Blumberg, Inc., NYC 10013, or any of its dealers. Reproduction prohibited.

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Figure 7-3 Information Subpoena to Judgment Debtor or to Witness. Forms may be purchased fromJulius Blumberg, Inc., NYC 10013, or any of its dealers. Reproduction prohibited.

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Figure 7-3 (continued )

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Figure 7-4 Questions and Answers in Connection with Information Subpoena. Forms may be purchased fromJulius Blumberg, Inc., NYC 10013, or any of its dealers. Reproduction prohibited.

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Figure 7-4 (continued )

49

Figure 7-5 Subpoena to Take Deposition of Judgment Debtor (Duces Tecum). Forms may be purchased fromJulius Blumberg, Inc., NYC 10013, or any of its dealers. Reproduction prohibited.

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Figure 7-5 (continued )

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Figure 7-6 Information Subpoena with Restraining Notice. Forms may be purchased fromJulius Blumberg, Inc., NYC 10013, or any of its dealers. Reproduction prohibited.

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Figure 7-6 (continued )

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PART III DISCOVERY

CHAPTER 8 OVERVIEW OF THE DISCOVERY PROCESS

■ Generally, discovery is conducted freely by the parties without court intervention.

■ Disclosure can be obtained through depositions, interrogatories, demands for addresses,discovery or inspection of documents and things, physical and mental examinations, requestsfor admissions, and notices to inspect, copy and photograph documents.

■ New York allows full disclosure of all evidence material and necessary in the prosecution ordefense of an action,

■ Information is obtainable by one or more discovery devices.

■ Discovery is limited by certain privileges, such as attorney-client, priest-penitent, doctor-patient, etc.

■ Orders to compel disclosure, and sanctions against noncomplying parties are available bymotion to facilitate the discovery process.

KEY POINTS

THE NATURE OF DISCOVERY

DisclosureThis is governed by Article 31 of the CPLR. Information

is obtained by the following: depositions upon oral ques-tions (or, outside the state, upon written questions), inter-rogatories, demands for addresses, discovery or inspectionof documents or property, physical and mental examinationsof persons, and requests for admissions. See CPLR 3102(a).In negligence actions, a demand for bill of particulars of aparty’s claim is frequently requested to amplify the plead-ings and clarify the issues in dispute. See CPLR 3041.

Deposition

CPLR 3106-3117 controls the deposition process. Afteran action is commenced, any party may take the testimonyof any person. A written notice of taking oral questions shallbe served, giving each party a twenty- (20) day notice ofthe examination.

Interrogatories

See CPLR 3130 for use of interrogatories. Note that in-terrogatories may not be served where a demand for bill ofparticulars has also been made of the same party (except ina matrimonial action). In negligence actions, a party maynot serve interrogatories and conduct a deposition of thesame party without court order.

Request for Discovery and Production of Documents andThings for Inspection, Testing, Copying, or Photographing

This is authorized by CPLR 3120. After commencementof an action, any party may serve any other party with no-

tice to produce and permit the party seeking discovery toinspect copy, test, or photograph documents that are in thepossession, custody, or control of the party served, as specifiedwith reasonable particularity in the notice.

Physical and Mental Examinations

These examinations are authorized under CPLR 3121 whenthe physical or mental condition of a party is in controversy.The notice may require written authorizations permitting allparties to make copies of medical records.

Request for Admission

This is governed by CPLR 3123, After service of the answer,parties may serve upon other parties a written request foradmission of the genuineness of any papers or documents,or the corrections of fairness of representation of any pho-tographs, or the truth of any matters of fact set forth in therequest.

Amount of TimeAfter the commencement of an action, either party may

serve written interrogatories. See CPLR 3132. An answerto the interrogatories shall be served within twenty (20) daysafter service of the interrogatories. See CPLR 3133.

THE EXTENT OF ALLOWABLE DISCOVERYIn New York, there shall be full disclosure of all evidence

material and necessary in the prosecution of defense of anaction. See CPLR 3101. Information is obtainable by oneor more discovery devices. See CPLR 3102.

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Limits on DiscoveryThe Attorney-Client Privilege

CPLR 4503 protects this privilege. Also see CPLR 3101(c)for attorney’s work product protection.

Physician-, Chiropractor-, Dentist-, Podiatrist-, Nurse-PatientPrivilege

See CPLR 4504.

Clergy Privilege

See CPLR 4505.

Protection of Expert Testimony

Upon request, each party shall identify each person whomthe party expects to call as an expert, and the subject matterof the expected testimony, the substance of the facts andopinions on which each expert is expected to testify, thequalifications of the expert, and the summary of groundsfor the expert’s opinion. See CPLR 3101.

COOPERATING WITH DISCOVERY

Discovery ConferencesIn the event that supervision of disclosure is deemed nec-

essary, a motion may be made to the court for relief. SeeCPLR 3104. Local court rules should always be consulted.Also, the Uniform Rules for county and the Supreme Courtsshould be consulted regarding the Individual AssignmentSystem (IAS), where a single judge is provided for the con-tinuous supervision of all civil actions. See www.findlaw.com/11stategov/ny/courts.html for court rules.

Order to Compel DiscoveryCPLR 3124 provides for a motion to compel disclosure

when a party fails to answer, appear, or submit to discovery.

Sanctions Against Noncomplying PartiesIn the event that a party refuses to obey an order for dis-

closure or willfully fails to disclose information that the courtfinds ought to have been disclosed, the court may order thatissues to which the information sought is relevant be deemedresolved for purposes of the action in accordance with theclaim of the party seeking the order, or issue an order pro-hibiting the disobedient party from supporting or opposingany claims or defenses, or an order striking the pleadings,dismissing the action, or rendering a default judgment. SeeCPLR 3126.

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Figure 8-1 Authorization to Release Medical and Hospital Records. Forms may be purchased fromJulius Blumberg, Inc., NYC 10013, or any of its dealers. Reproduction prohibited.

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CHAPTER 9 DEPOSITIONS

■ After an action is commenced any party may take the deposition of any party by servingwritten notice.

■ A subpoena is required to take the deposition of nonparty witnesses.

■ There is a provision for depositions upon written questions when the parties so stipulate orwhen testimony is to be taken outside the state.

■ New York has no provision for telephone depositions.

■ Objections as to the form of questions posed are deemed waived unless objected to at thedeposition.

KEY POINTS

THE DEPOSITIONCPLR 3106 through CPLR 3117 govern the deposition

process in New York. After an action is commenced, anyparty may take the deposition of a party by serving writtennotice.

THE PARALEGAL’S ROLE BEFORE THEORAL DEPOSITION

Notice RequirementCPLR 3107 requires a notice of at least twenty (20) days

be given by the party desiring to take the deposition of anyparty.

Notice of lntent to Take Oral Deposition

The notice may require that books, papers, and other thingsbe produced at the examination. See CPLR 3111.

Subpoena RequirementSubpoena

CPLR 3106(b) requires service of a subpoena to exam-ine a nonparty witness.

Preparation for Defending the DepositionA deposition within the state shall be taken within the

county where a party resides or has an office for the trans-action of business or where the action is pending. See CPLR3110(1).

THE PARALEGAL’S ROLE DURING THEORAL DEPOSITION

Note-takingObjections as to the form of the question asked are deemed

waived unless reasonable objection is made thereto at thetime of the deposition. See CPLR 3115(b).

THE PARALEGAL’S ROLE AFTER THEORAL DEPOSITION

Transcript ArrangementsProcedure for signing depositions is noted in CPLR 3116(a).

The deposition transcript shall be submitted to the witnessfor examination and any changes in form or substance shallbe entered with a statement of the reasons for making them.The deposition shall be signed by the witness before an of-ficer authorized to administer an oath. The party taking thedeposition shall bear the expense of the examination unlessthe court orders otherwise. See CPLR 3116(d).

SPECIAL TYPES OF DEPOSITIONS

The Deposition upon Written QuestionsThis is governed by CPLR 3108 and CPLR 3109. Depo-

sitions may be taken on written questions when the partiesso stipulate, or when the testimony is to be taken outsidethe state.

Notice of lntent to Take Deposition upon Written Question

This is referred to as notice of taking deposition on writ-ten questions. See CPLR 3109.

Telephone DepositionsThere is no provision for this in New York.

Videotape DepositionsVideotape depositions are permitted pursuant to CPLR

3113(b). For rules concerning electronic recording of depo-sitions see:

22 NYCRR 660.25 for New York and Bronx Counties22 NYCRR 685 for the 2nd Department22 NYCRR 830 for the 3rd Department22 NYCRR 1030 for the 4th Department

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KEY POINTS

CHAPTER 10 INTERROGATORIES

■ After an action is started, any party may serve any other party with written interrogatories.

■ Interrogatories may relate to any matter outlined in CPLR 3101 relating to the scope ofdisclosure.

■ There is no requirement for sequential numbering throughout multiple sets of interrogatoriesserved.

■ There is no limit on the number of interrogatories per set or on the number of sets that maybe served upon a party.

■ Leave of court is needed to serve both interrogatories and a notice of deposition upon thesame party in a personal injury action.

■ A party who objects to answering an interrogatory, may set forth the objection to theinterrogatory in the response to interrogatories.

INTERROGATORIESCPLR 3130 provides for the use of interrogatories. After

an action is started, any party may serve any other party inthe action with written interrogatories. Leave of court mustbe obtained if service is made by a plaintiff upon a defen-dant within twenty (20) days after being served the sum-mons and complaint. See CPLR 3132. A party has twenty(20) days after service of interrogatories to serve a copy ofthe answer to interrogatories. See CPLR 3133.

Scope and Number of InterrogatoriesInterrogatories may relate to any matter outlined in CPLR

3101 relating to the scope of disclosure. See CPLR 3131.Generally, there shall be full disclosure of all evidence

material and necessary in the prosecution or defense of anaction. See CPLR 3101. There is no requirement for sequentialnumbering throughout multiple sets of interrogatories served.There is no limit on the number of interrogatories per set oron the number of sets that may be served upon a party. However,a party may seek a protective order if this process is abused.See CPLR 3103.

DRAFTING INTERROGATORIES

Preliminary Steps in Drafting InterrogatoriesIn New York, in a personal injury action, a party cannot

serve interrogatories and conduct a deposition of the sameparty without leave of court. See CPLR 3130.

Duty to Supplement AnswersIn New York, a party shall amend or supplement a re-

sponse previously given to a request for disclosure promptly

upon the party’s thereafter obtaining information that theresponse was incorrect or incomplete when made, or thatthe response, though correct and complete when made, nolonger is correct and complete, and the circumstances aresuch that a failure to amend or supplement the response wouldbe materially misleading. See CPLR 3101(h).

Expert WitnessesInterrogatories need not be used to determine the iden-

tity of expert witnesses. A demand for disclosure of thisinformation is permitted pursuant to CPLR 3101(d)(1).

Signature and Certificate of ServiceIn New York, the attorney need not sign his or her name

at the end of the interrogatories, nor is there any provisionrequiring the filing of interrogatories. See CPLR 2101(d).Interrogatories shall be answered in writing, under oath bythe party upon whom served. See CPLR 3133.

Motion to Compel DisclosureIf a party fails to comply with a discovery request, a motion

to compel disclosure under CPLR 3124 can be brought.

DRAFTING ANSWERS TOINTERROGATORIES

Determining Time LimitsService of the answer must be made within twenty (20)

days after service of the interrogatories. Objections to in-terrogatories may be set forth in the responses to the re-maining interrogatories.

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Form of the AnswersEach question shall be answered separately and fully and

each answer shall be preceded by the question to which itresponds. See CPLR 3133.

Fulfilling the Duty to SupplementA party shall amend or supplement a response previously

given for disclosure promptly upon the party’s thereafterobtaining information that the response was incorrect orincomplete when made, or that the response though correctand complete when made, no longer is correct and com-plete, and the circumstances are such that a failure to amendor supplement the response would be materially mislead-ing. See CPLR 3101(h).

Using Business Records Instead of a Written ResponseThere is no specific provision for this in New York. However,

parties frequently respond to interrogatories by referring toand attaching copies of certain responsive documents or businessrecords. See CPLR 4518.

Objecting to InterrogatoriesWhen a party objects to an interrogatory, the reasons for

the objection shall be stated with reasonable particularityand included in the response to the remaining interrogato-ries. See CPLR 3133.

Inadmissible and Irrelevant EvidenceThere shall be full disclosure of all evidence material and

necessary in the prosecution or defense of an action. SeeCPLR 3101.

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CHAPTER 11 PHYSICAL AND MENTAL EXAMINATIONS

■ After the start of an action, any party may serve notice on another party to submit to physical,mental, or blood examinations where the mental or physical condition or the bloodrelationship of a party is in question.

■ New York has no provision for an approved list of impartial experts.

■ A copy of the report of the examining physician shall be given to any party agreeing toexchange reports in their possession.

KEY POINTS

THE PHYSICAL OR MENTAL EXAMINATION

Types of Cases Using Physical or Mental ExaminationsAfter the start of an action where the mental or physical

condition or the blood relationship of a party is in question,any party may serve notice on another party to submit to aphysical, mental, or blood examination. See CPLR 3121.

REQUIREMENTS FOR GRANTING THEMOTION FOR COMPULSORYEXAMINATION

Condition in ControversyCPLR 3121(a) requires that a condition be in controversy

in order to request a physical or mental examination.

THE PARALEGAL’S ROLE IN PHYSICALAND MENTAL EXAMINATIONS

Impartial ExpertsIn New York, there is no provision for an approved list

of impartial experts.

Distributing the Medical RecordsA copy of a detailed written report of the examining phy-

sician setting out his or her findings and conclusions shallbe delivered by the party seeking the examination to anyparty requesting to exchange therefore a copy of each re-port in his or her control of examinations made with respectto the mental or physical condition in controversy. See CPLR3121(b).

Also see Uniform Rules for New York State Trial Courts§ 202.17 (Supreme Courts and county courts).

Mandatory Filing in Malpractice CasesNot later than 60 days after issue is joined, a plaintiff

must file a notice of malpractice action with the clerk of thecourt. See CPLR 3406(a).

Preliminary Conference for Terminally Ill PartyAt any time, a party who is terminally ill as a result of

the culpable conduct of another party to such an action, mayrequest an expedited preliminary conference. See CPLR 3407.

Precalendar ConferencesA precalendar conference is required in malpractice ac-

tions. See CPLR 3406(b). For individual judges’ rules, seewww.nylj.com/rules

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CHAPTER 12 REQUEST FOR DOCUMENTS

■ Notices for discovery and inspection can be used to obtain copies of documents and to inspectproperty.

■ CPLR 3101 specifically permits a party to obtain copies of their own statements, contents of aninsurance agreement, and accident reports.

■ There shall be full disclosure of films, photographs, videotapes, or audio tapes, includingtranscripts or memoranda thereof.

■ Books or papers may be required to be produced at the deposition of a party.

■ A subpoena duces tecum is needed to require a nonparty to produce documents at adeposition.

■ A party may inspect, copy, test, or photograph specifically designated documents in anotherparty’s possession, custody, or control.

■ A party may also enter upon designated land or other property of a party to inspect, measure,survey, sample, test photograph, or record the property.

■ An attorney need not sign the request for documents.

KEY POINTS

THE REQUEST FOR DOCUMENTS

Request for DocumentsCPLR 3102 and CPLR 3120 authorize the use of notices

for discovery and inspection of documents or property. CPLR3101 specifically permits a party to obtain a copy of his orher own statement, the contents of an insurance agreement,and accident reports. There shall be full disclosure of anyfilms, photographs, or videotapes, including transcripts ormemoranda thereof. See CPLR 3101(i). Generally, discov-ery is obtained by stipulation or on notice without leave ofcourt. See CPLR 3102(b).

Request for Documents at the Deposition of a Party

Books or papers may be required to be produced at adeposition of a party. See CPLR 3111.

Subpoenas Duces Tecum for a Nonparty to ProduceDocuments at a Deposition

If a person to be examined is not a party to the action, asubpoena duces tecum is required. CPLR 3106(b) providesfor the production of documents by the nonparty.

Requests for Documents to Parties

Generally, disclosure shall be obtained by stipulation oron notice without leave of court. See CPLR 3102(b). Thenotice shall specify the time to respond, which cannot beless than twenty (20) days after service of the notice. SeeCPLR 3120(a)(2). Disclosure may be made before an ac-tion is commenced but only by court order. See CPLR 3102(c).

DocumentsA party may seek to inspect, copy, test, or photograph

any specifically designated documents or any things whichare in possession, custody, or control of the party served, asspecified with reasonable particularity in the notice. See CPLR3120.

A party may also be permitted to enter upon designatedland or other property in the custody or control of the partyserved for the purpose of inspecting, measuring, surveying,sampling, testing, photographing, or recording by motionpictures or otherwise the property or any specifically desig-nated object or operation thereon. CPLR 3120(a)(1)(ii).

Organization of the DocumentsThis is not covered by the CPLR in New York.

PROTECTION OF DOCUMENTSA party is given a minimum of twenty (20) days to re-

spond to a request for documents. CPLR 3120(a)2.

The Attorney-Client PrivilegeEvidence of a confidential communication made between

the attorney and the client in the course of professionalemployment shall not be disclosed. See CPLR 4503.

The Work Product PrivilegeThe work product of an attorney shall not be obtainable.

See CPLR 3101(c).

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Protective OrdersThe court may, either on its own initiative or on motion

of a party, make a protective order denying, limiting, condi-tioning, or regulating disclosure devices.

REQUESTING THE PRODUCTION OFDOCUMENTS

Title of the Document and Introductory ParagraphIn New York, the number of the request is generally not

stated, although it is good practice to do so.

InstructionsA party shall amend or supplement a response previously

given to a request for disclosure promptly upon the party’sthereafter obtaining information that the response was in-correct or incomplete when made, or that the response thoughcorrect and complete when made, no longer is correct andcomplete, and the circumstances are such that a failure toamend or supplement the response would be materially mis-leading. See CPLR 3101(h).

Final Responsibility in Drafting the RequestThere is no requirement that the request for documents

be signed by an attorney, nor is there a filing requirementfor this document. See CPLR 2101(d).

Motion to CompelA motion to compel disclosure may be made pursuant to

CPLR 3124.

Inspection of PropertyEntry upon designated land or other property is outlined

in CPLR 3120(a)(1)ii.

Responding to a Demand for InspectionThe notice shall specify the time, which shall not be less

than twenty (20) days after service of the notice, the placeand manner of making the inspection, copy, test, or photo-graph, or the entry upon the land or other property in pos-session, custody, or control of party served. See CPLR3120(a)(1)(ii).

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CHAPTER 13 REQUEST FOR ADMISSIONS

■ Any time after service of the answer or twenty (20) days since service of summons (but nolater than twenty (20) days before trial), a party may serve on another party a written requestfor an admission of:

the genuineness of papers or documents;

the correctness or fairness of representation of any photographs; or

the truth of any matter set forth in a request.

■ A party must specifically admit or deny the matters of which an admission is requested.

KEY POINTS

THE REQUEST FOR ADMISSIONS

Request for AdmissionsAny time after service of the answer or after twenty (20)

days since service of the summons, whichever comes first,and no later than twenty (20) days before trial, a party mayserve on any other party a written request for admission ofthe genuineness of any papers or documents, the correct-ness or fairness of representation of any photographs, or thetruth of any matter set forth in the request. Each of thesematters shall be deemed admitted unless denied within twenty(20) days after service. See CPLR 3123(a).

Advantages of the Request for AdmissionsIn response to a request for an admission, a party may

specifically admit or deny the matters of which an admis-sion is requested or set forth in detail the reasons why he orshe cannot truthfully admit or deny those matters. If the state-ment cannot be answered without qualification or explana-tion or if the material is privileged or a trade secret, instead

of a denial or statement, a statement may be made settingforth in detail his or her claim and, if the claim is that thematter cannot be admitted without a material qualificationor explanation, a statement may be made admitting the matterwith the explanation or qualification.

RESPONDING TO THE REQUEST FORADMISSIONS

Alternative Responses to the Request for the AdmissionIn New York, a party must respond to admissions that

are within the knowledge of the party or can be ascertainedby him or her upon reasonable inquiry. See CPLR 3123(a).

FAILURE TO DISCLOSEIf a person fails to reply to a disclosure request, the party

seeking disclosure may move to compell compliance. SeeCPLR 3124.

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PART IV PRETRIAL, TRIAL, AND POSTTRIAL

CHAPTER 14 SETTLEMENTS, DISMISSALS, AND ALTERNATIVE DISPUTERESOLUTION

■ A stipulation discontinuing action is executed by the attorneys for the parties and filed withthe clerk of the court.

■ A party asserting a claim may discontinue a lawsuit by serving all parties notice of adiscontinuance.

■ When a party unreasonably neglects to proceed, delays in the prosecution, or fails to serve andfile a note of issue, the court, on its own or by motion, may dismiss the party’s pleadings.

■ Attorneys must keep copies of records showing disbursement to clients for seven years.

■ Certain departments require that closing statements be filed with the office of courtadministration. Copies of these records must also be kept for seven years.

KEY POINTS

DISMISSALS, CONSENT DECREES, ANDDISTRIBUTION OF FUNDS

Order for DismissalIn New York, a stipulation discontinuing action is ex-

ecuted by the attorneys for the parties and filed with theclerk of the court. See CPLR 2104 and CPLR 3217.

Stipulated DismissalsCPLR 3217 permits the parties to execute and file a stipu-

lation discontinuing action through their attorneys. Class actionsrequire approval of the court for dismissal. See CPLR 908.

Voluntary Dismissal or NoticeA party asserting a claim may discontinue a lawsuit by

serving all parties a notice of discontinuance anytime be-fore a responsive pleading is served or within twenty (20)days after service of the pleading asserting the claim, whichevercomes first. See CPLR 3217(a).

Court-ordered Involuntary DismissalWhen a party unreasonably neglects to proceed in an ac-

tion, delays in the prosecution, or fails to serve and file anote of issue, the court, on its own or by motion, may dis-miss the party’s pleadings. See CPLR 3216(a).

Consent DecreesSee CPLR 3217 for voluntary discontinuance. Consent

decrees may be allowed (a) without an order, or (b) by or-der of court.

Infant’s and Incompetent’s CompromiseThe settlement of a claim by an infant or incompetent

requires a motion or petition for a court ordered settlement.See CPLR 1207 et seq.

Confession of JudgmentA judgment by confession may be entered, without an

action either for money due or to become due, or to securethe plaintiff against a contingent liability in behalf of thedefendant, or both, on an affidavit executed by the defen-dant. See CPLR 3218.

Distribution of Settlement FundsFunds belonging to a client must be kept in a separate

trust account and cannot be commingled with the funds ofthe attorney. Records of such deposits and withdrawals onbehalf of the client shall be maintained for seven years, aswell as copies of all retainers, compensation agreements,bills and receipts regarding payment. Retainers and closingstatements filed with the Office of Court Administration mustalso be retained for seven years. See PDR 1200.46.

The Professional Disciplinary Rules

An attorney is required in New York to maintain for sevenyears copies of all statements to clients showing disburse-ment of funds and copies of all closing statements filed withthe office of court administration. (It is to be noted that notall departments in New York require that closing statementsbe filed with the office of court administration.) Your localcourt rules must be consulted here. See www.courts.state.ny.us/ucsrules.html

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ALTERNATIVE DISPUTE RESOLUTIONArbitration agreements are governed by Article 75 of the

CPLR. Health Care arbitrations are set forth in Article 75-A of the CPLR. See CPLR 3405 for arbitration of certainclaims not exceeding $6,000 exclusive of interest, pending

in any court or courts except the civil court of the City ofNew York, and not exceeding $10,000 exclusive of interest,pending in the civil court of the City of New York. Also seewww.abanet.org/dispute for Dispute Resolution Magazine.

65

Figure 14-1 General Release by Corporation. Forms may be purchased from Julius Blumberg, Inc.,NYC 10013, or any of its dealers. Reproduction prohibited.

66

Figure 14-1 (continued )

67

Figure 14-2 General Release, Individual. Forms may be purchased from Julius Blumberg, Inc.,NYC 10013, or any of its dealers. Reproduction prohibited.

68

Figure 14-2 (continued )

69

Figure 14-3 Stipulation Discontinuing Action. Forms may be purchased from Julius Blumberg, Inc.,NYC 10013, or any of its dealers. Reproduction prohibited.

70

Figure 14-3 (continued )

71

Figure 14-4 Whole or Partial Satisfaction of Judgment. Forms may be purchased fromJulius Blumberg, Inc., NYC 10013, or any of its dealers. Reproduction prohibited.

72

Figure 14-4 (continued )

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CHAPTER 15 TRIAL TECHNIQUES

■ Before trial, leave of court is needed to amend pleadings or supplement them with additionalor subsequent transactions, unless the parties so stipulate to the changes.

■ Parties may submit to the court specific requests for jury charges.

■ A subpoena is needed to compel witnesses to attend a trial if the witness is confined in apenitentiary or jail.

■ Where certified transcripts or copies of documents are admissible in court in lieu of originals, asubpoena is required to compel production of original records.

■ Libraries, departments, or bureaus of municipal corporations or of the state, or officers thereof,must be served with a subpoena to compel the production of books, papers, and things, at trial.

■ Subpoenas are served in the same manner as a summons. If subpoenaed, a person shall bepaid travel expenses and a witness fee.

KEY POINTS

PRELIMINARY PREPARATION FOR TRIAL

Amending the PleadingsA party may amend his or her pleadings or supplement

them by setting forth additional or subsequent transactionsor occurrences by leave of court or by stipulation of all par-ties. See CPLR 3025(b).

Amendments are permitted once without leave of court withintwenty (20) days after service of a pleading, or before the pe-riod for responding to it expires, or within twenty (20) daysafter service of a pleading responding to it. See CPLR 3025(a).

THE JURY PROCESSSee www.courts.net.ny/index.html

Jury RequestA party may demand a trial by jury of any issue of fact

triable of right by jury, by serving and filing a note of issuecontaining a jury demand. See CPLR 4102.

Number of JurorsA civil jury shall be composed of six persons. See CPLR

4104. Unless the court directs otherwise, one or two addi-tional jurors known as alternate jurors may be drawn. SeeCPLR 4106. Also see www.courts.state.ny.us/pt-220.htm

Peremptory Challenges

Each party shall have three peremptory challenges plusone peremptory challenge for each alternate juror. See CPLR4109.

Disagreement by JuryA unanimous verdict is not required. A verdict may be

rendered by five-sixths of the jurors. See CPLR 4113.

Voir DireEffective January 1, 1996, the Unified Court System of

New York (UCS) instituted new rules governing civil voirdire to make the jury selection process more efficient. Thetrial judge will now preside at the commencement of voirdire, and with discretion remain at all or part of the remain-der of jury selection, and even select the method of juryselection. Either White’s method, Struck method, or the Strikeand Replace method may be selected by the judge. See 202.33of the Rules of the Chief Administrator of the Courts.

Many more people will now be eligible for jury duty.The jury exemptions for doctors, lawyers, judges, journal-ists, nurses, embalmers, police officers, fire fighters, andclergy have all been removed, greatly enlarging the poten-tial pool of prospective jurors.

Jury InstructionsParties may file written requests that the court instruct

the jury on the law as set forth in the requests. See CPLR4110-b.

Trial LawyersSee www.nysba.org/sections/trial/triallinks.html for articles

and resources concerning court trials.

PREPARATION OF WITNESSES

Subpoena of WitnessesArticle 23 of the CPLR covers service of subpoenas. A

subpoena issued by the court is needed to compel the atten-dance of any person confined in a penitentiary or jail, or tocompel the production of original records or documents wherecertified transcripts or copies are admissible in evidence.See CPLR 2302(b).

74

Where a subpoena duces tecum is to be served upon alibrary, a department, or a bureau of a municipal corpora-tion or of the state, or upon an officer thereof, requiring theproduction of books, papers, or things, it shall be issued bythe court. See CPLR 2307.

Subpoenas in New York must be served in the same manneras a summons. Any person subpoenaed shall be paid or ren-dered in advance authorized travel expenses and one-daywitness fee. See CPLR 2303.

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Figure 15-1 Juror Qualification Questionnaire .

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CHAPTER 16 POSTTRIAL PRACTICE

■ A party may move for a directed verdict after the close of evidence presented by theopposing party.

■ After trial, a party may move for a judgment notwithstanding the verdict.

■ A motion for a new trial must be made to the same judge who presided over the trial andwithin fifteen (15) days after decision, verdict, or discharge of the jury.

■ Appeals may be made to the appellate division, the appellate term (in the first and seconddepartments only), and in some instances to the court of appeals.

■ An appeal as of right must be taken within thirty (30) days after service of a copy of thejudgment or order appealed from.

■ The CPLR covers appeals in general, but appellate rules for your department must beconsulted prior to the taking of an appeal, as they vary from department to department.

KEY POINTS

POSTTRIAL MOTIONS

Motion for a Directed VerdictAny party in New York may move for judgment with re-

spect to a cause of action or issue on the ground that themoving party is entitled to judgment as a matter of law af-ter the close of evidence presented by an opposing party orat any time on the basis of admissions. See CPLR 4401.

Motion for Judgment Notwithstanding the VerdictAfter trial, the court may set aside a verdict or order a

new trial. See CPLR 4404.

Motion for a New TrialMotions to the judge who presided must be made within

fifteen (15) days after decision, verdict, or discharge of thejury. See CPLR 4405,

THE PRELIMINARY STEPS IN THE APPEALThe subject of appeals is generally addressed in Article

55 of the CPLR. An appeal as of right must be taken withinthirty (30) days after service upon the appellant of a copy

of the judgment or order appealed from and written noticeof its entry. See CPLR 5513. It is very important that youobserve this deadline to preserve your client’s rights. Seewww.courts.net/ny/index.html. Also see www.nylj.com/rulesfor the court rules for the court of appeals and for the ap-pellate division. See www.nycourts.com/docs/cap/rules/cap500.htm#500 for the steps in filing an appeal with thecourt of appeals. The step in an appeal to the appellate divi-sion can be found at www.nycourts.com/docs/ad1/rules/part600i.htm.

Supersedeas BondIn New York, this term is not used. See CPLR 5519 for

stay of enforcement. Appeals to the court of appeals aregoverned by Article 56 of the CPLR, whereas Article 57 ofthe CPLR covers appeals to the appellate division. It is tobe noted that the appellate divisions in each department mayhave different and special rules and procedures for filingrecords and briefs, and should be consulted before prepar-ing an appeal. See CPLR 5530(c). These rules of the appel-late division take precedence over the rules set forth in theCPLR and, therefore, your local court rules must be con-sulted before each and every step in the appeals process.

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Figure 16-1 Notice of Appeal. Forms may be purchased from Julius Blumberg, Inc.,NYC 10013, or any of its dealers. Reproduction prohibited.

78

Figure 16-1 (continued )

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Figure 16-2 Restraining Notice to Judgment Debtor. Forms may be purchased fromJulius Blumberg, Inc., NYC 10013, or any of its dealers. Reproduction prohibited.

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Figure 16-2 (continued )