PART II Initiating Litigation

PART II Initiating Litigation CHAPTER 3 Preliminary Considerations KEY POINTS Certain causes of actions must be specifically pleaded. New York statute of limitations must be consulted before each action is commenced as they differ from those of other states, as well as the federal statutes, and may be changed from time to time by the state legislature. Claims against the state of New York and public corporations require a Notice of Claim to start the action. Attorneys are bound by the Lawyer s Code of Professional Responsibility and subject to disciplinary action. DETERMINING THE EXISTENCE OF A CAUSE OF ACTION In New York, statements in pleadings should be sufficiently particular to give the court and parties notice of the transactions, occurrences, or series of transactions or occurrences intended to be proved and the material elements of each cause of action or defense. See CPLR 3013. In New York, automobile accidents are covered by what is commonly referred to as the no-fault statute. In order to bring an action for injuries following an automobile accident, specific conditions must be met. A serious injury must be pleaded for the suit to proceed in court. See Insurance Law 5102(d). ELEMENTS OF A CAUSE OF ACTION Certain issues must be pleaded to pursue specific actions in New York. Examples of actions that must be pleaded with particularity include libel or slander, fraud or mistake, separation or divorce, judgment, law of a foreign country, sale and delivery of goods, personal injury arising from a motor vehicle accident and gross negligence or intentional infliction of harm. See CPLR 3016. CERTIFICATE OF MERIT In any action for medical, dental, or podiatric malpractice, the complaint must be accompanied by a certificate of merit executed by the attorney for the plaintiff. See CPLR 3012-a. TIME LIMITATIONS STATUTE OF LIMITATIONS Actions brought against the state of New York must be commenced within two years from accrual of cause of action. See 10 of the Court of Claims Act. CONTRACTS. There is a six-year statute of limitations for contract actions except when otherwise agreed, or four years if an action is brought pursuant to the Uniform Commercial Code (UCC). See CPLR 213. 9

10 PART II Initiating Litigation PROPERTY DAMAGE. There is a three-year statute of limitations. See CPLR 214(4). PERSONAL INJURY ACTION. There is a threeyear statute of limitations. See CPLR 214(5). LEGAL MALPRACTICE. There is a three-year statute of limitations. See CPLR 214(6). MEDICAL, DENTAL OR PODIATRIC MAL- PRACTICE. 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. These include assault, battery, false imprisonment, malicious prosecution, libel or slander; for violation of right of privacy under Civil Rights Law 51. The statute of limitations is one year. See CPLR 215(3). CLAIMS STATUTES CLAIMS. In New York, a Notice of Claim must be served when actions are brought against the state of New York, as well as for actions brought against public corporations; See Court of Claims Act 10 and General Municipal Law 50-e. See www.nyscourtofclaims.state.ny.us LACHES. There is no time period for an action brought in equity (where the plaintiff has not adequate remedy at law.) Therefore the statute of limitations for equity actions full under the catch-all provision of CPLR 213(1), or six years. The defendant can assert the doctrine of laches as a defense, even if the matter is brought within the applicable statute of limitations. The defendant would have to show that (1) plaintiff has undertaken undue delay in bringing the claim, and (2) that the delay has prejudiced the defendant. ETHICAL CONSIDERATIONS IN ACCEPTING A CASE In New York, attorneys are bound by the Lawyer s Code of Professional Responsibility, which can be found at www. nysba.org/content/navigationmenu/attorney_resources/ Lawyers_Code_of_Professional_Responsibility/ CodeofResponsibility.pdf. See also 22 NYCRR Part 1200. When an attorney accepts a case where the fee is expected to be over $3,000, they must provide to the client a Written Letter of Engagement pursuant to 22 NYCRR 1215. The letter of engagement, or its equivalent in a signed written retainer agreement, shall include: 1. Explanation of the scope of the legal services to be provided; and 2. Explanation of attorney s fees to be charged, expenses and billing practices; and, where applicable, shall provide that the client may have a right to arbitrate fee disputes under Part 137 of the Rules of the Chief Administrator. For a sample Letter of Engagement, see http://www. nysba.org/content/navigationmenu/attorney_resources/ Letters_of_Engagement/Letters_of_Engagement.htm. DOMESTIC RELATIONS MATTERS Attorneys representing clients in certain matrimonial matters must provide prospective clients with a statement of Clients Rights and Responsibilities. The retainer agreements for such matters must be in writing and contain certain language. Attorneys may not accept non-refundable retainer fees from such clients, and the client (but not the attorney) has the right to compel the attorney to submit to binding arbitration of fee disputes. 22 NYCRR Part 1400. ETHICAL CONSIDERATIONS AFTER ACCEPTING A CASE FRIVOLOUS CLAIMS Costs can be assessed against a plaintiff or defendant in actions to recover damages for personal injury, injury to property, or wrongful death, if such party s action in support or defense of the case shall be found to be frivolous. See CPLR 8303-a. Costs can also be awarded for a frivolous claim or defense made during health care arbitrations. See CPLR 7564(b). CONFLICT OF INTEREST A lawyer in New York must decline employment if the exercise of independent professional judgment on behalf of the client will be adversely affected. See DR 5-105 (22 NYCRR 1200.24). COMMUNICATING WITH THE OPPOSING PARTY It is unethical in New York for the attorney to personally contact an opposing party who is represented by counsel. See DR 7-104 (22 NYCRR 1200.35). CONFIDENTIALITY A lawyer shall not knowingly reveal a confidence or secret of a client. See DR 4-101 (22 NYCRR 1200.19). HONESTY A lawyer shall not engage in conduct involving dishonesty, fraud, deceit, or misrepresentation. See DR 1-102 (22 NYCRR 1200.3).

CHAPTER 4 Investigation and Evidence 11 FEE-SHARING Attorneys and paralegals in New York may not split fees. This is a violation of the Lawyer s Code of Professional Responsibility and subject to disciplinary action. See DR 3-102 (22 NYCRR 1200.17). maintained. Records for such accounts, as well as copies of all retainer and compensation agreements with clients must be kept for at least seven years. See DR 9-102 (22 NYCRR 1200.46). PRESERVING IDENTITY OF FUNDS AND PROPERTY OF OTHERS A lawyer shall not commingle property or funds of a client with his or her own. A separate client trust fund must be CHAPTER 4 Investigation and Evidence KEY POINTS Contact New York s secretary of state for information regarding domestic corporations, limited liability companies, limited partnerships, and limited liability partnerships. Accident reports can be obtained from the New York State Department of Motor Vehicles. A medical authorization is required to obtain medical records. Weather reports can be obtained from the National Climatic Data Center Expert testimony is governed by CPLR 3101(d) and CPLR 4515. STEPS FOR LOCATING THE AGENT OF CORPORATIONS OR PARTNERSHIPS Partnership and corporate information is available from the secretary of state s office: Secretary of State 162 Washington Avenue Albany, New York 12210 Telephone: (518) 474-4750 You can access the Department of State s Corporation and Business Entity Database by going to their website at www.dos.state.ny.us, and clicking on their link to Corporations. This database includes business and not for profit corporations, limited partnerships, limited liability companies and limited liability partnerships, as well as other miscellaneous businesses. All other entities such as general partnerships, sole proprietorships and limited liability partnerships file an assumed name certificate directly with the County Clerk in each county in which the entity conducts or transacts business. EVIDENCE ACCIDENT REPORTS. If an accident involves death or personal injury, or property damage in excess of $1,000 to the property of any one individual, the drivers must report it to the state Department of Motor Vehicles. To obtain a copy of an accident report filed by a person or police agency with the DMV, complete a the form MV- 198C and send it with the proper fee to the DMV. For information about obtaining driver and vehicle records, see the DMV s website at http://www.nydmv.state.ny.us/ abstract. From there, you can access their forms database. MEDICAL RECORDS. To obtain medical records, you will need a fully executed medical authorization form that complies with the Health Insurance Portability and Accountability Act of 1996 (HIPAA). For a HIPAA-compliant form, see http://www.courts.state.ny.us/ forms/ and select HIPAA form. WEATHER REPORTS. The Climate Resources page (http://www.ncdc.noaa.gov/ ol/climate/climateresources.html) from the National Climatic Data Center (NCDC) contains links to all of the NCDC s information about historical weather data. At the Get/View Online Climate Data link, you can select the data you want. Selecting Surface Data: Daily will provide choices of several datasets.

12 PART II Initiating Litigation EXPERT WITNESSES. The attorney introducing expert testimony lays a foundation for that expert testimony by asking questions as to the experts education and training. The court itself does not qualify experts. See CPLR 3101(d) and CPLR 4515. The Internet is a useful resource for locating the names of experts, or for more information about the opposing side s expert. It s best to get references, such as other attorneys who have relied upon that expert. CHAPTER 5 The Initial Pleadings KEY POINTS The Summons and Complaint must be filed prior to service. The responsive pleadings need not be filed prior to service. A petition is a method of commencing a special proceeding and is not synonymous with a complaint. Generally, verified complaints are not necessary and apply only to specified situations. New York has waived governmental (sovereign) immunity and permits claims against the state. There is a no compulsory joinder of parties. Numbered paper is no longer required for New York pleadings. Pleadings must be signed in New York. INITIAL PLEADINGS PLEADINGS IN GENERAL The summons and complaint must be filed prior to service. Responsive pleadings need not be filed prior to service upon the opposing party. See CPLR 306-a. PETITION In NewYork, a petition is a method of starting a special proceeding. See CPLR 402. A special proceeding is a quick PARTIES TO THE LAWSUIT REAL PARTY IN INTEREST CPLR 1004 lists proceedings and situations where suit can be brought by or against representatives of parties, rather than against the actual person they are representing. Some examples include: an executor, administrator, guardian of property of an infant, the committee of a judicially declared incompetent, the conservator of the property of a conservatee, the trustee of an express trust, an insurer as subrogor to an insured, and a person in whose name a contract was made for benefit of another. STATUS In New York, the fact that a corporation was an Idaho corporation would not be specified in the caption but should and economical means of enforcing a claim permitted by statute in certain matters. Examples of these are proceedings to settle an infant s claim. See CPLR 1207 and Article 78 proceedings under CPLR 7801 et seq. VERIFICATION. A verified complaint is not mandatory except in an action involving the sale and delivery of goods pursuant to CPLR 3016(f); matrimonial actions pursuant to Domestic Relations Law 211. be stated in the allegations of the complaint. Each paper served or filed shall begin with a caption setting forth the name of the court, venue, title of the action, the nature of the paper, and the index number. See CPLR 2101(c). CAPACITY MINOR. A minor in New York is someone under eighteen (18) years of age. GUARDIAN AD LITEM. A parent having legal custody of a child may bring suit on the child s behalf in New York without the appointment of a guardian by the court. See CPLR 1201. Generally, a guardian ad litem is appointed if an infant defendant has no guardian of his property, parent, or other person or agency having legal custody. See CPLR 1201.

CHAPTER 5 The Initial Pleadings 13 CORPORATIONS AND OTHER BUSINESS ENTITIES. Two or more people who conduct business as a partnership can sue or be sued in the partnership name. See CPLR 1025. See CPLR 310 for service of process provisions. GOVERNMENTAL AGENCIES. New York has waived the sovereign immunity provision to the extent that it permits suits against itself in the Court of Claims. See CPLR 307 for service provisions. Also see the Court of Claims Act. See www.nyscourtofclaims.state.ny.us JOINING MULTIPLE PARTIES PERMISSIVE JOINDER. Generally, this occurs where there is a common question of law or fact. See CPLR 1002. COMPULSORY JOINDER. The term necessary joinder of parties is used. Persons who ought to be parties if complete relief is to be accorded or who might be unfairly affected by a judgment in an action should be made plaintiffs or defendants. See CPLR 1001. MOTION PRACTICE. The court should not proceed in the absence of a person who should be a party. CPLR 3211(a)(10) provides statutory support for a motion to dismiss in the absence of such a person. CLASS ACTIONS Class Actions are governed by CPLR Article 9. The court must find that certain prerequisites have been satisfied in determining whether or not an action may proceed as a class action. See CPLR 901. One or more members of a class may sue on behalf of all if: 1. The class is so numerous that joinder of all members is impracticable; 2. There are questions of law or fact common to the class; 3. The claims or defenses of the representatives are typical of the class; 4. The representative parties will fairly and adequately protect the interest of the class; 5. A class action is superior to other available methods for resolving the controversy. INTERPLEADER A person who is or may be exposed to multiple liability as a result of adverse claims may commence an action of interpleader against two or more claimants. CPLR 1006. DRAFTING THE COMPLAINT Pleadings must be signed by the attorney. Each paper served or filed shall be durable, white, and, except for summonses, subpoenas, notices of appearance, notes of issue, orders of protection, and exhibits, shall be 81 2 by 11 inches in size. Writing should be legible and in black ink. CPLR 2101(a). A request for trial by jury is not made in the complaint. This is done on a separate form called a note of issue. See CPLR 3402 and 4102(a). Statements in the pleadings shall be sufficiently particular to give the court and parties notice of the transactions intended to be proved and the material elements of each cause of action or defense. See CPLR 3013. Every pleading shall consist of plain and concise statements in consecutively numbered paragraphs. Each paragraph shall contain a single allegation. Causes of action or defenses may be stated alternatively or hypothetically. See CPLR 3014. In general a Complaint shall contain a demand for relief. CPLR 3017. The exceptions are: actions for personal injury, wrongful death, medical or dental malpractice, or actions against a municipal corporation. In those actions, the pleadings must contain a request for general relief, but must not state the amount of damages to which the pleader deems himself entitled. CPLR 3017(c). Each paper served or filed shall be indorsed 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(d). A cover sheet is not used. COVER SHEET FILING THE COMPLAINT An action is commenced by filing a summons and complaint or summons with notice with the County Clerk. See CPLR 304. INDIVIDUAL ASSIGNMENT SYSTEM Both the Uniform Rules for the Supreme Court and the county court and the Uniform Rules for the City Courts outside the City of New York have an individual assignment system (IAS) for all civil actions and proceedings. For supreme and county court matters, a single judge is assigned to supervise the action upon filing a Request for Judicial Intervention (RJI) with the County Clerk. In city courts, assignments are made to judges upon the filing of the first document in the matter. See 22 NYCRR 202.3(b), 210.3(b). For the RJI form, see www.courts.state.ny.us/ forms

14 PART II Initiating Litigation OFFICE OF COURT ADMINISTRATION Requests for Judicial Intervention must now be modified to incorporate the court system s new time frames (standards and goals) for the completion of civil cases. In all cases except contested matrimonials, the estimated time period for the case to be ready for trial must be stated. For routine cases, discovery should be completed and the Note of Issue filed within twelve (12) months of the filing of the RJI. For complex cases, that period will be fifteen (15) months. Contested matrimonials will be subject to specific standards and goals reflecting the time frames set forth in the matrimonial rules. See www.courts.state.ny.us DOCKET NUMBER In New York, cases are assigned index numbers rather than docket numbers. An index number is assigned when the Summons and Complaint are filed. When the index number is assigned, a fee shall be paid. See CPLR 306-a. The Summons shall bear the index number assigned and the date of filing with the County Clerk. See CPLR 305. Where the case has been assigned to an individual judge, the name of the assigned judge must appear to the right of the caption. 22 NYCRR 202.5. CPLR 8023. Parties may pay fees with a credit card. THE SUMMONS The attorney prepares the Summons and Complaint, and files these prior to service. Then the attorney for plaintiff has the summons and complaint served on the defendant. A person who is eighteen (18) years of age or older and is not a party to the action may serve the summons and complaint CPLR 2103(a). A summons shall specify the basis of venue designated and if based upon residence of the SERVICE OF THE COMPLAINT SERVICE OF PROCESS Specific methods of service are detailed in CPLR 308. Personal service is made by actually handing over the summons to the defendant. CPLR 308(1). If this is not possible, the summons can be served upon a person of suitable age and discretion at the defendant s dwelling this type of office. Service must be followed up with an additional mailing of the summons. CPLR 308(2). If after due diligence the person to be served or a person of suitable age and discretion cannot be located at the home or office of the defendant, then the summons may be affixed to the door of defendant s business or dwelling. An additional mailing of the summons is required for this method of service. CPLR 308(4). Service of papers can be made by any person, not a party, who is eighteen (18) years of age or older. See CPLR 2103(a). New York has a special provision allowing service of process by mail (see CPLR 312-a) or service upon a party s attorney by facsimile (fax). See CPLR 2103(b)(5). Where service cannot be made upon a defendant, the plaintiff may apply to the court by motion for permission to serve the summons by publication. See CPLR 316. FILING OF THE COMPLAINT The complaint is filed with the Summons and served upon the defendant with the Summons. When the complaint is not filed with the summons, and therefore not served, the defendant may serve a written Demand for a Complaint. plaintiff, it shall specify the plaintiff s address and also bear the index number assigned and the date of filing with the clerk of the court. There are special requirements for the summons in a consumer credit transaction. There are also additional requirements for the summons where a summons with notice is served in lieu of a summons and complaint. See CPLR 305. The service of the complaint shall be made within twenty (20) days after service of the demand. See CPLR 3012(b). PROOF OF SERVICE An affidavit of service is executed by the person performing service of process. Proof of service shall specify the papers served, the person who was served and the date, time, address, or in the event there is no address, place and manner of service. See CPLR 306(a). Service shall be made within 120 days after the initial pleadings are filed CPLR 306-B. There is no longer a requirement that proof of service be filed with the County Clerk. AMENDING THE COMPLAINT A party may amend his pleading once without leave of court within twenty (20) days after its service, or at any time before the period for responding to it expires, or within twenty (20) days after service of a pleading responding to it. See CPLR 3025(a). Additionally, an agreement may be made between the parties or their attorneys relating to any matter in any action. These agreements are called stipulations. See CPLR 2104. UNKNOWN PARTY If the name of a party is unknown, a party may proceed against such person by designating so much of his name and identity as is known. If the name becomes known, all subsequent pleadings shall be taken under the true name, See CPLR 1024.

CHAPTER 5 The Initial Pleadings 15 Exhibit 5-1 Note of Issue. Forms may be purchased from BlumbergExcelsior, Inc. or any of its dealers. Interactive electronic forms may be purchased at WWW.BLUMBERG.COM. Reproduction prohibited.

16 PART II Initiating Litigation Exhibit 5-2 Certificate of Readiness for Trial. Forms may be purchased from BlumbergExcelsior, Inc. or any of its dealers. Interactive electronic forms may be purchased at WWW.BLUMBERG.COM. Reproduction prohibited.

CHAPTER 5 The Initial Pleadings 17 Exhibit 5-3 Summons with Notice. Forms may be purchased from BlumbergExcelsior, Inc. or any of its dealers. Interactive electronic forms may be purchased at WWW.BLUMBERG.COM. Reproduction prohibited. (continued)

18 PART II Initiating Litigation Exhibit 5-3 Summons with Notice. Forms may be purchased from BlumbergExcelsior, Inc. or any of its dealers. Interactive electronic forms may be purchased at WWW.BLUMBERG.COM. Reproduction prohibited. (continued)

CHAPTER 5 The Initial Pleadings 19 Exhibit 5-4 Summons with Notice, Consumer Credit Transaction. Forms may be purchased from BlumbergExcelsior, Inc. or any of its dealers. Interactive electronic forms may be purchased at WWW.BLUMBERG.COM. Reproduction prohibited. (continued)

20 PART II Initiating Litigation Exhibit 5-4 Summons with Notice, Consumer Credit Transaction. Forms may be purchased from BlumbergExcelsior, Inc. or any of its dealers. Interactive electronic forms may be purchased at WWW.BLUMBERG.COM. Reproduction prohibited. (continued)

CHAPTER 5 The Initial Pleadings 21 Exhibit 5-5 Request for Judicial Intervention. REQUEST FOR JUDICIAL INTERVENTION UCS-840 (REV 1/2000) COURT COUNTY INDEX NO. DATE PURCHASED PLAINTIFF(S): For Clerk Only IAS entry date DEFENDANT(S): Judge Assigned RJI Date Date issue joined: Bill of particulars served (Y/N): [ ]Yes [ ]No... NATURE OF JUDICIAL INTERVENTION (check ONE box only AND enter information) [] Request for preliminary conference [] Note of issue and/or certificate of readiness [] Notice of motion (return date: ) Relief sought [] Order to show cause (clerk enter return date: ) Relief sought [] Other ex parte application (specify: ) NATURE OF ACTION OR PROCEEDING (Check ONE box only) MATRIMONIAL Malpractice [] Contested -CM [ ] Medical/Podiatric -MM [] Uncontested -UM [ ] Dental -DM [] *Other Professional -OPM COMMERCIAL [] Contract -CONT [ ] Motor Vehicle -MV [] Corporate -CORP [ ] *Products Liability -PL [] Insurance (where insurer is a party, except arbitration) -INS [ ] Environmental -EN [] UCC (including sales, negotiable -UCC [ ] Asbestos -ASB instruments) [ ] Breast Implant -BI [] *Other Commercial -OC [ ] *Other Negligence -OTN [] *Other Tort (including REAL PROPERTY intentional) -OT [] Tax Certiorari -TAX [] Foreclosure -FOR SPECIAL PROCEEDINGS [] Condemnation -COND [ ] Art. 75 (Arbitration) -ART75 [] Landlord/Tenant -LT [ ] Art. 77 (Trusts) -ART77 [] *Other Real Property -ORP [ ] Art. 78 -ART78 [ ] Election Law -ELEC [] Guardianship (MHL Art. 81) -GUARD81 OTHER MATTERS [] *Other Mental Hygiene -MHYG [] * -OTH [ ] *Other Special Proceeding -OSP TORTS [] Notice of petition (return date: ) Relief sought [] Notice of medical or dental malpractice action (specify: ) [] Statement of net worth [] Writ of habeas corpus [] Other (specify: ) (continued)

22 PART II Initiating Litigation Exhibit 5-5 Request for Judicial Intervention. (continued) Check YES or NO for each of the following questions: Is this action/proceeding against a YES NO YES NO [] [] Municipality: [ ] [ ] Public Authority: (Specify ) (Specify ) YES NO [] [] Does this action/proceeding seek equitable relief? [] [] Does this action/proceeding seek recovery for personal injury? [] [] Does this action/proceeding seek recovery for property damage? Pre-Note Time Frames: (This applies to all cases except contested matrimonials and tax certiorari cases) Estimated time period for case to be ready for trial (from filing of RJI to filing of Note of Issue): Expedited: 0 8 months Standard: 9 12 months Complex: 13 15 months Contested Matrimonial Cases Only: (Check and give date) Has summons been served? No Yes, Date Was a Notice of No Necessity filed? No Yes, Date ATTORNEY(S) FOR PLAINTIFF(S): Self Name Address Phone # Rep.* ATTORNEY(S) FOR DEFENDANT(S): Self Name Address Phone # Rep.* *Self Represented: parties representing themselves, without an attorney, should check the Self Rep. box and enter their name, address, and phone # in the space provided above for attorneys. INSURANCE CARRIERS: RELATED CASES: (IF NONE, write NONE below) Title Index # Court Nature of Relationship I AFFIRM UNDER PENALTY OF PERJURY THAT, TO MY KNOWLEDGE, OTHER THAN AS NOTED ABOVE, THERE ARE AND HAVE BEEN NO RELATED ACTIONS OR PROCEEDINGS, NOR HAS A REQUEST FOR JUDICIAL INTERVENTION PREVIOUSLY BEEN FILED IN THIS ACTION OR PROCEEDING. Dated: (SIGNATURE) (PRINT OR TYPE NAME) ATTORNEY FOR \forms\rji2000.wpd ATTACH RIDER SHEET IF NECESSARY TO PROVIDE REQUIRED INFORMATION

CHAPTER 5 The Initial Pleadings 23 Exhibit 5-6 Summons Without Notice. Forms may be purchased from BlumbergExcelsior, Inc. or any of its dealers. Interactive electronic forms may be purchased at WWW.BLUMBERG.COM. Reproduction prohibited. (continued)

24 PART II Initiating Litigation Exhibit 5-6 Summons Without Notice. Forms may be purchased from BlumbergExcelsior, Inc. or any of its dealers. Interactive electronic forms may be purchased at WWW.BLUMBERG.COM. Reproduction prohibited. (continued)

CHAPTER 5 The Initial Pleadings 25 Exhibit 5-7 Affidavit of Personal Service on Corporation. Forms may be purchased from BlumbergExcelsior, Inc. or any of its dealers. Interactive electronic forms may be purchased at WWW.BLUMBERG.COM. Reproduction prohibited. (continued)

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

CHAPTER 5 The Initial Pleadings 27 Exhibit 5-8 Application for Index Number. Forms may be purchased from BlumbergExcelsior, Inc. or any of its dealers. Interactive electronic forms may be purchased at WWW.BLUMBERG.COM. Reproduction prohibited.

28 PART II Initiating Litigation Exhibit 5-9 Affidavit of Service of Summons or Subpoena. Forms may be purchased from BlumbergExcelsior, Inc. or any of its dealers. Interactive electronic forms may be purchased at WWW.BLUMBERG.COM. Reproduction prohibited.

CHAPTER 5 The Initial Pleadings 29 Exhibit 5-9 Affidavit of Service of Summons or Subpoena. Forms may be purchased from BlumbergExcelsior, Inc. or any of its dealers. Interactive electronic forms may be purchased at WWW.BLUMBERG.COM. Reproduction prohibited. (continued)

30 PART II Initiating Litigation CHAPTER 6 Responses to the Initial Pleading KEY POINTS The time for a defendant to respond to a complaint varies with the manner of service (e.g., personally, by mail, substituted service, etc.), upon the defendant. An action can be commenced by service of summons and complaint, or by service of a summons with notice. General denials are permitted, where appropriate. A defendant pleads all affirmative defenses that would otherwise take the adverse party by surprise. The Answer need not be filed prior to service on the plaintiff. If the plaintiff serves a verified Complaint, the defendant s Answer must be verified. 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. RESPONDING TO THE INITIAL PLEADING TIME LIMITS The time to respond to the complaint depends upon the manner of service. If the complaint was personally served, a defendant must respond within twenty (20) days after service is complete. See CPLR 3012(a). In the event of substitute service, additional time to serve an answer is granted. An answer must be served within thirty (30) days after substitute service is complete. See CPLR 3012(c). In New York, a plaintiff need not serve both a summons and complaint to start an action. A plaintiff has the option and can serve a summons with notice in lieu of a summons and complaint. See CPLR 304, 305(b). In the event the defendant is served with a summons with notice, then the defendant s attorney should respond with a notice of appearance and a demand for a complaint or respond by making a motion. See CPLR 320, 3012(b). STIPULATION ENLARGING TIME This agreement between attorneys need not be approved by the court but must be in writing, unless made in open court. See CPLR 2104. TYPES OF ANSWERS GENERAL DENIALS General denials are permitted when appropriate. However, when a plaintiff serves a verified complaint involving sale and delivery of goods pursuant to CPLR 3016(f), the defendant may not respond with a general denial. Defendant must state those items he disputes, and whether the dispute relates to delivery or performance, reasonable value or agreed price. that would take the adverse party by surprise, or raise issues of fact not appearing on the face of a prior pleading such as: arbitration and award, collateral estoppel, culpable conduct (as set forth in Article 14-A), discharge in bankruptcy, facts showing illegality, fraud, infancy or other disability of the defendant, payment, release, res judicata, statute of frauds, or statute of limitations. AFFIRMATIVE DEFENSES CPLR 3018(b) lists affirmative defenses to be included in a responsive pleading. A party should plead all matters

CHAPTER 6 Responses to the Initial Pleading 31 DRAFTING THE ANSWER The Answer need not be filed prior to service on the plaintiff. CPLR 2101 governs the form of the papers. CAPTION The term index number (not docket number) is used in New York. See CPLR 306-a. BODY The defendant shall deny those statements he knows or believes to be untrue. If there is a statement as to which he lacks knowledge or information to form a belief, he must specify so, which will have the effect of a denial. All other statements are considered admitted, except if no responsive pleading is permitted they are deemed denied. See CPLR 3018(a). PRAYER AND SIGNATURE The name, address, and telephone number of the law firm preparing the Answer is typed at the end. See CPLR 2101(d). The attorney s signature is required. will sign an affidavit as to the truth of the facts alleged in the pleading. See CPLR 3020(a). CPLR 3020(b) governs when an Answer must be verified. Under specific circumstances, for example, if an attorney s client lives out of the county where the attorney maintains his office or an attorney has personal knowledge of the material allegations of the pleadings, then the attorney might sign the verification to the pleading. See CPLR 3020(d)(3). SERVICE AND FILING The Answer need not be filed after service upon the plaintiff. AMENDING A pleading may be amended once without leave of court within twenty (20) days after its service, or anytime before the period for responding to it expires, or within twenty (20) days after service of a pleading responding to it. See CPLR 3025(a). Pleadings may also be amended by leave of court, or by stipulation of all parties. See CPLR 3025(b). VERIFICATION In the event that a verified complaint is served, the responsive pleading must also be verified. Generally, the party COUNTERCLAIMS, CROSSCLAIMS, AND THIRD-PARTY COMPLAINTS CROSS-COMPLAINT The defendant in his or her answer may also bring a claim against other defendants. This is called a crossclaim. See CPLR 3019. If no demand is made, the crossclaim shall be deemed denied. See CPLR 3011. COUNTERCLAIMS In New York, the defendant can bring a claim against the plaintiff as part of the answer. This is called a counterclaim. New York does not divide counterclaims as either compulsory or permissive. In New York, all counterclaims are considered permissive. There shall be a reply to a counterclaim denominated as such. CONTRIBUTION Except as provided for in section 15-108 of the General Obligations Law, two or more persons who are subject to liability for damages for the same personal injury, injury to property, or wrongful death, may claim contribution among them, whether or not an action has been brought or a judgment has been rendered against the person from whom contribution is sought. See CPLR 1401. Also see Article 15 of the CPLR for actions against persons jointly liable and Article 15 of the CPLR for limited liability of persons jointly liable. THIRD-PARTY COMPLAINTS See CPLR 305(a) concerning service of the third-party summons. See CPLR 306-b for service of the third-party complaint.

32 PART II Initiating Litigation LEGAL CHALLENGES TO THE COMPLAINT There is no demurrer pleading in New York. A motion to dismiss one or more causes of action could be asserted on the grounds that the pleading fails to state a cause of action. See CPLR 3211(a)(7). MOTION TO DISMISS Under the CPLR, a party may bring a motion to dismiss one or more causes of action. CPLR 3211. Some of the grounds for a dismissal motion are: 1. A defense is founded upon documentary evidence; 2. Lack of jurisdiction over the subject matter of the cause of action 3. Lack of capacity to sue 4. Another action is pending 5. Arbitration and award, collateral estoppel, discharge in bankruptcy, infancy or other disability of the defendant, payment, release, res judicata, statute of limitations, or statute of frauds; 6. Improper counter-claim; 7. Failure to state a cause of action 8. Lack of jurisdiction over the person; 9. Lack of jurisdiction under CPLR 314 or 315; 10. Absence of a necessary party Dismissal motions can also be brought for: 1. Inconvenient forum. See CPLR 327 2. Failure to serve a complaint when demanded. See CPLR 3012(b) 3. Failure to comply with demands for disclosure. See CPLR 3126(3) 4. Failure to prosecute. See CPLR 3216 5. Failure to answer. See CPLR 3215 It is to be noted that a party has the option of bringing a dismissal motion, or asserting such affirmative defenses in the answer. MOTION FOR MORE DEFINITE STATEMENT If a pleading is so vague or ambiguous that a party cannot reasonably be required to frame a response, the party may move for a more definite statement. See CPLR 3024(a). DEMURRER In New York, a challenge to the legal sufficiency of the complaint is brought by way of a dismissal motion under CPLR 3211(a)(7), for failure to state a cause of action. FAILURE TO ANSWER Default judgments are governed by CPLR 3215. Generally a default judgment is sought as a result of the defendant s failure to respond to the summons with notice, or to the summons and complaint. If the plaintiff s claim is for a sum certain, application may be made to the County Clerk. See CPLR 3215(a). However, an assessment of damages by a judge is required for all other claims. See CPLR 3215(b). SETTING ASIDE DEFAULTS A motion may be brought pursuant to CPLR 5015(s) for relief from a default judgment based on excusable default. Motions to vacate judgment may be brought on other grounds as well. MOTION TO QUASH SERVICE OF SUMMONS In New York, this is called a motion to dismiss for lack of jurisdiction pursuant to CPLR 3211(a)(8). DEMURRER In New York, this is a motion to dismiss for failure to state a cause of action pursuant to CPLR 3211(a)(7).

CHAPTER 6 Responses to the Initial Pleading 33 Exhibit 6-1 Request for Preliminary Conference. Forms may be purchased from BlumbergExcelsior, Inc. or any of its dealers. Interactive electronic forms may be purchased at WWW.BLUMBERG.COM. Reproduction prohibited. (continued)

34 PART II Initiating Litigation Exhibit 6-1 Request for Preliminary Conference. Forms may be purchased from BlumbergExcelsior, Inc. or any of its dealers. Interactive electronic forms may be purchased at WWW.BLUMBERG.COM. Reproduction prohibited. (continued)

CHAPTER 6 Responses to the Initial Pleading 35 Exhibit 6-2 Affirmation of Good Faith for Preliminary Conference. Forms may be purchased from BlumbergExcelsior, Inc. or any of its dealers. Interactive electronic forms may be purchased at WWW.BLUMBERG.COM. Reproduction prohibited. (continued)

36 PART II Initiating Litigation Exhibit 6-2 Affirmation of Good Faith for Preliminary Conference. Forms may be purchased from BlumbergExcelsior, Inc. or any of its dealers. Interactive electronic forms may be purchased at WWW.BLUMBERG.COM. Reproduction prohibited. (continued).

CHAPTER 6 Responses to the Initial Pleading 37 Exhibit 6-3 Request for Judicial Intervention Request for Preliminary Conference. REQUEST FOR JUDICIAL INTERVENTION UCS-840 (REV 1/2000) COURT COUNTY INDEX NO. DATE PURCHASED For Clerk Only PLAINTIFF(S): IAS entry date DEFENDANT(S): Judge Assigned RJI Date Date issue joined: Bill of particulars served (Y/N): [ ]Yes [ ]No... NATURE OF JUDICIAL INTERVENTION (check ONE box only AND enter information) [] Request for preliminary conference [] Note of issue and/or certificate of readiness [] Notice of motion (return date: ) Relief sought [] Order to show cause (clerk enter return date: ) Relief sought [] Other ex parte application (specify: ) NATURE OF ACTION OR PROCEEDING (Check ONE box only) MATRIMONIAL Malpractice [] Contested -CM [ ] Medical/Podiatric -MM [] Uncontested -UM [ ] Dental -DM [] *Other Professional -OPM COMMERCIAL [] Contract -CONT [ ] Motor Vehicle -MV [] Corporate -CORP [ ] *Products Liability -PL [] Insurance (where insurer is a party, except arbitration) -INS [ ] Environmental -EN [] UCC (including sales, negotiable -UCC [ ] Asbestos -ASB instruments) [ ] Breast Implant -BI [] *Other Commercial -OC [ ] *Other Negligence -OTN [] *Other Tort (including REAL PROPERTY intentional) -OT [] Tax Certiorari -TAX [] Foreclosure -FOR SPECIAL PROCEEDINGS [] Condemnation -COND [ ] Art. 75 (Arbitration) -ART75 [] Landlord/Tenant -LT [ ] Art. 77 (Trusts) -ART77 [] *Other Real Property -ORP [ ] Art. 78 -ART78 [ ] Election Law -ELEC [] Guardianship (MHL Art. 81) -GUARD81 OTHER MATTERS [] *Other Mental Hygiene -MHYG [] * -OTH [ ] *Other Special Proceeding -OSP TORTS [] Notice of petition (return date: ) Relief sought [] Notice of medical or dental malpractice action (specify: ) [] Statement of net worth [] Writ of habeas corpus [] Other (specify: ) (continued)

38 PART II Initiating Litigation Exhibit 6-3 Request for Judicial Intervention Request for Preliminary Conference. (continued) Check YES or NO for each of the following questions: Is this action/proceeding against a YES NO YES NO [] [] Municipality: [ ] [ ] Public Authority: (Specify ) (Specify ) YES NO [] [] Does this action/proceeding seek equitable relief? [] [] Does this action/proceeding seek recovery for personal injury? [] [] Does this action/proceeding seek recovery for property damage? Pre-Note Time Frames: (This applies to all cases except contested matrimonials and tax certiorari cases) Estimated time period for case to be ready for trial (from filing of RJI to filing of Note of Issue): Expedited: 0 8 months Standard: 9 12 months Complex: 13 15 months Contested Matrimonial Cases Only: (Check and give date) Has summons been served? No Yes, Date Was a Notice of No Necessity filed? No Yes, Date ATTORNEY(S) FOR PLAINTIFF(S): Self Name Address Phone # Rep.* ATTORNEY(S) FOR DEFENDANT(S): Self Name Address Phone # Rep.* *Self Represented: parties representing themselves, without an attorney, should check the Self Rep. box and enter their name, address, and phone # in the space provided above for attorneys. INSURANCE CARRIERS: RELATED CASES: (IF NONE, write NONE below) Title Index # Court Nature of Relationship I AFFIRM UNDER PENALTY OF PERJURY THAT, TO MY KNOWLEDGE, OTHER THAN AS NOTED ABOVE, THERE ARE AND HAVE BEEN NO RELATED ACTIONS OR PROCEEDINGS, NOR HAS A REQUEST FOR JUDICIAL INTERVENTION PREVIOUSLY BEEN FILED IN THIS ACTION OR PROCEEDING. Dated: (SIGNATURE) (PRINT OR TYPE NAME) ATTORNEY FOR \forms\rji2000.wpd ATTACH RIDER SHEET IF NECESSARY TO PROVIDE REQUIRED INFORMATION

CHAPTER 6 Responses to the Initial Pleading 39 Exhibit 6-4 Notice of Issue and Certificate of Readiness for Trial. Forms may be purchased from BlumbergExcelsior, Inc. or any of its dealers. Interactive electronic forms may be purchased at WWW.BLUMBERG.COM. Reproduction prohibited. (continued)

40 PART II Initiating Litigation Exhibit 6-4 Notice of Issue and Certificate of Readiness for Trial. Forms may be purchased from BlumbergExcelsior, Inc. or any of its dealers. Interactive electronic forms may be purchased at WWW.BLUMBERG.COM. Reproduction prohibited. (continued)

CHAPTER 6 Responses to the Initial Pleading 41 Exhibit 6-5 Uniform Transcript of Judgment. Forms may be purchased from BlumbergExcelsior, Inc. or any of its dealers. Interactive electronic forms may be purchased at WWW.BLUMBERG.COM. Reproduction prohibited. (continued)

42 PART II Initiating Litigation Exhibit 6-5 Uniform Transcript of Judgment. Forms may be purchased from BlumbergExcelsior, Inc. or any of its dealers. Interactive electronic forms may be purchased at WWW.BLUMBERG.COM. Reproduction prohibited. (continued).

CHAPTER 7 Motion Practice 43 CHAPTER 7 Motion Practice KEY POINTS The motion and notice of hearing can be combined into one document. Motion practice is governed by Article 22 of the CPLR and local court rules as well. An order to show cause is brought where speedy relief is required. The time limit for responding to motions is determined by the manner of service of motions. Sanctions are now available where certain frivolous claims are brought. PREPARING, SERVING, AND RESPONDING PREPARATION OF THE WRITTEN PAPERS Article 22 of the CPLR governs motion practice in New York. Additionally, local court rules should be consulted for any other considerations or requirements. See www.cplr.org for the CPLR. NOTICE OF HEARING ON THE MOTION. In New York, parties do not file a motion and notice of hearing on the motion. Instead, the moving party files and serves a Notice of Motion. See CPLR 2214. DECLARATION. In New York, this is referred to as an affirmation. See CPLR 2106. MEMORANDUM OF POINTS AND AUTHORI- TIES. This is referred to as a memorandum of law in New York. SERVICE AND FILING A Notice of Motion and supporting affidavit or affirmation shall be served at least eight days before the motion is noticed to be heard. See CPLR 2214. If service of the motion papers is made by mail, five additional days must be added to the eight-day motion time. See CPLR 2103(b)(2). ORDER SHORTENING TIME. In New York, a party proceeds by way of an Order To Show Cause if the regular motion time cannot be followed. See CPLR 2214(d). PROOF OF SERVICE BY MAIL. In New York, this is referred to as the affidavit of service by mail. See CPLR 306. RESPONDING TO MOTIONS The memorandum of points and authorities that accompanies the affidavits in opposition is referred to as the memorandum of law in New York. RESPONDING TO MOTIONS. Answering affidavits shall be served at least two days before the return date of the motion. See CPLR 2214(b). If the answering affidavit is served by mall, an additional five days must be added to the two days for mailing time. See CPLR 2103(b)(2). COURT PROCEDURES INVOLVING MOTIONS In New York, local court rules determine whether or not oral argument is required on a motion. HEARINGS Local court rules of the different courts will determine the procedure for hearings. See www.courts.state.ny.us/ ucsrules.htm. ORDERS AFTER MOTIONS Some motions require that an order be prepared and sent directly to the judge (by the winning party), while other orders must be sent to the judge on notice to the opposing side. See CPLR 2219(a).

44 PART II Initiating Litigation SANCTIONS The court will award costs and attorney fees in actions to recover damages for personal injury, injury to property, or wrongful death, when frivolous claims are pursued. See CPLR 8303-a. Costs upon frivolous claims and counterclaims in podiatric, dental, and medical malpractice actions will be awarded to the successful party. See CPLR 8303-a. When a party refuses to comply with an order for disclosure, or willfully fails to disclose information, the court may issue an order striking out pleadings or dismissing the action. See CPLR 3126(b)(3). SPECIFIC MOTIONS PRETRIAL MOTIONS CPLR 3211 covers the majority of the dismissal motions in New York. MOTION FOR A MORE DEFINITE STATE- MENT. A motion to correct pleadings under CPLR 3024(a) can be made for a more definite statement. See CPLR 3025 concerning motions to amend pleadings. MOTION FOR JUDGMENT ON THE PLEAD- INGS. In New York, a motion for summary judgment is brought after issue is joined. The motion will be granted if there is no defense to the cause of action or the cause of action has no merit. See CPLR 3212. MOTION FOR CHANGE OF VENUE. In New York, a change of venue motion can be brought when: 1. The county selected for venue is improper; 2. An impartial trial cannot be had in the proper county; or 3. 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 brought when the court does not have jurisdiction over the person of the defendant. MOTION FOR SUMMARY JUDGMENT. Any party can move for summary judgment in any action after issue has been joined. See CPLR 3212. Issue is joined after both the complaint and answer have been served. See CPLR 2221 for motions for leave to reargue. DISCOVERY MOTIONS Unless otherwise provided by the CPLR or by the court, disclosure shall be obtained by stipulation or on notice without leave of court. See CPLR 3102. Protective orders to deny, limit, condition, or regulate the use of disclosure devices are governed by CPLR 3103. If a party fails to respond or comply with a disclosure request, a motion to compel may be made pursuant to CPLR 3125. POSTTRIAL MOTIONS MOTION FOR JUDGMENT NOTWITHSTAND- ING THE VERDICT. CPLR 4404(a) permits the court to set aside a verdict or any judgment entered thereon and direct that judgment be entered in favor of a party where the verdict is contrary to the weight of evidence. Such motions must be made within fifteen (15) days after decision, verdict, or discharge of the jury. See CPLR 4405. MOTION FOR A NEW TRIAL. At any time during trial, the court may order a new trial in the interest of justice. See CPLR 4402. MOTION TO TAX COSTS. Upon motion of any interested party, the court may allow or disallow any item objected to before the clerk or order a retaxation before the clerk. See CPLR 8404. Additionally, the plaintiff s attorney may make numerous motions in an effort to obtain information from the defendant in order to collect and enforce a judgment.

CHAPTER 7 Motion Practice 45 Exhibit 7-1 Uniform Notice of Motion. Forms may be purchased from BlumbergExcelsior, Inc. or any of its dealers. Interactive electronic forms may be purchased at WWW.BLUMBERG.COM. Reproduction prohibited. (continued)

46 PART II Initiating Litigation Exhibit 7-1 Uniform Notice of Motion. Forms may be purchased from BlumbergExcelsior, Inc. or any of its dealers. Interactive electronic forms may be purchased at WWW.BLUMBERG.COM. Reproduction prohibited. (continued)

CHAPTER 7 Motion Practice 47 Exhibit 7-2 Information Subpoena to Judgment Debtor or to Witness. Forms may be purchased from BlumbergExcelsior, Inc. or any of its dealers. Interactive electronic forms may be purchased at WWW.BLUMBERG.COM. Reproduction prohibited. (continued)

48 PART II Initiating Litigation Exhibit 7-2 Information Subpoena to Judgment Debtor or to Witness. Forms may be purchased from BlumbergExcelsior, Inc. or any of its dealers. Interactive electronic forms may be purchased at WWW.BLUMBERG.COM. Reproduction prohibited. (continued)

CHAPTER 7 Motion Practice 49 Exhibit 7-3 Questions and Answers in Connection with Information Subpoena. Forms may be purchased from BlumbergExcelsior, Inc. or any of its dealers. Interactive electronic forms may be purchased at WWW.BLUMBERG.COM. Reproduction prohibited. (continued)

50 PART II Initiating Litigation Exhibit 7-3 Questions and Answers in Connection with Information Subpoena. Forms may be purchased from BlumbergExcelsior, Inc. or any of its dealers. Interactive electronic forms may be purchased at WWW.BLUMBERG.COM. Reproduction prohibited. (continued)

CHAPTER 7 Motion Practice 51 Exhibit 7-4 Subpoena to Take Deposition of Judgment Debtor (Duces Tecum). Forms may be purchased from BlumbergExcelsior, Inc. or any of its dealers. Interactive electronic forms may be purchased at WWW.BLUMBERG.COM. Reproduction prohibited. (continued)

52 PART II Initiating Litigation Exhibit 7-4 Subpoena to Take Deposition of Judgment Debtor (Duces Tecum). Forms may be purchased from BlumbergExcelsior, Inc. or any of its dealers. Interactive electronic forms may be purchased at WWW.BLUMBERG.COM. Reproduction prohibited. (continued)

CHAPTER 7 Motion Practice 53 Exhibit 7-5 Information Subpoena with Restraining Notice. Forms may be purchased from BlumbergExcelsior, Inc. or any of its dealers. Interactive electronic forms may be purchased at WWW.BLUMBERG.COM. Reproduction prohibited. (continued)

54 PART II Initiating Litigation Exhibit 7-5 Information Subpoena with Restraining Notice. Forms may be purchased from BlumbergExcelsior, Inc. or any of its dealers. Interactive electronic forms may be purchased at WWW.BLUMBERG.COM. Reproduction prohibited. (continued)