7. Interlocatory papers Flashcards
(39 cards)
How are the pleadings served?
Interlocutory Papers
How can interlocutory papers be served?
Regular first class mail to the other party’s attorney
When are interlocutory papers deemed to be served?
Upon the mailing, not the receipt
What is the time limit on the defendant’s response to the plaintiff’s service of process?
- If service of process was made by personal delivery within the state of NY, the answer must be served within 20 days of the personal delivery. 2. If the defendant was served with process under any other circumstances, Defendant must serve his answer no later than 30 days after service is complete.
What is a pre-answer motion to dismiss?
Allows a Defendant to dismiss a complaint without ever having to serve an answer.
What is the CPLR section for a motion to dismiss?
CPLR 3211
When is a 3211 motion to dismiss allowed?
Prior to the service of the answer on one or more of eight specified grounds:
- Documentary evidence as the basis for a defense
- Other action pending between the same parties on the same cause of action
- Want of capacity
- Non-joinder of a necessary party
- Failure to state a cause of action
- Additional affirmative defenses
- Lack of personal jurisdiction
- Lack of subject matter jurisdiction
What is documentary evidence as the basis for a defense?
A legally operative document (such as a mortgage, deed, or a written contract)
What is want of capacity?
When the Plaintiff does not have capacity to come into court (like an infant)
What is a failure to state a cause of action?
When the pleadings, on their face, are substantively insufficient.
When must a motion to dismiss based on a failure to state a claim be dismissed?
If there is any basis for relief under the substantive law
What are the three possible defects that result in a lack of personal jurisdiction?
- Lack of a proper basis
- Improper service of process
- Defective form of the summons
What are the additional affirmative defenses?
- Statute of limitations
- Payment
- Arbitration award
- Release
- Estoppel (Collateral)
- Res Judicata
- infancy
- Bankruptcy discharge
- Statute of frauds
What is res judicata?
A case in which there has been a final judgment and is no longer subject to appeal
What is the time limit on making a 3211 pre-answer motion to dismiss?
Any time before service of the answer is due
What happens to the time to serve the answer itself once a 3211 pre-answer motion to dismiss is served?
It is automatically extended.
When must a defendant serve an answer after a motion to dismiss is granted?
You will not have to serve an answer because the action will be dismissed
If the motion is denied, when must the Defendant serve an answer?
Within 10 days of the denial
Is a defendant required to file a 3211 pre-trial motion to dismiss if he has any of the listed affirmative defense?
No
How many times may a defendant file a 3211 motion to dismiss?
Only one, but the defendant may do so on multiple grounds
What if the Defendant makes a 3211 motion on only one of several possible grounds and he loses the motion?
A pre-answer motion to dismiss on any of the grounds listed in 3211 does not preclude raising any of the other grounds as defenses in the answer, except for lack of personal jurisdiction.
How can a defendant avoid waiving his personal jurisdiction objections?
Option 1: Before serving an answer, make a 3211 motion, and be sure to include lack of personal jurisdiction.
Option 2: Make no 3211 motion on any ground, and instead serve an answer that includes lack of personal jurisdiction as an affirmative defense.
What one particular type of defect in personal jurisdiction requires additional consideration?
Improper service of process — If it is in the answer, you must, within 60 days after serving the answer, follow up with a motion for summary judgment on the ground of improper service.
What defenses listed in 3211 are never waived?
- Non-joinder of a necessary party
- Failure to state a cause of action
- Lack of subject matter jurisdiction
