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VJC Resources 2023 > CPLR 3 > Flashcards

CPLR 3 Flashcards

1
Q

CPLR 304. What commences an action?

A

Generally the filing of the summons and complaint(or summons with notice) ( A special proceeding is commenced by the filing of the petition)

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2
Q

CPLR 304. The service of a notice of petition commences.a special proceeding. T/F?

A

False. Generally the filing of the petition commences a special proceeding.

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3
Q

CPLR 304. Filing under Section CPLR 304 means the delivery of the summons with notice or summons and complaints to the clerk of court. T/F?

A

False. Definition of filing includes payment to the clerk of the required fee. ALSO where the court finds that immediate filing can’t be done, SIGNING by the court of an order requiring filing at specific date and time within 5 days of signing of the order commences the action.

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4
Q

CPLR 304. At the time of filing the petition and notice of petition, the clerk is required to date stamp the original papers, but not copies thereof. T/F?

A

False. Clerk must stamp the original AND one copy.

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5
Q

CPLR 304 If filing is by fax, clerk must return a date stamp copy of ________ and the index#.

A

The first page of the papers

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6
Q

CPLR 304. If filing is by electronic means, the clerk must notify filing party of __________ and date and time of filing.

A

Index number

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7
Q

CPLR 305 A summons shall specify:(4 things):

A
  1. Basis of venue
  2. Residence of plaintiff (if based on residence)
  3. Index number
  4. Date filed with clerk
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8
Q

CPLR 305. In a consumer credit transaction, county of residence of defendant (if within NYS) and county where transaction took place(if within the state) must appear on the summons. T/F?

A

True

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9
Q

CPLR 305. A _________ is used to bring a new party into an action.

A

Supplemental summons

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10
Q

CPLR 306b In a Supreme Court case, generally service must be made within _____ days after filing summons and complaint.

A

120

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11
Q

CPLR 307. Personal service on a attorney general may not be made to assistant attorney general. T/F?

A

False. MAY be made to an assistant attorney general within the state.

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12
Q

CPLR 308. In service to a person of suitable age and discretion, mailing must be done within ______ days of service to person of suitable age and discretion.

A

20

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13
Q

CPLR 308. In nail and mail and service to person of suitable age and discretion, service is complete ______ days after filing proof of service.

A

10

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14
Q

CPLR 309. An infant of the age of _____ or over must also be served.

A

14

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15
Q

CPLR 310 To serve a partnership, who may be served?

A

Any partner

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16
Q

CPLR 311. A corporation can be served by serving any employee. T/F?

A

False

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17
Q

CPLR 311 To serve NYC, you can serve the mayor. T/F?

A

False (can do so in any other city EXCEPT NYC)

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18
Q

CPLR 310a & 311a If service cannot be made per the prescribed methods, service may be made in any manner the court directs. T/F?

A

True

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19
Q

CPLR 312a You need a court order to serve by mail. T/F?

A

False

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20
Q

CPLR 312a Service by mail can be done by plaintiff or any other person. T/F?

A

True

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21
Q

CPLR 312a Acknowledgement of receipt must be mailed or delivered within _____ days of receipt.

A

30

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22
Q

CPLR 312a Answer must be filed within _____ days after signed acknowledgment is mailed or delivered to sender.

A

20

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23
Q

CPLR 316 A court is needed for service by publication. T/F?

A

True

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24
Q

CPLR 316 Summarize Service by publication requirement.

A

1st Publication shall be made within 30 days after the order is granted.
2 newspapers, at least 1-in English language, at least 1 in each of 4 consecutive weeks.
-service is complete on 28th day after day of 1st publication.
Matrimonial actions:
1 newspaper at least once in each of 3 consecutive weeks. Mailing of summons is also required/ matrimonial actions. Service complete on 21st day after publication. A person not served by personal delivery has up to 1 year after he discovers default judgement to come in and defend action (but no more than 5 years after entry of judgement)

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25
Q

CPLR 320 When summons is served by personal delivery within NYS, defendant has _____ days after service is service is complete to answer.

A

20

26
Q

CPLR 320 When a summons is.served by other than personal delivery (except 312a) defendant has ____days after service is complete to answer.

A

30

27
Q

CPLR 321 A corporation and voluntary association must appear by ___________

A

Attorney

28
Q

CPLR 316 when serving by publication, the first publication of the summons shall be made within 21 days after the order is granted.

A

False - within 30 days

29
Q

CPLR 318 T/F - When an agent is designated for service the designation shall remain in effect for 3 years from such filing unless it has been revoked by the filing of a revocation or by death judicial declaration of incompetency or legal termination of the agent or principal.

A

True

30
Q

CPLR 315 T/F - The court upon motion without notice shall order service of a summons by publication in an action if service cannot be made by another prescribed method with DUE DILIGENCE.

A

True

31
Q

CPLR 305
Where the court directs that a new party be joined in the action and the order is made upon the new party’s motion, a summons shall be served upon such party.
A. Third party. B. Interpleader. C. Supplemental. D. Duplicate

A

C

32
Q

CPLR 306 Which of the following is false: Proof of service may be: 1. In the form of a certificate, if service was made by sheriff. 2. In the form of affidavit, if service was made by person. 3. In the form of affidavit, if service was made by authorized public officer.
A. 1 and 3 only B. 1 only C. 3 only D. 2 and 3 only

A

C

33
Q

CPLR 306-b If proof of service in an action commenced in supreme or county court is not filed with the clerk of court within 120 days after filing of the summons and complaint:
A. Action will be automatically dismissed. B. Defendant may move for dismissal
C. Time to file is automatically extended by 10 days.
D. None of the above

A

B

34
Q

CPLR 308 where service is by Nail and Mail or by delivery to person of suitable age and discretion and then mailing, delivery and mailing must be done within 20 days of each other. In such cases, service is complete ___ days after filing proof of service is filed with the clerk.

A

A 10

35
Q

CPLR 310. Which of following is false? Personal service on partnership May be made by personally serving summons on: 1. Any one of the partners. 2. The managing agent of partnership, & mailing to the named partner. 3. The spouse of any one of the partners & mailing to a partner. 4. Person in charge of partnership office in NYS, and mailing to partner.
A. 1 & 4 only. B. 2 only. C. 3 only. D. 2 & 3 only

A

C. 3 only

36
Q

CPLR 317. A person to whom summons was not personally delivered and who does not appear may be allowed to defend the action within ____ year(s) after he obtains knowledge of the entry of judgment. However, the preceding period cannot extend more than ____ years after such entry.
A. One…..five
B. Four….seven
C. Five…seven
D. Seven….twenty

A

A. One …. Five

37
Q

CPLR 302. Which of the following statements are true? A court may exercise personal jurisdiction over any non domiciliary, his executor or administrator who in person or though an agent: 1. Transacts business within NYS, or 2. Commits a tortious act without the state (except defamation of character), or 3. Owns, uses or possesses any real property in the state.
A. 1, 2, & 3. B. 1 & 2 only. C. 2 & 3 only. D. 1 & 3 only

A

D. 1 & 3 only

38
Q

CPLR 304. Which of the following statements are true? Filing may be done by facsimile transmission FAX or by electronic means (CPLR 2103(f)) 1. If filing is by fax, clerk must return date stamped copy of first page of papers and index number. 2. If filing is by electronic means clerk must notify filing party of index number, date and time of filing.
A. 1 only. B. 2 only. C. Both 1&2. D. Neither 1 nor 2

A

C. Both 1 and 2

39
Q

CPLR 305. A summons shall specify: 1. Basis of venue designated ( and plaintiffs address if that is basis of venue) 2. Index number. 3. Date of filing with the clerk of court
A. 1 & 2 only. B. 1, 2 & 3 C. 1 & 3 D. 2 & 3 only

A

B. 1,2, and 3

40
Q

CPLR 305 A summons in a consumer credit transaction shall: 1. Prominently display at top of the summons the words “ consumer credit transaction “, and 2. Specify the county of residence of the defendant ( if defendant lives within NYS) and 3. Specify county where transaction took place, if outside NYS.
A. 1, 2 & 3. B. 1 only. C. 1 & 3 only D. 1 & 2 only

A

D. 1 and 2 only

41
Q

CPLR 307 Which of the following 2 statements are correct? 1. Generally, proof of service must specify papers served, date, time, and address of service ( if no address, place and manner of service) and facts showing service was done by an authorized person in authorized manner. 2. If service is made by delivery to an individual, proof of service (affidavit) shall include description of person-sex, skin color, hair color, approximate age, weight, and height, and other identifying features.
A. 1 only. B. 2 only. C. Both 1 & 2 D. Neither 1 nor 2

A

D

42
Q

CPLR 307 One method of personal service on a state officer sued in his official capacity is to deliver he summons to the ______________ or designee of the agency.
A. Secretary of the agency
B. Supervisor of the office
C. Person of suitable age & discretion at agency
D. Chief executive officer

A

D. CEO

43
Q

CPLR 309 Which is not correct? Personal service on infant may be made by personally serving summons within NYS:
A. Upon a parent or any guardian, or
B. Other person having legal custody, or
C. If infant is married, to adult spouse with whom infant reside or,
D. If none are within NYS, to any teacher at the infant’s school

A

D.

44
Q

CPLR 311 Which of the following statements, relating to service of defendant in parenthesis is not correct?
A. (NYC) You can serve the mayor or other person designated by him to receive process.
B. (Any city other than NYC) You can serve the mayor, comptroller, treasurer, counsel, clerk.
C. (County) You can serve chairman or clerk of board of supervisors, clerk, attorney or treasurer.
D. (Town) You can serve supervisor or clerk

A

A

45
Q

CPLR 316 Which is false relating to service by publication? Order shall direct that the following be published:
A. Summons and a brief statement of nature of action and relief sought
B. Notice to plaintiff
C. Sum of money for which judgment will be taken in case of default (except in medical malpractice)
D. Brief description of real property (if it is subject of litigation)

A

A

46
Q

CPLR 325. Which of the following statements is not correct?
A. 325(a) The Supreme Court, upon motion, can remove a case from a court where an action was commenced by mistake to the proper court. B. 325(b) Upon motion, a court having the necessary jurisdiction to grant the relief that parties are entitled to may remove to itself an action in a court which has the required jurisdiction. C. 325(c) On consent to a court of limited jurisdiction (amount of damages demanded is reduced to within the monetary jurisdiction of the court of limited jurisdiction). D. 325(d) without consent (at the court’s discretion) to a court of limited jurisdiction(however, the monetary limit remains that of the original court)

A

B

47
Q

CPLR 325 Which of the following statements is not correct?
A. 325(d) without consent (at the court’s discretion) to a court of limited jurisdiction (however, the monetary limit remains that of the original court). B. 325(e) Upon motion, the Supreme Court can remove a case from the Supreme Court to the surrogate’s court where a decedent’s estate is not affected. C. 325(f) If county judge is incapacitated, Supreme Court may remove an action from county court to itself. D. 325(g) A judge of a county court may transfer a case from one local court to another in the same county or adjoining county where it appears that the case will not be disposed of within a reasonable time due to death, disability, incapacity of judge-or inability to form a jury.

A

B

48
Q

CPLR 326 Which of the following statements are false?
A. If an order of removal is made by a court other than the court where the action is pending, a conformed copy of the order of removal shall be filed in the court where the action is pending.
B. When the clerk where the action is pending receives the order, he shall forthwith deliver to other court all papers and records in the action, and certified copies of all minutes.
C. The receiving clerk shall file, enter & record the papers as required.
D. Subsequent proceedings shall be had in the court to which the case has been removed as if the action had been originally commenced there and no process, provisional remedy or other proceeding taken in the court from which the action was removed shall be invalid as a result of the removal

A

A

49
Q

CPLR 402. In an action a summons and ________are used.

A

Complaint

50
Q

CPLR 402 In a special proceeding a petition and _______ are used.

A

Notice of petition

51
Q

CPLR 403 Notice of petition must be served at least ________before hearing time

A

8 days

52
Q

CPLR 403 If notice of petition is served at least 12 days before hearing, answer must be served at least _____ before hearing if notice oof petition so specifies.

A

7 days

53
Q

CPLR 406 Motions in a special proceeding, made before the time at which the petition is noticed to be heard, shall be _______noticed to be heard.

A

At that time

54
Q

CPLR 407 The court may sever a claim or counterclaim. T/F?

A

True

55
Q

CPLR 408 Generally, in a special proceeding, leave of the court is not required for disclosure.T/F?

A

False

56
Q

CPLR 409 The court shall make a summary determination upon the pleadings, papers and admissions to other extent that no trials issues of fact are raised.

A

True

57
Q

CPLR 409 The court, when making a determination on relief requested in a special proceeding may make any orders permitted in a motion for summary judgment T/F?

A

True

58
Q

CPLR 401 The parties in a special proceeding are called:
A. Claimant and respondent.
B. Plaintiff and defendant
C. Petitioner and respondent.
D. Petitioner and defendant.

A

C. petitioner and respondent

59
Q

CPLR 403 Petition and notice of petition must be served:
A. At least 3 days before hearing.
B. At least 5 days before hearing.
C. At least 8 days before hearing.
D. At least 12 days before hearing.

A

C 8 days

60
Q

CPLR 407 Choose the best answer: Court may order severance of a claim, counterclaim, or cross-claim.
A. Prior to commencement of trial only.
B. Before the first witness is sworn.
C. At any time.
D. Only upon motion oof plaintiff or defendant.

A

C. At any time

61
Q

(35) CPLR 309 In personal service upon an infant, if the infant is of the age of _____ or over, the summons shall also be personally served on the infant.
A. 7 B. 10. C. 14 D. 16

A

C

VJC Resources 2023 (6 decks)

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