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CPLR 2022 > CPLR Quiz Article 3 > Flashcards

CPLR Quiz Article 3 Flashcards

1
Q

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)
(CPLR 304)

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2
Q

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.
CPLR 304

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3
Q

Filing under Section CPLR 304 means the delivery of the
summons with notice or summons and complaint 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
specified date & time within 5 days of signing of the order
commences the action.

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4
Q

At the time of the 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.

CPLR 304

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5
Q

If Filing is by fax, clerk must return a date stamped copy

of___________ and the index #. (

A

The first page of the papers

CPLR 304

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6
Q

If filing is by electronic means, clerk must notify filing party of
________ & date & time of filing.

A

Index Number

CPLR 304

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7
Q

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
    CPLR 305
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8
Q

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

A

True

CPLR 305

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9
Q

A ____________is used to bring a new party into an action.

A

Supplemental Summons

CPLR 305

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10
Q

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

A

120

CPLR 306b

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11
Q

Personal service on an 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
CPLR 307

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12
Q

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

CPLR 308

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13
Q

In nail and mail, filing proof of service must be done within
_____ of nailing or mailing, whichever is done last.

A

20

CPLR 308

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14
Q

In nail and mail and service to person of suitable age and
discretion, service is complete____ days after filing proof of
service.

A

10

CPLR 308

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15
Q

An infant of the age of ____ or over must also be served.

A

14

CPLR 309

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16
Q

To serve a partnership, who may be served?

A

Any Partner

CPLR 310

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17
Q

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

A

False

CPLR 311

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18
Q

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

A

FALSE. (can do so in any other city EXCEPT NYC)

CPLR 311

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19
Q

If service cannot be made as per the prescribed methods,

service may be made in any manner the court directs. T/F?

A

TRUE

CPLR 310a & 311a

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20
Q

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

A

FALSE

CPLR 312a

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21
Q

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

A

True

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22
Q

Acknowledgment of receipt must be mailed or delivered within

_____ days of receipt.

A

30

CPLR 312a

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23
Q

Answer must be filed within ____ days after signed

acknowledgment is mailed or delivered to sender.

A

20

CPLR 312a

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24
Q

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

A

TRUE

CPLR 316

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25
Q

Summarize Service by publication requirement.

A

(CPLR 316) 1st Publication shall be made within 30 days after the order is
granted.
-2newspapers, at least 1
-in English language, at least 1in each of 4 consecutive weeks.
-service is complete on 28th day after day of 1st publication

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26
Q

Summarize Service by publication requirement for matrimonial actions:

A

1 newspaper at least once in each of 3 consecutive weeks.
Mailing of summons is also required/ matrimonial actions. Service
complete on the 21st day after publication. A person not served
by personal delivery has up to __ year after he discovers default
judgment to come in and defend action (but no more than 5
years after entry of judgment) (CPLR 317)

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27
Q

When summons is served by personal delivery within NYS,

defendant has ___ days after service is complete to answer.

A

20

CPLR 320

28
Q

When a summons is served by other than personal delivery
(except 312a), defendant has ___ days after service is complete
to answer.

A

30

CPLR 320

29
Q

A corporation and voluntary association must appear by

_______________.

A

Attorney

CPLR 321

30
Q

Where the court directs that a new party be joined in
the action and the order is not 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

CPLR 305

31
Q

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

CPLR 306

32
Q

If proof of service in an action commenced in supreme or
county court is not filed with the clerk of the court within 120
days after date of 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

CPLR 306-b

33
Q

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. 10 B. 20 C. 30 D. none of the above

A

A

CPLR 308

34
Q

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 5.

A

C (CPLR 309)

35
Q

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

CPLR 310

36
Q

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 (CPLR 317)

37
Q

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 through an agent: 1. transacts
business within NYS or contracts anywhere to supply goods or
services in 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 (CPLR 302)

38
Q

Which of the following 2 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 the 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

CPLR 304

39
Q

A summons shall specify:
1. basis of venue designated (and
plaintiff’s address if that is basis of venue)
2. index number
3. date of filing with the clerk of the court
A. 1 & 2 only C. 1 & 3 only B. 1, 2 & 3 D. 2 & 3 only

A

B (CPLR 305)

40
Q

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

CPLR 305

41
Q

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 an 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, approx. age, weight and height, and other identifying features.
A. 1 only B. 2 only C. Both 1 & 2 D. Neither 1 nor 2

A

C

CPLR 306

42
Q

One method of personal service on a state officer sued in his
official capacity is to deliver the 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 (CPLR 307)

43
Q

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 resides
or,
D. if none are within NYS, to any teacher at the infant’s school.

A

D

CPLR 309

44
Q

Which of the following statements, relating to service of
defendant in parenthesis is not correct?
A. (NYC) You can serve 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

CPLR 311

45
Q

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

B

CPLR 316

46
Q

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

CPLR 325

47
Q

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

CPLR 325

48
Q

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

CPLR 326

49
Q

True or False, Pursuant to CPLR 304, the service of a notice of petition commences a special proceeding.

A

FALSE.
CPLR 304 states that Generally, the filing of the petition commences a special
proceeding. ( not the serving)!

50
Q

True or False. Does the term filing under Section CPLR 304 means the
delivery of the summons with notice or summons and complaint to the clerk of
court.

A

FALSE.
The definition of “filing” includes payment to the clerk of the required fees.
Also, where the court finds that immediate filing can’t be done, SIGNING by the court of an order requiring filing at specified date & time within 5 days of signing of the order commences the action

51
Q 
Pursuant to CPLR 305, a summons shall specify which of the following:
SELECT THE BEST ANSWER
1- Basis of venue 2. Note of issue
3. Residence of plaintiff (if based on residence) 4. Date filed with clerk 
A-1,2,3 only
B-1,3,4 but not 2
C-all of the above
D-1,2, 4 but not 3
E-none is the above
A

B.
1. Basis of venue 2. Residence of plaintiff (if based on residence)
3. Index number 4. Date filed with clerk
PLEASE NOTE THAT 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.

52
Q 
pursuant to CPLR 306 B:
In a Supreme Court case, generally service must be made within how many days after filing summons and complaint.
A- 20 days
B- 60 days
C- 120 day
D- 10 days
A

C

CPLR 306 B

53
Q 
Pursuant to CPLR 105, an infant refers to a person who has not yet attained
the age of
A-21 years
B-18 years
C-16 years
D- none of the above
A

B
Infant/Infancy. The word “Infant” as used in this chapter, means a person who
has not attained the age of 18 years . The word “Infancy” means the state of
being an infant

54
Q

True or False
Pursuant to CPLR 301, Jurisdiction is the courts authority and power to bind the parties in an action to the determination of the court.

A

True. The court may exercise such jurisdiction over persons, property, or a status
1- a natural person
2- property ( real or personal) ex. Real property: a house; personal property: a car
3- a status: a marriage.
When the plaintiff institutes a lawsuit he or she submit themselves to the jurisdiction of the court.

55
Q

pursuant to CPLR 3, how many types of jurisdiction are there?
1-?????
2-?????

A

1- SUBJECT matter jurisdiction: this type of jurisdiction deals with the court’s
power to hear a particular case.
2- PROCEDURAL jurisdiction (over the person of the defendant).
A- jurisdiction in PERSONAM
B- jurisdiction in REM: this is the courts exercising jurisdiction over
property(personal), a thing or a status NOT A PERSON.
C- Quasi in Rem Jurisdiction: when the plaintiff is trying to acquire jurisdiction
over the defendant (in PERSONAM jurisdiction) but cannot acquire it.

56
Q

Pursuant to CPLR 304, what commences an action? Select the best answer.
A-generally, the filing of the summons and complaint
B- generally, the filing of the summons and complaint or summons with notice
C- generally, the serving of the summons and complaint
D- generally, the serving of the summons and complaint or summons with notice.

A

B
In the case of a special proceeding, the special proceeding is commenced by the filing of a petition.
Cplr 304

57
Q

Pursuant CPLR 308:
In service to a person of suitable age and discretion, mailing must be done
within how many many days of service to person of suitable age and discretion.
A-20 days
B-10 days
C-15 days D-31 days if service was made on a Saturday.

A 
A. CPLR 308 (SAD SERVICE) is done by delivering the summons within the state to a person of suitable age and discretion (SAD) at the actual place of business, dwelling place or usual place of abode of the person to be served and by either mailing the summons to the person to be served at his or her last known residence or by mailing the summons by first class mail to the person to be served at his or her actual place of business in an envelope bearing the legend "personal and confidential" and not indicating on the outside thereof, by return address or otherwise, that the communication is from an attorney or
concerns an action against the person to be served, such delivery and mailing to be effected within twenty days (20) of each other; proof of such service shall be filed with the clerk of the court designated in the summons within twenty days (20)of either such delivery or mailing, whichever is effected later; service shall be complete ten (10) days after such filing; REMEMBER 20-20-10!
58
Q 
Pursuant to CPLR 311:
Choose the best answer
Pursuant to CPLR 311, a corporation can be served by serving the any of the
following:
A- cashier
B- officer
C-director
D-authorized agent
E- all of the above
A 
E 
Personal service upon a corporation (Domestic or foreign) shall be made by delivering the summons to any of the following:
A- assistant cashier
M-managing agent
A-agent(any other agent)
C-cashier or treasurer
D-director
O-officer
G-general agent
A MAC DOG
59
Q 
Pursuant to CPLR 305:
A \_\_\_\_\_\_\_\_\_\_\_\_ is used to bring a new party into the action.
A-amended summons
B-supplemental summon
C-petition
D-none of the above
A

B. Supplemental summons.
After the plaintiff serves the summons, he cannot amend the summons to add more parties. Any new defendant to be added later must be served with a supplemental summons which requires a court order.

60
Q

True or False- CPLR 307

Personal service on an attorney general may not be made to assistant attorney general.

A

FALSE.

Personal service on an Attorney General may be made by serving an assistant attorney general within the state.

61
Q

Describe service by publication:____________________________

A

CPLR 317
The 1st Publication shall be made within 30 days after the order is granted. 2 newspapers, at least 1 in the English language, at least 1 in each of 4 consecutive weeks (2-1-4) and service is completed on 28th day after day of 1st publication.
In Matrimonial actions, 1 newspaper at least once in each of 3 consecutive weeks. Mailing of summons is also required. Service is complete on the 21st day after publication. (3-1-1)
Note: A person not served by personal delivery has up to 1 year after he
discovers default judgment to come in and defend action (but no more than 5 years after entry of judgment).

62
Q

True or False. Pursuant to CPLR 309:

An infant of the age of 12 or over must also be served.

A

FALSE.
Personal service upon an infant shall be made by personally serving the
summons within the state upon a parent or any guardian or any person having legal custody or, if the infant is married, upon an adult spouse with whom the infant resides, or, if none are within the state, upon any other person with whom he resides, or by whom he is employed. If the infant is of the age of 14 years or over, the summons shall also be personally served upon him within the state.

63
Q

Pursuant to CPLR 306:
Which of the following is false regarding proof of service?
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
Proof of service shall be in the form of a certificate if the service is made by a sheriff or other authorized public officer, in the form of an affidavit if made by any other person, or in the form of a signed acknowledgement of receipt of a summons and complaint, or summons and notice or notice of petition. Also, a writing admitting service by the person to be served is adequate proof of service.

64
Q

True or False. Pursuant to CPLR 304, at the time of the filing the petition and notice of petition, the clerk is required to date stamp the original papers, but not copies thereof.

A

FALSE
Note: The clerk must stamp the original AND one copy.
Read the rest of this section regarding filing by electronic means.

65
Q

True or False. Pursuant to CPLR 305, in a consumer credit transaction,
county of residence of the defendant (if within NYS) and county where transaction took place (if within the sate) must appear on the summons

A

TRUENote: in an action arising out of consumer credit transaction, the summons must contain in prominently displayed letters the words “CONSUMER CREDIT TRANSACTION”.

66
Q

20- True or False. Pursuant to CPLR 311, to serve New York City, service can be accomplished by serving the mayor

A

FALSE

Note: you can serve the mayor in any other city EXCEPT NYC!!!!!

CPLR 2022 (5 decks)

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