Civil Practice & Procedure Flashcards

Under CPLR 5015(a)(1), a court may relieve a party from a judgment on the ground of excusable default. A motion on this ground must be made within what time period?

Answer: Within one year after service of a copy of the judgment with written notice of its entry

CPLR 5015(a)(1) requires that a motion to vacate for excusable default be made within one year after service of a copy of the judgment or order with written notice of its entry upon the moving party (or one year after entry if the moving party entered it). Other grounds are subject to a reasonable time.

In a New York civil action, which of the following is a proper ground for a CPLR 3211(a) pre-answer motion to dismiss?

Answer: Failure to state a cause of action

CPLR 3211(a)(7) allows dismissal for failure to state a cause of action, accepting all pleaded facts as true.

Under CPLR 4101, the right to a jury trial in a New York civil action is preserved for issues of fact in which type of action?

Answer: Actions to recover a sum of money only

Under CPLR 4101, the right to jury trial is available in actions to recover a sum of money; purely equitable actions are tried by the court.

A defendant in a New York civil case fails to appear at a scheduled deposition without serving a valid objection. What is the most appropriate immediate remedy for the plaintiff under the CPLR?

Answer: Move to compel the deposition under CPLR 3124

CPLR 3124 allows a party to move to compel compliance with a discovery demand, including attendance at a deposition.

Under CPLR 2004, a court may extend the time for a party to do an act if the application is made before the time has expired. If the time has already expired, what showing is generally required?

Answer: Good cause shown

CPLR 2004 allows the court to extend the time for doing an act "upon such terms as may be just and upon good cause shown," whether or not the time has already expired. "Excusable neglect" is the federal (FRCP 6(b)) formulation.

Under CPLR 3102(c), when may a party obtain pre-action disclosure in New York?

Answer: Only by leave of court upon a showing of necessity

CPLR 3102(c) permits disclosure before an action is commenced, to aid in bringing an action, to preserve information, or to aid in arbitration, but only by court order.

A judgment creditor seeks to enforce a New York money judgment against a debtor's bank account. Which CPLR device is used to restrain and reach the funds?

Answer: Restraining notice under CPLR 5222

A restraining notice under CPLR 5222 prohibits the bank from transferring the judgment debtor's funds, after which the creditor can reach them by turnover (5225) or execution. An income execution (5231) reaches wages; an attachment (6201) is a pre-judgment remedy; a receiver is under CPLR 5228.