Civil Practice & Procedure Flashcards

A plaintiff in a personal injury action in New York Supreme Court wishes to file a motion for summary judgment. According to the CPLR, what is the earliest point at which the plaintiff may make this motion?

Answer: After issue has been joined.

CPLR 3212(a) explicitly states that any party may move for summary judgment in any action 'after issue has been joined.' Issue is considered 'joined' after the defendant has served an answer to the complaint. Filing the summons and complaint commences the action, but does not join issue.

A corporation with its principal place of business in Albany is sued in New York Supreme Court. The plaintiff properly commences the action by filing a summons and complaint. Which of the following methods of service on the corporation is generally NOT sufficient under the CPLR?

Answer: Mailing the summons to the corporation's main office via certified mail, return receipt requested.

Under CPLR 311(a)(1), service on a corporation can be made by personally delivering the summons to an officer, director, managing or general agent, cashier or assistant cashier, or to any other agent authorized by appointment or by law to receive service. Service on the Secretary of State is also a valid method. However, simply mailing the summons, even by certified mail, is not a prescribed method for initial service of process on a corporation without a court order or specific statutory authorization.

Which of the following is NOT one of the provisional remedies available to a litigant under Article 60 of the CPLR?

Answer: Summary judgment in lieu of complaint (CPLR 3213)

CPLR 6001 lists the provisional remedies as attachment, injunction, receivership and notice of pendency (seizure of a chattel is treated as one only for the election-of-remedies purpose). Summary judgment in lieu of complaint under CPLR 3213 is an expedited merits procedure, not a provisional remedy.

An individual wants to challenge a final determination made by a New York State administrative agency, arguing that the decision was arbitrary and capricious. What is the proper procedural vehicle for this individual to seek judicial review?

Answer: A special proceeding under CPLR Article 78.

A CPLR Article 78 proceeding is the specific mechanism used to challenge the determinations of administrative agencies and other government bodies in New York. It is used to review whether a determination was made in violation of lawful procedure, was affected by an error of law, or was arbitrary and capricious or an abuse of discretion.

A defendant in a breach of contract action in New York serves a pre-answer motion to dismiss the complaint for failure to state a cause of action pursuant to CPLR 3211(a)(7). The motion is denied by the court. What is the effect of making this motion on the defendant's time to serve an answer?

Answer: The defendant's time to serve the answer is extended until 10 days after service of notice of entry of the order denying the motion.

According to CPLR 3211(f), service of a notice of motion to dismiss under subdivision (a) extends the time to serve a responsive pleading (the answer) until ten days after service of notice of entry of the order that resolves the motion.

In New York, what is the statute of limitations for a cause of action based on non-medical professional malpractice, such as legal or accounting malpractice?

Answer: Three years from the date of the malpractice.

CPLR 214(6) provides that the statute of limitations for an action to recover damages for malpractice, other than medical, dental, or podiatric malpractice, is three years, regardless of whether the underlying theory is based in contract or tort.