NYLE Civil Practice & Procedure 3 — Questions and Answers
Question 1: Under CPLR 5015, 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?
- 30 days of the judgment
- 60 days of the judgment
- 1 year of the judgment
- A reasonable time not to exceed 1 year (Correct answer)
Correct answer: A reasonable time not to exceed 1 year
CPLR 5015(a)(1) requires a motion to vacate for excusable default to be made within one year after service of a copy of the judgment with notice of entry.
Question 2: In a New York civil action, which of the following is a proper ground for a CPLR 3211(a) pre-answer motion to dismiss?
- Failure to state a cause of action (Correct answer)
- Insufficient evidence to support the claim
- The plaintiff's claim is unlikely to succeed on the merits
- Plaintiff lacks credibility
Correct 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.
Question 3: 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?
- Actions for equitable relief only
- Actions to recover a sum of money only (Correct answer)
- Actions where the legislature has expressly provided for it
- All civil actions regardless of relief sought
Correct 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.
Question 4: 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?
- Move for summary judgment immediately
- Move to strike defendant's answer
- Move to compel the deposition under CPLR 3124 (Correct answer)
- File a contempt motion in the Appellate Division
Correct 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.
Question 5: 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?
- Good cause and absence of prejudice
- Excusable neglect (Correct answer)
- Extraordinary circumstances
- Clear and convincing evidence of hardship
Correct answer: Excusable neglect
After expiration of a deadline, courts applying CPLR 2004 typically require a showing of excusable neglect or other sufficient cause.
Question 6: Under CPLR 3102(c), when may a party obtain pre-action disclosure in New York?
- As of right upon filing the summons
- Only by leave of court upon a showing of necessity (Correct answer)
- Only in cases involving personal injury
- Only with consent of all potential defendants
Correct answer: Only by leave of court upon a showing of necessity
CPLR 3102(c) allows pre-action discovery only by court order upon a showing that it is necessary to frame a complaint or preserve evidence.
Question 7: 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?
- Order of attachment under CPLR 6201
- Income execution under CPLR 5231
- Restraining notice and information subpoena under CPLR 5222 (Correct answer)
- Receivership under CPLR 5228
Correct answer: Restraining notice and information subpoena under CPLR 5222
A restraining notice under CPLR 5222 prohibits the bank from transferring the debtor's funds, enabling the judgment creditor to enforce against the account.
NYLE Civil Practice & Procedure 3
Under CPLR 5015, 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?