NYLE - New York Law NY Civil Practice & Procedure Questions and Answers — Questions and Answers
Question 1: 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?
- Upon filing the summons and complaint.
- After the defendant has appeared in the action.
- After issue has been joined. (Correct answer)
- Any time after 40 days from the commencement of the action.
Correct 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.
Question 2: 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?
- Personal delivery of the summons to an officer of the corporation.
- Delivery of the summons to the New York Secretary of State as agent for the corporation.
- Personal delivery of the summons to a managing agent of the corporation.
- Mailing the summons to the corporation's main office via certified mail, return receipt requested. (Correct answer)
Correct 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.
Question 3: Which of the following is NOT one of the provisional remedies available to a litigant under Article 60 of the CPLR?
- Attachment
- Preliminary Injunction
- Seizure of Chattel (Correct answer)
- Notice of Pendency
Correct answer: Seizure of Chattel
CPLR 6001 lists the four principal provisional remedies as attachment, injunction, receivership, and notice of pendency. While seizure of a chattel (replevin) under CPLR Article 71 has characteristics similar to a provisional remedy and is sometimes referred to as a 'quasi-provisional' remedy, it is not formally listed as one of the four under CPLR 6001.
Question 4: 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?
- A motion for summary judgment in lieu of complaint.
- A special proceeding under CPLR Article 78. (Correct answer)
- A declaratory judgment action.
- An appeal directly to the Appellate Division.
Correct 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.
Question 5: 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?
- The defendant's time to answer is tolled and they must answer within 20 days of the original service of the complaint.
- The defendant is deemed to be in default for not answering within the statutory time frame.
- The motion papers are automatically converted into an 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. (Correct answer)
Correct 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.
Question 6: 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?
- Six years from the date of the malpractice.
- Two and a half years from the date of the malpractice.
- Three years from the date of the malpractice. (Correct answer)
- One year from the date the malpractice was discovered.
Correct 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.
NYLE - New York Law NY Civil Practice & Procedure Questions and Answers
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?