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New York Practice
Rutgers University, Newark School of Law
Ekpo, Conway

 
NY PRACTICE OUTLINE
Spring 2015 · Professor Epko
Last Death Sentence NY: 1963
Chief Judge NY: Jonathan Lippman
 
I.                  Chapter 9 Pleadings
a.      Summons
                                                              i.      CPLR § 305(a): Summons with Complaint
1.      Must include
a.       Must inform Defendant that action is commenced;
b.      How long Defendant has to respond;
c.       That a default judgment will be entered if Defendant fails to respond;
d.      Basis of venue
e.       Court
f.       Venue
g.      Full Case Caption
h.      Signature of the Lawyer and Lawyer’s Contact Info
i.        Index No. (equivalent of a Docket No.)
                                                            ii.      CPLR § 305(b): Summons with Notice
1.      Must include: (1) subject matter of the action; AND (2) relief sought (specific money amount).
                                                          iii.      CPLR § 3012(b): After a summons with notice is served, the defendant will demand that the plaintiff serve a complaint. The plaintiff must then have the complaint served within 20 days after being served with the demand, or the case may be dismissed.
                                                          iv.      Amending the Summon
1.      Similar to amending the complaint
2.      Will be allowed if there is no prejudice to the other side
3.      CPLR § 305(a). Plaintiff can amend summons to name additional parties w/o leave of the court w/in 20 days of service of the Δ’s answer.
b.      Complaint
                                                              i.      CPLR § 3013: Complaint
1.      Statements in a pleading shall be sufficiently particular to give the court and parties notice of the transactions, occurrences, or series of transactions or occurrences, intended to be proved and the material elements of each cause of action or defense
                                                            ii.      CPLR § 3026:  Pleadings shall be construed liberally.
1.      Meaning if any claim can be derived from the complaint the court should read as if one exists.
                                                          iii.      The Defendant has:
1.      20 DAYS to respond when served a summons with complaint and PERSONAL SERVICE.
2.      30 DAYS to respond if served by “nail and mail or any other method besides personal service.
a.       The day you receive a document does NOT count.
                                                          iv.      CPLR § 306-b: Service of the summons and complaint must be made within one 120 DAYS of filing with the court.
c.       Remedies
                                                           i.      CPLR § 3017:  Provides for the relief clause in pleadings.
1)      It requires that every pleading containing a cause of action, which of course includes a complaint “shall contain a demand for the relief to which the pleader deems him self entitled.”
2)      This is called the “wherefore clause” or sometimes called an “ad damnum”.   
3)      Splitting Doctrine: generally, where the P is suing for claims at the time of the litigation but more damages are accruing during the litigation. The P cannot claim the damages accruing during litigation, P may after in another trial.
d.      Answer
                                                              i.      CPLR § 3018(a) Responses to a summons/complaint:
1.      answer; or
2.      move to dismiss
                                                            ii.      Possible answers to FACTUAL ALLEGATIONS in a complaint:
1.      Admit
2.      Deny
3.      Deny knowledge & information sufficient to form a belief as to the truth of the allegation (DKI)
                                                          iii.      Every allegation needs a response
1.      Answers should also be numbered.
                                                          iv.      CPLR § 3211(f): If the Defendant brings a motion to dismiss and it is denied, the case will continue, and the defendant must prepare an answer have it served within 10 days from the date that the order denying the motion is served by the plaintiff upon the defendant with notice of entry.
                                                            v.      The service of an answer waives right to a more definitive statement. Does not necessarily waive the MTS.
                                                          vi.      The making of a corrective pleading, a motion for a definitive statement or MTS, extends the defendant's response time. If the motion is denied, Defendant may serve an answer within TEN DAYS. If the motion is granted, Plaintiff is required t

                                                                       ii.      Any time before responding to the summons expires.
                                                                                                                                  iii.      Within 20 days after a responsive pleading is served, the pleading that the response was directed to can be amended.
2.      Amending By Leave
a.       A party gets only one shot/time to amend as of right. After that, leave of the court is required.
                                                                                                                                      i.      CPLR § 3025(b) states that leave to amend shall be freely given upon such terms as may be just by making a motion or asking the other side for a stipulation.
                                                                                                                                    ii.      In other words, the court will deny leave if it prejudices the other side. PREJUDICE IS
1.      Any loss that would not have happened had the motion to amend not been granted
2.      Anything that would negatively affect the adversary that is granted, but normally would not happen if you had follow rules
h.      CPLR § 3041: Bill of Particulars
                                                                                                                                      i.            This is an amplification of the pleading. This supplies more detail, and therefore supplies the adverse party with a more thorough picture of the claim. This is also tied the (p) burden of proof.
i.        CPLR § 3120(a): Discovery
                                                                                                                                      i.            After commencement of an action, any party may serve on any other party a