NYLE Civil Practice and Procedure questions with
verified answers
Amended and Supplemental Pleadings Ans✓✓-Amendments to a pleading may
be made once without leave of court within 20 days after service or any time
before the time to respond expires or within 20 days after service of a pleading
responding to it.
Thereafter, a party may amend a pleading or may supplement it by setting forth
additional or subsequent transactions or occurrences only by leave of court or
stipulation of the parties.
Answers and replies to the amended pleadings get 20 days for sur-reply.
Arbitration Ans✓✓-A party seeking to resist contractual arbitration may do so
only on three grounds:
(1) that no valid agreement was made to arbitrate;
(2) that a condition precedent in the agreement has not been complied with; or
(3) that the claim is barred by the SoL.
Courts must otherwise submit the claim to arbitration and are expressly
forbidden from commenting on the merits of the action.
Notice for arbitration is 20 days after service, after which the other party is
precluded from objecting to arbitration of the dispute.
If the other party does not object during the 20-day window, all but the SoL
defense are barred. The arbitrator can decide whether or not to apply the bar.
,Attachment and preliminary injunction are available with respect to arbitrable
controversies, but only on the ground that the award sought would be rendered
ineffectual without such provisional relief.
Arbitrators are not bound by the rules of evidence, though they must be sworn,
hear the parties, and take in evidence, and all parties have a right to counsel.
An arbitral award is not enforceable as a judgement unless an application to
confirm an award is made within one year after delivery of the award to the
moving party. An application to vacate or modify an award must be made within
90 days after delivery of the award to the moving party.
Judicial review of arbitral awards is limited, and their decisions will not be vacated
for errors of law and fact. The only grounds of review are misconduct, bias, excess
of power, and procedural defects (and non-arbitrability, non-compliance with the
arbitration agreemment, and the SoL if complaining party did not participate or
was not served a compliant notice of intention to arbitrate).
Article 78 Ans✓✓-Governs the procedure for judicial review of matters that were
recognized at common law under the writs of certiorari, mandamus, and
prohibition. The determination sought to be reviewed must be final, and the
petitioner must exhaust their administrative remedies before seeking judicial
relief.
Usually, this procedure only applies to government officers and agencies.
However, Art 78 is also used to compel management of a privte corporation to
comply with the corporation's by-laws regarding corporate governance.
The following can be dealt with under Art 78:
,(1) whether a body or officer has failed to perform a duty enjoined by law;
(2) whether a body or officer has proceeded, is proceeding, or is about to proceed
without or in excess of jurisdiction;
(3) 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; or
(4) whether a determination made as a result of a hearing held, and at which
evidence was taken, pursuant to direction by law is, on the entire recorded,
supported by substantial evidence.
An Art 78 proceeding must be commenced in Supreme Court by filing a petition
with the clerk of the court of the county in which the proceeding is commenced.
The SoL for Art 78 is four months after the determination reviewed becomes final.
Notice of petition must be served on any adverse party at least 20 days before the
petition is heard, and answer must be served at least 5 days before such time
(absent court order otherwise). Any reply to the answer must be served at least 1
day before the hearing.
The petition and answer must be verified.
For substantial evidence review, the court must first consider whether any point
of law could terminate the proceeding. If not, the court will order the proceeding
transferred to the
Attachment Ans✓✓-Is a form of seizure of a defendant's property by the sheriff,
who holds the property for potential satisfaction of a judgement in the plaintiff's
favor, helping secure the enforcement of a money judgement.
, It is available only in an action, in whole or in part, for a money judgement, and
only upon motion demonstrating CPLR 6201 grounds, including:
(i) the defendant is a non-domiciliary residing without the state or a foreign
corporation not qualified to do business in the state;
(ii) the defendant resides or is domiciled in the state and cannot be personally
served despite diligent efforts to do so; or
(iii) the defendant, with intent to defraud their creditors or frustrate enforcement
of a judgement that might be rendered in the plaintiff's favor, has assigned,
disposed of, encumbered or secreted property, or removed it from the state, or is
about to do as much.
A motion for order of attachment may be made with or without notice, before or
after service of a summons and at any time prior to judgement. If an order is
granted without notice, the plaintiff must move on notice to the defendant for an
order confirming the order of attachment. The motion must be made within ten
days after levy by the sheriff if the ground for attachment is that the defendant is
a non-domiciliary residing without the state or is a foreign corporation not
qualified to do business in the state, and within five days if any other grounds
applies.
The motion for attachment must be accompanied with affidavits and other
evidence showing the existence of a cause of action, a probability of success on
the merits, the existence of one or more grounds for attachment, and that the
amount demanded from the defendant exceeds all counter-claims known to the
plaintiff. The plaintiff must also provide an undertaking in an amount set by the
court.
The pl
verified answers
Amended and Supplemental Pleadings Ans✓✓-Amendments to a pleading may
be made once without leave of court within 20 days after service or any time
before the time to respond expires or within 20 days after service of a pleading
responding to it.
Thereafter, a party may amend a pleading or may supplement it by setting forth
additional or subsequent transactions or occurrences only by leave of court or
stipulation of the parties.
Answers and replies to the amended pleadings get 20 days for sur-reply.
Arbitration Ans✓✓-A party seeking to resist contractual arbitration may do so
only on three grounds:
(1) that no valid agreement was made to arbitrate;
(2) that a condition precedent in the agreement has not been complied with; or
(3) that the claim is barred by the SoL.
Courts must otherwise submit the claim to arbitration and are expressly
forbidden from commenting on the merits of the action.
Notice for arbitration is 20 days after service, after which the other party is
precluded from objecting to arbitration of the dispute.
If the other party does not object during the 20-day window, all but the SoL
defense are barred. The arbitrator can decide whether or not to apply the bar.
,Attachment and preliminary injunction are available with respect to arbitrable
controversies, but only on the ground that the award sought would be rendered
ineffectual without such provisional relief.
Arbitrators are not bound by the rules of evidence, though they must be sworn,
hear the parties, and take in evidence, and all parties have a right to counsel.
An arbitral award is not enforceable as a judgement unless an application to
confirm an award is made within one year after delivery of the award to the
moving party. An application to vacate or modify an award must be made within
90 days after delivery of the award to the moving party.
Judicial review of arbitral awards is limited, and their decisions will not be vacated
for errors of law and fact. The only grounds of review are misconduct, bias, excess
of power, and procedural defects (and non-arbitrability, non-compliance with the
arbitration agreemment, and the SoL if complaining party did not participate or
was not served a compliant notice of intention to arbitrate).
Article 78 Ans✓✓-Governs the procedure for judicial review of matters that were
recognized at common law under the writs of certiorari, mandamus, and
prohibition. The determination sought to be reviewed must be final, and the
petitioner must exhaust their administrative remedies before seeking judicial
relief.
Usually, this procedure only applies to government officers and agencies.
However, Art 78 is also used to compel management of a privte corporation to
comply with the corporation's by-laws regarding corporate governance.
The following can be dealt with under Art 78:
,(1) whether a body or officer has failed to perform a duty enjoined by law;
(2) whether a body or officer has proceeded, is proceeding, or is about to proceed
without or in excess of jurisdiction;
(3) 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; or
(4) whether a determination made as a result of a hearing held, and at which
evidence was taken, pursuant to direction by law is, on the entire recorded,
supported by substantial evidence.
An Art 78 proceeding must be commenced in Supreme Court by filing a petition
with the clerk of the court of the county in which the proceeding is commenced.
The SoL for Art 78 is four months after the determination reviewed becomes final.
Notice of petition must be served on any adverse party at least 20 days before the
petition is heard, and answer must be served at least 5 days before such time
(absent court order otherwise). Any reply to the answer must be served at least 1
day before the hearing.
The petition and answer must be verified.
For substantial evidence review, the court must first consider whether any point
of law could terminate the proceeding. If not, the court will order the proceeding
transferred to the
Attachment Ans✓✓-Is a form of seizure of a defendant's property by the sheriff,
who holds the property for potential satisfaction of a judgement in the plaintiff's
favor, helping secure the enforcement of a money judgement.
, It is available only in an action, in whole or in part, for a money judgement, and
only upon motion demonstrating CPLR 6201 grounds, including:
(i) the defendant is a non-domiciliary residing without the state or a foreign
corporation not qualified to do business in the state;
(ii) the defendant resides or is domiciled in the state and cannot be personally
served despite diligent efforts to do so; or
(iii) the defendant, with intent to defraud their creditors or frustrate enforcement
of a judgement that might be rendered in the plaintiff's favor, has assigned,
disposed of, encumbered or secreted property, or removed it from the state, or is
about to do as much.
A motion for order of attachment may be made with or without notice, before or
after service of a summons and at any time prior to judgement. If an order is
granted without notice, the plaintiff must move on notice to the defendant for an
order confirming the order of attachment. The motion must be made within ten
days after levy by the sheriff if the ground for attachment is that the defendant is
a non-domiciliary residing without the state or is a foreign corporation not
qualified to do business in the state, and within five days if any other grounds
applies.
The motion for attachment must be accompanied with affidavits and other
evidence showing the existence of a cause of action, a probability of success on
the merits, the existence of one or more grounds for attachment, and that the
amount demanded from the defendant exceeds all counter-claims known to the
plaintiff. The plaintiff must also provide an undertaking in an amount set by the
court.
The pl
