New York
Civil Practice Law & Rules
NYCPLR Article 30
Remedies and Pleadings
3001. Declaratory judgment.
3002. Actions and relief not barred for inconsistency.
(a) Action against several persons.
(b) Action against agent and undisclosed principal.
(c) Action for conversion and on contract.
(d) Action on contract and to reform.
(e) Claim for damages and rescission.
(f) Vendee`s lien not to depend upon form of action.
3003. Action for periodic payments due under pension or
retirement contract no bar to action for future
installments.
3004. Where restoration of benefits before judgment
unnecessary.
3005. Relief against mistake of law.
3011. Kinds of pleadings.
3012. Service of pleadings and demand for complaint.
(a) Service of pleadings.
(b) Service of complaint where summons served without
complaint.
(c) Additional time to serve answer where summons and
complaint not personally delivered to person to
be served within the state.
(d) Extension of time to appear or plead.
3012-a. Certificate of merit in medical, dental and podiatric
malpractice actions.
3013. Particularity of statements generally.
3014. Statements.
3015. Particularity as to specific matters.
(a) Conditions precedent.
(b) Corporate status.
(c) Judgment, decision or determination.
(d) Signatures.
(e) License to do business.
3016. Particularity in specific actions.
(a) Libel or slander.
(b) Fraud or mistake.
(c) Separation or divorce.
(d) Judgment.
(e) Law of foreign country.
(f) Sale and delivery of goods or performing of labor
or services.
(g) Personal injury.
(h) Gross negligence or intentional infliction of harm
by certain directors, officers or trustees of
certain corporations, associations,
organizations or trusts.
3017. Demand for relief.
(a) Generally.
(b) Declaratory judgment.
(c) Medical or dental malpractice action or action
against a municipal corporation.
3018. Responsive pleadings.
(a) Denials.
(b) Affirmative defenses.
3019. Counterclaims and cross-claims.
(a) Subject of counterclaims.
(b) Subject of cross-claims.
(c) Counterclaim against trustee or nominal plantiff.
(d) Cause of action in counterclaim or cross-claim
deemed in complaint.
3020. Verification.
(a) Generally.
(b) When answer must be verified.
(c) Defense not involving the merits.
(d) By whom verification made.
3021. Form of affidavit of verification.
3022. Remedy for defective verification.
3023. Construction of verified pleading.
3024. Motion to correct pleadings.
(a) Vague or ambiguous pleadings.
(b) Scandalous or prejudicial matter.
(c) Time limits; pleading after disposition.
3025. Amended and supplemental pleadings.
(a) Amendments without leave.
(b) Amendments and supplemental pleadings by leave.
(c) Amendment to conform to the evidence.
(d) Responses to amended or supplemental pleadings.
3026. Construction.
3031. Simplified procedure for court determination of
disputes-- action without pleadings.
3032. Contents of statement.
3033. Contracts to submit; enforcement of submission.
3034. Motion procedure to settle statement terms.
3035. Simplified procedure authorized.
(a) Implementation and pre-trial.
(b) Technical rules of evidence dispensed.
(c) Practice.
3036. Court determination.
3037. Appeal.
3041. Bill of particulars in any case.
3042. Procedure for bill of particulars.
(a) Demand.
(b) Amendment.
(c) Failure to respond or to comply with a demand.
(d) Penalties for refusal to comply.
(e) Service of improper or unduly burdensome demands.
3043. Bill of particulars in personal injury actions.
(a) Specified particulars.
(b) Supplemental bill of particulars without leave.
(c) Discretion of court.
3044. Verification of bill of particulars.
3045. Arbitration of damages in medical, dental or podiatric
malpractice actions.
S 3001. Declaratory judgment. The supreme court may render a
declaratory judgment having the effect of a final judgment as to the
rights and other legal relations of the parties to a justiciable
controversy whether or not further relief is or could be claimed. If the
court declines to render such a judgment it shall state its grounds.
S 3002. Actions and relief not barred for inconsistency. (a) Action
against several persons. Where causes of action exist against several
persons, the commencement or maintenance of an action against one, or
the recovery against one of a judgment which is unsatisfied, shall not
be deemed an election of remedies which bars an action against the
others.
(b) Action against agent and undisclosed principal. Where causes of
action exist against an agent and his undisclosed principal, the
commencement or maintenance, after disclosure of the principal, of an
action against either, or the recovery of a judgment against either
which is unsatisfied, shall not be deemed an election of remedies which
bars an action against the other.
(c) Action for conversion and on contract. Where causes of action
exist against several persons for the conversion of property and upon
express or implied contract, the commencement or maintenance of an
action against one, or the recovery against one of a judgment which is
unsatisfied, either for the conversion or upon the contract, shall not
be deemed an election of remedies which bars an action against the
others either for the conversion or upon the contract.
(d) Action on contract and to reform. A judgment denying recovery in
an action upon an agreement in writing shall not be deemed to bar an
action to reform such agreement and to enforce it as reformed.
(e) Claim for damages and rescission. A claim for damages sustained as
a result of fraud or misrepresentation in the inducement of a contract
or other transaction, shall not be deemed inconsistent with a claim for
rescission or based upon rescission. In an action for rescission or
based upon rescission the aggrieved party shall be allowed to obtain
complete relief in one action, including rescission, restitution of the
benefits, if any, conferred by him as a result of the transaction, and
damages to which he is entitled because of such fraud or
misrepresentation; but such complete relief shall not include
duplication of items of recovery.
(f) Vendee`s lien not to depend upon form of action. When relief is
sought, in an action or by way of defense or counterclaim, by a vendee
under an agreement for the sale or exchange of real property, because of
the rescission, failure, invalidity or disaffirmance of such agreement,
a vendee`s lien upon the property shall not be denied merely because the
claim is for rescission, or is based upon the rescission, failure,
invalidity or disaffirmance of such agreement.
S 3003. Action for periodic payments due under pension or retirement
contract no bar to action for future installments. The commencement or
maintenance of an action for the recovery of payments which have become
due under the terms of a written agreement providing for the payment of
a pension or retirement compensation or deferred compensation for a
period of years or for life, whether or not such agreement is part of an
employment contract, shall not be deemed to bar subsequent actions to
recover payments thereafter becoming due under the terms of such
agreement.
S 3004. Where restoration of benefits before judgment unnecessary. A
party who has received benefits by reason of a transaction that is void
or voidable because of fraud, misrepresentation, mistake, duress,
infancy or incompetency, and who, in an action or by way of defense or
counterclaim, seeks rescission, restitution, a declaration or judgment
that such transaction is void, or other relief, whether formerly
denominated legal or equitable, dependent upon a determination that such
transaction was void or voidable, shall not be denied relief because of
a failure to tender before judgment restoration of such benefits; but
the court may make a tender of restoration a condition of its judgment,
and may otherwise in its judgment so adjust the equities between the
parties that unjust enrichment is avoided.
S 3005. Relief against mistake of law. When relief against a mistake
is sought in an action or by way of defense or counterclaim, relief
shall not be denied merely because the mistake is one of law rather than
one of fact.
S 3011. Kinds of pleadings. There shall be a complaint and an answer.
An answer may include a counterclaim against a plaintiff and a
cross-claim against a defendant. A defendant`s pleading against another
claimant is an interpleader complaint, or against any other person not
already a party is a third-party complaint. There shall be a reply to a
counterclaim denominated as such, an answer to an interpleader complaint
or third-party complaint, and an answer to a cross-claim that contains a
demand for an answer. If no demand is made, the cross-claim shall be
deemed denied or avoided. There shall be no other pleading unless the
court orders otherwise.
S 3012. Service of pleadings and demand for complaint. (a) Service of
pleadings. The complaint may be served with the summons. A subsequent
pleading asserting new or additional claims for relief shall be served
upon a party who has not appeared in the manner provided for service of
a summons. In any other case, a pleading shall be served in the manner
provided for service of papers generally. Service of an answer or reply
shall be made within twenty days after service of the pleading to which
it responds.
(b) Service of complaint where summons served without complaint. If
the complaint is not served with the summons, the defendant may serve a
written demand for the complaint within the time provided in subdivision
(a) of rule 320 for an appearance. Service of the complaint shall be
made within twenty days after service of the demand. Service of the
demand shall extend the time to appear until twenty days after service
of the complaint. If no demand is made, the complaint shall be served
within twenty days after service of the notice of appearance. The court
upon motion may dismiss the action if service of the complaint is not
made as provided in this subdivision. A demand or motion under this
subdivision does not of itself constitute an appearance in the action.
(c) Additional time to serve answer where summons and complaint not
personally delivered to person to be served within the state. If the
complaint is served with the summons and the service is made on the
defendant by delivering the summons and complaint to an official of the
state authorized to receive service in his behalf or if service of the
summons and complaint is made pursuant to section 303, paragraphs two,
three, four or five of section 308, or sections 313, 314 or 315, service
of an answer shall be made within thirty days after service is complete.
(d) Extension of time to appear or plead. Upon the application of a
party, the court may extend the time to appear or plead, or compel the
acceptance of a pleading untimely served, upon such terms as may be just
and upon a showing of reasonable excuse for delay or default.
S 3012-a. Certificate of merit in medical, dental and podiatric
malpractice actions. (a) In any action for medical, dental or podiatric
malpractice, the complaint shall be accompanied by a certificate,
executed by the attorney for the plaintiff, declaring that:
(1) the attorney has reviewed the facts of the case and has consulted
with at least one physician in medical malpractice actions, at least one
dentist in dental malpractice actions or at least one podiatrist in
podiatric malpractice actions who is licensed to practice in this state
or any other state and who the attorney reasonably believes is
knowledgeable in the relevant issues involved in the particular action,
and that the attorney has concluded on the basis of such review and
consultation that there is a reasonable basis for the commencement of
such action; or
(2) the attorney was unable to obtain the consultation required by
paragraph one of this subdivision because a limitation of time,
established by article two of this chapter, would bar the action and
that the certificate required by paragraph one of this subdivision could
not reasonably be obtained before such time expired. If a certificate is
executed pursuant to this subdivision, the certificate required by this
section shall be filed within ninety days after service of the
complaint; or
(3) the attorney was unable to obtain the consultation required by
paragraph one of this subdivision because the attorney had made three
separate good faith attempts with three separate physicians, dentists or
podiatrists, in accordance with the provisions of paragraph one of this
subdivision to obtain such consultation and none of those contacted
would agree to such a consultation.
(b) Where a certificate is required pursuant to this section, a single
certificate shall be filed for each action, even if more than one
defendant has been named in the complaint or is subsequently named.
(c) Where the attorney intends to rely solely on the doctrine of "res
ipsa loquitur", this section shall be inapplicable. In such cases, the
complaint shall be accompanied by a certificate, executed by the
attorney, declaring that the attorney is solely relying on such doctrine
and, for that reason, is not filing a certificate required by this
section.
(d) If a request by the plaintiff for the records of the plaintiff`s
medical or dental treatment by the defendants has been made and such
records have not been produced, the plaintiff shall not be required to
serve the certificate required by this section until ninety days after
such records have been produced.
(e) For purposes of this section, and subject to the provisions of
section thirty-one hundred one of this chapter, an attorney who submits
a certificate as required by paragraph one or two of subdivision (a) of
this section and the physician, dentist or podiatrist with whom the
attorney consulted shall not be required to disclose the identity of the
physician, dentist or podiatrist consulted and the contents of such
consultation; provided, however, that when the attorney makes a claim
under paragraph three of subdivision (a) of this section that he was
unable to obtain the required consultation with the physician, dentist
or podiatrist, the court may, upon the request of a defendant made prior
to compliance by the plaintiff with the provisions of section thirty-one
hundred of this chapter, require the attorney to divulge to the court
the names of physicians, dentists or podiatrists refusing such
consultation.
(f) The provisions of this section shall not be applicable to a
plaintiff who is not represented by an attorney.
(g) The plaintiff may, in lieu of serving the certificate required by
this section, provide the defendant or defendants with the information
required by paragraph one of subdivision (d) of section thirty-one
hundred one of this chapter within the period of time prescribed by this
section.
S 3013. Particularity of statements generally. 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.
Rule 3014. Statements. Every pleading shall consist of plain and
concise statements in consecutively numbered paragraphs. Each paragraph
shall contain, as far as practicable, a single allegation. Reference to
and incorporation of allegations may subsequently be by number. Prior
statements in a pleading shall be deemed repeated or adopted
subsequently in the same pleading whenever express repetition or
adoption is unnecessary for a clear presentation of the subsequent
matters. Separate causes of action or defenses shall be separately
stated and numbered and may be stated regardless of consistency. Causes
of action or defenses may be stated alternatively or hypothetically. A
copy of any writing which is attached to a pleading is a part thereof
for all purposes.
Rule 3015. Particularity as to specific matters. (a) Conditions
precedent. The performance or occurrence of a condition precedent in a
contract need not be pleaded. A denial of performance or occurrence
shall be made specifically and with particularity. In case of such
denial, the party relying upon the performance or occurrence shall be
required to prove on the trial only such performance or occurrence as
shall have been so specified.
(b) Corporate status. Where any party is a corporation, the complaint
shall so state and, where known, it shall specify the state, country or
government by or under whose laws the party was created.
(c) Judgment, decision or determination. A judgment, decision or other
determination of a court, judicial or quasi-judicial tribunal, or of a
board or officer, may be pleaded without stating matter showing
jurisdiction to render it.
(d) Signatures. Unless specifically denied in the pleadings each
signature on a negotiable instrument is admitted.
(e) License to do business. Where the plaintiff`s cause of action
against a consumer arises from the plaintiff`s conduct of a business
which is required by state or local law to be licensed by the department
of consumer affairs of the city of New York, the Suffolk county
department of consumer affairs, the Westchester county department of
consumer affairs/weight-measures, the county of Rockland, the county of
Putnam or the Nassau county department of consumer affairs, the
complaint shall allege, as part of the cause of action, that plaintiff
is duly licensed and shall contain the name and number, if any, of such
license and the governmental agency which issued such license; provided,
however, that where the plaintiff does not have a license at the
commencement of the action the plaintiff may, subject to the provisions
of rule thirty hundred twenty-five of this article, amend the complaint
with the name and number of an after-acquired license and the name of
the governmental agency which issued such license or move for leave to
amend the complaint in accordance with such provisions. The failure of
the plaintiff to comply with this subdivision will permit the defendant
to move for dismissal pursuant to paragraph seven of subdivision (a) of
rule thirty-two hundred eleven of this chapter.
Rule 3016. Particularity in specific actions. (a) Libel or slander. In
an action for libel or slander, the particular words complained of shall
be set forth in the complaint, but their application to the plaintiff
may be stated generally.
(b) Fraud or mistake. Where a cause of action or defense is based upon
misrepresentation, fraud, mistake, wilful default, breach of trust or
undue influence, the circumstances constituting the wrong shall be
stated in detail.
(c) Separation or divorce. In an action for separation or divorce, the
nature and circumstances of a party`s alleged misconduct, if any, and
the time and place of each act complained of, if any, shall be specified
in the complaint or counterclaim as the case may be.
(d) Judgment. In an action on a judgment, the complaint shall state
the extent to which any judgment recovered by the plaintiff against the
defendant, or against a person jointly liable with the defendant, on the
same cause of action has been satisfied.
(e) Law of foreign country. Where a cause of action or defense is
based upon the law of a foreign country or its political subdivision,
the substance of the foreign law relied upon shall be stated.
(f) Sale and delivery of goods or performing of labor or services. In
an action involving the sale and delivery of goods, or the performing of
labor or services, or the furnishing of materials, the plaintiff may set
forth and number in his verified complaint the items of his claim and
the reasonable value or agreed price of each. Thereupon the defendant by
his verified answer shall indicate specifically those items he disputes
and whether in respect of delivery or performance, reasonable value or
agreed price.
(g) Personal injury. In an action designated in subsection (a) of
section five thousand one hundred four of the insurance law, for
personal injuries arising out of negligence in the use or operation of a
motor vehicle in this state, the complaint shall state that the
plaintiff has sustained a serious injury, as defined in subsection (d)
of section five thousand one hundred two of the insurance law, or
economic loss greater than basic economic loss, as defined in subsection
(a) of section five thousand one hundred two of the insurance law.
(h) Gross negligence or intentional infliction of harm by certain
directors, officers or trustees of certain corporations, associations,
organizations or trusts. In an action or proceeding based upon the
conduct of a director, officer or trustee described in section seven
hundred twenty-a of the not-for-profit corporation law or subdivision
six of section 20.09 of the arts and cultural affairs law, the complaint
shall be verified and shall state whether or not said complaint is based
upon gross negligence or intentional infliction of harm.
S 3017. Demand for relief. (a) Generally. Except as otherwise provided
in subdivision (c) of this section, every complaint, counterclaim,
cross-claim, interpleader complaint, and third-party complaint shall
contain a demand for the relief to which the pleader deems himself
entitled. Relief in the alternative or of several different types may
be demanded. Except as provided in section 3215, the court may grant
any type of relief within its jurisdiction appropriate to the proof
whether or not demanded, imposing such terms as may be just.
(b) Declaratory judgment. In an action for a declaratory judgment, the
demand for relief in the complaint shall specify the rights and other
legal relations on which a declaration is requested and state whether
further or consequential relief is or could be claimed and the nature
and extent of any such relief which is claimed.
(c) Medical or dental malpractice action or action against a municipal
corporation. In an action for medical or dental malpractice or in an
action against a municipal corporation, as defined in section two of the
general municipal law, the complaint, counterclaim, cross-claim,
interpleader complaint, and third-party complaint shall contain a prayer
for general relief but shall not state the amount of damages to which
the pleader deems himself entitled. If the action is brought in the
supreme court, the pleading shall also state whether or not the amount
of damages sought exceeds the jurisdictional limits of all lower courts
which would otherwise have jurisdiction. Provided, however, that a
party against whom an action for medical or dental malpractice is
brought or the municipal corporation, may at any time request a
supplemental demand setting forth the total damages to which the pleader
deems himself entitled. A supplemental demand shall be provided by the
party bringing the action within fifteen days of the request. In the
event the supplemental demand is not served within fifteen days, the
court, on motion, may order that it be served. A supplemental demand
served pursuant to this subdivision shall be treated in all respects as
a demand made pursuant to subdivision (a) of this section.
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Article 30 Continued . . .
S 3018. Responsive pleadings. (a) Denials. A party shall deny those
statements known or believed by him to be untrue. He shall specify those
statements as to the truth of which he lacks knowledge or information
sufficient to form a belief and this shall have the effect of a denial.
All other statements of a pleading are deemed admitted, except that
where no responsive pleading is permitted they are deemed denied or
avoided.
(b) Affirmative defenses. A party shall plead all matters which if not
pleaded would be likely to take the adverse party by surprise or would
raise issues of fact not appearing on the face of a prior pleading such
as arbitration and award, collateral estoppel, culpable conduct claimed
in diminution of damages as set forth in article fourteen-A, discharge
in bankruptcy, facts showing illegality either by statute or common law,
fraud, infancy or other disability of the party defending, payment,
release, res judicata, statute of frauds, or statute of limitation. The
application of this subdivision shall not be confined to the instances
enumerated.
S 3019. Counterclaims and cross-claims. (a) Subject of counterclaims.
A counterclaim may be any cause of action in favor of one or more
defendants or a person whom a defendant represents against one or more
plaintiffs, a person whom a plaintiff represents or a plaintiff and
other persons alleged to be liable.
(b) Subject of cross-claims. A cross-claim may be any cause of action
in favor of one or more defendants or a person whom a defendant
represents against one or more defendants, a person whom a defendant
represents or a defendant and other persons alleged to be liable. A
cross-claim may include a claim that the party against whom it is
asserted is or may be liable to the cross-claimant for all or part of a
claim asserted in the action against the cross-claimant.
(c) Counterclaim against trustee or nominal plaintiff. In an action
brought by a trustee or in the name of a plaintiff who has no actual
interest in the contract upon which it is founded, a claim against the
plaintiff shall not be allowed as a counterclaim, but a claim existing
against the person beneficially interested shall be allowed as a
counterclaim to the extent of the plaintiff`s claim, if it might have
been so allowed in an action brought by the person beneficially
interested.
(d) Cause of action in counterclaim or cross-claim deemed in
complaint. A cause of action contained in a counterclaim or a
cross-claim shall be treated, as far as practicable, as if it were
contained in a complaint, except that separate process, trial or
judgment may not be had unless the court so orders. Where a person not a
party is alleged to be liable a summons and answer containing the
counterclaim or cross-claim shall be filed, whereupon he or she shall
become a defendant. Service upon such a defendant shall be by serving a
summons and answer containing the counterclaim or cross-claim. Such
defendant shall serve a reply or answer as if he or she were originally
a party.
S 3020. Verification. (a) Generally. A verification is a statement
under oath that the pleading is true to the knowledge of the deponent,
except as to matters alleged on information and belief, and that as to
those matters he believes it to be true. Unless otherwise specified by
law, where a pleading is verified, each subsequent pleading shall also
be verified, except the answer of an infant and except as to matter in
the pleading concerning which the party would be privileged from
testifying as a witness. Where the complaint is not verified, a
counterclaim, cross-claim or third-party claim in the answer may be
separately verified in the same manner and with the same effect as if it
were a separate pleading.
(b) When answer must be verified. An answer shall be verified:
1. when the complaint charges the defendant with having confessed or
suffered a judgment, executed a conveyance, assignment or other
instrument, or transferred or delivered money or personal property with
intent to hinder, delay or defraud his creditors, or with being a party
or privy to such a transaction by another person with like intent
towards the creditors of that person, or with any fraud whatever
affecting a right or the property of another; or
2. in an action against a corporation to recover damages for the
non-payment of a promissory note or other evidence of debt for the
absolute payment of money upon demand or at a particular time.
(c) Defense not involving the merits. A defense which does not involve
the merits of the action shall be verified.
(d) By whom verification made. The verification of a pleading shall be
made by the affidavit of the party, or, if two or more parties united in
interest are pleading together, by at least one of them who is
acquainted with the facts, except:
1. if the party is a domestic corporation, the verification shall be
made by an officer thereof and shall be deemed a verification by the
party;
2. if the party is the state, a governmental subdivision, board,
commission, or agency, or a public officer in behalf of any of them, the
verification may be made by any person acquainted with the facts; and
3. if the party is a foreign corporation, or is not in the county
where the attorney has his office, or if there are two or more parties
united in interest and pleading together and none of them acquainted
with the facts is within that county, or if the action or defense is
founded upon a written instrument for the payment of money only which is
in the possession of an agent or the attorney, or if all the material
allegations of the pleading are within the personal knowledge of an
agent or the attorney, the verification may be made by such agent or
attorney.
Rule 3021. Form of affidavit of verification. The affidavit of
verification must be to the effect that the pleading is true to the
knowledge of the deponent, except as to the matters therein stated to be
alleged on information and belief, and that as to those matters he
believes it to be true. If it is made by a person other than the party,
he must set forth in the affidavit the grounds of his belief as to all
matters not stated upon his knowledge and the reason why it is not made
by the party.
Rule 3022. Remedy for defective verification. A defectively verified
pleading shall be treated as an unverified pleading. Where a pleading
is served without a sufficient verification in a case where the adverse
party is entitled to a verified pleading, he may treat it as a nullity,
provided he gives notice with due diligence to the attorney of the
adverse party that he elects so to do.
Rule 3023. Construction of verified pleading. The allegations or
denials in a verified pleading must, in form, be stated to be made by
the party pleading. Unless they are stated to be made upon the
information and belief of the party, they must be regarded for all
purposes, including a criminal prosecution, as having been made upon the
knowledge of the person verifying the pleading. An allegation that the
party has not sufficient knowledge or information to form a belief with
respect to a matter, must, for the same purposes, be regarded as an
allegation that the person verifying the pleading has not such knowledge
or information.
Rule 3024. Motion to correct pleadings. (a) Vague or ambiguous
pleadings. If a pleading is so vague or ambiguous that a party cannot
reasonably be required to frame a response he may move for a more
definite statement.
(b) Scandalous or prejudicial matter. A party may move to strike any
scandalous or prejudicial matter unnecessarily inserted in a pleading.
(c) Time limits; pleading after disposition. A notice of motion under
this rule shall be served within twenty days after service of the
challenged pleading. If the motion is denied, the responsive pleading
shall be served within ten days after service of notice of entry of the
order and, if it is granted, an amended pleading complying with the
order shall be served within that time.
Rule 3025. Amended and supplemental pleadings. (a) Amendments without
leave. A party may amend his pleading once without leave of court within
twenty days after its service, or at any time before the period for
responding to it expires, or within twenty days after service of a
pleading responding to it.
(b) Amendments and supplemental pleadings by leave. A party may amend
his pleading, or supplement it by setting forth additional or subsequent
transactions or occurrences, at any time by leave of court or by
stipulation of all parties. Leave shall be freely given upon such terms
as may be just including the granting of costs and continuances.
(c) Amendment to conform to the evidence. The court may permit
pleadings to be amended before or after judgment to conform them to the
evidence, upon such terms as may be just including the granting of costs
and continuances.
(d) Responses to amended or supplemental pleadings. Except where
otherwise prescribed by law or order of the court, there shall be an
answer or reply to an amended or supplemental pleading if an answer or
reply is required to the pleading being amended or supplemented.
Service of such an answer or reply shall be made within twenty days
after service of the amended or supplemental pleading to which it
responds.
S 3026. Construction. Pleadings shall be liberally construed. Defects
shall be ignored if a substantial right of a party is not prejudiced.
S 3031. Simplified procedure for court determination of
disputes--action without pleadings. An action may be commenced without
the service of a summons, or may be continued after the service of a
summons, without pleadings, by the filing of a statement, signed and
acknowledged by all the parties or signed by their attorneys, specifying
plainly and concisely the claims and defenses between the parties and
the relief requested. Signing constitutes a certificate that the issues
are genuine, and such filing, together with a note of issue, to be filed
at the same time, shall constitute the joinder of issues in the action.
The procedure in any action commenced under this section shall
constitute "the New York Simplified Procedure for Court Determination of
Disputes" and it shall be sufficient so to identify the procedure in any
contract or other document referring to it. A submission of a
controversy under this procedure shall constitute a waiver by the
parties of the right to trial by jury.
Rule 3032. Contents of statement. The statement required when an
action is commenced without summons, or continued after the service of a
summons without pleadings, shall set forth plainly and concisely the
claims and defenses in dispute between the parties and the relief
sought, including the amount of money demanded, if any. With the
permission of the court, amended or supplemental statements may be
served and filed at any time.
S 3033. Contracts to submit; enforcement of submission. 1. Any written
contract, otherwise valid under the substantive law, to submit any
existing or future controversy to the court pursuant to section 3031 is
valid and enforceable and shall be construed as an implied consent of
the parties to the jurisdiction of the supreme court of this state to
enforce it pursuant to the procedures of rule 3036, and to enter
judgment thereon, and shall constitute a waiver by the parties of the
right to trial by jury.
2. If the parties to a dispute arising under a contract to submit a
controversy to the court under section 3031 are unable to agree on a
statement of claims and defenses and relief sought pursuant to that
section, the court on motion shall settle the terms of the statement.
In deciding the motion the court shall consider and determine any
questions as to the existence of the contract or its validity or the
failure of any party to perform it. If a substantial issue of fact be
raised as to the making of the contract or submission or the failure to
comply therewith, the court or judge shall proceed to trial of such
issue without a jury, unless either party should demand a jury trial.
Rule 3034. Motion procedure to settle statement terms. 1. A party
aggrieved by the failure of another to perform under a contract to
submit a controversy, upon filing a statement, signed and acknowledged
by the party, specifying the claim and the relief requested, may move
for an order directing settlement of the terms of the statement, if
necessary, and the determination of the controversy pursuant to the New
York Simplified Procedure for Court Determination of Disputes.
2. Eight days notice of the motion, or such other notice as the court
shall deem appropriate, shall be served upon the party alleged to be in
default, in such manner as the court shall direct.
3. If there is no substantial question as to the making of the
contract or submission, or the failure to comply therewith, the court
shall proceed with the determination of the controversy pursuant to the
simplified procedure and these rules. If the court shall find that a
substantial issue of fact has been raised as to the making of the
contract or submission, or the failure to comply therewith, and the
motion shall not have been denied as a matter of law, the court shall
proceed expeditiously with the trial thereof without a jury, unless
either party upon argument of the motion shall have demanded in writing
a trial by jury of the issue of the making of the contract or
submission, in which event the court shall proceed as promptly as may be
practicable with such trial before a jury.
S 3035. Simplified procedure authorized. (a) Implementation and
pre-trial. The procedure in any action under the New York simplified
procedure for court determination of disputes authorized by sections
3031 and 3033 shall be as provided in rule 3036 adopted to implement the
provisions hereof, which is designed to promote the speedy hearing of
such actions and to provide for such actions a procedure that is as
simple and informal as circumstances will permit. A pre-trial
conference may be held relative to the disposition of questions of law
which might be conclusive in the action and avoid a trial.
(b) Technical rules of evidence dispensed. The technical rules of
evidence shall be dispensed with to the extent specified in such rule
3036.
(c) Practice. The practice under this procedure relating to motions to
stay or to transfer pending actions, and relating to venue, assessment
of costs, entry of judgment, judgment by default, and the continuance of
the action in case of death or incompetency of parties shall be as
prescribed in the rules adopted pursuant hereto.
Rule 3036. Court determination. 1. Except upon a trial under paragraph
three of rule 3034 of the issue of the making of the contract or
submission, the rules as to the admissibility of evidence, except as
provided by statutes relating to privileged communications, and as to
procedure shall be dispensed with unless the court shall otherwise
direct, and shall not apply to or exclude, limit, or restrict the taking
of any testimony and the adducing of any proof.
2. In any action brought pursuant to the simplified procedure for
court determination of disputes in which the court shall be of the
opinion that evidence by an impartial expert would be of material aid to
the just determination of the action, it may direct that such evidence
be obtained. The fee and expenses of such expert shall be paid by the
parties as, in its discretion, the court may direct.
3. Any action or proceeding, other than one brought in accordance with
the simplified procedure, which presents an issue referable to the court
for determination under the simplified procedure may be stayed by the
court in which such action or proceeding is pending, or by the supreme
court.
4. If the court directs a party to the contract or submission to serve
a statement within a given time, and the party fails to do so, or if a
party fails to appear upon proper notice, judgment by default may be
awarded.
5. At a pre-trial conference, or at any other time on motion of any
party or on its own motion, on notice to the parties, and upon such
terms and conditions as in its discretion may seem proper, the court may
(a) order or allow any party to serve an additional or amended statement
of facts; (b) direct pre-trial disclosure of evidence and discovery and
inspection of books, records and documents; (c) permit the taking of
depositions for use at the hearing; (d) limit or restrict the number of
experts to be heard as witnesses; (e) clarify and define the issues to
be tried; (f) stay or transfer and consolidate with the action any other
civil action or proceeding pending in any court between parties to the
action; (g) grant summary judgment in favor of any party as in rule 3212
provided.
6. After a statement complying with the requirements of rule 3032 or
settled in accordance with rule 3034 has been filed, any party may serve
and file a note of issue. Trial of the action shall commence on the date
specified in such note of issue or as soon thereafter as may be
practicable. Completion of preliminary procedures required by local
court rules prior to the placing of a case upon the calendar for trial
shall not be required in actions under the New York Simplified Procedure
for Court Determination of Disputes.
7. The judgment roll shall consist of the submission or contract; the
statement of claims and defenses; each paper submitted to the court upon
a motion and each order of the court thereon; a copy of the judgment and
of each paper necessarily affecting the judgment.
8. Those provisions of the civil practice law and rules pertaining to
venue, entry and enforcement of judgment and the continuance of a civil
action in case of the death or incompetency of parties shall apply to
actions under the simplified procedure.
9. Costs and disbursements may be awarded by the court in its
discretion. If awarded, the amount thereof must be included in the
judgment.
S 3037. Appeal. An appeal may be taken only from a judgment, or an
order determining the making of the contract or submission or the
failure to comply therewith. There shall be no appeal from an
intermediate order of the court or of a judge in an action under the
simplified procedure provisions, except with the permission of the trial
or appellate court, but such order or orders may be reviewed on the
appeal from a judgment entered under these provisions. A decision of the
trial judge on the facts shall be final if there is any substantial
evidence to support it.
S 3041. Bill of particulars in any case. Any party may require any
other party to give a bill of particulars of such party`s claim, or a
copy of the items of the account alleged in a pleading. As used
elsewhere in this article, the term "bill of particulars" shall include
"copy of the items of an account."
Rule 3042. Procedure for bill of particulars. (a) Demand. A demand for
a bill of particulars shall be made by serving a written demand stating
the items concerning which particulars are desired. Within thirty days
of service of a demand for a bill of particulars, the party on whom the
demand is made shall serve a bill of particulars complying with each
item of the demand, except any item to which the party objects, in which
event the reasons for the objection shall be stated with reasonable
particularity. The assertion of an objection to one or more of the items
in the demand shall not relieve the party on whom the demand is made
from the obligation to respond in full within thirty days of service of
the demand to the items of the demand to which no objection has been
made.
(b) Amendment. In any action or proceeding in a court in which a note
of issue is required to be filed, a party may amend the bill of
particulars once as of course prior to the filing of a note of issue.
(c) Failure to respond or to comply with a demand. If a party fails to
respond to a demand in a timely fashion or fails to comply fully with a
demand, the party seeking the bill of particulars may move to compel
compliance, or, if such failure is willful, for the imposition of
penalties pursuant to subdivision (d) of this rule.
(d) Penalties for refusal to comply. If a party served with a demand
for a bill of particulars willfully fails to provide particulars which
the court finds ought to have been provided pursuant to this rule, the
court may make such final or conditional order with regard to the
failure or refusal as is just, including such relief as is set forth in
section thirty-one hundred twenty-six of this chapter.
(e) Service of improper or unduly burdensome demands. If the court
concludes that the demand for particulars, or a part thereof, is
improper or unduly burdensome, in addition to vacating or modifying the
demand, the court may make such order with regard to the improper or
unduly burdensome demand as is just.
Rule 3043. Bill of particulars in personal injury actions. (a)
Specified particulars. In actions to recover for personal injuries the
following particulars may be required:
(1) The date and approximate time of day of the occurrence;
(2) Its approximate location;
(3) General statement of the acts or omissions constituting the
negligence claimed;
(4) Where notice of a condition is a prerequisite, whether actual or
constructive notice is claimed;
(5) If actual notice is claimed, a statement of when and to whom it
was given;
(6) Statement of the injuries and description of those claimed to be
permanent, and in an action designated in subsection (a) of section five
thousand one hundred four of the insurance law, for personal injuries
arising out of negligence in the use or operation of a motor vehicle in
this state, in what respect plaintiff has sustained a serious injury, as
defined in subsection (d) of section five thousand one hundred two of
the insurance law, or economic loss greater than basic economic loss, as
defined in subsection (a) of section five thousand one hundred two of
the insurance law;
(7) Length of time confined to bed and to house;
(8) Length of time incapacitated from employment; and
(9) Total amounts claimed as special damages for physicians` services
and medical supplies; loss of earnings, with name and address of the
employer; hospital expenses; nurses` services.
(b) Supplemental bill of particulars without leave. A party may serve
a supplemental bill of particulars with respect to claims of continuing
special damages and disabilities without leave of court at any time, but
not less than thirty days prior to trial. Provided however that no new
cause of action may be alleged or new injury claimed and that the other
party shall upon seven days notice, be entitled to newly exercise any
and all rights of discovery but only with respect to such continuing
special damages and disabilities.
(c) Discretion of court. Nothing contained in the foregoing shall be
deemed to limit the court in denying in a proper case, any one or more
of the foregoing particulars, or in a proper case, in granting other,
further or different particulars.
S 3044. Verification of bill of particulars. If a pleading is
verified, a subsequent bill of particulars shall also be verified. A
bill of particulars of any pleading with respect to a cause of action
for negligence shall be verified whether such pleading be verified or
not.
S 3045. Arbitration of damages in medical, dental or podiatric
malpractice actions. (a) At any time after service of a bill of
particulars but no later than sixty days after filing of the notice of
dental, medical or podiatric malpractice action pursuant to rule
thirty-four hundred six of this chapter, any defendant in such an action
may demand that the plaintiff elect whether to consent to the
arbitration of damages upon a concession of liability in accordance with
the provisions of this section.
(b) Within twenty days after receipt of such a demand, the plaintiff
shall elect whether to arbitrate damages in such an action pursuant to
such a concession of liability by the defendant or defendants in the
action. If the defendant or defendants serve a concession of liability
upon the plaintiff within twenty days after receipt of such an election,
the issue of damages, including the proximate cause thereof, shall be
subject to arbitration in accordance with the provisions of article
seventy-five-A of this chapter. A concession of liability, made pursuant
to this section, shall not be binding on the defendant for any other
purpose.