Pleadings

Front 1

Every pleading can be amended once as a right without having to go to court within?

Back 1

1. 20 days after the service
2. Any time before the time period for responding to the pleading has expired. Eg for Plaintiff's complaint 20 30 or 40
3. Within 20 days after response
4. 20 days if no response is required

Front 2

What is the difference between an ammended pleading and a supplemental pleading?

Back 2

1. Supplemental pleading adds claims that arose subsequent to the service of the pleading
2. Only by stipulation or court order (not a right)

Front 3

Bill of particulars.

Back 3

1. Requests evidence amplifying allegation on the party with THE BURDEN OF PROOF. (D can use on complaint, P can use on affirmative defense/counterclaim)*
2. answer must be served within 30 days
3. can be amended once as a right at any time prior to filing the notice of issue and statement of readiness** allowing that party to make any change, including new injuries, new damages, or new evidence.

*Defendant has burden to prove comparative negligence
**up to 3 days before trial for continuing injury

Front 4

A bill of particulars is a your best PAL

Back 4

P - Prevents surprise at trial
A - AMPLIFIES a pleading
L - LIMITS proof that can be offered

Front 5

CROSS CLAIMS
(Definition)

Back 5

1. Any related or unrelated cause of action by one defendant against another NAMED defendant.
2. It is asserted in the answer
3. doesn't have to be answered unless an answer is expressly demanded.*

*All other pleadings containing claims (complaint, counter claim, or impleader) must be answered and are admitted if not denied.

Front 6

Jury Trials

Back 6

1. No jury for equitable claims
2. Civil jury is six people, verdict requires five out of six
3. If a NY plaintiff joins a related equitable claim with a legal claim and both claims arose out of the same transaction, he waives the right to a jury trial
4. Defendant can demand a jury trial on the legal claim within 15 day of the notice of service of notice of issue

Front 7

Impleader
(Definition)

Back 7

1. Plaintiff can chose Defendants, but once answer is served, D can implead other defendants.
2. Within 20 days of receiving 3rd party answer, plaintiff can add new defendant to original complaint

Front 8

Contribution and Indemnification
(Definition)

Back 8

1. Indemnification is the right of one party to shift the ENTIRE loss to another.
2. Contribution (CPLR 1401) is an equitable remedy that apportions tort damages among several tortfeasors by requiring each member to pay his share.

Front 9

When can Contribution or Indemnification be asserted?

Back 9

1 - in a cross claim by one co-Defendant against another in a pending lawsuit
2 - by impleadign the active tortfeasor into the lawsuit
3 - in a separate subsequent action

Front 10

Joint and Several Liability

Back 10

1. At common law (MBE) each tortfeasor is fully jointly liable for 100% of Plaintiffs
2. (NY) continues to follow common law joint and several for out of pocket economic losses, but whenever a joint tortfeasor is found by the jury to be 50% or less at fault, then that defendant is only SEVERABLY liable for non-economic injuries.

Front 11

NJ Rule on Joint and Several Liability

Back 11

NJ - less than 60% at fault is severable for economic AND non economic

Front 12

A NY injured Plaintiff continues to common law joint and several liability for certain tort cases (Mnemonic).

Back 12

(IM RAW). But the NY Plaintiff has the burden of pleading this in her complaint and proving IM RAW at the trial.

Front 13

I in IM RAW

Back 13

I - claims of INTENTIONAL tortious conduct

Front 14

M in IM RAW

Back 14

M - Co-defendant who is MORE than 50% responsible for Plaintiffs injuries

Front 15

R in IM RAW

Back 15

R - RECKLESSLY causes injury

Front 16

A in IM RAW

Back 16

A - AUTOMOBILE, motorcycle, or other vehicle was used.

*ONLY fire trucks get the benefit of 1601 joint and several liability

Front 17

W in IM RAW

Back 17

W - WORKERS comp for a grave injury where 3rd party impleads employer, 3rd party is jointly liable because worker cannot recover from employer under the workers comp statute.

Front 18

Driver of an emergency vehicle involved in an emergency

Back 18

Plaintiff has to prove reckless driving which is:
1. speeding
2. Improperly going down a 1 way street.
3. Stopping or parking on the highway
4. Passing a red light or stop sign, but only after slowing down.

Ordinary negligence if:
a. Emergency had ended
b. Emergency driver is the Plaintiff
c. The accident occurred other than (1-4 above)

Front 19

RELEASE

Back 19

1. (NY) releasing a co-defendant reduces recovery by the greater of:
a. amount paid for release
b. the party's share as assessed by the jury

2. At common law, releasing one defendant released all others. The party who paid for release could sue the other for contribution.

Front 20

Collateral Source Rule and
CPLR 4545 anti "double dipping"

Back 20

1. At common law, recovery could not be reduced due to receipt of "collateral" income such as insurance.
2. (NY) CPLR 4545 has abolishes this rule for personal injury and wrongful death (economic loss award is reduced by the court using clear and convincing standard for sources)

Front 21

RULE 4545 does not apply to

Back 21

1. Life insurance or pension payments because they are not to replace salary.
2. payments collaterally received that result in statutory liens on the jury’s award.*
1 - medicare payments
2 - medicaid
3 - social security
4 - workers comp payments
*all have to be paid back by plaintiff