Article 30. Remedies and Pleading

REMEDIES AND PLEADING

The Sections of Article 30 of the CPLR.:

Article 30-remedies pleadings new york

NY CPLR § 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 justifiable 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.  A party who has brought a claim for personal injury or wrongful death against another party may maintain a declaratory judgment action directly against the insurer of such other party, as provided in paragraph six of subsection (a) of section three thousand four hundred twenty of the insurance law 

NY CPLR § 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.

NY CPLR § 3003. ACTIONS 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.

NY CPLR § 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.

NY CPLR § 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.

NY CPLR § 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.

NY CPLR § 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.

NY CPLR § 3012-a. CERTIFICATE OF MERIT IN MEDICAL, DENTAL AND PEDIATRIC 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.

NY CPLR § 3012-b. CERTIFICATE OF MERIT IN CERTAIN RESIDENTIAL FORECLOSURE ACTIONS

(a) In any residential foreclosure action involving a home loan, as such term is defined in section thirteen hundred four of the real property actions and proceedings law , in which the defendant is a resident of the property which is subject to foreclosure, the complaint shall be accompanied by a certificate, signed by the attorney for the plaintiff, certifying that the attorney has reviewed the facts of the case and that, based on consultation with representatives of the plaintiff identified in the certificate and the attorney’s review of pertinent documents, including the mortgage, security agreement and note or bond underlying the mortgage executed by defendant and all instruments of assignment, if any, and any other instrument of indebtedness including any modification, extension, and consolidation, to the best of such attorney’s knowledge, information and belief there is a reasonable basis for the commencement of such action and that the plaintiff is currently the creditor entitled to enforce rights under such documents.  If not attached to the summons and complaint in the action, a copy of the mortgage, security agreement and note or bond underlying the mortgage executed by defendant and all instruments of assignment, if any, and any other instrument of indebtedness including any modification, extension, and consolidation shall be attached to the certificate.

(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 documents required under subdivision (a) are not attached to the summons and complaint or to the certificate, the attorney for the plaintiff shall attach to the certificate supplemental affidavits by such attorney or representative of plaintiff attesting that such documents are lost whether by destruction, theft or otherwise.  Nothing herein shall replace or abrogate plaintiff’s obligations as set forth in the New York uniform commercial code.

(d) The provisions of subdivision (d) of rule 3015 of this article shall not be applicable to a defendant who is not represented by an attorney.

(e) If a plaintiff willfully fails to provide copies of the papers and documents as required by subdivision (a) of this section and the court finds, upon the motion of any party or on its own motion on notice to the parties, that such papers and documents ought to have been provided, the court may dismiss the complaint or make such final or conditional order with regard to such failure as is just including but not limited to denial of the accrual of any interest, costs, attorneys’ fees and other fees, relating to the underlying mortgage debt.  Any such dismissal shall be without prejudice and shall not be on the merits.

NY CPLR § 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.

NY CPLR RULE 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.

NY CPLR RULE RULE 3015. PARTICULARITY AS TO SPECIFIC ACTIONS

(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 was duly licensed at the time of services rendered and shall contain the name and number, if any, of such license and the governmental agency which issued such license.  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.

NY CPLR RULE 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.

(i) Privacy of name in certain legal challenges to college/university disciplinary findings.  In any proceeding brought against a college or university that is chartered by the regents or incorporated by special act of the legislature, which proceeding seeks to vacate or modify a finding that a student was responsible for a violation of college or university rules regarding a violation covered by article one hundred twenty-nine-B of the education law, the name and identifying biographical information of any student shall be presumptively confidential and shall not be included in the pleadings and other papers from such proceeding absent a waiver or cause shown as determined by the court.  Such witnesses shall be identified only as numbered witnesses.  If such a name or identifying biographical information appears in a pleading or paper filed in such a proceeding, the court, absent such a waiver or cause shown, shall direct the clerk of the court to redact such name and identifying biographical information and so advise the parties.

NY CPLR § 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) Personal injury or wrongful death actions.  In an action to recover damages for personal injuries or wrongful death, 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 to recover damages for personal injuries or wrongful death is brought, 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.

NY CPLR § 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.

NY CPLR § 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.

NY CPLR § 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. 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.

NY CPLR RULE 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.

NY CPLR RULE 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.

NY CPLR RULE 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.

NY CPLR RULE 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.

NY CPLR RULE 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 or her 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.  Any motion to amend or supplement pleadings shall be accompanied by the proposed amended or supplemental pleading clearly showing the changes or additions to be made to the pleading.

(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.

NY CPLR § 3026. CONSTRUCTION

Pleadings shall be liberally construed.  Defects shall be ignored if a substantial right of a party is not prejudiced.

NY CPLR § 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.

NY CPLR RULE 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.

NY CPLR § 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.

NY CPLR RULE 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.

NY CPLR § 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.

NY CPLR RULE 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.

NY CPLR § 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.

NY CPLR § 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.”

NY CPLR RULE 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.

NY CPLR RULE 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.

NY CPLR § 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.

NY CPLR § 3045. ARBITRATION OF DAMAGES IN MEDICAL, DENTAL OR PEDIATRIC 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.