NYP 5.txt

• Serve an ANSWER, or
• Pre-answer MOTION to DISMISS

• DENIALS (failure to deny any allegation is an implied admission)
• AFFIRMATIVE DEFENSES (affirmative defenses not raised in Answer are waived)
• REPLY (π's pleading in response to a counterclaim, consisting of denials and affirmative defenses)
• COUNTER CLAIMS against π
• CROSS-CLAIMS against other ∆s

***Parties must serve copies of their pleadings on ALL other parties who have appeared in the action

INTERLOCUTORY PAPERS are all litigation papers other than π's initial service of process

• Papers must be served on ALL parties in the action.
• SERVICE may occur by–

• a) regular mail***
• b) personal delivery
• c) facsimile
• d) overnight courier

****Service is complete when MAILED (not on receipt) provided that mailing occurs through a post office or depository under the exclusive care and custody of the USPS within New York State

30 days after service is complete.

20 days after sending back acknowledgment

20 days from date of service

Even if all allegations are deemed true, the substantive law does not recognize a cause of action.

• Standards:
• (1) π is entitled to every favorable inference that can be drawn from complaint
• allegations;
• (2) The motion should be denied if there is any basis for relief under substantive law.

[DOWNFALL]

• D: Documentary evidence
• O: Other action or pleading
• W: Want of capacity of the π (e.g., π is infant suing w/o proper representative)
• N: Non-joinder of necessary party
• F: Failure to state cause of action (NB, state elements of underlying claim)
• A: Affirmative defenses
• L: Lack of basis of jurisdiction (personal, in rem, quasi in rem)
• L: Lack of subject matter jurisdiction (can be raised anytime)

[SPARE RIBS]

• S: Statute of limitations
• P: Payment
• A: Arbitration and award
• R: Res judicata (claim preclusion)
• E: Estoppel (collateral estoppel—i.e., issue preclusion)
• R: Release
• I: Infancy of ∆
• B: Bankruptcy discharge
• S: Statute of frauds

• 1) Made BEFORE service of the answer
• 2) Must file Answer within 10 DAYS if motion is denied
• 3) EXCEPT for Lack of Personal Jurisdiction (LOPJ), failure to waive an affirmative defense in PAMTD does not bar ∆ from raising it in the Answer

Must make a follow-up motion for SUMMARY JUDGMENT on improper service grounds within 60 DAYS of serving the Answer.

• ∆ can (1) avoid default; and (2) force π to serve the complaint by serving–
• 1) Notice of APPEARANCE, and
• 2) DEMAND for complaint

***No waiver of jurisdictional objections occurs by service of a demand for the complaint or a notice of appearance

∆ must serve demand or notice of appearance within

• 1) 20 DAYS of personally served in NY
• 2) 20 DAYS if served by First Class Mail with Acknowledgement
• 3) 30 DAYS in all other cases

• 1) 20 DAYS from ∆'s service
• 2) ∆ has 20 DAYS to (i) serve an Answer, or (ii) make a PAMTD
• 3) ∆ can move to dismiss based on π's noncompliance (though π can defend by showing BOTH (i) reasonable excuse for delay, and (ii) affidavit of merit of π's claim)

• AS OF RIGHT: ONCE within 20 DAYS of when ∆ serves Answer
• ON MOTION: if opponent (i.e., ∆) has suffered NO incurable prejudice (e.g., loss of evidence, death of witnesses, running of S/L)