Pleadings

• Author: Michael H. Barr/Burton N. Lipshie/Sharon Stern Gerstman
• Pages: 555-652

Chapter 15

PLeadings

QUICK VIEW

Definitions: A pleading is a court-filed paper in which a party states its claims or defenses. Most pleadings are

the first papers the party has filed in the case. For example, the complaint is plaintiff’s initial statement of facts

and legal theories supporting its claims against defendant. The answer is the paper in which defendant initially

states the facts and theories supporting its defenses to plaintiff’s claims. However, pleadings also include subse-

quently filed papers (e.g., cross-claims, counterclaims, and third-party claims).

Scope of chapter: Drafting requirements and techniques. Claims requiring particularity. Verifications and

demands for relief. Rules and strategies for complaints (including joinder of claims), answers, motions, counter-

claims, cross-claims. Supplemental and amended pleadings. Bills of particulars.

Strategies and Tactics:

All pleadings: Use pleadings to advantageously frame the issues that will be the subject of discovery, dispositive

motion practice (e.g., summary judgment), and trial.

Complaint: Decide how much plaintiff should reveal in the complaint. Draft the complaint to withstand all dis-

positive motions (e.g., for summary judgment). Consider the complaint’s effect on settlement and on the judge’s

opinion of the case and counsel.

Response: Before responding, consider the case’s merit, settlement, and the cost of defending. Consider pre-

answer motions: Is the complaint defective and, if so, are the defects curable? When drafting the answer,

remember it can be used as evidence against your client. Also remember that certain defenses are waived if not

asserted in the answer (or prior motion). Consider cross-claims, counterclaims, and third-party claims.

Statutes and Rules: CPLR 3002, 3003 (inconsistent actions allowed), CPLR 3011-3014 (pleadings generally),

CPLR 3015, 3016 (particularity in pleading), CPLR 3017 (demand for relief), CPLR 3018 (responsive plead-

ings), CPLR 3019 (counterclaims and cross-claims), CPLR 3020, 3021-3023 (verifications), 3026 (liberal con-

struction of pleadings), CPLR 3025 (amended and supplemental pleadings).

Related Topics: Presuit Activities, Ch 2; Statutes of Limitations, Ch 3; Subject Matter Jurisdiction, Ch 6;

Personal Jurisdiction, Ch 7; Venue and Removal, Ch 8; Summons, Service of Process, and Appearance, Ch 9;

Parties, Ch 14; Motions to Dismiss, Ch 36; Expedited Judgment, Ch 38; Simplified Procedure, Ch 41; Special

Proceedings, Ch 42.

Forms: See digital access for the following forms:

• Form 15:10, Caption (Pleading).

• Form 15:20, Attorney Verification (Affirmation).

• Form 15:30, Attorney Verification (Affidavit).

New York Civil PraCtiCe Before trial 15-2

• Form 15:40, Client Verification (Corporate Officer).

• Form 15:50, Client Verification (Individual).

• Form 15:60, Complaint (Declaratory Judgment Action).

• Form 15:70, Answer With Counterclaim.

• Form 15:80, Answer With Cross-claim.

• Form 15:90, Stipulation to Extend Time to Respond to Complaint.

• Form 15:100, Reply to Cross-Claim.

• Form 15:110, Stipulation to Amend Complaint.

• Form 15:120, Notice of Motion to Serve Amended Complaint.

• Form 15:130, Stipulation to Withdraw Defense.

• Form 16:70, Affidavit of Service.

TABLE OF CONTENTS

I. All Pleadings

A. Basic Points

§15:01 “Pleading” Defined

§15:02 Types Allowed

§15:03 Liberal Construction

B. Purposes

§15:10 Basic Points

§15:11 Frame Scope of Litigation

§15:12 Toll Statutes of Limitations

C. Format (for ALL Court Papers)

§15:20 Type of Paper and Printing

§15:21 Copies or Originals

§15:22 Caption

§15:23 Plain English

§15:24 Indorsement and Signature

§15:25 Format Violations

D. Drafting Rules and Techniques

§15:30 “Sufficiently Particular” Requirement

§15:31 No Argument

§15:32 Plain and Concise Statements

§15:33 New Paragraph for Each Allegation

§15:34 Multiple Claims or Defenses

§15:35 Incorporating by Reference

§15:36 Alternative Pleading

§15:37 On Information & Belief

§15:38 Attached Documents

E. Verification

1. BASIC POINTS

§15:50 Purpose and Nature

§15:51 Personal Knowledge of Allegations

§15:52 Advantages

§15:53 Disadvantages

15-3 PleadiNgs

2. WHEN REQUIRED

a. Basic Points

§15:60 Optional Unless Specifically Required

§15:61 Complaints or Petitions

§15:62 Answers

§15:63 Defenses Not Involving Merits

§15:64 If Prior Pleading Verified

b. Exceptions

§15:70 Infant’s Answer

§15:71 Privileged Matter

3. BY WHOM

a. Requirements and Exceptions

§15:80 General Requirement

§15:81 Parties “United in Interest”

§15:82 Corporations

§15:83 Other Private Entities

§15:84 Governmental Entities

b. Agent or Attorney

§15:90 Party “Not in County”

§15:91 Foreign Corporation

§15:92 Debt Instrument Involved

§15:93 Attorney Personally Knows Facts

4. FORM AND CONTENT

§15:100 By ‘Blueback’ or Separate Affidavit

§15:101 Party Verifies

§15:102 Non-Party Verifies

§15:103 Attorney Verifies

§15:104 Originals vs. Copies

5. DEFECTIVE OR MISSING VERIFICATION

a. Basic Points

§15:110 Defects Void Verification

§15:111 Dismissal Possible, but Unlikely, Unless...

§15:112 Often Ignored by Courts

§15:113 Verification Missing

b. How to Respond

i. Defendants

§15:120 Ignore Defect or Failure

§15:121 Move to Dismiss (Rarely Successful)

§15:122 Ignore Complaint (Risky Option)

§15:123 Answer Without Verifying

ii. Plaintiffs

§15:130 Request Default Judgment (Rarely Granted)

iii. Treat Pleading as Nullity

§15:140 Notice Required

§15:141 Due Diligence

§15:142 Form of Notice

§15:143 Response