Thought Leadership

Key Points:

• What initial steps should be taken when preparing an answer in New York?
• What issues must be evaluated when preparing the answer?

This article will address the issues that should be evaluated when preparing an answer. It pertains to answers in New York State courts and, to a limited extent, answers in federal court in the Eastern and Southern Districts of New York.

When a case is first assigned, defense counsel is provided with the initial pleadings, generally the summons and complaint. These are often the only documents provided by our clients. Under New York’s Civil Practice Law and Rules (CPLR), litigation is commenced by the filing with the court of a summons and complaint (or summons with notice or endorsed complaint). The filing stops the running of the statute of limitations and is the official commencement of the litigation. Service of process on the defendant must be properly effectuated within 120 days of commencement of the action. (CPLR §306(b).)

The first issue that an attorney should address is the practical one: when is the answer due? CPLR §320 prescribes the time periods for when a responsive pleading must be served. This is generally 20 or 30 days from completion of service (20 days when service is by personal delivery to the defendant within New York State, 30 days all other times). Service is not always complete when the papers are delivered by the process server. This is especially so when service is effectuated through substituted service (leaving the summons and complaint with someone of suitable age and discretion with follow-up mailing CPLR §308). In such a situation, service is complete ten days after the filing of the proof of service (the summons and complaint together with an affidavit of service is known as “proof of service”) with the court. The time periods for other methods of service are provided for in CPLR Article 3 and, in the interest of brevity, will not be discussed here.

Unfortunately, clients are not always the best judge of when service was actually effectuated upon them. Therefore, it is recommended that one obtain an affidavit of service from the plaintiff’s counsel or from the documents filed with the court’s e-filing website.

Once the due date of the responsive pleading is established, one must next determine if an extension of time to respond will be required. This additional time is not always required because the attorney is unable to find the time to prepare the answer but, rather, because the attorney is experiencing difficulty making formal contact with the client for whom they will be entering an appearance in the case. Although New York is a “notice pleading” state, where specific detailed facts are not required in an answer, an answer (or other appearance) should never be filed on behalf of a client (or business entity) without obtaining their consent to your representation of them. This first contact is the initiation of the attorney-client relationship. In addition, during this initial client contact, the basic facts about the case and corporate structure, which are necessary to formulate responses to the averments in the complaint, can be obtained. Other issues, such as the proper corporate or business entity name, proper venue, jurisdiction and potential affirmative defenses, should be discussed during this initial attorney-client conference. These issues will be discussed below.

Once the question of “when” the responsive pleading is due has been determined, one must then focus on how to respond. If the case is such where a motion to dismiss pursuant to CPLR §3211 is appropriate, then a motion in lieu of answering should be considered after consulting with the claims professional.

The attorney must also determine if an answer will be served. If the action was commenced by the filing of a summons with notice, then an answer is not the proper response. Rather, pursuant to CPLR §3012(b), a defendant must serve a notice of appearance and demand for the complaint. The plaintiffs will thereafter have 20 days to serve the complaint. The complaint in this instance will properly be served by sending it via mail to the attorneys who have entered an appearance on behalf of the party. There will be no need for service of the complaint upon the client through typical service of process methods. (Service of interlocutory papers – CPLR §2103(b).) The answer is thereafter due 20 days from receipt of the complaint (CPLR §3012).

When litigation is commenced by either the filing of a summons and complaint or a summons and endorsed complaint, an answer is then to be served. A summons and endorsed complaint is generally responded to with a general denial answer, which must include the required affirmative defenses.

Also to be addressed are jurisdiction and venue. The attorney will need to evaluate whether the court has both subject matter jurisdiction over the case and whether the court has obtained in personam jurisdiction over the defendant.

Most cases pending in the Supreme Court of the State of New York have subject matter jurisdiction as the Supreme Court is a court of “general jurisdiction.” However, cases that are worth less than $25,000 should be transferred to the Civil Court of the State of New York pursuant to CPLR §325(d). If at any time it appears that a case is worth less than $25,000, a motion can be made pursuant to CPLR §325(d) to have the case transferred to the lower court. Such can also be done sua sponte by the court. However, when a case is transferred pursuant to 325(d), the plaintiff will not be limited to relief within the jurisdictional limits of the lower court.

In addition, when evaluating subject matter jurisdiction, the attorney should also consider the possibility of removal of the case to federal court. Generally, such is done when the federal court has subject matter jurisdiction based upon (complete) diversity of citizenship of the parties and the amount in controversy exceeds $75,000. In addition, subject matter jurisdiction in the federal court can be obtained when the case involves a federal question, such as violation of a civil right or other federal law. If such is the case, a notice of removal must be timely served and filed in conjunction with the federal court answer. (28 U.S.C. §1446.) Timing of removal is critical and should, therefore, be evaluated as soon as the matter is assigned to counsel.

Personal jurisdiction over the individual defendant will be based upon either their “presence” in the state of New York (CPLR §301) or their activity, which falls under one of the provisions provided for in New York’s long-arm statute. (CPLR §302.) The second part of personal jurisdiction is dependent upon the proper service of the summons and complaint pursuant to CPLR Article 3.

Venue is generally more clear cut. Pursuant to CPLR Article 5, venue in transitory actions (most personal injury cases, including automobile cases) is properly placed in the county of residence of any party. (CPLR §503.) Residence is determined at the commencement of the litigation, and a party may be deemed to have more that one county for residence purposes. Interestingly, the CPLR does not provide for venue to be determined by the county of the site of the accident, as provided for in other states such as New Jersey. The upper right-hand corner of the summons generally sets forth the basis for the plaintiff’s choice of venue. If venue is improperly chosen by the plaintiff, a demand for change of venue must be served with the defendant’s answer. The plaintiff will thereafter have 10 days to consent to the change to a proper venue or provide an affidavit as to why their initial choice of venue was proper. If the plaintiff does neither, the defendants have five days to serve a motion seeking a change of venue. (CPLR Article 5.) These time requirements are strictly enforced, and if they are not complied with, objection to venue can be deemed waived. Therefore, defense counsel should be familiar with the requirements and time provisions set forth in Article 5 of the CPLR.

The next issue one should address is to make sure that one is appearing in the correct name of the client. Such is straightforward when you are appearing for an individual. Simply make sure that you have the proper spelling of their name when discussing the case with them during your initial conference. Oftentimes, plaintiffs misspell the defendants’ names when preparing initial pleadings. It is even more common that errors are made by plaintiffs’ counsel when naming corporate entities. It is common for plaintiffs to erroneously name a non-corporate or business entity by referring to a d/b/a, such as a hotel name or store name. A formal appearance, such as an answer to a complaint, should only be entered on behalf of an actual legal entity. It is extremely important that an answer only be served on behalf of and in the name of an actual business entity, or an individual. The client is usually the best source of information as to the formal corporate or business name. However, the New York Secretary of State (and most other states) have websites that are very useful for ascertaining official corporate/partnership/LLC names (www.dos.ny.gov/).

Once the aforementioned issues have all been addressed, it is finally time to evaluate the substantive allegations contained within the complaint. CPLR §3018 formally provides for three options for responding to allegations in a complaint. These are admit, deny, or deny knowledge or information as to the facts set forth in the complaint. However, by practice, additional responses have been extended to include a denial in the form alleged, which has the effect of a denial, but is generally used when the allegation is improperly worded, contains compound allegations or refers to more than one defendant. Another often used response is to “deny in the form alleged and refer all questions of law to the court.” This, too, has the effect of a denial. It is often used as a response to allegations in the plaintiff’s complaint in which it is alleged that the defendants had a “duty” to do a certain thing. Finally, the “deny in the form alleged but admit portions of the allegations in a specific paragraph of the complaint” is an option. This response is not used as often as it should be. It provides for a defendant to deny portions of an allegation while admitting other portions. Such a response is required in federal court answers. (FRCP 8.) A failure to respond to a specific numbered paragraph or allegation within a plaintiff’s complaint will be deemed an admission. Therefore, the attorney should be sure to do a count of all of the paragraph numbers in the answer to confirm that all allegations have been properly answered. It is suggested that, even if defense counsel intends to admit an allegation in the complaint, such not be left out of the answer. A formal admission should be included with the answer to avoid an inadvertent admission.

Once all of the allegations have been responded to, the attorney must next address the proper affirmative defenses to be included in the answer. CPLR §3018 provides for certain affirmative defenses that must be asserted in the answer or they will be deemed waived. However, there are usually additional affirmative defenses a defendant will assert in an answer. Generally, the rule is that the answer should contain any affirmative defenses to put the plaintiff “on notice” of a reason why the defendant will be claiming that they are not liable or responsible to the plaintiff. (CPLR §3018.)

A defendant in a civil action is also entitled to include in its answer a counterclaim against one or more plaintiffs. This is in essence a separate lawsuit brought by the defendant against the plaintiff seeking affirmative relief. It is generally related to the facts of the original action, but such is not a requirement. An answer to a counterclaim is required and is called a reply to counterclaim. (CPLR §§3011 and 3019.)

The answer may also contain cross-claims against co-defendants. These cross-claims are generally for contractual/common law indemnification or for contribution, but they are not limited to such. An answer to a cross-claim is not required in New York unless the cross-claim specifically demands an answer thereto. (CPLR §3011.) Good practice also suggests that an answer to cross-claims, whether required or not, should include appropriate affirmative defenses because it is a formal responsive pleading, subject to the requirements of CPLR §3018. (Siegel, New York Practice §223, 5^th Edition.) In federal court, a party must serve an answer to a cross-claim within 21 days after being served with the pleading that includes the counterclaim or cross-claim. (FRCP 12.)

Finally, the defense attorney needs to evaluate if a verification is required and by whom such should be signed. A verification is a statement under oath that certifies the truth of the allegations contained in the pleadings. The rules as to verification of pleadings are found in CPLR §§3020-3023. Once a pleading is verified, all pleadings thereafter must be verified. If the complaint is not verified, it is still a good idea to file a verified answer as it will require that the plaintiff serve a verification to their bill of particulars, and that any subsequent amended pleadings be verified. Generally, the verification is signed by the attorney preparing the answer, unless the client resides or has offices in the same county where the attorney has his or her office. If such is the case, then the client or authorized representative/officer of the business entity must execute the verification. Verifications are not used in federal court pleading practice. Answers in federal court are not verified. It should be noted that in federal court answers, each paragraph is answered separately and that responses are not grouped together. Generally, a demand for trial by jury must be included in the federal court answer. If a plaintiff has not demanded a trial by jury and the defendant fails to do so, the court may deem that a trial by jury has been waived by the parties.

It is hoped that this article has addressed the basic issues that should be evaluated when preparing an answer in New York State practice.