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Administrative Rules of the Unified Court System & Uniform Rules of the Trial Courts


Uniform Rules for N.Y.S. Trial Courts


PART 212. Uniform Civil Rules For The District Courts
 

212.1 Application of Part; waiver; addtl. rules; appl. of UDCA;
212.2 Divisions of court; terms and structure
212.3 Parts of court; structure
212.4 Papers filed in court; index number; form; label
212.5 Submission of papers to judge
212.6 Summons
212.7 Pleadings
212.8 [Reserved]
212.9 Venue
212.10 Calendaring of motions; uniform notice of motion form
212.11 Motion parts; motion calendars; motion procedure
212.12 Videotape recording of depositions
212.13 Exchange of med reports in personal injury & wrongful death
212.14 Calendar default; restoration; dismissal
212.14-a Proof of Default Judgment in Consumer Credit Matters
212.14-b Additional Mailing of Notice on an Action Arising from a Consumer Credit Transaction
212.15 Transfer of actions
212.16 Discontinuance of actions
212.17 Notice of trial where all parties appear by attorney
212.18 Calendars of triable actions
212.19 Notice of calendars
212.20 Special preferences
212.21 Objections to applications for special preference
212.22 Pretrial and prearbitration conference calendars
212.23 Call of reserve, ready and general calendars
212.24 Day certain for trial
212.25 Engagement of counsel
212.26 [Reserved]
212.27 Submission of papers for trial
212.28 Absence of attorney during trial
212.29 to 212.30 [Reserved]
212.31 Restoration after jury disagreement, mistrial or order . . .
212.32 Damages, inquest after default; proof
212.33 Submission of orders, judgments & decrees for signature
212.34 Absence or disqualification of assigned judge
212.35 [Reserved]
212.36 Infants' and incapacitated persons' claims & proceedings
212.37 Executions
212.38 Appeals
212.39 Procedure. for the enforcement of money judgments . . .
212.40 Arbitration
212.41 Small claims procedure
212.41-a Commercial claims procedure
212.42 Proceedings under article 7 of the Real Property Actions . . .
212.43 Powers of clerks
212.415 [Renumbered]

Section 212.1 Application of Part; waiver; additional rules; application of UDCA; definitions.

(a) Application. This Part shall be applicable to all actions and proceedings in the District Courts of the State of New York.

(b) Waiver. For good cause shown, and in the interests of justice, the court in an action or proceeding may waive compliance with any of the rules in this Part, other than sections 212.2 and 212.3, unless prohibited from doing so by statute or by a rule of the Chief Judge.

(c) Additional Rules. Additional local court rules, not inconsistent with law or with these rules, shall comply with Part 9 of the Rules of the Chief Judge (22 NYCRR Part 9).

(d) Application of the Uniform District Court Act. The provisions of this Part shall be construed as consistent with the Uniform District Court Act (UDCA), and matters not covered by these provisions shall be governed by the UDCA.

(e) Definitions.

(1) "Chief Administrator of the Courts" in this Part includes a designee of the Chief Administrator.

(2) Unless otherwise defined in this Part, or the context otherwise requires, all terms used in this Part shall have the same meaning as they have in the UDCA and the CPLR.

Historical Note
Sec. filed Jan. 9, 1986 eff. Jan. 6, 1986.

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Section 212.2 Divisions of court; terms and structure.

(a) Divisions of the courts shall be designated as follows:

(1) Suffolk County District Court:

(i) The District Courts of Suffolk County, first district -- Towns of Babylon, Huntington, Smith Town, Islip and Brookhaven.

(ii) The District Court of Suffolk County, second district -- Town of Babylon.

(iii) The District Court of Suffolk County, third district -- Town of Huntington.

(iv) The District Court of Suffolk County, fourth district -- Town of Smithtown.

(v) The District Court of Suffolk County, fifth district -- Town of Islip.

(vi) The District Court of Suffolk County, sixth district -- Town of Brookhaven.

(2) Nassau County District Court:

(i) The District Court of Nassau County, first district -- Towns of Hempstead, North Hempstead and Oyster Bay, Cities of Long Beach and Glen Cove.

(ii) The District Court of Nassau County, second district -- Town of Hempstead and City of Long Beach.

(iii) The District Court of Nassau County, third district -- Town of North Hempstead.

(iv) The District Court of Nassau County, fourth district -- Town of Oyster Bay and City of Glen Cove.

(b) In each division there shall be held such terms as the Chief Administrator of the Courts shall designate. A term of court is a four-week session of court, and there shall be 13 terms of court in a year, unless otherwise provided in the annual schedule of terms established by the Chief Administrator, which shall also specify the dates of such terms.

Historical Note
Sec. filed Jan. 9, 1986 eff. Jan. 6, 1986.

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Section 212.3 Parts of court; structure.

(a) General. A part of court is a designated unit of the court in which specified business of the court is to be conducted by a judge or quasi- judicial officer.

(b) Number and Types. In each division there shall be such number of calendar parts, trial parts, motion parts, conference parts, multipurpose parts, and other special parts of court, and any combination thereof, as may be established from time to time by the Chief Administrator of the Courts. There shall also be one or more small claims parts in each division for the hearing and disposition of all small claims proceedings, as the Chief Administrator may establish.

(1) Calendar Part. A calendar part is a part of court for the maintaining and calling of a calendar of cases, and for the hearing and disposition of all motions and applications, including orders to show cause and applications for adjournments, in civil actions that have been placed on a reserve or ready calendar but not yet assigned to a trial part.

(2) Trial Part. A trial part is a part of court for the trial of civil actions and for the hearing and determination of all motions and applications, including orders to show cause, made after an action is assigned to a trial part.

(3) Motion Part. A motion part is a part of court for the hearing and determination of motions and applications that are not otherwise required by this Part to be made in a calendar part, trial part or conference part.

(4) Conference Part. A conference part is a part of court for the precalendar or pretrial conference of actions as may be provided by this Part or by order of the Chief Administrator.

(5) Multipurpose Part. A multipurpose part is a part of court for the performance of the functions of a calendar part, a trial part, a motion part, a conference part, as well as other special parts of court, or any combination thereof.

(6) Additional Parts. Additional parts, including parts with special or limited functions, may be established from time to time by order of the Chief Administrator for such purposes as may be assigned by the Chief Administrator.

(7) Transfer of Actions. By order of the Chief Administrator, proceedings and matters may be transferred, as the Chief Administrator deems necessary, from one part of court to another in the same division, regardless of the denomination of the parts.

Historical Note
Sec. filed Jan. 9, 1986 eff. Jan. 6, 1986.

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Section 212.4 Papers filed in court; index number; form; label.

The party causing the first paper to be filed shall obtain an index number and communicate it forthwith to all other parties to the action. Thereafter such number shall appear on the outside cover and first page, to the right of the caption, of every paper tendered for filing in the action. Each such cover and first page also shall contain an indication of the county of venue and a brief description of the nature of the paper. In addition to complying with the provisions of CPLR 2101, every paper filed in court shall have annexed thereto appropriate proof of service on all parties where required, and every paper, other than an exhibit or printed form, shall contain writing on one side only and, if typewritten, shall have at least a double space between each line, except for quotations and the names and addresses of attorneys appearing in the action, and shall have at least one-inch margins.

Historical Note
Sec. filed Jan. 9, 1986 eff. Jan. 6, 1986.

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Section 212.5 Submission of papers to judge.

All papers for signature or consideration of the court shall be presented to the clerk of the trial court in the appropriate courtroom or at the clerk's office, except that where the clerk is unavailable or the judge so directs, papers may be submitted to the judge and a copy filed with the clerk at the first available opportunity. All papers for any judge that are filed in the clerk's office shall be promptly delivered to the judge by the clerk. The papers shall be clearly addressed to the judge for whom they are intended and prominently show the nature of the papers, the title and index number of the action in which they are filed, and the name of the attorney or party submitting them.

Historical Note
Sec. filed Jan. 9, 1986 eff. Jan. 6, 1986.

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Section 212.6 Summons.

(a) The summons shall state the district and location of the court in which the action is brought, as well as the names of the parties, and shall comply with all the provisions of the UDCA applicable to summonses.

(b) Where an action is brought in any district where there are subdivisions designated as parts for a particular location, there shall also be set forth in the caption of the summons the name of the part, as, for example, "Third District, Great Neck Part."

(c) The following form shall be used in a case in which:

(1) the cause of action is for money only;

(2) the summons is served by personal delivery to the defendant within Nassau or Suffolk County; and

(3) a formal complaint is not served therewith:

DISCTRICT COURT OF THE CITY OF ___________________
_____________________ District Index No. ______
___________________________  
 
  )  
Plaintiff,
)
SUMMONS
  )
Plaintiff's Residence
-against-
)
Address:
  )  
  ) The basis of the venue
Defendant,
)
designated is:
  )  
______________________________________  
To the above named defendant:  

YOU ARE HEREBY SUMMONED and required to appear in the District Court of the COUNTY OF..... District, at the office of the Clerk of the said Court at ..... in the County of ....., State of New York, either (i) by serving an answer [FNa1] within 20 days after service of this summons upon you, exclusive of the day of service, upon plaintiff's attorney, at the address stated below, or if there is no attorney, upon the plaintiff at the address stated above, or (ii) by appearing at the clerk's office within 20 days after service of this summons upon you, exclusive of the day of service, by having the clerk of the court endorse your answer upon this summons; upon your failure to answer, judgment will be taken against you for the sum of $..... with interest thereon from the ..... day of ....., 19....., together with the costs of this action.

Dated: the ____ day of ____, 19____

  __________________
Statement of the nature and Attorney(s) for Plaintiff
substance of plaintiff's Post-Office Address
cause of action: Telephone Number
__________________  

[FNa1] You need not physically go to court to serve an answer under option (i). However, you are required to file a copy of your answer together with proof of service with the clerk of the district in which the action is brought within 10 days after service of the answer.

(d) In a case in which a formal complaint is annexed to the summons, the following form of summons shall be used:

DISCTRICT COURT OF THE CITY OF ___________________
_____________________ District Index No. ______
___________________________  
 
  )  
Plaintiff,
)
SUMMONS
  )
Plaintiff's Residence
-against-
)
Address:
  )  
  ) The basis of the venue
Defendant,
)
designated is:
  )  
______________________________________  
To the above named defendant:  

YOU ARE HEREBY SUMMONED and required to appear in the District Court of the COUNTY OF_____, _____ District, at the office of the Clerk of the said Court at _____ in the County of _____, State of New York, by serving an answer to the annexed complaint upon plaintiff's attorney, at the address stated below, or if there is no attorney, upon the plaintiff, at the address stated above, within the time provided by law as noted below; upon your failure to answer, judgment will be taken against you for the relief demanded in the complaint, together with the costs of this action.

Dated: the ____ day of ____, 19____

  __________________
  Attorney(s) for Plaintiff
  Post-Office Address
  Telephone Number
   

NOTE: The law or rules of court provide that:

(a) if this summons is served by its delivery to you, or (for a corporation) an agent authorized to receive service, personally within the County of..... you must answer within 20 days after such service; or

(b) if this summons is served otherwise than as designated in subdivision (a) above, you are allowed 30 days to answer after the proof of service is filed with the Clerk of this Court.

(c) You are required to file a copy of your answer together with proof of service with the clerk of the district in which the action is brought within 10 days of the service of the answer.

Historical Note
Sec. filed Jan. 9, 1986; amds. filed: May 29, 1990; Nov. 15, 1991 eff. Nov. 6, 1991. Amended (c).

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Section 212.7 Pleadings.

(a) Except as required by statute, a formal pleading may be dispensed with in any case in which the party required to serve the pleading appears in person, and an order to that effect may be entered ex parte by the judge presiding at the appropriate motion part, upon application to the clerk, who shall refer the same to such judge. Any other party may move at the appropriate motion part to modify or vacate such ex parte order.

(b) All formal pleadings in this court and verifications thereof, shall be in conformity with CPLR Article 30.

(c) An order directing the service and filing of a formal pleading, or pleadings, shall specify the time within which the same shall be served and filed.

(d) A defendant's time to move or answer may be extended by ex parte order no more than once, and for no longer than 10 days beyond the expiration of the original time to answer, and only if there has been no previous extension by consent. All further applications for extensions shall be made by motion upon notice returnable in the part designated to hear motions on notice.

(e) In any action to recover damages for personal injuries arising out of use or operation of a motor vehicle, plaintiff shall set forth in the complaint, whether in short or long form, the jurisdictional facts that permit plaintiff to maintain the action and avoid the bar of the Comprehensive Automobile Insurance Reparations Act.

(f) In addition to those cases in which formal pleadings are required by UDCA 902, the pleadings shall be formal in all of the following actions for money only:

(1) those in which property is held under a levy pursuant to an order of attachment;

(2) upon an agreement of guaranty, surety or indemnification;

(3) upon an insurance policy;

(4) for a penalty of forfeiture;

(5) for a commission;

(6) for fraud and deceit;

(7) for malicious prosecution;

(8) for false imprisonment;

(9) for libel or slander;

(10) for malpractice;

(11) for assault;

(12) for conspiracy; and

on any other cause of action where the amount claimed is more than $1,500.

(g) Unless otherwise directed by the court or by statute, parties shall file a copy of all pleadings, together with proof of service, with the clerk of the district in which the action is brought within 10 days after service.

Historical Note
Sec. filed Jan. 9, 1986 eff. Jan. 6, 1986.

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Section 212.8 [Reserved]

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Section 212.9 Venue.

Motions for a change of venue shall be heard in the division of the court in which the action was instituted. An order of transfer shall direct the disposition of the papers then on file.

Historical Note
Sec. filed Jan. 9, 1986 eff. Jan. 6, 1986.

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Section 212.10 Calendaring of motions; uniform notice of motion form.

(a) There shall be compliance with the procedures for the bringing of motions prescribed in the UDCA and CPLR. In addition, no motion shall be placed on the calendar for hearing in the appropriate part unless a notice of motion is served and filed with the motion papers. The notice of motion shall read substantially as follows:

DISCTRICT COURT OF THE CITY OF ___________________
_____________________ District  
_______________________x  
 
A.B., )  
Plaintiff,
)
Notice of Motion
  )
Index No.
-against-
)
__________________
  )  
C.D., ) Oral argument is requested [ ]
Defendant,
)
(check box if requested)
  )  
_____________________________  
To the above named defendant:  

Upon the affidavit of____, sworn to on ____ 19____, and upon (list supporting papers if any), the____will move this court at ____(specify the Part), at the____Courthouse,____, ____, New York, on the____day of ____, 19____, at 9:30 a.m. for an order (briefly indicate relief requested).1

The above-entitled action is for (briefly state nature of action, e.g., personal injury, contract, property damage, etc.). This action (is) (is not) on a trial calendar. If on a trial calendar, the calendar number is____.

Pursuant to CPLR 2214(b), answering affidavits, if any, are required to be served upon the undersigned at least seven days before the return date of this motion.

[ ] (check box if applicable)

Dated:

 
(Print Name)
 
_________________________or
 

Attorney2 (or Attorney in
charge of case if law firm) for
moving party

  Address:
  Telephone Number:
   
(Print Name)
 
___________________________
 

Attorney2 for (other party)

 
Address:  
Telephone Number:  
   
(Print Name)
 
___________________________
 

Attorney2 for (other party)

 
Address:  
Telephone Number:  

1If motion is to reargue, vacate or extend, modify or otherwise affect a prior order, state the name of the judge who decided the prior order.

2 If any party is appearing pro se, the name, address and telephone number of such party shall be stated.

(b) The notice of motion set forth in subdivision (a) of this section shall not be required for the return of an order to show cause or an application for ex parte relief.

Historical Note
Sec. filed Jan. 9, 1986 eff. Jan. 6, 1986.

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Section 212.11 Motion parts; motion calendars; motion procedure.

(a) Motion parts and calendars. There shall be such motion parts and motion calendars as the Chief Administrator of the Courts may designate.

(b) Motion procedure.

(1) All contested motions and proceedings shall be returnable at 9:30 a.m., unless an earlier time is directed by the court. The moving party shall serve copies of all affidavits and briefs upon the adverse parties at the time of service of the notice of motion. The answering party shall serve copies of all affidavits and briefs as required by CPLR 2214. Affidavits shall be for a statement of the relevant facts, and briefs shall be for a statement of the relevant law. Unless otherwise directed by the court, answering and reply affidavits and all other papers required to be furnished to the court by CPLR 2214(c) must be filed no later than the time of argument or submission of the motion.

(2) A judge presiding in any part of court where motions are returnable may determine that any or all motions in that part be orally argued, and may direct that moving and responding papers be filed with the court prior to the time of argument.

(3) Unless oral argument has been requested by a party and permitted by the court, or directed by the court, motion papers received by the clerk of the court on or before the return date shall be deemed submitted as of the return date. Attendance by counsel at the calendar call shall not be required unless (i) a party intends to make an application to the court that is not on the consent of all parties, (ii) attendance of counsel or oral argument is directed by the court, or (iii) oral argument is requested by a party. Attendance by counsel for a party not requesting oral argument is not required where the hearing of oral argument is based solely on the request of another party. A party requesting oral argument shall set forth such request in the notice of motion or on the first page of the answering papers, as the case may be. A party requesting oral argument on a motion brought on by an order to show cause shall do so as soon as practicable before the time the motion is to be heard.

(4) Where there is an issue of fact to be tried, the court may, in its discretion, order an immediate trial of such issue, in which event the action shall be referred to the administrative judge or a designee for assignment.

Historical Note
Sec. filed Jan. 9, 1986 eff. Jan. 6, 1986.

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Section 212.12 Videotape recording of depositions.

Depositions authorized under the provisions of the CPLR or other law may be taken, as permitted by subdivision (b) of section 3113 of the CPLR, by means of simultaneous audio and visual electronic recording, provided such recording is made in conformity with section 202.15 of the Rules of the Chief Administrator (22 NYCRR 202.15).

Historical Note
Sec. filed Jan. 9, 1986 eff. Jan. 6, 1986.

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Section 212.13 Exchange of medical reports in personal injury and wrongful death actions.

Except where the court otherwise directs, in all actions in which recovery is sought for personal injuries, disability or death, physical examinations and the exchange of medical information shall be governed by the provisions hereinafter set forth.

(a) At any time after joinder of issue and service of a bill of particulars, the party to be examined or any other party may serve on all other parties a notice fixing the time and place of examination. Unless otherwise stipulated, the examination shall be held not less than 30 nor more than 60 days after service of the notice. If served by any party other than the party to be examined, the notice shall name the examining medical provider or providers. If the notice is served by the party to be examined, the examining parties shall, within 10 days of receipt thereof, submit to the party to be examined the name of the medical provider or providers who will conduct the examination. Any party may move to modify or vacate the notice fixing the time and place of examination or the notice naming the examining medical providers, within 10 days of the receipt thereof, on the grounds that the time or place fixed or the medical provider named is objectionable, or that the nature of the action is such that the interests of justice will not be served by an examination, exchange of medical reports or delivery of authorizations.

(b) At least 20 days before the date of such examination, or on such other date as the court may direct, the party to be examined shall serve upon and deliver to all other parties the following, which may be used by the examining medical provider:

(1) copies of the medical reports of the medical providers who have previously treated or examined the party seeking recovery. These shall include a recital of the injuries and conditions as to which testimony will be offered at the trial, referring to and identifying those X-ray and technicians' reports which will be offered at the trial, including a description of the injuries sustained, a diagnosis, and a prognosis. Medical reports may consist of completed medical provider, workers' compensation, or insurance forms that provide the information required by this paragraph; and

(2) duly executed and acknowledged written authorizations permitting all parties to obtain and make copies of all hospital records and such other records, including X-ray and technicians' reports, as may be referred to and identified in the reports of those medical providers who have treated or examined the party seeking recovery.

(c) Copies of the reports of the medical providers making examinations pursuant to this section shall be served on all other parties within 45 days after completion of the examination. These shall comply with the requirements of paragraph (b)(1) of this section.

(d) In actions where the cause of death is in issue, each party shall serve upon all other parties copies of the reports of all treating or examining medical providers whose testimony will be offered at the trial, complying with the requirements of paragraph (b)(1) of this section, and the party seeking to recover shall deliver to all other parties authorizations to examine and obtain copies of all hospital records, autopsy or postmortem reports, and such other records as provided in paragraph (b)(2) of this section. Copies of these reports and the required authorizations shall be served and delivered with the bill of particulars by the party seeking to recover. All other parties shall serve copies of the reports of their medical providers within 45 days thereafter. In any case where the interests of justice will not be promoted by service of such reports and delivery of such authorizations, an order dispensing with either or both may be obtained.

(e) Parties relying solely on hospital records may so certify in lieu of serving medical providers' reports.

(f) No case otherwise eligible to be noticed for trial may be noticed unless there has been compliance with this rule, or an order dispensing with compliance or extending the time therefor has been obtained; or, where the party to be examined was served a notice as provided in subdivision (a) of this section, and the party so served has not responded thereto.

(g) In the event that the party examined intends at the trial to offer evidence of further or additional injuries or conditions, nonexistent or not known to exist at the time of service of the original medical reports, such party shall, within 30 days after the discovery thereof, and not later than 30 days before trial, serve upon all parties a supplemental medical report complying with the requirements of paragraph (b)(1) of this section, and shall specify a time, not more than 10 days thereafter, and a place at which a further examination may be had. Further authorizations to examine and make copies of additional hospital records, other records, X-ray or other technicians' reports as provided in paragraph (b)(2) of this section, must also be delivered with the medical reports. Copies of the reports of the examining medical providers, complying with the requirements of subdivision (c) of this section, shall be served within 10 days after completion of such further examination. If any party desires at the trial to offer the testimony of additional treating or examining medical providers, other than whose medical reports have been previously exchanged, the medical reports of such medical providers, complying with the requirements of paragraph (b)(1) of this section shall be served upon all parties at least 30 days before trial.

(h) Unless an order to the contrary is made, or unless the judge presiding at the trial in the interests of justice and upon a showing of good cause shall hold otherwise, the party seeking to recover damages shall be precluded at the trial from offering in evidence any part of the hospital records and all other records, including autopsy or postmortem records, X-ray reports or reports of other technicians, not made available pursuant to this rule, and no party shall be permitted to offer any evidence of injuries or conditions not set forth or put in issue in the respective medical reports previously exchanged, nor will the court hear the testimony of any treating or examining medical providers whose medical reports have not been served as provided by this rule.

(i) Orders transferring cases pending in other courts which are subject to the provisions of this section, whether or not such cases are consolidated with cases pending in the court to which transferred, shall contain such provisions as are required to bring the transferred cases into compliance with this rule.

(j) Any party may move to compel compliance or to be relieved from compliance with this rule or any provision thereof, but motions directed to the sufficiency of medical reports must be made within 20 days of receipt of such reports. All motions under this rule may be made on affidavits of attorneys, shall be made on notice, returnable at the calendar part, and shall be granted or denied on such terms as to costs, calendar position and dates of compliance with any provision of this rule as the court in its discretion shall direct.

(k) Where an examination is conducted on consent prior to the institution of an action, the party to be examined shall deliver the documents specified in paragraphs (b)(1) and (2) of this section, and the report of the examining physician shall be delivered as provided in subdivision (c) of this section. In that event, examination after institution of the action may be waived. The waiver, which shall recite that medical reports have been exchanged and that all parties waive further physical examination, shall be filed with the note of issue. This shall not be a bar, however, to proceeding under subdivision (g) of this section in a proper case.

Historical Note
Sec. filed Jan. 9, 1986; amd. filed May 4, 1998 eff. April 17, 1998. Amended (a)-(e), (g)-(h).

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Section 212.14 Calendar default; restoration; dismissal.

(a) Applicability. This section governs calendar defaults, restorations and dismissals, other than striking a case from the calendar pursuant to a motion under section 212.17 of this Part, relating to the notice of trial and statement of readiness.

(b) At any scheduled call of a calendar or at a pretrial conference, if all parties do not appear and proceed or announce their readiness to proceed immediately or subject to the engagement of counsel, the judge presiding may note the default on the record and enter an order as follows:

(1) if the plaintiff appears but the defendant does not, the judge may grant judgment by default or order an inquest.

(2) if the defendant appears but the plaintiff does not, the judge may dismiss the action and may order a severance of counterclaims or cross- claims.

(3) if no party appears, the judge may strike the action from the calendar or make such other order as appears just.

(c) Actions stricken from the calendar may be restored to the calendar only upon stipulation of all parties so ordered by the court or by motion on notice to all other parties, made within one year after the action is stricken. A motion must be supported by affidavit by a person having firsthand knowledge, satisfactorily explaining the reasons for the action having been stricken and showing that it is presently ready for trial.

(d) If an order of restoration is granted, it shall provide that a new notice of trial be filed forthwith and that the case be placed on the general trial calendar in its regular place as of the date of filing the new notice of trial, unless the court in its discretion orders otherwise. A copy of the order shall be served on the calendar clerk, and the case shall receive a new calendar number followed by the letter "R" to designate the case as having been restored. If a restored case is not ready when reached, it shall forthwith be dismissed or an inquest or judgment ordered as provided in subdivision (b) of this section.

(e) Applications to restore an action to the ready calendar in the event of a reversal or a direction of a new trial by an appellate court shall be made returnable in the appropriate motion part, except that if all parties do not appear by attorney, the clerk shall, without formal application, restore the action to the ready calendar.

(f) When an action has been tried and the jury has disagreed, or a verdict set aside, or there has been a mistrial for any reason, or if no decision has been made or judgment rendered within the time specified in section 1304 of the UDCA, or if the court has ordered a new trial under CPLR 4402, such action must be restored to the appropriate ready calendar for a day certain to be fixed by the court.

Historical Note
Sec. filed Jan. 9, 1986 eff. Jan. 6, 1986.

 

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Section 212.14-a Proof of Default Judgment in Consumer Credit Matters (Uniform Civil Rules for the District Courts)

(a) Definitions.

(1) For purposes of this section a consumer credit transaction means a revolving or open-end credit transaction wherein credit is extended by a financial institution, which is in the business of extending credit, to an individual primarily for personal, family or household purposes, the terms of which include periodic payment provisions, late charges and interest accrual. A consumer credit transaction does not include debt incurred in connection with, among others, medical services, student loans, auto loans or retail installment contracts.

(2) Original creditor means the financial institution that owned the consumer credit account at the time the account was charged off, even if that financial institution did not originate the account. Charged-off consumer debt means a consumer debt that has been removed from an original creditor’s books as an asset and treated as a loss or expense.

(3) Debt buyer means a person or entity that is regularly engaged in the business of purchasing charged-off consumer debt for collection purposes, whether it collects the debt itself, hires a third party for collection, or hires an attorney for collection litigation.

(4) Credit agreement means a copy of a contract or other document governing the account provided to the defendant evidencing the defendant’s agreement to the debt, the amount due on the account, the name of the original creditor, the account number, and the name and address of the defendant. The charge-off statement or the monthly statement recording the most recent purchase transaction, payment or balance transfer shall be deemed sufficient evidence of a credit agreement.

(b) Applicability. Together with any other affidavits required under New York law, the following affidavits shall be required as part of a default judgment application arising from a consumer credit transaction where such application is made to the clerk under CPLR 3215(a).

(1) In original creditor actions, the affidavit set forth in subsection (c), effective October 1, 2014.

(2) In debt buyer actions involving debt purchased from an original creditor on or after October 1, 2014, the affidavits set forth in subsection (d).

(3) Except as set forth in paragraph four of this subsection, the affidavits set forth in subsection (d) shall not be required in debt buyer actions involving debt purchased from an original creditor before October 1, 2014. The plaintiff shall be required to affirm in its affidavit of facts that the debt was purchased from the original creditor before October 1, 2014 and attach proof of that fact.

(4) Effective July 1, 2015, the affidavits set forth in subsection (d) shall be required in all debt buyer actions notwithstanding that the debt was purchased from an original creditor before October 1, 2014.

(5) In all original creditor and debt buyer actions, the affidavit of non-expiration of statute of limitations set forth in subsection (e), effective October 1, 2014.

(c) Where the plaintiff is the original creditor, the plaintiff must submit the AFFIDAVIT OF FACTS BY ORIGINAL CREDITOR.

(d) Where the plaintiff is a debt buyer, the plaintiff must submit the AFFIDAVIT OF FACTS AND PURCHASE OF ACCOUNT BY DEBT BUYER PLAINTIFF, the AFFIDAVIT OF FACTS AND SALE OF ACCOUNT BY ORIGINAL CREDITOR and, if applicable, the AFFIDAVIT OF PURCHASE AND SALE OF ACCOUNT BY DEBT SELLER for each debt seller who owned the debt prior to the plaintiff.

(e) In all applications for a default judgment arising from a consumer credit transaction, the plaintiff must submit the AFFIRMATION OF NON-EXPIRATION OF STATUTE OF LIMITATIONS executed by counsel.

(f) The affidavits required by this section may not be combined. Affidavits may be augmented to provide explanatory details, and supplemental affidavits may be filed for the same purpose.

(g) The affidavits required by this section shall be supported by exhibits, including a copy of the credit agreement as defined in this section, the bill of sale or written assignment of the account where applicable, and relevant business records of the Original Creditor that set forth the name of the defendant; the last four digits of the account number; the date and amount of the charge-off balance; the date and amount of the last payment, if any; the amounts of any post-charge-off interest and post-charge-off fees and charges, less any post-charge-off credits or payments made by or on behalf the defendant; and the balance due at the time of sale.

(h) If a verified complaint has been served, it may be used as the plaintiff’s affidavit of facts where it satisfies the elements of the AFFIDAVIT OF FACTS AND PURCHASE OF ACCOUNT BY DEBT BUYER PLAINTIFF.

(i) The County Clerk or clerk of the court shall refuse to accept for filing a default judgment application that does not comply with the requirements of this section.

(j) Nothing in this section is intended to impair a plaintiff’s ability to make a default judgment application to the court as authorized under CPLR 3215(b).

Historical Note
Added Sept. 15, 2014, eff. Oct. 1, 2014

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Section 212.14-b Additional Mailing of Notice on an Action Arising from a Consumer Credit Transaction (Uniform Civil Rules for the District Courts)

(a) Additional mailing of notice on an action arising from a consumer credit transaction.

(1) At the time of filing with the clerk the proof of service of the summons and complaint in an action arising from a consumer credit transaction, or at any time thereafter, the plaintiff shall submit to the clerk a stamped unsealed envelope addressed to the defendant together with a written notice, in both English and Spanish, containing the following language:

SUPREME/DISTRICT/CITY COURT. COUNTY/CITY OF __________

COUNTY OF ______________ INDEX NO. ___________

Plaintiff ___________________ Defendant _____________

ATTENTION: A lawsuit has been filed against you claiming that you owe money for an unpaid consumer debt. You should respond to the lawsuit as soon as possible by filing an “answer.” You may wish to contact an attorney. If you do not respond to the lawsuit, the court may enter a money judgment against you. Once entered, a judgment is good and can be used against you for twenty years, and your personal property and money, including a portion of your paycheck and/or bank account, may be taken from you. Also, a judgment will affect your credit score and can affect your ability to rent a home, find a job, or take out a loan. You cannot be arrested or sent to jail for owing a debt. Additional information can be found on the court system's website at: www.nycourts.gov

PRECAUCIÓN: Se ha presentado una demanda en su contra reclamando que usted debe dinero por una deuda al consumidor no saldada. Usted debe, tan pronto como le sea posible, responder a la demanda presentando una "contestación." Quizás usted quiera comunicarse con un abogado. Si usted no presenta una contestación, el tribunal puede emitir un fallo monetario en contra suya. Una vez emitido, ese fallo es válido y puede ser utilizado contra usted por un período de veinte años, y contra su propiedad personal y su dinero, incluyendo una porción de su salario y/o su cuenta bancaria, los cuales pueden ser embargados. Además, un fallo monetario afecta su crédito y puede afectar su capacidad de alquilar una casa, encontrar trabajo o solicitar un préstamo para comprar un automóvil. Usted no puede ser arrestado ni apresado por adeudar dinero. Puede obtener información adicional en el sitio web del sistema: www.nycourts.gov.

The face of the envelope shall be addressed to the defendant at the address at which process was served, and shall contain the defendant's name, address (including apartment number) and zip code. The face of the envelope also shall contain, in the form of a return address, the appropriate address of the clerk's office to which the defendant should be directed. These addresses are:

[INSERT APPROPRIATE COURT ADDRESS OR ADDRESSES]

(2) The clerk promptly shall mail to the defendant the envelope containing the additional notice set forth in paragraph (1). No default judgment based on defendant's failure to answer shall be entered unless there has been compliance with this subdivision and at least 20 days have elapsed from the date of mailing by the clerk. No default judgment based on defendant’s failure to answer shall be entered if the additional notice is returned to the court as undeliverable, unless the address at which process was served matches the address of the defendant on a Certified Abstract of Driving Record issued from the New York State Department of Motor Vehicles. Receipt of the additional notice by the defendant does not confer jurisdiction on the court in the absence of proper service of process.

Historical Note
Added Sept. 15, 2014, eff. Oct. 1, 2014

 

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Section 212.15 Transfer of actions.

Actions transferred from the Supreme Court and County Court to a District Court shall be placed in such order and relative position on the appropriate calendars that they will be reached for trial, insofar as practicable, as if a notice of trial had originally been filed in the District Court for the same date as that for which the note of issue was filed in the Supreme Court.

Historical Note
Sec. filed Jan. 9, 1986 eff. Jan. 6, 1986.

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Section 212.16 Discontinuance of actions.

In any discontinued action, the attorney for the plaintiff shall file a stipulation or statement of discontinuance with the clerk of the court within 20 days of such discontinuance. If the action has been noticed for judicial activity within 20 days of such discontinuance, the stipulation or statement shall be filed before the date scheduled for such activity.

Historical Note
Sec. filed Jan. 9, 1986; repealed, new filed April 27, 1993 eff. April 14, 1993.

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Section 212.17 Notice of trial where all parties appear by attorney.

(a) The notice of trial filed by any party pursuant to UDCA 1301 shall be accompanied by a certificate of readiness, with proof of service on all parties, in the form prescribed by this section. The notice of trial shall include the index number, name, office address and telephone number of each attorney and pro se party who has appeared, and the name of any insurance carrier acting on behalf of any party.

(b) The clerk shall not place any matter on a trial calendar unless there has been compliance with this rule by the party seeking to place the matter on the calendar.

(c) Within 20 days after service of such notice of trial, any party may move to strike the action from the calendar or to keep it from being placed thereon. The affidavit in support of the application must specify the reason the action is not entitled to be on the calendar.

(d) After any action has been placed on the trial calendar pursuant to this rule, no pretrial examination or other preliminary proceedings may be had, except that if some unusual or unanticipated conditions subsequently develop which make it necessary that further pretrial examination or further preliminary proceedings be had, and if without them the moving party would be unduly prejudiced, the court may make an order granting permission to conduct such examination or proceedings and prescribing the time therefor. Such an order may be made only upon motion on notice showing in detail, by affidavit, the facts claimed to entitle the moving party to relief under this subdivision.

(e) Where a party filing a notice of trial, in a medical malpractice action or an action against a municipality, seeking a sum of money only, is prohibited by the provisions of CPLR 3017(c) from stating in the pleadings the amount of damages sought in the action, the party shall indicate in the notice of trial whether the amount of damages exceeds $6,000, exclusive of costs and interest. If it does not, the party shall also indicate if it exceeds $2,000, exclusive of costs and interest.

(f) The certificate of readiness shall read substantially as follows:


CERTIFICATE OF READINESS FOR TRIAL
(Items 1 5 must be checked)

 
Complete
Waived
Not
Required
1. All pleadings served.      
2. Bills of particulars served.      
3. Physicial examinations completed.      
4. Medical reports exchanged.      
5. Discovery proceedings now known to be necessary completed.      
6. There are no outstanding requests for discovery.      
7. There has been a reasonable opportunity complete the foregoing proceedings.      
8. The case is ready for trial.      

Dated:______________________

(Signature)______________________

Attorneys for:______________________

Office and P.O. Address:______________________

Historical Note
Sec. filed Jan. 9, 1986 eff. Jan. 6, 1986.

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Section 212.18 Calendars of triable actions.

There shall be such calendars as may be established, from time to time, in the discretion of the Chief Administrator of the Courts. These calendars may include:

(a) General Calendar. A general calendar is for actions in which issue has been joined.

(b) Pretrial Conference Calendar. A pretrial conference calendar is for actions await ing conference in a pretrial conference part. Actions shall be taken in order from the top of the general calendar and placed at the end of the pretrial conference calendar.

(c) Reserve Calendars. A reserve calendar is for actions in which a notice of trial, conforming to section 1301 of the UDCA, and certificate of readiness have been filed. Upon the filing of such notice in any action with the clerk, at least 10 days before the day fixed for trial, the action shall be placed at the end of either the reserve jury trial calendar or the reserve nonjury trial calendar, as the case may be. Where an action is placed on a reserve nonjury trial calendar but subsequently a demand for a trial by jury is timely served and filed, the action shall immediately be transferred to the end of the reserve jury trial calendar. Once placed on a calendar, the action shall remain thereon until disposed of, stricken, transferred or otherwise removed. The calendars shall be deemed continuous and no change in the order of original placement shall be made, except as provided in this Part, by court order or as may be required by provisions of law.

(d) Ready Calendars. A ready calendar is for actions that have been transferred from a reserve calendar because a trial is imminent, for noticed inquests and assessments of damages and for actions in which any party appears in person. There shall be as many ready calendars with such classifications of actions as the Chief Administrator shall direct.

(e) Continuous Calendars. In any court not continuously in session, the calendars at the close of one term or session of court shall be used to open the following term or session, and actions on the calendars shall retain their positions.

(f) Military Calendar. A military calendar shall be utilized to hold in suspense any action that cannot reasonably be tried because a party or witness is in military service. When it shall appear to the satisfaction of the judge presiding that a party to an action or a witness necessary upon the trial is in military service, and is not presently available for trial, and that a deposition cannot be taken, or, if taken, would not provide adequate evidence, the case shall be designated "military" and transferred to a military calendar.

Any case on the military calendar may be removed therefrom by further order of the court or by filing with the calendar clerk, at least five days before such date, a stipulation of the parties who have appeared or a notice to restore, together with proof of service of such notice on all other parties; except that if any party appearing in person seeks such restoration, he may apply to the clerk, who shall refer his application to the judge in the appropriate calendar part for disposition upon such notice to all parties or their attorneys as the judge shall direct.

(g) Calendar Progression. With due regard to the requirements of statutory preferences and of section 208.20 of this Part, when actions are advanced from one calendar to another they shall progress from the head of one calendar to the foot of the next calendar and otherwise progress in order insofar as practicable unless otherwise determined by the court.

Historical Note
Sec. filed Jan. 9, 1986 eff. Jan. 6, 1986.

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Section 212.19 Notice of calendars.

A notice shall be published in a law journal of any and all calls of the reserve calendars at least five court days before such call if the Chief Administrator of the Courts designates a law journal and directs such publication. The notice shall specify the calendar numbers of the actions to be called. In the event that the call of any reserve calendar is suspended by the Chief Administrator and actions are added to the ready calendar without first being called on the reserve calendar, a notice of actions added to the ready calendar, with their calendar number, shall be published in such law journal at least five court days before the call of the reserve calendar.

Historical Note
Sec. filed Jan. 9, 1986 eff. Jan. 6, 1986.

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Section 212.20 Special preferences.

(a) Any party claiming a preference under CPLR 3403 may apply to the court by making a motion in a motion part, in accordance with CPLR 3403(b), the note of issue therein referred to being deemed a reference to a notice of trial.

(b) Counterclaims and Cross-Claims. A counterclaim or cross-claim which is not entitled to a preference shall not itself defeat the plaintiff's right to a preference under this section.

(c) Result of Preference Being Granted. If a preference is granted, the action shall be placed on a ready calendar for a day certain ahead of all nonpreferred pending cases, as directed by the court, unless the court otherwise orders.

Historical Note
Sec. filed Jan. 9, 1986 eff. Jan. 6, 1986.

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Section 212.21 Objections to applications for special preference.

(a) Within 20 days of the filing of the notice of trial, if the notice of motion for a special preference is filed therewith, or within 10 days of the service of a notice of motion to obtain a preference, if served and filed subsequent to service and filing of the notice of trial, any other party may serve upon all other parties and file with the clerk affidavits and other relevant papers, with proof of service, in opposition to granting the preference. In the event such opposing papers are filed, the party applying for the preference may, within five days thereafter, serve and file in like manner papers in rebuttal.

(b) In any action which has been accorded a preference in trial upon a motion filed with the clerk, the court shall not be precluded, on its own motion at any time thereafter, from restoring the action to its regular calendar position on the ground that the action is not entitled to a preference under these rules.

(c) Notwithstanding the failure of any party to oppose the application, no preference shall be granted by default unless the court finds that the action is entitled to a preference.

Historical Note
Sec. filed Jan. 9, 1986 eff. Jan. 6, 1986.

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Section 212.22 Pretrial and prearbitration conference calendars.

There shall be such pretrial and prearbitration conference parts and calendars and such mandatory pretrial conferences as may be established by the Chief Administrator of the Courts. The attendance of attorneys who are familiar with the case and who are authorized to act shall be required. The court may also require the attendance of parties, and in the event of failure of attendance by attorneys or parties, the court shall have the same powers with respect to dismissals, defaults, or both, as it might exercise when a case is reached for trial. Upon the pretrial conference of an action, the judge presiding shall consider with counsel and parties the simplification and limitation of the issues and the obtaining of admissions of facts and of documents to avoid unnecessary proof, as well as the ultimate disposition of the action by settlement or compromise.

Historical Note
Sec. filed Jan. 9, 1986 eff. Jan. 6, 1986.

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Section 212.23 Call of reserve, ready and general calendars.

(a) Reserve Calendars. At such times as the Chief Administrator of the Courts shall prescribe, there shall be a call of actions on the reserve calendars in sequence and in sufficient number to insure a steady supply of cases to the ready calendar. When such a call is held, the actions thereon, if marked "ready," shall be passed and subsequently added to the ready calendar, or may be marked "disposed" or stricken from the calendar, as may be appropriate.

(b) Ready Calendars.

(1) The ready calendars shall be called at such time and in such parts as the Chief Administrator shall direct. Actions shall be called in order and shall be announced "ready," "ready subject to engagement" or "disposed." If any party does not so respond, the calendar judge shall treat the action as in default, unless for good cause shown, arising after the action appeared on the ready calendar and not reasonably discoverable or foreseeable, the judge shall direct that the action be held on the ready calendar for a period not to exceed 10 days. If the inability to proceed to trial is expected to exceed 10 days, the action shall be returned to the reserve calendar or stricken from the calendar, as circumstances warrant, unless, for good cause shown, the court on application grants an adjournment.

(2) Actions announced "ready" on the call of the calendar shall be assigned in order to the available trial parts. Jury actions will be sent out for jury selection if a trial part is available, or scheduled for jury selection at the opening of court on the next court day or as soon as practicable thereafter. Subject to the provisions of section 212.25 of this Part, no delay will be permitted in selection of a jury, and failure of counsel to proceed as directed or to appear promptly at the directed time on the specified court day will be treated as a calendar default.

(3) The actions on the ready calendar must be answered by or on behalf of the trial counsel each day the calendar is called, unless otherwise ordered by the calendar judge, or unless trial counsel already has demonstrated an engagement during one or more days. The calendar judge may discontinue the call of the ready calendar when sufficient ready cases have been identified to fill all trial parts available on the day of the call and which are expected to become available on the next court day.

(4) When an action has been announced "ready" but no part is immediately available, counsel may arrange with the calendar judge to be summoned by telephone, provided they agree to hold themselves available and to appear on one hour's notice or at such other time as the court may order at the time and part assigned for the trial.

(c) General Calendar. At such time or times and in such manner as the Chief Administrator may direct, a call shall be made of all actions on the general calendar not reached on a ready calendar.

Historical Note
Sec. filed Jan. 9, 1986 eff. Jan. 6, 1986.

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Section 212.24 Day certain for trial.

(a) Applications for a day certain for trial shall be made to the calendar judge or, if no calendar part has been established, to the trial judge, on an affidavit of the attorney of record or a stipulation of the attorneys for all parties that trial counsel, a party or a material witness resides more than 100 miles from the courthouse or is in the military service or that some other undue hardship exists. Applications to the calendar judge shall be made on notice and must be made before the action is advanced to the ready calendar.

(b) If a day certain is ordered, the action shall be withheld from the ready calendar until that day, at which time it shall appear at the top of the ready calendar. Absent special circumstances, the day designated for trial shall be a date which does not in effect grant a preference to the action. Such day- certain actions shall be taken into consideration in determining the number of actions held for counsel under section 212.25 of this Part when they appear on the ready calendar.

Historical Note
Sec. filed Jan. 9, 1986 eff. Jan. 6, 1986.

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Section 212.25 Engagement of counsel.

No adjournment shall be granted on the ground of engagement of counsel except in accordance with Part 125 of the Rules of the Chief Administrator of the Courts (22 NYCRR Part 125).

Historical Note
Sec. filed Jan. 9, 1986 eff. Jan. 6, 1986.

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Section 212.26 [Reserved]

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Section 212.27 Submission of papers for trial.

(a) Upon the trial of an action, the following papers, if not yet submitted, shall be submitted to the court by the party who has filed the notice of trial:

(1) copies of all pleadings marked as required by CPLR 4012;

(2) a copy of any statutory provision in effect at the time the cause of action arose upon which either the plaintiff or the defendant relies; and

(3) a copy of the bill of particulars, if any.

(b) If so ordered, the parties shall submit to the court, before the commencement of trial, trial memoranda which shall be exchanged among counsel.

Historical Note
Sec. filed Jan. 9, 1986 eff. Jan. 6, 1986.

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Section 212.28 Absence of attorney during trial.

All trial counsel shall remain in attendance at all stages of the trial until the jury retires to deliberate, unless excused by the judge presiding. The court may permit counsel to leave, provided counsel remain in telephone contact with the court. Any counsel not present during the jury deliberation, further requests to charge, or report of the jury verdict shall be deemed to stipulate that the court may proceed in his or her absence and to waive any irregularity in proceedings taken in his or her absence.

Historical Note
Sec. filed Jan. 9, 1986 eff. Jan. 6, 1986.

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Section 212.29 to 212.30 [Reserved]

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Section 212.31 Restoration after jury disagreement, mistrial or order for new trial.

An action in which there has been an inability by a jury to reach a verdict, a mistrial or a new trial granted by the trial judge or an appellate court shall be restored to the ready calendar by filing a notice thereof with the appropriate clerk.

Historical Note
Sec. filed Jan. 9, 1986 eff. Jan. 6, 1986.

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Section 212.32 Damages, inquest after default; proof.

(a) In an inquest to ascertain damages upon a default pursuant to CPLR 3215, if the defaulting party fails to appear in person or by representative, the party entitled to judgment, whether a plaintiff, third-party plaintiff, or a party who has pleaded a cross-claim or counterclaim, shall be permitted to submit, in addition to the proof required by CPLR 3215(e), properly executed affidavits as proof of damages.

(b) In any action where it is necessary to take an inquest before the court, the party seeking damages may submit the proof required by oral testimony of witnesses in open court or by written statements of the witnesses, in narrative or question-and-answer form, signed and sworn to.

Historical Note
Sec. filed Jan. 9, 1986 eff. Jan. 6, 1986.

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Section 212.33 Submission of orders, judgments and decrees for signature.

(a) Proposed orders or judgments, with proof of service on all parties where the order is directed to be settled or submitted on notice, must be submitted for signature, unless otherwise directed by the court, within 60 days after the signing and filing of the decision directing that the order be settled or submitted.

(b) Failure to submit the order or judgment timely shall be deemed an abandonment of the motion or action, unless for good cause shown.

(c)

(1) When settlement of an order or judgment is directed by the court, a copy of the proposed order or judgment with notice of settlement, returnable at the office of the clerk of the part in which the order or judgment was granted, or before the judge if the court has so directed or if the clerk is unavailable, shall be served on all parties either:

(i) by personal service not less than five days before the date of settlement; or

(ii) by mail not less than 10 days before the date of settlement.

(2) Proposed counterorders as judgments shall be made returnable on the same date and at the same place, and shall be served on all parties by personal service, not less than two days, or by mail, not less than seven days, before the date of settlement.

Historical Note
Sec. filed Jan. 9, 1986 eff. Jan. 6, 1986.

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Section 212.34 Absence or disqualification of assigned judge.

(a) Whenever a judge is temporarily absent from a multipart court, proceedings in progress or scheduled for appearance in the part presided over by that judge shall be reassigned or otherwise handled by the calendar judge, or the administrative judge if no calendar part has been established. If the judge presiding is unavailable or unable to act for more than two court days in succession, the administrative judge having direct supervisory authority over the court shall make whatever arrangements are necessary to accommodate the proceedings assigned to the judge.

(b) If a proceeding is assigned to a judge who is for any reason disqualified from hearing it, the proceeding shall be reassigned to another judge who is not disqualified, to be heard by the assigned judge as expeditiously as possible.

(c) In an emergency, when neither the calendar judge nor the administrative judge can be contacted, any other judge of, or assigned to, the court may act in respect to pending proceedings as may be appropriate.

Historical Note
Sec. filed Jan. 9, 1986 eff. Jan. 6, 1986.

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Section 212.35 [Reserved]

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Section 212.36 Infants' and incapacitated persons' claims and proceedings.

The settlement of an action by an infant or judicially declared incapacitated person (including an incompetent or conservatee) shall comply with CPLR 1207 and 1208, section 202.67 of the Rules of the Chief Administrator (22 NYCRR 202.67) and in the case of an infant, with section 474 of the Judiciary Law.

Historical Note
Sec. filed Jan. 9, 1986; amd. filed Sept. 22, 1993 eff. Sept. 3, 1993.

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Section 212.37 Executions.

(a) No execution may be issued against any party who has appeared by an attorney in an action or proceeding, unless a copy of the judgment has been duly served upon the attorney for such party.

(b) No execution may be issued against any party who has appeared in person in any action and who defaults in answering either the original or an amended or supplemental complaint, unless a copy of the judgment has been duly served upon such party personally or mailed to such party by certified mail at the address stated in the notice of appearance or in the last pleading or paper filed by the party with the clerk, or at the address last furnished by the party to the clerk in writing.

Historical Note
Sec. filed Jan. 9, 1986 eff. Jan. 6, 1986.

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Section 212.38 Appeals.

(a) A notice of appeal shall not be accepted for filing without proof of service upon all parties.

(b) All papers which are to be included in the return on appeal and prepared by the appellant as required by the applicable provisions of the CPLR, shall be furnished by the appellant to the clerk at the time of filing the notice of settlement provided in section 1704 of the UDCA.

(c) In the case of the death, disability or prolonged absence from the city of the judge before whom the action was tried, the return on appeal may be settled by any judge presiding in a motion part in the county in which the judgment was entered, with the same force and effect as if he had tried the case.

Historical Note
Sec. filed Jan. 9, 1986 eff. Jan. 6, 1986.

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Section 212.39 Procedures for the enforcement of money judgments under CPLR article 52.

(a) All subpoenas and processes for the examination of judgment debtors or other persons, including garnishees, in connection with the enforcement of money judgments, as well as adjournments thereof if made returnable in the court, shall be returnable in such motion part as may be designated by the Chief Administrator of the Courts.

(b) All subpoenas and processes for the examination of judgment debtors or other persons, including garnishees, if made returnable in the court, shall be filed with the clerk of the appropriate motion part with proper affidavits of service, at least two court days before the return day, except where service was made too late for filing within such time, in which event filing before the hour of the return shall suffice and the clerk shall list all such upon the calendar. Stipulations of adjournments, if attendance in court on the adjourned date is required, shall be similarly filed. Unless so filed, the names of the parties shall not be called; nor shall any such names be called unless they appear on a written or typewritten calendar. The judge presiding may, upon proper proof by affidavit showing good cause for the failure to file in accordance with this rule, add any matter to the calendar.

(c) No adjournment of an examination shall be valid unless reduced to writing and a copy thereof delivered to the judgment debtor or other person, including a garnishee, at the time of such adjournment and his acknowledgment of the receipt thereof is endorsed on the original.

(d) There shall be no more than two adjournments of the examination of a judgment debtor or other person, including a garnishee, unless such additional adjournment is approved and such approval is noted on the papers by the judge presiding at a motion part.

(e) No motion shall be made upon the basis of any testimony taken in examinations unless and until such testimony has been reduced to writing and unless and until there has been compliance with the requirements of CPLR 5224(e).

(f) Every subpoena or other process providing for the examination of a judgment debtor or other person, including a garnishee, in addition to the other requirements of CPLR 5223, shall have endorsed on its face, in bold type, the words: "This subpoena or process (as the case may be) requires your personal appearance at the time and place specified. Failure to appear may subject you to fine and imprisonment for contempt of court."

Historical Note
Sec. filed Jan. 9, 1986 eff. Jan. 6, 1986.

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Section 212.40 Arbitration.

(a) Alternative Method of Dispute Resolution by Arbitration. Where the Chief Administrator of the Courts has established this arbitration program, Part 28 of the Rules of the Chief Judge (22 NYCRR Part 28) shall control the proceedings.

(b) Where the parties agree to arbitrate a claim under UDCA 206, arbitration proceedings shall be conducted in accordance with CPLR Article 75.

Historical Note
Sec. filed Jan. 9, 1986 eff. Jan. 6, 1986.

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Section 212.41 Small claims procedure.

(a) A small claims action shall be instituted by a plaintiff or someone on his or her behalf paying the filing fee as provided in UDCA 1803, and by supplying to the clerk the following information:

(1) plaintiff's name and residence address;

(2) defendant's name and place of residence, or place of business or employment; and

(3) the nature and amount of the plaintiff's claim, giving dates and other relevant information.

(b) The clerk shall reduce this information to a written statement, on a form provided therefor, and shall record it in his or her office. The statement shall be in nontechnical, concise and simple language, and shall be signed by the person who shall have supplied the information contained therein.

(c) The clerk shall give to the person who signed the statement a memorandum of the time and place set for the hearing, which shall be as soon as practicable, and shall advise such person to produce at the hearing supporting witnesses, account books, receipts or other documents required to establish the claim.

(d) Within five days after the action is recorded, the clerk shall send to the defendant by ordinary first class mail and by certified mail, return receipt requested, addressed to one or more of the addresses supplied as shall be deemed necessary, a signed notice bearing the seal of the court, which shall be in substantially the following form:

DISTRICT COURT OF_____________________

COUNTY OF _____________________

SMALL CLAIMS PART

TO: ______________________________________________________________

Take Notice that _____ asks judgment in this Court against you for $_____, together with costs, upon the following claim: _____

______________________________________________________________

______________________________________________________________

There will be a hearing before the Court upon this claim on_____, 19_____, at _____ o'clock _____M., in the Small Claims Part, held at _____

You must appear and present your defense and any counterclaim you may desire to assert at the hearing at the time and place above set forth (a corporation must be represented by an attorney or any authorized officer, director or employee). IF YOU DO NOT APPEAR, JUDGMENT WILL BE ENTERED AGAINST YOU BY DEFAULT EVEN THOUGH YOU MAY HAVE A VALID DEFENSE. If your defense or counterclaim, if any, is supported by witnesses, account books, receipts or other documents, you must produce them at the hearing. The Clerk, if requested, will issue subpoenas for witnesses, without fee thereof.

If you wish to present a counterclaim against the claimant, you must do so by filing with the Clerk of the Court a statement containing such counterclaim within five days of receiving this notice of claim. At the time of such filing you must pay the Clerk a filing fee of $3.00 plus the cost of postage to send your counterclaim by first class mail to the claimant. If you fail to file a counterclaim within this five- day period, you retain the right to file the counterclaim until the time of the hearing, but the claimant may request and obtain an adjournment of the hearing to a later date.

If you admit the claim, but desire time to pay, you must appear personally on the day set for the hearing and state to the Court your reasons for desiring time to pay.

Dated:___________, 19_______

  _______________________________
  Clerk

NOTE: If you desire a jury trial, you must, before the day upon which you have been notified to appear, file with the Clerk of the Court a written demand for a trial by jury. You must also pay to the clerk a jury fee of $55 and file an undertaking in the sum of $50 or deposit such sum in cash to secure the payment of any costs that may be awarded against you. You will also be required to make an affidavit specifying the issues of fact which you desire to have tried by a jury, and stating that such trial is desired and demanded in good faith.

Under the law, the Court may award $25 additional costs to the plaintiff if a jury trial is demanded by you and a decision is rendered against you.

(e) The clerk shall note on the statement referred to in subdivision (a) of this section the date on which the notice was mailed and the address, the date of delivery shown by the return receipt and the name of the addressee or agent signing the receipt.

(f) If service of notice cannot be effected upon the defendant within four months following the date on which the action was first instituted, the action shall be dismissed without prejudice.

(1) Where all parties appear by attorneys, the case may be transferred to a regular part of court, and the claimant shall pay any additional filing fees required by law. If the claimant fails or refuses to pay such filing fees, the court shall dismiss the case.

(g) Unless the court shall otherwise order, a defendant to whom notice was duly given who fails to appear at the hearing on the day and time fixed, either in person or by attorney, shall be held to be in default, except that nondefault shall be ordered if the defendant or his attorney appears within one hour after the time fixed.

(h) If at the hearing it shall appear that the defendant has a counterclaim in an amount within the jurisdiction of the part for the hearing of small claims, the judge may either proceed forthwith to hear the entire case or may adjourn the hearing for a period of not more than 20 days, or as soon thereafter as may be practicable, at which adjourned time the hearing of the entire case shall be had. An adjournment shall be granted at the request of the claimant if the defendant did not file the counterclaim with the court within five days of receiving the notice of claim.

(i) An oath or affirmation shall be administered to all witnesses. The court shall conduct the hearing in such manner as it deems best suited to discover the facts and to determine the justice of the case. If the plaintiff, or an attorney in his or her behalf, does not appear at the time set for hearing, the court may dismiss the claim for want of prosecution or enter a finding on the merits for the defendant, or make such other disposition as it may deem proper.

(j) Where, after a claim is filed with the clerk, either party to the action desires to implead one or more additional defendants, the clerk shall, upon receipt of the proper fees, issue and mail a notice of claim to each additional defendant under the procedure set forth above.

(k) The undertaking to be filed by a defendant desiring a jury trial shall be in the form prescribed by the relevant provisions of article 25 of the CPLR.

(l) All motions pertaining to small claims shall be made returnable at a part and session appointed for the hearing of small claims, except that a motion to remove a case from the small claims part shall be made returnable in the appropriate motion part in the county division of the court in which the action is pending, and shall be in accord with the rules of the UDCA generally applicable to motion practice.

(m) There may be arbitration of any small claims controversy.

(1) The parties to any controversy, except infants and incompetents, may submit the same for arbitration to any attorney, duly appointed as a small claims arbitrator by the administrative judge of this court, so assigned for such duty at that term of the court, and upon whom they shall agree.

(2) The parties shall sign a consent which shall contain the name of the arbitrator, a brief recital of the nature of the controversy to be determined, a statement that they will abide by these rules, and an affirmation that the decision of the arbitrator is final and that no appeal shall lie from the award. The consent must be filed with the clerk of the small claims part.

(3) The arbitrator shall forthwith proceed to hear the controversy. He or she shall not be bound by the rules regarding the admissibility of evidence, but all testimony shall be given under oath or affirmation. Either party may be represented by counsel, but no record of the proceeding before the arbitrator shall be kept. No expense shall be incurred by the arbitrator except upon the consent in writing of the parties.

(4) After the first hearing, neither party may withdraw from the arbitration unless both parties consent to, or the arbitrator directs, a discontinuance of the proceeding.

(5) The arbitrator shall make his or her award in writing and file the same forthwith, together with an opinion, if any, with the clerk of the small claims part. Unless both parties file a request in writing not to enter judgment, the clerk shall, within two days after the filing of the award, enter judgment in accordance therewith, provided the award has been filed within 30 days from the date of filing the consent. The time within which the clerk shall enter judgment may be extended by a stipulation in writing for a further period not to exceed 30 days.

(6) No fees or disbursements of any kind shall be demanded or received except as hereinabove provided.

(n) The court or a supervising judge thereof may transfer a small claim to any other part of the court for the purpose of subjecting such claim to arbitration pursuant to Part 28 of this Title and rule 3405 of the CPLR. In the event a trial de novo is demanded pursuant to Part 28, the transfer shall be deemed rescinded and the claim shall be heard in the small claims part of the court no later than 30 days after the demand is made unless thereafter it is transferred to any other part of court pursuant to law.

Historical Note
Sec. filed Jan. 9, 1986; amds. filed: Dec. 28, 1988; Sept. 23, 1991; Jan. 31, 1995; March 23, 1995; Aug. 20, 1996; April 11, 1997 eff. April 8, 1997. Added (n).

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Section 212.41-a Commercial claims procedure.

(a) A commercial claims action may be brought by a claimant that is:

(1) a corporation, including a municipal or public benefit corporation, partnership, or association, which has its principal office in the State of New York, or

(2) an assignee of any commercial claim, subject to the restrictions set forth in UDCA 1809-A. The action shall be instituted by the claimant or someone on its behalf by paying the filing fee and the cost of sending the notice of claim as provided in UDCA 1803-A and by filing and signing a written application containing the following information:

(i) claimant's name and principal office address;

(ii) defendant's name and place of residence or place of business or employment;

(iii) the nature and amount of the claim, including dates and other relevant information; where the claim arises out of a consumer transaction (one where the money, property or service which is the subject of the transaction is primarily for personal, family or household purposes), information showing that the transaction is a consumer transaction;

(iv) a certification that not more than five claims have been instituted in the courts of this State in the calendar month; and

(v) in the case of a commercial claim arising out of a consumer transaction, a certification that the claimant has mailed a demand letter, containing the information set forth in UDCA section 1803-A, no less than 10 days and no more than 180 days prior to the commencement of the claim.

(b) Unless the clerk shall require the claimant, pursuant to UDCA 1810-A to apply to the court for leave to prosecute the claim in a commercial claims part, the clerk shall reduce to a concise written form and record in a special docket the information contained in the application, and shall give to the person who signed the statement a memorandum of the time and place set for the hearing, which shall be as soon as practicable and shall advise such person to produce at the hearing supporting witnesses, account books, receipts or other documents required to establish the claim. The clerk shall advise the claimant of the right of the claimant or the defendant to request an evening hearing, which shall not be so scheduled if it would cause unreasonable hardship to either party, and the clerk shall schedule the hearing so as to minimize the defendant's time away from employment. In the case of a commercial claim arising out of a consumer transaction, the clerk shall mark the claim conspicuously as a consumer transaction and shall record it in the docket marked as a consumer transaction.

(c) Within five days after the action is filed, the clerk shall send to the defendant by ordinary first class mail and by certified mail, return receipt requested, at one or more of the addresses required by UDCA §1803-A, as shall be deemed necessary, a signed notice bearing the seal of the court, which shall be in substantially the following form:

DISTRICT COURT OF_______________________

COUNTY OF_______________________

COMMERCIAL CLAIMS PART

TO:_____________________________________________

Take Notice that____asks judgment in this Court against you for $____ together with costs, upon the following claim:

_____________________________________________

_____________________________________________

_____________________________________________

There will be a hearing before the Court upon this claim on____, 19____, at ____ o' clock ____ M, in the Commercial Claims Part, held at ____.

You must appear and present your defense and any counterclaim you may desire to assert at the hearing at the time and place above set forth. (You may request that the hearing be scheduled during evening hours if you do so within 14 days of receipt of this notice.) IF YOU DO NOT APPEAR, JUDGMENT WILL BE ENTERED AGAINST YOU BY DEFAULT EVEN THOUGH YOU MAY HAVE A VALID DEFENSE. If your defense or counterclaim, if any, is supported by witnesses, account books, receipts or other documents, you must produce them at the hearing. The Clerk, if requested, will issue subpoenas for witnesses, without fee thereof.

If you wish to present a counterclaim against the claimant, you must do so by filing with the Clerk of the Court a statement containing such counterclaim within five days of receiving this notice of claim. At the time of such filing you must pay the Clerk a filing fee of $3.00 plus the cost of postage to send your counterclaim by first class mail to the claimant. If you fail to file a counterclaim within this five- day period, you retain the right to file the counterclaim until the time of the hearing, but the claimant may request and obtain an adjournment of the hearing to a later date.

If you admit the claim, but desire time to pay, you must appear personally on the day set for the hearing and state to the Court your reasons for desiring time to pay.

Read the attached sheet for more information.

Dated:_____ , 20_____

  ___________________________
  Clerk

A Guide to Commercial Claims Court is available at the court listed above.

NOTE: If you desire a jury trial, you must, before the day upon which you have been notified to appear, file with the Clerk of the Court a written demand for a trial by jury. You must also pay to the clerk a jury fee of $55 and file an undertaking in the sum of $50 or deposit such sum in cash to secure the payment of any costs that may be awarded against you. You will also be required to make an affidavit specifying the issues of fact which you desire to have tried by a jury and stating that such trial is desired and demanded in good faith.

Under the law, the Court may award $25 additional costs to the plaintiff if a jury trial is demanded by you and a decision is rendered against you.

(d) The clerk shall note on the application the date on which the notice was mailed and the address, the date of delivery shown by the return receipt, and the name of the addressee or agent signing the receipt.

(e) If, after the expiration of 21 days (30 days in the case of a commercial claim out of a consumer transaction) from the date the notice was mailed, the ordinary first class mailing has not been returned as undeliverable, the defendant shall be presumed to have received notice of the claim.

(f) If service of notice cannot be made upon the defendant within four months following the date on which the action was first instituted, the action shall be dismissed without prejudice.

(1) Where all parties appear by attorneys, the case may be transferred to a regular part of court, and the claimant shall pay any additional filing fees required by law. If the claimant fails or refuses to pay such filing fees, the court shall dismiss the case.

(g) Unless the court shall otherwise order, a defendant to whom notice was duly given who fails to appear, either in person or by attorney, at the hearing on the day and time fixed, shall be held to be in default, except that no default shall be ordered if the defendant or his or her attorney appears within one hour after the time fixed. Notice of the default judgment, containing the information set forth in UDCA section 1807-A, shall be mailed by first class mail to the claimant and the defendant. The defaulting party may apply to have the default vacated by submitting a written request to the court; proceedings on default shall be governed by, but not limited to, section 5015 of the CPLR.

(h) If at the hearing it shall appear that the defendant has a counterclaim in an amount within the jurisdiction of the part for the hearing of small claims, the judge may either proceed forthwith to hear the entire case or may adjourn the hearing for a period of not more than 20 days or as soon thereafter as may be practicable, at which adjourned time the hearing of the entire case shall be had. An adjournment shall be granted at the request of the claimant if the defendant did not file the counterclaim with the court within five days of receiving the notice of claim.

(i) An oath or affirmation shall be administered to all witnesses. The court shall conduct the hearing in such manner as it deems best suited to discover the facts and to determine the justice of the case. If the claimant, or an attorney in his or her behalf, does not appear at the time set for hearing, the court may dismiss the claim for want of prosecution or enter a finding on the merits for the defendant, or make such other disposition as it may deem proper.

(j) Where, after a claim is filed with the clerk, either party to the action desires to implead one or more additional defendants, the clerk shall, upon receipt of the proper fees, issue and mail a notice of claim to each additional defendant under the procedure set forth above.

(k) The undertaking to be filed by a defendant desiring a jury trial shall be in the form prescribed by the relevant provisions of article 25 of the CPLR.

(l) All motions pertaining to commercial claims shall be made returnable at a part and session appointed for the hearing of commercial claims, except that a motion to remove a case from the commercial claims part shall be assigned to a judge in the manner authorized by the Chief Administrator.

(m) There may be arbitration of any commercial claims controversy.

(1) The parties to any controversy, except infants and incompetents, may submit the same for arbitration to any attorney, duly appointed as a commercial claims arbitrator by the administrative judge of this court, so assigned for such duty at that term of the court and upon whom they shall agree.

(2) The parties shall sign a consent which shall contain the name of the arbitrator, a brief recital of the nature of the controversy to be determined, a statement that they will abide by these rules, and an affirmation that the decision of the arbitrator is final and that no appeal shall lie from the award. The consent must be filed with the clerk of the commercial claims part.

(3) The arbitrator shall forthwith proceed to hear the controversy. He or she shall not be bound by the rules regarding the admissibility of evidence, but all testimony shall be given under oath or affirmation. Either party may be represented by counsel, but no record of the proceeding before the arbitrator shall be kept. No expense shall be incurred by the arbitrator except upon the consent in writing of the parties.

(4) After the first hearing, neither party may withdraw from the arbitration unless both parties consent to, or the arbitrator directs, a discontinuance of the proceeding.

(5) The arbitrator shall make his or her award in writing and file the same forthwith, together with an opinion, if any, with the clerk of the commercial claims part. Unless both parties file a request in writing not to enter judgment, the clerk shall, within two days after the filing of the award, enter judgment in accordance therewith, provided the award has been filed within 30 days from the date of filing the consent. The time within which the clerk shall enter judgment may be extended by a stipulation in writing for a further period not to exceed 30 days.

(6) No fees or disbursements of any kind shall be demanded or received except as hereinabove provided.

(n) The court or a supervising judge thereof may transfer a commercial claim to any other part of the court for the purpose of subjecting such claim to arbitration pursuant to Part 28 of this Title and rule 3405 of the CPLR. In the event a trial de novois demanded pursuant to Part 28, the transfer shall be deemed rescinded and the claim shall be heard in the commercial claims part of the court no later than 30 days after the demand is made unless thereafter it is transferred to any other part of court pursuant to law.

Historical Note
Sec. added by renum. 212.415, Oct. 1990; amds. filed: Oct. 29, 1990; Jan. 11, 1995; Aug. 20, 1996; April 11, 1997; Sept. 10, 2001 eff. Aug. 30, 2001. Amended (c).

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Section 212.42 Proceedings under article 7 of the Real Property Actions and Proceedings Law.

(a) Such proceedings involving residential property shall be commenced in the district in which the real property or portion thereof is located. No default shall be noted until at least one hour after the hour when the proceeding is called.

(b) The following form is set forth as an example of the notice of petition (the provisions relating to the demand for a money judgment should be omitted unless the petition so demands):

DISCTRICT COURT OF ___________________
THE COUNTY OF _____________________  
___________________________  
 
  )  
Petitioner
)
NOTICE OF
Address
)
PETITION
-against-
)
Respondent
)  
Address
)  
Respondent
)  
Address
)  
______________________________________  

To the respondents _________ above named and described, in possession of the premises hereinafter described or claiming possession thereof:

PLEASE TAKE NOTICE that a hearing at which you must appear will be held at the District Court of the County of_________, _________District, _________ Part, to be held at _________, Town of _________ , County of _________, on the _____ day of _____ , 19_____ , at _____ am/pm, which prays for a final judgment of eviction awarding to the petitioner the possession of premises designated and described as follows:

the_________ rooms on the _____ floor, Apartment No. _____, _____ Street, Town of _________ in the County of _________, and further granting to the petitioner such other and further relief as is demanded in the petition, which you must answer.

TAKE NOTICE also that demand is made in the petition herein for judgment against you, the respondent, for the sum of $_____, with interest thereon from _____, 19_____.

TAKE NOTICE that your answer may set forth any defense or counterclaim you may have against the petitioner.

TAKE NOTICE also that if you shall fail at such time to interpose and establish any defense that you may have to the allegations of the petition, you may be precluded from asserting such defense or the claim on which it is based in any other proceeding or action.

TAKE NOTICE that your failure to appear and answer may result in final judgment by default for the petitioner in the amount demanded in the petition.

Dated: County of__________, the _____ day of _____ , 19_____

__________________________
Attorney(s) for Petitioner
Office and Post-Office Address
Telephone Number

  _______________________________________
  Clerk District

(c) At the option of the petitioner, on condition that he serve the notice of petition at least eight days prior to the return day, the following paragraph may be inserted in the foregoing notice of petition immediately after the paragraph which sets forth the amount of money for which demand is made in the petition:

TAKE NOTICE also that your answer may be made at the time of hearing specified above unless this Notice of Petition is served upon you on or before the ..... day of ....., 19..... , in which event you must answer at least three (3) days before the petition is noticed to be heard, either orally before the clerk of the court at his or her office or in writing by serving a copy thereof upon the undersigned attorney for the [FNa1] petitioner, and by filing the original of such written answer with proof of service thereof in the office of the clerk at least three (3) days before the time the petition is noticed to be heard; in addition thereto, you must appear before the court at the time and place hereinabove set forth for the hearing.

[FNa1] If the petitioner appears in person, strike out the t the words "undersigned attorney for the."

(d) At the time of the issuance of a notice of petition by a judge or the clerk, or an order to show cause by the judge, in a summary proceeding to recover possession of real property, a copy of such order to show cause or notice of petition shall be filed with the clerk. The original papers with proof of service thereof shall be filed with the clerk within the time specified by statute.

(e) An action noticed to be heard on a day when a judge is not assigned to the part shall not be accepted for filing. The papers shall be returned to the attorney with a notification as to the days on which a judge is assigned.

Historical Note
Sec. filed Jan. 9, 1986 eff. Jan. 6, 1986.

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Section 212.43 Powers of clerks.

The chief clerk, deputy chief clerks and clerks of the court are authorized to administer oaths, take acknowledgments and sign the process and mandates of the court. Other nonjudicial personnel of the court may from time to time likewise be so authorized by order of the Chief Administrator of the Courts.

Historical Note
Sec. filed Jan. 9, 1986 eff. Jan. 6, 1986.

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Section 212.415 [Renumbered]

Historical Note
Sec. filed Dec. 23, 1988; renum. 212.41-a, Oct. 1990.