CREEDON & GILL P.C.    24 Woodbine Ave,  Ste 8.  Northport  New York  11768     ph.  (631) 656 9220    fx.  (631) 686 6718    info@creedongill.com

PLEADINGS

 

OUTLINE

INTRODUCTION

 

 

I PRE SUIT INVOLVEMENT & THE SUMMONS AND COMPLAINT

II POINT OF APPEARANCE

III CONFLICTS AND COVERAGE

A. CONFLICT

B. COVERAGE

IV CHECKING THE SUIT

A. INTRODUCTION

B. DEFAULTS

C. SUMMONS W/ NOTICE

D. CLIENT ALIVE OR DEAD

E. OWNERSHIP/PERMISSIVE USE & INVOLVEMENT

F. STATUE OF LIMITATIONS

G. SERVICE

H. BOND

I. PLAINTIFF’S VERIFICATION

J. SUFFICIENT AND CONGNIZABLE CLAIMS

V MARKING THE ANSWER

A. WHO WE ARE ANSWERING FOR

B. MARKING THE ANSWER

1. DENY

2. DKI

3. DENY EXCEPT ADMIT

4. DENY WITH LEAVE TO REFER

5. REPEAT AND REITERATE

6. GENERAL DENIAL

VI PROOFING THE MARKING

VII INTERPOSING A COUNTER CLAIM

VIII SERVICE AND DEFAULT ON COUNTER CLAIM

IX OPPOSING A COUNTER CLAIM

 

 

 

 

 

X AFFIRMATIVE DEFENSES

A. GENERAL DEFENSES

Article 16

Contributory Negligence

Assumption of Risk

Lack Of Personal Juriscidtion

Collateral Source

No Cause of Action

Necessary party

Prior Action

Collateral Estoppel

Stipulation and Release

Statue of limitations

Workmens Compensation

 

B. AUTOMOBILE CASES

 

Serious Injury

Seat Belts and Helmets

 

C. PREMISES

No Nuisance

Not Viscious

D. ASSAULT

Self Defense

E. OTHERS

 

XI CROSS CLAIMS

XII VERIFICATIONS

XIII SERVING THE ANSWER

A. REJECTIONS

XIV AMENDED OR SUPPLEMENTAL PLEADINGS

XV FURTHER COMPLAINTS

XVI BILLS OF PARTICULAR AND DISCOVERY DEMANDS

 

 

 

 

THIRD PARTY ACTIONS

 

XVII INTRODUCTION

XVIII BEGINNING A THIRD PARTY ACTION

XIX THE EMPLOYER

A. WORKMEN’S COMPENSATION LIEN

B. THE DEFENSE COUNSEL’S ROLE IN THE LIEN

XX THE ALLEGATIONS

XXI THE EXHIBITS

XXII SERVING THE THIRD PARTY ACTION

XXIII PROCESSING THE THRID PARTY ANSWER

XXIV ANSWERING A THIRD PARY SUMMONS AND COMPLAINT

 

 

APPRISE THE MANAGING ATTORNEY

A) IN ANY CASE WHERE A CLAIM OF PUNITIVE DAMAGES IS ALLEGED

B) IN ANY CASE WHERE IT APPEARS THE MATTER SHOULD BE REFERREED OUT, SUCH AS A CONFLICT

1.WHEN AFTER RECEIPT OF THE SUIT TRANSMITTAL IT BECOMES IMPOSSIBLE FOR US TO APPEAR

2.WHEN A CONFLICT AFFECTS OUR ABILITY TO REPRESENT A CLIENT

3. THE RESULTS OF ANY MOTION TO LIFT ANY DEFAULT OR COMPEL ACCEPTANCE OF AN ANSWER

4. WHEN ANY DEFAULT JUDGMENT IS SOUGHT OR GRANTED AGAINST US

5. IF A PLAINTIFF ATTEMPTS TO TAKE A DEFAULT AGAINST A DECEDENT

6. IF THERE ARE QUESTIONS CONCERNING SUFFICIENCY OF A PLEADING

7. CLAIM/CLIENT WILL NOT APPROVE A NECESSARY THIRD PARTY ACTION

8. CLAIM/CLIENT WILL NOT APPROVE APPEARANCE FOR A PARTY OR ENTITY WHICH SEEMINGLY SHOULD BE APPEARED FOR

9. BEFORE BEGINNING A DECLARATORY JUDGMENT ACTION

 

 

 

 

 

 

 

BE MINDFUL

 

1. FOR MOST PURPOSES WE MARK THE TIME OF OUR APPEARANCE UPON RECEIPT OF THE SUIT TRANSMITTAL

2. NO ANSWER MAY BE SERVED WITHOUT AN ATTORNEY PROOFING IT AND SIGNING DOCUMENTATION TO THAT EFFECT.

3. ANSWERS MUST BE SERVED BY THE STIPULATION DATE. WE DO NOT TRUST "ORAL STIPULATIONS".

 

EXHIBITS

 

1. ANSWER MARKING FORM

2. LIST OF STANDARD BILL OF PARTICULAR AND DISCOVERY DEMAND FORMS

3. EXAMPLES OF CLAIMS FOR COMMON LAW INDEMNIFICATION, CONTRIBUTION, CONTRACT, FAIL TO PROCURE INSURANCE

 

 

PLEADINGS

I INTRODUCTION

Practices grouped under the category of Pleadings are associated with dealing with the fundamental documents which advance allegations on behalf of one party against another and documents drafted in response which deny those allegations. Typically Pleadings documents include the Summons and Complaint, or Notice of Complaint and any Amended or Supplemental Summons and Complaints; our Answer to these pleadings and Cross Claims and Counter Claims we interpose with our Answer; Cross Claims and Counter Claims directed against us by other parties, Third Party Actions we begin against a new party or Third Party Actions begun against us. CPLR 3011 Kinds of Pleadings. CPLR 3018 Responsive Pleadings. CPLR 1007 When Third Party Practice Allowed. Demands for Bills of Particulars and Discovery Devices served with our Answer are also discussed under this heading.

This stage embraces the beginning of nearly all litigation and is the foundation for everything that follows. Accordingly its importance cannot be overestimated.

 

II PRE-SUIT INVOLVEMENT & THE SUMMONS AND COMPLAINT

 

The most common way for our office to become involved in a suit is for a Summons and Complaint which has been received by Claim/Client  to be sent to us with a Suit Transmittal notice.  The Complaint is typically a document which contains individually numbered paragraphs which set out pedigree information about the plaintiff and our client, identify the time, place and nature of the accident, represent that the cause of the accident was our client’s negligence, avers that the plaintiff was seriously injured through no fault of his own and is therefore entitled to a money judgment against our client. The Summons is a technical notice which accompanies the complaint and which serves to advise whoever it is served upon that they are being sued by the Complaint the Summons is attached to. To commence a lawsuit, the plaintiff’s attorney need only complete a few steps. CPLR 304 Method of Commencing Action or Special Proceeding. He draws up the Summons and Complaint (and gets his client’s verification if his client lives in the same county his office is in), files a copy - typically by EFILE and purchases an Index Number (the number the Court uses to keep track of the case), has a process server serve the summons and complaint on the defendant in one of the ways provided for in the CPLR, ( CPLR 308 Personal Service upon a Natural Person 306 for Commercial Entities) and then files an affidavit from the process server averring to service in the same Courthouse (an Affidavit of Service CPLR 306). The issue of whether the Summons and Complaint has been properly served can get quite technical. The defendant at this point has 20 days to respond to the Complaint if received by personal service, 30 otherwis. CPLR 320(a). Typically they forward it to the carrier and Claim will contact the plaintiff’s attorney to request an extension of time to answer. At this point, as at any point when a defendant seeks an extension of time to answer, wrangling can develop as the plaintiff attempts to get the defendant to concede that service was good as a condition of the stipulation.

Customarily, once it becomes clear that the suite will not be settled, Claim sends the Summons and Complaint to us with the Suit Transmittal form. We assign a Docket Number to the case, calls for a stipulation of time to answer if necessary and check to see if we have any pending litigation with any of the parties. If we do not, the matter is referred to the Managing Attorney who assigns the suit to an attorney for defense. If the plaintiff will only agree to a stipulation conditioned upon us waiving our jurisdictional defenses, the matter is marked as a rush to the Managing Attorney’s attention. The matters due date is recorded in our database, and when an answer is prepared a copy is given to default avoidance and logged in the default avoidance system.

 

III POINT OF APPEARANCE

 

As is discussed in the next heading, the precise point which marks when we officially appear as attorneys for a client is sometimes of important significance. CPLR 320(a). As a general rule any time we produce any document or take any action which identifies us as attorneys for a client we have appeared for them. Thus a stipulation sent to obtain an extention of time represents a notice of appearance. The most common appearance is made by service of the answer. For most purposes we should consider ourselves to have appeared once the suit transmittal is received. In any instance where we have received a suit transmittal and are lead to the conclusion or result that we will not appear for a client the Managing Attorney must be advised.

 

IV CONFLICTS AND COVERAGE QUESTIONS

 

A.CONFLICTS

 

If there is a conflict of interest affecting our potential representation of a client, then that matter must be brought to the Managing Attorney’s attention for the matter to be referred to other counsel. Some conflicts are obvious, there is a conflict if we are asked to represent two drivers involved in the same collision, or if we have represented a plaintiff as a defendant in some other action, or if we have opposed a prospective client as a plaintiff in some action. Some conflicts are less obvious but frequently encountered.

A more complicated scenario can arise when there is the potential for a conflict between the owner of a vehicle and its driver. Perhaps it is claimed that the owner negligently entrusted the vehicle to an underage or intoxicated driver or kept the vehicle in such disrepair that the accident was inevitable. The driver might want to push liability back at the owner, or the owner might try to deny that there was indeed permissive use by the driver and that the driver took the keys without the owners knowledge. Any time there is more alleged against an owner that vicarious liability the attorney should be cautious of a potential conflict. The issues can get crossed and difficult to thread out, and even then good attorneys can disagree on whether a conflict exists. Again, in any case where a conflict is detected or suspected, the Managing Attorney must be advised, the attorney must be vigilante.

 

B. COVERAGE

 

Coverage questions are associated with whether and to what degree an insurance company must provide an insured with defense and indemnification. This is a technical and exhaustive area of law. The topic is itself the subject of thick tomes and reams of decisions and litigation and of course beyond the scope of this guide. Occasionally we will be asked to assist Claim in determining their contractual obligation to defend and indemnify one of their assureds. Questions of this sort should be directed to the attention of the Managing Attorney who may delegate the attorney to form an opinion. Be mindful that we can never participate in coverage questions on a particular case after we have received a suite by suite transmittal, nor can we indicate to Claim that we believe their decisions to provide coverage are erroneous. To do so puts us in fundamental conflict with the interests of our clients. We may never appear on a case if we have recommend less than full coverage.

  

V CHECKING THE SUITE

 

A. INTRODUCTION

 

We answer a complaint by drafting an Answer which responds to the Complaint’s allegations, which intersposes Affirmative Defenses, raises Cross or Counterclaims and Demands for Bills of Particulars and Discovery Information. CPLR 3011 Kinds of Pleadings. Before the attorney undertakes to answer the Summons and Complaint by marking the paragraphs with his responses and interposing affirmative defense and cross and counterclaims several issues must be covered.

  

B. DEFAULTS

 

In circumstances where we receive the case after plaintiff has already made a motion for default, or the default has already been granted, the motion to oppose or lift the default must be made immediately !!!! CPLR 5015(a). The Managing Attorney must be apprised in writing of the results of the motion and involved in the decisions of what course of actions to take should the motions fail. IN NO CASE IS AN ATTORNEY PERMITTED TO RELY ON AN "ORAL" STIPULATION OR REPRESENTATION THAT A DEFAULT WILL NOT BE ENTERED OR THE MOTION CONTINUALLY ADJOURNED IN ANTICIPATION OF SETTLEMENT

 

C. SUMMONS WITH NOTICE

 

While most of these practices attend the Summons and Complaint, how we get about 90% of our cases, we still sometimes get a Summons with Notice. CPLR 3012(a)(b).This is basically a bare Summons which calls upon you to appear and demand that the complaint be sent along. It is usually used in simple cases with low ad danums. In this circumstance, a Demand for the Complaint is to be made immediately and the demand diaried. Upon expiration of the demand (20 days), a single extension may be granted to plaintiff of 10 business days. Upon expiration of this extension, an appropriate motion must be made within 5 business days.

 

 

D. CLIENT ALIVE OR DEAD

 

A lawsuit cannot be commenced or continued against a dead person. It must be brought against the decedent’s estate. Often the plaintiff will not know when his process server nails and mails a complaint to a defendant’s door that he is dead, but Claim will find it out when they try to figure out the facts of the incident. In such a situation the service is a nullity. CPLR 1015(b), 1016, 1021 SCPA 1002. It is our responsibility to advise the plaintiff of the defendant’s death and provide them with a death certificate, if available, as proof. It is then incumbent on the plaintiff to serve the Estate of the decedent to commence to the lawsuit, or to have the surrogate court appoint an administrator for that purpose if one does not yet exist. Sometimes plaintiff’s attorneys will try to get us to do that, but it is well settled that it is their job. If any situation arises where the plaintiff tries to forge ahead with a default judgment against a decedent advise the Managing Attorney.

 

E. OWNERSHIP, PERMISSIVE USE & INVOLVEMENT

 

The attorney must verify the issues of ownership of a vehicle or premise and a drivers permissive use of the vehicle. Usually the question of ownership of a vehicle remedies itself, because it is the fact of ownership that brings the insurance company and hence ourselves into the case. We have seen weird cases however, where people claim they have sold the vehicle and turned in the plates only to end up sued after a later crash none the less. It is more common in the case of premises for clients to deny they do in fact own the situs of the accident. Determining who owned a particular place at a particular time can be difficult for a plaintiff, and especially so if a veil of corporate ownership or partnerships get involved. If Claim has made an investigation and reached a written decision of ownership, it may be relied upon. It is also permissible to permit a paralegal to make this inquiry.

Most often a driver who is not an owner has the clear permission of the owner to drive and use the vehicle. If that is not the case then a conflict exists between the driver and owner, since the owner might escape vicarious liability on this note. Again, if Claim has made an investigation and reached a written decision, it may be relied upon. It is also permissible to permit a paralegal to make this inquiry. If we have been asked to appear for someone who does not seem to have clear permissive use, see the Managing Attorney, and see him if we have not been asked to appear for a party who did seem to have permissive use. In some instances there may be odd leasing arrangements that insulate us from ownership, or an auto or premise might be owned by a company .

In normal leasing situations, we generally serve as the owner for litigation purposes.  BE MINDFUL THAT BIG HEADACHES CAN RESULT WHEN A LEASING COMPANY IS NAMED AS DEFENDANT, WE APPEAR FOR THEM , AND THEY WANT TO INTERPOSE A CROSS CLAIM AGAINST THE DRIVER FOR CONTRIBUTION BASED ON THE LEASING CONTRACT. STOP, DON'T DO THAT AND SPEAK TO THE MANAGING ATTORNEY.

We must determine whether our clients acknowledge that they were involved in the accident which is the subject of the instant action, or that such an accident took place to their knowledge. Usually this is the case, and by at least acknowledging that they were involved a lot of unnecessary litigation will be avoided. Sometimes this is not the case, however, and our clients deny they were ever involved in any collision. Make sure we do not admit to any contact we were possibly not involved in.

 

  1. VENUE

The attorney must be familiar with the CPLR provisions and attendant cases which indicate where a suite may properly be brought. CPLR 503, CPLR 327. The grounds for claiming that a case is venued in a particular county and forum must be stated in the complaint. Typically the county of the plaintiff’s residence or the county of residence of a defendant are relied upon as the reasons. The plaintiff will of course wish to bring his suite in the venue considered the most plaintiff oriented and favorable. Extreme tactical advantages can attend the venue of a law suite, let alone the issues of the convenience of our clients. Where a change of venue is available as a matter of right, a Notice of Intent to move to Change venue must be served with the answer and the motion made within 20 days except where the case would be moved into a more plaintiff oriented jurisdiction. Where the change is at the court’s discretion, it should be made within 30 days of the answer, except where the case would be moved to a more plaintiff oriented jurisdiction. CPLR 510, 511(b). See the Motion Chapter of this guide for more details on this area.

Removal where available to federal jurisdictions is sometimes favorable because of smaller damages awards in this courts. On the other hand they are insufferably serious about making a Federal Case out of everything and the attorney should proceed cautiously when considering this. Any change of venue motion needs to be preapproved by Claim.

 G. STATUTE OF LIMITATIONS

The complaint’s accident date must be examined and compared against other documentation in the file. In close cases, a statute of limitation defense should be considered since it may prove that the accident occurred on a date other than the one plead or that plaintiff did not obtain jurisdiction in the statutory period. The statutes are generally three years for negligence, but only one year for intentional torts like assault, defamation or false imprisonment. CPLR 211 through CPLR 217., and two years for wrongful death, this includes the time it would take to get an administrator appointed! In cases where the plaintiff has clearly blown the date, a motion to dismiss should be made before

H. SERVICE

 

CPLR 308-316. Verifications of service MUST be undertaken before answering the complaint. It may be verbal from the client and may be undertaken by our paralegal. If service is denied by our client or if plaintiff’s counsel does not permit an extension necessary to verify service, a jurisdictional defense should be immediately imposed. Usually in practice what will occur is that the plaintiff will see our affirmative defense of lack of jurisdiction in the answer and send a letter along with a copy of his process servers affidavit of service asking us to withdraw the affirmative defense. He will often send along a stipulation already drawn up for that fact. We will send him back a letter telling him that we are trying to verify service from our client and will sign the stip once a verification or waiver from our client is received. In the mean time we send out a letter to our client asking them to confirm service, or if there is a good stretch of time until the statue runs (9 months) to waive this defense. When they respond with the waiver of confirmation we withdraw the defense. If they swear up and down they were not served and time is running short, we will litigate the issue. If service is denied by our client or if plaintiffs counsel does not permit an extension necessary to verify service, a jurisdictional defense should be immediately imposed. An affidavit of service provided by plaintiff's counsel is not conclusive proof of service. If our client does not cooperate into our inquiry of service; does not return phone calls and does not respond to a written inquiry and plaintiff's counsel provides an affidavit of service which is valid on its face, then a jurisdictional defense need not be interposed or may be withdrawn. In circumstances where there is still a long period of time before the statute of limitations will expire, it is appropriate to request a written waiver of a tenable jurisdictional defense if it appears that the plaintiff will easily be able to obtain jurisdiction. See the Motion chapter of this guide for further details on this.

Finally in this regard the attorney should watch out for plaintiff’s counsel making unilateral pen changes to stipulations in this area. We have seen a spate of instances like this, where the Supervising Secretary or Legal Secretary obtains an agreement for an extension without conditions, sends a stip that is void of language on the issue and it comes back with the plaintiff having penned in that we waive the jurisdictional defense. In such a case the plaintiff’s counsel should be immediately informed in writing that we are not waiving the defense, never consented to waive the defense and are putting it in the answer. In extreme cases, such as where the statue has or is about to expire the attorney should consider a motion to clarify this point.

 

 

 I. BOND

 

Where the plaintiff is a resident of a state other than New York, the CPLR provides that a bond may be required of plaintiff’s counsel as a guarantee against costs. This causes a difficulty for the plaintiff and stays the proceedings until it is observed. Enforcing this requirement is discretionary.

 

J. PLAINTIFF'S VERIFICATIONS

 

CPLR 3020, 3021. It should be assured that plaintiff's attorney only verifies the complaint when the plaintiff lives in a county other than the one in which the attorney keeps his office. In other circumstances, the plaintiff should be advised by letter that we require such a verification and a motion to dismiss should follow the letter if the verification is not forthcoming.

 

K. SUFFICIENT AND COGNIZABLE CLAIMS

 

In some rare instances, the plaintiff’s counsel can be so inept or so far out in left field that his Complaint does not even rise to a level of beimg actionable. Easy mistakes for the plaintiff to make are to omit any reason why venue is grounded in a particular venue, or to leave out the date or place of the accident or even fail to allege a Serouis Injury as required to in automobile cases by 5102 NYS Insurance Law. Less frequently a plaintiff will be trying to haul our client in on some half-baked theory of liability that has no legal foundation. Sometimes these are the ravings of demented pro-se plaintiffs but sometimes they can be calculated efforts of bright and cunning professionals. In a recent example, the president of the New York State Trial Lawyers Association tried to stretch a Workers Compensation theory that can get payments for someone injured on an office Softball team into a respondeat superior theory that would hold them responsible for injuries to someone on another team caused by their employee. If the claims are clearly bankrupt from the start, or there is not sufficient information to permit you to defend the case and put you on notice of exactly what you are being sued for, then a motion to dismiss for failure to state a cause of action, or for facial deficiency should be brought. Tactically, some lawyers will simply plead an affirmative defense of No-Cause of Action and wait until the statute runs to try and dismiss the matter. If you are not comfortable making this tactical decision, or you have any doubts about the sufficiency of the pleadings, see the Managing Attorney. CPLR 3211(a)7, Motion to Dismiss for Failure to State A Cause of Action. CPLR 3024 Motions to correct Pleadings. (a) Motion for a more Definitive Statement. Every Pleading must consist of plain concise statements CPLR 3014, that must be stated with particularity CPLR 3013, 3015. See the Motion section of this guide for further details on this.

 

 

V MARKING THE ANSWER

 

INTRODUCTION

 

Our Answer to a Complaint is prepared by use of an Answer preparation form that consists of a single page divided into several parts.. First the form calls for an identification of who we answer for. Next is a series of lines which permits the attorney to indicate which paragraphs of the complaint he wishes to deny, admit or otherwise respond to as described in more detail herein. Next the form calls for the attorney to choose from a menu of affirmative defenses. Then comes a section for the attorney to indicate what cross or counterclaims should be interposed. After this is a section which calls for the attorney to select a closing paragraph based on what decisions he chose concerning cross or counterclaims. Near the end the type of verification that will be used is selected, individual, corporate or attorney. Finally is a section that calls for the attorney to indicate which Bill of Particulars, Discovery or other Demands he wishes.

 

 

A. WHO ARE WE ANSWERING FOR

 

The start of the answer marking form calls for an indication of who we are answering for. This is a seemingly simple yet critical entry. The answer will go out with a indication in its first paragraph of who we are answering for. If this is incorrectly indicated or proofed we can end up representing parties we don’t insure, then they turn out in opposition to each other and we have to send both cases out while the carrier ends paying for it all. A mess of big proportions.

 

First make sure that the name plead against our client is correct. If we know we are in the accident and the name is close it is OK to answer as [real name] "sued herein as" [sued by name]. On occasion John Doe names will be plead, usually where the plaintiff doesn’t know who was driving, We never appear for a John Doe.

 

Double check on who we are directed to appear for against the caption and papers transmitted by Claim. Sometimes it is evident that we should appear for someone on the caption. Like a permissive use driver, but Claim did not pick up on it. Contact them to approve an appearance. Sometimes in the confusion of mother/owner/insured & daughter /driver/client whom we are told to appear for versus who is being sued gets tangled.

 

 

 

B. MARKING

 

CPLR 3018(a) requires a defendant to respond to a complaint with denials or admissions. All denials must be in good faith. Dahlstom 198 NY 449. The customary practice is to mark in the margin next to a complaint’s numbered paragraphs what marking the attorney wants in relation to each. Our office next groups the paragraphs by how we will deal with them onto the answer marking form. Before you begin marking the complaint make 4 copies of it. One is the marking copy. It will get drawn all over. Another will go to our client for verification. The other two are file copies.

 

Next are lines which call for the attorney to indicate which paragraphs of the complaint he wishes to Deny, usually indicated with a D, Admit (A or no mark since matters not denied are deemed admitted), Deny on Information and Belief, (DIB) Deny Knowledge or Information Sufficient to form a basis of belief, (DKI), Deny Except Admit (DEA), Deny or DKI and Refer all Questions of Law to the Court (D&L or DKI/L) or Repeat and Reiterate. (R&R). There are also variations of these markings which permit us to distinguish ourselves from a co-defendant where allegations against both of us are made in the same paragraph.

 

3, 3.1, 6.1: D, D/A, DIB: DENY & DENY AS TO THIS ANSWERING DEFENDANT AND DENY ON INFORMATION AND BELIEF

 

As a rule, any paragraph which alleges in whole or in part that we were negligent or caused an accident or injury, or that the plaintiff was injured or damaged must be denied, as should any allegation that the plaintiff was not contributorily negligent.

 

  

4 DKI DENY KNOWLEDGE OR INFORMATIN SUFFICIENT TO FORM A BELIEF

 

Generally allegations made about the pedigree status of the plaintiff or co-defendants are DKI’d. Thus we DKI allegation that the co-D or plaintiff was a resident of a particular county, owned a particular car, was driving on a particular time on a particular road at a particular time or was married to a particular persons. Also commonly DKI’d is an allegation that a particular road was a "public and much traveled thoroughfare". When in doubt most attorneys will err on the side of DKI or Deny. One caution to recall is that occasionally allegations which come back at us will be made through paragraphs aimed at a co-defendant. For instance it may be alleged that a our tenants dog was viscious. An ordinary knee jerk reaction is to DKI anything that doesn’t directly address us. But here we should Deny since we are denying the dog was viscious all along.

 

 

 

4.2, 6 D/A OR DKI/A: DENY or DKI EXCEPT ADMIT

 

Commonly the DEA marking is used to correct typographical errors of a clerical, that is insignificant, magnitude. Thus where we know we were involved in an accident and our plate # is TBA125 and plaintiff plead it as T8A12S, it is customary to use this marking. It is done by underlining in a paragraph what you will admit, lining out what you will deny and handwriting in such language as necessary to make the correction. Make sure you check these well when you proof the case since they tend to get jumbled. The marking may also be used to change that allegation that we struck or collided with a vehicle to the more neutral "were in contact with" another vehicle. If it is alleged that we maintained, repaired and controlled a premise we should DEA that we did so" except at such times as the premise was maintained repaired and controlled by others.", that keeps the door open for repairmen and vendors who may have had a hand in the thing.

 

4.1, 5 D/L, DKI/L: DENY WITH LEAVE TO REFER QUESTIONS OF LAW TO THE COURT

 

This marking is used whenever a complaint refers to law, for instance some plaintiffs routinely allege that Article 16 of the CPLR, the section which suspends the rule of joint and several liability does not apply to the subject automobile case. In practice it is sufficient to simply Deny an allegation as easily as D&L it.

R & R: REPEAT AND REITERATE

 

This marking is used in response to the beginning paragraph of a second or third cause of action for instance for a spouses derivative action. The plaintiff puts in language that he "repeats and reiterates the paragraphs numbered _ through _." Our R& R marking results in language that we repeat or responses thereto.

 

GENERAL DENIAL

 

This is a single blanket statement which purports to deny everything in the pleading. Because of its blunderbuss approach it has generally fallen into disuse and we do not use it.

 

VI PROOFING THE MARKING

 

The markings have to be proofed carefully. The eve of trial is no time to find our that you have admitted that your client was negligent. First reread the complaint to make sure that your decisions concerning which paragraphs to mark in which fashion was correct. Then make sure that the paragraphs were grouped properly on the marking sheet. Then make sure that the secretary got them right on the answer. A misstep or typo in any of these clerical steps could be nightmarish.

 

VII INTERPOSING A COUNTERCLAIM

 

CPLR 3019(a) Counterclaims and Cross-claims. A counterclaim is a paragraph which attacks back at somebody already named as a plaintiff in order to pass through responsibility for damages to another plaintiff. Commonly a husband and wife will be involved in an accident with the husband driving. The wife won’t sue him because their insurance company has an inter-spousal exclusion. (Keeps down on collusion). She sues us and the husband has a case against us for his own physical injury or for a loss of consortium claim. (Loss of sex or homemaking services principally). We in turn Counter Claim against the husband, alleging that his negligence caused or contributed to his wife’s injuries. Now their insurance company will step in and defend the counterclaim as if it was a regular law suite, assigning a law firm to defend against the counterclaim and interpose an answer against us and participate in the case as defendants, but in most respects taking a back seat to the plaintiffs attorney.

 

Generally in any instance where there is a plaintiff who was a driver and another plaintiff who was physically injured, a Counter Claim is interposed against the driver. There is no counterclaim interposed against drivers for their own injuries or against them referable to loss of consortium claims by their spouse. In these cases the affirmative defense of Contributory Negligence serves to offset and reduce these damage amounts.

 

VIII SERVICE AND DEFAULTS ON COUNTERCLAIMS

 

When a counterclaim is interposed service on the plaintiff’s attorney is sufficient. The plaintiff may default in answering the counterclaim as required by CPLR 3018 if he fails to interpose an answer to it. Thus service of the counterclaim should be diaried for 30 days after it is served. If a response has not been received a letter with a 20 day deadline should be sent and the default must be followed on if an answer is never received. IT IS IMPERATIVE THAT THE COUNTER CLAIM BE DIARIED TO FOLLOW ON FOR REGARDING DEFAULT, IF NO ANSWER IS RECEIVED AND IF A DEFAULT IS NOT TAKEN BEFORE A YEAR ELAPSES, AS WITH THE PLAINTIFF’S OWN COMPLAINT, THE DEFAULT IS WAIVED AND THE COUNTER CLAIM DEEMED DISMISSED!!!!!

 

IX OPPOSING A COUNTERCLAIM

 

Opposing a counterclaim served against our client is in the majority of respects the same as opposing a normal complaint served on us and is received in the same fashion with a suite transmittal. The principle difference is that we do not require a Bill of Particulars from our own client. We should require a Bill of Particulars from the defendant on what they claim our negligence was. We will be in unity with our client on liability, although they might be tempted to roll over on themselves to go after their own policy to help the other plaintiff, usually a spouse or child. We will be in opposition to the other plaintiff on their damage claims and will want to develop as full a medical picture as possible.

 

X AFFIRMATIVE DEFENSES

 

Care should be taken to ensure that all viable affirmative defenses are interposed. A number of these are included as Manuscript paragraphs that can be selected by number from the Answer Menu. Others are not availble by checking off a number and a paragraph of the language you want to include will have to be provided to you secretary. In such a case the correct language can be found in the Benders forms books in our library. Affirmative Defenses are defined, and some listed in CPLR 3018(b). Those we use most commonly are set out below, but the attorney should undertake some study in this area to familiarize himself with the defenses used less frequently.

 

A. GENERAL DEFENSES

 

17. Article 16: This is the section of the CPLR which will permit you to foist off liability on tortfeasors who may have contributed to the plaintiff’s injuries but who the plaintiff has not brought into the case. You have to show i that they have culpability and that the plaintiff could have gotten jurisdiction over them and you can try your case against an empty seat. Be mindful that this defense is NOT a substitute for a Third Party Action where the Third Party Action will be effective. Article 16 targets might include the mugger in a premises liability case, the manufacturer in a scalding water boiler case, or a contractor in a construction case. The attorney must be familiar with this section and its ins and outs. A good place to start is McKinneys and the practice commentaries. This is a relatively new law and is still being fleshed out by the courts. A drawback is that the plaintiff can lock you down to who you will blame by demanding a Bill of Particulars on this affirmative defense.

The major drawback for us is that it specifically does not apply to motor vehicle cases. We recommend it be plead in every case none the less. It does not apply to emergency vehicles and we are still unsure how it might apply to repairmen and claims of defective brakes and what the courts might do with it yet.

13. Contributory negligence:

16. Assumption of the risk : The basic premise of these defenses is the same, that the plaintiff did something to contribute to or cause his own injury. These should be plead in every case, with the possible exception of very young infants, and by young we are talking toddlers in diapers. Article 14 of the CPLR controls these defenses. In a Sports Injury case, (skiing or softball for example), Assumption of the Risk is usually the main defense. You will have the burden of proving them at trial, as you will with any affirmative defense. These should be plead against passengers, although some attorneys will chafe at the idea that a passenger can be contributorily negligent. The law is well settled that they can however, by riding with a drunk, or not warning the driver of dangers they see coming, or not getting out of a vehicle when they have the chance if it is being operated unsafely.

 

18 Lack of Personal Jurisdiction

19 Lack of Subject Matter Jurisdiction

These should be plead in any instance where it is not absolutely clear that service is good. Usually the lack of subject matter jurisdiction claim stems from the claim of lack of personal jurisdiction, that is bad service on our client. This defense, however, is also avaibable where a plaintiff’s attorney tries to bring an action in an inappropriate forum. As a general rule if one is plead both should be plead.

17.1 Collateral source: This represents that the plaintiff has recovered monies from other sources to reduce his out of pocket expenses and by which we are entitled a set off. An example of this is Social Security Disability payments. These amounts can get large in relation to the verdict, so make sure this defense is always in there.

21. No Cause of Action: As previously discussed under the heading of checking the suite before marking the answer, in all circumstances where plaintiff's claims are novel or unusual, a defense of no cause of action should be interposed. This is especially so when plaintiff attempts to attribute liability to a parent or a good Samaritan or endeavors to create some duty which is not immediately recognizable to the attorney.

Not in Menu: Necessary Party: This alleges that someone who the issue cannot be decided without, or who should necessarily be a party to the action has not been sued by the plaintiff even though he could get jurisdiction over them. This is most often seen in contractual disputes and will be used in coverage disputes to try and drag insurers into a case.

Not in Menu: Prior Action: This alleges that the issue has already been litigated in some court of similar jurisdiction. It is not the same as collateral estopel, although it is a close relative.

Not in Menu Collateral estopell: This alleges that the issue has been decided in something other than a court of similar jurisdiction, for instance a No-Fault or arbitration proceeding.

Not in Menu Stipulation, Release or Settlement: This defense alleges that the dispute has been previously resolved by the plaintiff agreeing to and accepting something of value to forgoe a suite. This area involves the sub topic of "drop checking" a practive whereby one party sends another an unsollicited check with the language inscribed on it to the effect that cashing the check represents an agreement to settle the dispute for that amount.

22. Statute of Limitations: As discussed, this alleges that the time in which the plaintiff was entitled to bring the suite has passed. It should be plead where ever the issue is close.

20 Workers Compensation: If the plaintiff is an employee of ours he can’t sue us. Keep in mind that a person can be an employee of more than one person or entity. In particular he could be what is called a special employee, that is one whose main employer gives up most day to day control over him to another employer. If there is any question about the employee employer relationship, this should be plead.

B. AUTOMOBILE CASES

23, 15 Serious Injury: This is controlled by Section 5102 of the Insurance Law, which provides that in order to bring a suit in an automobile case the plaintiff must have a serious injury as they describe it and as the courts have interpreted it. (Fracture, significant disfigurement, protracted impairment of health, significant consequential loss of a bodily function, etc.). There is some doubt about whether it actually needs to be plead, but nobody takes any chances. Don’t plead this in anything other than an auto case.

14 Seat belts defenses: This defense alleges that the plaintiff failed to use available seat belts an so contributed to their own injury. To prove this defense, which can be devastating to a plaintiff, you may need an engineer and Doctor at trial. However, at this stage it is simply plead in any automobile case. In a Motorcycle case, their is a corresponding Helmet Defense. Don’t plead these in a pedestrian knockdown case!

23.1 Failure to Mitigate Damages. If it is found that the defendant caused injury to the plaintiff, the responsibility of the defendant to the plaintiff shall be reduced by the amount found by the jury to be attributable to the plaintiffs own failure to reasonably mitigate, reduce and control his damages. ALWAYS PLEAD THIS DEFENSE!!! It will aply, for instance, in cases where a plaintiff failed to follow doctors orders which might have enabled a better recovery.

C. PREMISES

Not in Menu: No Nuisance: In trip or slip and fall cases it is customary to plead that the premises were built and maintained in accordance with applicable laws and thus did not constitute a nuisance or trap under the law.

Not in Menu: No vicious propensities: In dog bite cases it is customary to plead that the dog did not have and the owner was not aware of any viscous propensities on the dogs part. Teasing: It is also customary to plead that the victim teased or provoked the dog.

 

D. ASSAULT

Not in Menu: Self defense: It is customary in assault cases to claim that the plaintiff either provoked the incident or that our client was acting in self defense.

E. OTHERS

This is not an exhaustive list of affirmative defenses. The attorney should be familiar with those that we have ready set to be added to the pleadings, and if confronted with an unusual fact pattern research the issue of what affirmative defenses are available to him. CPLR 3014 provides that these defenses can be inconsitent and hypothetical.

XI CROSS CLAIMS

A. GENERALLY

A Cross Claim is a claim which seeks to attack co-defendants already named along with us in the action. It essentially serves as a conduit through which liability can be apportioned. It is controlled by CPLR 3011 and 3019 and is subject to the usual rules for pleading a cause of action.l If we do not have good Cross Claims against our co-defendants, a plaintiff might choose to enforce 100% of a particular judgment against us even though we were only 50% liable and we would be unable to get the co-defendant to chip in his share of liability. Most often these claims are boiler plate paragraphs which attack a co-defendant for active and passive negligence, contribution and contractual indemnification. If you are not familiar with these terms, they are discussed in some more detail in the section on bringing a Third Party Action. Keep in mind that the boiler plate may not be sufficient if you are confronted with an unusual fact pattern, using a manuscript cross claim that you draft yourself, or the paragraphs from a Third Party Action might be better. If you are in doubt, ask the Managing Attorney.

B. SERVING THE CROSS CLAIMS

There is a school of thought which holds that you should wait until the co-defendants appear by counsel and then serve the counsel with the Cross Claims. For our purposes, however, Cross claims should be served immediately on defendants pro-se. Service by regular mail with a Scretary’s affidavit of service to the address provided by plaintiff in the Summons and Complaint is sufficient. Waiting until appearances are made often results in cross claims never being served. If the mailing is returned as undeliverable, it should then be served on appearing counsel.

C. ANSWERING A CROSSCLAIM

Cross claims received need only be answered where there is a demand that they be answered. The attorney may in his discretion seek a Bill of Particulars on a Cross Claims. CPLR 3011, 3019.

XII VERIFICATIONS

If the client is a corporation then an Officer who is in a position to aver to the truth of our answer’s veracity based on information and belief must sign a verification. Usually in large companies one is desiginated for this purpose. The attorney may sign a "Informaion and Belief" verification when our client lives outside of the County our office is in. Where a client's verification is required, it is appropriate to serve an answer unverified with a letter indicating that the verification has been forwarded to our client for execution and will be sent alone upon its receipt. CPLR 3021, 3020(d).

XIII SERVING THE ANSWER

Once the Answer is proofed and reviewed by the attorney it is given to the secretary to serve. Even though a paralegal may be asked to make routine inquiries and markings of simple Answers, no answer may be served without being carefully proofed by the assigned attorney and a writing documenting that fact signed The attorney will verify that the answer correctly reflects the markings of the answer sheet and that the markings of the answer sheet respond appropriately to the allegations of the complaint, that appropriate affirmative defenses have been interposed and cross and counterclaims made. The answer must be served before any stipulation date expires. If the answer is already overdue when assigned and a satisfactory stipulation cannot be obtained it must be prepared and served immediately. The service date will be notarized by the secretary. "Back dating" of service dates is forbidden. Claim will be provided with a copy of the answer. The answer will be served on all co-defendants so that cross claims are interposed. The current practice is to then provide a copy to the  'default avoidance' file, which logs the fact of service into our database and gives us the ability to see if any matters remain 'unaswered' after their due date.

B. REJECTIONS

In some circumstances a plaintiff’s attorney will see that we have interposed a jurisdictional defense against his liking and try to play hardball by "rejecting our answer". That is claiming that we are too late and not in compliance with any agreement he gave us to extend the time to answer and he is now going to move for a default judgment against our client. In circumstances where our answer is rejected, it is appropriate to devote 5 business days to rectify the cause of the rejection if it appears that these efforts will be fruitful by obtaining our client's waiver of jurisdictional defense. After expiration of this period, or if such efforts will not prove fruitful, or if the defense should to be waived because it is good and the statute of limitations time is short, a motion to compel acceptance of our answer must be made immediately with the Managing Attorney apprised in writing of its results.

 

XIV AMENDED OR SUPPLEMENTAL SUMMONS AND COMPLAINTS

 

Plaintiff will sometimes serve an Amended or Supplemental Summons and Complaint as provided for by CPLR 3025(a), generally once as of right within 20 days of service of the answer. They may realize they have served the wrong parties, or left out a cause of action that should have been plead. In these circumstances, the attorney must assure that the amended pleading has been served within the time permitted by law or else that an appropriate motion to the court for permission to Supplement or Amend the pleading preceded the service. If it did not, if the plaintiff’s attorney served these pleadings late and without the permission of the court, they should be struck by motion. In other situations the adverse attorney may request us to stipulate to these pleadings. Whether to consent or require a motion is left to the discretion of the attorney. They are generally freely granted, but the attorney must be careful concerning defenses of time or service he might have, or claims which are not legally founded, or which may require further ebt’s and discovery.

 

XV FURTHER COMPLAINTS RECEIVED AFTER ANSWERING,

OTHER THAN AMENDED OR SUPPLEMENTAL COMPLAINTS

It may occur after answering that other actions which seek to proceed against our client are sent directly to us as attorney. This may occur, for example, where a co-defendant decides to initiate his own action as a plaintiff. In such a case, Claim must be apprised and provided with the pleadings and authorize our appearance before we answer. A separate docket number should be opened for this case. An appearance may be made based on an oral okay by Claim due to time constraints, however a written okay to go ahead is ultimately necessary, the Claim process of opening a file and forwarding a suit transmittal to be set up with a docket number should be followed, as should our procedures for then opening a file, including appearance letters, lit plans, etc. Make sure the office knows this case exists! The file boxes should be clearly cross referenced.

XVI BILLS OF PARTICULAR AND DISCOVERY DEMANDS

There is some disagreement over whether Bills of Pariculars are technically pleadings, or merely documents which amplify the pleadings. Whatever the case, they are demanded when our answer is served, along with another Discovery device, the Demand for Specified information. Bills of Particulars are fundamental documents to the defense of any case, and along with the complaint form the nucleus of the planitiff’s case. As a general rule it is not a device to gather evidence but instead intended to provide an expansion on the pleadings. Yardum 253 NYS2d920,. NYState 311 NYS2d511.

The Bill of Particulars supplies information about the precise time and place of occurrence, what precise acts of negligence it is claimed our client is responsible for; what laws or statutes it is claimed our client violated or what the defect in issue was, precisely what makes the injury a serious injury, what the injury was, how long the plaintiff was confined to bed, hospital and home, what his course of medical treatement was; what his special damages are; how much time he lost from work whether he continues to be disabled and what witnesses are known. In a Personal Injury action the items to be demanded are particularized in a statutory list at CPLR 3043(a). The Bill also should supply authorizations for employment and medical providers. The Demand for Specified Information generally parallels the CPLR in demanding photographs, party statements, accident reports, collateral source information and witness information. If we receive complete responses to our Demand for a Bill of Particulars and Demand for Specified Information we should have a nearly complete picture of what the case is about.

Each secretary has a book which contains form Demands for Bills of Particular and Demands for Specified Information. A different set of Demands is used for each distinctive type of cases. The attorney calls for these by writing the type of case into the

Bill of Particular and Demand for Specified information lines. The form demands most often used are:

1.Auto

2.Premises:Trip/Fall

3.Premise:Ice/Snow

4.Premises Fire

5.Premises Dog Bite

6.Assault

7.Construction

8.Products

9.Property Damage

 

 

 

 

 

 

 

Also indicate in each case:

1.Wrongful Death

2.Derivative Claim Spouse

3.Derivative Claim Infant

 

The attorney needs to remain mindful that in some cases the boiler plate demands will not be sufficient or will not apply to his case closely enought. In such an instance it will be necessary to research and draft a manuscript Bill. Again the Benders forms of the library are a good place to start. A complete list of the Demands is included as an Exhibit in this Chapter.

THIRD PARTY ACTIONS

XVII INTRODUCTION

A Third-Party Action is an action commenced from within an already pending lawsuit by a defendant against a person or entity who is not yet a party. We should consider bringing a Third Party Action whenever it appears that a person or entity not a current party to the action has caused or contributed to the plaintiff’s accident or injury. CPLR 1007 When Third Party Practice Allowed.

XVIII FREQUENT TARGETS

Often Third Party Actions are commenced against other drivers involved in the accident who have not yet been sued. Typically these are relatives of the plaintiff were driving the auto the plaintiff was injured in. The other most common Third Party Defendant is a plaintiff’s employer. In New York an employee is barred from suing his employer directly and may only proceed against an employer in Workers Compensation. We, however, as a defendant can bring a Third Party Action against the employer after we are sued by the employee. An example would be where a home owner contracts with a mason contractor to repoint the bricks on his home, or a company an adverse driver was employed by when the accident happended while he was driving on company business. The contractor supplies a scaffold with rotten ropes which snap while his employee is working. the employee can’t sue his employer. He sues us and we bring a Third Party Action against the employer. Other frequent Third Party targets are maintenance and repair companies. (Brakes fail, stair railings collapse, steps are not to code, sidewalks crack and crumble, shoveling is done poorly, wax is too slippery, wiring burst into flames, boilers spew scalding hot water from residential faucets.)

Less frequently we might have manufacturer, a premise owner or a municipality for defective road design and maintenance as a defendant. This list is by no means exhaustive and the attorney must be alert to the possibility of spreading exposure to another party.

 

XVIII BEGINNING A THIRD PARTY ACTION

No Third Party Action may be undertaken without the consent of Claim. If the attorney believes a Third Party Action should be commenced but the claim handler will not agree, the Managing Attorney should be advised. Sometimes it will be evident as soon as the suite is received by us that a Third Party Action should be commenced. In such a case the action should be begun as soon as practical. In other instances the discovery process will identify other Third Party Defendants. Generally these should be known by the time depositions are finished. That is why the Preliminary Conference Order usually sets a cut off date to bring Third Party Actions as a function of 60 or 90 days after the EBT. The attorney must be aware of these dead lines and treat them as hard. As a general rule the attorney must move as quickly as possible once a Third Party Defendant is identified to bring them into the case. Usually the first thing a Third Party Defendant will do when they get sued is to see whether they can get their part of the case severed and treated as if it is a separate case. The more delay or time that has elapsed before they are brought in the better their argument of prejudice will be. If the attorney can bring them in early enough so that the Third Party Defendant participates in the preliminary conference the most streamlined results will be obtained.

Even if, however, the preliminary conference Third Party Action cutoff deadline has long since come and gone, the attorney should not believe that he cannot bring a Third Party Action. In practice if the Third Party Action is started before the Note of Issue is filed it is often not severed. If the attorney finds that he wishes to bring a Third Party Action after this, or on the eve of trial, he may still be able to make it fly. This is especially so if he has a good excuse for the delay, and if the case is simple. In response to the inevitable motion to sever, many judges will order another set of EBT’s , another IME and all previous discovery be provided within 30 days .

XIX THE EMPLOYER

A. THE WORKERS COMPENSATION LIEN

When a injured employee brings a workers compensation case against his employer, money which the employer’s workers compensation insurer pays to him can be recouped from a lawsuits settlement proceeds. This right of recoupement is know as the Workers Compensation Lien. A common tactical reason for bringing in employer as Third Party Defendant even when it will be hard work to prove liability against them is put the Workers Compensation lien into play.

In some instances the lien can develop as a significant impediment to settling a case. If for example, there is a $20,000 Workers Compensation lien, the plaintiff won’t be in a big hurry to take a $30,000 settlement on his lawsuit since after the lien is satisfied and his attorney and disbursements are paid he’ll have next to nothing left. By brining in the employer, a lawyer for them is involved and in practice puts the lien into conflict. Now as part of overall settlement efforts the parties and judges will be after the employer waive all or part of the lien. Again in practice this tends to remove a significant impediment to settlement.

The attorney should be familiar with Matter of Kelly (Kelly vs. State Insurance Fund 60 NY2d 131, 468 NYS2d 850), although the details are mostly a plaintiffs concern. This case in operation reduces Workers Comp liens by a third. The reasoning is that the plaintiff’s attorney in negotiating the main the settlement is the one getting the Workers Comp people their money back, therefore he is entitled to the equivalent of his fee, and that is done by knocking a third off the top of the lien. In practice then if a Workers Comp lien is $18,000 the most that they can get back out of a settlement is $12,000. How the Workers Comp lien will be dealt with is exclusively the province of the plaintiff’s attorney.

B. THE DEFENSE COUNSEL’S CONFLICT IN RECOVERING A LIEN FOR A WORKERS COMPENSATION CARRIER

Occasionally the Workers Comp carrier will be The Travelers and the attorney may find himself pressed to get in the middle of negotiating the settlement of the Workers Comp lien. This must be refused. The defense attorney has a conflict if he tries to work to recover the Workers Comp lien for the Workers Comp carrier. The idea is that the Workers Comp carrier wants to get all off their money back, but from our client’s perspective, the best thing for him is if they waive their lien, because then it is most likely the case will settle. Probably the most common way that a Workers Comp lien is worked out is "A third, a third, a third". That means the Kelly third comes off the top, another third is waived and the Workers Comp carrier gets their third back. So in a lien of $18,000, the Workers Comp carrier will recover $6,000.

XX. THE ALLEGATIONS

Third Party Actions begin with a number of pedigree allegations which identify ourselves and our target. CPLR 3015. Next comes a representation that the plaintiff has begun a direct case against us and some particulars about that. Next are details about the Third Party Defendant relationship to us, if any, contractual or otherwise. Then comes the paragraph(s) which advance our arguments of the Third Party Defendant’s culpability. You want to make sure you get the right claims going, leaving one out can leave you out in the cold.

A. CAUSES OF ACTION

There are four fundamental types of Third Party Action claims which we deal with most commonly. Any one which is used should be plead as a separate cause of action.

1. First is what is called Common Law Indemnification, the old active/passive view of negligence, wherein if someone is only vicariously liable (e.g. an owner) they are entitled to be indemnified by someone who is passively negligent (e.g. a driver). (See Siegel’s New York Practice, ss 170-171).

2. Next is what is called Dole/Dow contribution, or simply Contribution. This refers to a claim that someone who is 99% responsible for the happening of an accident should owes 99% of the bill, at least as among the tortfeasors. The plaintiff in many situations can still get 100% from any tortfeasor and leave to the defendants to get a "claim over" amongst themselves to balance things out. Dole/Dow is the shorthand reference for the landmark New York case that changed New York from a joint and several liability state to one where tortfeasors where entitled to proportional recoveries from each other. (Dole v Dow Chemical 30 NY2d 143, 331 NYS2d 382)When this is plead against another driver, it is generally meant that they drove poorly, didn’t look, were going to fast etc. When it is plead against an Employer, it is also phrased to include language that they violated their duty to provide the plaintiff with a safe place to work. (Sections 200 and 241 of the Labor Law) and that they were negligent in their hiring, training and supervising of the plaintiff, thus contributing to the happening, in whole or in part, of the accident.

WHEN PLEADING AGAINST AN EMPLOYER, MAKE SURE TO INCLUDE LANGUAGE TO THE EFFECT THAT THEY ARE REPSONSIBLE FOR CONTRIBUTION AND COMMON LAW INDEMNIFICATION UPON THE GROUNDS OF RESPONDEAT SUPERIOR.

3. There are next claims for Contractual Indemnification which alleges that a Third Party Defendant who was in contractual privity with our client undertook a contractual obligated to pay us back (contractually indemnify us) for anything we have to pay out no matter who was to blame. This is a complicated area of law, since only certain types and amounts of liability can be shifted by a Indemnification agreement, but pleading it is simple.

4. Finally there are Breach of Contract claims. Often these are claims that the Third Party Defendant undertook some duty by contract, and in failing to perform it correctly or completely caused the injury, or that the instrumentality of the injury was under their control by virtue of contract. Another very common contractual claim we deal with is that the Third Party Defendant Failed to procure Insurance which they were supposed to buy to protect us in case something like this did happen: this is called a Kinney claim from the case of Kinney v G. W. Lisk 76 NY2d 215, 557 NYS2d 283. A variation of this is a claim against an insurer that they have violated their contractual obligation to assume a defense and provide our client with coverage. ( A fact pattern we may see where our client was driving a rental.) An action of this sort is called a Declaratory Judgment Action. No Declaratory Judgment Action can be commenced without first seeing the Managing Attorney about it.

 

B. GETTING THE CORRECT CAUSES PLEAD

 

Examples of Third Party Actions for all of these situations and including all of these Causes of Actions are included in the Secretaries Pleadings books. These include simple Auto, simple Premises, non-Construction Employer, Construction Employer, non-employer Construction, Fail to Procure Insurance and Declaratory Judgment. Take a look at them when drafting the Third Party Action. If you are asking a paralegal to prepare a Third Party Action, make sure that you make it clear to her what causes you want plead, and what sample you want used and whether you want any unusual language. A paralegal ordinarily will expect to use a standard all purpose paragraph which includes thin language of common law negligence, breach of contract and breach of warranty. If this is not sufficient for your case, make sure the correct language is plead.

The upshot of all this is that you want to make sure that you have every possible avenue of attack against your Third Party Defendant plead when your Third Party Action goes out the door. If you have any doubt, see the Managing Attorney.

 

XXII THE EXHIBITS

It is necessary to include as exhibits the pleadings which have been had heretofore and the case and to include them by reference in the Third Party Action. CPLR 1007 Beyond this however, it is a good idea to include as many documents as possible in your Third Party Action. This is part of the effort to bring the Third Party Defendant up to speed as quickly as possible to prevent them from making a prejudice argument to get a severance.

XXIII SERVING THE THIRD PARTY ACTION

Besides serving the Third Party Action on the target defendant as is required by CPLR 308 et seq., the Third Party Action must be served on the plaintiff and all appearing parties and a CPLR 3402 Statement prepared. This statement simple announces the introduction of a new party and action into the mix. The Third Party Action is served by an investigator, give it to one of the ones we ordinarily use. They will know how to serve the pleadings. They have to do the same thing that a plaintiff’s process server would do. In the case of a corporation they will also serve the pleadings through the Secretary of State, who is a designated agent for the acceptance of process for any corporation doing business in the State. Once served the investigator will provide you with an affidavit of service which indicates how and when the Third Party Action was served. Once the Third Party Action is served make sure you diary the case to follow on the answer. A deadly pitfall can occur if you lose track of service of the Third Party Action, because if a year elapses after service of a Third Party Action and no motion for a default is made by you, the Third Party Action is subject to outright dismissal for abandonment and there will be little you can do about it.

XXIII PROCESSING THE ANSWER

Once an answer is received to the Third Party Action our attorney will be proceeding as a plaintiff. Check the answer to see how the defendant responded to our pleadings. See if they have denied anything that surprises you, especially things that are fundamental to your case, for example that they did not employ the employee, or that they were not in contract with your client, or did not own the building where the accident happened, or were not around having anything to do with anything that matters to the case. Follow up on these denials, a Notice to Admit is a good starting point. Next check their affirmative defenses. If they have plead No Cause of Action, demand a Bill of Particulars on this affirmative defense. If they have plead that you did not get good service on them then you will have to follow on this just like a plaintiff would. Send them a copy of the affidavit of service with a letter asking them to withdraw the defense and a stipulation to do so. If this doesn’t work make a motion to strike this defense. Your affidavit of service is prima facie proof of good service.

Respond to their Discovery Demands as quickly as possible. Although it is often done in practice to wait for a preliminary conference to respond to these demands, here you want to get out as much discovery as possible as quickly as possible to blunt any efforts the Third Party Defendant will make to claim prejudice for a severance, which will usually be the first thing they will try to do. CPLR 1010. You will also have an opportunity now to serve a Discovery Demand of your own. You can use a simple version borrowed from a case of your own or draft one which parrallels CPLR 3101, or you can draft one as specific and detailed as possible to try and prove your case. In addition you will have an opportunity to Demand a Bill of Particulars concerning any Affirmative Defenses interposed against you.

 

XXIV ANSWERING A THIRD PARTY SUMMONS AND COMPLAINT

It is customary to generally deny each paragraph of a Third Party Action. CPLR 1008 describes the rights of a Third Party Defendant. A demand for a Bill of Particulars on a Third Party Summons and Complaint must be pursued. The attorney should determine if the Third Party Action was brought within the time presented by the main action's preliminary conference and move to sever where appropriate. A Counterclaim should be served against the Third Party Plaintiff and all other plaintiffs in the main action and Cross Claims served against all Co-Third Party Defendants.

The main disadvantage in being a Third Party Defendant is starting in a catch up position in discovery. This has to be pursued aggressively, not only to get you up to speed, but to give you an argument to get a severance if possible. Remember that you are entitled to all Discovery Responses had heretofore, as well as deposition transcripts and all medicals and are entitled to further IME’s and Depositions of all parties of your own. Accept no substitutes or limitations.