Article 1 Short Title; Applicability and Definitions
Section 101. Short title; application.
This chapter shall be known as the civil practice law and rules, and may be cited as "CPLR". The civil practice law and rules shall govern the procedure in civil judicial proceedings in all courts of the state and before all judges, except where the procedure is regulated by inconsistent statute. The civil practice law and rules shall succeed the civil practice act and rules of civil practice and shall be deemed substituted therefor throughout the statutes and rules of the state. Reference to a provision in the civil practice law and rules may, except when such provision is being enacted or amended, be made without indicating whether it is a rule or section.
Section 102. Amendment, rescission or adoption of rules.
The civil practice rules are herein designated "rule". Any rule in this chapter may be amended, or rescinded, or additional civil practice rules may be adopted, not inconsistent with the constitution, by act of the legislature. No rule so amended, rescinded or adopted shall abridge or enlarge the substantive rights of any party.
Section 103. Form of civil judicial proceedings.
(a) One form of action. There is only one form of civil action. The distinctions between actions at law and suits in equity, and the forms of those actions and suits, have been abolished.
(b) Action or special proceeding. All civil judicial proceedings shall be prosecuted in the form of an action, except where prosecution in the form of a special proceeding is authorized. Except where otherwise prescribed by law, procedure in special proceedings shall be the same as in actions, and the provisions of the civil practice law and rules applicable to actions shall be applicable to special proceedings.
(c) Improper form. If a court has obtained jurisdiction over the parties, a civil judicial proceeding shall not be dismissed solely because it is not brought in the proper form, but the court shall make whatever order is required for its proper prosecution. If the court finds it appropriate in the interests of justice, it may convert a motion into a special proceeding, or vice-versa, upon such terms as may be just, including the payment of fees and costs.
Section 104. Construction.
The civil practice law and rules shall be liberally construed to secure the just, speedy and inexpensive determination of every civil judicial proceeding.
Section 105. Definitions.
(a) Applicability. Unless the context requires otherwise, the definitions in this section apply to the civil practice law and rules.
(b) Action and special proceeding. The word "action" includes a special proceeding; the words "plaintiff" and "defendant" include the petitioner and the respondent, respectively, in a special proceeding; and the words "summons" and "complaint" include the notice of petition and the petition, respectively, in a special proceeding.
(c) Attorney. The word "attorney" includes a party prosecuting or defending an action in person.
(d) Civil judicial proceeding. A "civil judicial proceeding" is a prosecution, other than a criminal action, of an independent application to a court for relief.
(e) Clerk. The word "clerk," as used in any provision respecting an action or any proceedings therein, means the clerk of the court in which the action is triable. In supreme and county court, the word "clerk" shall mean the clerk of the county.
(f) Consumer credit transaction. The term "consumer credit transaction" means a transaction wherein credit is extended to an individual and the money, property, or service which is the subject of the transaction is primarily for personal, family or household purposes.
(g) Court and judge. The word "court," as used in any provision concerning a motion, order or special proceeding, includes a judge thereof authorized to act out of court with respect to such motion, order or special proceeding.
(h) Domestic and foreign corporation. A "domestic corporation" is a corporation created by or under the laws of the state, or a corporation located in the state and created by or under the laws of the United States, or a corporation created by or pursuant to the laws in force in the colony of New York before April nineteenth, seventeen hundred seventy-five. Every other corporation is a "foreign corporation."
(i) Garnishee. A "garnishee" is a person who owes a debt to a judgment debtor, or a person other than the judgment debtor who has property in his possession or custody in which a judgment debtor has an interest.
(j) Infant, infancy. The word "infant", as used in this chapter, means a person who has not attained the age of eighteen years. The word "infancy" means the state of being an infant.
(k) Judgment. The word "judgment" means a final or interlocutory judgment.
(l) Judgment creditor. A "judgment creditor" is a person in whose favor a money judgment is entered or a person who becomes entitled to enforce it.
(m) Judgment debtor. A "judgment debtor" is a person, other than a defendant not summoned in the action, against whom a money judgment is entered.
(n) Judicial hearing officer. A "judicial hearing officer" means a person so designated pursuant to provisions of article twenty-two of the judiciary law.
(o) Law. The word "law" means any statute or any civil practice rule.
(p) Matrimonial action. The term "matrimonial action" includes actions for a separation, for an annulment or dissolution of a marriage, for a divorce, for a declaration of the nullity of a void marriage, for a declaration of the validity or nullity of a foreign judgment of divorce and for a declaration of the validity or nullity of a marriage.
(q) Money judgment. A "money judgment" is a judgment, or any part thereof, for a sum of money or directing the payment of a sum of money.
(r) Place where action triable. The place where an action is "triable" means the place where the action is pending; or, if no action has been commenced, any proper place of trial or any proper place to commence the action; or, after entry of judgment, the place where the judgment was entered.
(s) Real property. "Real property" includes chattels real.
* (s-1) The sheriff. The term "the sheriff", as used in this chapter, means the county sheriff as defined in subdivision (a) of section thirteen of article thirteen of the constitution and in counties in the city of New York, the city sheriff as defined in section fifteen hundred twenty-six of chapter fifty-eight of the New York city charter. For the purposes of article fifty-two of this chapter relating to the enforcement of money judgments and for the purposes of any provision of law which in effect applies any such provision of article fifty-two of this chapter, such term shall also mean any "city marshal" as defined in article sixteen of the New York city civil court act, except that city marshals shall have no power to levy upon or sell real property and city marshals shall have no power of arrest.
* NB Repealed June 30, 2014
(t) Type size requirement. Whenever a requirement relating to size of type is stated in point size, the type size requirement shall be deemed met if the x-height of the type is a minimum of forty-five percent of the specified point size. Each point shall be measured as .351 millimeter. The x-height size shall be measured as it appears on the page. The x-height is the height of the lower case letters, exclusive of ascenders or descenders.
(u) Verified pleading. A "verified pleading" may be utilized as an affidavit whenever the latter is required.
Section 106. Civil and criminal prosecutions not merged.
Where the violation of a right admits of both a civil and criminal prosecution, the one is not merged in the other.
Section 107. Appendix of official forms.
The state administrator shall have the power to adopt, amend and rescind an appendix of forms. Forms adopted pursuant to this section shall be sufficient under the civil practice law and rules and shall illustrate the simplicity and brevity of statement which the civil practice law and rules contemplate.
Article 2 Limitations of Time
Section 201. Application of article.
An action, including one brought in the name or for the benefit of the state, must be commenced within the time specified in this article unless a different time is prescribed by law or a shorter time is prescribed by written agreement. No court shall extend the time limited by law for the commencement of an action.
Section 202. Cause of action accruing without the state.
An action based upon a cause of action accruing without the state cannot be commenced after the expiration of the time limited by the laws of either the state or the place without the state where the cause of action accrued, except that where the cause of action accrued in favor of a resident of the state the time limited by the laws of the state shall apply.
Section 203. Method of computing periods of limitation generally.
(a) Accrual of cause of action and interposition of claim. The time within which an action must be commenced, except as otherwise expressly prescribed, shall be computed from the time the cause of action accrued to the time the claim is interposed.
(b) Claim in complaint where action commenced by service. In an action which is commenced by service, a claim asserted in the complaint is interposed against the defendant or a co-defendant united in interest with such defendant when:
1. the summons is served upon the defendant; or
2. first publication of the summons against the defendant is made pursuant to an order, and publication is subsequently completed; or
3. an order for a provisional remedy other than attachment is granted, if, within thirty days thereafter, the summons is served upon the defendant or first publication of the summons against the defendant is made pursuant to an order and publication is subsequently completed, or, where the defendant dies within thirty days after the order is granted and before the summons is served upon the defendant or publication is completed, if the summons is served upon the defendant's executor or administrator within sixty days after letters are issued; for this purpose seizure of a chattel in an action to recover a chattel is a provisional remedy; or
4. an order of attachment is granted, if the summons is served in accordance with the provisions of section 6213; or
5. the summons is delivered to the sheriff of that county outside the city of New York or is filed with the clerk of that county within the city of New York in which the defendant resides, is employed or is doing business, or if none of the foregoing is known to the plaintiff after reasonable inquiry, then of the county in which the defendant is known to have last resided, been employed or been engaged in business, or in which the cause of action arose; or if the defendant is a corporation, of a county in which it may be served or in which the cause of action arose; provided that:
(i) the summons is served upon the defendant within sixty days after the period of limitation would have expired but for this provision; or
(ii) first publication of the summons against the defendant is made pursuant to an order within sixty days after the period of limitation would have expired but for this provision and publication is subsequently completed; or
(iii) the summons is served upon the defendant's executor or administrator within sixty days after letters are issued, where the defendant dies within sixty days after the period of limitation would have expired but for this provision and before the summons is served upon the defendant or publication is completed.
6. in an action to be commenced in a court not of record, the summons is delivered for service upon the defendant to any officer authorized to serve it in a county, city or town in which the defendant resides, is employed or is doing business, or if none of the foregoing be known to the plaintiff after reasonable inquiry, then in a county, city or town in which defendant is known to have last resided, been employed or been engaged in business, or, where the defendant is a corporation, in a county, city or town in which it may be served, if the summons is served upon the defendant within sixty days after the period of limitation would have expired but for this provision; or, where the defendant dies within sixty days after the period of limitation would have expired but for this provision and before the summons is served upon the defendant, if the summons is served upon his executor or administrator within sixty days after letters are issued.
(c) Claim in complaint where action commenced by filing. In an action which is commenced by filing, a claim asserted in the complaint is interposed against the defendant or a co-defendant united in interest with such defendant when the action is commenced.
(d) Defense or counterclaim. A defense or counterclaim is interposed when a pleading containing it is served. A defense or counterclaim is not barred if it was not barred at the time the claims asserted in the complaint were interposed, except that if the defense or counterclaim arose from the transactions, occurrences, or series of transactions or occurrences, upon which a claim asserted in the complaint depends, it is not barred to the extent of the demand in the complaint notwithstanding that it was barred at the time the claims asserted in the complaint were interposed.
(e) Effect upon defense or counterclaim of termination of action because of death or by dismissal or voluntary discontinuance. Where a defendant has served an answer containing a defense or counterclaim and the action is terminated because of the plaintiff's death or by dismissal or voluntary discontinuance, the time which elapsed between the commencement and termination of the action is not a part of the time within which an action must be commenced to recover upon the claim in the defense or counterclaim or the time within which the defense or counterclaim may be interposed in another action brought by the plaintiff or his successor in interest.
(f) Claim in amended pleading. A claim asserted in an amended pleading is deemed to have been interposed at the time the claims in the original pleading were interposed, unless the original pleading does not give notice of the transactions, occurrences, or series of transactions or occurrences, to be proved pursuant to the amended pleading.
(g) Time computed from actual or imputed discovery of facts. Except as provided in article two of the uniform commercial code or in section two hundred fourteen-a of this chapter, where the time within which an action must be commenced is computed from the time when facts were discovered or from the time when facts could with reasonable diligence have been discovered, or from either of such times, the action must be commenced within two years after such actual or imputed discovery or within the period otherwise provided, computed from the time the cause of action accrued, whichever is longer.
Section 204. Stay of commencement of action; demand for arbitration.
(a) Stay. Where the commencement of an action has been stayed by a court or by statutory prohibition, the duration of the stay is not a part of the time within which the action must be commenced.
(b) Arbitration. Where it shall have been determined that a party is not obligated to submit a claim to arbitration, the time which elapsed between the demand for arbitration and the final determination that there is no obligation to arbitrate is not a part of the time within which an action upon such claim must be commenced. The time within which the action must be commenced shall not be extended by this provision beyond one year after such final determination.
Section 205. Termination of action.
(a) New action by plaintiff. If an action is timely commenced and is terminated in any other manner than by a voluntary discontinuance, a failure to obtain personal jurisdiction over the defendant, a dismissal of the complaint for neglect to prosecute the action, or a final judgment upon the merits, the plaintiff, or, if the plaintiff dies, and the cause of action survives, his or her executor or administrator, may commence a new action upon the same transaction or occurrence or series of transactions or occurrences within six months after the termination provided that the new action would have been timely commenced at the time of commencement of the prior action and that service upon defendant is effected within such six-month period. Where a dismissal is one for neglect to prosecute the action made pursuant to rule thirty-two hundred sixteen of this chapter or otherwise, the judge shall set forth on the record the specific conduct constituting the neglect, which conduct shall demonstrate a general pattern of delay in proceeding with the litigation.
(b) Defense or counterclaim. Where the defendant has served an answer and the action is terminated in any manner, and a new action upon the same transaction or occurrence or series of transactions or occurrences is commenced by the plaintiff or his successor in interest, the assertion of any cause of action or defense by the defendant in the new action shall be timely if it was timely asserted in the prior action.
(c) Application. This section also applies to a proceeding brought under the workers' compensation law.
Section 206. Computing periods of limitation in particular actions.
(a) Where demand necessary. Except as provided in article 3 of the uniform commercial code, where a demand is necessary to entitle a person to commence an action, the time within which the action must be commenced shall be computed from the time when the right to make the demand is complete, except that
1. where a right grows out of the receipt or detention of money or property by a trustee, agent, attorney or other person acting in a fiduciary capacity, the time within which the action must be commenced shall be computed from the time when the person having the right to make the demand discovered the facts upon which the right depends; and
2. where there was a deposit of money to be repaid only upon a special demand, or a delivery of personal property not to be returned specifically or in kind at a fixed time or upon a fixed contingency, the time within which the action must be commenced shall be computed from the demand for repayment or return.
(b) Based on misconduct of agent. Where a judgment is entered against a principal in an action based upon an injury resulting from the act or omission of his deputy or agent, the time within which an action by the principal against the deputy or agent to recover damages by reason of such judgment must be commenced shall be computed, from the time when the action against the principal was finally determined. Where an injury results from the representation by a person that he is an agent with authority to execute a contract in behalf of a principal, the time within which an action to recover damages for breach of warranty of authority must be commenced by the person injured against the purported agent shall be computed from the time the person injured discovered the facts constituting lack of authority.
(c) Based on breach of covenant of seizin or against incumbrances. In an action based upon breach of a covenant of seizin or against incumbrances, the time within which the action must be commenced shall be computed from an eviction.
(d) Based on account. In an action based upon a mutual, open and current account, where there have been reciprocal demands between the parties, the time within which the action must be commenced shall be computed from the time of the last transaction in the account on either side.