Columbia School

From the SelectedWorks of Hon. Gerald Lebovits

January, 2011

Drafting NY Civil-Litigation Documents: Part 4—The ompC laint Cont'd Gerald Lebovits

Available at: https://works.bepress.com/gerald_lebovits/191/ JANUARY 2011 VOL. 83 | NO. 1 JournalNEW YORK STATE BAR ASSOCIATION

Youth Courts The Power of Positive Peer Pressure

A special issue on youth courts THE LEGAL WRITER BY GERALD LEBOVITS

Drafting New York Civil-Litigation Documents: Part IV — The

he Legal Writer continues with 1. On and for the FIRST CAUSE whatever relief is appropriate even if writing the complaint. OF ACTION (breach of contract), you haven’t specifically demanded it T awarding compensatory so long as it’s within the court’s juris- in the amount of $500,000 plus con- diction and the evidence supports the 4. The Demand for Relief sequential damages in the amount relief.6 Include the following language: In the demand or prayer for relief, of $150,000; “. . . and such other and further relief also known as the ad damnum clause, 2. On and for the SECOND CAUSE as the Court deems just and proper.” If state precisely what you, the , OF ACTION (negligent misrepre- you’ve proven more than what you’ve want the court to do. This demand sentation), awarding compensa- demanded in your complaint, move universally begins with the word tory damages in the amount of under CPLR 3025(c) to amend the 1 “WHEREFORE.” Depending on the $500,000; demand in your complaint to conform , you might ask for the to the proof. Exceptions compensatory damages, punitive dam- 3. On and for the THIRD CAUSE to the court’s granting relief you didn’t ages, costs, or attorney fees. OF ACTION (fraud), awarding demand: (1) if the plaintiff doesn’t Recoverable costs and disbursements compensatory damages in the want the relief; (2) if it would cause vary by but can include amount of $500,000 plus puni- prejudice to the ; or (3) if fixed and limited docket fees, exami- tive damages in the amount of plaintiff seeks a default .7 nation before (EBT) transcription $1,000,000; and For example, a court may not grant fees, filing fees, out-of-pocket expenses 4. On and for the FOURTH CAUSE the plaintiff a divorce if the plaintiff for service of process and subpoenas, OF ACTION (rescission), rescind- isn’t seeking a divorce, the plaintiff sheriff fees, witness fees, and other ing the contract between plaintiff sought only a legal separation, and expenses.2 To preserve claims for costs, and ; the defendant never counterclaimed include a demand for all costs in your for a divorce. Prejudice exists if the 5. Plaintiff’s attorney fees and legal complaint. Whether you can get attor- defendants show that they have been costs of this suit; ney fees, which are recoverable when hindered in preparing their case or the parties agree to them or a statute 6. Interest at the legal rate; have been prevented from supporting 3 authorizes them, might aid in deter- 7. Such other and further relief as their position. For a , mining which causes of action you’ll the Court deems just and proper.4 which occurs when a defendant fails bring. To recover and to or appear, the court may not attorney fees, you need not plead them In this example, the demand for relief award relief that exceeds the amount as a separate cause of action. For puni- is at the end of the complaint. This is sought or is different from the type of tive damages, include in the complaint the most common method, although relief demanded. allegations that show the significant many attorneys place the demand for You may request different types public harm. For attorney fees, include relief at the end of each cause of action of relief (equitable or legal relief) in in the complaint these allegations that when the relief sought in each cause of your complaint. As explained in Part show the applicable statute or contract action is different and when separating II of this series, you may plead in the provisions that entitle you to obtain the relief will clarify things for, rather alternative; likewise, you may request attorney fees. Example of a demand: than confuse, the reader. relief in the alternative. For example, DEMAND FOR RELIEF Make your demand for relief com- you may seek different remedies for plete. In the event of a default, you the defendant’s negligent conduct and, WHEREFORE, plaintiff demands might be limited to the recovery sought alternatively, intentional conduct. A judgment against all defendants in the complaint.5 Although some court will not, however, grant incon- as follows: exceptions exist, the court may grant CONTINUED ON PAGE 54

64 | January 2011 | NYSBA Journal THE LEGAL WRITER CONTINUED FROM PAGE 64 evidentiary support for the plaintiff’s knowledge, except as to the matters sistent remedies. For example, a court factual allegations.13 If a court deter- therein stated to be alleged on informa- will not grant specific performance mines that your complaint is frivolous, tion and belief, and as to those matters and rescission of a contract. you as the plaintiff or your attorney, or I believe them to be true.” Also, as explained in Part I of this both, is subject to sanctions. The court If an agent or attorney verifies series, don’t include a specific dollar might also strike your complaint.14 the , use the following lan- amount in personal injury, wrongful- The signature requirement applies guage: “The ground of belief as to all death actions, medical-malpractice to every pleading you serve on another matters not stated upon knowledge actions, and any action against a party and file with the court. If you or is that . . . .” (Indicate what docu- municipal corporation. Exception: If your attorney omit a signature and you ments you’ve reviewed or conversa- the action is in New York State Supreme haven’t corrected the omission, a court tions you’ve had with a witness, for Court, allege in your complaint that may strike your pleadings. example.) “The reason a party did not the amount of “damages exceeds the make this affidavit (or affirmation, if jurisdictional limit of all other courts 6. Verification completed by an attorney) is that . . . .” that might have jurisdiction.”8 The A verification is a party’s sworn state- (Insert reasons, such as the party is not defendant may request a supplemental ment that the party asserts the allega- in the county where the party’s attor- demand asking that you specify the tions in the pleading are true according ney has an office.) total amount of damages you’re seek- to the party’s knowledge and belief, Under CPLR 2106, an attorney, phy- ing; you have 15 days from the request except as to those matters alleged in sician, osteopath, or dentist whom the to serve the supplemental demand.9 the pleading on “information and law authorizes to practice in the state Read the complaint from the point of view of each of your different audiences: the court, your adversary, and your client.

The demand for relief is also belief.”15 Some causes of action require and who is not a party to the action required in other pleadings: counter- verified , including sales of may affirm the verification statement claims, cross-claims, com- goods and performance of labor under “to be true under the penalties of plaints, and third-party complaints.10 CPLR 3016(f), summary proceedings perjury” rather than swear before a to recover possession of real prop- notary. 5. Indorsement and Signature erty under Real Property Actions and CPLR 3022 explains the remedies At the end of the complaint, if you Proceedings Law § 741, and matrimo- for a defective verification when veri- are a pro se plaintiff, sign your name nial actions under Domestic Relations fications are optional as opposed to and give your address and telephone Law § 211.16 If a pleading is verified, when they’re mandatory. number. Also, print or type your each subsequent pleading must also name directly below your signature. If be verified. Exceptions: an answer by Edit and Rewrite attorneys represent you, the attorneys an infant, information that may be Once you as the attorney have fin- should provide their name, address, privileged, or any exception specified ished drafting the complaint, con- and telephone number. You or your by law. sider your clients.17 Have them read attorney may also want to include the In a multiparty case, only one party the complaint to make sure that they following: (1) the date you indorsed need verify the pleading. If a domestic understand it and that the complaint the complaint; (2) the place where you corporation is a party, a corporate officer is accurate. Clients should be able drafted the complaint; (3) the party should verify the pleading. If a party to read and understand pleadings that counsel represents; and (4) the is a governmental body, any person easily. Your clients are in the best person(s) you served the complaint. acquainted with the facts may verify the position to see factual errors in a The CPLR now requires that your attor- pleading. An attorney may also verify complaint. The complaint should be ney sign.11 Underneath the attorney’s the pleading. In verifying the pleading, “geared to their level of sophistica- signature, have the attorney print the the attorney asserts that the attorney has tion and legal knowledge.”18 If your attorney’s name. The purpose of the some knowledge of material facts in the clients can’t understand the com- signature requirement is to ensure that pleading after having consulted with a plaint, you’ve alienated those whose you or your attorney has read the com- client or reviewed certain documents. help you need. Have your clients plaint and that you or your attorney is Example of verification by a party: review the complaint to check that bringing the claim in good faith — a “I, John Johnson, being duly sworn, the facts are accurate and to confirm complaint that isn’t frivolous.12 A signa- state: I am the plaintiff in this action. that the claims in the complaint are ture also verifies that there is, or will be, The foregoing complaint is true to my the ones your clients want to pursue.

54 | January 2011 | NYSBA Journal Read the complaint yourself, once Evaluate the complaint from the reference your documents. Example: for organization and structure and a judge’s viewpoint — an objective “In a contract dated October 10, 2010, second time for accuracy and clarity. Be standpoint. Consider the tone of the defendant agreed to ship 200 widgets. certain you’ve expressed the allegations complaint. Does the story portray the A copy of that contract is attached as simply: “genuinely confusing allega- plaintiff sympathetically without being Plaintiff’s 1 and incorporated by refer- tions will give the defendant the oppor- melodramatic or maudlin? Is the com- ence into this complaint.” tunity to deny what would otherwise plaint consistent? Are there contradic- In the next issue’s column, the Legal have to be admitted.”19 Proofread care- tions? Before arguing in the alterna- Writer will continue with techniques fully; check that paragraphs are num- tive, weigh the risks and benefits of on writing pleadings. ■ bered consecutively and that references doing so: “If you decide to plead in the 20 to earlier paragraphs are correct. alternative, use language that makes GERALD LEBOVITS is a judge of the New York Draft each aspect of the complaint so it clear that you’re making alterna- City Civil Court and an adjunct professor at St. that you won’t waste time and money tive arguments, not just contradicting John’s University School of Law and Columbia pursuing fruitless claims or defending yourself.”22 Law School. He thanks court attorney Alexandra your complaint against challenges. The Standish for researching this column. Judge time spent on this careful drafting is Attaching Documents to Lebovits’s email address is [email protected]. minimal compared to the time it takes Your Complaint to respond to motions your adversary To substantiate your claims, you may 1. Mary Barnard Ray & Barbara J. Cox, Beyond raises and for you to bring motions to mention documents that corroborate the Basics: A Text for Advanced Legal Writing 265 (2d ed. 2003). amend defects in your complaint. your claims, including checks, con- 2. Roger S. Haydock, David F. Herr & Jeffrey W. tracts, letters, memorandums, and Stempel, Fundamentals of Pretrial Litigation 103 Test the Consequences reports (medical, police, and corpo- (2d ed. 1992). Once you finish drafting the com- rate).23 Documents attached to your 3. Id. plaint, answer the complaint your- complaint become part of the com- 4. Adapted from 1 Michael Barr, Myriam J. 24 Altman, Burton N. Lipshie & Sharon S. Gerstman, self. This exercise will reveal draft- plaint. You might want to attach doc- New York Civil Practice Before Trial at § 15:410, at ing and pleading defects and whether uments to the complaint to legitimize 15-44, 15-45 (2006; Dec. 2009 Supp.). the defendant can avoid answering your claims25 and to show that you 5. Ray & Cox, supra note 1, at 265. allegations because of loose drafting. have provided the requisite notice of 6. Barr et al., supra note 4, at § 15:412, at 15-45. Statements in a pleading are admis- a default and an opportunity to cure, 7. Id. at § 15:413, at 15-45. sions. You should force the other side if you must allege them. Including 8. Id. at § 15:422, at 15-46. other documents shows the court and 9. CPLR 3017(c); Barr et al., supra note 4, at § If your clients can’t your adversary that there’s substance 15:422, at 15-46. understand the to what you’re alleging. By attach- 10. Barr et al., supra note 4, at § 15:410, at 15-44. ing documents, you’re authenticating 11. CPLR 2101(d). complaint, you’ve the documents you’ve attached at the 12. Haydock et al., supra note 2, at 104. alienated those whose outset. Although attaching documents 13. Ray & Cox, supra note 1, at 266. 14. Haydock et al., supra note 2, at 104. might be advantageous to you, con- help you need. 26 15. Susan L. Brody, Jane Rutherford, Laurel A. sider the disadvantages. One disad- Vietzen & John C. Dernbach, Legal Drafting 283 to make admissions while avoiding vantage is that the documents you’ve (1994); Michael P. Graff, The Art of Pleading — New making them yourself. attached might not be admissible; they York State Courts, City Bar Ctr. for CLE 1, 26 (Dec. 8, 2008). Read the complaint from the point might contain inadmissible evidence. 16. Graff, supra note 15, at 27. of view of each of your different audi- The documents might also contain 17. Brody et al., supra note 15, at 292. ences: the court, your adversary, and information harmful to your client. 18. Id. your client. Begin with your most Also, attaching too many documents 19. Elizabeth Fajans, Mary R. Falk & Helene S. hostile audience: your adversary. The to the complaint might make the com- Shapo, Writing for Law Practice 53 (2004). defendant might seek to dismiss the plaint lose its overall persuasive effect. 20. Id. case for lack of jurisdiction, improper By attaching documents, your com- 21. Brody et al., supra note 15, at 302–03. , failure to state a claim or cause plaint will look like a for sum- 22. Id. at 304. of action, and failure to state facts mary judgment.27 That’s not what your 23. Barr et al., supra note 4, at § 15:441, at 15-47. in sufficient detail.21 Anticipate these complaint should look like. 24. CPLR 3014. grounds and edit your complaint so If you’re attaching documents to 25. Barr et al., supra note 4 at § 15:441, at 15-47. that your adversary won’t raise them. your complaint, make sure to attach 26. Id. at § 15:442, at 15-47. For every claim you set forth, make them as exhibits. Label them as exhib- 27. Id. sure to list sufficient facts to support its and mark them in numerical or each element. alphabetical order. In the complaint,

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