1:8-9. Return of Verdict
In every trial by jury the verdict shall be returned by the jury to the judge in open court. The verdict shall be unanimous in all criminal actions and shall be rendered in civil actions by the number required by R. 1:8-2(c).
Thursday, September 10, 2009
Court Rule 1:8-8. Materials to be Submitted to the Jury; Note-taking; Juror Questions
1:8-8. Materials to be Submitted to the Jury; Note-taking; Juror Questions
(a) Materials. The jury may take into the jury room the exhibits received in evidence, and if the court so directs in a civil action, a list of the claims made by the parties and of the defenses to such claims, a list of the various items of damage upon which proof was submitted at the trial and a list of the verdicts that may be properly found by the jury. Any such list may be prepared by an attorney or the court, but before delivery to the jury, it shall be submitted to all parties. The court, in its discretion, may submit a copy of all or part of its instructions to the jury for its consideration in the jury room. The court may also, in its discretion and at such time and in such format as it shall determine, permit the submission to the jury of individual copies of any exhibit provided an appropriate request to employ that technique was made prior to trial on notice to all parties and provided further that the court finds that no party will be unduly prejudiced by the procedure.
(b) Juror Note-taking. Prior to opening statements, the attorneys or any party may request that the jury be permitted to take notes during the trial or portion thereof, including opening and closing statements. If the court determines to permit note-taking after all parties have had an opportunity to be heard, it shall provide the jurors with note-taking materials and shall take such steps as will ensure the security and confidentiality of each juror's notes.
(c) Juror Questions. Prior to the commencement of the voir dire of prospective jurors in a civil action, the court shall determine whether to allow jurors to propose questions to be asked of the witnesses. The court shall make its determination after the parties have been given an opportunity to address the issue, but they need not consent. If the court determines to permit jurors to submit proposed questions, it shall explain to the jury in its opening remarks that subject to the rules of evidence and the court's discretion, questions by the jurors will be allowed for the purpose of clarifying the testimony of a witness. The jurors' questions shall be submitted to the court in writing at the conclusion of the testimony of each witness and before the witness is excused. The court, with counsel, shall review the questions out of the presence of the jury. Counsel shall state on the record any objections they may have, and the court shall rule on the permissibility of each question. The witness shall then be recalled, and the court shall ask the witness those questions ruled permissible. Counsel shall, on request, be permitted to reopen direct and cross-examination to respond to the jurors' questions and the witness's answers. A witness who has been excused shall not be recalled to respond to juror questions unless all counsel and the court agree or unless the court otherwise orders for good cause shown.
(a) Materials. The jury may take into the jury room the exhibits received in evidence, and if the court so directs in a civil action, a list of the claims made by the parties and of the defenses to such claims, a list of the various items of damage upon which proof was submitted at the trial and a list of the verdicts that may be properly found by the jury. Any such list may be prepared by an attorney or the court, but before delivery to the jury, it shall be submitted to all parties. The court, in its discretion, may submit a copy of all or part of its instructions to the jury for its consideration in the jury room. The court may also, in its discretion and at such time and in such format as it shall determine, permit the submission to the jury of individual copies of any exhibit provided an appropriate request to employ that technique was made prior to trial on notice to all parties and provided further that the court finds that no party will be unduly prejudiced by the procedure.
(b) Juror Note-taking. Prior to opening statements, the attorneys or any party may request that the jury be permitted to take notes during the trial or portion thereof, including opening and closing statements. If the court determines to permit note-taking after all parties have had an opportunity to be heard, it shall provide the jurors with note-taking materials and shall take such steps as will ensure the security and confidentiality of each juror's notes.
(c) Juror Questions. Prior to the commencement of the voir dire of prospective jurors in a civil action, the court shall determine whether to allow jurors to propose questions to be asked of the witnesses. The court shall make its determination after the parties have been given an opportunity to address the issue, but they need not consent. If the court determines to permit jurors to submit proposed questions, it shall explain to the jury in its opening remarks that subject to the rules of evidence and the court's discretion, questions by the jurors will be allowed for the purpose of clarifying the testimony of a witness. The jurors' questions shall be submitted to the court in writing at the conclusion of the testimony of each witness and before the witness is excused. The court, with counsel, shall review the questions out of the presence of the jury. Counsel shall state on the record any objections they may have, and the court shall rule on the permissibility of each question. The witness shall then be recalled, and the court shall ask the witness those questions ruled permissible. Counsel shall, on request, be permitted to reopen direct and cross-examination to respond to the jurors' questions and the witness's answers. A witness who has been excused shall not be recalled to respond to juror questions unless all counsel and the court agree or unless the court otherwise orders for good cause shown.
Court Rule 1:8-8. Materials to be Submitted to the Jury; Note-taking; Juror Questions
1:8-8. Materials to be Submitted to the Jury; Note-taking; Juror Questions
(a) Materials. The jury may take into the jury room the exhibits received in evidence, and if the court so directs in a civil action, a list of the claims made by the parties and of the defenses to such claims, a list of the various items of damage upon which proof was submitted at the trial and a list of the verdicts that may be properly found by the jury. Any such list may be prepared by an attorney or the court, but before delivery to the jury, it shall be submitted to all parties. The court, in its discretion, may submit a copy of all or part of its instructions to the jury for its consideration in the jury room. The court may also, in its discretion and at such time and in such format as it shall determine, permit the submission to the jury of individual copies of any exhibit provided an appropriate request to employ that technique was made prior to trial on notice to all parties and provided further that the court finds that no party will be unduly prejudiced by the procedure.
(b) Juror Note-taking. Prior to opening statements, the attorneys or any party may request that the jury be permitted to take notes during the trial or portion thereof, including opening and closing statements. If the court determines to permit note-taking after all parties have had an opportunity to be heard, it shall provide the jurors with note-taking materials and shall take such steps as will ensure the security and confidentiality of each juror's notes.
(c) Juror Questions. Prior to the commencement of the voir dire of prospective jurors in a civil action, the court shall determine whether to allow jurors to propose questions to be asked of the witnesses. The court shall make its determination after the parties have been given an opportunity to address the issue, but they need not consent. If the court determines to permit jurors to submit proposed questions, it shall explain to the jury in its opening remarks that subject to the rules of evidence and the court's discretion, questions by the jurors will be allowed for the purpose of clarifying the testimony of a witness. The jurors' questions shall be submitted to the court in writing at the conclusion of the testimony of each witness and before the witness is excused. The court, with counsel, shall review the questions out of the presence of the jury. Counsel shall state on the record any objections they may have, and the court shall rule on the permissibility of each question. The witness shall then be recalled, and the court shall ask the witness those questions ruled permissible. Counsel shall, on request, be permitted to reopen direct and cross-examination to respond to the jurors' questions and the witness's answers. A witness who has been excused shall not be recalled to respond to juror questions unless all counsel and the court agree or unless the court otherwise orders for good cause shown.
(a) Materials. The jury may take into the jury room the exhibits received in evidence, and if the court so directs in a civil action, a list of the claims made by the parties and of the defenses to such claims, a list of the various items of damage upon which proof was submitted at the trial and a list of the verdicts that may be properly found by the jury. Any such list may be prepared by an attorney or the court, but before delivery to the jury, it shall be submitted to all parties. The court, in its discretion, may submit a copy of all or part of its instructions to the jury for its consideration in the jury room. The court may also, in its discretion and at such time and in such format as it shall determine, permit the submission to the jury of individual copies of any exhibit provided an appropriate request to employ that technique was made prior to trial on notice to all parties and provided further that the court finds that no party will be unduly prejudiced by the procedure.
(b) Juror Note-taking. Prior to opening statements, the attorneys or any party may request that the jury be permitted to take notes during the trial or portion thereof, including opening and closing statements. If the court determines to permit note-taking after all parties have had an opportunity to be heard, it shall provide the jurors with note-taking materials and shall take such steps as will ensure the security and confidentiality of each juror's notes.
(c) Juror Questions. Prior to the commencement of the voir dire of prospective jurors in a civil action, the court shall determine whether to allow jurors to propose questions to be asked of the witnesses. The court shall make its determination after the parties have been given an opportunity to address the issue, but they need not consent. If the court determines to permit jurors to submit proposed questions, it shall explain to the jury in its opening remarks that subject to the rules of evidence and the court's discretion, questions by the jurors will be allowed for the purpose of clarifying the testimony of a witness. The jurors' questions shall be submitted to the court in writing at the conclusion of the testimony of each witness and before the witness is excused. The court, with counsel, shall review the questions out of the presence of the jury. Counsel shall state on the record any objections they may have, and the court shall rule on the permissibility of each question. The witness shall then be recalled, and the court shall ask the witness those questions ruled permissible. Counsel shall, on request, be permitted to reopen direct and cross-examination to respond to the jurors' questions and the witness's answers. A witness who has been excused shall not be recalled to respond to juror questions unless all counsel and the court agree or unless the court otherwise orders for good cause shown.
Court Rule 1:8-7. Requests to Charge the Jury
1:8-7. Requests to Charge the Jury
(a) Generally. Either within the time provided by R. 4:25-7 or thereafter but before the close of the evidence, as to issues not anticipated prior to trial, any party may submit written requests that the court instruct the jury on the law as set forth in the requests. The requests shall make specific reference to the Model Civil Jury Charges, if applicable, or to applicable law. Copies of the requests shall be furnished all parties at the time they are submitted to the court. The court shall, on the record, rule on the requests prior to closing arguments to the jury. A verbatim record shall be made of any charge conference the court holds. Objections to the instructions to the jury shall be in accordance with R. 1:7-2.
(b) In Criminal Cases. Prior to closing arguments, the court shall hold a charge conference on the record in all criminal cases. At the conference the court shall advise counsel of the offenses, defenses and other legal issues to be charged and shall rule on requests made by counsel.
(a) Generally. Either within the time provided by R. 4:25-7 or thereafter but before the close of the evidence, as to issues not anticipated prior to trial, any party may submit written requests that the court instruct the jury on the law as set forth in the requests. The requests shall make specific reference to the Model Civil Jury Charges, if applicable, or to applicable law. Copies of the requests shall be furnished all parties at the time they are submitted to the court. The court shall, on the record, rule on the requests prior to closing arguments to the jury. A verbatim record shall be made of any charge conference the court holds. Objections to the instructions to the jury shall be in accordance with R. 1:7-2.
(b) In Criminal Cases. Prior to closing arguments, the court shall hold a charge conference on the record in all criminal cases. At the conference the court shall advise counsel of the offenses, defenses and other legal issues to be charged and shall rule on requests made by counsel.
Court Rule 1:8-6. Sequestration of Juries
1:8-6. Sequestration of Juries
(a) Prior to Instructing of Jury. The jury shall not be sequestered in any action, civil or criminal, prior to the instructing of the jury by the court, unless the court, in its discretion so orders on its finding that there are extraordinary circumstances requiring sequestration for the protection of the jurors or in the interests of justice.
(b) Following Instructing of Jury. Following the instructing of the jury by the court and during the course of deliberations, the court may, in its discretion, in both civil and criminal actions, permit the dispersal of the jury for the night, for meals, and during other authorized intermissions in the deliberations.
(a) Prior to Instructing of Jury. The jury shall not be sequestered in any action, civil or criminal, prior to the instructing of the jury by the court, unless the court, in its discretion so orders on its finding that there are extraordinary circumstances requiring sequestration for the protection of the jurors or in the interests of justice.
(b) Following Instructing of Jury. Following the instructing of the jury by the court and during the course of deliberations, the court may, in its discretion, in both civil and criminal actions, permit the dispersal of the jury for the night, for meals, and during other authorized intermissions in the deliberations.
Wednesday, September 9, 2009
Court Rule 1:8-5. Availability of Petit Jury List
1:8-5. Availability of Petit Jury List
The list of the general panel of petit jurors shall be made available by the clerk of the court to any party requesting the same at least ten days prior to the date fixed for trial. In cases where the death penalty may be imposed, the list shall be made available to any party requesting it at least twenty days prior to the date fixed for trial.
The list of the general panel of petit jurors shall be made available by the clerk of the court to any party requesting the same at least ten days prior to the date fixed for trial. In cases where the death penalty may be imposed, the list shall be made available to any party requesting it at least twenty days prior to the date fixed for trial.
Saturday, September 5, 2009
General Equitable Relief
General Equitable Relief
A. to enforce the performance of contracts, trusts and fiduciary
obligations;
B. to re-execute or correct instruments lost or erroneously drafted;
C. to set aside transactions which were illegal, fraudulent, etc.;
D. to execute writs of attachment;
E. enjoin actions which will cause irreparable harm.
2. Foreclosures
A. to grant relief involving the reacquisition of property upon
default of mortgage or tax payments.
3. Probate
A. incapacitation/guardianship hearing
B. trust and estate litigation/and or administration
C. special medical hearings
B. FILINGS
The General Equity Part has a team of court clerks which double as intake
clerks, and handle the filing of all new complaints. The team also receives
and processes motions, answers, emergent applications and all other
pleadings which are then entered into the ACMS system.
All case jackets involving pending cases are stored on the eighth floor.
Most closed cases are stored on the fourteenth and eighth floors.
A. to enforce the performance of contracts, trusts and fiduciary
obligations;
B. to re-execute or correct instruments lost or erroneously drafted;
C. to set aside transactions which were illegal, fraudulent, etc.;
D. to execute writs of attachment;
E. enjoin actions which will cause irreparable harm.
2. Foreclosures
A. to grant relief involving the reacquisition of property upon
default of mortgage or tax payments.
3. Probate
A. incapacitation/guardianship hearing
B. trust and estate litigation/and or administration
C. special medical hearings
B. FILINGS
The General Equity Part has a team of court clerks which double as intake
clerks, and handle the filing of all new complaints. The team also receives
and processes motions, answers, emergent applications and all other
pleadings which are then entered into the ACMS system.
All case jackets involving pending cases are stored on the eighth floor.
Most closed cases are stored on the fourteenth and eighth floors.
EMERGENT APPLICATIONS
EMERGENT APPLICATIONS
There are four separate types of actions which General Equity judges hear
on an emergent basis. The law clerk’s duties with relation to these emergent
applications, as well as the method for distributing these applications
between judges, are as follows:
1. Orders to Show Cause
An Order to Show Cause (OTSC) is similar to a motion, except that
the moving party seeks relief on an expedited basis, on a date to be
determined by the judge. Generally, OTSCs seek one of two things: a
simple return date, where the judge will consider the requested relief
at that time; or temporary restraints, where the judge will consider
entering injunctive relief in a rapid fashion (within days or weeks)
prior to a full hearing on a return date scheduled at a later time.
Most OTSCs are filed in conjunction with a newly verified complaint.
The complaint which accompanies an OTSC must be verified by
someone with firsthand knowledge of the facts contained in the
complaint. This is unlike a complaint in most other actions, which
may be filed without verification. The filing fee for an OTSC
accompanied by a new complaint is $230 ($200 for the complaint and
$30 for the OTSC); the filing fee for an OTSC on an existing
complaint is $30.
According to R. 4:52-1(c), an OTSC which seeks temporary restraints
must contain a brief. Additionally, the rule requires that the moving
party give notice to the adversary prior to the filing of the complaint.
If notice is impossible or if the movant believes that prior notice will
have an adverse affect on the requested relief, a certification to that
119
effect must accompany the OTSC. Notice may include telephone
notice, or serving unfiled copies of the complaint on the adversary.
An OTSC which seeks temporary restraints is usually given a
preliminary hearing only on the temporary restraints requested. This
hearing is usually scheduled in an expedited fashion, on a date
determined by the judge based upon the relief requested. A
preliminary hearing on temporary restraints may be scheduled within
a few days or weeks of the filing of the OTSC.
OTSCs are assigned to the judges based upon their docket number.
Each judge in the General Equity Division is aware that he must be
available for emergent hearings at all times or provide coverage.
2. Sheriff’s Evictions
Following a final judgment of foreclosure and a subsequent sale of the
property at Sheriff’s Sale, the Sheriff’s Department schedules an
eviction of all persons who have not voluntarily vacated the
foreclosed property. Once the resident has received a second notice of
eviction from the Sheriff’s Department (which can be identified by an
indication in the notice that the Sheriff’s Department will be coming
with a van to remove belongings if the residents remain in the
property by a date certain), then they may seek stay of the eviction
from the Court. This relief may not be sought at a time prior to
receipt of this second notice, because it is not yet considered
emergent, which is the basis for the application.
It is the court clerks responsibility to interview the resident and have
them fill out a certification form regarding why they believe they
should be given a stay of their eviction. The court clerk should then
contact the Sheriff’s Department to obtain the name of the attorney for
the purchaser of the property at the Sheriff’s Sale. The attorney is then
contacted and all of the information obtained from the resident is
conveyed to the attorney in an attempt to obtain a consensual stay of
the eviction. Sometimes, consent is conditioned upon the payment of
“use and occupancy,” which is essentially rent for the remainder of
the time the resident will be on the property.
If no agreement is reached, an eviction hearing is scheduled before the
judge. The hearing is conducted on the same day as the application by
the resident. The judge will hear arguments and make a ruling on the
120
request for the stay. If the judge does grant a stay of the eviction, the
Sheriff’s Department must be notified immediately, and a
confirmation must be faxed to them in writing.
It should be noted that evictions for nonpayment of rent are handled
by the Special Civil Part in Landlord-Tenant Court.
It should also be noted that foreclosure evictions are sometimes
scheduled for buildings which house not only the foreclosed-upon
mortgagor, but tenants as well. Those tenants are entitled to apply for
a stay application as well.
Sheriff Sale:
If no Answer is filed to a foreclosure complaint by the mortgagor the
property is subsequently scheduled to be sold at a Sheriff Sale auction.
Upon the date of the scheduled sale a mortgagee has a right to apply
to the Sheriff’s department for two statutory stays. Once the two
statutory stays are exhausted, the mortgagee has a right to apply for an
additional stay application in General Equity.
It is the clerk’s responsibility to interview the property owner and
have them fill out a certification form regarding why they are
requesting a stay of their sheriff sale. Relevant information has to be
obtained such as, whether they are selling the property and/or
refinancing. As with the stay of evictions the, plaintiff’s attorney is
contacted to obtain a consensual stay of sheriff sale.
If no agreement is reached, the clerk will schedule a hearing before
the judge. The hearing is conducted the same day as the application by
the property owner and the judge will make a ruling. The Sheriff’s
Department must be notified immediately following the judge’s
decision.
Extension of Redemption:
When the property is sold at the sheriff sale, the owner has ten days to
redeem the property. Within this ten day period the owner has the
right to apply for an extension of the redemption period in General
Equity Part.
Emergency requests for stays of evictions are handled on a rotating
weekly basis by each of the two General Equity judges.
3. Special Medical Guardianships
A guardian is appointed whenever a lifesaving medical procedure
must be performed on a patient who is, or may be, unable to give
consent, pursuant to R. 4:86-12. The hospital’s attorney calls the
judge’s chambers, at which time the law clerk obtains the following
information:
a. name of the patient;
b. the name(s) of all doctors involved, the hospital, and the
proposed guardian;
c. patient’s condition;
d. the medical procedure to be performed;
e. the urgency of this procedure;
f. the mental capacity of the patient;
g. whether the patient has any next-of-kin or an advanced health
care directive.
A call is then placed to attorneys on a list of those willing to represent
the patient’s interests. When an attorney agrees, that attorney is given
all of the above information. A conference call is scheduled and is
coordinated by the hospital’s attorney. The conference call must be
recorded, which must be coordinated with the Court Clerk. The judge
hears all parties on the record and makes a ruling on whether a
guardian should be appointed
There are four separate types of actions which General Equity judges hear
on an emergent basis. The law clerk’s duties with relation to these emergent
applications, as well as the method for distributing these applications
between judges, are as follows:
1. Orders to Show Cause
An Order to Show Cause (OTSC) is similar to a motion, except that
the moving party seeks relief on an expedited basis, on a date to be
determined by the judge. Generally, OTSCs seek one of two things: a
simple return date, where the judge will consider the requested relief
at that time; or temporary restraints, where the judge will consider
entering injunctive relief in a rapid fashion (within days or weeks)
prior to a full hearing on a return date scheduled at a later time.
Most OTSCs are filed in conjunction with a newly verified complaint.
The complaint which accompanies an OTSC must be verified by
someone with firsthand knowledge of the facts contained in the
complaint. This is unlike a complaint in most other actions, which
may be filed without verification. The filing fee for an OTSC
accompanied by a new complaint is $230 ($200 for the complaint and
$30 for the OTSC); the filing fee for an OTSC on an existing
complaint is $30.
According to R. 4:52-1(c), an OTSC which seeks temporary restraints
must contain a brief. Additionally, the rule requires that the moving
party give notice to the adversary prior to the filing of the complaint.
If notice is impossible or if the movant believes that prior notice will
have an adverse affect on the requested relief, a certification to that
119
effect must accompany the OTSC. Notice may include telephone
notice, or serving unfiled copies of the complaint on the adversary.
An OTSC which seeks temporary restraints is usually given a
preliminary hearing only on the temporary restraints requested. This
hearing is usually scheduled in an expedited fashion, on a date
determined by the judge based upon the relief requested. A
preliminary hearing on temporary restraints may be scheduled within
a few days or weeks of the filing of the OTSC.
OTSCs are assigned to the judges based upon their docket number.
Each judge in the General Equity Division is aware that he must be
available for emergent hearings at all times or provide coverage.
2. Sheriff’s Evictions
Following a final judgment of foreclosure and a subsequent sale of the
property at Sheriff’s Sale, the Sheriff’s Department schedules an
eviction of all persons who have not voluntarily vacated the
foreclosed property. Once the resident has received a second notice of
eviction from the Sheriff’s Department (which can be identified by an
indication in the notice that the Sheriff’s Department will be coming
with a van to remove belongings if the residents remain in the
property by a date certain), then they may seek stay of the eviction
from the Court. This relief may not be sought at a time prior to
receipt of this second notice, because it is not yet considered
emergent, which is the basis for the application.
It is the court clerks responsibility to interview the resident and have
them fill out a certification form regarding why they believe they
should be given a stay of their eviction. The court clerk should then
contact the Sheriff’s Department to obtain the name of the attorney for
the purchaser of the property at the Sheriff’s Sale. The attorney is then
contacted and all of the information obtained from the resident is
conveyed to the attorney in an attempt to obtain a consensual stay of
the eviction. Sometimes, consent is conditioned upon the payment of
“use and occupancy,” which is essentially rent for the remainder of
the time the resident will be on the property.
If no agreement is reached, an eviction hearing is scheduled before the
judge. The hearing is conducted on the same day as the application by
the resident. The judge will hear arguments and make a ruling on the
120
request for the stay. If the judge does grant a stay of the eviction, the
Sheriff’s Department must be notified immediately, and a
confirmation must be faxed to them in writing.
It should be noted that evictions for nonpayment of rent are handled
by the Special Civil Part in Landlord-Tenant Court.
It should also be noted that foreclosure evictions are sometimes
scheduled for buildings which house not only the foreclosed-upon
mortgagor, but tenants as well. Those tenants are entitled to apply for
a stay application as well.
Sheriff Sale:
If no Answer is filed to a foreclosure complaint by the mortgagor the
property is subsequently scheduled to be sold at a Sheriff Sale auction.
Upon the date of the scheduled sale a mortgagee has a right to apply
to the Sheriff’s department for two statutory stays. Once the two
statutory stays are exhausted, the mortgagee has a right to apply for an
additional stay application in General Equity.
It is the clerk’s responsibility to interview the property owner and
have them fill out a certification form regarding why they are
requesting a stay of their sheriff sale. Relevant information has to be
obtained such as, whether they are selling the property and/or
refinancing. As with the stay of evictions the, plaintiff’s attorney is
contacted to obtain a consensual stay of sheriff sale.
If no agreement is reached, the clerk will schedule a hearing before
the judge. The hearing is conducted the same day as the application by
the property owner and the judge will make a ruling. The Sheriff’s
Department must be notified immediately following the judge’s
decision.
Extension of Redemption:
When the property is sold at the sheriff sale, the owner has ten days to
redeem the property. Within this ten day period the owner has the
right to apply for an extension of the redemption period in General
Equity Part.
Emergency requests for stays of evictions are handled on a rotating
weekly basis by each of the two General Equity judges.
3. Special Medical Guardianships
A guardian is appointed whenever a lifesaving medical procedure
must be performed on a patient who is, or may be, unable to give
consent, pursuant to R. 4:86-12. The hospital’s attorney calls the
judge’s chambers, at which time the law clerk obtains the following
information:
a. name of the patient;
b. the name(s) of all doctors involved, the hospital, and the
proposed guardian;
c. patient’s condition;
d. the medical procedure to be performed;
e. the urgency of this procedure;
f. the mental capacity of the patient;
g. whether the patient has any next-of-kin or an advanced health
care directive.
A call is then placed to attorneys on a list of those willing to represent
the patient’s interests. When an attorney agrees, that attorney is given
all of the above information. A conference call is scheduled and is
coordinated by the hospital’s attorney. The conference call must be
recorded, which must be coordinated with the Court Clerk. The judge
hears all parties on the record and makes a ruling on whether a
guardian should be appointed
Friday, September 4, 2009
NJ Court Rule 1:8-4. Foreperson
1:8-4. Foreperson
Juror number one shall be the foreperson; but if that juror is thereafter selected as an alternate juror or otherwise discharged, then the juror next drawn on the impanelling of a jury, who remains on the jury for the determination of the issues, shall be the foreperson.
Juror number one shall be the foreperson; but if that juror is thereafter selected as an alternate juror or otherwise discharged, then the juror next drawn on the impanelling of a jury, who remains on the jury for the determination of the issues, shall be the foreperson.
NJ Court Rule 1:8-3. Examination of Jurors; Challenges
1:8-3. Examination of Jurors; Challenges
(a) Examination of Jurors. For the purpose of determining whether a challenge should be interposed, the court shall interrogate the prospective jurors in the box after the required number are drawn without placing them under oath. The parties or their attorneys may supplement the court's interrogation in its discretion. At trials of crimes punishable by death, the examination shall be made of each juror individually, as his name is drawn, and under oath.
(b) Challenges in the Array; Challenges for Cause. Any party may challenge the array in writing on the ground that the jurors were not selected, drawn or summoned according to law. A challenge to the array shall be decided before any individual juror is examined. A challenge to any individual juror which by law is ground of challenge for cause must be made before the juror is sworn to try the case, but the court for good cause may permit it to be made after the juror is sworn but before any evidence is presented. All challenges shall be tried by the court.
(c) Peremptory Challenges in Civil Actions. In civil actions each party shall be entitled to 6 peremptory challenges. Parties represented by the same attorney shall be deemed 1 party for the purposes of this rule. Where, however, multiple parties having a substantial identity of interest in one or more issues are represented by different attorneys, the trial court in its discretion may, on application of counsel prior to the selection of the jury, accord the adverse party such additional number of peremptory challenges as it deems appropriate in order to avoid unfairness to the adverse party.
(d) Peremptory Challenges in Criminal Actions. Upon indictment for kidnapping, murder, aggravated manslaughter, manslaughter, aggravated assault, aggravated sexual assault, sexual assault, aggravated criminal sexual contact, aggravated arson, arson, burglary, robbery, forgery if it constitutes a crime of the third degree as defined by N.J.S.A. 2C:21-1b, or perjury, the defendant shall be entitled to 20 peremptory challenges if tried alone and to 10 such challenges when tried jointly; and the State shall have 12 peremptory challenges if the defendant is tried alone and 6 peremptory challenges for each 10 afforded defendants when tried jointly. In other criminal actions each defendant shall be entitled to 10 peremptory challenges and the State shall have 10 peremptory challenges for each 10 challenges afforded defendants. The trial judge shall have the discretionary authority to increase proportionally the number of peremptory challenges available to the defendant and the State in any case in which the sentencing procedure set forth in subsection c. of N.J.S. 2C:11-3 might be utilized. When the case is to be tried by a foreign jury, each defendant shall be entitled to 5 peremptory challenges, and the State 5 peremptory challenges for each 5 peremptory challenges afforded defendants.
(e) Order of Exercising of Peremptory Challenges.
(1) In any case in which each side is entitled to an equal number of challenges, those challenges shall alternate one by one, with the State in a criminal case and the plaintiff in a civil case exercising the first challenge.
(2) In any case in which there is more than one defendant and/or an uneven number of peremptory challenges, the court shall establish the order of challenge, which shall be set forth on the record prior to the commencement of the jury selection process.
(3) The passing of a peremptory challenge by any party shall not constitute a waiver of the right thereafter to exercise the same against any juror, unless all parties pass successive challenges.
(f) Conference Before Examination. Prior to the examination of the prospective jurors, the court shall hold a conference on the record to determine the areas of inquiry during voir dire. Attorneys shall submit proposed voir dire questions in writing in advance. If requested, the court shall determine whether the attorneys may participate in the questioning of the prospective jurors and, if so, to what extent. During the course of the questioning, additional questions of prospective jurors may be requested and asked as appropriate under the circumstances. The judge shall rule on the record on the proposed voir dire questions and on any requested attorney participation.
(a) Examination of Jurors. For the purpose of determining whether a challenge should be interposed, the court shall interrogate the prospective jurors in the box after the required number are drawn without placing them under oath. The parties or their attorneys may supplement the court's interrogation in its discretion. At trials of crimes punishable by death, the examination shall be made of each juror individually, as his name is drawn, and under oath.
(b) Challenges in the Array; Challenges for Cause. Any party may challenge the array in writing on the ground that the jurors were not selected, drawn or summoned according to law. A challenge to the array shall be decided before any individual juror is examined. A challenge to any individual juror which by law is ground of challenge for cause must be made before the juror is sworn to try the case, but the court for good cause may permit it to be made after the juror is sworn but before any evidence is presented. All challenges shall be tried by the court.
(c) Peremptory Challenges in Civil Actions. In civil actions each party shall be entitled to 6 peremptory challenges. Parties represented by the same attorney shall be deemed 1 party for the purposes of this rule. Where, however, multiple parties having a substantial identity of interest in one or more issues are represented by different attorneys, the trial court in its discretion may, on application of counsel prior to the selection of the jury, accord the adverse party such additional number of peremptory challenges as it deems appropriate in order to avoid unfairness to the adverse party.
(d) Peremptory Challenges in Criminal Actions. Upon indictment for kidnapping, murder, aggravated manslaughter, manslaughter, aggravated assault, aggravated sexual assault, sexual assault, aggravated criminal sexual contact, aggravated arson, arson, burglary, robbery, forgery if it constitutes a crime of the third degree as defined by N.J.S.A. 2C:21-1b, or perjury, the defendant shall be entitled to 20 peremptory challenges if tried alone and to 10 such challenges when tried jointly; and the State shall have 12 peremptory challenges if the defendant is tried alone and 6 peremptory challenges for each 10 afforded defendants when tried jointly. In other criminal actions each defendant shall be entitled to 10 peremptory challenges and the State shall have 10 peremptory challenges for each 10 challenges afforded defendants. The trial judge shall have the discretionary authority to increase proportionally the number of peremptory challenges available to the defendant and the State in any case in which the sentencing procedure set forth in subsection c. of N.J.S. 2C:11-3 might be utilized. When the case is to be tried by a foreign jury, each defendant shall be entitled to 5 peremptory challenges, and the State 5 peremptory challenges for each 5 peremptory challenges afforded defendants.
(e) Order of Exercising of Peremptory Challenges.
(1) In any case in which each side is entitled to an equal number of challenges, those challenges shall alternate one by one, with the State in a criminal case and the plaintiff in a civil case exercising the first challenge.
(2) In any case in which there is more than one defendant and/or an uneven number of peremptory challenges, the court shall establish the order of challenge, which shall be set forth on the record prior to the commencement of the jury selection process.
(3) The passing of a peremptory challenge by any party shall not constitute a waiver of the right thereafter to exercise the same against any juror, unless all parties pass successive challenges.
(f) Conference Before Examination. Prior to the examination of the prospective jurors, the court shall hold a conference on the record to determine the areas of inquiry during voir dire. Attorneys shall submit proposed voir dire questions in writing in advance. If requested, the court shall determine whether the attorneys may participate in the questioning of the prospective jurors and, if so, to what extent. During the course of the questioning, additional questions of prospective jurors may be requested and asked as appropriate under the circumstances. The judge shall rule on the record on the proposed voir dire questions and on any requested attorney participation.
NJ Court Rule 1:8-2. Number of Jurors
1:8-2. Number of Jurors
(a) Number Deliberating in Criminal Actions. A deliberating jury in a criminal action shall consist of 12 persons, but at any time before verdict the parties may stipulate that the jury shall consist of any number less than 12 except in the trials of crimes punishable by death. Such stipulations shall be in writing and with the approval of the court.
(b) Number Deliberating in Civil Actions. A deliberating jury in a civil action shall consist of six persons unless:
(1) for good cause shown the court orders a jury of 12 persons pursuant to a demand made in accordance with R. 1:8-1(b); or
(2) fewer than six jurors remain prior to commencement of deliberations and the parties then agree on the record to submit the case to the remaining jurors; or
(3) more than six jurors remain prior to the commencement of deliberations and the parties then agree on the record that all remaining jurors shall deliberate.
(c) Verdict in Civil Actions.
(1) Unless the parties have agreed on the record prior to commencement of deliberations to accept a verdict or finding by a lesser number, the verdict or finding shall be by agreement of five jurors when six jurors deliberate, and by 10 jurors when 12 jurors deliberate.
(2) If the parties have agreed on the record to submit the case to fewer than six jurors, pursuant to paragraph (b)(2) of this rule, the verdict or finding shall be unanimous, unless the parties have also agreed on the record prior to commencement of deliberations to a verdict or finding by a lesser number.
(3) If the parties have agreed on the record to more than six jurors pursuant to paragraph (b)(3) of this rule, the verdict or finding shall be by agreement of five-sixths of the deliberating jurors, unless the parties have otherwise agreed on the record prior to commencement of deliberations.
(d) Alternate Jurors; Civil and Criminal Actions.
(1) All Actions. The court in its discretion may direct the impanelling of a jury of such number as it deems necessary to ensure that a sufficient number of jurors will remain to deliberate. If a juror is excused after being sworn but before opening statements begin, another juror may be impanelled and sworn, but no juror may be empaneled and sworn thereafter. All the jurors shall sit and hear the case, but the court for good cause shown may excuse any of them from service provided the number of jurors is not reduced to less than 12 or 6 as the case may be or such other number as may be stipulated to. If more than such number are left on the jury at the conclusion of the court's charge, the clerk of the court in the jury's presence shall randomly draw such number of names as will reduce the jury to the number required to determine the issues. Following the drawing of the names of jurors to determine the issues, the court may in its discretion order that the alternate jurors not be discharged, in which event the alternate jurors shall be sequestered apart from the other jurors and shall be subject to the same orders and instructions of the court, with respect to sequestration and other matters, as the other jurors. If the alternate jurors are not discharged and if at any time after submission of the case to the jury, a juror dies or is discharged by the court because of illness or other inability to continue, the court may direct the clerk to draw the name of an alternate juror to take the place of the juror who is deceased or discharged. When such a substitution of an alternate juror is made, the court shall instruct the jury to recommence deliberations and shall give the jury such other supplemental instructions as may be appropriate.
(2) Civil Actions. In civil actions, instead of selecting alternate jurors, the parties may agree on the record, pursuant to paragraph (b)(3) of this rule, that all remaining jurors shall deliberate and that the verdict or finding shall be returned by such number as is provided by paragraph (c)(3) of this rule.
(a) Number Deliberating in Criminal Actions. A deliberating jury in a criminal action shall consist of 12 persons, but at any time before verdict the parties may stipulate that the jury shall consist of any number less than 12 except in the trials of crimes punishable by death. Such stipulations shall be in writing and with the approval of the court.
(b) Number Deliberating in Civil Actions. A deliberating jury in a civil action shall consist of six persons unless:
(1) for good cause shown the court orders a jury of 12 persons pursuant to a demand made in accordance with R. 1:8-1(b); or
(2) fewer than six jurors remain prior to commencement of deliberations and the parties then agree on the record to submit the case to the remaining jurors; or
(3) more than six jurors remain prior to the commencement of deliberations and the parties then agree on the record that all remaining jurors shall deliberate.
(c) Verdict in Civil Actions.
(1) Unless the parties have agreed on the record prior to commencement of deliberations to accept a verdict or finding by a lesser number, the verdict or finding shall be by agreement of five jurors when six jurors deliberate, and by 10 jurors when 12 jurors deliberate.
(2) If the parties have agreed on the record to submit the case to fewer than six jurors, pursuant to paragraph (b)(2) of this rule, the verdict or finding shall be unanimous, unless the parties have also agreed on the record prior to commencement of deliberations to a verdict or finding by a lesser number.
(3) If the parties have agreed on the record to more than six jurors pursuant to paragraph (b)(3) of this rule, the verdict or finding shall be by agreement of five-sixths of the deliberating jurors, unless the parties have otherwise agreed on the record prior to commencement of deliberations.
(d) Alternate Jurors; Civil and Criminal Actions.
(1) All Actions. The court in its discretion may direct the impanelling of a jury of such number as it deems necessary to ensure that a sufficient number of jurors will remain to deliberate. If a juror is excused after being sworn but before opening statements begin, another juror may be impanelled and sworn, but no juror may be empaneled and sworn thereafter. All the jurors shall sit and hear the case, but the court for good cause shown may excuse any of them from service provided the number of jurors is not reduced to less than 12 or 6 as the case may be or such other number as may be stipulated to. If more than such number are left on the jury at the conclusion of the court's charge, the clerk of the court in the jury's presence shall randomly draw such number of names as will reduce the jury to the number required to determine the issues. Following the drawing of the names of jurors to determine the issues, the court may in its discretion order that the alternate jurors not be discharged, in which event the alternate jurors shall be sequestered apart from the other jurors and shall be subject to the same orders and instructions of the court, with respect to sequestration and other matters, as the other jurors. If the alternate jurors are not discharged and if at any time after submission of the case to the jury, a juror dies or is discharged by the court because of illness or other inability to continue, the court may direct the clerk to draw the name of an alternate juror to take the place of the juror who is deceased or discharged. When such a substitution of an alternate juror is made, the court shall instruct the jury to recommence deliberations and shall give the jury such other supplemental instructions as may be appropriate.
(2) Civil Actions. In civil actions, instead of selecting alternate jurors, the parties may agree on the record, pursuant to paragraph (b)(3) of this rule, that all remaining jurors shall deliberate and that the verdict or finding shall be returned by such number as is provided by paragraph (c)(3) of this rule.
NJ Court Rule 1:8-1. Trial by Jury
RULE 1:8. JURY
1:8-1. Trial by Jury
(a) Criminal Actions. Criminal actions required to be tried by a jury shall be so tried unless the defendant, in writing and with the approval of the court, after notice to the prosecuting attorney and an opportunity to be heard, waives a jury trial. In sentencing proceedings conducted pursuant to N.J.S.A. 2C:11-3(c)(1), the consent of prosecutor shall be required for such waiver.
(b) Civil Actions. Issues in civil actions triable of right by a jury shall be so tried only if a jury trial is demanded by a party in accordance with R. 4:35-1 or R. 6:5-3, as applicable, and is not thereafter waived. If a jury of twelve is requested, that request shall be included in the jury demand.
1:8-1. Trial by Jury
(a) Criminal Actions. Criminal actions required to be tried by a jury shall be so tried unless the defendant, in writing and with the approval of the court, after notice to the prosecuting attorney and an opportunity to be heard, waives a jury trial. In sentencing proceedings conducted pursuant to N.J.S.A. 2C:11-3(c)(1), the consent of prosecutor shall be required for such waiver.
(b) Civil Actions. Issues in civil actions triable of right by a jury shall be so tried only if a jury trial is demanded by a party in accordance with R. 4:35-1 or R. 6:5-3, as applicable, and is not thereafter waived. If a jury of twelve is requested, that request shall be included in the jury demand.
NJ Court Rule 1:7-6. Non-public Business Records
1:7-6. Non-public Business Records
Where the original of a non-public business record has been produced at trial and a clear copy thereof is certified and offered to the court, the court, except for good cause shown, shall permit the copy to be marked into evidence and the original to be returned to its custodian. The parties may stipulate in advance as to the admissibility of such copy.
Where the original of a non-public business record has been produced at trial and a clear copy thereof is certified and offered to the court, the court, except for good cause shown, shall permit the copy to be marked into evidence and the original to be returned to its custodian. The parties may stipulate in advance as to the admissibility of such copy.
NJ Court Rule 1:7-5. Trial Errors
1:7-5. Trial Errors
Any error or omission which does not prejudice a substantial right shall be disregarded by the trial court before, during and after trial. The trial court, however, at every stage of the action, including a timely application after trial, may notice any error of such a nature as to have been clearly capable of producing an unjust result, even though such error was not brought to its attention by a party.
Any error or omission which does not prejudice a substantial right shall be disregarded by the trial court before, during and after trial. The trial court, however, at every stage of the action, including a timely application after trial, may notice any error of such a nature as to have been clearly capable of producing an unjust result, even though such error was not brought to its attention by a party.
NJ Court Rule 1:7-4. Findings by the Court in Non-jury Trials and on Motions
1:7-4. Findings by the Court in Non-jury Trials and on Motions
(a) Required Findings. The court shall, by an opinion or memorandum decision, either written or oral, find the facts and state its conclusions of law thereon in all actions tried without a jury, on every motion decided by a written order that is appealable as of right, and also as required by R. 3:29 The court shall thereupon enter or direct the entry of the appropriate judgment.
(b) Motion for Amendment. On motion made not later than 20 days after service of the final order or judgment upon all parties by the party obtaining it, the court may grant a rehearing or may, on the papers submitted, amend or add to its findings and may amend the final order or judgment accordingly, but the failure of a party to make such motion or to object to the findings shall not preclude that party's right thereafter to question the sufficiency of the evidence to support the findings. The motion to amend the findings, which may be made with a motion for a new trial, shall state with specificity the basis on which it is made, including a statement of the matters or controlling decisions that counsel believes the court has overlooked or on which it has erred. Motions for reconsideration of interlocutory orders shall be determined pursuant to R. 4:42-2
(a) Required Findings. The court shall, by an opinion or memorandum decision, either written or oral, find the facts and state its conclusions of law thereon in all actions tried without a jury, on every motion decided by a written order that is appealable as of right, and also as required by R. 3:29 The court shall thereupon enter or direct the entry of the appropriate judgment.
(b) Motion for Amendment. On motion made not later than 20 days after service of the final order or judgment upon all parties by the party obtaining it, the court may grant a rehearing or may, on the papers submitted, amend or add to its findings and may amend the final order or judgment accordingly, but the failure of a party to make such motion or to object to the findings shall not preclude that party's right thereafter to question the sufficiency of the evidence to support the findings. The motion to amend the findings, which may be made with a motion for a new trial, shall state with specificity the basis on which it is made, including a statement of the matters or controlling decisions that counsel believes the court has overlooked or on which it has erred. Motions for reconsideration of interlocutory orders shall be determined pursuant to R. 4:42-2
NJ Court Rule 1:7-3. Record of Excluded Evidence
1:7-3. Record of Excluded Evidence
If an objection to a question propounded to a witness is sustained by the court, the examining attorney may, out of the hearing of the jury (if there is a jury), make a specific offer of what is expected to be proved by the answer of the witness, and the court may add such other and further statement as clearly shows the character of the evidence, the form in which it was offered, and the ruling thereon. In actions tried without a jury the court shall upon request permit the evidence and any cross-examination relating thereto or evidence in rebuttal thereof to be takendown by the court reporter in full, or otherwise preserved, unless it clearly appears to the court that the evidence is not admissible on any ground or that the witness is privileged or unless the interest of justice otherwise requires. In actions tried with a jury the court may, in its discretion and in the absence of the jury, permit such taking and preservation of the excluded evidence.
If an objection to a question propounded to a witness is sustained by the court, the examining attorney may, out of the hearing of the jury (if there is a jury), make a specific offer of what is expected to be proved by the answer of the witness, and the court may add such other and further statement as clearly shows the character of the evidence, the form in which it was offered, and the ruling thereon. In actions tried without a jury the court shall upon request permit the evidence and any cross-examination relating thereto or evidence in rebuttal thereof to be takendown by the court reporter in full, or otherwise preserved, unless it clearly appears to the court that the evidence is not admissible on any ground or that the witness is privileged or unless the interest of justice otherwise requires. In actions tried with a jury the court may, in its discretion and in the absence of the jury, permit such taking and preservation of the excluded evidence.
NJ Court Rule 1:7-2. Objections
1:7-2. Objections
For the purpose of reserving questions for review or appeal relating to rulings or orders of the court or instructions to the jury, a party, at the time the ruling or order is made or sought, shall make known to the court specifically the action which the party desires the court to take or the party's objection to the action taken and the grounds therefor. Except as otherwise provided by R. 1:7-5 and R. 2:10-2 (plain error), no party may urge as error any portion of the charge to the jury or omissions therefrom unless objections are made thereto before the jury retires to consider its verdict, but opportunity shall be given to make the objection in open court, in the absence of the jury. A party shall only be prejudiced by the absence of an objection if there was an opportunity to object to a ruling, order or charge.
For the purpose of reserving questions for review or appeal relating to rulings or orders of the court or instructions to the jury, a party, at the time the ruling or order is made or sought, shall make known to the court specifically the action which the party desires the court to take or the party's objection to the action taken and the grounds therefor. Except as otherwise provided by R. 1:7-5 and R. 2:10-2 (plain error), no party may urge as error any portion of the charge to the jury or omissions therefrom unless objections are made thereto before the jury retires to consider its verdict, but opportunity shall be given to make the objection in open court, in the absence of the jury. A party shall only be prejudiced by the absence of an objection if there was an opportunity to object to a ruling, order or charge.
NJ Court Rule RULE 1:7. GENERAL PROVISIONS FOR TRIALS 1:7-1. Opening and Closing Statement
RULE 1:7. GENERAL PROVISIONS FOR TRIALS
1:7-1. Opening and Closing Statement
(a) Opening Statement. Before any evidence is offered at trial, the State in a criminal action or the plaintiff in a civil action, unless otherwise provided in the pretrial order, shall make an opening statement. A defendant who chooses to make an opening statement shall do so immediately thereafter.
(b) Closing Statement. After the close of the evidence and except as may be otherwise ordered by the court, the parties may make closing statements in the reverse order of opening statements. In civil cases any party may suggest to the trier of fact, with respect to any element of damages, that unliquidated damages be calculated on a time-unit basis without reference to a specific sum. In the event such comments are made to a jury, the judge shall instruct the jury that they are argument only and do not constitute evidence.
1:7-1. Opening and Closing Statement
(a) Opening Statement. Before any evidence is offered at trial, the State in a criminal action or the plaintiff in a civil action, unless otherwise provided in the pretrial order, shall make an opening statement. A defendant who chooses to make an opening statement shall do so immediately thereafter.
(b) Closing Statement. After the close of the evidence and except as may be otherwise ordered by the court, the parties may make closing statements in the reverse order of opening statements. In civil cases any party may suggest to the trier of fact, with respect to any element of damages, that unliquidated damages be calculated on a time-unit basis without reference to a specific sum. In the event such comments are made to a jury, the judge shall instruct the jury that they are argument only and do not constitute evidence.
NJ Court Rule 1:6-7 Reading of Moving Papers and Briefs in Advance
1:6-7 Reading of Moving Papers and Briefs in Advance
Insofar as possible judges shall read moving papers and briefs in advance of the hearing and to this end, when briefs are submitted in the trial courts, the matter shall be assigned insofar as possible to the judge in advance of the hearing. The parties shall promptly advise the court if a motion is withdrawn or the matter settled prior to the hearing date
Insofar as possible judges shall read moving papers and briefs in advance of the hearing and to this end, when briefs are submitted in the trial courts, the matter shall be assigned insofar as possible to the judge in advance of the hearing. The parties shall promptly advise the court if a motion is withdrawn or the matter settled prior to the hearing date
NJ Court Rule 1:6-6. Evidence on Motions; Affidavits
1:6-6. Evidence on Motions; Affidavits
If a motion is based on facts not appearing of record, or not judicially noticeable, the court may hear it on affidavits made on personal knowledge, setting forth only facts which are admissible in evidence to which the affiant is competent to testify and which may have annexed thereto certified copies of all papers or parts thereof referred to therein. The court may direct the affiant to submit to cross-examination, or hear the matter wholly or partly on oral testimony or depositions
If a motion is based on facts not appearing of record, or not judicially noticeable, the court may hear it on affidavits made on personal knowledge, setting forth only facts which are admissible in evidence to which the affiant is competent to testify and which may have annexed thereto certified copies of all papers or parts thereof referred to therein. The court may direct the affiant to submit to cross-examination, or hear the matter wholly or partly on oral testimony or depositions
NJ Court Rule 1:6-5. Briefs
1:6-5. Briefs
The moving party's brief in support of a motion shall, pursuant to R. 1:6-3, be served and submitted to the court with the moving papers. The respondent shall serve and submit an answering brief at least 8 days before the return date. A reply brief, if any, shall be served and submitted at least 4 days before the return date. Briefs may not be submitted after the time fixed by this rule or by court order, including the pretrial order, without leave of court, which may be applied for ex parte.
The moving party's brief in support of a motion shall, pursuant to R. 1:6-3, be served and submitted to the court with the moving papers. The respondent shall serve and submit an answering brief at least 8 days before the return date. A reply brief, if any, shall be served and submitted at least 4 days before the return date. Briefs may not be submitted after the time fixed by this rule or by court order, including the pretrial order, without leave of court, which may be applied for ex parte.
1:6-4. Superior Court; Place for Filing Motions, Orders to Show Cause and Orders
1:6-4. Superior Court; Place for Filing Motions, Orders to Show Cause and Orders
The original of all motion papers, orders to show cause and orders in civil actions in the Superior Court shall be filed in accordance with R. 1:5-6(b), except that in all actions in the Chancery Division or specially assigned to a judge of the Law Division or, if the judge to whom the motion is assigned is known, a copy of all motion papers shall also be simultaneously submitted to the judge.
The original of all motion papers, orders to show cause and orders in civil actions in the Superior Court shall be filed in accordance with R. 1:5-6(b), except that in all actions in the Chancery Division or specially assigned to a judge of the Law Division or, if the judge to whom the motion is assigned is known, a copy of all motion papers shall also be simultaneously submitted to the judge.
1:6-3. Filing and Service of Motions and Cross-Motions
1:6-3. Filing and Service of Motions and Cross-Motions
(a) Motions Generally. Other than an ex parte motion and except as otherwise provided by R. 4:46-1 ( summary judgment) and R. 5:5-4(c) (post judgment motions), a notice of motion shall be filed and served not later than 16 days before the specified return date unless otherwise provided by court order, which may be applied for ex parte. Thus, for example, if the return date of the motion is a Friday, the motion must be filed and served not later than the Wednesday, 16 days prior. If a motion is supported by affidavit or certification, the affidavit or certification shall be filed and served with the motion. Except as provided by R. 4:49-1(b) (motion for new trial), any opposing affidavits, certifications or objections filed pursuant to R. 1:6-2 shall be filed and served not later than 8 days before the return date unless the court relaxes that time. Thus, for example, if the return date is on a Friday, any response must be filed and served no later than Thursday of the prior week. Reply papers responding to opposing affidavits or certifications shall be filed and served not later than 4 days before the return date unless the court otherwise orders. Thus, for example, such papers must be filed and served on Monday for a return date of the following Friday. No other papers may be filed without leave of court.
(b) Cross-Motions. A cross-motion may be filed and served by the responding party together with that party's opposition to the motion and noticed for the same return date only if it relates to the subject matter of the original motion, except in Family Part motions brought under Part V of these Rules where a notice of cross-motion may seek relief unrelated to that sought in the original motion. A cross-motion relating to the subject matter of the original motion shall, if timely filed pursuant to this rule, relate back to the date of the filing of the original motion. The original moving party's response to the cross-motion shall be filed and served as provided by paragraph (a) for reply papers. The court may, however, on request of the original moving party, or on its own motion, enlarge the time for filing an answer to the cross-motion, or fix a new return date for both. No reply papers may be served or filed by the cross-movant without leave of court.
(c) Completion of Service. For purposes of this rule, service of motion papers is complete only on receipt at the office of adverse counsel or the address of a pro se party. If service is by ordinary mail, receipt will be presumed on the third business day after mailing.
(a) Motions Generally. Other than an ex parte motion and except as otherwise provided by R. 4:46-1 ( summary judgment) and R. 5:5-4(c) (post judgment motions), a notice of motion shall be filed and served not later than 16 days before the specified return date unless otherwise provided by court order, which may be applied for ex parte. Thus, for example, if the return date of the motion is a Friday, the motion must be filed and served not later than the Wednesday, 16 days prior. If a motion is supported by affidavit or certification, the affidavit or certification shall be filed and served with the motion. Except as provided by R. 4:49-1(b) (motion for new trial), any opposing affidavits, certifications or objections filed pursuant to R. 1:6-2 shall be filed and served not later than 8 days before the return date unless the court relaxes that time. Thus, for example, if the return date is on a Friday, any response must be filed and served no later than Thursday of the prior week. Reply papers responding to opposing affidavits or certifications shall be filed and served not later than 4 days before the return date unless the court otherwise orders. Thus, for example, such papers must be filed and served on Monday for a return date of the following Friday. No other papers may be filed without leave of court.
(b) Cross-Motions. A cross-motion may be filed and served by the responding party together with that party's opposition to the motion and noticed for the same return date only if it relates to the subject matter of the original motion, except in Family Part motions brought under Part V of these Rules where a notice of cross-motion may seek relief unrelated to that sought in the original motion. A cross-motion relating to the subject matter of the original motion shall, if timely filed pursuant to this rule, relate back to the date of the filing of the original motion. The original moving party's response to the cross-motion shall be filed and served as provided by paragraph (a) for reply papers. The court may, however, on request of the original moving party, or on its own motion, enlarge the time for filing an answer to the cross-motion, or fix a new return date for both. No reply papers may be served or filed by the cross-movant without leave of court.
(c) Completion of Service. For purposes of this rule, service of motion papers is complete only on receipt at the office of adverse counsel or the address of a pro se party. If service is by ordinary mail, receipt will be presumed on the third business day after mailing.
1:6-2. Form of Motion; Hearing
1:6-2. Form of Motion; Hearing
(a) Generally. An application to the court for an order shall be by motion, or in special cases, by order to show cause. A motion, other than for bail pursuant to R. 3:26-2(d) or one made during a trial or hearing, shall be by notice of motion in writing unless the court permits it to be made orally. Every motion shall state the time and place when it is to be presented to the court, the grounds upon which it is made and the nature of the relief sought, and, as to motions filed in the Law Division-Civil Part only, the discovery end date or a statement that no such date has been assigned. The motion shall be accompanied by a proposed form of order in accordance with R. 3:1-4(a) or R. 4:42-1(e), as applicable. The form of order shall note whether the motion was opposed or unopposed. If the motion or response thereto relies on facts not of record or not subject of judicial notice, it shall be supported by affidavit made in compliance with R. 1:6-6. The motion shall be deemed uncontested and there shall be no right to argue orally in opposition unless responsive papers are timely filed and served stating with particularity the basis of the opposition to the relief sought. If the motion is withdrawn or the matter settled, counsel shall forthwith inform the court.
(b) Civil Motions in Chancery Division and Specially Assigned Cases; Affidavit of Non-Involvement in Medical Malpractice Actions.
(1) Generally. When a civil action has been specially assigned to an individual judge for case management and disposition of all pretrial and trial proceedings and in all cases pending in the Superior Court, Chancery Division, the judge, on receipt of motion papers, shall determine the mode and scheduling of the disposition of the motion. Except as provided in R. 5:5-4, motions filed in causes pending in the Superior Court, Chancery Division, Family Part, shall be governed by this paragraph.
(2) Motion for Dismissal Pursuant to N.J.S.A 2A:53A-40. A party moving for dismissal of the action on the ground of non-involvement in the cause of action pursuant to N.J.S.A. 2A:53A-40 of the New Jersey Medical Care Access and Responsibility and Patients First Act, N.J.S.A. 2A:53A-37 to 42, shall annex to the notice of motion an affidavit of non-involvement that complies with Rule 1:6-6. In the absence of opposition filed in accordance with Rule 1:6-3, the court shall enter an order dismissing the action as to the moving party. If opposition is filed, the court shall proceed in accordance with this rule.
(c) Civil and Family Part Discovery and Calendar Motions. Every motion in a civil case or a case in the Chancery Division, Family Part, not governed by paragraph (b), involving any aspect of pretrial discovery or the calendar, shall be listed for disposition only if accompanied by a certification stating that the attorney for the moving party has either (1) personally conferred orally or has made a specifically described good faith attempt to confer orally with the attorney for the opposing party in order to resolve the issues raised by the motion by agreement or consent order and that such effort at resolution has been unsuccessful, or (2) advised the attorney for the opposing party by letter, after the default has occurred, that continued non-compliance with a discovery obligation will result in an appropriate motion being made without further attempt to resolve the matter. A motion to extend the time for discovery shall have annexed thereto either a copy of all prior orders extending the discovery period or a certification that there have been no such prior orders. The moving papers shall also set forth the date of any scheduled pretrial conference, arbitration proceeding scheduled pursuant to R. 4:21A, calendar call or trial, or state that no such dates have been fixed. Discovery and calendar motions shall be disposed of on the papers unless, on at least two days notice, the court specifically directs oral argument on its own motion or, in its discretion, on a party's request. A movant's request for oral argument shall be made either in the moving papers or reply; a respondent's request for oral argument shall be made in the answering papers.
(d) Civil and Family Part Motions-Oral Argument. Except as otherwise provided by R. 5:5-4 (family actions), no motion shall be listed for oral argument unless a party requests oral argument in the moving papers or in timely-filed answering or reply papers, or unless the court directs. A party requesting oral argument may, however, condition the request on the motion being contested. If the motion involves pretrial discovery or is directly addressed to the calendar, the request shall be considered only if accompanied by a statement of reasons and shall be deemed denied unless the court otherwise advises counsel prior to the return day. As to all other motions, the request shall be granted as of right.
(e) Oral Argument — Mode.The court in civil matters, on its own motion or on a party's request, may direct argument of any motion by telephone conference without court appearance. A verbatim record shall be made of all such telephone arguments and the rulings thereon.
(f) Order; Record Notation. If the court has made findings of fact and conclusions of law explaining its disposition of the motion, the order shall indicate whether the findings and conclusions were written or oral and the date on which they were rendered. However, if the motion was argued and the court intends to place its findings on the record at a later date, it shall give all parties one day's notice, which may be telephonic, of the time and place it shall do so. If no such findings have been made, the court shall append to the order a statement of reasons for its disposition if it concludes that explanation is either necessary or appropriate. If the order directs a plenary or other evidential hearing, it shall specifically describe the issues to be so tried. A written order or record notation shall be entered by the court memorializing the disposition made on a telephone motion.
(a) Generally. An application to the court for an order shall be by motion, or in special cases, by order to show cause. A motion, other than for bail pursuant to R. 3:26-2(d) or one made during a trial or hearing, shall be by notice of motion in writing unless the court permits it to be made orally. Every motion shall state the time and place when it is to be presented to the court, the grounds upon which it is made and the nature of the relief sought, and, as to motions filed in the Law Division-Civil Part only, the discovery end date or a statement that no such date has been assigned. The motion shall be accompanied by a proposed form of order in accordance with R. 3:1-4(a) or R. 4:42-1(e), as applicable. The form of order shall note whether the motion was opposed or unopposed. If the motion or response thereto relies on facts not of record or not subject of judicial notice, it shall be supported by affidavit made in compliance with R. 1:6-6. The motion shall be deemed uncontested and there shall be no right to argue orally in opposition unless responsive papers are timely filed and served stating with particularity the basis of the opposition to the relief sought. If the motion is withdrawn or the matter settled, counsel shall forthwith inform the court.
(b) Civil Motions in Chancery Division and Specially Assigned Cases; Affidavit of Non-Involvement in Medical Malpractice Actions.
(1) Generally. When a civil action has been specially assigned to an individual judge for case management and disposition of all pretrial and trial proceedings and in all cases pending in the Superior Court, Chancery Division, the judge, on receipt of motion papers, shall determine the mode and scheduling of the disposition of the motion. Except as provided in R. 5:5-4, motions filed in causes pending in the Superior Court, Chancery Division, Family Part, shall be governed by this paragraph.
(2) Motion for Dismissal Pursuant to N.J.S.A 2A:53A-40. A party moving for dismissal of the action on the ground of non-involvement in the cause of action pursuant to N.J.S.A. 2A:53A-40 of the New Jersey Medical Care Access and Responsibility and Patients First Act, N.J.S.A. 2A:53A-37 to 42, shall annex to the notice of motion an affidavit of non-involvement that complies with Rule 1:6-6. In the absence of opposition filed in accordance with Rule 1:6-3, the court shall enter an order dismissing the action as to the moving party. If opposition is filed, the court shall proceed in accordance with this rule.
(c) Civil and Family Part Discovery and Calendar Motions. Every motion in a civil case or a case in the Chancery Division, Family Part, not governed by paragraph (b), involving any aspect of pretrial discovery or the calendar, shall be listed for disposition only if accompanied by a certification stating that the attorney for the moving party has either (1) personally conferred orally or has made a specifically described good faith attempt to confer orally with the attorney for the opposing party in order to resolve the issues raised by the motion by agreement or consent order and that such effort at resolution has been unsuccessful, or (2) advised the attorney for the opposing party by letter, after the default has occurred, that continued non-compliance with a discovery obligation will result in an appropriate motion being made without further attempt to resolve the matter. A motion to extend the time for discovery shall have annexed thereto either a copy of all prior orders extending the discovery period or a certification that there have been no such prior orders. The moving papers shall also set forth the date of any scheduled pretrial conference, arbitration proceeding scheduled pursuant to R. 4:21A, calendar call or trial, or state that no such dates have been fixed. Discovery and calendar motions shall be disposed of on the papers unless, on at least two days notice, the court specifically directs oral argument on its own motion or, in its discretion, on a party's request. A movant's request for oral argument shall be made either in the moving papers or reply; a respondent's request for oral argument shall be made in the answering papers.
(d) Civil and Family Part Motions-Oral Argument. Except as otherwise provided by R. 5:5-4 (family actions), no motion shall be listed for oral argument unless a party requests oral argument in the moving papers or in timely-filed answering or reply papers, or unless the court directs. A party requesting oral argument may, however, condition the request on the motion being contested. If the motion involves pretrial discovery or is directly addressed to the calendar, the request shall be considered only if accompanied by a statement of reasons and shall be deemed denied unless the court otherwise advises counsel prior to the return day. As to all other motions, the request shall be granted as of right.
(e) Oral Argument — Mode.The court in civil matters, on its own motion or on a party's request, may direct argument of any motion by telephone conference without court appearance. A verbatim record shall be made of all such telephone arguments and the rulings thereon.
(f) Order; Record Notation. If the court has made findings of fact and conclusions of law explaining its disposition of the motion, the order shall indicate whether the findings and conclusions were written or oral and the date on which they were rendered. However, if the motion was argued and the court intends to place its findings on the record at a later date, it shall give all parties one day's notice, which may be telephonic, of the time and place it shall do so. If no such findings have been made, the court shall append to the order a statement of reasons for its disposition if it concludes that explanation is either necessary or appropriate. If the order directs a plenary or other evidential hearing, it shall specifically describe the issues to be so tried. A written order or record notation shall be entered by the court memorializing the disposition made on a telephone motion.
RULE 1:6. MOTIONS AND BRIEFS IN THE TRIAL COURTS 1:6-1. Applicability of Rule
RULE 1:6. MOTIONS AND BRIEFS IN THE TRIAL COURTS
1:6-1. Applicability of Rule
Rule 1:6 shall apply to all trial courts, except the municipal courts and except as otherwise provided by R. 3:26-2(d) (motions for bail reductions), R. 5:5-4 (motions in civil family actions), and R. 6:3-3 (motions in the Special Civil Part)
1:6-1. Applicability of Rule
Rule 1:6 shall apply to all trial courts, except the municipal courts and except as otherwise provided by R. 3:26-2(d) (motions for bail reductions), R. 5:5-4 (motions in civil family actions), and R. 6:3-3 (motions in the Special Civil Part)
1:5-6. Filing
1:5-6. Filing
(a) Time for Filing. In any trial court, unless otherwise stated, all papers required to be served by R. 1:5-1 shall be filed with the court either before service or promptly thereafter, unless the rule requiring service or filing provides otherwise. Whenever in these rules provision is made for the publication, mailing or posting of notice, proof thereof shall be filed with the court within 20 days after the publication or mailing or posting.
(b) What Constitutes Filing With the Court. Except as otherwise provided by R. 1:6-4 (motion papers), R. 1:6-5 (briefs), R. 4:42-1(e) (orders and judgments), and R. 5:5-4 (motions in Family actions), a paper is filed with the trial court if the original is filed as follows:
(1) In civil actions in the Superior Court, Law Division, and in actions in the Superior Court, Chancery Division, General Equity, except mortgage and tax foreclosure actions, with the deputy clerk of the Superior Court in the county of venue;
(2) In criminal actions in the Superior Court, Law Division, with the Criminal Division Manager in the county of venue, as designee of the deputy clerk of the Superior Court;
(3) In mortgage and tax foreclosure actions, with the Clerk of the Superior Court, unless and until the action is deemed contested and the papers have been sent by the Clerk to the county of venue, in which event subsequent papers shall be filed with the deputy clerk of the Superior Court in the county of venue;
(4) In actions in the Chancery Division, Family Part, with the deputy clerk of the Superior Court in the county of venue if the action is for dissolution of marriage, with the Surrogate of the county of venue if the action is for adoption, and in all other actions, with the Family Division Manager in the county of venue, as designee of the deputy clerk of the Superior Court;
(5) In probate matters in the Surrogate's Court, with the Surrogate, and in actions in the Chancery Division, Probate Part, with the Surrogate of the county of venue as deputy clerk of the Superior Court;
(6) In actions of the Special Civil Part, as provided by Part VI of these rules;
(7) In actions in the Tax Court, as provided by Part VIII of these rules.
The foregoing notwithstanding, in any case the judge or, at the judge's chambers, a member of the staff may accept papers for filing if they show the filing date and the judge's name and office. The filed papers shall be forwarded forthwith to the appropriate office.
(c) Nonconforming Papers. The clerk shall file all papers presented for filing and may notify the person filing if such papers do not conform to these rules, except that
(1) the paper shall be returned stamped "Received but not Filed (date)" if it is presented for filing unaccompanied by any of the following:
(A) the required filing fee; or
(B) a completed Case Information Statement as required by R. 4:5-1 in the form set forth in Appendix XII to these rules; or
(C) in Family Part actions, the affidavit of insurance coverage required by R. 5:4-2(f), the Parents Education Program registration fee required by N.J.S.A. 2A:34-12.2, or the Confidential Litigant Information Sheet as required by R. 5:4-2(g) in the form prescribed in Appendix XXIV; or
(D) the signature of an attorney permitted to practice law in this State pursuant to R. 1:21-1 or the signature of a party appearing pro se, provided, however, that a pro se appearance is provided for by these rules; or
(E) a certification of title search as required by R. 4:64-1(a).
If a paper is returned under this rule, it shall be accompanied by a notice advising that if the paper is retransmitted together with the required signature, document or fee, as appropriate, within ten days after the date of the clerk's notice, filing will be deemed to have been made on the stamped receipt date.
(2) if an answer is presented by a defendant against whom default has been entered other than in a mortgage or tax foreclosure action, the clerk shall return the same stamped "Received but not Filed (date)" with notice that the defendant may move to vacate the default.
(3) a demand for trial de novo may be rejected and returned if not filed within the time prescribed in R. 4:21A-6 or if it is submitted for filing by a party in default or whose answer has been suppressed.
(4) a paper shall be returned stamped “Received but not Filed (date)” if it does not conform to the requirements of R. 1:4-9 with notice that if the document is retransmitted on conforming paper within 10 days after the date of the clerk’s notice, filing will be deemed to have been made on the stamped receipt date.
(d) Misfiled Papers. If papers are sent to the wrong filing office, they shall be stamped "Received but not Filed (date)" and transmitted by that office to the proper filing office and a notice shall be sent by the transmitting office to the filer of the paper advising of the transmittal. The stamped received date shall be deemed to be the date of filing.
(e) Attorneys Answerable for Clerk's Fees. The attorney of record in every action shall be answerable for the clerk's lawful fees and charges.
(a) Time for Filing. In any trial court, unless otherwise stated, all papers required to be served by R. 1:5-1 shall be filed with the court either before service or promptly thereafter, unless the rule requiring service or filing provides otherwise. Whenever in these rules provision is made for the publication, mailing or posting of notice, proof thereof shall be filed with the court within 20 days after the publication or mailing or posting.
(b) What Constitutes Filing With the Court. Except as otherwise provided by R. 1:6-4 (motion papers), R. 1:6-5 (briefs), R. 4:42-1(e) (orders and judgments), and R. 5:5-4 (motions in Family actions), a paper is filed with the trial court if the original is filed as follows:
(1) In civil actions in the Superior Court, Law Division, and in actions in the Superior Court, Chancery Division, General Equity, except mortgage and tax foreclosure actions, with the deputy clerk of the Superior Court in the county of venue;
(2) In criminal actions in the Superior Court, Law Division, with the Criminal Division Manager in the county of venue, as designee of the deputy clerk of the Superior Court;
(3) In mortgage and tax foreclosure actions, with the Clerk of the Superior Court, unless and until the action is deemed contested and the papers have been sent by the Clerk to the county of venue, in which event subsequent papers shall be filed with the deputy clerk of the Superior Court in the county of venue;
(4) In actions in the Chancery Division, Family Part, with the deputy clerk of the Superior Court in the county of venue if the action is for dissolution of marriage, with the Surrogate of the county of venue if the action is for adoption, and in all other actions, with the Family Division Manager in the county of venue, as designee of the deputy clerk of the Superior Court;
(5) In probate matters in the Surrogate's Court, with the Surrogate, and in actions in the Chancery Division, Probate Part, with the Surrogate of the county of venue as deputy clerk of the Superior Court;
(6) In actions of the Special Civil Part, as provided by Part VI of these rules;
(7) In actions in the Tax Court, as provided by Part VIII of these rules.
The foregoing notwithstanding, in any case the judge or, at the judge's chambers, a member of the staff may accept papers for filing if they show the filing date and the judge's name and office. The filed papers shall be forwarded forthwith to the appropriate office.
(c) Nonconforming Papers. The clerk shall file all papers presented for filing and may notify the person filing if such papers do not conform to these rules, except that
(1) the paper shall be returned stamped "Received but not Filed (date)" if it is presented for filing unaccompanied by any of the following:
(A) the required filing fee; or
(B) a completed Case Information Statement as required by R. 4:5-1 in the form set forth in Appendix XII to these rules; or
(C) in Family Part actions, the affidavit of insurance coverage required by R. 5:4-2(f), the Parents Education Program registration fee required by N.J.S.A. 2A:34-12.2, or the Confidential Litigant Information Sheet as required by R. 5:4-2(g) in the form prescribed in Appendix XXIV; or
(D) the signature of an attorney permitted to practice law in this State pursuant to R. 1:21-1 or the signature of a party appearing pro se, provided, however, that a pro se appearance is provided for by these rules; or
(E) a certification of title search as required by R. 4:64-1(a).
If a paper is returned under this rule, it shall be accompanied by a notice advising that if the paper is retransmitted together with the required signature, document or fee, as appropriate, within ten days after the date of the clerk's notice, filing will be deemed to have been made on the stamped receipt date.
(2) if an answer is presented by a defendant against whom default has been entered other than in a mortgage or tax foreclosure action, the clerk shall return the same stamped "Received but not Filed (date)" with notice that the defendant may move to vacate the default.
(3) a demand for trial de novo may be rejected and returned if not filed within the time prescribed in R. 4:21A-6 or if it is submitted for filing by a party in default or whose answer has been suppressed.
(4) a paper shall be returned stamped “Received but not Filed (date)” if it does not conform to the requirements of R. 1:4-9 with notice that if the document is retransmitted on conforming paper within 10 days after the date of the clerk’s notice, filing will be deemed to have been made on the stamped receipt date.
(d) Misfiled Papers. If papers are sent to the wrong filing office, they shall be stamped "Received but not Filed (date)" and transmitted by that office to the proper filing office and a notice shall be sent by the transmitting office to the filer of the paper advising of the transmittal. The stamped received date shall be deemed to be the date of filing.
(e) Attorneys Answerable for Clerk's Fees. The attorney of record in every action shall be answerable for the clerk's lawful fees and charges.
1:5-5. Service; Numerous Defendants
1:5-5. Service; Numerous Defendants
In any civil action in which there are unusually large numbers of defendants, the court,upon motion or on its own initiative, may order that service of the pleadings of the defendants and replies thereto need not be made as between the defendants and that any cross-claim, counterclaim, or matter constituting an avoidance or affirmative defense contained therein shall be deemed to be denied or avoided by all other parties and that the filing of any such pleadings and service thereof upon the plaintiff, or an adverse party in a cross-claim, constitutes due notice of it to the parties. In any such action the court may designate certain parties as representatives for receipt of service for all defendants similarly situated and may order that service of pleadings, motions and other papers filed in the action may be served upon such representatives with the same effect as if all such defendants had been served. A copy of every such order shall be served upon the parties in interest in such manner and form as the court directs.
In any civil action in which there are unusually large numbers of defendants, the court,upon motion or on its own initiative, may order that service of the pleadings of the defendants and replies thereto need not be made as between the defendants and that any cross-claim, counterclaim, or matter constituting an avoidance or affirmative defense contained therein shall be deemed to be denied or avoided by all other parties and that the filing of any such pleadings and service thereof upon the plaintiff, or an adverse party in a cross-claim, constitutes due notice of it to the parties. In any such action the court may designate certain parties as representatives for receipt of service for all defendants similarly situated and may order that service of pleadings, motions and other papers filed in the action may be served upon such representatives with the same effect as if all such defendants had been served. A copy of every such order shall be served upon the parties in interest in such manner and form as the court directs.
1:5-4. Service by Mail or Courier: When Complete
1:5-4. Service by Mail or Courier: When Complete
(a) Service by Ordinary Mail if Registered or Certified Mail Is Required and Is Refused. Where under any rule, provision is made for service by certified or registered mail, service may also be made by ordinary mail simultaneously or thereafter, unless simultaneous service is required under these rules.
(b) Service Complete on Mailing.. Except for motions that are governed by R. 1:6-3(c), service by mail of any paper referred to in R. 1:5-1, when authorized by rule or court order, shall be complete upon mailing of the ordinary mail. If no ordinary mailing is made, service shall be deemed complete upon the date of acceptance of the certified or registered mail. If service is simultaneously made by ordinary mail and certified or registered mail, service shall be deemed complete on mailing of the ordinary mail. If service is not made simultaneously and the addressee accepts the certified or registered mail, service shall be deemed complete on the date of the acceptance. If the addressee fails to claim or refuses to accept delivery of certified or registered mail, service shall be deemed complete on mailing of the ordinary mail.
(c) Service by Commercial Courier. . Service by a commercial courier of a paper referred to in R. 1:5-1, except for motions, which are governed by R. 1:6-3, shall be complete upon the courier's receipt of the paper from the sender, provided the courier's regular business is delivery service, and provided further that it guarantees delivery to the addressee by the end of the next business day following the courier's receipt from the sender.
(a) Service by Ordinary Mail if Registered or Certified Mail Is Required and Is Refused. Where under any rule, provision is made for service by certified or registered mail, service may also be made by ordinary mail simultaneously or thereafter, unless simultaneous service is required under these rules.
(b) Service Complete on Mailing.. Except for motions that are governed by R. 1:6-3(c), service by mail of any paper referred to in R. 1:5-1, when authorized by rule or court order, shall be complete upon mailing of the ordinary mail. If no ordinary mailing is made, service shall be deemed complete upon the date of acceptance of the certified or registered mail. If service is simultaneously made by ordinary mail and certified or registered mail, service shall be deemed complete on mailing of the ordinary mail. If service is not made simultaneously and the addressee accepts the certified or registered mail, service shall be deemed complete on the date of the acceptance. If the addressee fails to claim or refuses to accept delivery of certified or registered mail, service shall be deemed complete on mailing of the ordinary mail.
(c) Service by Commercial Courier. . Service by a commercial courier of a paper referred to in R. 1:5-1, except for motions, which are governed by R. 1:6-3, shall be complete upon the courier's receipt of the paper from the sender, provided the courier's regular business is delivery service, and provided further that it guarantees delivery to the addressee by the end of the next business day following the courier's receipt from the sender.
1:5-3. Proof of Servi
1:5-3. Proof of Service
Proof of service of every paper referred to in R. 1:5-1 may be made (1) by an acknowledgment of service, signed by the attorney for a party or signed and acknowledged by the party, or (2) by an affidavit of the person making service, or (3) by a certification of service appended to the paper to be filed and signed by the attorney for the party making service. If service has been made by mail the affidavit or certification shall state that the mailing was to the last known address of the person served. A proof of service made by affidavit or certification shall state the name and address of each attorney served, identifying the party that attorney represents, and the name and address of any pro se party. The proof shall be filed with the court promptly and in any event before action is to be taken on the matter by the court. Where service has been made by registered or certified mail, filing of the return receipt card with the court shall not be required. Failure to make proof of service does not affect the validity of the service, and the court at any time may allow the proof to be amended or supplied unless an injustice would result.
Proof of service of every paper referred to in R. 1:5-1 may be made (1) by an acknowledgment of service, signed by the attorney for a party or signed and acknowledged by the party, or (2) by an affidavit of the person making service, or (3) by a certification of service appended to the paper to be filed and signed by the attorney for the party making service. If service has been made by mail the affidavit or certification shall state that the mailing was to the last known address of the person served. A proof of service made by affidavit or certification shall state the name and address of each attorney served, identifying the party that attorney represents, and the name and address of any pro se party. The proof shall be filed with the court promptly and in any event before action is to be taken on the matter by the court. Where service has been made by registered or certified mail, filing of the return receipt card with the court shall not be required. Failure to make proof of service does not affect the validity of the service, and the court at any time may allow the proof to be amended or supplied unless an injustice would result.
1:5-2. Manner of Service
1:5-2. Manner of Service
Service upon an attorney of papers referred to in R. 1:5-1 shall be made by mailing a copy to the attorney at his or her office by ordinary mail, by handing it to the attorney, or by leaving it at the office with a person in the attorney's employ, or, if the office is closed or the attorney has no office, in the same manner as service is made upon a party. Service upon a party of such papers shall be made as provided in R. 4:4-4 or by registered or certified mail, return receipt requested, and simultaneously by ordinary mail to the party's last known address; or if no address is known, despite diligent effort, by ordinary mail to the clerk of the court. Mail may be addressed to a post office box in lieu of a street address only if the sender cannot by diligent effort determine the addressee's street address or if the post office does not make street-address delivery to the addressee. The specific facts underlying the diligent effort required by this rule shall be recited in the proof of service required by R. 1:5-3. If, however, proof of diligent inquiry as to a party's whereabouts has already been filed within six months prior to service under this rule, a new diligent inquiry need not be made provided the proof of service required by R. 1:5-3 asserts that the party making service has no knowledge of any facts different from those recited in the prior proof of diligent inquiry.
Service upon an attorney of papers referred to in R. 1:5-1 shall be made by mailing a copy to the attorney at his or her office by ordinary mail, by handing it to the attorney, or by leaving it at the office with a person in the attorney's employ, or, if the office is closed or the attorney has no office, in the same manner as service is made upon a party. Service upon a party of such papers shall be made as provided in R. 4:4-4 or by registered or certified mail, return receipt requested, and simultaneously by ordinary mail to the party's last known address; or if no address is known, despite diligent effort, by ordinary mail to the clerk of the court. Mail may be addressed to a post office box in lieu of a street address only if the sender cannot by diligent effort determine the addressee's street address or if the post office does not make street-address delivery to the addressee. The specific facts underlying the diligent effort required by this rule shall be recited in the proof of service required by R. 1:5-3. If, however, proof of diligent inquiry as to a party's whereabouts has already been filed within six months prior to service under this rule, a new diligent inquiry need not be made provided the proof of service required by R. 1:5-3 asserts that the party making service has no knowledge of any facts different from those recited in the prior proof of diligent inquiry.
RULE 1:5. SERVICE AND FILING OF PAPERS 1:5-1. Service: When Required
RULE 1:5. SERVICE AND FILING OF PAPERS
1:5-1. Service: When Required
(a) Civil Actions. In all civil actions, unless otherwise provided by rule or court order, orders, judgments, pleadings subsequent to the original complaint, written motions (not made ex parte), briefs, appendices, petitions and other papers except a judgment signed by the clerk shall be served upon all attorneys of record in the action and upon parties appearing pro se; but no service need be made on parties who have failed to appear except that pleadings asserting new or additional claims for relief against such parties in default shall be served upon them in the manner provided for service of original process. The party obtaining an order or judgment shall serve it as herein prescribed within 7 days after the date it was signed unless the court otherwise orders therein.
(b) Criminal Actions. In criminal actions, unless otherwise provided by rule or court order, written motions (not made ex parte), briefs, appendices, petitions, memoranda and other papers shall be served upon all attorneys of record in the action, upon parties appearing pro se and upon such other agencies of government as may be affected by the relief sought.
1:5-1. Service: When Required
(a) Civil Actions. In all civil actions, unless otherwise provided by rule or court order, orders, judgments, pleadings subsequent to the original complaint, written motions (not made ex parte), briefs, appendices, petitions and other papers except a judgment signed by the clerk shall be served upon all attorneys of record in the action and upon parties appearing pro se; but no service need be made on parties who have failed to appear except that pleadings asserting new or additional claims for relief against such parties in default shall be served upon them in the manner provided for service of original process. The party obtaining an order or judgment shall serve it as herein prescribed within 7 days after the date it was signed unless the court otherwise orders therein.
(b) Criminal Actions. In criminal actions, unless otherwise provided by rule or court order, written motions (not made ex parte), briefs, appendices, petitions, memoranda and other papers shall be served upon all attorneys of record in the action, upon parties appearing pro se and upon such other agencies of government as may be affected by the relief sought.
1:4-9. Size, Weight and Format of Filed Papers
1:4-9. Size, Weight and Format of Filed Papers
Except as otherwise provided by R. 2:6-10, pleadings and other papers filed with the court, including letter briefs and memoranda but excluding preprinted legal forms and documentary exhibits, shall be prepared on letter size (approximately 8.5 x 11 inches) paper of standard weight and quality for copy paper and shall be double spaced with no smaller than 10-pitch or 12-point type. Both sides of the paper may be used and recycled paper should be used, provided legibility is maintained.
Except as otherwise provided by R. 2:6-10, pleadings and other papers filed with the court, including letter briefs and memoranda but excluding preprinted legal forms and documentary exhibits, shall be prepared on letter size (approximately 8.5 x 11 inches) paper of standard weight and quality for copy paper and shall be double spaced with no smaller than 10-pitch or 12-point type. Both sides of the paper may be used and recycled paper should be used, provided legibility is maintained.
1:4-8. Frivolous Litigation
1:4-8. Frivolous Litigation
(a) Effect of Signing, Filing or Advocating a Paper. The signature of an attorney or pro se party constitutes a certificate that the signatory has read the pleading, written motion or other paper. By signing, filing or advocating a pleading, written motion, or other paper, an attorney or pro se party certifies that to the best of his or her knowledge, information, and belief, formed after an inquiry reasonable under the circumstances:
(1) the paper is not being presented for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation;
(2) the claims, defenses, and other legal contentions therein are warranted by existing law or by a non-frivolous argument for the extension, modification, or reversal of existing law or the establishment of new law;
(3) the factual allegations have evidentiary support or, as to specifically identified allegations, they are either likely to have evidentiary support or they will be withdrawn or corrected if reasonable opportunity for further investigation or discovery indicates insufficient evidentiary support; and
(4) the denials of factual allegations are warranted on the evidence or, as to specifically identified denials, they are reasonably based on a lack of information or belief or they will be withdrawn or corrected if a reasonable opportunity for further investigation or discovery indicates insufficient evidentiary support.
If the pleading, written motion or other paper is not signed or is signed with intent to defeat the purpose of this rule, it may be stricken and the action may proceed as though the document had not been served. Any adverse party may also seek sanctions in accordance with the provisions of paragraph (b) of this rule.
(b) Motions for Sanctions.
(1) Contents of Motion, Certification. An application for sanctions under this rule shall be by motion made separately from other applications and shall describe the specific conduct alleged to have violated this rule. No such motion shall be filed unless it includes a certification that the applicant served written notice and demand pursuant to R. 1:5-2 to the attorney or pro se party who signed or filed the paper objected to. The certification shall have annexed a copy of that notice and demand, which shall (i) state that the paper is believed to violate the provisions of this rule, (ii) set forth the basis for that belief with specificity, (iii) include a demand that the paper be withdrawn, and (iv) give notice, except as otherwise provided herein, that an application for sanctions will be made within a reasonable time thereafter if the offending paper is not withdrawn within 28 days of service of the written demand. If, however, the subject of the application for sanctions is a motion whose return date precedes the expiration of the 28-day period, the demand shall give the movant the option of either consenting to an adjournment of the return date or waiving the balance of the 28-day period then remaining. A movant who doesnot request an adjournment of the return date as provided herein shall be deemed to have elected the waiver. The certification shall also certify that the paper objected to has not been withdrawn or corrected within the appropriate time period provided herein following service of the written notice and demand.
No motion shall be filed if the paper objected to has been withdrawn or corrected within 28 days of service of the notice and demand or within such other time period as provided herein.
(2) Time for Filing; Attorney's Fees. A motion for sanctions shall be filed with the court no later than 20 days following the entry of final judgment. If warranted, the court may award to the party prevailing on the motion the reasonable expenses and attorneys' fees incurred in presenting or opposing the motion. For purposes of this rule, the term "final judgment" shall include any order deciding a post-judgment motion whether or not that order is directly appealable.
(3) Scope of Responsibility. Except in extraordinary circumstances, a law firm shall be jointly responsible for violations committed by its partners, shareholders, associates and employees.
(c) Sanction on Court's Initiative. On its own initiative, the court may enter an order describing the specific conduct that appears to violate this rule and directing the attorney or pro se party to show cause why he or she has not violated the rule. The order to show cause shall issue before a voluntary dismissal or settlement of the claims made by or against the pro se party or the attorney who is the subject of the order to show cause.
(d) Order for Sanctions. A sanction imposed for violation of paragraph (a) of this rule shall be limited to a sum sufficient to deter repetition of such conduct. The sanction may consist of (1) an order to pay a penalty into court, or (2) an order directing payment to the movant of some or all of the reasonable attorneys' fees and other expenses incurred as a direct result of the violation, or both. Among the factors to be considered by the court in imposing a sanction under (2) is the timeliness of the movant's filing of the motion therefor. In the order imposing sanctions, the court shall describe the conduct determined to be a violation of this rule and explain the basis for the sanction imposed.
(e) Exceptions. This rule does not apply to disclosures and discovery requests, responses, objections, and discovery motions that are subject to the provisions of R. 4:23.
(f) Applicability to Parties. To the extent practicable, the procedures prescribed by this rule shall apply to the assertion of costs and fees against a party other than a pro se party pursuant to N.J.S.A. 2A:15-59.1.
(a) Effect of Signing, Filing or Advocating a Paper. The signature of an attorney or pro se party constitutes a certificate that the signatory has read the pleading, written motion or other paper. By signing, filing or advocating a pleading, written motion, or other paper, an attorney or pro se party certifies that to the best of his or her knowledge, information, and belief, formed after an inquiry reasonable under the circumstances:
(1) the paper is not being presented for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation;
(2) the claims, defenses, and other legal contentions therein are warranted by existing law or by a non-frivolous argument for the extension, modification, or reversal of existing law or the establishment of new law;
(3) the factual allegations have evidentiary support or, as to specifically identified allegations, they are either likely to have evidentiary support or they will be withdrawn or corrected if reasonable opportunity for further investigation or discovery indicates insufficient evidentiary support; and
(4) the denials of factual allegations are warranted on the evidence or, as to specifically identified denials, they are reasonably based on a lack of information or belief or they will be withdrawn or corrected if a reasonable opportunity for further investigation or discovery indicates insufficient evidentiary support.
If the pleading, written motion or other paper is not signed or is signed with intent to defeat the purpose of this rule, it may be stricken and the action may proceed as though the document had not been served. Any adverse party may also seek sanctions in accordance with the provisions of paragraph (b) of this rule.
(b) Motions for Sanctions.
(1) Contents of Motion, Certification. An application for sanctions under this rule shall be by motion made separately from other applications and shall describe the specific conduct alleged to have violated this rule. No such motion shall be filed unless it includes a certification that the applicant served written notice and demand pursuant to R. 1:5-2 to the attorney or pro se party who signed or filed the paper objected to. The certification shall have annexed a copy of that notice and demand, which shall (i) state that the paper is believed to violate the provisions of this rule, (ii) set forth the basis for that belief with specificity, (iii) include a demand that the paper be withdrawn, and (iv) give notice, except as otherwise provided herein, that an application for sanctions will be made within a reasonable time thereafter if the offending paper is not withdrawn within 28 days of service of the written demand. If, however, the subject of the application for sanctions is a motion whose return date precedes the expiration of the 28-day period, the demand shall give the movant the option of either consenting to an adjournment of the return date or waiving the balance of the 28-day period then remaining. A movant who doesnot request an adjournment of the return date as provided herein shall be deemed to have elected the waiver. The certification shall also certify that the paper objected to has not been withdrawn or corrected within the appropriate time period provided herein following service of the written notice and demand.
No motion shall be filed if the paper objected to has been withdrawn or corrected within 28 days of service of the notice and demand or within such other time period as provided herein.
(2) Time for Filing; Attorney's Fees. A motion for sanctions shall be filed with the court no later than 20 days following the entry of final judgment. If warranted, the court may award to the party prevailing on the motion the reasonable expenses and attorneys' fees incurred in presenting or opposing the motion. For purposes of this rule, the term "final judgment" shall include any order deciding a post-judgment motion whether or not that order is directly appealable.
(3) Scope of Responsibility. Except in extraordinary circumstances, a law firm shall be jointly responsible for violations committed by its partners, shareholders, associates and employees.
(c) Sanction on Court's Initiative. On its own initiative, the court may enter an order describing the specific conduct that appears to violate this rule and directing the attorney or pro se party to show cause why he or she has not violated the rule. The order to show cause shall issue before a voluntary dismissal or settlement of the claims made by or against the pro se party or the attorney who is the subject of the order to show cause.
(d) Order for Sanctions. A sanction imposed for violation of paragraph (a) of this rule shall be limited to a sum sufficient to deter repetition of such conduct. The sanction may consist of (1) an order to pay a penalty into court, or (2) an order directing payment to the movant of some or all of the reasonable attorneys' fees and other expenses incurred as a direct result of the violation, or both. Among the factors to be considered by the court in imposing a sanction under (2) is the timeliness of the movant's filing of the motion therefor. In the order imposing sanctions, the court shall describe the conduct determined to be a violation of this rule and explain the basis for the sanction imposed.
(e) Exceptions. This rule does not apply to disclosures and discovery requests, responses, objections, and discovery motions that are subject to the provisions of R. 4:23.
(f) Applicability to Parties. To the extent practicable, the procedures prescribed by this rule shall apply to the assertion of costs and fees against a party other than a pro se party pursuant to N.J.S.A. 2A:15-59.1.
1:4-7. Verification of Pleadings
1:4-7. Verification of Pleadings
Pleadings need not be verified unless ex parte relief is sought thereon or a rule or statute otherwise provides. The verification shall not repeat the allegations of the pleadings but may incorporate them by reference if made on personal knowledge and so stated, and the allegations are of facts admissible in evidence to which the affiant is competent to testify.
Pleadings need not be verified unless ex parte relief is sought thereon or a rule or statute otherwise provides. The verification shall not repeat the allegations of the pleadings but may incorporate them by reference if made on personal knowledge and so stated, and the allegations are of facts admissible in evidence to which the affiant is competent to testify.
1:4-6. Typewritten Names
1:4-6. Typewritten Names
Names shall be typed or stamped beneath all signatures on papers to be filed or served.
Names shall be typed or stamped beneath all signatures on papers to be filed or served.
1:4-5. Signing and Dating of Pleadings; Motions
1:4-5. Signing and Dating of Pleadings; Motions
Pleadings (other than indictments), motions and briefs shall be signed by the attorney of record or the attorney's associate or by a pro se party. Signatures of a firm may be typed, followed by the signature of an attorney of the firm. Signatures on any duplicate original or carbon copy required to be filed may be typed. Every paper to be filed shall bear the date on which it was signed.
Pleadings (other than indictments), motions and briefs shall be signed by the attorney of record or the attorney's associate or by a pro se party. Signatures of a firm may be typed, followed by the signature of an attorney of the firm. Signatures on any duplicate original or carbon copy required to be filed may be typed. Every paper to be filed shall bear the date on which it was signed.
Thursday, September 3, 2009
1:4-4. Affidavits
1:4-4. Affidavits
(a) Form. Every affidavit shall run in the first person and be divided into numbered paragraphs as in pleadings. The caption shall include a designation of the particular proceeding the affidavit supports or opposes and the original date, if any, fixed for hearing. Ex parte affidavits may be taken outside the State by a person authorized to take depositions under R. 4:12-2 and R. 4:12-3.
(b) Certification in Lieu of Oath. In lieu of the affidavit, oath or verification required by these rules, the affiant may submit the following certification which shall be dated and immediately precede the affiant's signature: "I certify that the foregoing statements made by me are true. I am aware that if any of the foregoing statements made by me are wilfully false, I am subject to punishment."
(c) Facsimile Signature. If the affiant is not available to sign an affidavit or certification, it may be filed with a facsimile of the original signature provided the attorney offering the document certifies that the affiant acknowledged the genuineness of the signature and that the document or a copy with an original signature affixed will be filed if requested by the court or a party.
(a) Form. Every affidavit shall run in the first person and be divided into numbered paragraphs as in pleadings. The caption shall include a designation of the particular proceeding the affidavit supports or opposes and the original date, if any, fixed for hearing. Ex parte affidavits may be taken outside the State by a person authorized to take depositions under R. 4:12-2 and R. 4:12-3.
(b) Certification in Lieu of Oath. In lieu of the affidavit, oath or verification required by these rules, the affiant may submit the following certification which shall be dated and immediately precede the affiant's signature: "I certify that the foregoing statements made by me are true. I am aware that if any of the foregoing statements made by me are wilfully false, I am subject to punishment."
(c) Facsimile Signature. If the affiant is not available to sign an affidavit or certification, it may be filed with a facsimile of the original signature provided the attorney offering the document certifies that the affiant acknowledged the genuineness of the signature and that the document or a copy with an original signature affixed will be filed if requested by the court or a party.
1:4-3. Adoption by Reference; Exhibits
1:4-3. Adoption by Reference; Exhibits
Statements in a pleading and exhibits to a pleading may be adopted by reference in a different part of the same pleading or in another pleading or in any motion. A copy of a document which is an exhibit to a pleading is a part thereof. Copies of bonds, mortgages, tax sale certificates, and assignments thereof shall not be annexed to complaints in actions for the foreclosure of a mortgage or a tax sale certificate
Statements in a pleading and exhibits to a pleading may be adopted by reference in a different part of the same pleading or in another pleading or in any motion. A copy of a document which is an exhibit to a pleading is a part thereof. Copies of bonds, mortgages, tax sale certificates, and assignments thereof shall not be annexed to complaints in actions for the foreclosure of a mortgage or a tax sale certificate
1:4-2. Paragraphs
1:4-2. Paragraphs
Allegations of claim or defense in a civil action shall be made in numbered paragraphs, each limited as far as practicable to a single set of circumstances. A paragraph may be referred to by number in the same or succeeding pleadings. Each claim founded upon a separate transaction or occurrence and each defense other than denials shall be stated in a separate count or defense whenever a separation facilitates the clear presentation of the matter.
Allegations of claim or defense in a civil action shall be made in numbered paragraphs, each limited as far as practicable to a single set of circumstances. A paragraph may be referred to by number in the same or succeeding pleadings. Each claim founded upon a separate transaction or occurrence and each defense other than denials shall be stated in a separate count or defense whenever a separation facilitates the clear presentation of the matter.
RULE 1:4. FORM AND EXECUTION OF PAPERS 1:4-1. Caption: Name and Addresses of Party and Attorney; Format
RULE 1:4. FORM AND EXECUTION OF PAPERS
1:4-1. Caption: Name and Addresses of Party and Attorney; Format
(a) Caption. Every paper to be filed shall contain a caption setting forth the name, division and part thereof, if any, of the court, the county in which the venue in a Superior Court action is laid, the title of the action, the docket number except in the case of a complaint, the designation "Civil Action" or "Criminal Action", as appropriate, and a designation such as "complaint", "order", or the like. In a complaint in a civil action, the title of the action shall include the names of all the parties, but in other papers it need state only the name of the first party on each side with an appropriate indication that there are other parties. Except as otherwise provided by R. 5:4-2(a), the first pleading of any party shall state the party's residence address, or, if not a natural person, the address of its principal place of business.
(b) Format; Addresses. At the top of the first page of each paper filed, a blank space of approximately 3 inches shall be reserved for notations of receipt and filing by the clerk. Above the caption at the left-hand margin of the first sheet of every paper to be filed there shall be printed or typed the name of the attorney filing the paper, office address and telephone number or, if a party is appearing pro se, the name of such party, residence address and telephone number. No paper shall bear an attorney's post office box number in lieu of a street address. An attorney or pro se party shall advise the court and all other parties of a change of address or telephone number if such occurs during the pendency of an action.
1:4-1. Caption: Name and Addresses of Party and Attorney; Format
(a) Caption. Every paper to be filed shall contain a caption setting forth the name, division and part thereof, if any, of the court, the county in which the venue in a Superior Court action is laid, the title of the action, the docket number except in the case of a complaint, the designation "Civil Action" or "Criminal Action", as appropriate, and a designation such as "complaint", "order", or the like. In a complaint in a civil action, the title of the action shall include the names of all the parties, but in other papers it need state only the name of the first party on each side with an appropriate indication that there are other parties. Except as otherwise provided by R. 5:4-2(a), the first pleading of any party shall state the party's residence address, or, if not a natural person, the address of its principal place of business.
(b) Format; Addresses. At the top of the first page of each paper filed, a blank space of approximately 3 inches shall be reserved for notations of receipt and filing by the clerk. Above the caption at the left-hand margin of the first sheet of every paper to be filed there shall be printed or typed the name of the attorney filing the paper, office address and telephone number or, if a party is appearing pro se, the name of such party, residence address and telephone number. No paper shall bear an attorney's post office box number in lieu of a street address. An attorney or pro se party shall advise the court and all other parties of a change of address or telephone number if such occurs during the pendency of an action.
1:3-4. Enlargement of Time.
1:3-4. Enlargement of Time
(a) Enlargement by Order or Consent. Unless otherwise expressly provided by rule, a period of time thereby fixed for the doing of an act may be enlarged before or after its expiration by court order on notice or (unless a court has otherwise ordered) by consent of the parties in writing.
(b) Enlargement for Appeal and Review. Enlargement of time for appeal and review shall be governed by the following rules: appeals to the Supreme Court and Superior Court, Appellate Division, by R. 2:4-4; actions in lieu of prerogative writs in the Superior Court, Law Division, by R. 4:69-6(c); appeals to the Superior Court, Law Division from reports of condemnation commissioners, by R. 4:73-6(a); civil appeals to the Superior Court, Law Division, by R. 4:74-2(b); and review of ex parte probate actions, by R. 4:85-2.
(c) Enlargements Prohibited. Neither the parties nor the court may, however, enlarge the time specified by R. 1:7-4 (motion for amendment of findings); R. 3:18-2 (motion for judgment of acquittal after discharge of jury); R. 3:20-2, R. 4:49-1(b) and (c) and R. 7:10-1 (motion for new trial); R. 3:21-9 (motion in arrest of judgment); R. 3:21-10(a); R. 3:23-2 (appeals to the Law Division from judgments of conviction in courts of limited criminal jurisdiction); R. 3:24 (appeals to the Law Division from interlocutory orders and orders dismissing the complaint entered by courts of limited criminal jurisdiction); R. 4:40-2(b) (renewal of motion for judgment); R. 4:49-2 (motion to alter or amend a judgment); and R. 4:50-2 (motion for relief from judgment or order).
(a) Enlargement by Order or Consent. Unless otherwise expressly provided by rule, a period of time thereby fixed for the doing of an act may be enlarged before or after its expiration by court order on notice or (unless a court has otherwise ordered) by consent of the parties in writing.
(b) Enlargement for Appeal and Review. Enlargement of time for appeal and review shall be governed by the following rules: appeals to the Supreme Court and Superior Court, Appellate Division, by R. 2:4-4; actions in lieu of prerogative writs in the Superior Court, Law Division, by R. 4:69-6(c); appeals to the Superior Court, Law Division from reports of condemnation commissioners, by R. 4:73-6(a); civil appeals to the Superior Court, Law Division, by R. 4:74-2(b); and review of ex parte probate actions, by R. 4:85-2.
(c) Enlargements Prohibited. Neither the parties nor the court may, however, enlarge the time specified by R. 1:7-4 (motion for amendment of findings); R. 3:18-2 (motion for judgment of acquittal after discharge of jury); R. 3:20-2, R. 4:49-1(b) and (c) and R. 7:10-1 (motion for new trial); R. 3:21-9 (motion in arrest of judgment); R. 3:21-10(a); R. 3:23-2 (appeals to the Law Division from judgments of conviction in courts of limited criminal jurisdiction); R. 3:24 (appeals to the Law Division from interlocutory orders and orders dismissing the complaint entered by courts of limited criminal jurisdiction); R. 4:40-2(b) (renewal of motion for judgment); R. 4:49-2 (motion to alter or amend a judgment); and R. 4:50-2 (motion for relief from judgment or order).
1:3-3. Additional Time After Service by Ordinary Mail
1:3-3. Additional Time After Service by Ordinary Mail
When service of a notice or paper is made by ordinary mail, and a rule or court order allows the party served a period of time after the service thereof within which to take some action, 3 days shall be added to the period.
When service of a notice or paper is made by ordinary mail, and a rule or court order allows the party served a period of time after the service thereof within which to take some action, 3 days shall be added to the period.
1:3-2. Time Unaffected by Expiration of Term
1:3-2. Time Unaffected by Expiration of Term
The period of time provided for the doing of any act is not affected or limited by the continued existence or expiration of a term of court.
The period of time provided for the doing of any act is not affected or limited by the continued existence or expiration of a term of court.
RULE 1:3. TIME 1:3-1. Computation of Time
RULE 1:3. TIME
1:3-1. Computation of Time
In computing any period of time fixed by rule or court order, the day of the act or event from which the designated period begins to run is not to be included. The last day of the period so computed is to be included, unless it is a Saturday, Sunday or legal holiday, in which event the period runs until the end of the next day which is neither a Saturday, Sunday nor legal holiday. In computing a period of time of less than 7 days, Saturday, Sunday and legal holidays shall be excluded
1:3-1. Computation of Time
In computing any period of time fixed by rule or court order, the day of the act or event from which the designated period begins to run is not to be included. The last day of the period so computed is to be included, unless it is a Saturday, Sunday or legal holiday, in which event the period runs until the end of the next day which is neither a Saturday, Sunday nor legal holiday. In computing a period of time of less than 7 days, Saturday, Sunday and legal holidays shall be excluded
1:2-6. Case Management Conference; Orders
1:2-6. Case Management Conference; Orders
All dispositions made and directives issued by the court at a case management conference shall be memorialized by order.
All dispositions made and directives issued by the court at a case management conference shall be memorialized by order.
1:2-5. Advancement of Cases for Trial or Argument [Deleted June 28, 1996 to be effective September 1, 1996] Official Comment to Deleted R. 1:2-5
1:2-5. Advancement of Cases for Trial or Argument [Deleted June 28, 1996 to be effective September 1, 1996]
Official Comment to Deleted R. 1:2-5
The deleted rule attempted to accord preference in the scheduling of cases for trial, hearing or argument across trial court and Appellate Division lines. The rule was deleted as the Supreme Court takes the position that the issue of calendar preference is best addressed administratively rather than in the context of court rules. Nonetheless, as a matter of policy, the preferences enumerated in the rule should be looked to as guidelines in determining priority of cases scheduled for trial, hearing or argument in the trial courts and the Appellate Division. These preferences include: (1) all contested matters where a principal issue is the custody, status, welfare and protection of minors; criminal and quasi-criminal cases, election actions, actions(except negligence actions) to which the State, a county, municipality or other public or quasi-public agency is a party; (2) if the action is in a trial court, all cases to be tried without a jury; (3) appeals on leave granted pending in the appellate courts; (4) workers' compensation appeals; and (5) such other cases as any court may from time to time order.
Official Comment to Deleted R. 1:2-5
The deleted rule attempted to accord preference in the scheduling of cases for trial, hearing or argument across trial court and Appellate Division lines. The rule was deleted as the Supreme Court takes the position that the issue of calendar preference is best addressed administratively rather than in the context of court rules. Nonetheless, as a matter of policy, the preferences enumerated in the rule should be looked to as guidelines in determining priority of cases scheduled for trial, hearing or argument in the trial courts and the Appellate Division. These preferences include: (1) all contested matters where a principal issue is the custody, status, welfare and protection of minors; criminal and quasi-criminal cases, election actions, actions(except negligence actions) to which the State, a county, municipality or other public or quasi-public agency is a party; (2) if the action is in a trial court, all cases to be tried without a jury; (3) appeals on leave granted pending in the appellate courts; (4) workers' compensation appeals; and (5) such other cases as any court may from time to time order.
1:2-4. Sanctions: Failure to Appear; Motions and Briefs
1:2-4. Sanctions: Failure to Appear; Motions and Briefs
(a) Failure to Appear. If without just excuse or because of failure to give reasonable attention to the matter, no appearance is made on behalf of a party on the call of a calendar, on the return of a motion, at a pretrial conference, settlement conference, or any other proceeding scheduled by the court, or on the day of trial, or if an application is made for an adjournment, the court may order any one or more of the following: (a) the payment by the delinquent attorney or party or by the party applying for the adjournment of costs, in such amount as the court shall fix, to the Clerk of the Court made payable to “Treasurer, State of New Jersey,” or to the adverse party; (b) the payment by the delinquent attorney or party or the party applying for the adjournment of the reasonable expenses, including attorney's fees, to the aggrieved party; (c) the dismissal of the complaint, cross-claim, counterclaim or motion, or the striking of the answer and the entry of judgment by default, or the granting of the motion; or (d) such other action as it deems appropriate.
(b) Motions; Briefs. For failure to comply with the requirements of R. 1:6-3, 1:6-4 and 1:6-5 for filing motion papers and briefs and for failure to submit a required brief, the court may dismiss or grant the motion or application, continue the hearing to the next motion day or take such other action as it deems appropriate. If the hearing is continued, the court may impose sanctions as provided by paragraph (a) of this rul
(a) Failure to Appear. If without just excuse or because of failure to give reasonable attention to the matter, no appearance is made on behalf of a party on the call of a calendar, on the return of a motion, at a pretrial conference, settlement conference, or any other proceeding scheduled by the court, or on the day of trial, or if an application is made for an adjournment, the court may order any one or more of the following: (a) the payment by the delinquent attorney or party or by the party applying for the adjournment of costs, in such amount as the court shall fix, to the Clerk of the Court made payable to “Treasurer, State of New Jersey,” or to the adverse party; (b) the payment by the delinquent attorney or party or the party applying for the adjournment of the reasonable expenses, including attorney's fees, to the aggrieved party; (c) the dismissal of the complaint, cross-claim, counterclaim or motion, or the striking of the answer and the entry of judgment by default, or the granting of the motion; or (d) such other action as it deems appropriate.
(b) Motions; Briefs. For failure to comply with the requirements of R. 1:6-3, 1:6-4 and 1:6-5 for filing motion papers and briefs and for failure to submit a required brief, the court may dismiss or grant the motion or application, continue the hearing to the next motion day or take such other action as it deems appropriate. If the hearing is continued, the court may impose sanctions as provided by paragraph (a) of this rul
1:2-3. Exhibits
1:2-3. Exhibits
The verbatim record of the proceedings shall include references to all exhibits and, as to each, the offering party, a short description of the exhibit stated by the offering party or the court, and the marking directed by the court. Following the conclusion of trial, evidence shall be returned to the proponent and so acknowledged on the record unless the court otherwise orders. The record shall note any exhibits retained by the court. All evidence shall be preserved pending direct appeal and proceedings on certification, and shall be made available for inclusion by any party in the record on appeal.
The verbatim record of the proceedings shall include references to all exhibits and, as to each, the offering party, a short description of the exhibit stated by the offering party or the court, and the marking directed by the court. Following the conclusion of trial, evidence shall be returned to the proponent and so acknowledged on the record unless the court otherwise orders. The record shall note any exhibits retained by the court. All evidence shall be preserved pending direct appeal and proceedings on certification, and shall be made available for inclusion by any party in the record on appeal.
1:2-2. Trial Courts; Verbatim Record of Proceedings
1:2-2. Trial Courts; Verbatim Record of Proceedings
In the trial divisions of the Superior Court and in the Tax Court, all proceedings in court shall be recorded verbatim except, unless the court otherwise orders, settlement conferences, case management conferences, calendar calls, and ex parte motions. Unless a transcript thereof is marked into evidence, a verbatim record shall also be made of the content of an audio or video tape played during the proceedings and the tape itself shall be marked into evidence as a court's exhibit and retained by the court. Ex parte proceedings pursuant to R. 4:52 and R. 4:67 shall, however, be recorded verbatim subject to the availability of either a court reporter or a recording device. In the municipal courts, the taking of a verbatim record of the proceedings shall be governed by R. 7:8-8. Charge conferences, whether conducted in open court or in chambers, shall be recorded verbatim as required by R. 1:8-7(a).
In the trial divisions of the Superior Court and in the Tax Court, all proceedings in court shall be recorded verbatim except, unless the court otherwise orders, settlement conferences, case management conferences, calendar calls, and ex parte motions. Unless a transcript thereof is marked into evidence, a verbatim record shall also be made of the content of an audio or video tape played during the proceedings and the tape itself shall be marked into evidence as a court's exhibit and retained by the court. Ex parte proceedings pursuant to R. 4:52 and R. 4:67 shall, however, be recorded verbatim subject to the availability of either a court reporter or a recording device. In the municipal courts, the taking of a verbatim record of the proceedings shall be governed by R. 7:8-8. Charge conferences, whether conducted in open court or in chambers, shall be recorded verbatim as required by R. 1:8-7(a).
RULE 1:2. CONDUCT OF PROCEEDINGS GENERALLY 1:2-1. Proceedings in Open Court; Robes; Robes
RULE 1:2. CONDUCT OF PROCEEDINGS GENERALLY
1:2-1. Proceedings in Open Court; Robes; Robes
All trials, hearings of motions and other applications, pretrial conferences, arraignments, sentencing conferences (except with members of the probation department) and appeals shall be conducted in open court unless otherwise provided by rule or statute. If a proceeding is required to be conducted in open court, no record of any portion thereof shall be sealed by order of the court except for good cause shown, as defined by R. 1:38-11(b), which shall be set forth on the record. Settlement conferences may be heard at the bench or in chambers. Every judge shall wear judicial robes during proceedings in open court.
1:2-1. Proceedings in Open Court; Robes; Robes
All trials, hearings of motions and other applications, pretrial conferences, arraignments, sentencing conferences (except with members of the probation department) and appeals shall be conducted in open court unless otherwise provided by rule or statute. If a proceeding is required to be conducted in open court, no record of any portion thereof shall be sealed by order of the court except for good cause shown, as defined by R. 1:38-11(b), which shall be set forth on the record. Settlement conferences may be heard at the bench or in chambers. Every judge shall wear judicial robes during proceedings in open court.
1:1-3. Citation of Rules
1:1-3. Citation of Rules
These rules shall be referred to as "N.J. Court Rules, 1969" and may be cited as, e.g., "R. 1:1-3."
These rules shall be referred to as "N.J. Court Rules, 1969" and may be cited as, e.g., "R. 1:1-3."
1:1-2. Construction and Relaxation;References to Marriage, Spouse and Related Terms
1:1-2. Construction and Relaxation;References to Marriage, Spouse and Related Terms
(a) The rules in Part I through Part VIII, inclusive, shall be construed to secure a just determination, simplicity in procedure, fairness in administration and the elimination of unjustifiable expense and delay. Unless otherwise stated, any rule may be relaxed or dispensed with by the court in which the action is pending if adherence to it would result in an injustice. In the absence of rule, the court may proceed in any manner compatible with these purposes and, in civil cases, consistent with the case management/trial management guidelines set forth in Appendix XX of these rules.
(b) As used in Part I through Part VIII of these rules and appendices, references to "marriage," "husband," "wife," "spouse," "family," "immediate family," "dependent," "next of kin," "widow," "widower," "widowed," or another word that in a specific context denotes a marital or spousal relationship shall include a civil union, as established by N.J.S.A. 37:1-28 to -36, and a registered domestic partnership, as established by N.J.S.A. 26:8A-1 to -13, and the persons in those relationships.
(a) The rules in Part I through Part VIII, inclusive, shall be construed to secure a just determination, simplicity in procedure, fairness in administration and the elimination of unjustifiable expense and delay. Unless otherwise stated, any rule may be relaxed or dispensed with by the court in which the action is pending if adherence to it would result in an injustice. In the absence of rule, the court may proceed in any manner compatible with these purposes and, in civil cases, consistent with the case management/trial management guidelines set forth in Appendix XX of these rules.
(b) As used in Part I through Part VIII of these rules and appendices, references to "marriage," "husband," "wife," "spouse," "family," "immediate family," "dependent," "next of kin," "widow," "widower," "widowed," or another word that in a specific context denotes a marital or spousal relationship shall include a civil union, as established by N.J.S.A. 37:1-28 to -36, and a registered domestic partnership, as established by N.J.S.A. 26:8A-1 to -13, and the persons in those relationships.
RULE 1:1. APPLICABILITY, SCOPE, CONSTRUCTION, RELAXATION AND CITATION OF RULES 1:1-1. Applicability; Scope
RULE 1:1. APPLICABILITY, SCOPE, CONSTRUCTION, RELAXATION AND CITATION OF RULES
1:1-1. Applicability; Scope
Unless otherwise stated, the rules in Part I are applicable to the Supreme Court, the Superior Court, the Tax Court, the surrogate's courts, and the municipal courts.
1:1-1. Applicability; Scope
Unless otherwise stated, the rules in Part I are applicable to the Supreme Court, the Superior Court, the Tax Court, the surrogate's courts, and the municipal courts.
4:101-5. Assignments of, Postponement of Lien of, or Warrant to Satisfy Judgments; Entry of Satisfaction
4:101-5. Assignments of, Postponement of Lien of, or Warrant to Satisfy Judgments; Entry of Satisfaction
(a) Assignments; Postponements; Warrants. The Clerk of the Superior Court shall enter upon the Civil Judgment and Order Docket, if the judgment is entered therein, and otherwise in the Civil Docket or other book in which the judgment or lien has been entered, a notation of the filing or lodging with the clerk for record of any assignment of, postponement of the lien of, or warrant to satisfy, any judgment. Such notation shall appear at a discernible place on or at the entry of such judgment in said docket or book.
(b) Entry of Satisfaction-Generally. Where a judgment is satisfied, the entry of satisfaction may be made at any discernible place on or at the entry of such judgment on the Civil Judgment and Order Docket or other book in which it may be entered.
(c) Entry of Satisfaction-Child Support Judgments and Orders. If a child support judgment or order entered in the Child Support Judgment Index requires payment to an individual obligee, the obligee shall execute a warrant of satisfaction as of the date requested by or on behalf of the obligor. If the order or judgment requires payment through a probation department, the Chief Probation Officer shall issue, upon request, a certification as to the amount due in the form prescribed by Appendix XIII to these rules, and the warrant of satisfaction shall be signed by both the creditor and the Chief Probation Officer.
(a) Assignments; Postponements; Warrants. The Clerk of the Superior Court shall enter upon the Civil Judgment and Order Docket, if the judgment is entered therein, and otherwise in the Civil Docket or other book in which the judgment or lien has been entered, a notation of the filing or lodging with the clerk for record of any assignment of, postponement of the lien of, or warrant to satisfy, any judgment. Such notation shall appear at a discernible place on or at the entry of such judgment in said docket or book.
(b) Entry of Satisfaction-Generally. Where a judgment is satisfied, the entry of satisfaction may be made at any discernible place on or at the entry of such judgment on the Civil Judgment and Order Docket or other book in which it may be entered.
(c) Entry of Satisfaction-Child Support Judgments and Orders. If a child support judgment or order entered in the Child Support Judgment Index requires payment to an individual obligee, the obligee shall execute a warrant of satisfaction as of the date requested by or on behalf of the obligor. If the order or judgment requires payment through a probation department, the Chief Probation Officer shall issue, upon request, a certification as to the amount due in the form prescribed by Appendix XIII to these rules, and the warrant of satisfaction shall be signed by both the creditor and the Chief Probation Officer.
4:101-4. Docketing of Judgments; Recording of Transcript and Other Documents
4:101-4. Docketing of Judgments; Recording of Transcript and Other Documents
Upon payment by the proponent of the order or judgment of the fee prescribed by N.J.S.A. 22A:2-7, the Clerk of the Superior Court shall docket final judgments recovered or docketed in the Special Civil Part and certificates or liens filed by State or county officers and agencies, required by law to be docketed in the clerk's office, by entry in accordance with R. 4:101-1 on the Civil Judgment and Order Docket or by binding the transcript or statement of such certificates or judgments in books kept for that purpose and indexing the name of the judgment debtor in the index to the Civil Judgment and Order Docket.
Upon payment by the proponent of the order or judgment of the fee prescribed by N.J.S.A. 22A:2-7, the Clerk of the Superior Court shall docket final judgments recovered or docketed in the Special Civil Part and certificates or liens filed by State or county officers and agencies, required by law to be docketed in the clerk's office, by entry in accordance with R. 4:101-1 on the Civil Judgment and Order Docket or by binding the transcript or statement of such certificates or judgments in books kept for that purpose and indexing the name of the judgment debtor in the index to the Civil Judgment and Order Docket.
4:101-3. Effect of Entry; Date of Judgment or Order
4:101-3. Effect of Entry; Date of Judgment or Order
The entry required by this rule shall constitute the record of the judgment or order, and a transcript certified by the clerk of the court shall be deemed plenary evidence of such judgment or orde
The entry required by this rule shall constitute the record of the judgment or order, and a transcript certified by the clerk of the court shall be deemed plenary evidence of such judgment or orde
4:101-2. Entries
4:101-2. Entries
(a) Judgments and Orders. The Clerk of the Superior Court shall make an entry upon the Civil Docket of every judgment or order and the date when the judgment or order was enteredand showing execution of process.
(b) Attachments. The Clerk of the Superior Court shall enter in the Civil Judgment and Order Docket all attachments, the names of the plaintiff and defendant, the time of issuing the writ of attachment and the amount for which issued.
(a) Judgments and Orders. The Clerk of the Superior Court shall make an entry upon the Civil Docket of every judgment or order and the date when the judgment or order was enteredand showing execution of process.
(b) Attachments. The Clerk of the Superior Court shall enter in the Civil Judgment and Order Docket all attachments, the names of the plaintiff and defendant, the time of issuing the writ of attachment and the amount for which issued.
4:101-1. Abstracts to Be Entered
4:101-1. Abstracts to Be Entered
(a) Entry on Civil Judgment and Order Docket. Upon payment by the proponent of the order or judgment of the fee prescribed by N.J.S.A. 22A:2-7, the Clerk of the Superior Court or, where provided by law or these rules, the deputy clerk of the Superior Court in the county of venue shall enter in the Civil Judgment and Order Docket an abstract of each judgment or order for the payment of money entered in the Superior Court; and upon written notice by any party thereto pursuant to law, an abstract prepared by such party of any judgment or order affecting title to or a lien upon real or personal property, and an abstract of any judgment or order for costs and counsel fees entered by the Appellate Division of the Superior Court. The abstract shall contain the following information:
(1) The title of the court and the names of all the parties to the judgment or order, designating particularly against whom it is rendered, and the firm name of all partnerships, if such appears in the pleadings;
(2) The style of the action and the amount of the debt, damages and costs recovered; or, in the case of a judgment or order affecting title to or a lien upon real or personal property, a designation of the property so affected; and
(3) The date of the actual entry of such judgment or order by notation thereof upon the Civil Docket.
(b) Child Support Judgments and Orders. When a child support judgment or order issued pursuant to N.J.S.A. 2A:17-56.23a is entered in the Superior Court Child Support Judgment Index of the Automated Child Support Enforcement System, it shall have the same force and effect as entry of an abstract in the Civil Judgment and Order Docket pursuant to paragraph (a) of this rule.
(a) Entry on Civil Judgment and Order Docket. Upon payment by the proponent of the order or judgment of the fee prescribed by N.J.S.A. 22A:2-7, the Clerk of the Superior Court or, where provided by law or these rules, the deputy clerk of the Superior Court in the county of venue shall enter in the Civil Judgment and Order Docket an abstract of each judgment or order for the payment of money entered in the Superior Court; and upon written notice by any party thereto pursuant to law, an abstract prepared by such party of any judgment or order affecting title to or a lien upon real or personal property, and an abstract of any judgment or order for costs and counsel fees entered by the Appellate Division of the Superior Court. The abstract shall contain the following information:
(1) The title of the court and the names of all the parties to the judgment or order, designating particularly against whom it is rendered, and the firm name of all partnerships, if such appears in the pleadings;
(2) The style of the action and the amount of the debt, damages and costs recovered; or, in the case of a judgment or order affecting title to or a lien upon real or personal property, a designation of the property so affected; and
(3) The date of the actual entry of such judgment or order by notation thereof upon the Civil Docket.
(b) Child Support Judgments and Orders. When a child support judgment or order issued pursuant to N.J.S.A. 2A:17-56.23a is entered in the Superior Court Child Support Judgment Index of the Automated Child Support Enforcement System, it shall have the same force and effect as entry of an abstract in the Civil Judgment and Order Docket pursuant to paragraph (a) of this rule.
RULE 4:100. CIVIL DOCKET
RULE 4:100. CIVIL DOCKET
The Clerk of the Superior Court or, where provided by law or these rules, the deputy clerk of the Superior Court shall enter each action in the Civil Docket. Upon the filing of the first paper in any action the clerk shall assign a docket number to the action and promptly notify plaintiff's attorney of such number. Like notice shall be given to the defendant's attorney upon the filing of the first paper on behalf of the defendant. Thereafter the attorneys shall number every paper to be filed by them in the action with such docket number.
The Clerk of the Superior Court or, where provided by law or these rules, the deputy clerk of the Superior Court shall enter each action in the Civil Docket. Upon the filing of the first paper in any action the clerk shall assign a docket number to the action and promptly notify plaintiff's attorney of such number. Like notice shall be given to the defendant's attorney upon the filing of the first paper on behalf of the defendant. Thereafter the attorneys shall number every paper to be filed by them in the action with such docket number.
4:96-5. Bond From Corporate Fiduciary
4:96-5. Bond From Corporate Fiduciary
No corporation appointed as fiduciary shall be required to give bond without surety or otherwise, except as provided by law.
No corporation appointed as fiduciary shall be required to give bond without surety or otherwise, except as provided by law.
4:96-4. Notice to Surety
4:96-4. Notice to Surety
In any proceedings brought to review the conduct or performance of the duties of a bonded fiduciary, the party bringing the action shall give the surety notice of said motion or proceedings as in the case of an interested party.
In any proceedings brought to review the conduct or performance of the duties of a bonded fiduciary, the party bringing the action shall give the surety notice of said motion or proceedings as in the case of an interested party.
4:96-3. Money Judgments in the Chancery Division, Probate Part
4:96-3. Money Judgments in the Chancery Division, Probate Part
When a money judgment is rendered by the Superior Court, Chancery Division, Probate Part, the proponent of the judgment may transmit the original, together with the fee prescribed by N.J.S.A. 22A:2-7, to the Clerk of the Superior Court for entry in the Civil Judgment and Order Docket pursuant to R. 4:101.
When a money judgment is rendered by the Superior Court, Chancery Division, Probate Part, the proponent of the judgment may transmit the original, together with the fee prescribed by N.J.S.A. 22A:2-7, to the Clerk of the Superior Court for entry in the Civil Judgment and Order Docket pursuant to R. 4:101.
4:96-2. Renunciations
4:96-2. Renunciations
A renunciation by any person named as a fiduciary in any will or other instrument or entitled to letters testamentary, of administration, guardianship or trusteeship, shall be acknowledged before an officer qualified to take acknowledgements of deeds, and shall be recorded by the Surrogate as the deputy clerk of the court.
A renunciation by any person named as a fiduciary in any will or other instrument or entitled to letters testamentary, of administration, guardianship or trusteeship, shall be acknowledged before an officer qualified to take acknowledgements of deeds, and shall be recorded by the Surrogate as the deputy clerk of the court.
RULE 4:96. MISCELLANEOUS 4:96-1. Qualifications; Acceptances
RULE 4:96. MISCELLANEOUS
4:96-1. Qualifications; Acceptances
Qualifications of executors and administrators and acceptances of trusteeship and guardianship may be taken outside this State under oath by any person before whom depositions may be taken under R. 4:12-2 and R. 4:12-3, and when the qualification of an executor or an administrator with the will annexed is taken outside this State, the will need not be annexed to the qualification. Such qualifications and acceptances may be taken within this State before any person authorized by the laws of this State to administer oaths.
4:96-1. Qualifications; Acceptances
Qualifications of executors and administrators and acceptances of trusteeship and guardianship may be taken outside this State under oath by any person before whom depositions may be taken under R. 4:12-2 and R. 4:12-3, and when the qualification of an executor or an administrator with the will annexed is taken outside this State, the will need not be annexed to the qualification. Such qualifications and acceptances may be taken within this State before any person authorized by the laws of this State to administer oaths.
Wednesday, September 2, 2009
4:95-4. Certificate as to Further Security; Death Act, etc.
4:95-4. Certificate as to Further Security; Death Act, etc.
When a payment is to be made to an administrator for damages due under N.J.S.A. 2A:31-1 to 6, inclusive (death by wrongful act) or for damages sustained by the decedent prior to death, the administrator shall, prior to receiving payment, furnish to the person liable a certificate of the Surrogate setting forth the amount of the payment and certifying that the administrator has furnished adequate security in accordance with the statute.
When a payment is to be made to an administrator for damages due under N.J.S.A. 2A:31-1 to 6, inclusive (death by wrongful act) or for damages sustained by the decedent prior to death, the administrator shall, prior to receiving payment, furnish to the person liable a certificate of the Surrogate setting forth the amount of the payment and certifying that the administrator has furnished adequate security in accordance with the statute.
4:95-3. Approval of Compromise
4:95-3. Approval of Compromise
The complaint of the fiduciary in an action for the approval of a compromise of a claim shall state the nature of the claim and the circumstances justifying the compromise, and shall have annexed to it a copy of the writing setting forth the terms and conditions of the compromise. If, pending the action, the fiduciary applies to the court for approval either of a modification of the compromise, or of another compromise, agreed upon in writing, the court shall, if satisfied that it is in the interests of all persons interested, approve it, provided due notice of the application has been given to such persons.
The complaint of the fiduciary in an action for the approval of a compromise of a claim shall state the nature of the claim and the circumstances justifying the compromise, and shall have annexed to it a copy of the writing setting forth the terms and conditions of the compromise. If, pending the action, the fiduciary applies to the court for approval either of a modification of the compromise, or of another compromise, agreed upon in writing, the court shall, if satisfied that it is in the interests of all persons interested, approve it, provided due notice of the application has been given to such persons.
4:95-2. Summary Action by Fiduciary for Instructions
4:95-2. Summary Action by Fiduciary for Instructions
A summary action pursuant to R. 4:83 may be brought by executors, administrators, guardians or trustees for instructions as to the exercise of any of their statutory powers as well as for advice and directions in making distributions from the estate.
A summary action pursuant to R. 4:83 may be brought by executors, administrators, guardians or trustees for instructions as to the exercise of any of their statutory powers as well as for advice and directions in making distributions from the estate.
RULE 4:95. MISCELLANEOUS ACTIONS 4:95-1. Order to Compel Production of Purported Will
RULE 4:95. MISCELLANEOUS ACTIONS
4:95-1. Order to Compel Production of Purported Will
A summary action pursuant to R. 4:83 for the discovery or production of any paper purporting to be the will of any decedent, which has not been offered for probate, may be instituted by any person in interest by filing a complaint alleging a belief that any person has the paper in his or her possession or has knowledge of its existence or whereabouts. Upon the return of the order to show cause, the court may order such person to appear before it and make discovery as to his or her possession or knowledge of the same, by the examination of such person and other witnesses, and may order any such person possessing any such paper to lodge the same with the court for probate. If the will is produced on or prior to the return date of the order to show cause and no objection is received, the Surrogate may enter an order that it be lodged for probate and thereafter proceed with probate of the will unless a caveat thereto has been filed or doubt arises from the face of the will. If the will is not produced prior to or on the return date, the court may enter such order and take such further proceedings as deemed appropriate.
4:95-1. Order to Compel Production of Purported Will
A summary action pursuant to R. 4:83 for the discovery or production of any paper purporting to be the will of any decedent, which has not been offered for probate, may be instituted by any person in interest by filing a complaint alleging a belief that any person has the paper in his or her possession or has knowledge of its existence or whereabouts. Upon the return of the order to show cause, the court may order such person to appear before it and make discovery as to his or her possession or knowledge of the same, by the examination of such person and other witnesses, and may order any such person possessing any such paper to lodge the same with the court for probate. If the will is produced on or prior to the return date of the order to show cause and no objection is received, the Surrogate may enter an order that it be lodged for probate and thereafter proceed with probate of the will unless a caveat thereto has been filed or doubt arises from the face of the will. If the will is not produced prior to or on the return date, the court may enter such order and take such further proceedings as deemed appropriate.
4:94-7. Costs and Expenses of Proceedings
4:94-7. Costs and Expenses of Proceedings
The costs and expenses of proceedings under R. 4:94 shall be taxed and paid out of the proceeds of the sale or mortgage.
The costs and expenses of proceedings under R. 4:94 shall be taxed and paid out of the proceeds of the sale or mortgage.
4:94-6. Mortgage of Lands
4:94-6. Mortgage of Lands
Actions in the Superior Court under any statute providing for the borrowing of money on the security of, or the exchange of, any real estate of a minor, mentally incapacitated person or other person, shall be commenced by filing a verified complaint of the guardian or other person authorized to proceed under the statute, and shall conform with the provisions of R. 4:94 insofar as they are applicable. If the action is to mortgage land, the court shall also ascertain the manner in which it is proposed to meet the interest to accrue upon the mortgage. If it appears that the best interests of the minor, mentally incapacitated person or other person would be promoted by selling the real estate rather than by mortgaging it, the court in its discretion may direct the guardian or other designated person to take such proceedings to sell the whole or any part of the same
Actions in the Superior Court under any statute providing for the borrowing of money on the security of, or the exchange of, any real estate of a minor, mentally incapacitated person or other person, shall be commenced by filing a verified complaint of the guardian or other person authorized to proceed under the statute, and shall conform with the provisions of R. 4:94 insofar as they are applicable. If the action is to mortgage land, the court shall also ascertain the manner in which it is proposed to meet the interest to accrue upon the mortgage. If it appears that the best interests of the minor, mentally incapacitated person or other person would be promoted by selling the real estate rather than by mortgaging it, the court in its discretion may direct the guardian or other designated person to take such proceedings to sell the whole or any part of the same
4:94-5. Confirmation of Sale; Conveyance
4:94-5. Confirmation of Sale; Conveyance
The report, notice and order for the confirmation of a sale or other disposition of property shall be in accordance with R. 4:65-6 dealing with real estate, except that the order to sell may dispense with a confirmation of the sale in case of a private sale. If the report is filed within 6 months after the hearing or application under R. 4:94-3, it need not have annexed to it affidavits as to the value of the property sold. The conveyance to be made pursuant to the order confirming sale, when duly executed and delivered, shall vest in the purchaser as good an estate in the property as the minor or mentally incapacitated person could have conveyed if at the time of conveyance such person were of full age and sound mind.
The report, notice and order for the confirmation of a sale or other disposition of property shall be in accordance with R. 4:65-6 dealing with real estate, except that the order to sell may dispense with a confirmation of the sale in case of a private sale. If the report is filed within 6 months after the hearing or application under R. 4:94-3, it need not have annexed to it affidavits as to the value of the property sold. The conveyance to be made pursuant to the order confirming sale, when duly executed and delivered, shall vest in the purchaser as good an estate in the property as the minor or mentally incapacitated person could have conveyed if at the time of conveyance such person were of full age and sound mind.
4:94-4. Bond
4:94-4. Bond
If sale or other disposition is made by a guardian ad litem, the proceeds thereof shall not be paid to him or her, but to the guardian who has filed a bond in an adequate amount. The court on directing the sale or other disposition of property shall examine the sufficiency of the bond previously given by the general guardian or the special guardian for real or personal property within this State of the nonresident minor or mentally incapacitated person, and if in the court's judgment the same is insufficient, or if no bond has been previously given, the court shall require the guardian or special guardian to give an additional bond approved by it before the confirmation of the sale, or as it directs. If the guardian or special guardian was appointed by a court other than the Superior Court of New Jersey, then before the confirmation there shall be presented a certificate of such appointing court, certifying that a good and sufficient bond, of a stated amount, has been filed with it.
If sale or other disposition is made by a guardian ad litem, the proceeds thereof shall not be paid to him or her, but to the guardian who has filed a bond in an adequate amount. The court on directing the sale or other disposition of property shall examine the sufficiency of the bond previously given by the general guardian or the special guardian for real or personal property within this State of the nonresident minor or mentally incapacitated person, and if in the court's judgment the same is insufficient, or if no bond has been previously given, the court shall require the guardian or special guardian to give an additional bond approved by it before the confirmation of the sale, or as it directs. If the guardian or special guardian was appointed by a court other than the Superior Court of New Jersey, then before the confirmation there shall be presented a certificate of such appointing court, certifying that a good and sufficient bond, of a stated amount, has been filed with it.
4:94-3. Order to Sell
4:94-3. Order to Sell
Upon presentation of the complaint and affidavit to the court, it may in its discretion require proof by way of oral testimony or additional affidavits in support of the statements therein. If from the complaint, affidavits and oral proofs, if any, the court is satisfied that the best interests of the ward would thereby be substantially promoted and the rights of other persons interested in the property would not be harmed, it may order the guardian or guardian ad litem tosell or otherwise dispose of the property, or such part thereof, as it deems proper. The order may fix the terms and conditions of the sale or other disposition, and may establish a price below which the property shall not be sold
Upon presentation of the complaint and affidavit to the court, it may in its discretion require proof by way of oral testimony or additional affidavits in support of the statements therein. If from the complaint, affidavits and oral proofs, if any, the court is satisfied that the best interests of the ward would thereby be substantially promoted and the rights of other persons interested in the property would not be harmed, it may order the guardian or guardian ad litem tosell or otherwise dispose of the property, or such part thereof, as it deems proper. The order may fix the terms and conditions of the sale or other disposition, and may establish a price below which the property shall not be sold
4:94-2. Complaint; Supporting Affidavits; Notice
4:94-2. Complaint; Supporting Affidavits; Notice
The complaint shall state the age and residence of the ward, a description of the property proposed to be sold or otherwise disposed of, a statement of the encumbrances, if any, thereon, and the reasons why the sale or other disposition would be in the ward's best interests. The complaint shall be verified by affidavit made pursuant to R. 1:6-6 and have annexed thereto affidavits of at least two persons, stating the situation, assessed value, if any, and fair market value of the property proposed to be sold or otherwise disposed of, and if real estate, of each separate lot or parcel. If the property is real estate located in New Jersey, the affidavits shall be made by a certified real estate appraiser or licensed real estate appraiser as defined by N.J.S.A. 45:14F-5 and -6, respectively, and required by N.J.S.A. 45:14F-21(c). If the real estate is located outside this state, the affidavits shall be made by a real estate appraiser certified or licensed by the jurisdiction in which the property is located if that jurisdiction has a certification or licensing requirement. If the minor or mentally incapacitated person owns a fractional portion of real estate having a value not in excess of $10,000 as shown by one affidavit, the court may dispense with the requirement of a second affidavit as to value. Unless the court otherwise orders, no notice of the action need be given to the ward.
The complaint shall state the age and residence of the ward, a description of the property proposed to be sold or otherwise disposed of, a statement of the encumbrances, if any, thereon, and the reasons why the sale or other disposition would be in the ward's best interests. The complaint shall be verified by affidavit made pursuant to R. 1:6-6 and have annexed thereto affidavits of at least two persons, stating the situation, assessed value, if any, and fair market value of the property proposed to be sold or otherwise disposed of, and if real estate, of each separate lot or parcel. If the property is real estate located in New Jersey, the affidavits shall be made by a certified real estate appraiser or licensed real estate appraiser as defined by N.J.S.A. 45:14F-5 and -6, respectively, and required by N.J.S.A. 45:14F-21(c). If the real estate is located outside this state, the affidavits shall be made by a real estate appraiser certified or licensed by the jurisdiction in which the property is located if that jurisdiction has a certification or licensing requirement. If the minor or mentally incapacitated person owns a fractional portion of real estate having a value not in excess of $10,000 as shown by one affidavit, the court may dispense with the requirement of a second affidavit as to value. Unless the court otherwise orders, no notice of the action need be given to the ward.
4:94-1. Action for Sale
4:94-1. Action for Sale
A general guardian of the person or property of a minor or mentally incapacitated person or, if the general guardian shall fail to act or has an adverse interest or other good cause exists, a guardian ad litem appointed by the court after notice to the general guardian, or any person having a vested interest in lands in which a minor, mentally incapacitated person, or person not in being has an interest, may bring an action in the Superior Court for the sale or other disposition of the property of the minor, mentally incapacitated person or person not in being. Nothing in these rules shall be deemed to authorize the sale or other disposition of any property contrary to the provisions of any will or conveyance by which the same were bequeathed, devised or granted to or for the benefit of the minor or mentally incapacitated person
A general guardian of the person or property of a minor or mentally incapacitated person or, if the general guardian shall fail to act or has an adverse interest or other good cause exists, a guardian ad litem appointed by the court after notice to the general guardian, or any person having a vested interest in lands in which a minor, mentally incapacitated person, or person not in being has an interest, may bring an action in the Superior Court for the sale or other disposition of the property of the minor, mentally incapacitated person or person not in being. Nothing in these rules shall be deemed to authorize the sale or other disposition of any property contrary to the provisions of any will or conveyance by which the same were bequeathed, devised or granted to or for the benefit of the minor or mentally incapacitated person
4:93-5. Letters Issued
4:93-5. Letters Issued
After entry of the judgment, an application may be brought for the issuance of letters of administration upon the estate of the absentee as in the case of a deceased person, or for the probate of the will, or for the appointment of a testamentary guardian.
After entry of the judgment, an application may be brought for the issuance of letters of administration upon the estate of the absentee as in the case of a deceased person, or for the probate of the will, or for the appointment of a testamentary guardian.
4:93-4. Hearing
4:93-4. Hearing
Whether or not an answer or an answering affidavit is filed, the court shall hear the matter on oral testimony and shall not enter judgment declaring the absentee dead unless it is satisfiedthat the plaintiff has made reasonable effort to ascertain the facts necessary to maintain the action.
Whether or not an answer or an answering affidavit is filed, the court shall hear the matter on oral testimony and shall not enter judgment declaring the absentee dead unless it is satisfiedthat the plaintiff has made reasonable effort to ascertain the facts necessary to maintain the action.
4:93-3. Parties Defendant
4:93-3. Parties Defendant
The order to show cause shall be directed to all persons in interest, including (a) the persons who would have an interest, as executor or beneficiary under a will of the absentee, or as heir, next of kin or spouse of the absentee or otherwise, in any real or personal property by reason of the death of the absentee, testate or intestate; (b) the carrier and beneficiaries of any insurance known to the plaintiff which is payable on the death of the absentee; (c) those persons entitled, in a fiduciary or beneficial capacity, to any interest known to the plaintiff, which interest expires or is contingent upon the death of the absentee; and (d) such other persons as the court directs.
The order to show cause shall be directed to all persons in interest, including (a) the persons who would have an interest, as executor or beneficiary under a will of the absentee, or as heir, next of kin or spouse of the absentee or otherwise, in any real or personal property by reason of the death of the absentee, testate or intestate; (b) the carrier and beneficiaries of any insurance known to the plaintiff which is payable on the death of the absentee; (c) those persons entitled, in a fiduciary or beneficial capacity, to any interest known to the plaintiff, which interest expires or is contingent upon the death of the absentee; and (d) such other persons as the court directs.
4:93-2. Declaration of Death
4:93-2. Declaration of Death
The action may be brought in a summary manner in accordance with R. 4:83 on an order to show cause returnable not less than 30 days nor more than three months from the date of the order why judgment should not be entered declaring such person to be dead. Notice of the order shall be published once in a newspaper of general circulation in the county where the absentee was last domiciled and shall be served by mail or otherwise as the court directs.
The action may be brought in a summary manner in accordance with R. 4:83 on an order to show cause returnable not less than 30 days nor more than three months from the date of the order why judgment should not be entered declaring such person to be dead. Notice of the order shall be published once in a newspaper of general circulation in the county where the absentee was last domiciled and shall be served by mail or otherwise as the court directs.
RULE 4:93. DECLARATION OF DEATH
RULE 4:93. DECLARATION OF DEATH
4:93-1. Complaint
An action under N.J.S.A. 3B:27-6 to declare dead an absentee, whether a resident or nonresident of this State, may be brought by a spouse, any next of kin, creditor, executor, administrator, beneficiary under an insurance policy on the absentee's life, or any other person interested in the estate. The complaint shall specify the facts as to the plaintiff's interest.
4:93-1. Complaint
An action under N.J.S.A. 3B:27-6 to declare dead an absentee, whether a resident or nonresident of this State, may be brought by a spouse, any next of kin, creditor, executor, administrator, beneficiary under an insurance policy on the absentee's life, or any other person interested in the estate. The complaint shall specify the facts as to the plaintiff's interest.
4:92-3. Bond
4:92-3. Bond
No money shall be paid over pursuant to the order of the court until the party instituting the action shall have filed a bond as prescribed by the court.
No money shall be paid over pursuant to the order of the court until the party instituting the action shall have filed a bond as prescribed by the court.
4:92-2. Statement of Assets and Liabilities
4:92-2. Statement of Assets and Liabilities
Except as otherwise provided by R. 4:26-3 (virtual representation), the notice of motion shall be directed to all persons who may be entitled to the money, or any part thereof, if the money is not required for the payment of debts. With the motion and supporting affidavit there shall be served an account of the personal estate that has come into the hands or the knowledge of the personal representative; the debts, expenses and other items paid or for which allowance is claimed; the amount on hand; the debts claimed to be due from the decedent; and the debts disput
Except as otherwise provided by R. 4:26-3 (virtual representation), the notice of motion shall be directed to all persons who may be entitled to the money, or any part thereof, if the money is not required for the payment of debts. With the motion and supporting affidavit there shall be served an account of the personal estate that has come into the hands or the knowledge of the personal representative; the debts, expenses and other items paid or for which allowance is claimed; the amount on hand; the debts claimed to be due from the decedent; and the debts disput
RULE 4:92. PROCEEDINGS TO APPLY TOWARD DECEDENT'S DEBTS MONEYS RECEIVED ON FORECLOSURE AND PARTITION SALES 4:92-1. Motion
RULE 4:92. PROCEEDINGS TO APPLY TOWARD DECEDENT'S DEBTS MONEYS RECEIVED ON FORECLOSURE AND PARTITION SALES
4:92-1. Motion
A notice of motion supported by affidavit of an executor or administrator made for leave to apply to the payment of the decedent's debts the surplus moneys on a foreclosure sale or the moneys received on the sale of real estate sold in an action for partition shall be captioned in the action in which the moneys arose. The motion and supporting affidavit shall state:
(a) the date of the decedent's death;
(b) the date of the sale under which the moneys were or will be received;
(c) whether any of the heirs or devisees have alienated or encumbered their estate in the lands sold, in whole or in part, or their interest in the proceeds of the sale thereof; and when, and what part and to whom; and
(d) whether any spouse has a right or estate of dower or curtesy in the money, or any part thereof.
4:92-1. Motion
A notice of motion supported by affidavit of an executor or administrator made for leave to apply to the payment of the decedent's debts the surplus moneys on a foreclosure sale or the moneys received on the sale of real estate sold in an action for partition shall be captioned in the action in which the moneys arose. The motion and supporting affidavit shall state:
(a) the date of the decedent's death;
(b) the date of the sale under which the moneys were or will be received;
(c) whether any of the heirs or devisees have alienated or encumbered their estate in the lands sold, in whole or in part, or their interest in the proceeds of the sale thereof; and when, and what part and to whom; and
(d) whether any spouse has a right or estate of dower or curtesy in the money, or any part thereof.
4:91-5. Actions Pending May Proceed to Judgment
4:91-5. Actions Pending May Proceed to Judgment
If an action by a creditor or other interested party is pending against the executor or administrator on the date of the filing of the complaint to adjudge the estate insolvent, the action may proceed to final judgment, but no execution shall issue until final judgment is entered in the insolvency proceeding. If the estate is adjudicated insolvent, the judgment creditor shall be entitled to receive the ratable portion determined by such final judgment.
If an action by a creditor or other interested party is pending against the executor or administrator on the date of the filing of the complaint to adjudge the estate insolvent, the action may proceed to final judgment, but no execution shall issue until final judgment is entered in the insolvency proceeding. If the estate is adjudicated insolvent, the judgment creditor shall be entitled to receive the ratable portion determined by such final judgment.
4:91-4. Excepted Claims; Plenary Action; Recovery
4:91-4. Excepted Claims; Plenary Action; Recovery
If a creditor to whose claim exception is made elects to proceed in a plenary civil action in preference to a determination by the court on the exception, he or she shall so proceed immediately. If an executor or administrator desires to have a claim determined in a plenary action, he or she shall, before filing the report, so notify the creditor who shall thereupon proceed to sue immediately. Such sum as the creditor recovers in such plenary action shall be the amount upon which a ratable portion shall be paid. The court in which the action is brought shall dispose thereof as quickly as possible.
If a creditor to whose claim exception is made elects to proceed in a plenary civil action in preference to a determination by the court on the exception, he or she shall so proceed immediately. If an executor or administrator desires to have a claim determined in a plenary action, he or she shall, before filing the report, so notify the creditor who shall thereupon proceed to sue immediately. Such sum as the creditor recovers in such plenary action shall be the amount upon which a ratable portion shall be paid. The court in which the action is brought shall dispose thereof as quickly as possible.
4:91-3. Exceptions to Account, Inventory and Claims; Determination
4:91-3. Exceptions to Account, Inventory and Claims; Determination
A creditor or other interested person may take exceptions to the account of the executor or administrator in respect of the personal estate and the inventory of the real estate. The executor or administrator, or any other interested person, may take exceptions to any creditor's claim or part thereof. Such exceptions shall be served on or before the hearing in the action or within such time as the court on application allows. Any account and inventory not excepted to shall be allowed as true, and a claim not excepted to shall be deemed justly due. The court shall hear proofs on the exceptions and shall make such determination and final judgment with respect thereto as is just and lawful.
A creditor or other interested person may take exceptions to the account of the executor or administrator in respect of the personal estate and the inventory of the real estate. The executor or administrator, or any other interested person, may take exceptions to any creditor's claim or part thereof. Such exceptions shall be served on or before the hearing in the action or within such time as the court on application allows. Any account and inventory not excepted to shall be allowed as true, and a claim not excepted to shall be deemed justly due. The court shall hear proofs on the exceptions and shall make such determination and final judgment with respect thereto as is just and lawful.
4:91-2. Service on Creditors and Other Interested Persons of Insolvent Estate
4:91-2. Service on Creditors and Other Interested Persons of Insolvent Estate
Service of the complaint together with the report of claims and account and order to show cause on creditors who have presented claims within nine months of the decedent's death and other interested persons shall be made in accordance with R. 4:87-4.
Service of the complaint together with the report of claims and account and order to show cause on creditors who have presented claims within nine months of the decedent's death and other interested persons shall be made in accordance with R. 4:87-4.
RULE 4:91. INSOLVENT ESTATES 4:91-1. Proceedings When Estate Is Insolvent
RULE 4:91. INSOLVENT ESTATES
4:91-1. Proceedings When Estate Is Insolvent
(a) Complaint; Order to Show Cause. At any time after nine months following the date of decedent's death, the executor or administrator may commence an action in the Chancery Division, Probate Part, by a complaint stating that to the best of the executor or administrator's knowledge and belief, the real and personal estate of the decedent is insufficient to pay debts. The action shall proceed by order to show cause, which shall require the executor or administrator to give notice of the proceedings to the persons specified by R. 4:91-2 and shall set the date by which answers to the complaint or exceptions pursuant to R. 4:91-3 must be filed.
(b) Report of Claims; Account. The executor or administrator shall file with the complaint a list of creditors who have presented claims within nine months following the date of decedent's death, or which the executor or administrator intends to allow without requiring the submission of a formal claim, stating the amount of each claim, whether it has been allowed or rejected, whether it is entitled to a statutory priority, and whether the claim is based on judgment, bond, note, book account, or otherwise. The executor or administrator shall also file with the complaint an account in the form required by R. 4:87-3.
(c) Judgment. The court may, on the presentation of the report of claims and the presentation of the account, adjudge the estate to be insolvent and determine the amount of each claim and its priority for payment.
4:91-1. Proceedings When Estate Is Insolvent
(a) Complaint; Order to Show Cause. At any time after nine months following the date of decedent's death, the executor or administrator may commence an action in the Chancery Division, Probate Part, by a complaint stating that to the best of the executor or administrator's knowledge and belief, the real and personal estate of the decedent is insufficient to pay debts. The action shall proceed by order to show cause, which shall require the executor or administrator to give notice of the proceedings to the persons specified by R. 4:91-2 and shall set the date by which answers to the complaint or exceptions pursuant to R. 4:91-3 must be filed.
(b) Report of Claims; Account. The executor or administrator shall file with the complaint a list of creditors who have presented claims within nine months following the date of decedent's death, or which the executor or administrator intends to allow without requiring the submission of a formal claim, stating the amount of each claim, whether it has been allowed or rejected, whether it is entitled to a statutory priority, and whether the claim is based on judgment, bond, note, book account, or otherwise. The executor or administrator shall also file with the complaint an account in the form required by R. 4:87-3.
(c) Judgment. The court may, on the presentation of the report of claims and the presentation of the account, adjudge the estate to be insolvent and determine the amount of each claim and its priority for payment.
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