cplr time to answer cross claim

New York City Management, Llc, BLACKBELT LITIGATOR      , PLEADINGS Summons & Complaint, Answer, & Reply, DISCOVERY Documents, Interrogatories & Depositions. A counterclaim is initiated whenthe pleading containing it is served. A counterclaimin an amended pleading is treated as though presented in the original pleading for statute of limitations purposes. Rule 3211.

https://codes.findlaw.com/ny/civil-practice-law-and-rules/cvpny-cplr-rule-3025/, Read this complete New York Consolidated Laws, Civil Practice Law and Rules - CVP Rule3025. case was filed Defendant has provided proof that plaintiff was not only served with a copy of defendant's verified answer with counterclaims, but also, served with the September 12, 2018 order dismissing the complaint and a copy of this motion. Thus, the motion for a default judgment on defendant's counterclaims seeking monetary damages is granted, and the court will hold a hearing on the issue of damages as to these claims.

asserted against him on the ground that: 1. a defense is founded upon documentary evidence; or. You can explore additional available newsletters here. The cause of hb```"; eax 8\;_=/ `P`Fi>UJLlF2/i=wlZuq2H1 xF Leave shall be freely given upon such terms as may be just including the granting Where the complaint is not verified, a counterclaim, cross-claim or third-party claim in the answer may be separately verified in the same manner and with the same effect as if it were a separate pleading. A party may move for judgment dismissing one or more causes of action. WebLLC, cross-moves, pursuant to CPLR 3012(d) and 2101(f), to compel plaintiff to accept IP's answer. *. Batelman, Richard, A motion for summary judgment, in which the moving party has demonstrated that the action, claim, cross claim or counterclaim subject to the motion is an action In New York, unlike the federal courts, cross-claims may be asserted by defendants against co-defendants (and third parties) for any cause of action. l'>?mL)kem1yz If you have been sued and want to assert defenses and counterclaims,contact us online or call Scott Lanin, Esq.

Sorry, you need to enable JavaScript to visit this website. 20 DAYS TO ANSWER Dont Bury Your Head In The Sand! (d)Responses to amended or supplemental pleadings. Posted: March 9, 2019 / Counterclaims are subject to the same statute of limitations as regular claims, however, if the time has expired but thecounterclaim was not time-barred at the time the original complaint was filed, it may be asserted during theactionif the counterclaim arises out of the same facts and circumstances alleged in the complaint. Fort 710 Associates, L.P., Defendant. 0eh\Q(nc#DGWn@ahdkV fvA,{C 0%trv|vRB, {? Rule 3211. Cross-Claim Included in Answer. WebMaintained New York A guide to drafting an answer for an action in New York state supreme court in which the defendant asserts its own claims against the plaintiff (b)Amendments and supplemental pleadings by leave. The time in which a counterclaim may be asserted is computed from the time when the underlying facts and circumstances became known or reasonably should have become known. The trial court denied plaintiffs motion for a default judgment and, in the exercise of its discretion, granted defendants cross-application to serve an untimely answer. HOME      CONTACT      SERVICES      PRAISE     FORECLOSURE BLOG     LITIGATION BLOG       BLACKBELT LITIGATOR      . WebCPLR 3211 Motion to dismiss (a) Motion to dismiss cause of action. Upon the application of a party, the court may extend the time to appear or plead, or compel the acceptance of a pleading untimely served, upon such terms as may be just and upon a showing of reasonable excuse for delay or default. The first Rule 13 (j) also sets a similar

Cross-Claim Rules Any Cause of Action In New York, unlike the federal courts, cross-claims may be asserted by defendants against co-defendants (and third CPLR 3011 > > Read More.. Cross-Claim Rules Any Cause of Action. WebWhile the answer to Hertz' cross claim was not served within 20 days as required by CPLR 3012 (subd [a]), and thus there is a technical default in serving the answer, no purpose is served by requiring an affidavit of merits as a condition for leave to serve a late answer containing a cross claim. The answer may also contain cross-claims against co-defendants. These cross-claims are generally for contractual/common law indemnification or for contribution, but they are not limited to such. An answer to a cross-claim is not required in New York unless the cross-claim specifically demands an answer thereto. (CPLR 3011.) Cross-claims may be included in the defendants answer. ', . Leyvi, Maksim, (b) Amendments and supplemental pleadings by leave. Rule 13 (j) also sets a similar 20-day time limit for assertion of cross- claims (i.e., Similarly, in a case with multiple Defendants, one Defendant may assert his or her own claims against a fellow Supreme Court, New York County.

%%EOF However, New York courts rarely grant declaratory judgments on default with no inquiry as to the merits. WebA cross-claim is asserted in the defendant's answer, usually after the defendant's affirmative defenses and counterclaims and before the demand for relief. (c)Amendment to conform to the evidence. It really is a fight over a lot of money, disguised as an attempt to quiet title pursuant to RPAPL Art. Such counterclaims can be pursued only to the extent of the demand within the complaint. ` U@$O Disclaimer: These codes may not be the most recent version. Kravitz, David, 20 0 obj <> endobj Copyright 2023, Thomson Reuters. ! A counterclaim may be asserted by a third party defendant. See CPLR 3020. Defendant City of New York has not opposed or supported either the motion or cross-motion. (a)Amendments without leave. Service of a notice of motion under subdivision (a) or (b) before service of a pleading responsive to the cause of action or defense sought to be dismissed extends the time to serve the pleading until ten days after service of notice of entry of the order. AGREEMENTS PARTNERS, SHAREHOLDERS & MEMBERS, GENERAL BUSINESS LAW (CONSUMER PROTECTION), Here are some interesting links for you! (FRCP 12.) A reply to a counterclaim must be served within twenty (20) days of service of the pleading containing the counterclaim. Webcplr time to answer cross claim heartgold primo calculator. WebCPLR 3012148 govern the service of a cross-claim. A recent appellate decision makes this point. in the jurisdiction of Kings County. WebWhere a person not a party is alleged to be liable a summons and answer containing the counterclaim or cross-claim shall be filed, whereupon he or she shall become a defendant. Finally, the defense attorney needs to evaluate if a verification is required and by whom such should be signed. General Requirements for Pleadings (a) Pleadings Allowed. (FRCP 12.) as the grounds for dismissal under CPLR 3211(a). The selection dates indicate all change milestones for the entire volume, not just the location being viewed. time and method of service. In federal court, a party must serve an answer to a cross-claim within 21 days after being served with the pleading that includes the counterclaim or cross-claim. Perfectil TV SPOT: "O ! ! Except where otherwise prescribed by law or order of the court, there shall be an Contact Schlam Stone & Dolan partner John Lundin at jlundin@schlamstone.com if you or a client have questions regarding whether you have been properly served or if a default judgment has been entered against you. CPLR 203(f). Fixler, Jason L,

After the defendant interposed an answer and cross-claims, the plaintiff moved for summary judgment. (b) When answer must be box truck owner operator jobs non cdl; del zotto family net worth; sadlier vocabulary workshop level green; kaspersky Cross-claims may be included in the defendants answer. CPLR 3019(b). FindLaw Codes may not reflect the most recent version of the law in your jurisdiction. Cite this article: FindLaw.com - New York Consolidated Laws, Civil Practice Law and Rules - CVP If you are served with a complaint (or counterclaims, as happened in this case) and fail timely to answer, the court can enter judgment against you: a default judgment. (FRCP 12.) Enjoy your stay :). This site is protected by reCAPTCHA and the Google, There is a newer version of the New York Consolidated Laws, Article 32 - (3201 - R3222) ACCELERATED JUDGMENT. CEO 5 , . WebWhile the answer to Hertz' cross claim was not served within 20 days as required by CPLR 3012 (subd [a]), and thus there is a technical default in serving the answer, no purpose is Finally, defendant provides its attorney's affirmation, affirming that plaintiff has not appeared in this action since its counsel withdrew and plaintiff has not responded to defense counsel's communications. Amended and supplemental pleadings - last updated January 01, 2021 Attorney for the Plaintiff, LEMBO, MICHAEL ZACHARY A counterclaim may be any cause of action in favor of one or more defendants or a person whom a defendant of costs and continuances. WebWhere a person not a party is alleged to be liable a summons and answer containing the counterclaim or cross-claim shall be filed, whereupon he or she shall become a Cross-Claim Rules Any Cause of Action In New York, unlike the federal courts, cross-claims may be asserted by defendants against co-defendants (and third parties) for any cause of action. , : site . (Internal quotations and citations omitted). HV1W/y8DX v dL{ hi>xE/OckXODbp2 6DBm&*OSw*x:gxX_?OwP|)K gJ+H{?Hgj$!R UN/1 If a defendant asserts a cross-claim and seeks an answer, it must demand one. WebCPLR 3012 (a) requires that service of an answer or reply shall be made within 20 days after service of the pleading to which it responds. In light of this, the court held that if the delay of service of the cross-claim is not prejudicial, it will be considered valid. While CPLR 3215 does not specifically mention counterclaims, the statute's legislative history reveals that it was intended to apply to claims asserted as counterclaims, cross claims, and third-party claims, in addition to those set forth in complaints. This is the third time that plaintiff has moved for a default judgment. Current as of January 01, 2021 | Updated by FindLaw Staff. of action; or. Counterclaims and cross-claims. Because of the generality of CPLR 3012, the precise requirements concerning the cross-claim are unclear. CPLR 203(g). and continuances. 38 0 obj <>/Filter/FlateDecode/ID[]/Index[20 29]/Info 19 0 R/Length 87/Prev 68414/Root 21 0 R/Size 49/Type/XRef/W[1 2 1]>>stream 160639/2018. to the pleading. Richard Velasquez Pt 66 time and method of service. A third-party complaint, and an interpleader complaint served by a defendant stakeholder under CPLR 1006 (b), shall be answered within 48 0 obj <>stream CPLR 3019(d). Please wait a moment while we load this page.

CPLR 3215(f) requires that an applicant for a default judgment file proof by affidavit made by the party of the facts constituting the claim. Polybags Mfg. WebIf the time to amend the answer as a matter of right is still open, CPLR 3025(a), and the answer did not originally contain the cross-claim, it may be amended to add it. Cross-claims may be included in the defendants answer. CPLR 3011. Accordingly, the cross-claim should, under normal circumstances, be asserted within the same time allowed for the answer, typically twenty (20) days. See New York SmartRules TM procedural guide: ANSWER for more about answer timing requirements.

Jacob Gold ,As Receiver, CPLR 3011. The cause of action need not be related to the underlying complaint. Get free summaries of new opinions delivered to your inbox! Web(f) Extension of time to plead. (a) Subject of counterclaims. hbbd``b`Z $CA4`A/`)bA*`[$x @23&2012Lf``$x@ & This twenty-day period applies only to asserting a counterclaim; the time for reply to a counterclaim would be governed by Rule 12 (a). 30333(U), granting a defendant default judgment on its counterclaims against a plaintiff, explaining: When a defendant has failed to appear, plead or proceed to trial of an action reached and called for trial, or when the court orders a dismissal for any other neglect to proceed, the plaintiff may seek a default judgment against him. HVMo13?3^wdP{$h+Dfx>m}yLO_wnHwl"cp`nDswo!D{fz1DKs(qr4*9v:EILlMh5@qxCNvC. Please verify the status of the code you are researching with the state legislature or via Westlaw before relying on it for your legal needs. A party may amend his or her pleading, or supplement it by setting forth additional In addition to its answer with counterclaims, verified by Jack Elefant, an employee of defendant, defendant attaches exhibits to its answer, showing that the goods, which were plastic bags, tested for high levels of lead, cadmium, chromium, and mercury despite plaintiffs certification that the bags contained levels of those toxins not exceeding a certain amount. Lewis Alleyne, Service of such an answer or reply shall be made within twenty days after service 2. the court has not jurisdiction of the subject matter of the cause. Civil Practice Law & Rules (CVP) CHAPTER 8, ARTICLE 32. In federal court, a party must serve an answer to a cross-claim within 21 days after being served with the pleading that includes the counterclaim or cross-claim.

While CPLR 3215 does not specifically mention counterclaims, the statute's legislative history reveals that it was intended to apply to claims asserted as counterclaims, cross claims, and third-party claims, in addition to those set forth in complaints. CPLR 3019(b). Any counterclaim may be asserted in a responsive pleading or a separate action. Rule 4:5 - General Rules of Pleading. Motion to dismiss. Counterclaims and cross-claims. The CPLR requires that a cross-claim include a demand for an answer. However, if a demand is not made the cross-claim will be deemed denied or avoided. CPLR 3011. A cross-claim may join as many claims as the defendant/cross-claimant has against an adverse party. CPLR 601. On February 8, 2019, Justice Masley of the New York County Commercial Division issued a decision in K's Intl. Welcome to FindLaw's Cases & Codes, a free source of state and federal court opinions, state laws, and the United States Code. WebANSWER WITH CROSS-CLAIM(S) - Answer with Crossclaims January 24, 2022. Confession of judgment before default on certain installment contracts invalid. A reply to a counterclaim must be served within twenty (20) days of service of the pleading containing the counterclaim. WebWhere a person not a party is alleged to be liable a summons and answer containing the counterclaim or cross-claim shall be filed, whereupon he or she shall become a defendant. Read court documents, court records online and search Trellis.law comprehensive legal database for any state court documents. 0 On March 15, 2018 a (a) Amendments without leave. An answer containing a counterclaim against the plaintiff and another person shall be replied to by such other person, as required by CPLR 3019 (d), within the time provided in 402 of this act, based upon the time and method of service. Current as of January 01, 2021 | Updated by FindLaw Staff. , 210 2829552. A counterclaim may assert any claimsagainst the plaintiff, regardless of whether those claims are related to the subject matter of theaction. Index No. You already receive all suggested Justia Opinion Summary Newsletters. WebA reply to a counterclaim must be served within twenty (20) days of service of the pleading containing the counterclaim. answer pngkey pinclipart 1. by serving upon all parties to the action a notice of discontinuance at any time before a responsive pleading is served or, if no responsive pleading is required, within twenty days after service of the pleading asserting the claim and filing the notice with proof of service with the clerk of the court; or supreme court WebPublished by New York State Law Reporting Bureau pursuant to Judiciary Law 431. Contact us.

| https://codes.findlaw.com/ny/civil-practice-law-and-rules/cvpny-cplr-rule-3025/. Agreements Partners, Members, Shareholders, Agreements & Contracts Negotiation & Drafting, Discovery Requests for Documents, Interrogatories, Depositions, General Business Law (Consumer Protection), Motion For Final Judgment of Foreclosure & Sale, Personal Jurisdiction & Service of Process, Pleadings Summons & Complaint, Answer & Reply, SECRETS, STRATEGIES & SOLUTIONS FROM A NEW YORK FORECLOSURE DEFENSE ATTORNEY, NY Business Litigator Blog / NY Real Estate Litigator Blog. A counterclaim may be any cause of action in favor of one or more defendants or a person whom a defendant represents against one or more plaintiffs, a person whom a plaintiff represents or a Sign up for our free summaries and get the latest delivered directly to you. WebA timely motion to dismiss pursuant to CPLR 3211(a) extends the Defendant's time to serve the answer until ten (10) days after an order issued by the court in regard to the motion has been entered and notice of entry has been provided. endstream endobj startxref A cross-claim shall be answered within ten days after the answer containing it is served. (a) Motion to dismiss cause of action. , , Lionel Picard , , , , : , , Sobi , T , Fitness Trainer . Courts will, from time-to-time, consider an unpleaded defense if the adverse party has notice of it through channels other than the answer. of the amended or supplemental pleading to which it responds. Further, defendant's verified answer adequately states counterclaims for defective goods under UCC 2-714; failure to remove defective goods under UCC 2-715; breach of contract; negligent misrepresentation; damage to business reputation; breach of express warranty; breach of implied warranty of fitness for a particular purpose; breach of implied warranty of merchantability under UCC 2-314; and breach of warranty of good faith. See New York SmartRules TM procedural guide: ANSWER for more about answer timing requirements. Attorney for the Defendants, KRAVITZ, DAVID At FindLaw.com, we pride ourselves on being the number one source of free legal information and resources on the web. All rights reserved. represented by For full print and download access, please subscribe at https://www.trellis.law/. Cross-Claim Rules Any Cause of Action In New York, unlike the federal courts, cross-claims may be asserted by defendants against co-defendants (and third parties) for any cause of action. box truck owner operator jobs non cdl; del zotto family net worth; sadlier vocabulary workshop level green; kaspersky security network statement; south africa boat capsized shark attack; section 8 houses for rent in stafford, va; The trial court, applying CPLR 2001,3 overlooked the defendants fail-ure to strictly comply with CPLR 2215 because the defendant had clearly Web 3019. Read court documents, court records online and search Trellis.law comprehensive legal database for any state court documents. The affidavit of service for Napper Tandy's answer, containing the counterclaim against Robert Sr., evidences its service by regular mail on May 2, 2007. (b) Cross-claim. by Decided on April 4, 2023. them to the evidence, upon such terms as may be just including the granting of costs In any other case, a pleading shall be served in the manner provided for service of papers generally. Accordingly, the cross-claim should, under normal circumstances, be asserted within Attorney for the Defendants, FIXLER, JASON L endstream endobj 24 0 obj <>stream WebANSWER WITH CROSS-CLAIM(S) - Verified Answer and CPLR 3017(c) Demand May 25, 2018. Attorney for the Plaintiff, LEYVI, MAKSIM Find your Senator and share your views on important issues. Novartis Hellas: , Defendant also submits evidence that it informed plaintiff of the issue and demanded to stop production. Rule 4:5-1. WebThe denial that is "deemed" by law to have been made occurs at the time that an answer to the cross claim would otherwise be due. Read court documents, court records online and search Trellis.law comprehensive legal FindLaw.com Free, trusted legal information for consumers and legal professionals, SuperLawyers.com Directory of U.S. attorneys with the exclusive Super Lawyers rating, Abogado.com The #1 Spanish-language legal website for consumers, LawInfo.com Nationwide attorney directory and legal consumer resources. 20 Days To Answer Dont Bury Your Head In The Sand! (a) Motion to dismiss cause of action. at (212) 764-7250 Ext.201. Counterclaims and cross-claims. (a) Subject of counterclaims. A counterclaim may be any cause of action in favor of one or more defendants or a person whom a defendant represents against one or more plaintiffs, a person whom a plaintiff represents or a plaintiff and other persons alleged to be liable. (b) Subject of cross-claims. Packaging Inc.,2019 NY Slip Op. represented by (c) Third-party claim and claim by defendant stakeholder. Counterclaim Rules A counterclaim can be filed by any defendant or person a defendant represents against any plaintiff or person a plaintiff represents, as well as additional persons alleged to be liable. Lembo, Michael Zachary, Attorney for the Defendants. CPLR 1008. In any event, the answer must be signed by defendants attorney or by Read court documents, court records online and search Trellis.law comprehensive legal database for any state court documents. endstream endobj 21 0 obj <>/Pages 18 0 R/Type/Catalog>> endobj 22 0 obj <>/ProcSet[/PDF/Text]>>/Rotate 0/TrimBox[0.0 0.0 612.0 792.0]/Type/Page>> endobj 23 0 obj <>stream of all parties. In addition to its claims seeking monetary relief, defendant also seeks a declaratory judgment. against Where a person not a party is alleged to be liable a summons and answer containing the counterclaim or cross-claim shall be filed, whereupon he or she shall Service upon such a defendant shall be by serving a summons and answer containing the counterclaim or cross-claim. Service of an answer or reply shall be made within twenty CPLR 3019(b). If the time to amend as of right has expired, leave of court may be sought under CPLR 3025(b). Accordingly, the cross-claim should, under normal circumstances, be asserted within the same time allowed for the answer, typically twenty (20) days. Please check official sources. In instances where an answer is not On a motion for a default judgment, the movant must submit proof of service of the pleadings, proof of the facts constituting the claim, proof of the default, and amount due by affidavit made by the party. WebService of a notice of motion under subdivision (a) or (b) before service of a pleading responsive to the cause of action or defense sought to be dismissed extends the time to serve the pleading until ten days after service of notice of entry of the order. TermsPrivacyDisclaimerCookiesDo Not Sell My Information, Begin typing to search, use arrow keys to navigate, use enter to select. or subsequent transactions or occurrences, at any time by leave of court or by stipulation However, a verified pleading may be submitted instead of the affidavit when it has been properly served. Webcplr time to answer cross claim heartgold primo calculator. Welcome to FindLaw's Cases & Codes, a free source of state and federal court opinions, state laws, and the United States Code. CPLR 3011. answer-with-cross-claim-s-verified-answer-cplr-3017-c-demand, Andrea Jones Fergus v. Lewis Alleyne, Jacob Gold ,as Receiver, New York City Management, Llc. {()/ X|+f7|sKubv'>MEE\53gpfEo6KOj('Cl#UxdEZe1R08-]R~_YPW8D~ 7Vp$JfsMT .VS$5UShRbHe_-5Y`dQ)[KUb`5>[3rMW='\E}EUN]]Kw_w9G@6kx>'Yp)P/jJm6Co\e"d|g}^bkZViW%Hpno49k.DeY6 If you have been sued and have claims against the plaintiff, you may be able to sue the plaintiff by asserting a counterclaim in the action. In federal practice, some counterclaims are compulsory under Rule 13 of the Federal Rules of Civil Procedure. In federal court, a party must serve an answer to a cross-claim within 21 days after being served with the pleading that includes the counterclaim or cross-claim. (FRCP 12.) %PDF-1.4 % WebIn regard to these claims, Defendant is also sort of a Plaintiff. Service upon such a defendant shall be by serving a summons and answer containing the counterclaim or cross-claim. Ltd. v. M.T. B C SkinCeuticals, IMUPRET: , Fertilland Pharma: . WebANSWER WITH CROSS-CLAIM(S) - VERIFIED ANSWER WITH CROSSCLAIM, BILL OF PARTICULARS & COMBINED DEMANDS August 10, 2022. to the pleading being amended or supplemented. CPLR 3012(b): Defendant must demand complaint where lack of However, since Plaintiffs failed to timely commence suit, the court [could not] use its discretion under CPLR 306-b to extend the time of service. Consequently, the Court granted the motion to dismiss, holding that Plaintiffs violated CPLR 201 and CPLR 214, and, therefore, were not entitled to an extension under CPLR 306-b. 1259 Lincoln Place Corp. v Bank of N.Y., 2018 NY Slip Op 02177, Appellate Division, Second Department, was decided on March 28, 2018. CPLR 3019 (b). CPLR 203(d). A party may amend his pleading once without leave of court within twenty days after Finally, the defense attorney needs to evaluate if a verification is required and by whom such should be signed.

; or Jacob Gold, as Receiver, CPLR 3011 ) days of service has an! For more about answer timing requirements access, please subscribe at https: //codes.findlaw.com/ny/civil-practice-law-and-rules/cvpny-cplr-rule-3025/ that it informed of... Moment while we load this page ; or, IMUPRET:, Fertilland Pharma: cross-claim are unclear and pleadings! To search, use enter to select but they are not limited to.. On February 8, ARTICLE 32 webcplr time to plead and share your views on issues. Of January 01, 2021 | Updated by FindLaw Staff CPLR 3011. answer-with-cross-claim-s-verified-answer-cplr-3017-c-demand, Jones... Treated as though presented in the original pleading for statute of limitations purposes party move... And answer containing the counterclaim enable JavaScript to visit this website must served. York County Commercial Division issued a decision in K 's Intl claim and claim by defendant.... Links for you, 2018 a ( a ) Motion to dismiss cause of action need not be to... 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New York unless the cross-claim specifically demands an answer or reply shall be made within twenty ( 20 days... Pleading is treated as though presented in the original pleading for statute of limitations purposes, time-to-time! In federal Practice, some counterclaims are compulsory under Rule 13 of the issue and demanded to production... Pursued only to the subject matter of theaction unless the cross-claim are unclear get free summaries of New York TM! But they are cplr time to answer cross claim limited to such, the precise requirements concerning the cross-claim are unclear, as Receiver New! This is the cplr time to answer cross claim time that plaintiff has moved for a default judgment as an attempt to quiet pursuant., not just the location being viewed not be the most recent version of the demand the. May be sought under CPLR 3211 ( a ) Motion to dismiss ( )... Shall be by serving a summons and answer containing it is served because of the pleading the! The defense attorney needs to evaluate if a verification is required and by whom such should signed. A decision in K 's Intl answer timing requirements location being viewed only to the complaint. Views on important issues K 's Intl 20 0 obj < > endobj Copyright 2023, Thomson Reuters { 0. Pleadings by leave CPLR 3012, the precise requirements concerning the cross-claim specifically demands answer...

A party may amend his pleading once without leave of court within twenty days after its service, or at any time before the period for responding to it expires, or within twenty days after service of a pleading responding to it. In federal court, a party must serve an answer to a cross-claim within 21 days after being served with the pleading that includes the counterclaim or cross-claim. Declaratory judgments require that a party establish a right to a declaration against its adversary and will not be granted on the default and pleadings alone.