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28 Cards in this Set
- Front
- Back
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General Personal Jurisdiction
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General Jurisdiction:
(1) presence (in NY at the time of service) - exceptions: i. enticement - fraudulent luring ii. immunity - where a non-domiciliary is voluntarily in a state for another proceeding. Applies only to the civil (!) suit which arises out of the same transaction involved in the criminal (!) proceeding (2) doing business in NY - for unauthorized foreign corporations. Test: whether the in-state activity is sufficiently substantial. Factors to consider (at the commencement of the action): i. employees and agents engaging in business on a continuous, regular and systematic basis in NY ii. a physical facility in NY staffed by at least one employee iii. mere sales through independent retailers or advertising is insufficient iv. transient presence of a corporate officer is insufficient even if the officer is served in NY (3) domicile (at the commencement of the action) - can be served anywhere in the U.S. |
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Specific Personal Jurisdiction
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(meaning specific to NY activity or within the scope of consent)
(1) Consent: i. by contract ii. by designating an in-state agent for service of process iii. by voluntary appearing - typically, by service of a responsive pleading without challenging jurisdiction (2) statutory: i. non-resident motorist - over an automobile accident claim which arises from a non-domiciliary motorist's ownership or use of an automobile on a NY roadway. Service of process: personally on D outside the state or by serving one copy on the NY Secretary of State and mailing another copy to D by certified mail to D's out of state residence ii. long arm iii. matrimonial jurisdiction |
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In Rem Jurisdiction
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is not personal because it is jurisdiction over a thing or status within the court territory when personal jurisdiction may not be obtained. Service must be made as usual, but as the last resort - by publication.
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Long Arm Jurisdiction
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P's claim must arise from the acts related to D's NY activity:
(1) transactions of business in NY - a lower standard than "doing business," includes phone calls or letters made or sent to NY and isolated acts (2) tortious act in NY - except defamation actions where a mere manifestation of the injury in NY is insufficient (3) tortious act outside of NY causing injuries in NY (an exception for defamation actions) + i. D regularly does or solicits business in NY ii. D derives substantial revenue from goods or services that are used or consumed (rendered) in NY, OR iii. D reasonably foresees the act to have consequences in NY AND derives substantial revenue from interstate or int'l commerce (4) D's ownership or possession of real property in NY (5) supplying goods or services in NY - the contract must be economically significant; sending money or making payments is insufficient |
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Matrimonial Jurisdiction
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One of the following must be satisfied:
(1) NY was the matrimonial domicile of the spouses prior to separation (2) abandonment in NY (3) D's monetary obligation accrued under an agreement executed in NY or (4) under the laws of NY Process of service - a preference to personal delivery: a court order must be obtained for leave and mail or nail and mail |
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Service of Process
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Process must be served on D within 120 days from filing with the court clerk. Service must be made by a person over 18 and not a party to the case (a party's attorney or guardian ad litem is not considered a party!). In cases of leave and mail and nail and mail, service is complete 10 days after the proof of service is filed.
(1) personal delivery - id D refuses to accept, the summons may be left within D's immediate vicinity (2) upon a designated agent - in a written commercial contract for a dispute arising from the contract (3) leave and mail - by delivery to a person of suitable age and discretion at D's actual dwelling or actual place of business AND by mailing a copy by regular mail to D's actual place of business OR last known residence. These two steps must be performed within 20 days of each other in any order and within 120 days from the filing. Proof of service (an affidavit by the server) must be filed, but it is not a jurisdictional defect. (4) nail and mail - by affixing at D's actual dwelling or actual place of business AND mailing a copy by regular mail to D's actual place of business or last known residence. Before resorting to this method, the server must make several attempts of leave and mail. The same time limits and requirement for proof. (5) expedient service - a court-ordered service after an ex parte application if other methods are impracticable. It must be a reasonable alternative method. (6) by first class mail - with two copies of statutory acknowledgement forms and prepaid and addressed return envelopes. Service is effective only if D signs and returns one of the forms within 30 days after the receipt. Service is complete when D mails back the signed form. If the acknowledgement is not returned, D will be required to pay for the second service. The method may be used regardless of whether D is within or outside of NY, applicable to all Ds, except infants and mentally incapacitated for whom guardians have been appointed. The return of the acknowledgement does not mean that D conceded to jurisdiction! Additional considerations: (1) service on infants - the infant must be named on the summons, but process must be served on an adult (if the infant is married to an adult, service must be made on the spouse). If the infant is 14 or older, service must be made on an eligible adult AND the infant (2) service on a mentally incompetent - if there is an appointed guardian, service must be made on both; if there is no guardian - only on the incompetent |
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Service of Process on a Corporation
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(1) pursuant to the CPLR - personal delivery anywhere in the U.S. to the office, director, managing or general agent, cashier or assistant, or agent authorized by appointment by law
(2) pursuant to the BCL - two copies to the NY Secretary of State (3) unlicensed foreign corporations - one copy of process to the NY Secretary of State and one copy to the corporation by certified mail |
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Proper Venue
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Examples:
(1) causes of actions involving title to property - the county in which some part of the property is located (2) all other non-local causes of action - county where any of the parties reside (3) if neither party is a NY resident - any county in NY (4) a cause of action against a NY corporation or authorized foreign corporation - the county where the principal place of business is located (5) a suit against a municipality - the county where the suit arose Change of venue is discretionary and can be based on the impossibility of an impartial trial, the convenience of witnesses, and to serve the ends of justice. The court may not change venue without a motion! The court may transfer the case to another county, even if the parties' agreement provides for the specific venue, if there is evidence that an impartial trial cannot take place in that county. |
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Service Outside the State
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can be made by the same methods by:
(1) any NY resident who is at least 18 years old (2) anyone authorized to serve process in the jurisdiction (3) any attorney licensed in the jurisdiction |
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The SOL for Actions by Victims of Crimes
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(1) 7 years - of the date of the crime for civil actions against convicted Ds
(2) 10 years - of the date of conviction for civil actions for serious crimes, such as felonies (3) 3 years - even if the 10-year limit has run, the action may still be commenced for up to 3 years from the discovery of D's receipt of money or property from any source |
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The SOL for Malpractice
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(1) for general malpractice - 3 years from the date of the malpractice. For architects, the cause of action accrues when the work is completed or when the architect-client relationship terminates. Exception for a specific, continuous service - the action accrues upon termination of the relationship
(2) for medical malpractice - 2 years and 6 months from the date of the malpractice. Exceptions: i. continuous treatment by D for the same condition - 2 years and 6 months from the date of the last treatment ii. foreign objects exception - 2 years and 6 months from the malpractice OR 1 year from the date of discovery of facts that would have led to the discovery of the object iii. fraudulent concealment - if P reasonably relies on D, D may be estopped from pleading the SOL |
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Some SOL
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See the list of SOL in the book! (6 years - the default SOL for all civil actions not specified by the statute)
(1) actions based on fraud - 6 years from the date of the fraud or 2 years after the fraud was or should have been discovered, whichever is longer (2) products liability - 4 years from the date of tender (3) negligence and strict liability - 3 years from the date of the injury. Exceptions: i. for injuries caused by latent effects of exposure to any substance, from the date of discovery of the injury or when P should have discovered the injury ii. claims based solely on the presence of a toxic substance that may potentially cause injury - accrue when D breaches a duty to remove the substance iii. if P does not know the cause of injury at the time of discovering the injury, 1 year from discover of the cause if discovery of the cause is less than 5 years after the discovery of the injury AND technical or medical knowledge regarding the relationship between the injury and its cause could not have been determined within 3 years of the discovery (4) 6 years for a third party claim by D-purchaser who seeks indemnification from a third party D-manufacturer. The claim accrues when the purchaser pays the manufacturer (5) 6 months of the termination of the prior action - P may commence a new action that was based on a timely action that was terminated if the new action is based on the same transaction or occurrence, unless the action was terminated due to: i. termination on the merits ii. voluntary discontinuance iii. dismissal for neglect to prosecute iv. dismissal for lack of personal jurisdiction (6) 20 years - to enforce maintenance |
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Tolling
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(1) absence from NY - the period of time that D is absent that prevents the exercise of jurisdiction over him is tolled
(2) P's disability - if P is disable (infancy or incompetency) at the time the cause of action accrued, the time period is tolled until the disability is removed: i. if the SOL is 3 years or more - P has the remaining time left or 3 years from the removal of the disability, whichever is longer ii. if the SOL is less than 3 years - P has the remaining time period iii. there is a limit of 10 years overall for commencement of an action from time of accrual if the claim is by an infant for medmal OR the claimant was insane at the time of the accrual (3) P's death - if the cause of action survives, the action may be commenced within the SOL or within one year after death (4) D's death - tolls the SOL for 18 months |
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Attachment
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Available if:
(1) the cause of action seeks damages and (2) i. D is an unlicensed foreign corporation or nondomiciliary of NY, OR ii. D is about to conceal or remove assets from NY with the intent to defraud creditors or frustrate the enforcement of a judgment Requirements for a motion: (1) an affidavit showing the appropriate grounds (2) a showing of the probability of success on the merits (3) an undertaking Additional requirements for an ex parte motion: (+4) a hearing after the levy for the purpose of giving D the opportunity to dispute the attachment (+5) after the levy, P must make a follow up motion on notice to confirm the ex parte order: i. if D is an unlicensed foreign corporation or nondomiciliary of NY - no later than 10 days after the levy ii. if D is fraudulently moving assets - no later than 5 days after the levy |
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Relation Back
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Generally, a counterclaim must be asserted within its SOL.
(1) However, a counterclaim is also timely if it would have been timely as of the date of P's commencement of the action as long as it arises out of the events giving rise to P's claim. (2) if a claim (not counterclaim!) is asserted in an amended pleading, it is measured for timeliness as of the date of service of the amended pleading. However, a claim asserted in an amended pleading relates back to the time of commencement of the original action if the original pleading gives notice of the events on which the newly-added cause of action is based. (3) for newly added parties after the SOL expires - if: i. both claims arise from the same conduct ii. the parties share joint or vicarious liability iii. the new party knew or should have known the action would also have been brought against him |
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Discovery Devices
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If a party fails or refuses to cooperate to resolve the suit, the other party can file a motion to compel disclosure. Discovery devices are unavailable until D's service of answer.
(1) deposition - an oral examination of a party or a witness under oath conducted by attorneys without the presence of a judge. Notice must be served on the attorney of the other party at least 20 days prior to the deposition date (25 days if served by mail). Deposition of a nonparty can be obtained by serving a subpoena on the nonparty at least 20 days prior to the deposition with service of notice on all parties. Depositions of nonparties can be introduced only if the person against whom it is offered has notice or was represented at the deposition, AND the witness is deceased, aged, infirmed, located more than 200 miles from place of trial, cannot be located, or in other exceptional circumstances (2) discovery and inspection - can be done on a request; may examine the evidence, photocopy, test, photograph. Discovery and inspection from a nonparty can be obtained by service of a subpoena. (3) written interrogatories - answers to interrogatories or any objections must be served within 20 days and must be under oath. Amendments must be made by motion. If the case is based SOLELY on negligence, depositions and interrogatories are available only by court order. |
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Grounds for Motion to Dismiss
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(1) case resolved - if there is:
i. an arbitration award or judgment ii. a payment iii. a release (2) formalities: i. SOL ii. SOF iii. lack of legal capacity (including a foreign corporation not registered in NY or an unauthorized agent) Preclusions: i. collateral estoppel ii. res judicata iii. discharge in bankruptcy Jurisdiction: i. no subject matter jurisdiction ii. no personal jurisdiction iii. no in rem or quasi in rem jurisdiction |
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Motions to Correct Pleadings
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(1) motion for a more definite statement if the pleading is vague or ambiguous
(2) motion to strike any scandalous or prejudicial matter unnecessarily inserted in the pleading |
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Disclosure in Case of a Qualified Privilege
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The court may require disclosure if:
(1) the materials can no longer be reproduced, OR (2) refusing the disclose will result in injustice or undue hardship |
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Disclosure from Nonparties
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is required if:
(1) W is leaving NY (2) W is absent in NY (3) W resides more than 100 miles from the venue (4) there are reasonable grounds that W will be unavailable at the time of the trial (5) W was authorized to practice medicine, dentistry and provided services or has been retained as an expert W by the party demanding disclosure (6) any extraordinary circumstances explained with notice |
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Provisional Remedies
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(1) temporary restraining order - by an ex parte motion in an equity action if P demonstrates that prior notice to D may result in significant prejudice to P. Effective until the resolution of the preliminary injunction
(2) preliminary injunction - by a motion on notice only in equity actions. P must provide an undertaking and show: i. the probability of success on the merits ii. irreparable injury if an injunction is not granted iii. the balance of equities weighs in P's favor +iv. the injunction will not be a disservice to the public interest (3) attachment (4) receivership - by a motion on notice in an equity claim in which specific property is the subject matter of the action, AND there is a danger that D will injure or destroy the value of the property (5) notice of pendency - available in equity actions in which a judgment will have a direct effect on title, possession or use of real property. Must file a notice of pendency with the county clerk where the property is located, can be filed without a court order. No undertaking required. Effective for 3 years after filing + P can move for a 3-year extension but only before the expiration of the first term. D can make a motion to cancel. |
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Effect of Release
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When a release or a covenant not to sue or not to enforce a judgment is given by P to a co-D liable for the same injury in tort, it does not discharge any of the co-Ds from liability, unless its terms expressly so provide, but it reduces the claim of the releasor against the other co-Ds to the extent of:
(1) any amount stipulated by the release or the covenant (2) in the amount of the consideration paid for it (3) in the amount of the released co-D's equitable share of the damages under Article 14 of the CPLR, whichever is GREATEST |
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Implied Indemnification
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Examples if implied indemnification (by virtue of the relationship. Indemnification can be also contractual):
(1) partners of other partners' tortious conduct in furtherance of the partnership (2) principals for the actions of their agents in furtherance of the agency (3) employers for the acts of their employees in furtherance of the company business |
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Jury Trial
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The following issues are tried by jury (with the exception of equitable remedies), unless the right is waived:
(1) an action for money damages (2) certain actions related to real property, including actions for: i. ejectment ii. dower iii. waste iv. abatement of and damages for a nuisance v. to recover a chattel vi. for determination of a claim to real property under Article 15 of the Real Property Actions and Proceedings Law |
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Necessary Parties
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(1) joint obligors/obligees
(2) corporations in a derivative shareholder's suit (3) an absent party claiming ownership of property sought to be recovered by P (4) a member of a joint venture not joined in a cause of action by another joint venturer against a third party joint venturer (5) beneficiaries of a trust in an action by the other beneficiaries against the trustee seeking accounting |
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Trial and Post-Trial Motions
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Trial motions:
(1) for judgment during trial (directed verdict) - by any party with respect to a cause of action or issue if the moving party is entitled to judgment as a matter of law after the close of the evidence or at any time on the basis of admissions. It does not waive the right to trial by jury or to present further evidence (2) for mistrial, for new trial - at any time during the trial by any party Post-trial motions: (1) after a trial by a jury in the interest of justice OR where the jury cannot agree after being kept together for as long as is deemed reasonable by the court: i. to set aside a verdict or any judgment entered and direct that judgment be entered in favor of a party entitled to judgment as a matter of law ii. for a new trial of a cause of action or separable issue where the verdict is contrary to the weight of the evidence (2) after a trial not by a jury: i. to set aside the court's own decision or any judgment ii. for a new trial of a cause of action or separable issue |
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Grounds to Vacate an Arbitration Award
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(1) corruption, fraud, or misconduct in the arbitration proceeding
(2) the arbitrator's demonstrated bias (3) the arbitrator exceeded his power |
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Article 78 proceedings
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by filing a petition with the clerk of the SC:
(1) certiorari - to obtain judicial review of a quasi-judicial administrative action by a trial like hearing and determination made by an agency (2) prohibition - to obtain judicial review of power exercised by a judicial officer that exceeded grossly his jurisdiction (3) mandamus - to compel an agency to perform an act Article 78 proceedings are not available if an opportunity for an appeal, right to seek release, or determination in a civil or criminal matter is available. Thus, the SOL (4 months) begins to run when the agency's determination becomes final and binding |
