110 Ny Definitions Ny Practice 2011

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01 Motion to Dismiss

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Under CPLR § 3211, the court properly grants a motion to dismiss where, taking the allegations of the complaint in the light most favorable to the plaintiff, the complaint fails to state a cause of action on which relief must be granted.

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02 Motion for Summary Judgment

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Under CPLR § 3212, the court properly grants a motion for summary judgment where, taking the affidavits and other materials in the case in the light most favorable to the non-moving party, the case presents no triable issue of fact, but may be decided entirely as a question of law.

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03 Complaint

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Under CPLR, the complaint is plaintiff's pleading specifying the transaction or occurrence that is subject to the matter and explains the essential elements of plaintiff's cause of action.

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04 Summons

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Under CPLR, the summons advises the defendant that the plaintiff is suing the defendant in a particular court.

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05 Residence

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Under CPLR, residence is the place where a person lives for a fair amount of time with some degree of permanency. A person may have multiple residences.

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06 Domicile

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Under CPLR, domicile is the one residence at which the person intends to remain indefinitely and is treated as the principal home.

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07 Counterclaims

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Under CPLR, a counterclaim is a claim by the defendant against the plaintiff that may be asserted in the answer.

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08 Answer

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Under CPLR, an answer is the defendant's pleading which is in response to the plaintiff's complaint. It contains denials, defenses or counterclaims asserted by the defendant.

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09 Affirmative Defense

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Under CPLR, affirmative defenses are defenses that the defendant may raise in his answer.

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10 Cross-Claims

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Under CPLR, cross-claims are asserted by one defendant against another in a case where there are co-defendants.

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12 Reply

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Under CPLR, reply is a plaintiff's pleading in response to the defendant's counterclaim.

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13 Subject Matter Jurisdiction

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Under CPLR, subject matter jurisdiction is the power of a court to adjudicate a claim by grant of constitutional or legislative authority.

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14 Personal Jurisdiction

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Under CPLR, the following are the bases for personal jurisdiction over a defendant:

1. Physical presence in NY
2. Doing business in NY
3. Domicile
4. Long Arm Jurisdiction
(a) Transactions of business in NY
(b) Plaintiff's claim arises from a tortious act in NY
(c) Claim arises from defendant's tortious act outside NY producing injury in NY
(d) claim arises from the defendant's ownership or possession of real property in NY
(e) claim arises from a contract made outside NY, in which the defendant agrees to supply goods or services in NY
5. Non-Resident Motorist
6. Express Consent.

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15 Bills of Particulars

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Under CPLR, bills of particulars are elaborations of general statements in the complaint made after a demand for particulars is served by the defendant.

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16 Arbitration (CPLR Article 75)

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Under CPLR, arbitration is a private procedure based on contract for the binding resolution of disputes by one or more arbitrator.

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17 Collateral Estoppel (Issue Preclusion)

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Under CPLR, collateral estoppel is also called issue preclusion. Under the doctrine of collateral estoppel, an issue fully litigated in a prior trial (decided on the merits) cannot be relitigated in a subsequent trial.

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18 Res Judicata (Claim Preclusion)

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Under CPLR, res judicata is also called claim preclusion. Under the doctrine of res judicata, a litigant is barred from re-litigating a claim already decided on the merits.

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19 Tolling

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Under CPLR, tolling extends the applicable time period in which the action may be commenced.

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20 Preliminary Injunction

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Under CPLR, a preliminary injunction maintains the status quo while an equity action is pending.

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21 Statute of Limitations

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Under CPLR, the statute of limitations is the time period in which a lawsuit must be commenced. The following are the most common statute of limitations:

- 6 years: Actions concerning contracts not under the UCC; actions for fraud, shareholder derivative actions
- 4 years: Actions concerning contracts under the UCC
- 3 years: Actions for negligence, strict liability, and general malpractice
- 2,5 years: Actions concerning medical malpractice
- 2 years: Actions for wrongful death
- 1 year and 90 days: Claims against a municipality
- 1 year: Intentional torts
- 4 months: Special proceedings, such as certiorari or mandamus
- 90 days: The limit to serve a notice against municipality.

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22 Transfer and Removal

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Under CPLR § 325, transfer and removal occurs when a case is transferred from one court to another because another court is more appropriate to make the final disposition of the matter.

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23 Forum Non Conveniens

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Under CPLR, forum non conveniens is the power of the court to dismiss an action to be heard in a different venue where the court finds that the convenience of the witnesses and interest of justice requires it.

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24 Notice

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Under CPLR, the notice contains a brief statement of the nature of action and type of relief sought.

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25 Nailing

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Under CPLR, nailing refers to the act of affixing the summons to the property that does not damage the property.

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26 Amended Summons

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Under CPLR, at any time, in its discretion and upon such terms as it deems just, the court may allow any summons or proof of service of a summons to be amended, if a substantial right of a party against whom the summons issued is not prejudiced. (CPLR § R305)

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27 Supplemental Summons

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Under CPLR, where, upon order of the court of by stipulation of all parties or as of right pursuant to section 1003 (Non-joinder & Minjoinder), a new party is joined in the action and the joinder is not made upon the new party's motion, a supplemental summons specifying the pleading which the new party must answer shall be filed with the clerk of the court and served upon such party. (CPLR § R305)

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28 Appearance

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Under CPLR, appearance is where the defendant consents to the court's exercise of jurisdiction.

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29 Pleading

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Under CPLR, a pleading is a formal written statement of a party's claims or defenses.

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30 Verification

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Under CPLR, verification is a statement under oath certifying that the allegations contained in the pleading is the truth.

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31 Permissive Joinder

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Under CPLR, permissive joinder is the process by which plaintiff or defendants may join if there is a common question of law or fact arises with respect to each of the parties to be joined.

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32 Non-Joinder

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Under CPLR, non-joinder is the failure to include one or more parties that should have been party to a suit.

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33 Minjoinder

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Under CPLR, misjoinder occurs where an improper party is in the cause of action. Dismissal is not appropriate. The improper party is merely dropped.

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34 Interpleader

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Under CPLR, interpleader is a legal device available where a party is under a conceded obligation to pay money but has been confronted with conflicting claims as to the performance of the obligation.

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35 Impleader

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Under CPLR, impleader is a procedure where the defendant joins another party to the lawsuit on the ground that the other party may be liable to the defendant in whole or in part. This is typical in a claim of indemnification or contribution.

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36 Contribution

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Under CPLR, two or more persons who are subject to liability for damages for the same personal injury, injury to property or wrongful death, may claim contribution among them whether or not an action has been brought or a judgment has been rendered against the person from whom contribution is sought.

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37 Implied Indemnification

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Under CPLR, implied indemnification occurs when a person is held vicariously liable by virtue of his or her relationship with the tortfeasor.

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38 Contractual Indemnification

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Under CPLR, [contractual indemnification in present in] a contract in which one party expressly assumes responsibility if the other party is sued over the subject matter of the agreement.

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39 Provisional Remedies

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Under CPLR, provisional remedies provide a measure of security to the plaintiff for the enforcement of potential judgment.

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40 Temporary Restraining Order (TRO)

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Under CPLR, a temporary restraining order maintains the status quo until the motion for preliminary injunction is decided.

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41 Attachment

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Under CPLR, attachments provide a security for the enforcement of monetary judgment.

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42 Receivership

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Under CPLR, a receivership is where a person is appointed by the court to manage property in defendant's possession by taking over management of defendant's property.

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43 Notice of Pendency

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Under CPLR, notice of pendency gives record notice to any potential buyer or mortgagees that any interest that they acquire in the property will be subordinate to plaintiff's interest.

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44 Special Proceedings

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Under CPLR, special proceedings are a method of obtaining judicial relief in an expedient manner and have the characteristics of both a plenary action and motion. The party initiating the special proceeding is called the petitioner, and opponent is the respondent.

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45 Certiorari

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Under CPLR, certiorari is a special proceeding under Article 78 to obtain judicial review of a quasi-judicial administrative action by a trial like hearing and determination made by an agency.

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46 Prohibition

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Under CPLR, prohibition is a special proceeding under Article 78 to obtain judicial review of power exercised by a judicial officer that exceeded his jurisdiction. The excess power exercised must be gross in nature.

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47 Mandamus

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Under CPLR, mandamus is a special proceeding under Article 78 that seeks judicial direction to compel an agency to perform an act required by law.

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48 Alternative Dispute Resolution (ADR)

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Under CPLR, alternative dispute resolution refers to various methods to resolve issues other than by litigation.