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28 Cards in this Set
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The court will enjoin a 'LIE' to file a 'SLOB'
Preliminary Injunction is not granted unless plaintiff demonstrates “LIE” Grounds For Preliminary Injunction are “LIE”
(1) LIKELIHOOD of P’s success
• Court asks if P has likelihood of success.
(2) IRREPERABLE injury to P unless the PI is granted
• Irreparable injury is either:
o 1) that which cannot be repaired or restored
o 2) where P cannot be adequately compensated by money
o 3)where money damages cannot be easily measured by the court*
That is determining damages would be difficult and complex for the court.
(3) EQUITIES when balanced by the court clearly tip in P’s favor
• Here, the court will use the COMPARATIVE HARDSHIP TEST by weighing the harm that the moving party would suffer if the court denied the injunction balanced against the harm the defendant would suffer if the injunction was issued.
• The court will grant the injunction when the Plaintiff presents proof that the comparative harm they would suffer if injunction was denied is significantly
summary judgment has 'LIPS' to kiss
When thinking of Summary Judgment, think LIPS
o (1) Law - the motion can be decided as a matter of Law
o (2) Issues - no Issues of material fact to be litigated except damages or a 3211a issue
o (3) Partial summary judgment - the court can grant Partial summary judgment
o (4) Search - court can Search the record only for issues raised in the motion papers
Dismiss the plaintiff's complaint with 'SPARE RIBS'
o 3211a5 motion to dismiss lists 9 Grounds which can easily be resolved by the court. These grounds SPARE RIBS can be asserted in motion to dismiss and/or in the Defendant’s answer as affirmative defenses.
Statute of limitations
Arbitration & award – claim decided by an arbitrator already
Release given by plaintiff to defendant – either in signed writing or in open court
Estoppel collateral – issue preclusion
Res adjudicata – claim preclusion
Bankruptcy – D’s claim was discharged in bankruptcy – no longer liable for debt
Statute of Frauds – ct will determine this issue soley on documents submitted
• Q: If P’s k action is dismissed on SoF grounds, can P thereafter who detrimentally relied on the unenforceable oral k, commence a second action in quasi-k for quantum meruit for D’s unjust enrichment?
• A: NO! Because of Claim Preclusion (Res Adjudicata).
o R: Even though P has a good claim for quasi-k, under the tran
you must 'FIND CJ' to attach her property
Before the court will grant an attachment order, it must find that an “EXTRAORDINARY CIRCUMSTANCES” exists. Defendant must satisfy at least one of the following “FIND CJ” grounds to qualify for extraordinary circumstances that merits having an order of ATTACHMENT “FIND CJ”-Extraordinary Circumstances –
Grounds For Orders Of Attachment
o FOREIGN corporation not qualified to do business in NY
If D is a Foreign corporation not qualified to do business in NY, then this may be an extraordinary circumstance that merits the court granting an order of attachment.
o INTENT to defraud creditors
If D has an INTENT to defraud creditors, then this may be an extraordinary circumstancing that merits having an Order of Attachment
• INTENT can be shown if D has concealed/transferred assets or is about to do so (constructive fraud)
P’s allegations of intent to defraud, must be more than conclusory (“I believe”) in order to establish this “extraordinary ground”.
before granting a 'LIAR' the court looks for a 'COP'
• The purpose for using a provisional remedy is to maintain the status quo prior to judgment. Generally, courts permit a party to use only 1 provisional remedy in a lawsuit. CPLR 6001 allows party to move for protective order if provisional remedy is being used.
o Provisional remedies are usually requested by plaintiffs but they are available to defendants who assert counterclaims / cross-claims / impleader complaints.
• The 4 PROVISIONAL REMEDIES IN NY are “LIAR”
o L: LIS PENDENS– filing which warns someone not to buy D’s real property because of P’s claim on D’s realty
o I: Preliminary INJUNTION restraining D pending the outcome of the lawsuit.
o A: order of ATTACHMENT attaching D’s NY property as security for payment for the final money judgment.
Note: This is great device but limited.
o R: RECEIVER appointed by court to oversee and preserve property involved in an equitable action.
• Even if P establishes entitlement to provisional remedy, it always discretionary on
a 'BEAR' patient does not need to give informed consent
There is no duty to obtain informed consent if the patient is a BEAR
• Best interests of the plaintiff not to disclose the risks involved because informing would have adversely affected the patient
o Ex: heart attack, tumor, weak heart
• Emergency treatment was required because of imminent danger/threat to patient
o Ex: emergency room
o Patient asked the doctor to proceed regardless of the risks
• Risks were commonly known
a 'DIMPLE FIBS' for one year statute of limitations
1 YEAR SOL – A DIMPLE FIB
• Arbitration award must be confirmed by the Supreme Court within 1 year of the award
• Default judgment
o Defendant has 1 year to open a default judgment from the date the defendant is served with a copy of the default judgment.
o An action to recover excess interest on an usurious loan.
o Usury: charging too high a rate on a loan (in NY, it has to be more than 16%).
• Malicious prosecution
o A pl’s claim for the right to publicity based on a defendant’s unauthorized commercial use of a living person’s name, picture or voice for advertising purposes without the plaintiff’s written consent.
NY only recognizes Right to Publicity of those that are alive.
• Libel and slander
o Claim by tenant against landlord for wrongful eviction including constructive eviction or retaliatory eviction
o Retaliatory eviction is where a landlord retaliates against a residential tenant for reporting health or safety violations in a dwell
'LEAP DAD'S CAT' to circumvent the statute of limitations
o LEAP DAD’S CAT – guidelines for extending/tolling the Statute of Limitations
• The parties lengthened the SoL
• Preventing the defendant from asserting the Statute of Limitations
A written acknowledgement of old debt
Part payment of old debt
Disability of plaintiff
Amending a pleading to add a time barred claim
Death of a party
Service members civil relief act
Counterclaim that is time-barred
Arising claim – that arose outside of NY – where personal jurisdiction (MOP) cannot be obtained
• and then recommencing the same action after the SoL has expired.
a 'SCARF CRIME' lasts six years
o 6 Year SoL = SCARF CRIME
Specific performance of a k
• Breach of Contract actions
o Except: for breach of k for sale of goods (UCC article 2 – has 4 year SoL)
• Loan made without any specific time of repayment is deemed payable on demand on date the loan was first made. a.k.a. “Demand Note”
• SoL on breach of construction k begins when Defendant’s performance is first completed.
o However if a construction flaw causes personal injury, then the personal injury claim accrues on the date of the plaintiff’s personal injury.
o Under federal law, student loan contracts are exempt from the SoL. They are non-dischargeable in bankruptcy unless repayment of the loan would cause the student “undue hardship”
Actions recognized at common law which legislature has not specified a statutory time period.
Reformation of a contract. The 6 years start to run from the date of the alleged error in the contract.
Fraud, deceit or negligent misrepresentati
there was a 'SOFT RAIN' for three years
3 Year SoL - A SOFT RAIN
• Actions which did not exist at common law but were created solely by statute and the statute did not provide a statute of limitations
o These are actions that are purely the creation of a state legislature.
o Ex: real property disclosure laws, dram shop laws
• Strict products liability which has 3 separate DIM elements
o Defective design
o Inadequate warning
o Manufacturing flaw (see Lecture 11)
o Misappropriation of a corporate/partnership opportunity
See Essay 3 feb 2007
• Fiduciary duty
o Breach of fiduciary duties
o If pl seeks only money damages sol is 3 years
o If pl seeks equitable damages sol is 6 years
Even if equitable claim is also joined with a claim for money damages
o Fiduciary duties arise between 2 people when one of them is in a position of dominance or control and the law imposes a duty to deal fairly with the other and to act for the other in good faith.
Ex: Attorney-client relationship, directors of a corporation
'A POOPE' is vicariously liable
Parties “united in interest” frequently involve the vicarious liability of POOPE parties.
Partners who are jointly and severally liable for each other’s torts that are committed in furtherance of partnership business
Owner – NY owner and driver of motor vehicle, used with owner’s express/implied permission except there is no longer imputed liability to a commercial rental car or leasing company (i.e. Avis, Hertz, etc…)
Owners – joint owners of real properly are jointly and severally liable for injuries occurring on the realty (i.e. joint tenancies, tenacy by the entirety, tenancy in common)\
Principal and agent –
Employer/employee – doctrine of respondeat superior renders an employer vicariously liable for torts committed by employee while acting within the scope of their employment.
• An employee’s torts fall within the scope of employment where the purpose in performing such actions was to further the employer’s interest or those tortious acts were done to
'J.P. MD' gets no extra six months to recommence a dismissed suit
Termination (T in CAT)
• Termination of a timely action but the action is terminated after the SoL has expired.
• R: if P’s action is timely commenced in any state/federal court, but is subsequently dismissed due to technical defect which can be remedied in new action, then even though the SoL has expired while the first action was pending, the plaintiff is given an additional 6 months from termination to refile and reserve the defendant.
o Ex: Dismissal under
2) Dismissal because arbitration is required and not litigation
3) Dismissal in federal court because there was no diversity jurisdiction
4) Where wrongful death action is commenced by a relative of the decedent but is dismissed because it should have been commenced by the estate’s representative
• HOWEVER: This 6 month allowance does not apply if the first action was dismissed because of JP MD
o J– lack of JURISDICTION (MOP)
o P – first claim was dismissed because of plaintiff’s neglect to PRO
You may serve a corproate 'A MAC DOG' anywhere
Service on a corporation
Service on a corporation can be made by in hand delivery to A MAC DOG corporate person anywhere.
• Assistant cashier
• Managing agent (distinguished from mere employee)
• Agent – any agent authorized to receive service – express, implied or by estoppel
• Corporate cashier
o Not supermarket cashier but more like a treasurer
• Officer – president, vp,
• General agent
Service of process is proper only by 'CID'S MAIL'
• Once the summons has been filed with the county clerk, then regardless of whether defendant is served in/out of NY, service is proper only if made pursuant to CIDS MAIL
o Service of Summons is proper in NY only if it was
C: Ct invented service
I: In-hand personal delivery to Defendant
D: Due diligence nail mail affidavit of service
S (SAD): delivery of summons to person of suitable age and discretion (SAD)
MAIL: Mailing process to D, but only if the D consents to such service by mail
An 'AL-RAN' can serve a summons outside NY
• Who can serve a summons outside NY? ALRAN
o A: Attorney admitted in that jurisdiction
o L: Look to the laws of that jurisdiction
o RAN: Resident-of-ny Adult Non-party Service of the Summons
Mommy (resident or domiliary) can sue a non-resident 'DADA' in NY for support, maintenance, distributive awards or special relief.
Domicile- NY was last marital domicile of the parties
Abandonment took place in NY (essay 3 2005)
Decree- Claim for support accrued under an earlier NY decree or under NY law (which permits a NY paternity proceeding to be commenced against a non-domicile where the non-marital child was conceived in NY).
Agreement- to pay maintenance/support arose from a separation agreement executed in NY
CPLR 302b – can get long arm jurisdiction over non-domicile spouses
o this is aimed at deadbeat dads who go to other states…
o in a matrimonial action or family court proceeding where the pl is seeking maintenance, child support, alimony – there exists personal jurisdiction over the non-domiciled defendant provided DADA:
You can sue a non-resident's 'DEER' in New York.
CPLR 302a3 – tortious acts out-of-state but instate effect
o 302a3 is used when a non-domicile commits a tortiuos act except for the tort of defamation outside of ny and the first effects of the tortiuos act experienced by the plaintiff (i.e. economic/personal/property injury/damage) are within NYS plus the plaintiff must establish one of the following DEER elements of ongoing New York activity.
Derives substantial revenue
• Defendant derives substantial revenues from goods used/consumed or from services rendered in NY
• Defendant engages in some persistent course of conduct within NY
o Ex: Def rents an apt in NY, Def is an out of state student attending college in NY,
• Defendant should expect its tortiuos act to have a consequence in NY and the defendant derives “substantial revenue” from international/interstate commerce.
o This “substantial” revenue requirement is to assure that NY jurisdiction will not be asserted over an alleged tortfeasor whose ou
'DIAL DC' and file proof of service to get in touch with 'IPJ'
• To obtain personal jurisdiction over a defendant, the defendant must have at least one of the DIAL DC minimum contacts with NY.
o Doing business
D defendant is DOING business in NY on a day to day basis.
o I INSTATE Service
Instate service on a non-domicile
Agent designated by the def to accept service
o L- LONG arm jurisdiction
a Long arm jurisdiction over a non-domicile
o D - Domicile
Defendant is a ny domicile
Domicile = presence + intent to remain
Def consents to NY jurisdiction
'MOP' up jurisdiction
• When a private party starts a lawsuit and enlists the state to recover a money judgment, to take away another’s property or to enjoin the defendant, then this involves “State Action” thus requiring due process to be satisfied. Before a state/federal court can assist a plaintiff in taking away a defendant’s liberty/property – it must afford that defendant due process of law before the court will assist a plaintiff.
o Due Process requires that the court make sure that MOP is satisfied
(1) Minimum contacts
• Defendant has some minimum contacts with the state of New York (DIAL DC)!
o Perfect service of process by itself does not vest a NY court with jurisdiction over a non-domiciliary who is served outside the state.
o To satisfy due process (a.k.a. fairness) – there must exist an adequate connection between defendant, NYS and the plaintiff’s cause of action.
• It is not whether the defendant or his property is actually present within NY but rather whether the QUALITY and NA
Only a 'MAN' can make a proper appearance in a pending lawsuit.
• A timely appearance avoids default judgment. It entitles the appearing def to all subsequent motions in that action. There are 3 ways for a defendant to formally appear -- MAN
Make a pre-answer motion that automatically extends the defendant’s time to answer.
Either a CPLR 3211 motion to dismiss or a 3024 corrective motion
Serve an answer to the plaintiff’s complaint
Serve a notice of appearance in response to a summons served without a complaint
Notice of Appearance: is a one page sheet that usually contains a demand that the plaintiff serve the complaint within 20 days otherwise the defendant can move to dismiss for neglect to prosecute.
• R*: The mere service of a notice of appearance or a demand for a complaint do not result in the defendant waiving a jurisdictional objection. This occurs only by 'SCAAM'
Think of a 'REAM' of papers to help you out of a default judgment.
• Court can vacate a default judgment by an Order To Show Cause that is brought by the def within one year from when the def was served with a copy of the default judgment. It requires Def to submit a REAM of papers.
o (1) Reasonable Excuse as to why Def defaulted
law office failure by defendant’s attorney may be a reasonable excuse but it must be supported by a detailed and credible explanation (CPLR 2005)
o (2) Affidavit of Merit asserting a viable defense to plaintiff’s claim and also explaining that pl will not suffer prejudice if default judgment is vacated.
It is error, as matter of law, to vacate a default judgment, if def fails to serve an Affidavit of Merit containing a meritorious defense to the pl’s claim!
venue is determined by 'TLC'
• Choosing the proper venue depends on the type of TLC action involved.
o Transitory actions
o Local actions
o Chattel recovery actions (replevin)
'WASP MEN' place venue in local actions
• LOCAL ACTIONS
o Local actions are those that seek to affect the ownership/use/possession of real property.
o Here venue is properly placed in the county where real property is located.
Therefore, residence of P or D is irrelevant.
o The following are local actions “WASP MEN”
Action by landlord/tenant to regain possession*
Specific performance of real property contract
Partition action among concurrent tenants
Ejectment actions against trespasser
Nuisance tort seeking to prevent D from using her realty in a manner that unreasonably interferes with P’s use/enjoyment of her realty*
*A lis pendens cannot be filed in these actions
Once the plaintiff has chosen a venue, there are 3 grounds for changing that venue. Those grounds are found in a BIN
• Once the plaintiff has chosen a venue, there are 3 grounds for changing that venue. Those grounds are found in a BIN
o BAD venue chosen by P
o IMPARTIAL and fair trial cannot be had in that county though properly chosen by P
o NECESSARY witnesses are inconvenienced by the venue - Venue is inconvenient for necessary witness who will testify at trial
• The parties can consent to change venue without a court order (CPLR 509).
Congress Power has 4 Major CNTS
Necessary and Proper
Spending for common defense and general welfare (any public purpose)
Torts - Defenses to Defamation
It's bad P.R. to defend FOGIES in defamation cases.
EQUAL time broadcasts
occurred during PROCEEDINGS of legislative or judicial branch
REPORTS of public proceedings
FIRST amendment qualified privileges - non-malicious statements about public figures and public controversies, non-negligent statements about a private person
fair comment OPINIONS
official statements of GOVERNMENT officials
statements made in the INTEREST of self, third persons or the public
EQUAL time broadcasts
communication between SPOUSES
Its Slander Pre Se to call someone SLIM
Sexual Msconduct/woman unchaste
Incomeptence in Profession
Moral Turpitude crime accusation
NY Practice- Methods of Service of Process
MIC is SAD b/c he was properly served with process.
DILIGENCe MAILING process to defendant who must then consent to such service
IN-HAND personal delivery to the named defendant
COURT authorized method of service of process
delivered to person of SUITABLE age & discretion at last known address (then mail copy & file)
due DILIGENCE (nail, mail & file)