Bar Review-- Ny Practice

Front 1

CPLR

Back 1

NY equivalent of FRCP

Front 2

What is the only trial court in NY with general subject matter jurisdiction?

Back 2

The supreme court

Front 3

Jurisdiction of the supreme court (NY practice)

Back 3

1. General subject matter jurisdiction.
2. Unlimited monetary jurisdiction.
3. Full equity jurisdiction
4. Residency of parties and relation of cause of action to NY is irrelevant to subject matter jurisdiction.

Front 4

if the parties are non-residents, and there is no relationship of the claim to to NY

Back 4

1. D may make a motion to dismiss for "forum non conveniens"
2. The court may, within its discretion, grant the motion if there is no nexus with NY.

Front 5

Exceptions to NY Supreme Court jurisdiction

Back 5

1. Cases where the federal law confers exclusive jurisdiction to federal court, eg. bankruptcy, patents, copyright.
2. Claims for money damages in tort or k against the state of NY.

Front 6

Where may monetary claims against NY state be brought?

Back 6

The Court of claims

Front 7

The Court of claims

Back 7

1. Is the only court where monetary claims against the state of NY may be brought.
2. NY is the only permissible D.
3. NY may not implead other Ds.
4. If D has a claim against NY and a 3rd party, D must bring two actions.
5. No jury trials in the court of claims.
6. Govt subdivisions may not be sued in the court of claims.

Front 8

NY SC has exclusive subject matter jurisdiction over

Back 8

1. Matrimonial action-- any action in which the court is asked to adjudge the status of a marriage.
2. Article 78 proceedings (judicial review of administrative action)
3. Declaratory judgment action.

Front 9

Monetary jurisdiction (NY)

Back 9

1. NY SC: unlimited.
2. County courts: 25k
3. Justice courts: 3k

Front 10

Levels of NY Courts

Back 10

1. Supreme Court
2. Appellate division
3. Court of appeals.

Front 11

When does the SoL begin to run?

Back 11

When the cause of action accrues (usually when the injury occurs)

Front 12

For the SoL, discovery of harm is

Back 12

generally irrelevant in NY

Front 13

Causes of action for in utero injury in NY

Back 13

1. If child is born alive, it has a separate cause of action.
2. If child is born dead, only the mother has an action.

Front 14

Commencement consists of

Back 14

filing process:
1. Summons +
2. Complaint

Front 15

SoL is satisfied if

Back 15

The action is commenced on or before the last eligible day.

Front 16

If SoL expires on a Saturday, Sunday, or public holiday.

Back 16

P gets until the end of the next business day.

Front 17

2.5 year statute of limitations applies to:

Back 17

Medical malpractice claims against:
1. Doctors
2. Dentists
3. Podiatrists
4. Nurses

Note: This does not apply to non-med-mal injuries, including negligent hiring of malpracticing physicians. That gets regular 3 year SoL.
5. Hospitals

Front 18

Exceptions to standard med-mal SoL

Back 18

1. Continuous treatment rule
2. Foreign object rule.

Front 19

Continuous treatment rule (NY med-mal)

Back 19

P gets 2.5 year SoL from the end of continuous treatment for the exact same condition.

Note: A series of misdiagnoses is not continuous treatment

Front 20

Foreign object rule (NY med-mal)

Back 20

If a foreign object is left in P after surgery, SoL is 2.5 years from the operation or 1 year from when P discovered or should have discovered the object, whichever is longer.

Front 21

SoL for non-medical Malpractice (4)

Back 21

1. Must be against a member of a "learned profession"-- architect, engineers, accountants, attys.
2. 3 yrs from the termination of the services in which the alleged malpractice occurred.
3. Is subject to "continuous representation" doctrine, the equivalent of "continuous treatment."
4. This SoL does not apply to non-malpractice claims against professionals, incl personal injury claims arising from the malpractice.

Front 22

SoL for "malpractice" by non-professionals

Back 22

1. "Malpractice" Does not exist.
2. Sue instead for breach of k, 6 yr SoL, or negligence, 3 yr SoL

Front 23

Special rule for personal injury claims against architects and engineers

Back 23

If they are brought more than 10 years after the building was completed:
1. P must serve notice of claim 90 days before suit
2. P may obtain pre-action discovery from D during the 90 day waitng period and
3. If D moves for SJ, burden is on P to make an evidentiary showing of substantial basis that P's negligence was the proximate cause of the harm.

Front 24

SoL for municipal tort liability

Back 24

1 yr + 90 days from the date of the accident

Front 25

Municipal torts-- notice of claim

Back 25

1. Is a condition precedent of the suit.
2. Must be served w/in 90 days of the suit.
3. If P commences an action w/o notice of claim, D can have the claim dismissed for
A. Failure to state a cause of action or
B. Failure to fulfill a condition precedent.
4. W/in the 1yr+90 days SoL, P may make a motion to serve lat notice of claim

Front 26

3 products liability claim w/SoL (NY practice)

Back 26

1. Negligence--3 yrs from date of injury
2. Strict products liability--3 yrs from date of injury
3. Breach of warranty-- 4 yrs from date of product delivery

Front 27

Indemnity and Contribution SoL

Back 27

6 yrs from the date of payment of the judgment for which indemnity/contribution is sought

Front 28

SoL for exposure to toxic substances actions

Back 28

1. 3 yrs from discovery of the injury or time when injury should have been discovered
2. Not available for med-mal claims

Front 29

SoL tolls for D's absence from NY

Back 29

1. If D is not in NY when the cause of action accrues, SoL does not begin to run until D comes to NY
2. If D leaves NY for 4 mnths continuously, the toll applies unless there is a basis for personal jurisdiction which would allow D to be served outside of NY. Note: The exception is more common than the rule.

Front 30

SoL tolls for infants/insane

Back 30

1. SoL is tolled until the disability ends-- until infant turns 18 or insanity clears up.
2. If the original SoL was 3 yrs or more, P gets 3yrs from the end of the disability or statutory period from injury, whichever is longer.
3. If the original SoL is less than 3yrs, P gets SoL from end of disability.
4. Med-mal claims by infants must be commenced within 10 yrs of injury.
5. All claims by insane Ps must be brought w/in 10 yrs of injury.
6. The disability toll may not be combine with the continuous treatment exception.

Front 31

SoL tolls for death

Back 31

1. Survival claims (claims which could have been brought by decedent)-- time remaining on SoL, or 1 yr from death, whichever is longer.
2. Wrongful death claims-- 2 yrs from death, provided P had a timely cause of action at time of death.
3. If D dies before SoL expires, 18 mths are added to SoL

Front 32

SoL for timely filed, but dismissed action

Back 32

6 mths from date of dismissal, except if the dismissal was:
1. On the merits
2. Voluntary discontinuance by P
3. For neglect to prosecute w/a finding on the record of a pattern of neglect and delay.
4. Lack of personal jurisdiction.
Note: A dismissal for lack of SMJ is eligible for the 6mth extension.

Front 33

SoL "borrowing statute"

Back 33

1. Applies to causes of action that arose outside of NY.
2. If P was a non-resident when the claim arose, out-of-state SoL applies if it is shorter.
3. If P was NY res when the claim arose, P gets NY SoL.

Front 34

Elements of jurisdiction over a case (4):

Back 34

1. Proper commencement of the action
2. Proper service of process to D.
3. Personal jurisdiction
4. Subject matter jurisdiction

Front 35

An action is commence by (5)

Back 35

1. Filing process w/the clerk of the court-- summons and notice, or summons and complaint
2. Payment of a fee for an index #.
3. Serving of process to D w/in 120 days of filing.
4. 120 day limit for service of process may be extended with a showing of:
A. Good cause or
B. The interests of justice.
5. A defense of untimely service of process must be preserved, and D must make a motion upon it, or it is waived.

Front 36

Summons and Complaint

Back 36

1. Summons advises that P is suing D in a particular court.
2. Complaint is P's pleading and specifies the transaction or occurrence that is the subject of the action.

Front 37

Summons and Notice

Back 37

1. Summons advises that P is suing D in a particular court.
2. Notice requires:
A. A brief statement of the nature of the action (eg, breach of k, negligence)
B. Statement of relief sought (monetary relief, injunctive relief, equitable relief)
C. If it's for monetary relief, amount must be specified-- but, if it is med-mal, amount may not be specified
3. If P commences action with a "naked" summons (no complaint or notice), it is a jurisdictional defect, and the case is subject to dismissal.

Front 38

Methods of serving process-- basic points

Back 38

1. May be served by any person over 18 who is not a party to the action.
2. May be served on any day of the week except for (a) Sunday (b) Saturday for Sabbath observer. May be served on a holiday.
3. Receipt of process is insufficient-- it must be properly served.

Front 39

Methods of serving process to natural persons

Back 39

1. Personal delivery to D
2. Leave and mail
3. Affixing and mailing (nail and mail)
4. Expedient service (Court invented service)
5. Agent specifically designated by D to receive process

Front 40

Methods of serving process to corporations

Back 40

1. Personal delivery
2. Service to NY secretary of state

Front 41

Personal delivery of process

Back 41

1. Is complete upon delivery
2. It doesn't matter if D refuses service.

Front 42

Leave and Mail service of process

Back 42

1. P must deliver process
2. To a person of suitable age and discretion
3. At D's actual dwelling place or actual place of business.
4. And also mail a copy by regular mail to D's actual place of business or last known residence
5. Delivery need not occur prior to mailing
6. Each D must be served w/one set of papers, or action is subject to dismissal.

Front 43

Nail and mail service of process

Back 43

1. Server may affix process to the door of D's actual place of business or actual residence and
2. Mail a copy to D's actual place of business or last known residence.
3. Two acts must be performed, in either order w/in 20 days of each other.
4. Both acts must be performed w/in 120 days of filing.
5. Server must first exercise due diligence by attempting to serve in person and attempting to leave process w/appropriate person, several times, at different times of day, on different days.

Front 44

Proof of service of process

Back 44

1. Must be filed to complete leave- and-mail and affix-and-mail service.
2. Service is complete 10 days afer filing of proof.
3. Time for D response starts from completion of service.
4. If no proof filed, it is not a jurisdictional defect, but the time for D response does not begin.
5. Need not be provided w/in 120 days of filing.
6. Not required for personal service.

Front 45

Expedient service of process

Back 45

If no other method of process is practicable, P may make an ex parte motion for a reasonable alternative method.

Front 46

Service of process to a designated agent

Back 46

Generally, in commercial k disputes, a corporate agent is designated by the k.

Front 47

Service of process to an infant

Back 47

1. Must be served to:
A. Parent
B. Guardian
C. Legal custodian or
D. If infant is married to adult spouse infant lives with.
2. If infant is over 14, 2 sets of process must be delivered-- one to infant and one to eligible adult.

Front 48

Service of process to the mentally incapacitated

Back 48

Requires 2 sets of process-- one to the mentally incapacitated individual, and one to the court-appointed guardian.

Front 49

Who may serve process outside of NY

Back 49

1. Anyone authorized under NY law.
2. Anyone authorized to serve process by the jurisdiction in which process is served.
3. Any atty licensed in the jurisdiction where process is served.

Front 50

What methods of service of process are valid outside of NY?

Back 50

All NY methods of service of process.

Front 51

Methods of service of process to a corporation

Back 51

1. Personal delivery
2. Service on the NY secretary of state

Front 52

Personal delivery to a corporation may be delivered to (5)

Back 52

1. Officer
2. Director
3. Designated agent
4. Managing agent (any person who has general supervisory authority.
5. (assistant) cashier

If there is a basis for jurisdiction, these individuals may be served anywhere in the US.

Front 53

Service of process on a corporation on the NY secretary of state

Back 53

1. For a domestic or foreign corp licensed to do business in NY, process may be served by personally delivering 2 copies of process to the NY secretary of state.
2. For an unlicensed foreign corp, deliver 1 copy of process to the secretary, plus P must mail 1 copy of process to the corp by certified mail, return receipt requested.

Front 54

Service by 1rst class mail + acknowledgment

Back 54

Non-traditional means of process

1. P must mail process to D by 1rst class mail w/ 2 copies of statutory acknowledgment form + SASE
2. Service only effect if D signs and returns an acknowledgment form w/in 30 days of D receipt.
3. If D does not return the form, P must serve process by another means and D must pay for service of process.
4. May be used regardless of whether D is in NY.
5. This may be used for all defendants but infants and the insane.
6. Return of acknowledgment does not preclude a jurisdiction challenge.

Front 55

2 categories of Personal jurisdiction

Back 55

1. General jurisdiction-- it doesn't matter where the claim arose
2. Specific jurisdiction-- jurisdiction only because the event took place in NY.

Front 56

Grounds for General jurisdiction (3)

Back 56

1. Presence in NY
2. Doing business in NY
3. Domicile in NY

Front 57

Specific jurisdiction-- general categories, 3

Back 57

1. Long arm jurisdiction
2. Non-resident motorist statute
3. Consent

Front 58

Doing business in NY

Back 58

1. A domestic corporation is subject to personal jurisdiction in NY for claims arising anywhere in the world.
2. An unlicensed foreign corporation is present in NY if its agents or employees in NY are engaging in commercial activity for the corporation on a regular, systematic, and ongoing basis.

Front 59

Most significant factor in determining if a corporation is doing business in NY

Back 59

Whether it maintains an office w/employees coming and going on a regular basis

Front 60

Personal jurisdiction over domiciliaries

Back 60

D who is a domiciliary of NY at the time the action is commenced may be served w/process anywhere in the US, regardless of where the claim arose.

Front 61

Domicile v Residence

Back 61

Domicile-- one residence where a person intends to remain

Residence-- a place a person lives for a period of time with some permanency.

Front 62

Long arm jurisdiction-- situations where it applies (5)

Back 62

Allows jurisdiction for a specific incident if the claim arises from:
1. a transaction of business by D in NY. P need not physically come to NY for this to be the case.
2. A k made outside of NY in which D agrees to provide an economically significant amount of goods or services in NY.
3. Commission of a tortious act in NY.
4. Tortious act outside of NY which causes injury in NY + additional links to NY, eg:
A. D in a persistent course of conduct in NY.
B. D derives substantial revenue from sales in NY.
C. D should reasonably expect act to have consequences in NY and derives substantial revenue from interstate/international commerce.
D. Does not apply to out-of-state medical services.
E. Defamation claims are excluded from both tortious act categories.
5. D's ownership use, or possession of real property in NY

Front 63

Long arm jurisdiction-- general points (4)

Back 63

1. Covers all types of Ds
2. Acts giving rise can be performed by D or agents, employees
3. If D dies, estate can be served outside of NY.
4. Methods of process that are allowed in NY must be used.

Front 64

How to address long arm jurisdiction issues in an essay question

Back 64

1. Discuss whether P can establish jur under non-long arm categories
2. Facts of Ps case fall within a long arm category.
3. Constitutional due process?

Front 65

Due process test for long-arm jurisdiction

Back 65

Does the claim arise out of D conduct that is purposefully directed to NY sich that D should reasonably anticipate being sued in NY court.

Front 66

Non-resident motorist statute

Back 66

1. Confers personal jurisdiction over the owner of a car that is used on NY motorways.
2. Process is served by serving one copy to the NY secretary of state and mailing one copy to D by certified mail.
3. Applies to a vehicle owner who gave permission to drive in NY.

Front 67

Personal Jurisdiction by consent

Back 67

1. Arises when parties to a k agree to try any disputes in NY.
2. Enforceable absent fraud, overreaching, or unreasonableness.

Front 68

Matrimonial Jurisdiction

Back 68

1. If P spouse is NY domiciliary, NY has Rem Jurisdiction over the marriage and can issue a divorce-- personal jurisdiction over D is unnecessary.
2. If P spouse seeks spousal support, PJ over D is necessary, which may be achieved through matrimonial LAJ.

Front 69

Matrimonial LAJ (4)

Back 69

Available if:
1. NY was the matrimonial domicile.
2. D abandoned P in NY.
3. D's monetary obligation accrued under an agreement entered into in NY.
4. D's monetary obligation accrued "under the laws of NY."'

Front 70

Service of process in a matrimonial action

Back 70

Only personal service is valid unless the court orders otherwise.

Front 71

Matrimonial action-- durational residency requirement (3)

Back 71

A statutory condition precedent (not a jurisdictional requirement) for an action that affects marital status that may be fulfilled if:
1. Both parties are NY residents at the time the action is commenced and the grounds for the matrimonial action arose in NY.
2. If either party has been an NY resident for a continuous period of at least 1 year immediately prior to the action and:
A. Marriage took place in NY
B. NY was matrimonial domicile at some point.
C. Grounds for divorce arose in NY.
3. Either party has been an NY resident for 2 years continuously immediately prior to the action.

Front 72

Proper venue in an action in which the judgent would affect title or possession to real property

Back 72

The venue where the real property is located.

Front 73

Proper venue in non-real property actions

Back 73

1. Any county in NY in which one of the parties resides at the time the action is commenced.
2. If neither party lives in NY, any county is proper.

Front 74

If P chooses an improper venue

Back 74

1. It is not a basis for dismissal.
2. D may serve a demand for change of venue before or w/the answer to a proper county. If P objects, or fails to respond D must make a motion to change venue, which will be granted if P's venue is improper and D's is proper.

Front 75

Discretionary grounds for change of venue

Back 75

Either party may make a motion to change venue if:
1. Convenience of material witnesses
2. Reason to believe that an impartial trial cannot be had in the county.

Front 76

D can respond to the summons and complaint by

Back 76

1. Serving an answer or
2. Making a pre-answer motion to dismiss

Front 77

The two basic pleadings are:

Back 77

1. P's complaint
2. D's answer

Front 78

D's answer consists of

Back 78

1. Denials of all allegations D wishes to contest and
2. Any affirmative defenses

and may include counterclaims

Front 79

The reply is (NY practice)

Back 79

P's pleading in response to a counterclaim

Front 80

Who must be served by the parties with copies of the pleadings?

Back 80

All other parties who have appeared in the action.

Front 81

Cross-claims

Back 81

May be asserted by D against any other D for any cause, even unrelated to primary claim.

Front 82

interlocutory papers are

Back 82

all litigation papers other than service of process

Front 83

Interlocutory papers may properly be served by (4)

Back 83

1. Regular mail
2. Personal delivery
3. Fax (w/recipients consent)
4. Overnight courier.

Front 84

Service of interlocutory papers is made:

Back 84

Upon mailing, not receipt

Front 85

Service of interlocutory papers by mail must be made

Back 85

within NY state.

Front 86

Time limit to serve an answer if D was served w/process by personal delivery w/in NY

Back 86

20 days

Front 87

Time limit to serve answer if D was NOT served w/process by personal delivery in NY

Back 87

30 days

Front 88

Grounds to dismiss a cause of action before service of an answer (acronym)

Back 88

DOWNFALL
1. Documentary evidence
2. Other action pending
3. Want of capacity of P
4. Non-joinder of necessary parties
5. Failure to state a cause of action
6. All other affirmative defenses
7. Lack of personal in rem or quasi in rem jurisdiction.
8. Lack of subject matter jurisdiction.

Front 89

Motion to dismiss for Failure to State a Claim

Back 89

1. Even if all allegations are true, there is no cause of action.
2. P is entitled to all reasonable inferences in P's favor.
3. The motion should be denied if there is any basis for relief under the substantive law.

Front 90

Motion to dismiss for lack of personal jurisdiction includes claims of:

Back 90

1. Improper commencement/filing.
2. Improper service of process.
3. Lack of jurisdictional basis.

Front 91

Additional affirmative defenses that support a motion to dismiss prior to service of the answer (acronym)

Back 91

SPARERIBS
1. Statute of limitations.
2. Payment.
3. Arbitration and award.
4. Res judicata.
5. Estoppel (collateral estoppel-- issue preclusion)
6. Release
7. Infancy of D
8. Bankruptcy discharge
9. Statute of frauds

Front 92

Procedural aspects of pre-answer motion to dismiss (4)

Back 92

1. Motion is made before service of the answer.
2. Motions extends time to answer-- if motion is denied, D must serve the answer within 10 days.
3. this motion is optional
4. D may only make one 3211 motion, but may make it on multiple grounds.

Front 93

Waiver by pre-action motion to dismiss (3211 motion)

Back 93

1. If D makes a 3211 motion, all unraised personal jurisdiction defenses are waived.
2. All other defenses may be raised in the annswer.

Front 94

How do you preserve lack of personal jurisdiction defenses?

Back 94

1. Include lack of personal jurisdiction in your pre-answer motion to dismiss.
2. Make no 3211 motion and raise LOPJ claim in the answer.

Front 95

Even if D includes a claim of improper service of process in a 3211 motion, to preserve the claim D must

Back 95

Make a motion for summary judgment on that ground w/in 60 days after serving the answer.

Front 96

Affirmative defenses that are not included in the answer

Back 96

Are waived, though D may move for permission to amend the answer, at the court's discretion.

Front 97

3 defenses are never waived

Back 97

1. Non-joinder of necessary paries
2. Failure to state a cause of action
3. Lack of subject matter jurisdiction.

Front 98

Goals of D's response to summons with notice

Back 98

1. Avoid default
2. Force P to serve a complaint

Front 99

Upon receipt of a summons with notice D should (2)

Back 99

1. Serve a notice of appearance or
2. A demand for the complaint.

Front 100

D's time limit for serving a demand for the complaint or a notice of appearance is

Back 100

The same as response time for responding to a summons and complaint:
1. 20 days-- personal service in NY
2. 20 days after the acknowledgment of service via 1rst class mail.
3. 30 days for every other method.

Front 101

Once D serves a demand for the complaint or notice of appearance, P must

Back 101

Serve the complaint w/in 20 days.

Front 102

Once P serves the complaint D must

Back 102

Serve an answer or make a pre-answer motion to dismiss w/in 20 days.

Front 103

To defend against a motion to dismiss for failure to timely serve a complaint, P must submit

Back 103

1. A reasonable excuse for the delay or
2. An affidavit of merit of P's claim, from a person with personal knowledge of the incident.

Front 104

When may a party amend the pleading

Back 104

1. One time as of right, w/in 20 days of after D serves the answer
2. Later amendments may be allowed on motion to the courts demonstrating that the opposing party will not suffer incurable prejudice.

Front 105

Non-movant can oppose a motion to amend a pleading by demonstrating (2)

Back 105

1. That non-movant will suffer incurable prejudice, eg loss of evidence.
2. That the proposed amendment has no merit.

Front 106

Impleader (definition)

Back 106

a procedural device used by D to join another party alleged to be liable in whole or in part to D for damages D may have to pay P.

Front 107

Impleader (mechanics, 5)

Back 107

To join a 3rd party D, D must
1. File a summons and a 3rd party complaint w/the county clerk and pay for a serial number and
2. Serve the 3rd party complaint, summons, and all prior pleadings on 3rd party D w/in 120 days of filing.
3. P and all other parties are also entitled to service of 3rd party complaint.
4. TPD's time limit for answering is the same as any other D
5. After TPD is joined, P may amend complaint to assert a claim directly against TPD, within 20 days of service of process to TPD, or w/the court's permission.

Front 108

Relation-back doctrine governing SoL for claims added by amendment of complaint

Back 108

P's added claim against TPD is deemed interposed on the date TPD was impleaded if it was based on the same transaction or occurrence.

Front 109

Indemnity (definition, origin)

Back 109

Allows one party to shift 100% of responsibility to another party. May arise:

1. By k. E.g. subkor indemnity of general.
2. By law-- products liability, vicarious liability.

Front 110

Contribution (definition)

Back 110

A sharing of loss (apportionment) among multiple tortfeasors who are actual participants in a tort.

Front 111

Ways to assert claims for contribution

Back 111

1. If tortfeasors are co-Ds, through a cross-claim.
2. If P omits tortfeasor, D may implead other as TPD.
3. D may sue other tortfeasor in a separate action.

Front 112

Equal shares contribution

Back 112

1. The minority view.
2. Any party judged to have contributed to the harm is responsible for an equal share of the judgment.
3. Only apply if the question says "equal contribution" or "pro rata contribution".

Front 113

Comparative degrees of fault contribution

Back 113

1. The majority view.
2. Each tortfeasor is responsible for a share of the judgment equal to their contribution to the harm.

Front 114

Substantive law rule for contribution

Back 114

There is right to contribution whenever a party breached a duty in tort which contributed to the damages D may be held liable for to P, even if the 3rd party had no direct liability to P.

Front 115

If a worker is injured on the job and sues a 3rd party

Back 115

In NY: The 3rd party is barred from, seeking contribution or indemnity from the worker's employer unless P has sustained a "grave injury," which is contrued strictly.
In MS: D never has a right to contribution from the employer.

Front 116

SoL for contribution claims

Back 116

6 years

Front 117

Settlement and multiple tortfeasors

Back 117

1. Any judgment against a non-settling tortfeasor is reduced to take into account the settlement by
A. The amount of the settlement or
B. The settling tortfeasor's equitable share, whichever is larger.

Front 118

Can a settling party pursue a contribution claim against a non-settling party?

Back 118

No.

Front 119

Can a settling party bring an indemnification claim against a non-settling party?

Back 119

Yes.

Front 120

Can a non-settling party pursue a contribution claim against a settling party?

Back 120

No.

Front 121

CPLR art 16

Back 121

modification of NY rule of joint and several liability. When a joint tortfeasor:
1. Is less than 50% responsible and
2. P has sustained non-economic damages

The joint tortfeasor can only be required to pay his own share-- not JSL-- of non-economic damages, but remains joint and severally liable for economic damages.

Front 122

Exclusions from CPLR art 16

Back 122

1. Intentional or reckless disregard tortfeasors.
2. Hazardous substance tortfeasors.
3. Drivers and owners of motor vehicles other than police and fire vehicles.

Front 123

Motions on notice

Back 123

1. Gives the adversary the opportunity to be heard in opposition.
2. Most motions are on notice/

Front 124

Papers served for a motion on notice

Back 124

1. Notice of motion
2. Affidavits-- factual basis of motion
3. Memo of law-- legal basis of the motion.

Front 125

How much advance notice of a motion on notice must be given

Back 125

1. 8 days before the "return date" when the motion will be heard,
2. counted from when the papers are served, i.e dropped in the mailbox

Front 126

Order to show cause

Back 126

1. An alternative way of making a motion on notice.
2. A paper signed ex parte by the judge, designating a day when a hearing will be held, which is then delivered to the opposing party-- the judge, not the party is giving notice.

Front 127

Why make an order to show cause?

Back 127

1. To accelerate the return date.
2. Judge can grant a stay of proceeding or TRO
3. It may be a statutory requirement.

Front 128

Service of an order of the court's decision of a motion on notice

Back 128

1. Motion must be served by the prevailing party on the losing party.
2. Service is necessary to give effect to the order.
3. Service starts the clock for appeal of the order, which is 30 days.

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To appeal a motion on notice a party must

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file and serve notice of appeal within 30 days from service of the order of judgment, with notice of entry.

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Ex parte motion (3)

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1. A motion before a judge where no advance notice is given to the opposition.
2. Requires explicit statutory authorization.
3. Losing party may not appeal immediately-- first, the party must make a motion to vacate the ex parte order, which, if denied, is appealable.

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Summary judgment standard

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No genuine issue of material fact.

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When can an SJ motion be made?

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1. Beginning after service of an answer.
2. Until 120 days after the filing of the note of issue, which places the case on the trial calendar.

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How is an SJ motion supported?

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With evidence such as:
1. Affidavits
2. Documentary evidence
3. Discovery materials

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Affidavits must be submitted by

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Individuals with personal knowledge of the facts.

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How does an opponent defeat an SJ motion?

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By producing evidence showing a triable issue of material fact-- cannot simply rely on allegations in the pleading.

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If the opponent of an SJ motion demonstrates that he is not yet able, through no fault of his own, to produce opposing evidence, the court can

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1. Deny the motion
2. Grant a continuance (adjournment)

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If, on a motion for SJ, the court finds that the only triable issue is the amount of damages, the court can

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Grant partial SJ

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Pre-answer motions for summary judgment are permitted when they are

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1. Conversion of a motion to dismiss.
2. Motion for SJ in lieu of a complaint

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Conversion of a motion to dismiss to a pre-answer motion for SJ-- prerequisites

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1. The parties must have submitted factual affidavits w/ the motion.
2. Court must give advance notice the parties of the conversion and a chance to submit additional evidence.

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Motion for SJ in Lieu of complaint is permissible when

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1. An action is based on an instrument for the payment of money only, eg promissory note, negotiable instrument.
2. An action on an out-of-state judgment

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Procedure for motion for SJ in lieu of complaint

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1. Notice of the motion must be served with the summons, with supporting documentation and affidavits.
2. Minimum notice for the return date is 20days w/ personal service of process in NY, 30 days for any other methods of service.

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Types of provisional remedies (5)

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1. Attachment
2. Preliminary injunction
3. Temporary receivership
4, Replevin (order to seize chattel, in an action to recover it)
5. Lis pendens (notice of pendency)

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Attachment (3)

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1. Provides security for the enforcement of a money judgment.
2. P obtains order, gives it to the sheriff, who attaches a lien on any real or personal property of D in NY by filing an order of attachment w/the county clerk in the county where the property is located.
3. Property is then either actually, or contructively seized by delivery of the order of attachment.

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Procedural Requirements for a motion for an order of attachment

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1. Affidavits showing requirements for the motion.
2. Probability of success on the merits.
3. Undertaking-- bond provided by P to indemnify D for damages erroneously caused

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Types of actions where motion for an order of attachment may be used

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1. P is seeking money damages and
2. D is an unlicensed foreign cop or a non-domiciliary, non-resident or
3. D is about to conceal or remove assets from NY w/ intent to defraud creditors or frustrate the enforcement of a judgment.

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In an attachment motion D is entitled to damages if

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1. Attachment was wrongfully obtained or
2. D wins on the merits

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If a motion for attachment is made ex parte, due process requires (3)

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1. A prompt hearing after seizure of D's property for D to attack the affidavit.
2. After the sheriff levies on D;s property, P must make a follow-up motion on notice to confirm the ex parte order of attachment.
3. If no follow up motion is timely made, the levy becomes void

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To confirm an ex parte motion of attachment P must serve on D a follow up motion within

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1. 10 days if D is an unlicensed foreign corp or a non-resident, non-domiciliary
2. 5 days if D is fraudulently moving assets

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Preliminary injunction (2)

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1. Used to maintain the status quo while an equity action is pending.
2. May be used in an equity action when P's complaint seeks
A. A permanent injunction
B. D threatens to harm P's interest in the subject matter of the action.

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Requirements for a motion for a preliminary injunction

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1. Must be made on notice
2. P's affidavits must show grounds for equitable relief, incl irreparable injury
3. Affidavits must show a probability of success on the merits.
4. If the motion is granted, P must post an undertaking to indemnify D for damages if it is later determined that PI should not have been granted.

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temporary restraining order (TRO)

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1. A temporary measure available while a motion for PI is pending.
2. May be granted if there is a threat of immediate, irreparable harm.
3. Is obtained ex parte, through a motion for PI by order to show cause-- judge can include a TRO in the OTSC.
4. Must contain an affidavit demonstrating "significant prejudice" if notice is provided to the adversary.

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temporary receivership (definition)

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A person appointed by the court to manage P's property pending the outcome of an equity action of which the property is the subject

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temporary receivership (requirements)

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1. P is asserting an equity claim in which the specific property is the subject and
2. There is a danger that D will injure or destroy the value of the property while the action is pending.
3. Not available if the actions seems solely money damages.

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Seizure of a chattel (2)

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1. Available in a replevin action
2. Function is to ensure enforcement of a judgment awarding possession of the chattel to P.

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Requirements for seizure of chattel (4)

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1. P's affidavits must show probability of success on the merits.
2. P must give an undertaking to indemnify D.
If the motion is made ex parte:
3. P must show threat of immediate loss of chattel.
4. P must make a follow up motion to confirm w/in 5 days of impoundment.

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Notice of pendency (7)

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1. In an equity action involving real property, it gives notice to any potential buyers or mortgagees that any acquired interest will be subordinate to P's interest.
2. Required in a mortgage foreclosure.
3. May be filed w/o a court order.
4. Does not require a bond.
5. Only D remedy is to cancel the notice of pendency.
6. Notice is effective for 3 years after filing, which P may extend by filing before original notice expires.
7. If P does not file for extension and the lease expires, P may not acquire another notice of pendency for the same property for the same action, unless it is a mortgage foreclosure..

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When discovery is completed, and the case is ready for trial how is the trial placed on the court 's calendar?

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Either party may serve and file a note of issue with the county clerk. This starts the SJ clock.

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How does a party who is entitled to a jury secure one?

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1. The party who files the note of issue must demand the jury in the note of issue.
2. Other parties who want a jury trial, when the filing party has not requested one must serve and file their own demand w/in 15 days of the date of issue of the original note of issue.

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When does a party in a civil trial have a right to trial by jury?

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1. Actions seeking only money damages.
2. Replevin
3. Claim to real property
4. Annulment of a marriage
5. Divorce action on the issue of grounds for a divorce but not on monetary support or child custody.

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Must a civil jury be unanimous in NY?

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No. 5 out of 6 is enough.

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Res judicata

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1. When a claim against a particular D has been brought to a final judgemnt on the merits, all other claims against D are barred if they arise out of the same transaction.
2. Exception: Personal injury suits against a spouse may proceed even if the same incident has previously been the grounds for a suit for divorce.

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Collateral estoppel (requirements)

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1. The issue in the former and current proceedings are identical.
2. The issue was necessarily litigated and decided in the former proceeding.
3. The party against whom issue preclusion is asserted had full and fair opportunity to litigate the issue in the former proceeding.

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Special proceedings

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1. Quick final judgment
2. Only available w/specific statutory authorization.

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Special proceedings (procedure, 5)

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1. P commences proceeding by filing a petition and paying for an index #
2. Petition and notice of petition must be served on the Respondent w/in 15 days after expiration of the SOL of special proceeding
3. Petition specifies a return date no sooner than 8 days from when service is complete. Exception: article 78 proceeding requires 20 days notice.
4. Affidavits are submitted in support of and opposition to the motion.
5. The dispute is decided like summary judgment.

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Arbitration (5)

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1. A private procedure, based on k, for the binding resolution of disputes
2. Arbitrators are not bound by substantive law.
3. The scope of judicial review is very narrow.
4. The court may be called on to resolve threshold issues.
5. The public policy of NY strongly favors arbitration.

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5 threshold issues to avoid arbitration

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1. Did the parties agree to arbitrate
2. Is the dispute within the scope of the arbitration clause
3. Is the arbitration clause valid
4. If there is an express condition precedent, has it been complied with?
5. Statute of limitations.

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Agreement to arbitrate

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1. Must be in writing
2. Right to arbitration need not be mutual
3. Agreement must be clear, express, and unequivocal.

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Grounds for judicial vacation of arbitral award

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1. Corruption, fraud, or misconduct in arbitration proceeding
2. Partiality or (significant) bias of the arbitrator chosen to be neutral
3. Arbitrator has exceeded her powers (very rare(