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293 Cards in this Set
- Front
- Back
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DEFINITION
long arm juris |
allows jurisdiction over a nondomicilliary D where the cause of action arises from a NY activity
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DEFINITION
mandamus to compel |
special proceeding (art. 78) seeking judicial direction that an agency perform an act required by law.
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DEFINITION
motion for summary judgment |
a pretrial motion that can be made by any party asking the court for judgment as a matter of law. requires that the court find that no genuine issue of fact exists requiring a trial
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DEFINITION
motion on notice |
motion that requires notice be given to the adversary
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DEFINITION
notice of petition |
part if initiatory process in a special proceeding
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DEFINITION
order to show cause |
accelerated motion on notice. often contains provision staying all further proceedings until the determiniation of the motion is made. Can also be used to initiate a special proceeding.
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DEFINITION
personal juris |
the power of the court to adjudicate claims for damages or injunctive relief against particular parties
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DEFINITION
petition |
the pleading of the complaining party in a special proceeding
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DEFINITION
pleading |
the formal written statement ofa party's claims or defenses (complaint, answer, thrid party complaint, petition (in a special proceedings)
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DEFINITION
process |
initiatory papers that are filed and then served on a D to invoke the courts jurisdiction.
in an action: summons and complaint or summons with notice. in a special proceeding: notice of petition and petition or order to show cause and petition |
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DEFINITION
mandamus to review |
a special proceeding (article 78) seeking judicial review of agency determinations made when no hearing was required to be held
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DEFINITION
prohibition |
a special proceeding (art. 78) to obtain judicial review of judicial action that grossly exceeds an officer's jurisdiciton
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DEFINITION
provisional remedies |
remedies that operate while the action is pending to prevent ineffectual judgments (see chart)
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DEFINITION
reply |
plaintiff's pleading in response to a counter claim
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DEFINITION
res judicata |
doctrine known as claim preclusion, meaning that once a claim is brought to a final conclusion all other claism arising out of the same transaction or series of transactions are barred even if based upon different theories or if seeking a different remedy
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DEFINITION
special proceeding |
proceudre for speedy resoltion of certain disputes, must be authorized by statue (e.g. art. 78 proceedings)
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DEFINITION
statute of limitations |
fixed period of time within which a lawsuit must be commenced.
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DEFINITION
subject matter jurisdiction |
the power of a court to adjudicate particular types of claims
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DEFINITION
summons |
initiatory apper that notifies D that an action has been instittued against him and that he is required to answer at the place and time named.
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DEFINITION
survival claim |
CoA that survives the death of P. applies to all types of actions except divorce
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DEFINITION
toll |
extends the applicable period of time (SoL) within which a CoA may be brought
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DEFINITION
venue |
the county in which the action is brought
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DEFINITION
wrongful death |
claims that allows recovery for economic losses by the spouse and next of kin of a decedent whose death was caused by D.
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DEFINITION
answer |
D's pleading, which responds to a complaint with denials, defenses, or counterclaims that D wishes to assert
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DEFINITION
arbitration |
agreement to submit a controversy whihc is otherwise subject to litigative disposition in the courts to extrajudicial resolution by arbitrators.
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DEFINITION
bill of particulars |
litigation paper in which P, upon demand is required to amplify the allegations of the complaint
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DEFINITION
certiorari |
special proceeding (article 78) to obtain judicial review of a quasi judicial administrative aciton after trail type hearing and determinaiton made by an agency
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DEFINITION
collateral estoppel |
Doctrine known as issue preclusion. It applies when a ltiigant attempts to retry an issue that has been determined against her on the merits
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DEFINITION
complaint |
P's pleading which give D information on all material facts and transaciton sthat are the subject of the P's CoA
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DEFINITION
contribution |
right of a joint tort feasor who has been found lialbe and paid the plaintiff in full, to seek from other tortfeasors the amount that exeeds his equitable share
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DEFINITION
ex parte motion |
motion made without notice to the other party
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DEFINITION
forum non conveniens |
the power of a court upon d's motion to dismiss an aciton where the court finds that the convenience of W' and interests of justice reuqire that the action be heard in a different state
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DEFINITION
impeader |
procedure whereby D joints another party to the lawsuit on the ground that the other party may be liable to D in whole or in part (usually on a claim for indemnification or contribution)
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DEFINITION
indemnity |
the right of VL D to bring a 3P action against the person whose misconduct he is answerable for and seek 100% reimbursement (can also occur by K)
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DEFINITION
interlocutory papers |
litigation papers(e.g. pleadings, motions, discovery notices) served after P's summons and complaint of summons or notice.
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PROVISIONAL REMEDIES
Attachment |
IN WHAT TYPE OF ACTION IS REMEDY AVAILABLE?
P must be seeking $ damages and 1 of 2 grounds must exist: 1. D is an unlicenced foreign corporation OR nondomiciliary who resides in NY 2. D is about to conceal or remove assets from NY with intent to defraud creditors. MAY THE ORDER BE OBTAINED EX PARTE: yes, but P must make a motion on notice (by order to show cause to confirm the ex parte order within 10 days after levy on D's property if relying on ground 1) for attachment, or within 5 days after levy if relying on ground 2. MAY THE ORDER BE OBTAINED (OR NOTICE OF PENDANCY FILED) BEFORE PROCESS IS SERVED?yes, provided summons is served within 60 days after the order is granted WHAT PAPERS ARE REQUIRED TO OBTAIN THE ORDER (OR THE NOTICE OF PENDENCY): affidavit showing grounds for attachment and probability of success on the merits in the underlying cause of action IS AN UNDERTAKING REQUIRED: yes, amount is fixed by court to indemnify D for costs, expenses and reasonably atty fees if either: 1. D wins case on merits or 2. attachment twas invalid P's liability is NOT limited to the amount of bond if order was exparte. NOTES: P always has a burden of proof on issue of validity of order |
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PROVISIONAL REMEDIES
preliminary injunction |
IN WHAT TYPE OF ACTION IS REMEDY AVAILABLE?
1. for permanent injunction, or 2. where D is about to do an act rendering equity judgment in effectual MAY THE ORDER BE OBTAINED EX PARTE: preliminary injunction, no. however, motion may be made by order to cause, thereby restraining D until on motion for preliminary injunction. TRO may be granted ex parte upon showing that notice to the opponent would cause significant prejudice to teh moving party MAY THE ORDER BE OBTAINED (OR NOTICE OF PENDANCY FILED) BEFORE PROCESS IS SERVED? preliminary injunction, no. TRO yes, order to show cause for motion for preliminary injunction (with TRO in order to show cause) may be served with summons and complaint. WHAT PAPERS ARE REQUIRED TO OBTAIN THE ORDER (OR THE NOTICE OF PENDENCY) affidavit showing grounds for preliminary injunctive relief and probability of success on the merits of cause of action. TRO requires additional showing of threat of immediate injury IS AN UNDERTAKING REQUIRED: preliminary injunciton yes. TRO in court's discretion. amount is fixed by court to indemnify D for costs, expenses and atty's fees if it is determined that P is not entitled to permenant injuctive relief. NOTES: not available in action seeking solely money damages OK if complaint seeks both equitable and monetary releif |
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PROVISIONAL REMEDIES
recievership |
IN WHAT TYPE OF ACTION IS REMEDY AVAILABLE? property which is subject of equity action is in danger of destriction diminution in value loss or removal from state
MAY THE ORDER BE OBTAINED EX PARTE" no unless parties agree in contract to ex parte appointemtn (e.g. in mortgage agreement) MAY THE ORDER BE OBTAINED (OR NOTICE OF PENDANCY FILED) BEFORE PROCESS IS SERVED? yes WHAT PAPERS ARE REQUIRED TO OBTAIN THE ORDER (OR THE NOTICE OF PENDENCY) affidavit showing grounds for appointment of receiver IS AN UNDERTAKING REQUIRED: yes, by receiver that he or she will faithfully discharge duties NOTES: not available in action that seeks solely money damages. NOt a commonly granted remedy. |
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PROVISIONAL REMEDIES
seizure of chattel (replevin) |
IN WHAT TYPE OF ACTION IS REMEDY AVAILABLE? action to recover possession of chattel
MAY THE ORDER BE OBTAINED EX PARTE: yes, but P must make motion on notice (by rder to show cause) to confirm the exparte order within 5 days after sheriff seizes chatell MAY THE ORDER BE OBTAINED (OR NOTICE OF PENDANCY FILED) BEFORE PROCESS IS SERVED? yes WHAT PAPERS ARE REQUIRED TO OBTAIN THE ORDER (OR THE NOTICE OF PENDENCY) affidavit showing probability of success on the merits of a CoA. If moving ex parte must show threat of immediate loss of chattel IS AN UNDERTAKING REQUIRED: yes, in amount that is at least twice the value of the chattel. NOTES: P always has burden of proof on issue of validity of order. D may prevent delivery of chattel to P by moving to have chattel impounded (held in sheriff's custody) pending outcome of litigation |
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PROVISIONAL REMEDIES
notice of pendency |
IN WHAT TYPE OF ACTION IS REMEDY AVAILABLE? action in which judgment will directly affect title, use, or possession of real property
MAY THE ORDER BE OBTAINED EX PARTE: no order required. filing with county clerk is ex parte MAY THE ORDER BE OBTAINED (OR NOTICE OF PENDANCY FILED) BEFORE PROCESS IS SERVED? yes, provided summons is served within 30 days after filing of notice of pendency WHAT PAPERS ARE REQUIRED TO OBTAIN THE ORDER (OR THE NOTICE OF PENDENCY): file notice of pendency and copy of complaint of complaint with county clerk where realty is located. NO affidavits required IS AN UNDERTAKING REQUIRED: no NOTES: courts narrowly construe availability of this remedy. Duration of valid notice is 3 years from date of filing, extensions may be obtained on motion |
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what is subject matter jurisdiction a. Trial court: court with general, oridinal SMJ = power to hear any type of action/ where action is commenced.
i. Supreme court only court in NY with gen. juris: 1. Jurisdiction is a statewide concept it doesn't matter what county: if 1 supreme court has jurisdiction they all have it regardless of the county -→ 1 branch 62 counties → which county to use = venue Q 2. Unlimited $ juris: no max no min. → other civil courts have limited $ juris. *remember damage caps apply 3. SC is the only court with full equity jurisdiction: specific performance, injunction, reformation and recission are available. This is where you go if you want equity relief 4. Doesn't matter where the parties are from of where CoA arose: lack of residency and claim unrelated to NY does NOT deprive court of jurisdiction. 5. No sua sponte forum nonconveniens dismissal: SC ≠ dismiss for Forum non conveniens without motion from D→ Court has discretion: upon the motion to dismiss bec. absence of substantial NY nexus exists 6. P can sue multiple D’s in one action = if cause of actions arise from same transaction or occurrance |
I. Subject matter jurisdiction: Court requires SMJ (competence) to adjudicate type of controversy before it
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trial court
1. what is general jurisdiction 2. what court has general jurisdiction 3. what kind of concept is general jurisdiction 4. does the supreme court have a montetary limit? 5. what is the only court with full equity jurisdiction 6. can I sue if Im not a resident 7. can is sue if my claim arose in another state 8. sua sponte forum noncconveniens? |
a. Trial court: court with general, oridinal SMJ = power to hear any type of action/ where action is commenced.
i. Supreme court only court in NY with gen. juris: 1. Jurisdiction is a statewide concept it doesn't matter what county: if 1 supreme court has jurisdiction they all have it regardless of the county -→ 1 branch 62 counties → which county to use = venue Q 2. Unlimited $ juris: no max no min. → other civil courts have limited $ juris. *remember damage caps apply 3. SC is the only court with full equity jurisdiction: specific performance, injunction, reformation and recission are available. This is where you go if you want equity relief 4. Doesn't matter where the parties are from of where CoA arose: lack of residency and claim unrelated to NY does NOT deprive court of jurisdiction. 5. No sua sponte forum nonconveniens dismissal: SC ≠ dismiss for Forum non conveniens without motion from D→ Court has discretion: upon the motion to dismiss bec. absence of substantial NY nexus exists 6. P can sue multiple D’s in one action = if cause of actions arise from same transaction or occurrance |
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Supreme court has SMJ over 3 actions.
1. define each |
ii. SC has exclusive SMJ over: three types of actions: 1) matrimonial actions, 2) 78 proceeding, 3) dec. judgment action
1. Matrimonial actions: adjudicate marital statutes = divorce, separations, annulment, dec. on validity of marriage = anything affecting marital status→ family court = spousal support, adoptions, custody. If I want a divorce I can only go to SC 2. CPLR Art. 78 Proceedings (judicial review of administrative action) 3. Declaratory judgment actions: judicial declaration of the rights/obligations of parties before one of them engages in conduct that could cause liability |
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exceptions to Supreme court's general jurisdiction
1. list each |
1. Exclusive jurisdiction in federal court by fed. law: Bankruptcy, patents, copyrights ≠ sue in SC
2. Claims for $ damages in tort or K against state of NY |
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where can i sue NY state?
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a. Court of claims: only court in the state where the state may be sued for $ damages in tort or K.
i. NY state is the only defendant in court of claims→ Non-state D = sue in SC |
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who can be sued in the Court of Claims, you cannot be sued there.
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NY state is the only D allowed in the court of claims:
i. Employee cannot be sued in court of claims: sue in SC → when state is VL = 2 suits, 1 in court of claims + 1 SC (for employee) *same for joint tortfeasors. ii. Government subdivisions are not state: sue in SC, gov. subsdivisions = counties, cities, towns, school dist. = non-state D’s = sue in SC for $ damages in tort or K 1. *remember when you sue gov. subdivision= notice of claim required |
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order of courts
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Court of appeals → intermediate court of appellate division→ supreme court (trial court)
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SoL general
1. when does it run? 2. when is an action commenced 3. how do you calculate SoL |
II. Statutes of Limitations: affirmative Defense raised by D based on passage of time; →
Runs when cause of action accrues (gen. when injury occurs); → Commenced (filing and D served with process) no later than last day of SoL, or Sat end of next bus. Day ≠ Sun.;→ Calculate: exclude the date on which the triggering event occurs, start count with next day) |
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commencing an action
1. what do I need 2. who do I file with 3. exception |
Commenced: filing process = papers P uses to commence the action → summons + complaint OR summons + notice
i. Filing must be made with clerk of the court → on or before last day of SoL 1. Justice court exception: process must be served on D before the last day |
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SoL
1. when does it run from? 2. persona injury sol? 3. tort against child in utero? 4. property damage SoL 5. breach of K claim |
b. SOL generally: runs from date of injury / breach even if P is NOT aware of injury or breach; discovery not generally used
i. Personal injury, property damages= accrues at date of original impact/injury = 3 year SoL ii. Breach of K claim: accuress on the date of the breach, (NOT discovery of breach → 6 year SoL iii. Tort for child in utero: ≠ CoA until born alive-→ SoL = runs from birth |
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medical malpractice SoL
1. Sol? 2. does it apply to VL claim too? 3. what is not med. mal? 4. when does it run? 5. who does it apply to? (5) 6. excheption to tolling? (2) 7. 2 SoL for foreign object 8. what is a foregn object 9. what is not a foregin object (3) |
i. Medical malpractice: 2.5 (applies to VL claim too) → Med. Mal ≠ neg. actions for neg. hiring = dif. SoL
1. 2.5 years fm date of injury→ ≠ discovery date→ nurses, doc, dentists, podiatrist + VL hospital 2. Exceptions: Docs are governed exclusively by med. Mal, don't apply anything beyond these exceptions. a. Continuous treatment: 2.5 years from end of treatment→ must be same condition + treatment that gave rise to med mal. ≠ hemerroids and toe nails b. Foreign object: 2.5 yrs from injury OR 1 yr from discovery or should have w/ reasonable diligence i. *apply SoL that is longer ii. foreign object: Doc ≠ intent to leave behind→ Doc must be responsible for entry into P’s body. 1. NOT: chemical sub., prosthetic device, fixation device (doc intended to leave there)→ EX: medicine, him replacement, internal packer iii. Doc needs to have put it there: failing to detect existing object ≠ foreign object→ Same doc + enty by doc required |
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professional mal practice (non-medical)
1. who is covered? 2. who is not covered? 4. SoL? 5. What does the SOL apply to? 6. data of accural for architect/engineer? 7. personal injury in a collapsed building? 8. what do I need to do if building is more than 10 years old (3) 9. accural for atty/ accountant 10. contiunous representation rule |
ii. Professional malpractice: non med. Professions→ architects, engineers, accountants, attys, members of learned profession (need certain kind of degree) ≠ insurance brokers, plumbers = SoL for breach = 6 → ≠ personal injury or other claims these SoL only apply to mal practice claims
1. 3 yrs → for any type of professional malpractice for financial loss (non-medical) → applies to tort and K= exclusive period for all claims regardless of type. 2. Date of accrual: a. Architect/engineer: runs from completion of building ≠ date of collapse. → Personal injury: 3 years from injury (regardless of completion of buld.) → if injury more than 10 yrs after building built special rule= 90 days before trial +notice of claim served by P on D + pretrial discovery allowed + D MSJ burden shifting= P makes immediate evidentiary showing of “substantial basis” D’s neg prox cause of injuries ≠not intervening cause like poor maintinence) 3. Acct or atty: 3 years from the delivery of workproduct. 4. Continuous representation: applies 2.5 years from end of representation (atty but auditor done each year) |
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municipal tort liability
1. what is this? 2. against who? (5) 3. Sol? 4. when is notice of claim served? 5. what is no notice of claim served 6. what after notice of claim served? What do you need to plead? 7. what if it is 90 days after accident but before 1 year and 90 days? |
Municipal tort liability: action for personal injury OR property damages agisnt gov. subdivision of the state (county, city, town, school district or municipal hospital)
1. Sol:1 year 90 days from accident AND notice of claim served within 90 days of accident → if No notice of claim served = D entitled to dismissal for failure to state CoA. (defense on the merits) 2. *after service of the notice of claim on municipal D = P commences action→ complaint must plead compliance with notice of claim requirement. 3. 90 days after accident but before 1 year and 90 days: if 90 period expired → P makes motion to serve late notice of claim= court discretion to grant if municipal D ≠ prejudiced (ie had notice) |
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products liablity
1. what CoA's? 2. do I need to plead CoA separately 3. neg. sol? against who? 4. strict products liablity Sol? (against who?) 5. BoW? Source of law? against who? *special note? 6. toxic substance? SoL? Def? 7. indemnity and contribution |
iv. Products liability: 3 CoA = 1) neg. 2) strict products liability, 3) BoW→ all can be asserted in same complaint
1. Negligence: 3 years from date of injury (against all D in chain of distribution) 2. Strict Products Liability: 3 years from date of injury (against all D in chain of distribution) 3. Breach of Warranty UCC: 4 years from date D delivered the product = date of sale (SoL Diff. for all D’s) 4. Toxic substances: 3 years from discovery reasonable diligence should have been discovered→≠ apply medical malpractice→ = any inherently harmful toxin that has latent or slow developing effects (asbestos, insecticides, HIV, leaking petroleum.) exposure= assimilation/implantation into body/property 5. Indemnity and contribution: 6 years from actual payment of the judgment for which indemnity/contribution sought→ date of original transaction irrelevant. |
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Intentional torts:
1. to person Sol? 2. property damage sol? |
Intentional torts:
1. To person: 1 year 2. Property damage: 3 years |
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1. SoL for fraud? (2)
2. SoL for equity actions? 3. Property damages Sol? 4. what 2 things does property include. |
vi. Fraud: → 6 years of commission of fraud OR 2 years of discovery (actual/imputed) = longer SoL
vii. Equity actions: → 6 years viii. Property damages including conversion/ Replevin = 3 years |
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Crime victims:
1. crime victims SOL 2. serious crime V's SoL 3. special thing P can do? 4. V of rape related felony runs from and If prosecuted |
Crime victims: → 7 years → Serious crime: 10 years* P may also sue for $ damages up to 3 years from the date of discovery of D’s receipt of $ or property from any source.
1. V of rape related felony: runs from date of crime, if prosecuted gets 5 years from termination of criminal proceeding (note this is not conviction, dismissal= okay) |
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tolls apply ______ of the theory of liability
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tolls apply regardless of the theory of liability
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Tolling and D’s absence
1) if D not in NY when action accurues SoL does what? 2) if D in NY when action accures and leaves for a period of at leas 3. exception to both |
D’s absence
1) if D not in NY when action accurues SoL, runs when D comes to NY, unless service outside NY possible (long arm personal jurisdiction) → 2) if D in NY when action accures and leaves for a period of at least 4 months toll applies to entire period of absence→ (exception swollows rule P ≠ get tolling here) Exception for both: unless P had basis for Personal jurisdiction over D such that process could be validly served on the absent D EX: (long arm personal jurisdiction for tortious act in NY) No tolling them |
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Tolling and Infants/insane:
1. in addition to toll what can infants do? 2. when does the toll end? 3. if original SoL 3 + years? 4. if original SoL less than 3 years? 5. time limit on med. mal infants? 6. time limit on insane. 7. def. of insane? |
Infants/insane: can sue with reg. SoL w/competent adult rep. but get benefit of toll→ (under 18 or unable to function in society ≠ formal judicial proceeding required.)→tolled until disability ends then:
1. If original S/L 3+ years: 3 years from end of disability OR regular S/L from accrual 2. If original S/L <3 years: original S/L after disability ends 3. 10 year limit for med mal by infants (compute separately from continued treatment toll) give longer SoL 4. 10 year limit for all insanity tolling: time barred after 10 years from date of accrual regardless of CoA |
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Tolling and Death of Potential Plaintiff:
1. survival claim def? (2 sol) 2. wrongful death claim def? (Sol? Pain and suffering? Punitive? |
Death of Potential Plaintiff: wrongful death and survival claim asserted together in one action or separately = might have 2 CoA w/ diff. SoL’s
1. Survival Claim: any CoA P could have brought herself if alive = torts, pain and suffering before death a. P dies before SoL expires: estate rep gets time remaining on SoL OR b. 1 year from date of P’s death * use which ever is longer. 2. Wrongful death: CoA of tort for pecuniary (economic) damages to decedent’s statutory distributes (surviving wife and kids) → executor/ administrator sues (will/no will) a. 2 years from date of death + underlying personal injury claim still timely at time of death b. Punitive damages recoverable c. NOT pain and suffering. |
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tolling and Death of potential D:
1. rule; 2. when is it added |
Death of potential D: 18 months always added to S/L period if D dies ANYTIME before SoL expires
1. Death of P (see above): wrongful death (2 years); survival (1 year or time remaining) 2. If potential D dies before S/L expires: 18 month added to SoL *add in even if NOT needed |
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Dismissal of timely action:
1. if SoL expires and my case dismissed what happens? 2. if SoL has less than six months left what happens? 3 when can I NOT refile? (3) *not included here? 4. what does neglect to prosecute mean? |
Dismissal of timely action: 6 months to re-file from date of dismissal (timely commenced, dismissed before trial, at time of dismissal SoL expired/less than 6 months left) → UNLESS dismissal on merits; voluntary discontinuance by P; neglect to prosecute; or lack of personal juris, including defect in summons/improper service)
1. Neglect to prosecute: “general pattern of delay” ≠ a one time screw up = refile w/grace period 2. NOTE only personal jurisdiction (defect in form of summons, improper service of process, no long arm) ≠ subject matter jurisdiction: if dismissal =SMJ= 6 month grace period (ie diversity) |
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Which SoL to apply: If cause of action arises outside NY, but suit brought in NY)
1. If P was non-resident of NY when out-of-state claim arose: 2. If P was a NY resident when out-of-state claim arose: |
Borrowing (if cause of action arises outside NY, but suit brought in NY): conflict of laws issue.
i. If P was non-resident of NY when out-of-state claim arose: apply shorter SOL where arose if SoL shorter than NY→ if SoL longer than NY apply NY SoL ii. If P was a NY resident when out-of-state claim arose: apply NY SOL |
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JURIS. OVER PARTICULAR PARTY
1. define 2. why do we need this? 3. why do we want it? |
JURIS. OVER PARTICULAR PARTY→Personal Jurisdiction: In addition to SMJ three additional juris. Element must be satisfied for a court to render a valid judgment = a judgment that can be enforced in NY and equal to full/faith and credit in other states
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Personal jurisdiction overview:
three requirements + subsections |
Personal jurisdiction overview:
(1) Proper commencement of the action (2) Proper service of the process on the D (3) Proper basis of jurisdiction over the person or property involved in the action (A) General juris? (B) Specific (long-arm)? (C) Due process? |
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Personal jurisdiction
commencement procedures? |
Commencement procedures: = filing “process” (summon/notice or summons/complaint) with clerk of court
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Personal jurisdiction
how do you file process? (3) |
All courts:
1. File process with county clerk + 2. purchase index number (summons and complaint OR summons with notice) and 3. serve on D within 120 days of filing with Country Clerk. → 1. *not supreme court clerk* will test this; you CANT file process with him |
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Personal jurisdiction
defense against untimely/improper process |
Defense of untimely/improper service waived if not preserved by D’s motion
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Personal jurisdiction
filing process =? (2) |
Filing process= valid commencement = interposes the claim for the SoL purposes
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Personal jurisdiction
filing process; 1. can be P extend the time? effect? 2. what to do if P has trouble serving D 3. what does D do if he wants to challenge timeliness of service of process 4. are mistakes fatal? |
Motion by P can extend time from 120 days; court has discretion to grant/deny = If not dismissal w/out prejudice
if P has trouble serving D: P makes ex parte motion and shows good cause + interest of justice = filing occurs after 5 days of court signing the order D wants to challenge timelinees of P’s service of process: D makes motion to dismiss for untimely service. Court has discretion to grant the extension / apply it retroactively→ Burden is on D if D ≠ raise the defense = D waived it Mistakes not fatal: If P makes mistake in filing procedure, (ie serving process before the filing of procees, or not buying an index number) the court has discretion, upon P’s motion, to permit correction of the mistake provided D suffers no prejudice, + filing occurs with SoL, + filing fee paid |
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service of process defined
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Service of Process:
FORM: initiatory papers that invoke the court’s jurisdiction→ |
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service of process
1. summons and complaint def 2. summons and notice def. (3) 3. personal injury and wrongful death rule 4. naked summons? =? effect? |
Summons and complaint: summons advises D that P is suing in a particular court→ Complaint: P’s pleading, specifies transaction or occurrence being sued upon/ describes elements of P’s CoA
Summons with notice: includes brief statement of nature of action (“breach of K”), nature of relief sought, and amount sought if monetary (except for med mal); a. Personal injury/ wrongful death: neither notice OR complaint may specify the amount of damages sought Naked summons lacks complaint or defective notice= defect in personal jurisdiction → dismissed *D needs to make a motion to dismiss if not= waved. |
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service of process
FORM: personal injury and wrongful death rule. |
Personal injury/ wrongful death: neither notice OR complaint may specify the amount of damages sought
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Service of process
METHOD: 1. who can serve (2) 2. can P's lawyer serve? 3. Can P's spouse serve? 4. What days can I serve? 5. what days can I NOT serve? |
ii. METHOD: Can be served by anyone 18+ not a party to the action
(P’s lawyer/spouse CAN serve) → Can be served on any day (including holidays) except Sunday. (or Sat if sat sabith observer good faith error okay, bad faith = defect) |
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Service of process
METHOD: if D knows I am about do sue him do I still need to serve him? |
Actual notice ≠ service of process, even if D knows this is not effective service of process
b. Court of appeals very strict about “invoking court’s jurisdiction” you need to follow rules precisely. |
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Service of process
METHOD: D's response time is measured by? |
c. D’s response time is measured by the time service is “complete”
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Service of process
METHOD: list five traditional ways of serving on Persons |
1. personal delivery to D
2. leave and mail 3. nail and mail 4. Expedient service 5. designated agent to receive service of process |
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Service of process
METHOD: personal delivery to D 1. when is service complete 2. what to do if D refuses service? 3. Does it count if I leave it with someone in D's household/ vicinity? |
Personal delivery to D:
service by personal delivery is “complete” upon process server’s tender of summons to D’ If D refuses =service is still valid if left in D’s vicinity (lay it on desk/ throw at feet) Go between ≠ qualify as personal delivery |
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Service of process
METHOD: leave and mail 1. who gets a copy? 2. how many steps? Describe? 3. time frame for both steps to be completed---- WHAT MUST I do next 4. time frame for completing both sets with filing process 5. What kind of mail? 6. Is it wrong if I mail to different places? |
EACH D gets a copy
i. Deliver to person of suitable age/discretion at actual dwelling place/business AND mail to actual business or last known address 1. Must be done within 20 days of each other (doesn't matter which is first) 2. Both within 120 days of filing process; Must FILE proof of service after both steps complete; service complete 10 days later 3. Regular mail = 1st class or better ≠ certified; mailing doesn't have to be same place as delivery |
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Service of process
METHOD: Affix and mail 1. what must you do first? 2. special requirements of attempts? 1. who gets a copy? 2. how many steps? Describe? 3. time frame for both steps to be completed 4. time frame for completing both sets with filing process 5. What kind of mail? 6. Is it wrong if I mail to different places? |
Nail and mail (same as leave and mail see below) →
Must first attempt to personally deliver/leave with person of suitable age/discretion i. Affix with tape/rubber band ≠ damage to property ii. Due diligence required: *process service here (unlike leave and mail) must exercise diligence by making an attempt ot serve D director or to leave process with someone of suitable age. → there must be several attempts on several different days of the week at different times of the day. LEAVE AND MAIL Deliver to person of suitable age/discretion at actual dwelling place/business AND mail to actual business or last known address 1. Must be done within 20 days of each other (doesn't matter which is first) 2. Both within 120 days of filing process; Must FILE proof of service after both steps complete; service complete 10 days later 3. Regular mail = 1st class or better ≠ certified; mailing doesn't have to be same place as delivery |
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Service of process
METHOD: Expedient service 1. when can I use this? 2. how do I get this? 3. what is this? 4. What do I need before I can act. 5. some examples |
Expedient service (if above are not practicable)→ On ex parte motion to court to get order allowing impoverished expidient method. This is just anything that is reasonably apt in circumstance.
*you need a court order to do this ii. EX: Service on D’s liability insurer, by email, bus. Associate, family member |
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Service of process
METHOD: Designated agent to receive service of process |
this is usually set in a K
remember you should only use the people said in K NOT anyone else. no go betweens |
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Service of process
METHOD: Infants/mentally incompetent: 1. how to if Infant younger than 14? (list 4 people) 2. how to if infant is holder than 14? 3. how to if mental w/ judicial proceeding 4. how to serve if mental without judicial proceeding. |
*use any of the traditional methods above.
Infants/mentally incompetent: If infant 14+, must serve on infant and adult (2 sets) → If mentally incapacitated, must serve on D and guardian (2 sets) Infant younger than 14: D’s name on summons, process to either: 1) parent, 2) guardian, 3) P who has legal custody, 4) if infant married, adult spouse with whom infant resides (selena Gomez) * only one set of process here If insane but no judicial proceeding yet: serve just like any other D (Charlie Sheen) court later give guardian at litem |
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Service of process
METHOD: Service Outside NY 1. what is assumed? 2. who can serve (3) 3. how to hand a conflict in service procedures in the other jurisdiction? |
Service Outside NY: Same methods as NY service (assumes a basis for out of state service) →
Can be served by: (1) Any NY resident authorized under NY law (18+ and not a party) (2) Anyone authorized under foreign juris’s laws (3) Any atty licensed in foreign juris where service is made i. Note even if foreign juris and NY conflict, it is proper, ie 17 yr old process server okay if foreign juris says it is |
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Service of process
METHOD: Methods of serving on corporation: when D is a corp. overview (2) |
when D is a corp you can serve by
1. personal delivery 2. service on NY Sec. of state |
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Service of process
METHOD: Methods of serving on corporation: when D is a corp. personal delivery 1. what is assumed. 2. where can i serve 3. who can I serve to (4) 4. who should I watch out for |
Methods of serving on corporation: when D is a corp.
Personal delivery: If basis for juris over corp. any one below can be served with process by personal delivery anywhere in US →to any one of the following: i. Officer/ director (member of board) / designated agent of corp. ii. Managing agent (corp. employee with supervisory responsibility) iii. **watch out for secretaries, unless they are designated agents, ≠ service of process |
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Service of process
METHOD: Methods of serving on corporation: when D is a corp serving on Sec. of State 1. who is this 2. who can be served this way (2) 3. how does this work? |
Service on NY Sec of State: designated agent as per certificate of incorp
If domestic or foreign licensed crop: personally deliver 2 copies of process to NY State sec. 1. NY state Sec is the designated agent → they will mail copy to corps address on file. But service is complete when Sec. gets it. |
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Service of process
METHOD: Methods of serving on corporation: when D is a corp serving on Sec. of State 1. What to do if If unlicensed foreign crop: 3. how does this work? |
b. Service on NY Sec of State: designated agent as per certificate of incorp
ii. If unlicensed foreign crop: personally deliver 1 copy to Sec, mail 1 copy to corp. (you mail it yourself, sec ≠ mail it they don't have the address) → sec. here is an implied agent 1. *this method can be used for a domestic unlicensed corp. that is NOT “doing business” in NY as long as there is a basis for personal jurisdiction under the long–arm |
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Service of Process
Method: service by mail and acknowledgement 1. who can this be used on? 2. who can't this be sued on (2) 3 two things i do to serve? 4. when is serve cmplete 5. what if D doesnt cooperate. 6. what is the consequence of D not cooperating? 7. if D returns the forms does the court now have jurisdiction? |
Service by mail + acknowledgement: Can be used on ALL Ds (person, corp, out of state) except infants/incompetents. →
a. First class mail + Send D 2 copies of process and acknowledgement form (send pre paid postage, return envelop addressed to sender) → D can sign and return within 30 days = service is complete * but this depends on D’s cooperation → if D doesn't return the form service is NOT effective, -→ P must serve proccess all over again using a traditional method (as consequence D must pay P’s expenses) infants/incompetents: cannot be served by this method, every one else can be D’s return of form is NOT a concession the court has jurisdiction: he must however raise an objection to jurisdiction later by motion or in answer |
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Jurisdiction over D’s person:
what does it do? |
d. Jurisdiction over D’s person: Personal jurisdiction enables a judgment for $ damages to be enforced in full.
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General jurisdiction + personal jurisdiction
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General jurisdiction—does not matter where claim arose: can be served anywhere by NY Methods:
1. presence and 2. doing business 3. domicile in NY (at time action is commenced) |
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Jurisdiction over D’s person:
presence in NY |
1. Presence in NY: USSC says that physical presence in jurisdiction is a valid basis of jurisdiction, this is a form of general jurisdiction it doesn't matter whether claim arose in NY, or if D has ever been to NY
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Jurisdiction over D’s person:
Doing business in NY: domestic and licensed corps. |
Doing Business in NY: this is a form of general personal jurisdiction it doesn't matter where the claim arise.
Domestic corp. and licensed corp.: subject to personal juris in NY on any claim, no matter where the claim arose. → same for a foreign licensed corp. not incorporated in NY but authorized to do bus. This is the “licensed corp.” |
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Jurisdiction over D’s person:
Doing business in NY: unlicensed corps. 1. general 2. sales? 3. transient presence of CEO? |
Doing Business in NY: this is a form of general personal jurisdiction it doesn't matter where the claim arise.
Unlicensed corp: subject to personal juris if DBINY – corp’s agents/employees are in NY engaging in commercial activity for the corporation on a regular, systematic, on-going basis (e.g. have office in NY no need to show any relationship between P’s claim and NY). i. Most significant factor: whether corp. has an office or other physical facilitiy in NY with employees coming and going on a continuous systematic and on going basis ii. Mere sales of product In NY does NOT qualify as “doing business” → mere advertising in NY does not qualify either. There must be an ongoing and continuous business activity by the corps. Agent. iii. Transient presence of corp. officer in NY Is not enough to have personal juris. Over the corp.: here the corp. is the D not the man, |
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Jurisdiction over D’s person:
specific jurisdiction defined. 1. how? |
Specific Jurisdiction: claim must be specific to D’s NY activity or within terms of contract
1. Long-arm jurisdiction: claim arises from – |
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Jurisdiction over D’s person:
specific jurisdiction: long arm list 6 generally |
Long-arm jurisdiction: claim arises from –
1. transaction of business by D in NY 2. Contract made outside of NY where D agreed to provide goods/service in NY: 3. D's commission of tort in NY 4. D's torts (not defamation) outside of NY Plus additional link 5. D's ownership, use, possession of real property in NY 4. due process |
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Jurisdiction over D’s person:
specific jurisdiction: long arm transaction of business in NY where D agreed to provide goods/ services in NY? |
Long-arm jurisdiction: claim arises from –
Transaction of business by D in NY (even single transaction sufficient if claim arises out of that act, but single telephone call insufficient) → proper even if D never enters NY, as long as his activities there were purposeful and there is substantial relationship between transaction and claim |
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Jurisdiction over D’s person:
Specific jurisdiction: long arm Contract made outside NY where D agreed to provide goods/services in NY: |
Long-arm jurisdiction: claim arises from –
Contract made outside NY where D agreed to provide goods/services in NY: Contract must be economically significant →Doesn’t cover out of state buyers who agree to provide money in NY |
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Jurisdiction over D’s person:
specific jurisdiction: long arm D’s commission of tort in NY (not including defamation): |
Long Arm Covers:
D’s commission of tort in NY (not including defamation): the mere fact that injury is produced in NY does NOT count |
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Jurisdiction over D’s person:
specific jurisdiction: long arm D’s tort (not defamation) outside NY PLUS additional link: (3) |
Long Arm covers:
D’s tort (not defamation) outside NY PLUS additional link: (1) D regularly solicits business or engages in other persistent conduct in NY (Weaker standard than DBINY) (2) D derives substantial revenue from goods used or services rendered in NY → Need NOT be the goods/services involved in the action (3) D expects (or should) the act to have consequences in NY AND derives substantial revenue from interstate/int’l commerce |
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Jurisdiction over D’s person:
specific jurisdiction: long arm D’s ownership, use, or possession of real property in NY |
Long Arm cover:
D’s ownership, use, or possession of real property in NY |
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Jurisdiction over D’s person:
specific jurisdiction: long arm due process |
Long Arm Cover:
DUE PROCESS: satisfied if claim arises out of D’s conduct that is purposefully directed to NY such that D should reasonably anticipate being sued in NY. |
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Jurisdiction over D’s person:
specific jurisdiction: long arm Non-resident motorist statute 1. what is this? 2. how do I serve process (2) 3. who does this apply to |
Non-resident motorist statute – personal juris for use/ownership of car in NY; →
Service of process: personally give one copy to NY Sec of State and mail one copy to D’s out-of-state residence → service is complete when notice is filed wtih clerk of court in 30 days Applies to vehicle owners who give permission to drive in NY |
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Jurisdiction over D’s person:
specific jurisdiction: personal jurisdiction over nonresiddent D in matrimonial actions or family court proceedings |
personal jurisdiction over nonresiddent D in matrimonial actions or family court proceedings
1. the party seeking support is a resident of New York at the time demand is made 2 NY was the place of matrimonial domicile of the parties before their separation or D abandoned P in NY or the claim for support accrued under the law of NY or under an agreement executed in NY |
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Jurisdiction over D’s person:
matrimonial jurisdiction For status of marriage: |
Matrimonial jurisdiction – requires personal service
For status of marriage: P must be NY domiciliary (gives in rem juris over marriage) |
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Jurisdiction over D’s person:
matrimonial jurisdiction monetary support: (4) |
Matrimonial jurisdiction – requires personal service
Monetary support: matrimonial long-arm statute – P-spouse is resident of NY and: (1) NY was matrimonial domicile of P and D prior to separation, or (2) D abandoned P in NY, or (3) D’s monetary obligation accrued under an agreement executed in NY, or (4) D’s monetary obligation accrued “under the laws of NY” |
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Jurisdiction over D’s person:
matrimonial jurisdiction: Status of marriage (divorce, annulment, separation): both NY residents at commencement and grounds arose in NY |
Status of marriage (divorce, annulment, separation):
Durational category must be alleged in complaint (or else failure to state a cause of action): Both NY residents at commencement AND grounds arose in NY: no prior residence required. |
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Jurisdiction over D’s person:
matrimonial jurisdiction: Status of marriage (divorce, annulment, separation): If either party NY resident for a continuous period of at least 1 year immediately prior to the action AND NY has 1 of 3 possible links to the marriage: (name links) |
If either party NY resident for a continuous period of at least 1 year immediately prior to the action AND NY has 1 of 3 possible links to the marriage:
i. Marriage took place in NY ii. New York was matrimonial domicile of spouses at some point iii. Grounds for divorce action arose in NT |
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Jurisdiction over D’s person:
matrimonial jurisdiction: Status of marriage (divorce, annulment, separation): Either party had two year residency immediately prior to action |
Either party had two year residency immediately prior to action – no need to show additional link
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APPEARANCE:
general appearance |
General appearance:
by entering a general apperance D consents to the court’s exercise of jurisdiction over his person. What D must to do avoid entry of default judgment is dependent on whether the form of process was summons and notice or summons and complaint. |
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APPEARANCE:
If by summons and notice |
If summons and notice = D must service a notice of appearance or demand a copy of complaint. D’s response must be within 20 days after service of summons if serve was made by personal delivery in NY, or within 30 days after service is complete if serve was made under any circumstances.
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APPEARANCE:
if by summons and complaint |
iIf summons and complaint:
D must respond by answer or motion to dismiss or to correct the complaint. Either response must be served within the same time periods specified for service of summons with notice. a. If process is served oridinarily by mail, D’s response is due within 20 days after D mails or delivers an aknowledgement of receipt to P |
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APPEARANCE:
curative appearance |
The “curative appearance”: D can raise his jurisdictional objection in two ways:
1) by pre answer motion based on such objection or 2) by answer containing the affirmative defense of lack of jurisdiction. A D has not made a “curative” appearance as long as these are two options are open to him. Conversely D will make a curative appearance by failing to raise the jurisdictional question by motion or in the answer. |
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APPEARANCE:
Waiver of objection: |
Waiver of objection:
if D moves to dismiss on grounds other than lack of jurisdiction and fails to joint any jurisdictional objection In that motion is properly preserved, an assertion of a counter claim related to P’s CoA will not operate to waive the objection→ pleading an unrelated counter claim is a waiver |
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APPEARANCE:
Procedural Effects: dismissal |
iCourt denies motion to dismiss for lack of jurisdiction:
if D moves to dismiss on jurisdiction grounds and the motion is denied, he may not then raise the jurisdictional objection in the answer. → can make an interlocutory appeal on the question or appeal the same at the conclusion of the case if he loses on the merits. |
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APPEARANCE:
Procedural Effects: no motion to dismiss + answer served? |
Defendant serves answer without motion to dismiss based on jurisdiction:
if D makes no motion to dismiss and interposes an answer without jurisdictional objection, timely amendment of the answer “saves the objection” |
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APPEARANCE:
Procedural Effects: notice of appearance |
iNotice of appearance does not waive jurisdiction:
serving of a notice of appearance in response to a summons does not preclude subsequent jurisdictional challenge by motion or answer after the complaint is served. |
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APPEARANCE:
In rem appearance: (general) |
In rem appearance:
to the extent quasi in rem jurisdiction is still available, D may make a “limited appearance” in such an action. IF D loses after defending on the merits, the judgment will be limited to the attached property. However, a D subject to in rem jurisdiction runs special risks whenever he enters an in rem case. |
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APPEARANCE:
In rem appearance: When should D appeal? |
Defendant should appeal immediately:
if D’s motion to dismiss on jurisdictional grounds is denied in an in rem action D should take an interlocutory appeal. If he instead appeals at the conclusion of the case and is unsuccessful in doing so, he may have conferred personal jurisdiction by his contest on the merits. Thus, the only prudent course is an immediate appeal from denial of the motion to dismiss for absence of the in rem jurisdiction. |
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APPEARANCE:
In rem appearance: Appearance in long arm cases: |
Appearance in long arm cases: does not establish a basis for jurisdiction as to causes outside the reach of the long arm.
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APPEARANCE:
In rem appearance: Appearance as basis for jurisdiction as to causes of action not asserted at the time of appearance: |
Appearance as basis for jurisdiction as to causes of action not asserted at the time of appearance:
an appearance (without challenging jurisdiction) constitutes a submission to in personal jurisdiction only as to those causes of action asserted in the original complaint and such other causes as arise out of the transactions that underlie the originally asserted cause of action |
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APPEARANCE:
In rem appearance: Informal appearance: |
Informal appearance:
D may not participate in the merits of a lawsuit as a genuine participant while contending that he has not “appeared” because he has done none of the formal things that constitute a technical appearance. |
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VENUE
who chooses |
P chooses venue and specifies venue in summons.
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VENUE
real property |
Real property: proper venue is where property is located
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VENUE
other actions |
Other actions:
any county where one of the parties resides at the time the action commences. |
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VENUE
partnership/ unincorporated association: |
Residence of partnership/ unincorporated association: principal office, OR actual residence of people who own business.
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VENUE
domestic and authorized foreign corp. |
Residence of domestic and authorized foreign corp.: principal palce of business.
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VENUE
If none of the parties are in NY: |
If none of the parties are in NY: P can choose any county
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VENUE
Replevin |
Replevin: county of residence of any party OR county where personal property to be replevied is located.
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VENUE
witnesses |
Witnesses: discretionary change of venue if it would be convenient for material witness’s; by motion of either party
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VENUE
no impartial trial? |
*where there is reason to believe that an impartial trial cannot be had because of prejudice, it must be on a motion of one of the parties!
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VENUE
improper venue: 1. is it reason for dimissal 2. D's remedy, 3. P's response. |
Improper venue:
not a jurisdictional defeat, so NOT basis for dismissal → D remedy: serve demand to change before/with service of answer, if P objects or doesn't respond D makes motion to change venue granted as a matter of right If P concedes then chance in venue is automatic. |
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DEFENDANT'S RESPONSE
D can respond to summons and complaint by (2) |
D can respond to summons and complaint by either:
(1) Serve answer (admit/deny allegations AND give affirmative defenses) (2) Pre-answer motion to dismiss |
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DEFENDANT'S RESPONSE [summons and complaint]
D'S answer must (2) and may (1) |
i. D’s Answer: Must assert: 1) denials (failure =implied admission);
2) affirmative defense or waived (may be amended see below) →May assert cross/counter-claims |
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DEFENDANT'S RESPONSE [summons and complaint]
P's reply to counterclaim + cross claim |
“reply” is P’s pleading in response to counterclaim. Consists of denials and affirmative defenses. If there is NO counterclaim P cannot serve a reply without court permission. →
in multiparty D case, D can assert cross claim against any other D. In NY Practice, cross claims are asserted in answer and can be based on any type of claim D has against other D’s ***BUT remember even if cross claim effects only one party you still need to give the papers to everyone in the suit. |
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DEFENDANT'S RESPONSE [summons and complaint]
serving answer or any other linterlocutory papers; 1. how? 2. who do I serve? 3. when is service complete? Where? |
Serve answer (and any interlocutory papers) via:
Regular first class mail from NY post office OR Personal delivery; Overnight courier; Fax (with consent, followed by mail) a. This is after P’s intial service of process. -→ served on Atty’s of parties NOT parties themselves. b. Service of interlock. Paper is upon mailing (NOT receipt.) → But be in NY mail with in State ≠ be from any where else, if NOT NY mail then no service. |
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DEFENDANT'S RESPONSE [summons and complaint]
Time limits for serving answer: (2) |
Time limits for serving answer:
20 days if D served via personal delivery in NY OR mail + acknowledgement (20 days within mailing of doc, not within recieving it) → 30 days in any other circumstance after service is complete. |
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DEFENDANT'S RESPONSE [summons and complaint]
Pre-Answer Motion to Dismiss: 1. def. 2. if denied then? |
Pre-Answer Motion to Dismiss:
→ D moves to dismiss a CoA, prior to service of answer on DOWNFALL grounds→ If denied, D must serve answer within 10 days. |
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DEFENDANT'S RESPONSE [summons and complaint]
Pre-Answer Motion to Dismiss: grounds DOWNFALL |
Grounds (DOWNFALL):
D→Documentary evidence (legally operative doc, doc itself gives you the defense. like a mortgage) O→Other action pending between same parties on same action W→Want of capacity of plaintiff—(infant suing without proper rep) N→Non-joinder of necessary party (joint property owners/co-maker of promissory note) F→Failure to state cause of action (substantive efficiency of complaint on its face) even if allegations are true, substantive law ≠ recognize CoA) (i.e. suing for social snub) “P is entitled to every favorable inference that can be drawn from the allegations of the complaint; and therefore, the motion should be denied if there is any basis for relief under the substantive law” *use this language **TIP here is when you assert this you need to discuss the elements of the underlying CoA A→All affirmative defenses (SPARERIBS) L→Lack of personal, in rem, or qusi in rem jurisdiction, including Improper commence of filing (commencement defects) Improper service of process Lack of jurisdictional basis L→Lack of SM jurisdiction |
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DEFENDANT'S RESPONSE [summons and complaint]
Pre-Answer Motion to Dismiss: affirmative defenses SPARE RIBS |
S→ SOL
P→ Payment already made (being used on debt, i.e. already paid you) A→ Arbitration and award already made (you are suing me on something that already got arbitrated) R→ Res judicata E→Estoppel (collateral) R→ Release I→ Infancy of defendant B→Bankruptcy discharge of debt S→ Statute of Frauds |
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DEFENDANT'S RESPONSE [summons and complaint]
Procedural aspects of preanswer motion to dismiss 1. When is it made? 2. what is the effect? 3. where does D need to assert his affirmative defenses? 4. how many pre answer motions to dismiss can D have? |
Procedural aspects of preanswer motion to dismiss
1) Motion is made before service of the answer (or on last day described for service of answer) either 20-30 days when service of process made, just use time limit to answer. 2) Making motion that extends D’s time to answer→ if motion denied, D must serve answer within 10 days of denial 3) D can save up defenses and put them in the answer as an affirmative defense. OR can put those defense in pre-answer motion (GF required) 4) D is ONLY allowed 1 pre-answer motion to dismiss but can do so on multiple grounds. |
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DEFENDANT'S RESPONSE [summons and complaint]
pre-answer motion to dismiss: affirmative defenses and waiver. 1. rule 2. exception 3. when waived timeline? |
NO WAVIER: Raising any defense in the Pre-Answer Motion to Dismiss DOES NOT waive other defenses
EXCEPT lack of personal jurisdiction (including improper service of process). → Defense of improper service will also be waived if not raised within 60 days of serving answer. |
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D'S RESPONSE [summons and complaint]
pre-answer motion to dismiss affirmative defenses: how to preserve personal jurisdiciton defenses: 1. 2 options? 2. what if you dont follow the two methods? 3. what must you do if you plead improper service of process as a defense in the answer? (what if you dont do it?) 4. what does this not apply to? |
How to perverse personal jurisdiction defenses: two options:
1) before serving the answer, make pre answer motion to dismiss, includes lack of personal jurisdiction as one ground 2) No preanswer motions, but include lack of personal jurisdiction as an affirmative defense in the answer. i. *failure to follow these two methods = waiver of personal jurisdiction defenses ii. **WARNING: if you plead improper service of process, as a defense in the answer, YOU MUST follow up with a motion for summary judgment within 60 days after serving the answer. → if you don't do this then improper service as a defense is WAIVED. 1. * this does not apply to a defense that there was improper commencement; i.e. lack of basis of personal jurisdiction → can be resolved with summary judgment or with trial. |
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D'S RESPONSE [summons and complaint]
answer and affirmative defenses; 1. what happens if you dont include affirmative defense in answer. 2. what is a possible remedy 3. list 3 defenses that are never waived |
Affirmative defenses are WAIVED if NOT put in the answer.
Once raised in the answer, all non-raised affirmative defenses are waived (unless D can amend) 3 defenses that are NEVER waived: (1) non-joinder of necessary party, (2) failure to state CoA, (3) lack of SMJ. |
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D'S RESPONSE
D’s response to summons with notice (2) |
D’s response to summons with notice: (1) Serve notice of appearance (2) Serve demand for the complaint
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D'S RESPONSE [summons with notice]
response time limits for service (2) |
Same time limits as for response to summons & complaint (20 days if personal service or mail + acknowledgement, 30 days otherwise)
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D'S RESPONSE [summons with notice]
When must P serve complaint 1. what can D do in response? (2) 2. What if P fails to meet time limit to serve? (D's actions + P's response (2)) |
P must serve complaint within 120 days, then D has 20 days to serve answer OR make pre-answer motion to dismiss.
If P fails to meet 120 day time limit to serve complaint, D may move to dismiss CoA based on P’s noncompliance, i.e. neglect to prosecute. When defending against such a motion what must P do to avoid dismissal: i. Show reasonable excuse for delay ii. P must make evidentiary showing that P’s CoA has merit, by filing affidavit of merit, → can come form P as a W, or a W who has personal knowledge of facts→ showing there is merit on the claim. |
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D'S RESPONSE [summons with notice]
IF P serves complaint can D can still object to personal jurisdiction? (2) |
*IF P serves complaint D can still object to personal jurisdiction. →
Demand for complaint or notice of appearance ≠ waive jurisdiction objections. → D can still raise personal jurisdiction as a defense in the answer or in a pre answer motion to dismiss |
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AMENDMENT
Who and how many times can you amend as a matter of right? |
Each party can amend once as of right within 20 days from D’s answer.
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AMENDMENT
1. can D raise omitted pers. jurisdiciton objection by means of amendment? 2. what is required (2) |
D may raise omitted personal jurisdiction objection by means of amendment as a matter of right provided
(1) D did NOT make pre answer motion to dismiss and (2) D add the jurisdictional amendment to answer within 20 days after serving the original answer. |
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AMENDMENT
When period for free amendment expired OR Party already made 1st free amendment, 1. what is required to amend? 2. when can you amend (2) |
When period for free amendment expired or Party already made 1st free amendment,
a motion for leave is required: the decision to permit amendment is in courts discretion. *very liberal, presumption in favor of amendment. Amendment allowed if opponent will suffer no incurable prejudice (1) Prejudice: opponent has the burden to show that bec. of delay in amendment, (2) opponent suffered detrimental change in position, as a result of the delay, (i.e. disadvantage in litigation) like loss of evidence, death of W, disappearance of W |
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3RD PART PRACTICE: [contribution and indemnity]
impleader def. |
procedural device used by D to joint another party alleged to be liable in whole/in part for damages that D may have to pay P (usually indemnity and contribution=reimbursement from the same transaction/occurrence as P’s cause of action)→ D impleads 3rd party as 3PD (D changes into 3PP)
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3RD PART PRACTICE: [contribution and indemnity]
impleader timing 1. when 2. possible consequence |
Timing: D can go after 3PD any time after service of D’s answer.
Either 3PD or P can move to dismiss 3PD action if D commences it too long after D’s answer = would unjustly delay determination of P’s lawsuit against D. |
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3RD PART PRACTICE: [contribution and indemnity]
Impleader Procedure: Steps for joining 3PD (2) |
Procedure: D may Implead TPD at any time after D serves the answer to the complaint.
Steps for joining 3PD: FILE: D files summons and 3P complaint. AND SERVE: within 120 days of filing, D serve copy of summons and 3P complaint on 3PD and serve a copy of other parties too. (i.e. on P) → *there must be a proper basis for jurisdiction over 3PD, and must be proper service of process. |
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3RD PART PRACTICE: [contribution and indemnity]
Impleader Procedure: 1. who must 3PD serve his answer to? 2. Time limit for service? |
3PD must serve a third-party answer on D, P and all other parties who have appeared in the action. →
Time is 20 or 30 days depending on where and how TPD was served with process. |
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3RD PART PRACTICE: [contribution and indemnity]
Impleader Procedure: 1. after 3PD is jointed what can P do? 2. what time frame does she need to do it in? 3. if she waits too long? |
After 3PD is joined→ P may amend her complaint to assert a claim directly against 3PD, thereby making 3PD an additional D in P’s action. →
NO amendment needed if done within 20 days after P was served with the third-party answer. → If P waits beyond 20 days, P must make motion to get court's permission for such amendment. |
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3RD PART PRACTICE: [contribution and indemnity]
Impleader Procedure: 1. SoL? 2. doctrine of relation back (2 requirements) |
SOL: when P adds a 3PD as a D in CoA, SoL compliance is from date of amendment. *but see relation back doctrine.
Doctrine of relation back: For SoL P’s added claim against 3PD will be deemed interposed on the date 3PD was impleaded (i.e. when D filed impleader papers) provided P’s claim is based on: [2 requirements] 1. P’s claim on 3PD, = same transaction or occurrence as D’s impleader claim. AND 2. P’s claim against 3PD would have been timely on date of impleader *policy 3PD was on notice when impleaded. |
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3RD PARTY PRACTICE: [contribution and indemnity]
indemnity def. 1. two ways to do it. |
Indemnity: substantive law basis for 3P practice→ allows one party to shift 100% of
By K: contractor/sub-contractor agree to indemnify eachother Implied in law indemnity: i. Products liability: retailer from manufacturer. ii. VL situations: NY car owner is VL for damages caused by neg. driver she lends car to. Owner who pays V entitled to indemnity from Driver. |
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3RD PARTY PRACTICE: [contribution and indemnity]
contribution def. |
Contribution: sharing the loss, “apportionment” among multiple tortfeasors who are all actual participants in tort. → purpose is to mitigate harshness of Joint and several liability.
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3RD PARTY PRACTICE: [contribution and indemnity]
contribution: MBE and NY Rule |
MS and NY rule: each tortfeasor liable to P for full amount regardless of fault. ***see Art. 16.
S/L for contribution is 6 years, regardless of underlying action (e.g. med mal)→ SoL starts to run from the date of payment of judgment for which contribution is sought. Ie impleading med mal 3 years after (ie longer than 2.5 sol) = okay for contribution impleader, you are bring Contribution claim not med mal claim. P couldn't add Doc as D, but SoL on contribution doesn't run until payment, so impleader during litigation means SoL hasn't even begun to run. |
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3RD PARTY PRACTICE: [contribution and indemnity]
contribution: intentional tortious conduct (MBE + NY Rule) |
Intentional tortious conduct:
MBE: No contribution allowed → only for neg. NY rule: contribution allowed for all tort cases *see Art 16. |
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3RD PARTY PRACTICE: [contribution and indemnity]
contribution: three ways to assert contribution claims |
Ways to assert contribution actions:
Cross claim: if P originally joint tortfeasors as co-D’s, D’s make cross claims Impeader: If P didn't include D2, other D1 can implead D2 as 3PD Separate action: D1 can sue D2 in sep. action → NOT good bec. parties here are not bound by original terms of action between P and D1. → D1 needs to plead case all over again Since D2 wasn’t party to first action: res judicata or collateral estoppel are not defenses. D2 never had opportunity to defend case on facts. |
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3RD PARTY PRACTICE: [contribution and indemnity]
contribution: formula MBE and NY |
Comparative Degrees of Fault (MBE and NY):
Amount of contribution to which a tortfeasor is entitled is the excess actually paid by him over and above his equitable share of the judgment. Each tortfeasor is liable for contribution according to fault! (this doesn't change P’s rights, P still gets 100% from one D1) Bad news if D3 insolvent: D seeking contribution gets stuck with bill. So he couldn't make D2 reimburse D1 from insolvant D3’s share. |
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3RD PARTY PRACTICE: [contribution and indemnity]
contribution: formula (MBE Minority rule) |
Equal shares of contribution: minority rule, MBE only:
don't use this test unless they tell you to. → Here contribution shares are all equal in amount. Individual % fault = irrelevant. |
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3RD PARTY PRACTICE: [contribution and indemnity]
Right to contribution exists whenever 3PD breach a duty in tort which contributed to or aggravated damages for which D paid to P 1. can 3PD be subject of contribution even if NOT liable to P 2. what effect do exculpatory clauses have? 3. successive tortfeasors? |
Right to contribution exists whenever 3PD breach a duty in tort which contributed to or aggravated damages for which D paid to P→ 3PD can be subject of contribution claim even if NO liability to P
A sues B → B has K with C which limits C’s liability to gross neg. or has exculpatory clause → B can implead C Exculpatory clauses do not preclude contribution where liability wouldn't exist Successive tortfeasors also fit here, so if 3PP and 3PD, didn't act in concert but 3PD just aggravated the injuries |
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3RD PARTY PRACTICE: [contribution and indemnity]
contribution: worker comp. 1. MBE rule 2. NY RUle 3. what is grave injury 4. examples of grave injury 5. wrongful death? |
Workers compensation exception: P can’t sue employer but CAN sue third parties. →Third parties CANNOT implead employer for contribution, EXCEPT in NY if grave injury (shown by 3PD).
MBE: 3P NEVER has a right to contribution from P’s employer NY: 3P has a right to contribution if injury is grave Grave injuries: Death; loss of arm, leg, hand, foot, nose, ear, index finger, or multiple fingers or toes; paraplegia or quadriplegia; severe facial disfigurement; total deafness or blindness; or brain damage causing total disability (must be total, thumb is not included). Court of appeals strict about “grave” injury: ≠ loss of thumb, finger tips, blindness in 1 eye Applies to wrongful death action brought by personal rep. |
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3RD PARTY PRACTICE: [contribution and indemnity]
contribution: Settlements multiple tortfeasors (NY RULES): 1. if P releases one tortfeasor can he still sue the others? |
If P releases one tortfeasor, in partial satisfaction P can still go after others for the balance
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3RD PARTY PRACTICE: [contribution and indemnity]
contribution: Settlements multiple tortfeasors (NY RULES): 1. If P settles with one joint-tortfeasor and wins at trial against other? (2) |
If P settles with one joint-tortfeasor and wins at trial against other:
apply reduction formula. Any judgment for P against a non-settling tortfeasor must be reduced by EITHER (1) the amount of settlement with settling tortfeasor OR (2) settling tortfeasors’s equitable share of the fault, whichever is larger. |
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3RD PARTY PRACTICE: [contribution and indemnity]
contribution: Settlements multiple tortfeasors (NY RULES): 1. Effect of settlement on contribution claims? 2 exception |
Effect of settlement on contribution claims:
Claims for contribution cannot be asserted by or against a settling tortfeasor. → A party who settles cannot sue or be sued for contribution Exception: where tortfeasor settled for $1 or less, → you can still get contribution under statute here. |
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3RD PARTY PRACTICE: [contribution and indemnity]
contribution: Settlements multiple tortfeasors (NY RULES): 1. Effect of settlement on indemnity claims: |
Effect of settlement on indemnity claims:
Settlement does not extinguish claims for indemnification by/against a settling tortfeasor. |
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3RD PARTY PRACTICE:
Article 16 modification of J/S liability Applies when: |
Article 16 modification of J/S liability Applies when:
Rule: Joint tortfeasor is 50% or less at fault AND P has sustained non-economic damages, he cant be required to P more than his share of P’s non-economic damages. → pain and suffering, loss of consortium, mental anguish. (reduces P’s rights under joint and several liability) |
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3RD PARTY PRACTICE:
Article 16 1. does not apply to? |
Art 16 ≠ apply to lost income, med. Expenses, these are economic damages.
1. Gets rid of D’s need for contribution NOT property damage → or wrongful death claims (claims for economic damage to statutory distributes. |
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3RD PARTY PRACTICE:
Article 16 1. Applies to? |
ONLY applies to personal injury claim from V themselves
NOT property damage → or wrongful death claims (claims for economic damage to statutory distributes. |
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3RD PARTY PRACTICE:
Article 16 exceptions (tortfeasors who are always joint and several liability for all damages: so here even if personal injury, property damage and noneconomic damages: +special note |
the following tortfeasors are subject to FULL joint and several liability for all damages: so here even if personal injury, property damage, or non-economic:
(1) D acted with intent or reckless disregard for safety of others; (2) D released hazardous substance into environment; (3) drivers and owners of motor vehicles (except police/fire). (4) persons liable in strict products liability cases where manufacturer is NOT a party (needs to prove P could not get juris. Over manufacturer, and that if M was a party he would have had fault under strict liability) Where some D’s acted intentionally and other D’s acted neg.: then only the intentional tortfeasors are subject to full joint and several liability. ii. Drivers exception is huge! This is the most common tortfeasor so look out for him. |
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MOTION PRACTICE
What is a motion |
Motion Practice: an application for an order from the court; a request for some type of preliminary or incidental relief.
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MOTION PRACTICE
Motion on Notice Def. |
Motion on notice gives the adversary an opportunity to be heard in opposition
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MOTION PRACTICE
Motion on Notice: what papers are served on the other party. |
What papers are served on the other party?
A notice of motion (nature of motion and gives return date); supporting affidavits (state why entitled to relief seeking); memo of law (legal arguments supporting position); *memo of law is optional, notice of motion and supporting aff. Are required for all docs. |
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MOTION PRACTICE
Motion on Notice: When is motion “made?” |
When is motion “made?” When papers are served on the other party. Motion is made when it is mailed (served).
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MOTION PRACTICE
Motion on Notice: return date |
Return date: day where motion papers are presented to the court is “return date” (hearing date of the motion) →
moving party chooses the return this case for motion on notice |
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MOTION PRACTICE
Motion on Notice: Advance notice required: 1. when must moving party serve motion papers? 2. The papers should all be filed before? Then what does the court do? |
Advance notice required: moving party must serve motion papers on opponent at least 8 days before return date.
The papers should all be filed before return date, then the court begins the decision making process and issues an order which either grants or denies the motion |
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MOTION PRACTICE
Motion on Notice: Order to show cause 1. who is this 2. who is giving notice? |
Order to show cause: Alternative way to make a motion on notice: preliminary order signed ex parte by judge, directing adversary to “show cause,” on a date specified by the judge, why the motion should not be granted. →
Judge, rather than party, is giving notice of motion and chooses return date and will specify method of service on adversary (usually personal delivery) |
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MOTION PRACTICE
Motion on Notice:Order to show cause what is the procedure? |
Procedure: moving party drafts order to show cause, and submits it to the judge exparte, along with the supporting affidavits for the underlying motion→ judge sets return date; after judge signs order, the order and the underlying motion papers are served on the opponent by the moving party. →
opponent can then submit opposition papers on the return date. |
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MOTION PRACTICE
Motion on Notice: Order to show cause why do this? 3 |
Why do this?
(1) It is a means of accelerating return date (judge can specify a return date sooner than 8 day minimum when you cant wait that long); (2) Judge can grant immediate stay of proceedings or a temporary restraining order (TRO); (3) Statute which governs particular motion may require it. |
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MOTION PRACTICE
Motion on Notice: Order to show cause 1. what is the deciding order? 2. What does the prevailing party do 3. Service is necessary to give? |
Deciding Order: After the return date of a motion on notice, court’s decision must be embodied in a written ORDER signed by court and entered with the clerk →
Prevailing (whether movant or opponent) party MUST (under all circumstances) serve a copy of the order on the losing party with notice of entry of order. → Service is necessary to give effect to order, and also starts the 30 day time limit to appeal from the order. *this is diff. from federal practice. |
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MOTION PRACTICE
MOTION ON NOTICE: Appeals of orders from motions on notice: 1. can you appeal from an interlocutory order 2. what must a party do to appeal from an interlocutory order? 3. what happens is you let the time period lapse? |
Appeals of orders from motions on notice:
NY, a party can appeal from most interlocutory orders (unlike Fed’s final judgment rule). To appeal from interlocutory order (an order that awards some relief but does not finally determine all matters), a party must file and serve a notice of appeal within 30 days from service of the order or judgment with notice of entry. If you let the 30 days lapse, then you need to wait for a final judgment to appeal |
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MOTION PRACTICE
MOTION ON NOTICE: 1. what is an ex parte motion? 2. is there advance noice? 3. is there an opportunity to be heard? 4. what authorization do I need? 5. can I appeal? what is the remedy? |
Ex parte motion:
One party with judge, getting relief→ no advance notice to adversary; no opportunity to be heard in opposition→ ex parte motions can only be made with specific authorization (i.e. very rare to get)→ Appeal: NO appeal can be taken form order that is from ex parte motion-→ Remedy: opponent makes motion on notice to vacate ex parte order if denied, then appeal is possible. EX: expediant service of process, a request for an extension of time to serve process, provisional remedies |
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MOTION PRACTICE
Motion for Summary Judgment: def. |
Motion for Summary Judgment: mixes procedure and substance
→ remember to discuss the elements of the underlying claim. Purpose is to show that even if pleadings are complete on their face, there is no genuine issue of material fact requiring a trial. |
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MOTION PRACTICE
Motion for Summary Judgment: 1. When can parties move for SJ? 2. what is the time limit? 3. how do you satisfy the burden? |
Rules:
Parties generally can’t move for SJ before service of the answer (with some exceptions) → After service of answer, each party can move for SJ with respect to any claim or defense in the pleadings. → Time limit is 120 days from the filing of the note of issue unless moving party shows good cause (which places the case on the trial calendar). → To satisfy the burden of showing that there are no material issues of fact requiring a trial, moving party must submit evidence in the form of affidavits, documentary evidence, or discovery materials. |
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MOTION PRACTICE
Motion for Summary Judgment: 1. what parties can move from SJ for? 2. what is good cause? 3. what is NOT good cause? 4. what kind of evidence do you need? Affidavits? 5. what is the effect of having the party meet its burden? |
Parties can move for SJ on any claim or defense in the pleadings (we wait for answer to know what issues are)
“good cause” if the party does not meet to the 120 day time limit to make MSJ, may be permitted if good cause is shown, ie law office failure or the parties were in settlement or more evidence was discovered→ the strength of the merits ≠ good cause Affidavits; must be from people who have actual knowledge of the facts (parties and witnesses) Evidence: the evidence, must establish that the party is entitled to judgment as a matter of law→ the evidence is so overwhelming that reasonable person cannot differ that party is entitled to judgment as a matter of law. Burden shift: if the moving party meets the burden then the burden shifts to the other side. |
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MOTION PRACTICE
Motion for Summary Judgment: 1. what does "searching the record mean"? 2. what is the boomerang effect? 3. How does opponent defeat motion for SJ? 4. what is the mercy rule? |
Searching the record: court reviews all of the evidence in the record. → can conclude OPPONENT rather than moving party is entitled to SJ (even if non-movant didn't make cross motion)
*the boomerang effect is only made on the issues raised by the parties, The court cannot raise issues even if they are valid to make the boomerang happen How does opponent defeat motion for SJ? By producing evidence showing there is a triable issue of fact, can’t simply rely on allegations in pleading or mere denial, attorney’s affidavit alone is not enough. We need evidence. Mercy rule: if the opponent shows that through no fault of his own he cant get the evidence, the court can deny the motion OR grant a continuance (adjournment) to permit additional evidence to be obtained (atty affidavit required |
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MOTION PRACTICE
Motion for Summary Judgment: 1. if motion is denied? 2. what happens when the only factual issue is for damages? |
If motion is denied: triable issue does not exist (case resumes its normal proceedings to trial)→
Exception: if the fact issue only concerns the amount of damages, then grant P SJ on liability and order an immediate trial on damages (ie foreign judgment from state already decided see below) |
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MOTION PRACTICE
Pre-answer Motion for Summary Judgment: In two situations, SJ is permitted prior to service of the answer? |
Pre-Answer Motions for Summary Judgment: In two situations, SJ is permitted prior to service of the answer:
1) Conversion of motion to dismiss: 2) Motion for SJ in lieu of complaint: |
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MOTION PRACTICE
Pre-answer Motion for Summary Judgment: conversion of motion to dismiss |
Conversion of motion to dismiss: D’s pre-answer motion to dismiss for failure to state a cause of action can be converted by the court into SJ, thereby allowing for decision on the basis of evidence rather than on face of pleadings.
You need evidence Parties must have submitted factual affidavits in connection with motion → court must give notice to the parties of conversion of judgment to give opportunity to submit additional evidence |
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MOTION PRACTICE
Pre-answer Motion for Summary Judgment: Motion for SJ in lieu of complaint: 1. what are the two actions? |
Motion for SJ in lieu of complaint:
In 2 types of action, P may move for SJ at same time she serves process by accompanying summons with motion papers for SJ: you are moving with SJ papers instead of serving complaint. (1) Action based on an instrument for the payment of money: unconditional promise to pay $: only (promissory note); a K will not suffice. (2) An action on an out of state judgment: here you convert out of state judgment to NY judgment → submit affidavit that you haven’t been paid, this when the out of state judgment is convered and SJ granted, only issue is payment. |
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MOTION PRACTICE
Pre-answer Motion for Summary Judgment: 1. after filing process? 2. what is the return date? 3. what is the date of service? |
After filing process with the court, P must serve on D, with the summons, a notice of motion for SJ with supporting documentation and affidavits. → Return date for this motion is equivalent to time limit for D’s appearance in the action: (usual 8 day return date ≠ apply here)
Personal service of the papers upon defendant in NY—20 days Service of papers via any other method—30 days *you still need to serve D in a proper way to acquire jurisdiction over him at the same time of service. |
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PROVISIONAL REMEDIES:
general 1. what do all provisional remedies require? except? 2. what do provisional remedies do? 3. what happens if you have more than one ground for remedy? 4. like the types (5) |
PROVISIONAL REMEDIES: all provisional remedies require a court order except notice of pendency →
provide a measure of security while the action is pending for the ultimate enforcement of a potential judgment. → if you have grounds for more than one remedy court has discretion to require P to elect between remedies she is otherwise entitled to. TYPES: Attachment→Prelim injunction → Temporary receivership → Order to seize chattel in action to recover chattel (replevin) →Notice of pendency (court order NOT required) |
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PROVISIONAL REMEDIES:
Attachment: 1. what does P do? 2. who levies? 3. what does the levy do? 4. what does P get? |
Attachment: P obtains order of attachment →
gives it to NY Sheriff who levies upon property of D in NY. → the levy imposes a lien on property pending the outcome of the action. → gives P a security interest in the property that is superior to an subsequent title holder: |
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PROVISIONAL REMEDIES:
attachment: 1. p must be seeking? 2. who are D's? |
Types: P must be seeking money damages AND D is either:
1) unlicensed foreign corp or non-domiciliary residing outside NY, OR 2) D is about to conceal/remove assets from NY with intent to defraud (domiciliary or NON domiciliary too) |
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PROVISIONAL REMEDIES:
ATTACHMENT: procedure 1. P must show two grounds for attachment? 2. can be the motion be made ex parte 3. P mus talso make a follow up? 4. why do we need this? 5. if D is an unlicensed foreign corp. or non-domiciliary residing outside of NY? 6. If D fraudulently moved assets? 7. D gets damages if? |
Procedure:
P makes motion with affidavit showing two grounds for attachment: 1) probability of success on merits on P’s underlying CoA, OR 2) posts bond to indemnify D against damages from wrongful attachment. Motion can be made ex parte: but if ex parte, additional requirements to satisfy due process needed. P must make a follow up motion on notice to confirm exparte order of attachment (if not made =automatically void) →motion must be made by order to show cause, so that we have expedited date of return. (we have specific authorization, for exparte → hearing must be held promptly after levy: D given opportunity to contest attachment If D is unlicensed foreign corp. or non-domiciliary residing outside NY: no later than 10 days after levy. → not need to show he is hiding assets If D is fraudulently moving assets: no later than 5 days after levy. → can be domiciliary or not D gets damages if: attachment was improperly obtained from improper procedure, OR D wins on merits. |
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PROVISIONAL REMEDIES:
ATTACHMENT: procedure 1. When an order of attachment is obtained ex parte, the order will become automatically void if |
When an order of attachment is obtained ex parte, the order will become automatically void if P fails to make a timely follow-up motion to confirm: (Two separate time limits apply for making motion to confirm, depending on grounds for attachment:)
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PROVISIONAL REMEDIES:
pre-liminary injunction 1. when used? 2. what is this? 3. when is TRO used. 4. what must you include 5. no actions that seek? |
Prelim injunction: Used in equity to maintain status quo while action is pending: →
action where P seeks permanent injunction OR D threatens to harm P’s interest → Temporary restraining order used for immediate injunctive relief. → If threat of immediate irreparable harm, P can request TRO ex parte while motion for prelim injunction is pending. → Must include affidavit showing “significant prejudice” to P if notice is provided to opponent. NO actions that seek ONLY $ damages |
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PROVISIONAL REMEDIES:
Preliminary Injunction: procedure 1. describe? (5) 2. can TRO be granted ex parte? what must P show? 3. when is D immediately restrained by TRO? till when? |
Procedure—
(1)P commences action for equitable relief; including threat of irreparable injury (2) P must show a probabitiy of success on the merits of underlying CoA (3) P makes bond to indemnify D (4) P moves, by Order To Show Cause [accelerated return date], for a prelim injunction to maintain status quo; (3) In Order to show cause, P requests TRO to obtain immediate injunctive relief pending outcome of the motion for preliminary injunction → order to show cause with TRO in it are served on D along with motion papers for preliminary injunction. TRO can be granted ex parte → P must show that given g notice = sig. prejudice to P Upon service D is immediately restrained by TRO pending resolution for preliminary injunction |
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PROVISIONAL REMEDIES:
temporary receivership: 1. def. 2. available when? (2) 3. can I use this in an action to recover $ damages? 4. what kind of property does this apply to |
Temporary Receivership: Person appointed by the court to manage property in D’s possession, The receiver takes over management of D’s property:
Available when: (1) P asserts equity claim in which specific property is subject matter of action, AND (2) Danger that D will injure/destroy value of property while action is pending → requires motion on notice (can be made exparte) *if the action seeks $ damages temporary receiver is NOT available, → this is only equity *this is all kinds of property, i.e. stocks |
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PROVISIONAL REMEDIES
Seizure of Chattel 1. when is this available? Rationale? 2. What is the procedure? (2) 3. can motion be made exparte? what showing is required? (2) |
Seizure of Chattel (replevin): Only available in action seeking to recover possession of a chattel (tangible personal property) → rationale: to insure enforcement of a judgment awarding possession of chattel to P, Sheriff gets “custody”/impounds while action is pending
(if not P would only get FMV, she wants her dog ☹) Procedure: P must show 1) probable success on the merits in affidavit 2) P posts bond for damages if seizure is wrongful Motion can be made ex parte: P must show 1) threat of immediate loss of chattel (or sale), and if granted 2) must make follow up motion on notice to confirm ex parte order within 5 days of seizure. → this give D a prompt hearing for due process reasons |
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PROVISIONAL REMEDIES
notice of pendancy 1. def. 2. what does it effect? 3. when is it statutorily required? |
Notice of Pendency:
Gives record notice to potential buyers/mortgagees that any interest they acquire in the property will be subordinate to that of P. Effects specific performance, ejectment, mortgage foreclosure → only in mortgage foreclosue the notice is statutorily required. Type of property: only real property *this is strictly construed (only if judgment will create a lien or ecumberance on title→ie NOT stock even in a ‘real estate” corp. |
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PROVISIONAL REMEDIES
notice of pendancy 1. procedure? (2) 2. what happens if P doesnt service notice of process on time? 3. who has the burden to file motion to cancel notice of pendency. 4. if valid, how long is it effective for. 5. can I extend? 6. what If I dont extend? 7. Do i need a court order? |
Procedure:
P files notice of pendency with County clerk in county where real property is located = record notice and gives P lien → P files prior to or at same time as commencing an action. → service of process is within 30 days of filing notice of pendency → if P ≠ serve on time notice of pendency is void and subject to cancellation upon motion. D’s burden to file motion to cancel notice of pendency. → if valid Effective for 3 years after filing (and P can request 3-year extension) NO requirement of court order OR of a bond If no extension after 3 years= pendency is void → party who lets notice of pendency lapse CANNOT get another notice of pendency on the same property for the same CoA Exception in mortgage foreclosure: court wan grant a new one even if expired without renewal |
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TRIAL PROCEDURES
notice of issue 1. def. 2. what do you do? 3. what kind of demand? 4. what if you dont make the demand? 5. what can other party do? |
Notice of issue: after discovery is complete and case is ready for trial either party files “notice of issue” = lets court know case is ready for trial →
Filing party serves a copy of notice of issue on the other parities then they wait for trial. Party who files notice of issue makes demand for a jury trial in notice of issue → if no demand = waiver of right to jury If other party wants a jury trial he must file separate demand for jury trial. |
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TRIAL PROCEDURES
right to jury trial in civil actions 1. how many jurors 2. how many of them need to agree 3. what are the five actions where either party is entitled to jury trial? (DR PAD) |
Right to trial by jury in civil action: →
Jury verdict (6 jurors) need NOT be unanimous – 5/6 is sufficient → either party has right to jury trial in the following situations: i. Action seeking solely money damages ii. Replevin iii. Claim to real property iv. Annulment of a marriage v. Divorce action on fault grounds for divorce (but not monetary support/custody) |
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TRIAL PROCEDURES
res judicata 1. rule 2. exception 3. applies even when (2) |
Res Judicata (claim preclusion): avoid and prevent re-litigating the same claim.
Transactional approach: when claim against D has been brought to final judgment on the merits, ALL other claims by P against D are barred if arising out of the same transaction. → Except: matrimonial disputes/domestic abuse = divorce and tort action can be brought separately Applies even where diff theory or different remedy sought |
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TRIAL PROCEDURES
collateral estoppel 1. def 2. applies if: (3) |
Collateral estoppel (issue preclusion): narrower than res judicata→
avoids/prevents the need for re-litigating the same specific fact issues that were decided in a prior proceeding→ three part showing Applies if: (1) Issue in former and current proceeding is identical; (2) Issue was actually litigated and decided in former proceeding (3) Party against whom issue preclusion is asserted had full and fair opportunity to litigate issue in former proceeding (he had to be a party in the previous action, if not a party then no opportunity) |
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TRIAL PROCEDURES
Special Proceedings: 1. def. 2. 7 examples |
Special Proceedings:
a special proceeding is a speedy, streamlined procedure, (like motion practice) purpose is to obtain judgment as a final resolution of a dispute. EX: Probate of a will, election disputes, summary proceedings by a landlord for eviction, dissolution of a corp., habeous corpus, enforcement of an arbitration agreement; CPLR art. 78 proceeding |
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TRIAL PROCEDURES
Special Proceedings: 1. what is the return date? 2. can i get expidited return date 3. what is the exception for the return date here. 4. If I have __ ___ Court Can Convert _______ 5. procedure (5) |
Return date: can be no sooner than 8 days from service of process. Accelerated return date: initiate by order to show cause
Exception for art. 78 proceedings: return date can be no sooner than 20 days from the service of process (gov. needs extra time) Specific statutory authorization required: Court can convert proceeding into an action: if error in filing type of action , ie not dimissal grounds Procedure: Petitioner filines petition with the court, (filing the petition commences the special proceeding) → the petition and notice of petition are then served on Respondent (use same methods as above) → respondent serves an answer to the petition and appears on the return date for the hearing. → affidavits in support of and in opposition to petition are submitted to the court on the return date → this is when the courts starts to decide, decides the case on the papers (like SJ) |
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ARBITRATION
Threshold issues that court CAN decide: (5) |
ARBITRATION: →
Threshold issues that court CAN decide: (1) Did the parties agree to arbitrate? Clear, express, unequivocal agreement must be in writing, need not be signed or mutual; (2) Is dispute within the scope of the arbitration clause? Most are very broad—“all disputes or claims arising out of this contract…” will send virtually all disputes to arbitrator except SOL and condition precedent; (3) Is arbitration clause valid? Public policy favors arbitration, presumption of validity to arbitration clause. Fraud/duress/coercion relating to the arbitration clause can render clause invalid. (4) Is there an express condition precedent to arbitration, and has it been complied with? Court can rule on this issue (“go to arbitration after X”); judge can determine whether X was met. (5) SOL can be decided by court. |
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ARBITRATION
1. def 2. Arbitrators are NOT bound by? 3. what is narrow? |
Def: private procedure based on K, where the parties agree for the binding resolution of disputes
Arbitrators not bound by substantive law or rules of evidence → scope of judicial review is narrow. |
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ARBITRATION
Judicial gatekeeping 1. courts role. 2. when does courts involvement end 3.who decides merits of claims |
Judicial gatekeeping: when arbitration is resisted courts decide “threshold issues” as to whether arbitration should proceed:→
if threshold issue dissolved in favor of particular arbitration, court’s involvement ends, merits of dispute are for the arbitrator to decide. |
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ARBITRATION
doctrine of severability |
Doctrine of severability: the validity of an arbitration clause is determined separately from the validity of the overall K in which the clause appears. → to avoid arbitration P must show that the arbitration clause itself was induced by fraud, duress or coercion (almost impossible to do)
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ARBITRATION
If the issues arise in a pending action 1. what shoudl D do 2. what do parties do where do they do it? 3. what do I do if I want to avoid litigation 4. when is the special proceeding commenced? 5. what if I fail to make my motion within 20 days? |
If the issues arise in a pending action D should make a motion to stay action and to compel arbitration. →
then either party can litigate any one of the five threshold issues. → court determines this in the motion proceeding. if opponent wants to avoid arbitration raise 5 threshold issues, → special proceeding commenced within 20 days of the receipt of the motion of intention to arbitrate → if opponent fails to do this in 20 days he waives his right to the threshold issues. |
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ARBITRATION
Judicial review of arbitration awards: only 3 grounds provide basis for vacating an arbitration award: |
Judicial review of arbitration awards: only 3 grounds provide basis for vacating an arbitration award:
1) corruption, fraud, misconduct, in the arbitration proceeding, 2) bias of an arbitrator who was chosen to be a neutral 3) if the arbitrator exceeded his powers (not a good argument) |
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ARBITRATION
NY Policy (2) |
NY always favors arbitration
NY: arbitrator cannot compel an award of punitive damages. |
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ADR
1. what are forms of ADR (3) 2. how are they made? 3. NY policy? 4. what can court do? 5. Two major differences from arbitration: |
Other forms of alternative dispute resolution: Mediation, neutral evaluation, and summary jury trial:
General: i. like arbitration other ADR devices are made from K and enforced according to the terms of the agreement. ii. NY public policy favors ADR iii. The court can recommend, BUT NOT require the parties to agree to ADR iv. Two major differences from arbitration: 1) these devices are usually Non-binding bec. goal is to have parties reach voluntary agreement (arbitration =binding) 2) no specific statutory rules governing the mechanics of enforcing ADR agreements *note the ADR agreements can be binding if the parties agree to make them binding. |
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ADR
MEDIATION; 1. def. 2. what does mediator encourage 3. what can agreement specifiy |
Mediation: non-binding process where neutral mediator attempts to facilitate a settlement by speaking confidently with each party and then jointly with both present. →
parties choose facilitator from private sector or rosters in courthouse i. Mediator encourages practical considers and merits of each sides position ii. Agreement can specificy (not always) that the confidential communications cant be used in litigation if no settlement is reached →can also agree to waive this even if they agree to confidence |
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ADR
NEUTRAL EVALUATION 1. def |
Neutral evaluation: non-binding process where neutral expert in subject matter at issue receives a condensed presentation about the merits of each side, evaluates the presentation and predicts how a court would decide the dispute. Goal = reach voluntary settlement →
parties choose facilitator from private sector or rosters in courthouse |
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ADR
SUMMARY JURY TRIAL 1. def 2. how long 3. 3 characteristics 4. is jury decision binding? |
Summary jury trial (“SJT”): requires an agreement that includes participation of the court. The SJT is a condensed version of a real trial in which a real judge presides and real jury is empanelled to hear the case and render a verdict.
i. Usually 1 day, each side 2-3 hours of presentation, → rule of evidence relaxed → W’s called and examined→ narrative summaries of potential evidence is introduced by attys Parties agree in advance whether jury verdict will be binding or not→ they can question the jury, most people choose non-binding and use this as a dress rehearsal to shape settlement. |
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ARTICLE 78 PROCEEDING:
def. |
ARTICLE 78 PROCEEDING: Article 78 Proceedings (judicial review of gov’t or quasi-gov [i.e. corp.] action)→ goes to supreme court! = exclusive jurisdiction→Must fall under one of four CL “prerogative writs”
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ARTICLE 78 PROCEEDING:
Mandamus to compel 1. def. 2. who also included? |
Mandamus to compel: compel performance of an act required by law, an act to which no discretion is involved. (marriage license, absentee ballot)
Corporations and its officers are deemed quasi gov. officers for mandamus: they get their power from the state |
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ARTICLE 78 PROCEEDING:
Prohibition 1. def. 2. remedy for routine judicial error? |
Prohibition: stop judicial officer from exercising power grossly outside his lawful juris →
remedy for routine judicial error is appeal in the same action in which the error occurred, not a collateral action. (double jeopardy and priest outfit in court) |
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ARTICLE 78 PROCEEDING:
Certiorari: 1. def. 2. what is required 3. what is the standard 4. when are you entitled to this |
Certiorari: challenge results of “trial-like” hearing conducted by admin agency (standard = uphold agency determination if “supported by substantial evidence”) →
trail type hearing = testmy taken under oath with right of cross-examination i. You are entitled to this if you have property or quasi property rights prior to divestiture: ie broker licenses ii. Substantial evidence standard of review. |
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ARTICLE 78 PROCEEDING:
Mandamus to review: def 1. how usually made? |
Mandamus to review: review any other type of admin action not in 1-3 (e.g. agency determination made without a trial-type hearing) (standard = uphold unless the determination was “arbitrary and capricious”) this is when you don't have vested rights
Usually agency determination made without a trial type hearing and you don't have vested rights |
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ARTICLE 78 PROCEEDING:
Sol 1. when does it run |
there is a 4 month (120 days) SoL for Art 78 proceedings,
Begins to run from the date the agency makdes is action final and binding→ papers must be served 20 days before return date. |
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ARTICLE 78 PROCEEDING:
Relief: 1. what type 2. what is also recoverable (but what is needed) |
Relief: declaratory or injunctive,
although $ damages incidental to relief are also recoverable. (ie reinstatement + back pay) |
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ARTICLE 78 PROCEEDING:
SUING NY: |
SUING NY: important to note here you can sue NY state in supreme court here since this is NOT an action in tort or K for money damages,
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VERIFICATION OF PLEADINGS
1. mandatory or voluntary? 2, rule (3) |
Verification of Pleadings: can be mandatory or voluntarily given
Rule: verification is a stmt under oath certifying the truth of the allegations contained in a pleading. i. Deemed to be based on personal knowledge = possible liability for perjury ii. “information and belief” should be used if info is not based on personal knowledge so no poss. Liability iii. affidavit of verification must disclose the grounds of the affiants knowledge or belief |
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VERIFICATION OF PLEADINGS
who must verify? 1. rule 2. Exception party/ atty in dif. counties. 3. Exception. domestic corp. party 4. exception foreign corp. party. 5. exception pleading based on informaiton within personal knowledge of atty or agent. |
Who must verify: pleading should be verified by a party→ exceptions to this rule
i. Party and atty in different counties = atty may verify instead of client (this is not a requirement)→ if atty does this the following is required:1. Why the verification is being made by counsel 2. The grounds for the atty’s belief as to all matters not based on atty’s personal knowledge. ii. Domestic corporate party= verified by an officer iii. Foreign corporate party= atty may verify instead of foreign corp (this is not a requirement) iv. Pleading based on information within personal knowledge of a party’s atty or agent = if pleading based on negotiable instrument or other info. within the personal knowledge of party’s atty or agent, agent or atty may verify |
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VERIFICATION OF PLEADINGS
When verification is required 1. rule 2. exception mandatory complaint verification (3) 3. exception responsive pleading rule 4. exception mandatory answer verification (3) 5. exception specific rules regarding verification (3) 6. exception remedy for defective verification 7. who can make a affirmative with signature instead of affidavit. 8. what happens to those who do nt want to swear? |
When verification is required
i. Rule: general rule is verification is optional Exceptions: 1. Mandatory complaint verification: the following require verification of complaint a. Action against co-obligor b. Action for goods sold or services rendered pursuant c. Article 78 Proceeding d. * Many substantive statues also require verified complaints.: Domestic Relations Law and Municipal law. 2. Responsive pleading rule: when pleading is verified the responsive pleading must also be verified a. *exception for matters coming with the evidence privileges→ usually self incrimination 3. Mandatory answer verification (independent of responsive pleading rule): the responsive pleading rule, the following actions require verification of the answer regardless of whether the complaint was verified: a. Response to complaint charging common law fraud or fraudulent conveyance b. Dilatory defense (prior action pending c. Action against a corporation on a promissory note. 4. Specific rules regarding verification: a. The pleading of an infant need NOT be verified b. A bill of particulars must be verified whenever the pleading it particularizes is verified c. All negligence bills of particulars must be verified 5. Remedy for defective verification: defective = treated as an unverified pleading a. Where a verification was required the opposing party may treat is as null BUT must give notice with due diligence to atty of adverse party the he is electing to do so 6. Atty, physicial, ostepath, or dentist are allowed to make affirmation with signature instead of an affidavit (must be authorized to practice) → not allowed if they are parties 7. Those who don't want to swear can make an affirmation but it needs to be done before a notary |
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BILL OF PARTICULARS
def. |
Bill of Particulars
Definition: litigation paper in which P, upon demand, is required to amplify the allegations of the complaint. |
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BILL OF PARTICULARS
1. when bills can be demanded? 2. the function? (may need to show?) |
When bills of particulars may be demanded: only on issue as to which the pleader has the burden of proof (complaints, counterclaims, and affirmative defenses)
i. A party cannot serve written interrogatories on another party and ALSO demand a bill of particulars without leave of the court. The function of bills of particulars: to “particularize” the stmts in pleadings, prevents surprise at trial → LIMITING trial courts don't permit other evidence not relevant under the particularized allegations i. Functionally somewhere between general pleading and specific evidence at trial ii. You don't need to produce evidence generally but MAY need to show “foundation documents” 1. K in K case, promissory note in bills and notes case, actual libel published in a newspaper in def. suit. |
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BILLS OF PARTICULARS
procedure 1. demand? 2. response due ___ days after___ 3. what bills MUST be verified? 4. content requirements? Exception? 5. how to object. 6. if you object you still need to __? |
Demand: procedural devide for obtaining a bill of particulars is demand prepared by the party seeking particulars and served on the pleader form whom such particulars are sought →
response is due 30 days after service → *bill for any CoA of neg. MUST be verified. 1. Contents: nothing EXCEPT: personal injury = statutory itms that may be sought as a matter of right + discretion to enlgarge list 2. Objections: objections to the propriety of any items in the demand are to be set forth in the bill together with the stmt of reasons and objections a. If you object you still need to make a timely response for the items where no objection is made |
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BILLS OF PARTICULARS
procedure Remedies for failure to provide proper bill 1. what can I mess up with (2) 2. what does party seeking compliance do? 3. if showing is willful? |
Remedies for failure to provide proper bill: if a responding party fails to timely serve a bill or fail to comply with demand→
party seeking bill may move to compel compliance. 1. If showing that failure was willful = demand may seek penalty including order of preclusion (preclusde party from offering evidence on the matters party failed to respond to) |
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BILLS OF PARTICULARS
procedure 1. improper or unduly burdensome demands? 2. when can you amend? how much? 3. supplementation when? what is not permitted? |
Improper or unduly burdensome demands = court can vacate or modify demand
iv. Amendment: you can amend once as a matter of course before the other party files v. Supplementation: if a party claims continuing special damages and disabilities he may serve a bill of particulars any time NOT less than 30 days before trial without leave of the court. → NO new CoA and NO new injury permitted 1. You get discovery period if you do this, requires notice. |
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DEFAULT JUDGMENT
default by D 1. grounds? 2. proceudre (2) 3. notice? exception? 4. additional notice? when, when served? + service? 5. failure to seeK judgment? time + how(2) ? |
Grounds: if D fails to appear, to plead, proceed to trial→ P may get default judgment
Procedure: for both it must be the same clain and demand sought 1. Actions for “sum certain”: with in one year of default P may offer proof of service, and default to the clerk and judgment for the amount in the notice or compliant plus interests and costs is awarded. 2. Other actions: for other actions you do the same thing but do it to the court not the clerk, then hearing held Notice: If a judgment enters by the clerk notice ordinarily need not be given, 1. 5 days Notice is required when: D has previously appeared, more than one year since default Additional notice in certain situations: in any action against a natural person based on non-payment of any contractual obligation → P at least 20 days before entry before entry of a default judgment resulting from D’s nonappearance, must mail the D a copy of summons by first class mail. Failure to seek judgment within one year after the default permits judgment dismissing the complaint by the court sua sponte. Or on D’s motion (but P can show good cause) |
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NEGLECT TO PROSECUTE
default by P 1. grounds (2) 2. dismissal? how 3. Condition precedent for dismissal for neglect to prosecute: (2) 4. if P complies with written demand? NOT comply (3) ? |
Default by P
Neglect to prosecute Grounds: an action may be dismissed if P or D asserting a counter or cross claim: a. Unreasonably neglects to proceed generally or otherwise delays prosecution of his claim b. Unreasonably fails to serve and file a notice of issue 2. Dismissal: dimissal may be on the court’s own initiative or on motion of adverse party 3. Condition precedent for dismissal for neglect to prosecute: note the following condition precedent a. Issue must have been jointed = answer or reply served more than one year before motion b. Court or moving party must have served a written demand, then party must respond within 90 days of demand (note must say that failure to comply with demand = basis for motion to dismiss) i. If P complies: no motion to dismiss for neglect to prosecute can be made ii. If P does NOT comply: motion made on grounds 1) justifiable excuse for delay, 2) claim has merit |
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DEFAULT IN PROCEEDING TO TRAIL AFTER CASE CALLED.
default by P |
P Default in proceeding to trial after case is called: = D can ask clerk after a year of default to enter judgment for costs.
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DEFAULT/ NEGLECT TO PROSECUTE REMEDIES
procedure (4) + also applies |
Procedure for relief:
1. any party of interested person may move for relief from default judgment or order. 2. the motion must be made in the court that rendered the judgment or order within one year after service of the judgment or order on the moving party, or, if the moving party has entered the judgment or order within one year after entry. 3. When the order or judgment is set aside/vacated the court may direct and enforce resolution as it would where a judgment is reversed or modified on appeal. 4. Also applies when” 1) newly discovered evidence, fraud, or misrepresentation of an adverse party, “law office delay” 2) lack of jurisdiction to render judgment, 3) reversal, modification or vactur of a prior judgment or order upon which the challenged judgment or order is based. |
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DEFAULT/ NEGLECT TO PROSECUTE REMEDIES
showing required of party seeking relief from default (2) |
Showing required by party seeking relief from default: shows
1) reasonable excuse for delay and 2) claim/ defense ahs merit. (affidavidt of merit containing evidentiary facts and attested to by individuals with personal knowledge of these facts. |
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DEFAULT/ NEGLECT TO PROSECUTE REMEDIES
Rules for D who is NOT served personally 1. what may he do? 2. what does he show (3) 3. if the motion is granted and defense is successful, what happens? |
Rule for D not served by personal delivery:
D who is NOT served personally may move to open the default provided the court is satisfied of the following: 1) less than one year has elapsed from the time D obtained knowledge of judgment 2) less than five years elapsed from the time judgment was entered, 3) D did not have personal notice of the action in time to defend, 4) he has a meritorious defense to the action. → if the motion is granted and the defense is successful D is entitled to restitution |
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PRETRIAL DISCOVERY
what matters must be disclosed (2) |
The statute: disclosure of “all matter material and necessary in the prosecution or defense of an action regardless of the burden of proof.
Statutory interp: function is preparation of a case or defense in the most through way to avoid suppress-→ CPLR favors disclosure; |
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PRETRIAL DISCOVERY
Disclosure may be had of: (4) |
Disclosure may be had of:
evidence in chief, facts leading to the admissibility of evidence, facts, documents or other physical exhibits useful on proper cross-examination at the trial |
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PRETRIAL DISCOVERY
Limitations on the full disclosure doctrine (absolute privileges) statute (2) |
statute: = atty/client priv. and self-incrimination → all can be waived
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PRETRIAL DISCOVERY
Limitations on the full disclosure doctrine (absolute privileges) atty work product: 1. applies to 2. 4 examples |
Atty’s work product:
Absolute privilege: absolute priv. = materials that are the product of the atty’s learning and professional skills, i.e. research, analysis, conclusions, legal theory of strategy Applies only to documents prepared by attorney: atty must have been the one who prepared the document for which privilege is claimed. The following is a qualified privilege: a. Report prepared by an engineer at the request of an atty b. Accountant’s report request by counsel c. Witness’s statement taken by insurance claim agent. d. Report of fire loss of adjuster. |
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PRETRIAL DISCOVERY
Limitations on the full disclosure doctrine (qualified privileges) rule |
Rule:
the category of qualified privilege is intended to include those matters that are prima facie privileged but can be disclosed if the court finds that material can no longer be reproduced and that refusing disclosure will result in injustice or undue hardship. |
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PRETRIAL DISCOVERY
Limitations on the full disclosure doctrine (qualified privileges) material not prepared for litigation Litigation material by nonattys: |
Litigation material by nonattys:
a qualified priv extends to any writing or other matter prepared for litigation by a party or any person, acting for or on behalf of a party. |
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PRETRIAL DISCOVERY
Limitations on the full disclosure doctrine (qualified privileges) |
No privileges for material not prepared for litigation:
if the matter or document is prepared not for litigation but in the ordinary course of business, no privilege at all attaches. |
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PRETRIAL DISCOVERY
Limitations on the full disclosure doctrine (qualified privileges) witness's statements 1. no priv if? 2. discovery of own party's stmt 3. names of W's |
Witness’s statements
i. No privilege if report would have been prepared anyway: ii. Discovery of a Party’s own statement: the absolute right to discovery by a party of his own statement overrides a claim of qualified priv. iii. Availability of the names of witnesses: the name of W obtained at the scene of the accident by a party must be disclosed as it is not “material prepared for litigation” |
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PRETRIAL DISCOVERY
Limitations on the full disclosure doctrine (qualified privileges) Disclosure of insurance coverage: |
Disclosure of insurance coverage:
a party may obtain discovery of the existence and contents of any insurance agreement under which any person carrying on an insurance business may be entered in the action or to indemnify or reimburse for payments made to satisfy the judgment. |
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PRETRIAL DISCOVERY
Limitations on the full disclosure doctrine (qualified privileges) Accident reports: |
Accident reports:
a written report of an accident prepared in the regular course of business of any person public or private or private entity must be disclosed UNLESS prepared by a police officer for a criminal investigation and disclosure would interfere with the investigation |
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PRETRIAL DISCOVERY
Limitations on the full disclosure doctrine (qualified privileges) Experts: 1. identify what? (3) 2. can further disclosure be ordered? 3. exception |
Experts:
parties are required upon request to identify experts expected to testify at trial to disclose “reasonable detail” of the substance of the testmy, to summarize the grounds of the expert’s opinion, and to list the expert’s qualifications. → Further disclosure may be ordered by the court→ exception: in medical/dental malpractice actions a party responding to a demand may omit names of medica;/dental experts. |
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PRETRIAL DISCOVERY
Limitations on the full disclosure doctrine (qualified privileges) full dislcosure is required of? |
Full disclosure is required of any films, photographs, videotapes, or audio tapes, transcripts of memoranda concerning any person relevant in the litigation
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PRETRIAL DISCOVERY
disclosure: 1. if you made a mistake? 2. if something has since beecome inaccurate since disclosure? 3. effect of dismissal motion? |
If you made a mistake or something has since become inaccurate you are under a continuing duty to disclose
Dismissal motions suspend disclosure: any dismissal motion for CoA or MSJ stays disclosure until the motion is resolved |
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PRETRIAL DISCOVERY
who must disclose? (3) 1. when parties? 2. when predecessors in interest? 3. when nonparty witness? (6) |
Who must disclose: parties, perdissessors in interest of parties and nonparty witnesses.
Parties: each part is required to make disclosure upon the request of any other party. Predecessors in interest of parties: a former owner of a claim or defense, asserted in the action, now owned by a party is subject to disclosure as if he were a party. Nonparty witnesses: disclosure by nonparties can be had only in the following circumstances: 1. W is about to leave the state 2. W is absent from the state 3. W resides more than 100 miles from the place of trial 4. W is so sick or firm as to afford reasonable grounds to believe he will be unavailable at trial 5. The person was authorized to practice medicine, dentistry, or podiatry and had provided such care or diagnosis to the party demanding disclosure 6. Any other person “upon notice stating the circumstances or reasons such disclosure is sought” |
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PRETRIAL DISCOVERY
specific limits: 1. interrogatories 2. court order required when? |
iv. Specific limitations:
1. Interrogatories: only a party is required to answer interrogertories 2. Court ordered required to obtain Discovery and inspection from a nonparty government office |
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PRETRIAL DISCOVERY
DISCLOSURE DEVICES: oral depositions how is depo obtained? 1. rule 2. service of notice ? days? 3. service of subpoena? days? 4. docs demanded? |
Oral despositions (examinations before trial
How is the deposition obtained: a. Rule: in the absence of an express statutory provision to the contrary, a deposition of a party is obtained by service of notice on the atty for the party to be examined → if the parties agree then they hold the depo at the time, place, date mentioned. b. Service of notice on party: notice must be served at least 20 days prior to the deposition date (25 days if served by mail) → atty of party getting notice c. Service of subpoena on nonparty: depo of a nonparty is obtained by service of a subpoena on the nonparty at least 20 days prior to the deposition date and service of a notice at least 10 days before the deposition d. Documents may also be demanded: parties and nonparties can be required to bring relevant documents to the deposition pursuant to a demand in a notice or subpeopna, to be marked as exhibits and used at the deposition by the depending party |
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PRETRIAL DISCOVERY
DISCLOSURE DEVICES: oral depositions Where is examination held 1. reg. person (3) 2 Nonresident parties 3, Corporate parties 4. Public corporate parties |
Where is examination held: in the county where he resides, 2) he has a regular office for the transaction of business, 3) the action is pending
a. Nonresident parties come to NY a few days before trial to depo b. Corporate parties through employees, residence is determined by employee not corp. c. Public corporate parties: makes the county where the action is pending the proper county for conduct of a deposition of a public corp. |
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PRETRIAL DISCOVERY
DISCLOSURE DEVICES: Examinations of nonparty Witness 1. NY residents held in county where (2) 2. non residents? where taken? manner (2) ? |
Examinations of nonparty Witness
NY residents: examination of a nonparty NY resident W is to be held in a county where: 1) he resides, or 2) he is employed or has a regular place of business. 2. Nonresidents Where depo taken: where served or where work Manner of depo: out of state: 1) by written questions 2) oral questions in home state. |
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PRETRIAL DISCOVERY
DISCLOSURE DEVICES: what is the priority of depos? |
Priority depos;
P should not examine D before D answers. D has first opportunity to take depo by serving notice with or prior to answer. IF D doesn't required before giving his answer, the first in time first in right. |
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PRETRIAL DISCOVERY
DISCLOSURE DEVICES: Use of depositions at trial: 1. when used? 2. party? 3. non party? |
Use of depositions at trial:
Probative or evidentiary use As to party: testmy by a party or employee of the party can be introduced against the party (consider evidence rules) → remember hearsay rule when a party is trying to use his own depo As to non party: use of depo of a nonparty W is proper as evidence per se only where W is deceased, more than 100 miles from the place of trial outside the state, aged, or infirm, cannot be located after due diligence or falls with in “catch all” clause of CPLR |
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PRETRIAL DISCOVERY
DISCLOSURE DEVICES; written interrogatories 1. rule 2. 2 limits when you need a court order |
Written interrogatories:
1. Rule: disclosure can be by interrogatory, court has power in matrimonial action order a nonparty to furnish financial information concerning a party 2. Limitations a. Negligence actions (all of them even wrongful death) need a court order→ exception here is only partial neg. i.e. product defect + neg. = NO court order needed. b. Interrogatories and bills of particulars together = you need a court order |
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APPEALS
1. how many days? 2. triggering event? 3. what docs trigger (2) 4. effect of a prior dismissal of an appeal for want of prosecution |
Must be take in 30 days after the losing party is served:
1) a copy of the order/ judgment to be appealed 2) written notice of the entry of the order or judgment. If the potential appellant enter the order of the judgment → **see example. P 147 NY practice i. A prior dismissal of an appeal for want of prosecution acts as a bar to a subsequent appeal as to all questions that were presented on the earlier appeal. |
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APPEALS
How appeal is taken: 1. if the appeal lies of right 2. if the appeal can be taken only by permission? days? |
How appeal is taken:
if the appeal lies of right then the appeal is taken by serving and filing a notice of appeal. if the appeal can be taken only by permission. → the motion for leave to appeal must be made within 30 days. |
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APPEALS
1. failure to appeal within 30 days? 2. limited extension (2) date? |
Extension of the time within which to appeal:
i. Failure to appeal in thirty days is fatal: the time within which to appeal 30 days is jurisdictional. That is the failure to serve and file or make the motion for leavel to appeal within the 30 day period is fatal. The time cannot be extended by the parties or by the court except as provided by statue, there are only two extensions: ii. Limited extensions available: 1. Alternative method of appeal available (time limit is when first method of appeal was denied) 2. Disability of atty or aggreieved party. Appeal may be taken within 60 days from death, removeal, or commencement of diability/incapacity |
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APPEALS
Appeals as of right: 1. How? 2. appellate division 3. court of appeals? final order (2) ? final judgment (2)? |
Appeals as of right: appeals as of right are taken by serving and filing notice of appeal
APPELLATE DIVISION: To the appellate division: appeals as of right ot the appellate division can be taken from any final/interlocutory judgment of the supreme court or county court. Or from any order of these courts. COURT OF APPEALS: To the court of appeals: appeals may be taken of the following: Final order: can be appealed were: a. There has been a dissent by 2 justices on a stated question of law in favor of appellant. b. The appellate division necessarily construed by NY or US Constitution Final judgment of trial courts a. Must be question of constitutionality of state or federal statute: trial court final judgments go to appeals directly if the only question on appeal is the federal or state constitutionaility of a federal/ NY statue b. Intermediate order may on earlier appeal to appellate division: intermediate order has been madeon an earlier appeal to the appellate division |
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APPEALS
Appeals by permission: 1. when 2. what court? |
Appeals by permission:
1. If not a matter of right then you need permission from either the trial judge or court of appeals 2. To the court of appeals |
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APPEALS
appellate division order 1. final when? 2. appeals? |
appellate division order is “final” when the division disposes of all issues in an action, one subsequent appeal may be taken only from that order and not from any judgment or order granted pursuant to it
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APPEALS
Review of ex parte orders by appellate division 1. what can they do 2. review of what judges/courts? |
Review of ex parte orders by appellate division:
appellate division or justice thereof may vacate or modify any ex parte order made by a judge of the supreme or county court. |
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APPEALS
Cross-appeals: 1. Who can argue 2. what does respondant do? 3. A party who has been served with notice of appeal may (2)? days? |
Cross-appeals:
only an appellant may argue for reversal or modification. And the respondent is relegated to the role of defending the determination made below. A party who has been served with notice of appeal may serve and file a notice of cross appeal within 10 days after service or 30 days after enter and notice which ever is longer. |
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money judgments generally
1. how enforced 2. homestead and household exemptions |
Money judgments: CLPR it self directs paying $ and motion costs. So no requirement for judgment debtor. → interest rate on $ judgments = 9%
i. Property subject to enforcement: any debt past due or that is yet to become due. → any property that can be assigned or transfereed, consisting of a present, or future right of interest vested or not . ii. Personal property exemptions: 1. Household exemption: includes what you think it would, anything in home-→ Property cannot have been purchased with $ sued for NOR be object of mechanics lien a. *note you can still have these goods taken away if you pledge them as security for a loan, then the exemption would not apply b. CoA to recover Damages for the taking or injuring of exempt personal property and $ jugments = exempt for 1 year after collection c. Any property held in trust where fund proceeded from a third person = exempt→ trusts d. Security deposits for residential tenants/ utility customers e. Income limits = 90% f. Pay from armed forces 2. Homestead exemptions: 50K for land owned/operated as principal residence (unless this is action to recover purchase price) → if you have more than 50K forced sale attaches to surplus $. 3. Judgments against the state. |
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JOINDER
mandatory joinder: 1. def. 2. statutory mendates (5) 3. dismissal when (4) |
Mandatory joinder: party should be joined where complete relief is to be accorded between the actual parties or who might be inequitably effected by the judgment in action:
Statutory mandates: 1) joint obligors/obligee, 2) corp. in derivative suit 3) absent party claiming ownership of property sought to be recovered by P, 4) member of joint venture in suit against joint venture, 5) beneficiaries in a trust action Dismissal when: 1) non joinder of a party, 2) party is omitted as a “necessary party” 3) necessary party is beyond the jurisdictional reach of forum court (proponent doesn't want to join him) 4) case cant continue absent party, |
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JOINDER
mandatory joinder: Indespensable parties: 1. who are they (2) 2. Where a party subject to mandatory joinder will be excused “indispensable” parties (5) |
Indespensable parties:
1) parties required y substantive law. 2) parties required for due process (absent claimants to a fund or res which P seeks to recover) Where a party subject to mandatory joinder will be excused “indispensable” parties: 1. Whether the P has another effective remedy if the action is dismissed. 2. The extent of prejudice to D or necessary party if the action proceeds 3. Whether and by whom prejudice might have been avoided 4. Whether the court can fashion a protective provision in the judgment 5. The extent to which a judgment will be effective in the absence of a necessary party. |
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JOINDER
permissive joinder: 1. test (2) 2. limit |
Permissive joinder: P and D can joint CoA and unlimited joinder of causes
Test: 1) is there a common question of law or fact which will arise as to each of the parties sought to be joined. 2) does the same common question arise ouf of the same transaction or serious of transactions? Limitation: possible prejudice that results from presence of too many parties |
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JOINDER
permissive joinder: 1. 4 guideliens 2. 4 examples |
Guidelines:
a. As long as there is single, substantial common questions, there need not be total identity of issues. b. Common questions arise out of the same transaction as long as they arise out of the same serious of transactions. c. The common question need not arise out of the same CoA. d. The common question may arise out of an inconsistent CoA. EX: a. Several Ps and 1D on independent CoAs b. Several P’s against 1D on same CoA c. 1P v. severl D’s on same CoA d. 1P v several D with separate CoA’s against each. |
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JOINDER
Joinder procedure: no court order when: (2) |
Joinder procedure: no court order when:
1) if original parties who have appeared stipulate to new parities, 2) P joins the news parties within 20 days of service of the original summons/after service of a pleading responding to summons, or any time before period for responding to summons expires |
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CLASS ACTIONS
Constitutional law limits on class action: |
class actions:
Constitutional law limits on class action: judgment usually binds all members of class→ Due process = you need protection for nonparty peeps, → if interests of litigating party members are different than non-party members then due process ≠ let absentees be bound |
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CLASS ACTIONS
requirements under statute |
Prerequisites to class action: if the number is too large it is impracticable, but common questions exist and predominate over individual questions, and we can fairly and accurately protect the class, and the representatives claim or defense is common of the class, the desirability of having all actions concentrated in one court, the manageability of the class. Additionally we should consider whether the class members have an interest in individual control of separate actions, and the relevant nature of pending litigation.
SAME THING IN BULLET POINTS i. The class so numerous joining all = impracticable ii. Questions of law or fact common to the class predominate over individual questions iii. The representative will adequately and fairly protect the class iv. Reps’ claim OR defense is typical to those of the entire class v. Class action is superior ot other means vi. Whether individual members of the class have an interest in individual control of separate actions vii. The nature and extent of other relevant pending litigation viii. The desirability of concentrating the litigation in one court. ix. The manageability of the class action |
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Class action Misc.
1. what must class do within 60 days? 2. how can we get rid of a class action 3. if class wins? 4. can class mambers opt out? 5. when can they not opt out. |
court control of class action:
i. within 60 days after the time to answer has expired, class action P msut move for court order to determine whether it can be maintained as a class action. → order must describe the class ii. no class action can be dismissed, discontinued, or compromised without court approval→ judgment must describe all those whom the court finds to be members of the class. iii. If class wins, court may award Atty fees to representatives, and if justice requires allow recovey of attys fees from the opponent of the class. iv. Notice not need for pendnacy of class action for injunctive or declaratory relief. → required if need to protect the class and the cost will NOT prevent class action from going forward. c. Notice to court at commencement of class action d. P bear the cost of notice until court says otherwise. e. Class members can opt out → guaranteed for class members without personal jurisdiction in action for money damages by due process clause i. *if primarily equity relief, out of state class member NO due process right to opt out. → court seeks to avoid multiple inconsistent judgments. f. Statutes need to provide for class action for right to exist. |
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Third party practice
Interpleader: def. procedure (2) |
Third party practice
I. Interpleader: S (stakeholder) is under obligation to pay money, but has been confronted with conflicting claims to the performance of the obligation by A and B (claimants) a. Procedure: S can joint A and B as D’s in an action seeking a judgment to establish to which Claimant S is liable. → if either claimant sues S, S may file an interpleader summons and then serve the other claimant. i. Stateholder can be discharged after joinder of all claimants (court appoints designee) ii. Stateholder can deny liability to some or all claimants and still use interpleader. |
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Third party practice
Interpleader: jurisdiction 1. where a stakeholder is liable for debt 2. where stateholder liable for chattel 3. statute provides for alternative in rem jursidiction in debt situations. |
Jurisdiction:
i. where a stakeholder is liable for debt: only if court has personal jurisdiction (ie insurance co sued by B, to recover policy on insured’s death) ii. where stakeholder liable for chattel: in rem with notice to adverse claimants but not personable jurisdiction is available iii. statute provides for alternative in rem jurisdiction in debt situations: alternative form of interpleader in rem by purposrting to transform the ordinary debt interpleader into an in rem proceeding upon deposit of the sum of $ in issue. = becomes specific property within the state= basis for in rem proceeding. *might be unconstitutional from taking an inpersonum claim and transforming it into one in rem. |
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INTERVENTION
1, When as a matter of right? (2) 2. when by permission? (2) 3. what you need |
Intervention:
a. as a matter of right ONLY when 1) provided by statue 2) interest in property affected b. By permission when 1) by statute or 2) when intervenor’s claim or defense presents issue of law or fact common to the main action c. You need a proposed pleading setting forth claim or defense and affidavits supporting motion |
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PLEADINGS
GENERAL |
General:
pleadings must consist of plain and concise statements and defects will be ignored unless a substantial right of a party is prejudiced thereby. |
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PLEADINGS
sufficiency 1. what is sufficiency 2. to be sufficient pleading should ... 3. effect of mislabeling a theory 4. factual allegations should be.... 5. the facts alleged in the pleading should entitle the pleader to ..... |
Sufficiency: liberal construction to test substantively sufficient claim →
to be sufficient pleading should give notice to the court and the adversary of the material elements of the CoA or defense asserted. → mislabeling a theory = no effect as long as factual basis is present. Factual allegations should be separated into distinct allegations of fact that can be admitted or denied and each allegation should be separately numbered The facts alleged in the pleading must entitle the pleader to the relief sought. If ≠ entitle pleader to relief sought = dismissal for insufficiency |
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PLEADINGS
superem court pleadings and relief |
Law and equity:
Supreme court has BOTH law and equity power: you should try to plead what you are entitled to; but even if you don't plead it you can still be awarded it (ie didn't ask for injunction but the facts give me one) → if the legal remedy is adequate, substantive law prevents the court from granting equitable relief. |
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PLEADINGS misc.
1. when can P increase damages 2. Is counsel allowed to tell jury how much P is asking? |
P can increase damages at any time
Counsel is entitle to tell jury how much P is suing for during summation |
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PLEADING
when does NY deny a jury trial in Supreme Court? |
NY denies a jury trial where demand for an injunction or other equitable relief is joined with a demand for damages. If the remedies arise from the same transactions.
*(this is also because jury trial are as a matter of right at law, and NOT as a matter of right in equity) |
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PLEADINGS
Pleading CoA's 1. can CoA's be inconsistent 2. can CoA's be stated hypothetically 3. can you have multiple CoA in one pleading? 4. Can CoA's be stated in the alternative? 5. can P split CoA's? |
Separate CoA in single pleading okay!
a. may be inconsistent! b. May be stated hypothetically c. In the alternative. P may NOT split CoA: p sues for BoK wins, then brings second suit to recover costs with first suit. ; no suit for pain and suffering then second suit for lost earnings. |
