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192 Cards in this Set

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the court in which an action is commenced
The court of original subject matter jurisiction
What type of actions can a court with original subject matter jurisdiction here
any!
which court has general subject matter jurisdiction in NY
Supreme Court is the only one. there is one in every NY county
what is the monetary jurisdition of the supreme court
unlimited
Which couts have full equity jurisdiction?
Supreme court
supreme court subject matter jurisdiction residency requirement
3. For purposes of SMJ, it is immaterial whether neither party in a case is a NY resident; the Supreme Court has general power and can hear any type of action
Forum Non-convience
Despite that the non-residency of parties does not deprive a court of SMJ, the court has discretion, upon motion, to dismiss on grounds of forum non conveniens when the action lacks any substantial nexus to NY. Such motion must be made by Δ.
Exceptions to supreme courts general jurisdiction
i. Cases as to which federal law confers exclusive jurisdiction on federal courts
ii. Claims for money damages in tort or contract against the State of New York; such claims may be brought in the New York Court of Claims only

If Π injured by a state trooper, must sue state trooper personally in Supreme Court, and sue the state in the Court of Claims
Actions the Supreme court has exclusive subject matter jurisdiction over
1. Matrimonial action
2.CPLR Article 78 proceedings
3. Declaratory Judgement Action
limited monetary jurisdiction of the county courts is
$25,000
limited monetary jurisdiction of the civil courts is
$3,000
New york hierarchy of courts
1. Court of appeals - highest
2.Appellate Division 2nd
3.Supreme Court - Lowest
Statue of limitations is what type of defense
Affirmative, based on passage of time
When does a S/L begin running
when a cause of action accrues on the date of breach

6 year SOL
Date of Discovery?
. New York does not use the date of discovery of injury/breach; the SOL runs from when the action accrues under law, even if Π is unaware of the injury/breach.
An Infant injured in utero case S/L
Under the substantive law, when an infant is injured in utero, the child has no cause of action unless the child is born alive, in which case, the S/L begins to run from the date of birth.
How do you satisfy the S/L
, the action must be commenced no later than the last day of the prescribed period of limitations.
Commencement
consists of filing process (process = summons and complaint or summons with notice). The filing must be made with the clerk of the court on or before the last day of S/L.
How to compute the S/L
To compute S/L (and any other CPLR time period), exclude the day upon which the triggering event occurs and begin counting the next day (anniversary date).
If exam says timely filed
DONT ADDRESS SOL!
Who does Med Mel S/L apply to
: The medical malpractice S/L applies to doctors, dentists, podiatrists, nurses, and hospitals (on respondeat superior theories). The period is 2½ years, and the date of accrual (S/L runs from) the date of the malpractice.
1. Note: Discovery of malpractice generally irrelevant
2. Note: If claim is based on theory that a hospital was independently negligent in hiring a doctor, use three year S/L, not 2 ½ year
Exceptions to the Med Mal S/L
1. The Continuous Treatment Rule. If a doctor continues to treat person after an operation for the exact same medical condition that gave rise to the malpractice, Π gets 2 ½ years from the end of the continuous treatment. Note that the condition must relate!


2. The Foreign Object Rule. If a doctor was responsible for introducing a foreign object into Π’s body and leaving it behind, Π gets the longer of either
a. 2 ½ years from the date of operation; or
b. One year from that date Π discovers the presence of the object, or the date Π should have discovered the object with reasonable diligence.
Other professionals for S/L purposed
Members of a learned profession e.g., architects, engineers, accountants, attorneys; NOT insurance brokers, securities analysts, plumbers, etc.
S/L for financial Loss
Client’s cause of action (whether based on contract or tort) for malpractice against a non-medical professional for financial loss as an exclusive S/L of 3 years that runs from the termination of the particular services in which the malpractice occurred.
Architect S/L
3 Years from COMPLETION OF BUILDING NOT INJURY
S/L for accountant/Attorny and when does it begin?
3 years. S/L runs from delivery of work product.
Note: Non-medical professions subject to the doctrine of “continuous representation,” which is similar to the continuous treatment doctrine applied to doctors
Personal Injury/Arcitect S/L
When personal injury (not financial loss) is at issue, an injured Π can sue tortfeasor for up to 3 years from date of injury, regardless of date of completion (e.g., building completed in 1990, collapses in 2010; Π can sue until 2013).
Proceedure for personal injury action against Architects more than 10 years after building completed
If personal injury suit brought
a. Π must serve a notice of claim on the architect or engineer at least 90 days before suit;
b. Π may obtain pre-action discovery from the potential Δ during the 90 day waiting period; and
c. After suit is commenced, if Δ moves for summary judgment, the burden will be on Π to make an immediate evidentiary showing that there is a “substantial basis” to believe that Δ’s negligence was the proximate cause of the injuries.
S/L against Municipal Subdivisions for PERSONAL INJURY/PROPERTY DAMAGE.(county, city, town, school district, municipal hospital)
the statute of limitations is 1 year plus 90 days from the date of the accident
Separate notice claim for Personal Injury//property COA's against municipal subdivisions
. As a condition precedent to a tort action against a municipal defendant, Π must serve a notice of claim on the potential municipal defendant no later than 90 days from the date of the accident.
1. Note: Service of the notice of claim is not commencement of the action; simply gives the municipal defendant advance warning, allows it to investigate or consider settling.
2. Failure to comply with notice of claim prerequisite → municipal defendant is entitled to have action dismissed on ground of failure to state a cause of action.
3. After Service of Notice of Claim. Π must also commence an action, and complaint must plead compliance with the notice of claim requirement; if not → failure to state a cause of action.
4. If 90 day notice of claim requirement has expire but S/L has not. Π may make a motion to serve a late notice of claim; court has discretion to grant motion if municipal defendant will not be prejudiced.
Products liability S/L (Negligence, Strict Liability, Breach of Warranty)
i. When a defective product causes personal injuries, that Π has three possible causes of action which, as a matter of pleading, can all be asserted in the same complaint.
1. Negligence. Has a 3 year S/L running from the date of injury; applies against all Δ’s in chain of distribution.
2. Strict Products Liability. Has a 3 year S/L running from the date of injury; applies against all Δ’s in chain of distribution.
3. Breach of Warranty. Governed by the UCC, which has a 4 year S/L for Sales; 4 year period begins to run when the particular Δ against whom the warranty claim is asserted made its delivery of the product.
Products Liability Ex. Man sold scooter to Whole in 2003, Whole sold it to Retailer in 2004, Retailer sold it to Π in 2005, Π injured in 2008.

When do actions expire?
1. Negligence/Strict Liability Claims: will expire in 2011, three years from date of injury. (Applies to all Δ’s).
2. Breach of Warranty Claims:
a. Man: expired in 2007
b. Whole: expired in 2008
c. Retailer: expires in 2009.
Indemnity/contribution S/L
Have a S/L of 6 years running from the date of actual payment of the judgment for which indemnity or contribution is sought.
1. Ex: Π injured by product in 2000. Π gets a judgment against Retailer that is paid in full on May 1, 2008. Retailer’s claim for indemnity or contribution against Wholesaler and/or Manufacturer would be timely through May 1, 2014.
Discovery Rule for Toxic substance S/L
1. “Toxic Substance” – any inherently harmful toxin that has latent or slow-developing effects (e.g., DES, asbestos, insecticides, HIV)


S/L measured in a toxic substance-exposure case by using a 3 year S/L that begins to run on the earlier of
a. Discovery of the injury; or
b. The date the injury should have been discovered with reasonable diligence.
If D isnt in NY when COA accrues
S/L does not begin to run until Δ comes to NY. (think discovery, or continuous service S/L)
2. If Δ Is In New York When Cause of Action Accrues, but Δ Thereafter Leaves NY and is Continuously Absent for At Least 3 Months
THe Toll aplies to the whole period

BIG EXCEPTION: The toll for absence is not available if the Π has a basis for Personal Jurisdiction over Δ such that process could be validly served over Δ
Infants/Insane people may sue through
competnet adult, or the y may get S/L tolled
Tolled Statue for Infants and insane
If Π is an infant or insane at the time the cause of action accrues, the S/L is tolled until the disability ends
Definition of insanity for Tolled Statue purposes
any mental disorder that causes an overall inability to function in society. A formal judicial proceeding for the appointment of a guardian not required to be insane.
after disability (insanity, infancy) ends. how must they sue? Tolled statue of Lim purposes
a. If original S/L was 3 years or more: Π gets the longer of
i. 3 years from the end of the disability; or
ii. The time remaining on the statutory period as measured from the date of accrual.
Outside limit on tolled COA for infancy/insanity
a. When relying on the toll for infancy, a claim for medical malpractice must be commenced no later than 10 years from the date of accrual
Wrongful death COA S/L
2 years from the time of death, but it must also be shown that decedent possessed a timely cause of action at the time of death.
Survival Claim COA S/L
if Π dies before the S/L expires, the estate representative gets the time remaining on the S/L or 1 year from the Π’s death to commence a survival action, whichever is longer.
1. Note: Both claims often asserted in one action.
Death of potential defendants S/L
: If potential Δ dies at any time before the S/L expires, 18 months are always added to the relevant limitations period (regardless of whether Π needs extra time).
S/L 6 month grace period
If a NY action is timely commenced, but is thereafter dismissed before trial, AND at the time of dismissal the S/L has either expired or has less than 6 months remaining, Π gets 6 months from date of dismissal to re-file the same action and serve process on same Δ.
: 4 types of prior dismissals as to which 6 month grace period is not applicable
a. If dismissal was on the merits;
b. Voluntary discontinuance by Π;
c. Dismissal was based on Π’s neglect to prosecute consisting of a general pattern of delay; or
d. Dismissal based on a lack of personal jurisdiction
Borrowing Statue
: If the cause of action arises outside of NY, a choice of law problem is presented if the S/L of the other state is different from that of NY. The “borrowing statute” is intended to prevent forum-shopping by non-resident Π’s seeking a longer S/L in NY


1. If Π was Non-Resident of NY When Out-Of-State Claim Arose
a. NY court will apply S/L of state where claim arose if it is shorter than that of NY.
b. NY will apply its own S/L if the state where the cause of action arose has a longer period than that of NY. [So basically, shortest time wins].
2. If Π was Resident of NY When Out-Of-State Claim Arose
a. NY will always apply NY SOL, regardless of whatever S/L is longer or shorter than the place where the claim arose. [NY Π’s get NY S/L
Jurisdiction over the particular case.
. In addition to subject matter jurisdiction, three additional jurisdictional elements must be satisfied in order for a court to render a valid judgment


i. Proper commencement of the action
ii. Proper service of the action
iii. Proper basis of jurisdiction over the person or property involved in the action.
What is process
summons and notice/summons and complaint
a. In a Supreme Court action, the clerk of the court is the County or surpeme court clerk?
County
Trouble serving p in 120 days what can you do?
court has discretion, upon Π’s motion, to extend the time, provided that Π
i. Shows good cause (e.g., diligence); or
ii. The interests of justice warrant extension.
D wants to challenge untimely service? what must he do?
b. If Δ wants to challenge Π’s untimely service of process, Δ must preserve this defense and make a motion upon it. If Δ fails to raise the defense of untimely service, it is waived.
steps on game day for proper service of process
: Do S/L Analysis, referencing filing of process; then 120 day analysis, to determine whether service of process proper
Summons and complaint
The summons advises Δ that Π is suing Δ in a particular court. The complaint is Π’s pleading, which specifies the transaction or occurrence that is the subject matter of the action and spells out the essential elements of Π’s cause of action.
Summons with Notice
When the summons is not accompanied by a complaint, it must have sufficient “notice” inscribed on the face of the summons or on a one-page attachment. Notice must consist of
a. A brief statement of the nature of the action;
b. The type of relief being sought; and
c. If Π seeking damages, the amount must be specified, unless a personal injury or wrongful death action, where neither notice nor complaint may specific damages amounts.
i. Think of Notice as an abbreviated complaint.
What happends if u file a naked summons (no complaint, or no notice)
)? This is a defect in Personal Jurisdiction, which means that the action is subject to dismissal for this alone, provided that Δ timely objects. Same if Π serves a naked complaint/notice.
Who may serve process?
any person who is at least 18 years old provided the person is not a party to the action.
Which days of the week may process be served?
any day of the week except sunday. ii. If Δ is a Saturday-Sabbath observer and Π knows it, Π may not serve that Δ on Saturday. Innocent service on such a Δ is not a defect.
service on Holidays
YEs. if not sunday
Is defective service grounds for dismissal
Yes Sir. GOtta follow satatuory methods precisly
Personal delivery service
Service by personal delivery is “complete” upon process server’s tender of summons directly to Δ. (Δ’s response time is measured from date that service is complete
What if D refuses PErsonal delivery of service?
Process can be left in Δ’s immediate vicinity (e.g., at his feet, on his desk, etc).
Leave and Mail
Process server may deliver process to person of suitable age and discretion at Δ’s actual dwelling place or actual place of business PLUS mail a copy by regular mail to Δ at Δ’s actual place of business of Δ’s last known residence.
LEave and Mail against more than 1 D
If suit against more than one Δ, each Δ must be served with his own set of process
Other Service rules
1. The two service steps must be performed within 20 days of eachother, and both steps must take place within 120 days from filing process.
2. Delivery need not occur prior to the mailing.
3. Same location of delivery and mailing not required (e.g., deliver to business, send to home is OK).
4. Certified mail not required; Regular first class mail sufficient.
5. Person of suitable age and discretion need not be an adult; under caselaw, can be teenager, but if under 12, not suitable age and discretion.
Affix and mail
i. “Affixing” consists of taping, rubber-banding to door
ii. Rule: Process server may affix process to the door of Δ’s actual dwelling place or actual place of business PLUS mail a copy by regular mail to Δ at Δ’s actual place of business or last known residence.
1. In addition, the process server must first exercise due diligence by
a. Making an attempt to serve Δ directly and
b. Leaving process with a person of suitable age and discretion at the home or business place.
c. Due diligence requires several attempts in different days of the week at different times of the day to serve by personal delivery or leave and mail.
2. Note: Affixing and mailing, in either order, must be performed within 20 days, and both must be performed within 120 days of filing process. Mailing need not be at same location as affixing.
Whats proof of service?
1. Proof of service is an affidavit by the process server describing the details of service (date, time, place, description of person served, etc).
Whats the purpose of proof of service?
it is a necessary step to make service complete. (Recall that Δ’s time to respond runs from date on which service is complete). Service is complete 10 days after proof of service filed.
Consequnece of failure to file proof of service?
failure to file proof of service NOT a jurisdictional defect; only consequence of Π’s delay in filing proof of service is that it postpones Δ’s time to respond.
Does proof of service need to be within 120 days of two service steps?
No. Although the two service steps must be completed within 120 days of service, filing proof of service need not be within 120 days.
Expediant service
: If the foregoing methods of service are not practicable, Π may make an ex parte motion to the court for an order allowing an improvised, expedient method (i.e., some reasonable alternative appropriate in the circumstances, like email, serving a liability insurer, publishing copy of complaint and summons in newspaper, etc).
1. Requires Court Order!
Agent for recieving process
in a written commercial contract, party expressly specifies agent upon whom service may be served in dispute arising from contract.
Defendant is an Infant how may they be served/ who may recieve process?
When Δ is an infant, Δ’s name goes on the summons but process must be served on any of the following adults:
1. A parent
2. A guardian
3. Any person having legal custody
4. If infant married, upon adult spouse with whom infant resides. Hmm.
a. Note: If infant over 14, process must be served on eligible adult AND the infant; 2 sets necessary
Service on mentally incapacitated person
when Δ is a mentally incapacitated person for whom the court has appointed a guardian, process must be served on the guardian AND the incapacitated person.
1. Note: If Δ is mentally incompetent but there has been no judicial proceeding for the appointment of a guardian, Δ is served in same manner as any other Δ; Court will later appoint a guardian ad litem.
service outside NY
1. : the same methods that are used to serve Δ within NY are used when Δ is located outside NY.

2.The following persons may serve process in other jurisdictions:
1. Any New York resident who is at least 18
2. Anyone authorized to serve process by the laws where the service is made
3. Any attorney licensed in the jurisdiction where service is made.


HUGE POINT: While out-of-state laws that determine who may serve process are controlling, the out-of-state rules that address methods of service are irrelevant → Use NY Methods!
Service of corporation
Two traditional methods


a. Personal Delivery to any one of the following corporate representatives:
i. An officer of the corporation;
ii. A director of the corporation (member of the Board);
iii. A designated agent;
iv. A managing agent (i.e., a corporate employee with supervisory responsibility)
in which states can a officer of a crop be served?
: If there is a basis for jurisdiction (see below) any one of the eligible corporate representatives may be served with process by personal delivery anywhere in the US.
Leave and mail service on corporation?
Leave-and-mail method not valid process method of service to corporation; personal delivery must be made into hands of corporation (e.g., giving process to Corp. receptionist, who hands it to president, then mailing copy
Service on Secretary on state
: For a domestic corporation (incorporated in NY) OR a foreign corporation authorized to do business in NY (licensed corporation), server may personally delivery two copies of process to the NY Secretary of State.
1. Secretary will then mail one copy to the address on file
2. Note: Service of process is complete upon delivery of process to Secretary of State, regardless of when Δ corp. receives it.
How must process be served on Unlicensed foreign corp.
Personally delivery one copy of process to the NY Secretary of State PLUS Π mails one copy to the corporation by certified mail, return receipt requested
5. Non-Traditional Method: Service by First-Class Mail PLUS Acknowledgement
? Mail process to Δ by first-class mail, enclosing two copies of a statutory acknowledgment form, plus a return envelope, postage prepaid, addressed to sender. Service will be effective only IF Δ signs and returns one of the acknowledgment forms to Π within 30 days after Δ receives the mailed process. Service is complete upon Δ;s posting of the signed form.
i. Note: service here is completely dependent on Δ’s cooperation.
ii. If Δ does not return acknowledgment form? Service by mail is not effective. Π must serve process again using one of the traditional methods. If Δ refuses to sign, he must pay Π’s expenses in making the second service of process.
iii. Note: Service by mail plus acknowledgment may be used regardless of whether Δ is in-state or out-of-state.
iv. Note: Available to all types of Δ’s except infants and mentally incapacitated persons w/ legal guardians (who must be served by traditional methods).
Personal Jurisdiction
Jurisdiction enables a judgment for money damages to be enforced in full. Some kind of territorial connection is required between a Δ and NY.
General Jurisdiction(doesn't matter where claim arose)
i. Presence in NY
ii. Doing Business in NY
iii. Domicile in NY
b. Specific Jurisdiction (claim must be specific to Δ’s NY activity or within terms of consent clause in contract)
i. Long-Arm Jurisdiction
ii. Non-Resident Motorist Statute
iii. Consent
2. Personal Delivery to Δ While Δ Physically Present in NY
: Physical presence of Δ in state is valid basis of personal jurisdiction (aka Gotchya jurisdiction)(e.g., Δ (NJ) runs over Π in NJ; comes to NY for first time, served by Π. Valid).
Doing Business” in NY for personal jurisdiction purposes
. Domestic corporations are subject to personal jurisdiction in New York on any claim whatsoever, regardless of where claim arose. Same rule applies to a foreign corporation authorized to do business in NY (licensed corporation). Same rule applies to corporations that are incorporated in NY.
Unlicensed Foreign Corporation Diong business in NY. [Bar Exam Favorite]
An unlicensed foreign corporation is said to be “present” in NY is it is “doing business” in NY.
Whats doin business in NY for a foreign corporation
Satisfaction of doing business standard usually only necessary if cause of action arose outside of NY, since if cause of action arose in NY, lcan be made ong-arm jurisdiction will probably be available.
Service on someone domiciled in NY
A Δ who is a domiciliary of NY at the time the action is commenced can be served with process anywhere in the US. This gives Π a basis of general jurisdiction over Δ
Domicile definition
: is the one residence at which a person intends to remain indefinitely and is treated by her as the principle home. A person has only one domicile.
residence definition
: a place where a person lives for a fair amount of time with some degree of permanency; a person can have multiple residences.
Idea of Long-Arm jurisdiction
allows for out-of-state service conferring personal jurisdiction on the basis of certain acts by Δ that have a sufficient connection with NY, provided Π’s claim arose from those acts performed in NY.
5 catagories for long arm jurisdiction
1. Plaintiff's claim arose from a transaction of business by D in NY.

2.Plaintiff's case arose from a conract in which D agred to supply good/service in NY

3. arisies from tortious act in NY

4.Act outside NY that causes harm in NY.

5.arises from A's ownership, use, or possession of real property in NY
Long arm jurisdiction: Transaction of business
Transactions” include substantial negotiations, even for one day, that form basis of a contract; such contract need not be executed in NY.
b. Caveat: Plaintiff’s claim must arise out of the transaction of business in NY.
Long arm jurisdiction: A contract for services/goods supplied to NY
a. The contract must be economically significant (e.g., agreement to ship sizeable quantity of merchandise or perform on a broadway show).
b. Insufficient: A one-shot. Boilerplate phone call, fax, or mail order from an out-of-state buyer not enough to qualify as a transaction of business in NY
Long Arm jurisdiction: P's claim arises fromtortious conduct in NY
a. Examples: driving negligently on NY roadway, making fraudulent statements during NY sales negotiation, converting goods/assaulting while in NY. NOT defamation;
Long arm jurisdiction: Plaintiff’s Claim Arises from Δ’s Tortious Act Outside NY Which Causes Injury in NY
Need extra link to D and NY. they could be.

a. Δ regularly solicits business or engages in any other persistent course of conduct in NY; or
b. Δ derives substantial revenue from goods used or consumed, or services rendered, in NY; or
c. Δ expects or should reasonably expect the act to have consequences in NY and derives substantial revenue from interstate or international commerce.
d. Foreseeability Requirement: In addition, the Δ’s interstate commerce must purposefully include NY (due process requirement).
Long arm jurisdiction: Plaintiffs Claim Arises from Δ’s Ownership, Use, or Possession of Real Property Located in NY.
Δ of CT owns building in NYC, agrees to sell it to Π but backs out. Π can sue Δ in NY for damages or specific performance
Long arm state additional notes
a. It covers all types of Δ’s (e.g., corporations, individuals, partnerships)
b. The acts giving rise to jurisdiction can be performed by Δ herself or by her agent/employee. The agents acts in NY will also subject the agent herself to jurisdiction.
c. Even if Δ dies, decedent’s representative can be served outside NY.
d. Serving Process: Δ must use the same methods of service on Δ outside of NY as would be used inside NY.
ANALYSIS FOR PERSONAL JURISDICTION ESSAY QUESTION
1. First, discuss whether plaintiff can establish jurisdiction under any non-long-arm categories (presence, domicile, doing business)
2. Second, discuss whether facts of Π’s case fall within one or more of the five long-arm categories.
3. Third, briefly discuss whether the particular assertion of jurisdiction would satisfy constitutional due process:
a. Test: Due process will be satisfied if claim arises out of conduct of Δ that is so purposefully directed towards NY that the Δ should reasonably anticipate being haled into a NY court. [Memorize!]
Non-resident motorist statue
This statute confers personal jurisdiction over an accident claim arising from a nondomicilliary motorist’s ownership or use of an auto on a NY roadway. Often overlaps with long-arm category of “tortuous act in NY) but has 2 unique features:
1. Service of Process: Π serves process on Δ by personally serving one copy on NY secretary of State PLUS mailing second copy to Δ by certified mail to Δ’s out-of-state residence.
2. Applies to Vehicle Owner who Gave Permission to Drive in NY. (E.g., Alaskan mother loans car to son to check out NYC; he causes injury to Π; Π can get jurisdiction over mother, even though she did not commit tortuous act herself/do so by her agent).
Consent for personal jurisdiction
Parties to a contract may consent in advance to personal jurisdiction in NY in a :forum selection clause” (such as “any dispute relating to the contract shall be resolved in NY courts”). Such clause is generally enforceable in the absence of fraud, overreaching, or unreasonableness.
Divorce action personal jurisdiction
1. Divorce Action Rule: Having a valid basis of personal jurisdiction over a Δ is not necessary in a matrimonial action. To obtain a divorce, separation, or annulment, all that is necessary is the plaintiff spouse is a domiciliary of NY.
a. The court has in rem jurisdiction over marriage. The proper court is the Supreme Court. Personal Jurisdiction is not necessary.
Monetary Support rule jurisdictionally
: When Π spouse is a resident of NY, long-arm jurisdiction can be acquired over Δ-spouse for monetary support if:
i. NY was the matrimonial domicile of Π and Δ prior to their separation; or
ii. Δ abandoned Π in NY; or
iii. Δ’s monetary obligation accrued under an agreement executed in NY (e.g., separation agreement); or
iv. Δ’s monetary obligation accrued under the laws of NY
In a matrimonial action how may process be served
The only proper method of serving process in a matrimonial action is personal delivery to Δ. Alternative methods may not be used without judicial permission in a court order.
Long Arm jurisdiction: P's claim arises fromtortious conduct in NY
a. Examples: driving negligently on NY roadway, making fraudulent statements during NY sales negotiation, converting goods/assaulting while in NY. NOT defamation;
Long arm jurisdiction: Plaintiff’s Claim Arises from Δ’s Tortious Act Outside NY Which Causes Injury in NY
Need extra link to D and NY. they could be.

a. Δ regularly solicits business or engages in any other persistent course of conduct in NY; or
b. Δ derives substantial revenue from goods used or consumed, or services rendered, in NY; or
c. Δ expects or should reasonably expect the act to have consequences in NY and derives substantial revenue from interstate or international commerce.
d. Foreseeability Requirement: In addition, the Δ’s interstate commerce must purposefully include NY (due process requirement).
Long arm jurisdiction: Plaintiffs Claim Arises from Δ’s Ownership, Use, or Possession of Real Property Located in NY.
Δ of CT owns building in NYC, agrees to sell it to Π but backs out. Π can sue Δ in NY for damages or specific performance
Long arm state additional notes
a. It covers all types of Δ’s (e.g., corporations, individuals, partnerships)
b. The acts giving rise to jurisdiction can be performed by Δ herself or by her agent/employee. The agents acts in NY will also subject the agent herself to jurisdiction.
c. Even if Δ dies, decedent’s representative can be served outside NY.
d. Serving Process: Δ must use the same methods of service on Δ outside of NY as would be used inside NY.
ANALYSIS FOR PERSONAL JURISDICTION ESSAY QUESTION
1. First, discuss whether plaintiff can establish jurisdiction under any non-long-arm categories (presence, domicile, doing business)
2. Second, discuss whether facts of Π’s case fall within one or more of the five long-arm categories.
3. Third, briefly discuss whether the particular assertion of jurisdiction would satisfy constitutional due process:
a. Test: Due process will be satisfied if claim arises out of conduct of Δ that is so purposefully directed towards NY that the Δ should reasonably anticipate being haled into a NY court. [Memorize!]
Non-resident motorist statue
This statute confers personal jurisdiction over an accident claim arising from a nondomicilliary motorist’s ownership or use of an auto on a NY roadway. Often overlaps with long-arm category of “tortuous act in NY) but has 2 unique features:
1. Service of Process: Π serves process on Δ by personally serving one copy on NY secretary of State PLUS mailing second copy to Δ by certified mail to Δ’s out-of-state residence.
2. Applies to Vehicle Owner who Gave Permission to Drive in NY. (E.g., Alaskan mother loans car to son to check out NYC; he causes injury to Π; Π can get jurisdiction over mother, even though she did not commit tortuous act herself/do so by her agent).
Consent for personal jurisdiction
Parties to a contract may consent in advance to personal jurisdiction in NY in a :forum selection clause” (such as “any dispute relating to the contract shall be resolved in NY courts”). Such clause is generally enforceable in the absence of fraud, overreaching, or unreasonableness.
Divorce action personal jurisdiction
1. Divorce Action Rule: Having a valid basis of personal jurisdiction over a Δ is not necessary in a matrimonial action. To obtain a divorce, separation, or annulment, all that is necessary is the plaintiff spouse is a domiciliary of NY.
a. The court has in rem jurisdiction over marriage. The proper court is the Supreme Court. Personal Jurisdiction is not necessary.
Monetary Support rule jurisdictionally
: When Π spouse is a resident of NY, long-arm jurisdiction can be acquired over Δ-spouse for monetary support if:
i. NY was the matrimonial domicile of Π and Δ prior to their separation; or
ii. Δ abandoned Π in NY; or
iii. Δ’s monetary obligation accrued under an agreement executed in NY (e.g., separation agreement); or
iv. Δ’s monetary obligation accrued under the laws of NY
In a matrimonial action how may process be served
The only proper method of serving process in a matrimonial action is personal delivery to Δ. Alternative methods may not be used without judicial permission in a court order.
3. Durational Residency Requirements
Even if a Π is able to obtain sufficient jurisdiction in NY for a divocrce, action may be subject to dismissal on the merits due to Π’s failure to comply with these requirements.
When is durational residency requirement not needed
i. If both parties are NY residents at the time the action is commenced, and the grounds for the matrimonial action arose in NY, no period of prior NY residency is required.
1 year residencey requirement in matrimonial divorces
If either party has been a NY resident for a continuous period of at least one year immediately prior to the action AND NY has any 1 of 3 possible prior links to the marriage:
1. Marriage took place in New York; or
2. New York was the matrimonial domicile of the spouses at some point; or
3. Grounds for divorce action arose in NY
2 year residencey requirement in matrimonial divorces
If either party has been a NY resident for a continuous period of at least 2 years immediately prior to the action, then the two-year residency standing alone is sufficient; need not show any other connection to NY
Durational residency requirements apply to which types of actions
actions affecting marital status, not support actions.
venue def
i. If the Supreme Court has acquired jurisdiction, every Supreme Court in the state, regardless of county, would have power to hear the case. Rules of venue regulate the appropriate county in NY for the trial of a Supreme Court action
how venue is determined
Π chooses venue and specifies it in the summons in accordance with the following rules:
1. In an action in which the judgment would affect title or possession to real property: proper venue is county in NY in which property is located.
2. In all other actions: proper venue is any county in NY in which any one party resides at time action is commenced.
a. Note: If no party resides, Π may choose any county
Improper venue
Π’s choice of an improper venue is not a jurisdictional defect, and therefore it is not a basis for dismissal.
Remedy fro improper venue
i. Δ’s remedy for improper venue is to serve a demand for change of venue to a proper county designated by Δ. The demand must be served before or with the answer
If plaintiff object or consents to demand for change of venue
1. If Π consents to the demand: Change in venue to Δ’s designated county will be automatic.
2. If Π objects to the demand or fails to respond to it: The Δ must make a motion for change in venue.
a. Note: Δ’s motion must be granted as a matter of right if Π chose an improper venue and Δ chose a proper venue in his demand.
d. Discretionary Grounds for Change of Venue
i. Convenience of Material Witnesses. Either party, by motion, may request the court for a change in venue to the county that would be most convenient for witnesses. This will often (but not always) be the county where the cause of action arose.
ii. Impartial Trials. If there is reason to believe that an impartial trial cannot be had in the county where the action is commenced, either party may make a motion to change venue.
Defendants response to summons and complaint
serve and answer or make a pre-answer motion to dismiss
ANswer consists of?
a. Denials of the allegation Δ wishes to contest (failure to deny an allegation is an implied admission); and
b. Any affirmative defenses (e.g., S/L, lack of jurisdiction, Π’s comparative negligence). Affirmative defenses not raised in the answer are waived (subject only to Δ’s possible amendment of the pleadings;
Counter claims
Done in answer
Reply
P's pleading in response to counter claim. consists of denials and affirmative defenses
cross claims
In a multi-Δ case, Δ may assert a cross-claim against any other Δ. Cross-claims are asserted in Δ’s answer, and they can be based on any type of claim that Δ has against other Δ’s.
service of pleadings on other parties in a crossclaim suit
must be done.
INterlocutory papers
These include the Δ’s answer, all other pleadings, motions, discovery notices, etc. if an interlocutory paper is served on one party, it must be served on all other parties.
2. How Served. By regular first-class mail. Service of an interlocutory paper by mail is deemed made upon the mailing, not the receipt
Serving answer if D is served by personal delivery within NY
Must be within 20 days of delivery
serving answer If Δ was served with process by first class mail plus acknowledgment
Δ’s return of acknowledgment is merely a notification of Δ’s receipt of process; it is not a pleading. Therefore, Δ must serve answer within 20 days of Δ’s mailing of the acknowledgment.
8 grounds for motion to dismiss prior to answer.
(Downfall) a. Documentary Evidence as the basis for a defense, e.g., mortgage, deed, contract, or some other legally operative document.
b. Other Action Pending between the same parties on the same cause of action.
c. Want of Capacity of the Π, e.g., Π is an infant suing without a proper representative, or Π as beneficiary is suing on behalf of a trust (only the trustee has capacity).
d. Nonjoinder of a Necessary Party e.g. co-makers of a promissory note, joint property owners.
e. *Failure to State a Cause of Action. This motion is directed to the substantive insufficiency of the complaint on its face, i.e., even if all of the allegations are deemed to be true, the substantive law does not recognize a cause of action.(gotta discuss elements of COA)
ALL of Downfall for grounds for dismissal prior to answer
f. Additional Affirmative Defenses as specified below (include “SPARERIBS”)
i. Statute of Limitations
ii. Payment (e.g., hey I paid that!)
iii. Arbitration Award (we already resolved that)
iv. Release
v. Estoppel (collateral estoppels)
vi. Res Judicata
vii. Infancy of Defendant (comes up in k’s claims)
viii. Bankruptcy Discharge
ix. Statute of Frauds
g. Lack of Personal Jurisdiction. This category includes:
i. Improper commencement procedure (wrong clerk)
ii. Improper service of process
iii. Lack of basis jurisdiction
h. Lack of Subject Matter Jurisdiction
When must motion to dismiss be served
The motion is made before service of the answer. (On or before the last day of prescribed time limit for service of the answer).

b. Making the motion extends Δ’s time to answer. If the motion is denied, Δ must then serve the answer within 10 days.
How many pre-answer motions can a D make
1, but may be on multiple grounds
Rules on waiver of 3211 motion.
a motion to dismiss on any ground listed in 3211 does not preclude raising any other 3211 ground in the answer, except Lack of Personal Jurisdiction
How can you preserve Lack of personal jurisdiction
i. Before serving answer, make 3211 motion to dismiss that includes lack of personal jurisdiction
ii. Make no 3211 motion to dismiss on any grounds and instead include lack of personal jurisdiction as affirmative defense in answer.
iii. *Warning – Improper Service Defense: Although pleading improper service of process as a defense in the answer is a proper way to assert that particular jurisdiction defect, the objection of improper service will nevertheless be waived if defendant does not make a follow-up motion for summary judgment on that ground within 60 days after serving the answer.
Affirmative defenses not raised in the answer
Are waived
the 3 defenses that are never waived even if D doesn include them in answer. These can be raised at any point.
1. Nonjoinder of a necessary party
2. Failure to state a cause of action
3. Lack of subject-matter jurisdiction
Goals in responding to summons with notice
Δ’s goals are to (1) avoid default, and (2) force Π to serve the complaint. Can be accomplished by either:
1. A Demand for the Complaint (a simple paper); or
2. Notice of Appearance
ways to respond to a summons with notice
A demand for the complaint( just a single paper) OR Notice of appearance
Time requierment for demanding complaint or notice of appearance
Δ’s time limit for serving either a demand for the complaint or a notice of appearance is the same as the response time for responding to a summons and complaint:
1. 20 days if served by personal delivery
2. 20 days from acknowledgment if served by first class mail plus acknowledgment
3. 30 days after service complete in all other circumstances
Once P serves complaint after D demanded the complaint how long does p have to respond?
1. If Π timely serves the complaint, Δ has 20 days from such service to either:
a. Serve the answer or
b. Make a pre-answer motion to dismiss
amendement of pleadings?
: Each party is entitled to amend her pleading once as a matter of right, i.e., without the need to obtain judicial permission. When making an amendment as of right, the party can put anything into the pleading that could have been in the original
A Δ may raise an omitted Personal Jurisdiction objection by means of amendment of right to the answer, provided that
a. The Δ made no pre-answer motion to dismiss, and
b. Δ adds the jurisdictional amendment to answer within 20 days after serving the original answer.
When is a motion to amend pleadings needed
When the period for the amendment as of right has expired, or the party has already used up her amendment as of right, a motion for leave to amend is required. The decision to permit an amendment on a motion lies in the court’s discretion. That standard applied is that “the amendment will be allowed if the opponent will suffer no incurable prejudice
What must a party show to oppose a motion to amend + demonstrating predjudice
a detrimental change of position as a result of the delay.
Impleader
Impleader is a procedural device used by Δ to join another party alleged to be liable in whole or in part to Δ for damages that Δ may have to pay Π.
Procedural steps for impleader
1. File a summons and third party complaint
2. Serve a copy of summons/third party complaint within 120 days of filing. 3. TPD must serve a third-party answer on Δ, Π and all other parties who have appeared in the action. 4. After TPD is joined, Π may amend her complaint to assert a claim directly against TPD, thereby making an additional Δ in Π’s action.
Relation back doctrine
IDK figure it out dumb ass. Somthing to do with the SOL having run and a new party getting impleade and the complaint relating back to within theSOL.
Indemnity.
. This allows one party to shift 100% of the responsibility to another party.
common indemnity situations?
Products liablity/ciarious liability situations
Contribution
. Involves a sharing of the loss – apportionment – among multiple tortfeasors who are all actual participants in the tort. The purpose of contribution is to mitigate the harshness of the law of joint and several tort liability.
Mechanics of a Judgment for Joint and Several Liability
The potential inequity to a joint and several tortfeasor who is held liable for the full amount is cured by the right of contribution, which enables him to seek partial reimbursement from the other tortfeasors.
3 ways to assert indemnity/contribution
1. If Π originally joined the tortfeasors as co-Δ’s they can assert cross-claims against eachother.
2. If Π omits a tortfeasor, a Δ can implead the outsider as TPD.
3.Tortfeasor may sue TPD in a separate action.
Equal Shares Formula (minority view) of contribution
The contribution shares are always equal in amount.
comparative degrees of fault.(NY RULE) of contribution
The 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.
How much can a contribution be obligated to pay
his equitable share
when is there a right to contribution
: a right to contribution exists whenever TPD breached a duty in tort which contributed to or aggravated the damages for which Δ may be held liable to Π. Thus, Δ may seek contribution from TPD even if the injured Π has no right of recovery against TPD.
what are the limitaitons on contribution/indemnity in workers comp cases
If an employee is injured on the job, she cannot sue her employers, regardless of fault on the part of the employer, because of the Workers’ Compensation Law. However, the employee can sue a third person who is partially at fault for the accident, e.g., the manufacturer of a product that the employee was using at work when she was injured. The third person is barred from seeking contribution or indemnity from Π’s employer unless the injured employee (Π) sustained a grave injury.
“Successive Tort Liability” Rule
: A Δ is liable to Π to all damages that proximately flow from the accident, including subsequent medical care and malpractice inflicted by successive tortfeasors.
Settlements in multi tortfeasor cases
: Π’s pre-trial release of one tortfeasor in partial satisfaction of claim does not discharge Π’s claim against other tortfeasors. However, the law prohibits excess recovery, so any judgment against a non-settling tortfeasor will have to be reduced to take account of the settlement.
How do you reduce a multi-tortfeasor judgement once settlement has taken place
ii. The Reduction Formula: Any judgment for Π against a non-settling tortfeasor must be reduced by EITHER
1. The amount of the settlement; OR
2. The settling tortfeasor’s equitable share of the fault, whichever is LARGER
Settlement in contribution claims
A party who settles cannot sue or be sued for contribution.
settelment in Indemnity
A party who settles can sue, and be sued, for indemnity.
NY Joint and several liability rule
whe n D is less than 50% at fault, and P has sustained economic damage:

i. THEN the joint tortfeasor can only be required to pay her own share of the Π’s non-economic damages. Therefore, any Δ found liable for 51% or more of the total liability is jointly and severally liable for the entire judgment.
Non-economi damages for CPLR 16(joint and several liability)
1. Pain and suffering
2. Mental anguish
3. Loss of consortium
Exclusions from article 16.
The following tortfeasors are subject to full joint and several liability for all damages:


a. Tortfeasors who acted with intent or reckless disregard for the safty of other. In a case involving multiple tortfeasors, where some have acted intentionally and some negligently, only intentional tortfeasors are subject to full joint and several liability.
b. Tortfeasors who released a hazardous substance into the environment.
c. *Drivers and owners of motor vehicles other than police and fire vehicles.
Motion on Notice
i. A motion on notice gives the adversary an opportunity to be heard in opposition.
ii. Papers served on the other party:
1. Notice of Motion (a piece of paper advising of the nature of the motion and specifying a return date)
2. Affidavits of Facts (showing why the motion should be granted)
3. Memoranda of Law (sets forth legal arguments – optional).
Procedure for motion on notice
1. The motion is “made” when the motion papers are served on the other party (e.g., if by mail, when dropped in a mailbox).

4. All motion papers, those of the moving party as well as those of the opponent, must be filed with the court no later than the return date. The court begins the decision-making process on the return date and then issues an order granting or denying the motion.
Order to show cause definition
This is an alternative way to make a motion on notice. The order to show cause is a preliminary order, signed ex parte by a judge, directing the adversary to “show cause” on the date specified by the judge, why the motion should not be granted. The judge, rather than the party, is giving the notice of motion.
Why make a motion by order to show cause rather than ordinary motion?
a. It is a means of accelerating the return date where exigent circumstances make the usual 8-day notice too long to wait for judicial assistance. In signing the order to show cause, the judge can specify a return date than is sooner than the 8-day minimum that would otherwise apply.
b. The judge can grant an immediate stay of the proceedings or a temporary restraining order.
c. The statute which governs the particular motion may require it.
THe deciding order????
i. After the return date of a motion on notice, the court’s decision must be embodied in a written order signed by the court. The prevailing party (whether the moving party or the opponent) serves a copy of the order on the losing party with notice of entry of the order. Even if the court provides the parties with the order, the prevailing party must serve the order as described above.
Ex-parte Motion
: this is a motion in which no advance notice is given to the adversary, i.e., without giving any opportunity to be heard in opposition. The moving party goes straight to the court with the motion papers and request an order granting the relief sought.
when is ex parte motion allowed
Ex parte motion is not allowed without express statutory authorization. Very rare.
remedy for aggrieved party ex parte order
. Appeal is not a remedy; opponent may make a motion on notice to vacate the ex parte order. If the motion is denied, the aggrieved party can appeal from the denial of the motion.
Motion for summary judgement
To enable a party to show, before trial, that even though the pleadings may be sufficient on their face, there is no genuine issue of material fact requiring a trial.

DISCUSS underlying COA
When can SUm Judge motion be made?
i. Parties generally cannot move for summary judgment prior to service of Δ’s answer; such motion would be premature.
ii. After service of the answer, any party can move for summary judgment with respect to any claim or defense asserted in the pleadings.
iii. The outside time limit for making a summary judgment motion is 120 days from the filing of the note of issue .

1. Exception: Motion may be permitted after expiration of 120 days from filing of note of issue if moving party shows “good cause” (procedural excuse, such as law office failure or delayed disclosure responses provided after the filing of the note of issue; the merits of the motion itself does not qualify as good cause.)
when is Sum Judgment permitted prior to service
1. In two types of actions, Π may, If she wishes, move for summary judgment at the same time she serves process by accompanying the summons with motion papers for summary judgment; in these instances, the MSJ is served “in lieu of the complaint”:
a. An action on an instrument for the payment of money only. The instrument must contain Δ’s unconditional promise to pay money (e.g., a promissory note; very rare.).
b. An action on an out-of-state judgment (e.g., Π sues Δin FL and obtains default judgment; Π comes to NY; quick way to convert this out-of-state judgement into a state judgment is to make this motion).
Motion for summary judgement in lieu of complaint
1. In two types of actions, Π may, If she wishes, move for summary judgment at the same time she serves process by accompanying the summons with motion papers for summary judgment; in these instances, the MSJ is served “in lieu of the complaint”:
a. An action on an instrument for the payment of money only. The instrument must contain Δ’s unconditional promise to pay money (e.g., a promissory note; very rare.).
b. An action on an out-of-state judgment (e.g., Π sues Δin FL and obtains default judgment; Π comes to NY; quick way to convert this out-of-state judgement into a state judgment is to make this motion).
2. Rationale: both of these actions are based on documents that are prima facie valid when supported by an affidavit of noncompliance.
need for provisional remedies
Lawsuits can take time to resolve, and Π’s rights may be jeopardized while the matter is pending. Provisional remedies provide a measure of security to Π for the ultimate enforcement of a potential judgment.
5 provisional remedies
1. Attachment
2. Preliminary Injunction
3. Temporary Receivership
4. Order to Seize Chattel in an action to recover the chattel (replevin)
5. Notice of Pendency (lis pendens)
Attachment
The purpose of attachment is to provide security for the enforcement of a money judgment, to ensure that money is in place for a possible judgment. The concept is that Π obtains an order of attachment from the court and gives it to a NY sheriff who levies upon the property pending the outcome of the action. This gives Π a security interest in the property that is superior to that of any subsequent lien holder
Either real or personal property, if located in N, can be levied upon
a. On real property, sheriff files an order of attachment with the county clerk in the NY county in which the property is located.
b. Personal property that qualifies for a levy includes tangible property (a car, boat) or intangible property (such as a debt owed to Δ; a bank account is a prime example).
Types of action in which attachment may be used.
1. Δ is an unlicensed foreign corporation or a non-domiciliary residing outside of NY; or
2. Δ is about to conceal or remove assets from NY with the intent to defraud creditors or frustrate the enforcement of a judgment.
Types of actions for preliminary injunctions?
An equity action in which Π’s complaint seeks either
1. A permanent injunction; or
2. A showing that Δ threatens to harm Π’s interests in the subject matter of the action.
must a preliminary injunction be made on notice
yes
TRO summary
a. Π commences an action seeking equitable relief.
b. Π moves (by order to show cause) for a preliminary injunction to maintain status quo until overall action is resolved.
c. In the order to show cause, Π requests TRO to obtain immediate injunctive relief pending the outcome of the motion for the preliminary injunction.