New York Practice

Front 1

First American Corp. v. Price Waterhouse

Back 1

Jurisdiction can be acquired over a partnership when a partner is served in New York, even if the partner is not a resident or domiciliary.

If lawsuit pending in Fed. Ct. & you want to subpoena docs from party in 2nd Forum then you can subpoena docs.

Basis of Upholding Jurisdiction: Strong relationship b/t PW U.S. & U.K. such that PW UK "doing business" through PW U.S

Basis of Affirming Jurisdiction: 310; personal service on UK partner in NY; Partnership not distinct entity from individual partners (opposite of corporation) (In corp, no jurisdiction when serving President.)

Front 2

Tauza v. Susquehanna Coal Co.

Back 2

Holding – There is personal jurisdiction over defendant
based on the corporation’s presence in the state..
• Reasoning: Through its agents, the corporations
activities were "systematic" and "regular"
• Rule – the Tauza “Doing Business Test”: While there is
no precise test of the nature or extent of the business
that must be done, if the corporation is here “not
occasionally or casually, but with a fair measure of
permanence and continuity, then, whether its business is
interstate or local it is within the jurisdiction of our
courts.”


-Jurisdiction does not fail b/c the cause of action sued upon has no relation in its origin to the business transacted in NY.
-Any Corp that has office in NY & is staffed, opens itself up to jurisdiction

Front 3

Bryant v. Finnish National Airline

In the case Bryant v. Finnish National Airlines a resident of New York sued the defendant for injuries incurred at a Paris airport through the alleged negligence of the defendant.

Back 3

The Court of Appeal held that it had jurisdiction because the Finnish National Airlines maintained a one and a half-room office in New York City, where some publicity work was done. No flight operations were conducted within the U.S., no stockholders, officers or directors were residents of New York, the plaintiff's cause of action was totally unrelated to the defendant's activities in New York.

having a store grants general jurisdiction

-Jurisdiction in NY upheld where:
1) Office, functional
2) Business solicitation
3) in NY

If you hire an independent agency to handle marketing/sales you may be able to skirt jurisdiction, or you can set up a subsidiary corp and operate it independently

Front 4

Delagi v. Volkswagenwerk AG of Wolfsburg, Germany

– individual injured in Germany can’t reach German manufacturer who conducted extensive sales in NY through independent distributor. Not interlocking ownership, just independent distributors.
-Does individual dealership hold parent company, which doesn't own dealership, liable to PJ in NY?

Back 4

-No, the dealership was independently owned & operated and even with instructions and support from parent, there was no PJ

Front 5

"Doing Business" Laufer v. Ostrow.

Facts: foreign corp D employed three sales reps in NY who "not only solicited sales in NY but ran clinics for the customers, followed up on complaints or difficulties, delivered swatches and sales material." Also, did $2 million worth of business in NY.

Back 5

Solicitation and servicing by a foreign corporate sales agency of New York accounts through sales representatives present in New York, if systematic and continuous, is enough to subject the sales agency corporation to New York jurisdiction.

-Suit, here is different, b/c it is agent corp that solicits businss in NY
- There was PJ here but if manufacturer was sued then no PJ b/c using company for mere solicitation is not enough to create PJ
-PJ here b/c of "purposeful activity" by D
- Individual no liable b/c acting on behalf of corp not himself

Front 6

Boss v. American Express Financial Advisors, Inc.

three first-year financial advisors brought suit against their employer, American Express Financial Advisors, Inc. (“AEFA”), on behalf of themselves and the putative class action members who were similarly situated. At issue was whether the forum selection clause contained in Plaintiffs’ employment agreement, requiring that any action be brought in a Minnesota court, should be enforced.

Back 6

Pursuant to Boss, forum selection clauses and choice of law provisions contained in contractual employment agreements are valid and will be enforced by New York courts. As such, employers have the option of customizing their employment agreements by selecting forums and the applicable law most favorable to them.

-Jurisidciton based on consent
-P can argue that contract provision doesn't contain the word "exclusively" to indicate that Minnesota was unambiguously the only form for litigation (Prof thinks this case should have gone in favor of P).

Front 7

Section 310 Personal service upon a partnership

Back 7

(a) Personal service upon persons conducting a business as a partnership may be made by personally serving the summons upon any one of them.
(b) Personal service upon said partnership may also be made within the state by delivering the summons to the managing or general agent of the partnership or the person in charge of the office of the partnership
(c) Where service under subdivisions (a) and (b) of this section cannot be made with due diligence, it may be made by affixing a copy of the summons to the door of the actual place of business of the partnership and by either mailing the summons by first class mail to the partner intended to be so served to such person to his last known residence or to said person at the office of said partnership within the state.
(d) Personal service on such partnership may also be made by delivering the summons to any other agent or employee of the partnership
(e) If service is impracticable under subdivisions (a), (b) and (c) of this section, it may be made in such manner as the court, upon motion without notice directs.

Front 8

Deutsche Bank Securities, Inc. v. Montana Board of Investors

The Board used instant messaging to negotiate a bond purchase but then backed out of the deal while contending that the New York securities firm had been trading on the basis of insider information.

Back 8

The court stated that "[w]hile electronic communications, telephone calls or letters, in and of themselves, are generally not enough to establish jurisdiction, they may be sufficient if used by the defendant deliberately to project itself into business transactions occurring within New York State."

The Board, according to the court, was "not a mere out-of-state consumer who made a few phone calls to his broker in New York to purchase stock and then reneged. Rather, negotiating major transactions such as the one at bar is a principal aspect of defendant's mission, i.e., part of its principal reason for being." Thus, contacts sufficient to meet due process requirements "occurred through the Bloomberg Messaging System which allowed defendant very purposefully to negotiate a bond deal with this New York plaintiff without having actually to set foot in New York."

Rule: "Single Act Statute:" proof of one transaction in NY is sufficient to invoke jurisdiction, even though the defendant never enters NY, so long as the D's activities here were purposeful and there is a substantial relationship b/t the transaction and the claim asserted.

Factors Court looks at:

1) Solicitation came from ny (who initiated the transaction?),
2) Sophistication for PJ,
3) Volume of transactions

Front 9

Johnson v. Ward

Issue: whether long-arm jurisdiction exists over a non-resident holding a NY driver's license and car registration for a tort claim arising from an out-of-state motor vehicle accident.

Back 9

Holding: No, no PJ under CPLR 302(a)(1) b/c there is an insufficient nexus between P's personal injury action an any NY transactions.

Front 10

Paradise Products Corp. v. All-Mark Equipment Co., Inc.

Back 10

(jurisdiction would offend due process where out-of-forum
defendant sold 500 gallon copper kettle from stock to
plaintiff, even though defendant knew that kettle was
bound for forum)

Knowledge that a product may be destined for a particular forum is insufficient to sustain jurisdiction. Here, title to the property passed out-of-state.

- if P assumes responsibility, then no PJ

Front 11

La Marca v. Pak-Mor Manufacturing Co.


P sues D alleging that he was injured when he fell from a sanitation trucked equipped with a defective loading device that was installed by D.

Back 11

Rule: 302(a)
1) D committed a tortious act outside the State,
2) that the cause of action arises from that act;
3) the act caused injury to a person or property within the State;
4) D expected or should reasonably have expected the act to have consequences in the State; and
5) D derived substantial revenue from interstate or international commerce

-PJ based on 302(a)(3)(ii) [Big-hitter Statute]

Front 12

Sybron Corp. v. Wetzel

In Sybron, the out‐
of‐state defendant hired a former Sybron employee
allegedly to obtain trade secrets that would enable
it to gain a competitive edge with Sybron's New York customers.

Issue: Should D expect the hiring of Wetzel to have consequences in NY.

Back 12

personal jurisdiction did lie in New York.



Yes, according to the facts here.

-concerns a commercial tort instead of personal injury tort
-uses 302(a)(3)
-revealing trade secrets threatened business in NY
-PJ over Comp but prob not Wetzel b/c he doesn't derive substantial revenue

Front 13

Tebedo v. NYE

Facts: P is a NY resident, one D is a FL resident the other D had NY ties. P claims D sold them property but never got a deed.

Back 13

o Held: D is subject to personal jurisdiction in NY bc of relationship existing at time of cause of action occurred. Even though D was a FL resident when sued, at time of action at issue, D owned property in NY--that is the touchstone! 6. In Rem Jurisdiction Not personal jurisdiction, but can still adjudicate right of personal property located in NY. But, judgment only affects the property. Def: Action concerns disputed claims to particular property (e.g. a piece of land or a bank account), is accompanied by an appropriate form of notice...addressed to all persons who may have claims to the property, and has the effect of determining the interests of all persons who might have claims to it Property doesn't have to be the subject matter of the case, but does need to related.

Rule: Jurisdiction is grounded on the relationship existing b/t the D and the realty out of which the cause of action arose at the time the cause of action arose.

-court finds PJ under 302(a)(4) even though D's don't "own,use or possess" the property in question.

Front 14

Citigroup, Inc. v. City Holding Co.

P sued D for trademark infringement.

Back 14

Three types of Internet Activity:
1) Passive web site: D makes info available on what is essentially a passive web site. No jurisdiction.
2) D clearly does business with customers in forum state such as where it knowingly and repeatedly transmits computer files to customers in other states. Jurisdiction found here.
3) Middle ground: D maintains an interactive web site which permits the exchange of information b/t users in another state and the D, which depending on the level and nature of the exchange may be a basis for jurisdiction.

--Court used 302(a)(1), similar to Deutsche Bank they are projecting their business into NY
-Also, the Parent Company is implicated under 302(a)(1) b/c they solicited business in NY
-THere is also PJ under 302(a)(2) b/c letters sent to NY which constituted a tortious act
-However, no 302(a)(2) for website b/c tort occurred where website is maintained
-Implicated as well by 302(a)(3) for licensing agreement entered b/t parent & their sub

Front 15

302(a) : Long-Arm Jurisdiction

Back 15

(a) Acts which are the basis of jurisdiction. As to a cause of action arising from any of the acts enumerated in this section, a court may exercise personal jurisdiction over any non-domiciliary, or his executor or administrator, who in person or through an agent:
1. transacts any business within the state or contracts anywhere to supply goods or services in the state; or
2. commits a tortious act within the state, except as to a cause of action for defamation of character arising from the act; or
3. commits a tortious act without the state causing injury to person or property within the state, except as to a cause of action for defamation of character arising from the act, if he
(i) regularly does or solicits business, or engages in any other persistent course of conduct, or derives substantial revenue from goods used or consumed or services rendered, in the state, or
(ii) expects or should reasonably expect the act to have consequences in the state and derives substantial revenue from interstate or international commerce; or
4. owns, uses or possesses any real property situated within the state.

Front 16

banco ambrosiano v. artoc

Back 16

a. A NY bank account provides sufficient minimum contacts for quasi-in-rem over D, a bank organized under Bahamian law.
b. The account was “reasonably” related to dispute.
c. Court noted that long-arm statute did not authorize J in any other way.

-Court says the bank accts were a crucial part to the litigation. They were the subject of the litigation.
-Also , there was sophistication & a history of conducting business through Brown Brothers (not a happenstance) (this shows "Min Contacts")
-NY Court's quasi-in rem jurisdiciton extended only to $5 mm in bank acct.

Front 17

Carr v. Carr

Facts: H obtained ex parte a Hondurian divorce from W1 and married W2, who never was present in NY. H Died. W1, a New York domiciliary, sued W2 in New York.

Back 17

Holding: In the absence of "minimum contacts," New Your courts have no jurisdiction over the nonresident second wife of a deceased husband, where the first wife seeks to obtain a declaration as to the validity of the first marriage.

No martial res has been recognized, following the death of one of the parties to the marriage, as sufficient to provide a jurisdiction basis for an in rem adjudication binding on third parties over whom the forum court has no in personam jurisdiction.

Front 18

Martin v. Mieth

Synopsis: After the driver and passenger of an automobile, who were both Canadian residents, were involved in a one-car accident which took place in the state of New York, the passenger brought an action in New York against the driver to recover damages for her personal injuries, obtaining service over the driver under the nonresident motorist statute. The Supreme Court, Special Term, New York County, Jacob N. Grumet, J., first denied a motion by the driver to dismiss the action on the ground of forum non conveniens and 12 subsequently, per Edward T. McCaffrey, J., denied the driver's motion for a change of venue. Both orders were affirmed by the Supreme Court, Appellate Division, First Judicial Department, 42 A.D.2d 892, 347 N.Y.S.2d 590, and a question of law was certified.

Back 18

The Court of Appeals, Wachtler, J., held that the mere adventitious happening of the accident within the state of New York did not constitute such a substantial nexus with the state so as to mandate the retention of jurisdiction over the action by the state's court, and that in view of the driver's own representations that no witnesses or evidence important to the action were to be found within the state, the complaint would be dismissed on grounds of forum non conveniens on condition that the passenger agreed to service of process in Canada. Order reversed with costs and complaint dismissed on condition.

2. Held: Where only nexus between personal injury action brought by passenger of automobile against driver, both parties being Canadian residents, was adventitious circumstance that one-car accident occurred in state of New York, and where affidavit of passenger established that no witnesses or evidence relative to accident were to be found in state, court would dismiss action under doctrine of forum non conveniens on ground that it lacked substantial nexus with state, on condition that driver would accept service of process and appear in action commenced in Canada for same relief. CPLR 3211(a), par. 2, 5713 3. Rule:

Forum non conveniens is equitable doctrine whereby court in its discretion may decline to exercise jurisdiction over transitory cause of action upon consideration of justice, fairness and convenience.

4. Rule: Since touchstone of forum non conveniens doctrine is flexibility, New York court need not entertain causes of action lacking substantial nexus with state. 5.

Rule: Mere happening of accident within state does not, alone, constitute substantial nexus with state so as to mandate retention of jurisdiction by New York courts over action arising out of such accident.

Front 19

Bewers v. American Home Products Corp

Facts: Oral contraceptive case. P residents of UK and sued D in NY concerning oral contraceptives that allegedly caused strokes. D argued that court should dismiss the case based on forum non conveniences bc all drugs were prescribed in UK, marketed, tested and sold there. P argues that the decisions to make and market the drugs were made in NY—substantial nexus test. Furthermore, P argues UK doesn’t recognize strict liability in tort cases. In NY, if a drug is defective, there is strict liability.

• Issue: Should residents from foreign countries be able to sue in NY to obtain the benefits of strict liability?

Back 19

• RULE/TEST: Where is there a greater interest in resolving this case?
• Held: Court develops the greater interest test to dismiss the case—Where is there a greater interest in resolving this case? UK wins.
• Additional TESTS: Court also mentions other tests that we should use all together:
• Whose law applies?—UK law needs to be applied
• Discovery Test—Where are the witnesses and documents located?—In UK

Front 20

Islamic Republic of Iran v. Pahlavi

Synopsis: An order of the Special Term, Supreme Court, New York County, Irving Kirschenbaum, J., dismissed complaint on the ground of forum non conveniens. On appeal, the Supreme Court, Appellate Division, Samuel J. Silverman, 94 A.D.2d 374, 464 N.Y.S.2d 487, entered judgment, and appeal was taken.

Back 20

The Court of Appeals, Simons, J., held that: (1) alleged absence of a suitable alternative forum did not require the court to retain jurisdiction over action brought by Iran alleging that former ruler wrongfully enriched himself and his family through the exercise and misuse of his power, and (2) trial court was not required to retain jurisdiction pursuant to hostage agreements. Affirmed. 2. Rule: Application of doctrine of forum non conveniens is a matter of discretion to be exercised by the trial court and the Appellate Division. 3. Principal: Ordinarily, nonresidents are permitted to enter New York courts to litigate their disputes as a matter of comity. 4. Rule: The common-law doctrine of forum non conveniens permits court to stay or dismiss actions which do not have any connection with the state where it is determined that the action, although jurisdictionally sound, would be better adjudicated elsewhere. McKinney's CPLR 327. 5. Rule: Burden rests upon defendant challenging a forum to demonstrate relevant private or public interest factors which militate against accepting litigation, and the trial court, after considering and balancing various competing factors, must determine in the exercise of its sound discretion whether to retain jurisdiction or not. 6. Rule: Among factors to be considered in determining whether to retain jurisdiction are burden on the courts, potential hardship to defendant, and unavailability of alternative forum in which plaintiff may bring suit. 7. Held: Availability of another suitable forum is the most important factor to be considered in ruling on a motion to dismiss on basis of forum non conveniens. 8. Held: Although existence of suitable alternative forum was an important factor to be considered in applying forum non conveniens doctrine to action brought by Iran against Iran's former ruler seeking to recover funds allegedly misappropriated or embezzled, its alleged absence did not require trial court to retain jurisdiction since Iran failed to establish that no alternative forum existed and the chosen forum was unable to afford the parties appropriate relief.

Front 21

Hart v. General Motors Corp

• Facts: P is a shareholder (derivative action) claiming that GM wasted corporate assets by paying Ross Perot and releasing him from promissory notes. There were other cases of the same nature going on.

Issue: What happens if NY state issues a decision that is inconsistent w/ Delaware Ct?

Back 21

• 5th TEST: Potential for contradictory decisions
• Held: Under this test, it determined that Del had a bigger interest in determining Del law.
• The Ct also added 3 more factors:
o Burden on the NY Courts
o Potential hardship to the defendant
o Unavailability of an alternative forum for P.


Held: Shareholder's action against corporation, its directors, and former director challenging board's decision authorizing purchase of former director's stock was subject to dismissal on basis of forum non conveniens; derivative actions challenging same transaction on behalf of corporation were being litigated in Delaware, action subjected corporation and directors to expense of litigating same claims in separate forums, as well as exposing them to possibility of inconsistent judgments, and shareholder had another readily available forum in which to pursue claim.

Front 22

Credit Francais International, S.A. v. Sociedad Financiera De Comercio, C.A.


Facts: Suit brought by a French bank headquartered in Paris against a Venezuelan financial institution w/offices in Caracas.

Back 22

Holding: Choice-of-Forum Clause. When all parties to an agreement have designated a particular jurisdiction as the forum for the resolution of their disputes, such a forum-selection clause "is prima facie valid and should be enforced...unless reasonable under the circumstances."

Forum-non Coneniens dismissed.

Front 23

Risoli v. Long Island Lighting Co.

Back 23

other things being equal, a transitory action should be tried in the county where the cause of action arose.

Front 24

Real Property Actions

Back 24

507: the place of trial of an action in which the judgment demanded would affect the title to, or the possession, use or enjoyment of, real property shall be in the county in which any part of the subject of the action is situated.

Front 25

Actions to Recover a Chattel

Back 25

This action can be treated for venue purposes as either local or transitory by way of 508 or 503(a), respectively.

Front 26

Consumer Credit Cases (503)(f)

Back 26

503(f): where a purchaser, borrower or debtor is a defendant in an action arising out of a consumer credit transaction, the place of trial must be either int he county of the D's residence if that is in NY State, or in the county where the transaction took place, if it occurred within the state.

Front 27

CPLR 302(b) - Personal jurisdiction by acts of non-domiciliaries:

Back 27

(b) Personal jurisdiction over non-resident defendant in matrimonial actions or family court proceedings. A court in any matrimonial action or family court proceeding involving a demand for support, alimony, maintenance, distributive awards or special relief in matrimonial actions may exercise personal jurisdiction over the respondent or defendant notwithstanding the fact that he or she no longer is a resident or domiciliary of this state, or over his or her executor or administrator, if the party seeking support is a resident of or domiciled in this state at the time such demand is made, provided that this state was the matrimonial domicile of the parties before their separation, or the defendant abandoned the plaintiff in this state, or the claim for support, alimony, maintenance, distributive awards or
special relief in matrimonial actions accrued under the laws of this state or under an agreement executed in this state. The family court may exercise personal jurisdiction over a non-resident respondent to the extent provided in sections one hundred fifty-four and one thousand thirty-six and article five-B of the family court act and article five-A of the domestic relations law.

Front 28

CPLR 503 - Venue based on Residence.

Back 28

(a) Generally. Except where otherwise prescribed by law, the place of trial shall be in the county in which one of the parties resided when it was commenced; or, if none of the parties then resided in the state, in any county designated by the plaintiff. A party resident in more than one county shall be deemed a resident of each such county.
(b) Executor, administrator, trustee, committee, conservator, general or testamentary guardian, or receiver. An executor, administrator, trustee, committee, conservator, general or testamentary guardian, or
receiver shall be deemed a resident of the county of his appointment as well as the county in which he actually resides.
(c) Corporation. A domestic corporation, or a foreign corporation authorized to transact business in the state, shall be deemed a resident of the county in which its principal office is located; except that such a corporation, if a railroad or other common carrier, shall also be deemed a resident of the county where the cause of action arose.
(d) Unincorporated association, partnership, or individually-owned business. A president or treasurer of an unincorporated association, suing or being sued on behalf of the association, shall be deemed a resident of any county in which the association has its principal office, as well as the county in which he actually resides. A partnership or an individually-owned business shall be deemed a resident of any county in which it has its principal office, as well as the
county in which the partner or individual owner suing or being sued actually resides.
(e) Assignee. In an action for a sum of money only, brought by an assignee other than an assignee for the benefit of creditors or a holder in due course of a negotiable instrument, the assignee's residence shall be deemed the same as that of the original assignor at the time of the original assignment.

Front 29

CPLR 510: - Grounds For Change of Place of Trial.

Back 29

The court, upon motion, may change the place of trial of an action where:
1. the county designated for that purpose is not a proper county; or
2. there is reason to believe that an impartial trial cannot be had in the proper county; or
3. the convenience of material witnesses and the ends of justice will be promoted by the change.

Front 30

Macchia v. Russo.

• Facts: P sued D just before SOL expired. P was a passenger in D’s car and there was an accident and P was injured. P goes w/ process server to D’s home and gives it to D’s son. D’s son give the summons to his father.

Back 30

Holding: Delivery of a summons to defendant's son outside his house, after which the son goes into the house and gives the summons to his father, is not valid service on defendant pursuant to CPLR 308(1).

Accident in 1975. Service effected in 1978.

• Held: Not personal service. No exceptions.

Front 31

Bossuk v. Steinberg

Back 31

Holding: the delivery requirement under 308(2) may be satisfied by leaving a copy of the summons outside the door of the person to be served upon the refusal of "a person of suitable age and discretion" to open the door to accept it, provided the process server informs the person to whom delivery is being made that this is being done.

a narrow exception to the requirement of 308(1) may be made in situations where a process server acts reasonably in the face of misrepresentations regarding the identity or authority of the person served.

Front 32

Service on a natural person
CPLR 308

Back 32

Personal service upon a natural person shall be made by any of the following methods:
1. by delivering the summons within the state to the person to be served; or
2. by delivering the summons within the state to a person of suitable age and discretion at the actual place of business, dwelling place or usual place of abode of the person to be served and by either mailing the summons to the person to be served at his or her last known residence or by mailing the summons by first class mail to the person to be served at his or her actual place of business in an envelope bearing the legend “personal and confidential” and not indicating on the outside thereof, by return address or otherwise, that the communication is from an attorney or concerns an action against the person to be served, such delivery and mailing to be effected within twenty days of each other; proof of such service shall be filed with the clerk of the court designated in the summons within twenty days of either such delivery or mailing, whichever is effected later; service shall be complete ten days after such filing; proof of service shall identify such person of suitable age and discretion and state the date, time and place of service, except in matrimonial actions where service hereunder may be made pursuant to an order made in accordance with the provisions of subdivision a of section two hundred thirty-two of the domestic relations law; or
3. by delivering the summons within the state to the agent for service of the person to be served as designated under rule 318, except in matrimonial actions where service hereunder may be made pursuant to an order made in accordance with the provisions of subdivision a of section two hundred thirty-two of the domestic relations law;
4. where service under paragraphs one and two cannot be made with due diligence, by affixing the summons to the door of either the actual place of business, dwelling place or usual place of abode within the state of the person to be served and by either mailing the summons to such person at his or her last known residence or by mailing the summons by first class mail to the person to be served at his or her actual place of business in an envelope bearing the legend “personal and confidential” and not indicating on the outside thereof, by return address or otherwise, that the communication is from an attorney or concerns an action against the person to be served, such affixing and mailing to be effected within twenty days of each other; proof of such service shall be filed with the clerk of the court designated in the summons within twenty days of either such affixing or mailing, whichever is effected later; service shall be complete ten days after such filing, except in matrimonial actions where service hereunder may be made pursuant to an order made in accordance with the provisions of subdivision a of section two hundred thirty-two of the domestic relations law;
5. in such manner as the court, upon motion without notice, directs, if service is impracticable under paragraphs one, two and four of this section.
6. For purposes of this section, “actual place of business” shall include any location that the defendant, through regular solicitation or advertisement, has held out as its place of business.

Front 33

Edward v. Green Enterprises, Inc. v. Manilow

Facts: Service is made to Manilow's manager.

Back 33

Theory of good service: service on an agent under 308(3).

However, you have to qualify as an agent under 318. Notwithstanding the relationship b/t manager and D, that type of service is only applicable in corporations not individuals.

Front 34

Feinstein v. Bergner

"Nail and Mail" Service. 308(4).

Pre-1992 case.

Facts: At time of accident, P lived in one address in BK. Suit wasn't started for 2.5 years. Process server went to original address assuming D still lived there. No one answered twice. Server satisfied requirements of 308(4) that service couldn't be made under 308(1) or 308(2) so they affixed and mailed papers to last known address.

Back 34

Holding: first requirements of 308(4) were not satisfied b/c they didn't go to actual dwelling place b/c the D moved. Mailing was ok b/c it went to last known residence, however one requirement was still not satisfied.

Front 35

Dobkin v. Chapman


Expedient Service Under 308(5).

Facts: P reasonably tries to find these people but they couldn't. D's in this case were nominally the drivers, but in reality, they were insurance companies or MV indemnification program.

Back 35

Held: Ok, b/c if D’s failed to get notice, it was their fault b/c didn’t give P correct address at accident scene or failed to leave forwarding address. Best possible means of notice by P are adequate.


• Factors the court looked at:
o Looked at P’s needs
o Public’s needs—NY has an interest in P’s recovering from wrong doers in car accidents
o Reasonableness of P’s efforts—Here, P was diligent and D’s had moved
o Look at D’s actions—D should have updated its address with the DMV and keep in touch with your insurance carrier
o Notify D who was properly curious
o Availability of other safeguards
• Summary: D has a duty to make his whereabouts know

Front 36

Colbert v. International Security Bureau, Inc.


Facts: Server served papers onto secretary who said she'd give it to D. D argus that secretary wasn't an agent of the corporation. Secretary protested receiving papers.

Back 36

Holding: court did not buy the fact that secretary qualified as a managing agent under 311.

Managing Agent: must be some person invested by the corporation with general powers involving the exercise of judgment and discretion as distinguished from a mere employee who acts in an inferior capacity and under the discretion and control of superior authority, both in regard to the extent of his duty and the manner of executing it.

Front 37

317 - Defense by person to whom summons not personally delivered

Back 37

A
person served with a summons other than by personal delivery to him or
to his agent for service designated under rule 318, within or without
the state, who does not appear may be allowed to defend the action
within one year after he obtains knowledge of entry of the judgment, but
in no event more than five years after such entry, upon a finding of the
court that he did not personally receive notice of the summons in time
to defend and has a meritorious defense. If the defense is successful,
the court may direct and enforce restitution in the same manner and
subject to the same conditions as where a judgment is reversed or
modified on appeal. This section does not apply to an action for
divorce, annulment or partition.

Front 38

What does D have to do once S&P are served?

Back 38

The D has to serve the Notice of Appearance.

P, then serves complaint.

D, can then answer complaint w/i 20 days or more commonly call up P and ask for more time to answer, confirmed by letter; or make a motion to dismiss(lack of jurisdiction, failure to state COA, etc...)

Front 39

Schaffer v. Heitner

Back 39

-cannot sue someone based on presence of property in state, if property had nothing to do w/cause of action
-there needs to be "minimum contacts" according to Int'l Shoe

Front 40

Chase Scientific Research v. NIA Group

-Broker screwed up in 1995 when the policy was created.
- P suffered injury when the storm occurred in 01/19/1996.
- Suite was brought in 1999. It was brought w/i 3 years of injury, not negligence.
- Brought breach of contract & negligence theories.
- 3 years SOL for negligence
- 6 years SOL for contract
- CoA believes negligence claims accrue when injury occurs. Breach of contract occurs when breach occurs which was on 5/31/1995.

Back 40

-Court said this isn't a malpractice suit under 214(6) b/c insurance brokers aren't professionals

Front 41

Gugliotta v. Apollo

-Suit against broker was on 03/1998

Back 41

- Court concludes that negligence claim was barred b/c SOL of 3 years passed from 1995, but they still have contract claim b/c breach occurred in '94.
-214(6) did not apply so there is a 6 year SOL.

Front 42

Cubito v. Kreisberg

-suit against an architect
-Date of Injury - 10/30/74
-Date of Suit - 1977
-SOL runs at time of injury, so it is a timely case, bc/ brought w/i 3 years
-P sued architect + owners of building (saying they had obligation to provide safe laundry room).
-Why did court say 214(6) was not applicable?

Back 42

Even though a defect in a building may not manifest itself until several years after construction is completed, the client's claim for the architect's malpractice accrues when the work is done or, at the least, when the relationship of architect and client terminates. Here, the client is owner of the building but P is a tenant. So architects should be in the clear but are not.

-Holding: If a third person is injured because of the architect's negligence in designing a part of the premises, the claim accrues when the plaintiff is injured.

-Owner ssought indemnity + contribution from architects by filing a cross claim.
- The SOL for indemnity runs when owners are liable to pay.
-Even if architects motion is granted, they still have to defend action against owners b/c they have a continuous duty to owners.

Front 43

Products Liability

Back 43

213(6)
-Breach of contract is normally 3 years except as provided under the UCC, where you get 4 years.
-COA occurs when breach occurs regardless of lack of knowledge of breach.

Front 44

CPLR 311 - Personal service upon a corporation or governmental subdivision

Back 44

(a) Personal service upon a corporation or governmental subdivision shall be made by delivering the summons as follows:
1. upon any domestic or foreign corporation, to an officer, director, managing or general agent, or cashier or assistant cashier or to any other agent authorized by appointment or by law to receive service. A business corporation may also be served pursuant to section three hundred six or three hundred seven of the business corporation law. A not-for-profit corporation may also be served pursuant to section three hundred six or three hundred seven of the not-for-profit corporation law;

Front 45

CPLR 312-a: Personal service by mail.

Back 45

(a) Service. As an alternative to the methods of personal service authorized by section 307, 308, 310, 311 or 312 of this article, a summons and complaint, or summons and notice, or notice of petition and petition may be served by the plaintiff or any other person by mailing to the person or entity to be served, by first class mail, postage prepaid, a copy of the summons and complaint, or summons and notice or notice of petition and petition, together with two copies of a statement of service by mail and acknowledgement of receipt in the form set forth in subdivision (d) of this section, with a return envelope, postage prepaid, addressed to the sender.
(b) Completion of service and time to answer. 1. The defendant, an authorized employee of the defendant, defendant's attorney or an employee of the attorney must complete the acknowledgement of receipt and mail or deliver one copy of it within thirty (30) days from the date of receipt. Service is complete on the date the signed acknowledgement of receipt is mailed or delivered to the sender. The signed acknowledgement of receipt shall constitute proof of service.

Front 46

CPLR 313 - Service without the state giving personal jurisdiction.

Back 46

A person domiciled in the state or subject to the jurisdiction of the courts of the state under section 301 or 302, or his executor or administrator, may be served with the summons without the state, in the same manner as service is made within the state, by any person authorized to make service within the state who is a resident of the state or by any person authorized to make service by the laws of the state, territory, possession or country in which service is made or by any duly qualified attorney, solicitor, barrister, or equivalent in such jurisdiction.

Front 47

CPLR 213 - Actions to be commenced within six years

Back 47

Actions to be commenced within six years: where not otherwise provided for; on contract; on sealed instrument; on bond or note, and mortgage upon real property; by state based on misappropriation of public property; based on mistake; by corporation against director, officer or stockholder; based on fraud.

The following actions must be commenced within six years:
1. an action for which no limitation is specifically prescribed by law;
2. an action upon a contractual obligation or liability, express or implied, except as provided in section two hundred thirteen-a of this article or article 2 of the uniform commercial code or article 36-B of the general business law;
3. an action upon a sealed instrument;
4. an action upon a bond or note, the payment of which is secured by a mortgage upon real property, or upon a bond or note and mortgage so secured, or upon a mortgage of real property, or any interest therein;
5. an action by the state based upon the spoliation or other misappropriation of public property; the time within which the action must be commenced shall be computed from discovery by the state of the facts relied upon;
6. an action based upon mistake;
7. an action by or on behalf of a corporation against a present or former director, officer or stockholder for an accounting, or to procure a judgment on the ground of fraud, or to enforce a liability, penalty or forfeiture, or to recover damages for waste or for an injury to property or for an accounting in conjunction therewith.
8. an action based upon fraud; the time within which the action must be commenced shall be the greater of six years from the date the cause of action accrued or two years from the time the plaintiff or the person under whom the plaintiff claims discovered the fraud, or could with reasonable diligence have discovered it.

Front 48

214 - Actions to be commenced within three years

Back 48

Actions to be commenced within three years: for non-payment of money collected on execution; for penalty created by statute; to recover chattel; for injury to property; for personal injury; for malpractice other than medical, dental or podiatric malpractice; to annul a marriage on the ground of fraud.

The following actions must be commenced within three years:
1. an action against a sheriff, constable or other officer for the non-payment of money collected upon an execution;
2. an action to recover upon a liability, penalty or forfeiture created or imposed by statute except as provided in sections 213 and 215;
3. an action to recover a chattel or damages for the taking or detaining of a chattel;
4. an action to recover damages for an injury to property except as provided in section 214-c;
5. an action to recover damages for a personal injury except as provided in sections 214-b, 214-c and 215;
6. an action to recover damages for malpractice, other than medical, dental or podiatric malpractice, regardless of whether the underlying theory is based in contract or tort; and
7. an action to annul a marriage on the ground of fraud; the time within which the action must be commenced shall be computed from the time the plaintiff discovered the facts constituting the fraud, but if the plaintiff is a person other than the spouse whose consent was obtained by fraud, the time within which the action must be commenced shall be computed from the time, if earlier, that that spouse discovered the facts constituting the fraud.

Front 49

CPLR 214-a - Action to be commenced within two years and six months; exceptions.

Back 49

Action for medical, dental or podiatric malpractice to be commenced within two years and six months; exceptions.

An action for medical, dental or podiatric malpractice must be commenced within two years and six months of the act, omission or failure complained of or last treatment where there is continuous treatment for the same illness, injury or condition which gave rise to the said act, omission or failure; provided, however, that where the action is based upon the discovery of a foreign object in the body of the patient, the action may be commenced within one year of the date of such discovery or of the date of discovery of facts which would reasonably lead to such discovery, whichever is earlier. For the purpose of this section the term “continuous treatment” shall not include examinations undertaken at the request of the patient for the sole purpose of ascertaining the state of the patient's condition. For the purpose of this section the term “foreign object” shall not include a chemical compound, fixation device or prosthetic aid or device.

Front 50

CPLR 214-c - Certain actions to be commenced within three years of discovery.

Back 50

1. In this section: “exposure” means direct or indirect exposure by absorption, contact, ingestion, inhalation, implantation or injection.
2. Notwithstanding the provisions of section 214, the three year period within which an action to recover damages for personal injury or injury to property caused by the latent effects of exposure to any substance or combination of substances, in any form, upon or within the body or upon or within property must be commenced shall be computed from the date of discovery of the injury by the plaintiff or from the date when through the exercise of reasonable diligence such injury should have been discovered by the plaintiff, whichever is earlier.
3. For the purposes of sections fifty-e and fifty-i of the general municipal law, section thirty-eight hundred thirteen of the education law and the provisions of any general, special or local law or charter requiring as a condition precedent to commencement of an action or special proceeding that a notice of claim be filed or presented within a specified period of time after the claim or action accrued, a claim or action for personal injury or injury to property caused by the latent effects of exposure to any substance or combination of substances, in any form, upon or within the body or upon or within property shall be deemed to have accrued on the date of discovery of the injury by the plaintiff or on the date when through the exercise of reasonable diligence the injury should have been discovered, whichever is earlier.
4. Notwithstanding the provisions of subdivisions two and three of this section, where the discovery of the cause of the injury is alleged to have occurred less than five years after discovery of the injury or when with reasonable diligence such injury should have been discovered, whichever is earlier, an action may be commenced or a claim filed within one year of such discovery of the cause of the injury; provided, however, if any such action is commenced or claim filed after the period in which it would otherwise have been authorized pursuant to subdivision two or three of this section the plaintiff or claimant shall be required to allege and prove that technical, scientific or medical knowledge and information sufficient to ascertain the cause of his injury had not been discovered, identified or determined prior to the expiration of the period within which the action or claim would have been authorized and that he has otherwise satisfied the requirements of subdivisions two and three of this section.

Front 51

UCC § 2-725. - Statute of Limitations in Contracts for Sale.

Back 51

(1) An action for breach of any contract for sale must be commenced within four years after the cause of action has accrued. By the original agreement the parties may reduce the period of limitation to not less than one year but may not extend it.

(2) A cause of action accrues when the breach occurs, regardless of the aggrieved party's lack of knowledge of the breach. A breach of warranty occurs when tender of delivery is made, except that where a warranty explicitly extends to future performance of the goods and discovery of the breach must await the time of such performance the cause of action accrues when the breach is or should have been discovered.

(3) Where an action commenced within the time limited by subsection (1) is so terminated as to leave available a remedy by another action for the same breach such other action may be commenced after the expiration of the time limited and within six months after the termination of the first action unless the termination resulted from voluntary discontinuance or from dismissal for failure or neglect to prosecute.

(4) This section does not alter the law on tolling of the statute of limitations nor does it apply to causes of action which have accrued before this Act becomes effective.

IF article 2 governs(i.e. sale of goods) then we have 4 years instead of 6. A COA accrues when the breach occurs, regardless of the aggrieved party's lack of knowledge of the breach.

Front 52

Victorson v. Block Laundry Machine Co.

(Old laundry machine) Strict products liability sounds in tort (statute of limitations runs from date of injury and duration of period is found in 214(4,5) which says there is a limitation of 3 years in actions for personal injury and property damage.)

• Issue: When does sol accrue when P is remote—P is the consumer or bystander and D sold it to a middleman who then sold it to the consumer?

Back 52

• RULE: Period of limitations with respect to strict products liability claims by remote users for injuries arising out of defective products begins to run at time of injury; duration of such period is three years, as specified by statute for actions for personal injury and property damage;

• D argues: 4 years statute of limitations for UCC
• Runs from date of delivery of product
• UCC Law: Breach can be brought by any person…
• So, D doesn’t deny P has a cause of action, just that it’s not timely

• Court:
• Looks to essence of the claim, not what P and D call them
• They say this is a tort case—not a K UCC case. A contract case would be btw buyer and seller. This is outside the UCC bc this is remote
• Accrual Issue: For torts, injury to the person starts to accrue when injury occurs
o It wouldn’t make sense to hold otherwise bc then an injured plaintiff wouldn’t have any cause of action if hurt later on.
o Policy considerations: Court determining what public policy should be when legislature is silent

Front 53

Blanco v. American Telephone & Telegraph Co.


Issue: when does a COA accrue against a keyboard manufacturer for repetitive stress injury (RSI) suffered by a keyboard user.

Back 53

Holding: COA accrue upon the onset of symptoms, or the last use of the keyboard, whichever is earlier.

Rule: 214;

Front 54

Heller v. U.S. Suzuki Motor Corp

Does COA occur when manufacturer sells to retailer or when retailer sells to end consumer.

Back 54

Holding: COA accrues when manufacturer sells to retailer.

If you act w/i 4 years from sale of manufact to retailer or 3 years from date of injury you can pursue immediate and remote parties on a contract, negligence theory, or strict products liability.

Front 55

Prego v. City of New York

Back 55

Holding: Blood contaminated by the AIDS virus is governed by 214-c.

Front 56

Laberbera v. New York Eye and Ear Infirmary


Alleged Malpractice: Doctor deliberately left the stent in the P's nose and screwed up by not taking it out after it served its purpose.

-6 years after stent was left in, a new doctor discovered the stent and removed it.
-Sues w/i 1 year of discovery.

Issue: Is this case timely?

Back 56

You have to distinguish b/t cases where objects are left in the body that have no healing purposes and this case where object was left in for healing purposes.



Holding: No.

Rule: 214-a. where the action is based upon the discovery of a foreign object in the body of the patient, the action may be commenced within one year of the date of such discovery or of the date of discovery of facts which would reasonably lead to such discovery, whichever is earlier. For the purpose of this section the term "foreign object" shall not include a chemical compound, fixation device or prosthetic aid or device.

Analysis: Court says that this is not like a sponge or clamp, this was deliberately left in body b/c it had a healing purpose. Court says this is not a foreign object, it's a fixation device.

Front 57

Walton v. Strong Memorial Hospital


Facts: 3 yr old child had heart problem; was operated on; doctor put in a catheter as monitoring device; child grew up and continued to have health problems and eventually had stroke in his 20's; after surgery, they discovered that after catheter was removed a piece of it was left behind which was causing problems; suit commenced w/i 1 year of discovery of catheter

Back 57

Holding: Judge says it's not a fixation device b/c it had a monitoring function. It's nature is not one which closes or fixates anything w/i a patient's body. As per LaBerbara, the catheter is not a foreign object, b/c in Laberbara it was left w/i the body on purpose.

Prof. says this case was not assigned.

Front 58

Goldsmith v. Howmedica, Inc.

Facts: In 1973 P got a hip replacement. Part of it broke in 1981. In 1983, the suit was commenced.

Back 58

COA: suit was untimely b/c under 214(a) SOL did not toll. The device was not a foreign object which means the SOL runs from time of alleged Malpractice (i.e. 1973).

P might also have a products liability claim. COA accrues at the date of injury (i.e. when hip replacement broke).


• Rule: An action accrues and the statute of limitations begins to run at the time of the commission of alleged malpractice.
• Rule: Where a doctor continues to treat patient after act of malpractice, the statute of limitations is tolled until after the patient's last treatment for the same injury or illness.
• Rule: When physician leaves a foreign object in the patient's body, malpractice action does not accrue until after the object is discovered by the patient.

Front 59

Bleiler v. Bodnar

Facts: P brought suit against hospital for improper or inadequate hiring practices and administrative procedures.

Issue: what is malpractice?

Back 59

Holding: hiring practices is not malpractice. The gravamen of the complaint is not negligence in furnishing medical treatment to a patient, but the hospital's failure in fulfilling a different duty.

Front 60

Nykorchuck v. Henriques


Facts: Court was concerned with continuous treatment doctrine of 214(a).


• Facts: In 1974, P consults her doctor for infertility problems and doctor treats her over a few years and ultimately results in surgery in 1982. During this period, prior to surgery in 1979, P tells doctor that she has a lump in her breast and doctor looks and says its not cancer, but to keep an eye on it. Last time D sees P regarding fertility problem in 1983. In 1984 and 1985, doctor doesn’t see P but phones in renewals for prescriptions. In 1986, P goes back to see the doctor for the lump in her breast. Doctor immediately refers her to an oncologist who diagnoses her with cancer. In 1987, P sues doctor for malpractice.
o Look at it as 2 different time lines (1974-1985 and 1979, 1986, 1987)
• Issue: How to apply the continuous treatment doctrine?

Back 60

Rule: there must be continuous treatment for the same illness, injury or condition which gave rise to the said act, omission or failure; P went to doctor originally for endometriosis; was treated and found possible breast cancer which doctor said they'll keep an eye out; turns out she got breast cancer later

HOlding: statute wasn't tolled b/c doctor was treating her for endometriosis instead of breast cancer. P failed to allege facts which would support a finding that a course of treatment was established in connection with her breast condition. Nor do isolated breast examinations by D establish a course of continuous treatment with respect to P's breast condition.

Dissent: there was a question of whether there was continuous treatment b/c lump was found during treatment of endometriosis.

Prof agrees with dissent.


• Analysis:
o Don’t look at infertility treatment—the course of treatment on which P is suing must be related to the original condition or complaint which has been under treatment by the doctor.
o So, issue must relate to 1979—but this is outside the statute of limitations bc she sues in 1987.
• Held: Continuous treatment doctrine is inapplicable and action is barred.
o 1979 and 1986 were “discrete and complete” examinations
o Treatment began and ended with each examination—no continuous treatment btw those 2 visits

Front 61

Simcuski v. Saeli

Facts: As a malpractice case it would have been barred by SOL.

P's argument:theory of estoppel. D mislead the P from suing by lying to the D. P suffered symptoms following operation and doctor realized he screwed up and stonewalled her and made affirmative statements saying everything was fine and it'll go away. P was eventually diagnosed as a result of D's screw up. P's claim was that she was deceived into not suing her by affirmatively lying to her.


• After surgery, ∏ said she had post-op complications. Dr says not to worry about it. It will go away. Follow up w/physical therapy. She does this for 4 years, until Oct of 74. Meanwhile, in Jan 74, she moves away. Goes to a new dr who says that it’s not a normal post-op problem. Thinks that the problem was caused by nerve damage during the surgery. May never get better. In Oct, new diagnosis is confirmed. Corrective surgery won’t help her. She sues the original dr in April 76. Long time after surgery (6 years later).
• 2 claims: medical malpractice and fraud. Med mal (in 1970) is well after SOL. Then it was 3 years, now 2 ½, but either way, it’s gone. Unless there is something to prevent accrual.

Back 61

o Suppose that it’s immediate permanent and irreversible at time of the surgery? Then all the damages don’t flow from fraud, but flow from malpractice b/c doesn’t matter what he said after surgery. She wasn’t hurt by it- only hurt by the surgery. Might be reimbursed for PT, but not for anything else.
o If it’s the fraud that hurt her, then med mal action is still important b/c different standards of proof. Have to prove fraud by clear and convincing evidence. Med mal is just preponderance.
o She wants to sue for med mal, not fraud.
• Ct says that dr can be equitable estopped where the ∏ was induced by fraud, misrepresentations, or deception to refrain from filing a timely action. ∏ didn’t file timely b/c of his representations. Ct realizes this can open floodgates for late claims, so they set down exceptions to equitable estoppel exception:
• If the fraud has stopped before SOL expired, and ∏ still has enough time to commence and action w/in the original SOL, then you can’t use equitable estoppel doctrine. For example, if dr only told her for 1 year (fraud only 1 instead of 4), she’d still have 2 years left, and couldn’t use the equitable estoppel.


Court: it's possible that an estoppel argument would apply. Prof says that D would have to make affirmative acts for estoppel to work. Can't be lies by omission for estoppel to work.

P was not barred by SOL.

P waited 1.5 year from time of discovery until she sued. They may or may not be a problem. Court says under estoppel, P must act reasonably promptly after discovery. Waiting a little less than 3 years may suffice but Court said this is a factual issue.

2nd COA: Fraud claim. SOL for fraud is under 213(8), which is 6 years from date of fraud or 2 years from date of discovery or discovery could have occurred, whichever is longer. Fraud SOL is extremely lenient.

Front 62

Zumpano v. Quinn

Suit against child abuser

Back 62

Suit against child abuser was dismissed on SOL grounds.

Equitable estoppel did not save the day b/c doctrine requires actual misrepresentation that prevent the timely prosecution of the claims.

P's could not show that the D's alleged concealment prevented them from bringing a timely action.

P's could not establish reliance on D's fraud, misrep., and deception. The P's were admittedly aware of the alleged wrongs w/i the time allowed for suit and could not establish that subsequent and specific actions by the D had prevented them from timely commencing their actions.

In order to use equitable estoppel, P must show that they were unable to bring a timely law suit b/c they relied on D's fraud, misrep, and deception to their detriment.

Front 63

John J. Kassner & Co. v. City of New York

Facts: involves circumstances under which parties by agreement can alter SOL that would otherwise be applicable.
-Engineer did business w/City of New York; there was a fee dispute; long time passed b/t when P knew he wasn't going to get paid and when he brought the suit
-COA accrued here when he knew he wouldn't get paid, in 1968.
-Suit brought on April 18, 1975.
-under normal principles of Contract claims there are 6 years to sue (July 1968) and here suit was over 6 years
-Contract b/t parties stipulated that no action is brought against city unless commenced within 6 months of when certificate of final payment is filed in the comptroller's office

Issue: Does SOL toll until

Back 63

Holding: Court says extension invalid under these circumstances b/c SOL cannot be extended prior to accrual of cause of action. Invalid b/c COA had not accrued and intent of this provision was to limit the SOL not extend it.

Front 64

Hypo: P believes D has breached a contract; SOL is about to run; it's been 5.5 years; P asks D to extend SOL for 2. 5 years; is this legal?

Back 64

Yes. Covered under a statute (Gen. Oblg. Law 17-103(1)) which pertains only to a contract claim and it has to be entered into after COA has accrued and it has to be in writing and if time of extension is no longer than original SOL.

Front 65

Gen. Oblig. Law. § 17-103. - Agreements waiving the statute of limitation.

Back 65

1. A promise
to waive, to extend, or not to plead the statute of limitation
applicable to an action arising out of a contract express or implied in
fact or in law, if made after the accrual of the cause of action and
made, either with or without consideration, in a writing signed by the
promisor or his agent is effective, according to its terms, to prevent
interposition of the defense of the statute of limitation in an action
or proceeding commenced within the time that would be applicable if the
cause of action had arisen at the date of the promise, or within such
shorter time as may be provided in the promise.
2. A promise to waive, to extend, or not to plead the statute of
limitation may be enforced as provided in this section by the person to
whom the promise is made or for whose benefit it is expressed to be made
or by any person who, after the making of the promise, succeeds or is
subrogated to the interest of either of them.
3. A promise to waive, to extend, or not to plead the statute of
limitation has no effect to extend the time limited by statute for
commencement of an action or proceeding for any greater time or in any
other manner than that provided in this section, or unless made as
provided in this section.
4. This section
a. does not change the requirements or the effect with respect to the
statute of limitation, of an acknowledgment or promise to pay, or a
payment or part payment of principal or interest, or a stipulation made
in an action or proceeding;
b. does not affect the power of the court to find that by reason of
conduct of the party to be charged it is inequitable to permit him to
interpose the defense of the statute of limitation; and
c. does not apply in any respect to a cause of action to foreclose a
mortgage of real property or a mortgage of a lease of real property, or
to a cause of action to recover a judgment affecting the title to or the
possession, use or enjoyment of real property, or a promise or waiver
with respect to any statute of limitation applicable thereto.

Front 66

Solomon R. Guggenheim Foundation v. Lubell


The Laches Approach
In Solomon R. Guggenheim Foundation v. Lubell[32] the lower court found that the efforts made by the Guggenheim Museum to recover a Chagall gouache were not sufficient. The work was proclaimed to be worth about $200,000 and had been created by Marc Chagall in 1912 as a study for an oil painting. The museum alleged that the work had been stolen in the 1960s by person or persons unknown. The museum learned that the work was in the possession of the defendant, Rachel Lubell, in August 1985. On January 9, 1986, the museum demanded that Lubell return the gouache, but she refused.

Lubell responded that she and her late husband had purchased the work in May 1967, from a reputable Manhattan gallery, for $17,000. At no time did she or her husband know of any defects on the gallery's title. She then raised the three-year statute of limitations, the defense of Laches, the defense of adverse possession, and her status as a good faith purchaser for value.

She then moved for summary judgment, as the statute of limitations had expired since the theft with no effort being taken by the Guggenheim to obtain the painting's return. The court granted the motion and dismissed the action. The Guggenheim had never reported the theft to the police or to industry organizations; the museum had offered no proof that the work had been stolen; and no insurance claim had been made, because the theft could not be proven.

Back 66

The museum appealed, and the lower court's decision was overturned. The court held that the use of the statute of limitations was incorrect. Instead, it would have substituted a Laches standard. "It then went on to dilute the due diligence standard of DeWeerth as automatically applicable. It instructed the lower court to examine the actions taken by the original owner [the museum] as whether reasonable or not, and whether in accord with industry practice at the time."[33 ]

Facts:
-Museum had notice of missing Chagal as early as 1960's and definitely 1970.
-Museum located the painting but did not notify the authorities.
-1986, the museum wrote a director to owner of painting to return the painting.
- D has not defense b/c you cannot get good title from a thief(as a matter of substantive law)
- In NY if appellate division enters a non-final judgment, the appell. div. can grant party who lost leave to appeal.

Holding: In replevin, SOL doesn't run until true owner demands return of property and holder refuses to return it. (The equitable defenses of laches - unreasonable delay plus prejudice to the D - may be invoked.)

If thief is in possession, the SOL runs from date of conversion(theft).

Front 67

Caffaro v. Trayna


FACTS: Π sues for malpractice. Failure to diagnose cancer. Suing for damage. Case goes on for a little while and Π dies. More than 2yrs later, case still pending, estate wants to amend complaint to assert wrongful death but it has been more than 2yrs since death so claim is time barred. It is clear from claim if you fail to diagnose lung cancer that the guy might one day die.

Issue: whether the executrix of the decedent's estate had the right to amend the complaint in the surviving action for personal injuries to include the COA for wrongful death notwithstanding that the motion for such amendment was made more than 2 years after the decedent's death.

Back 67

Holding: Yes, as allowed under 203(f).

Reasoning: The injured person's death is simply an additional consequence of D's conduct for which he may be held responsible as surely would be true in more familiar instances of additionally discovered elements of damages.

Under 203(f), the interposition of the amended complaint is related back to the date the original action was commenced.

Front 68

Duffy v. Horton Memorial Hospital

Facts: If D already in Case: Injury in 2000, P sues D1 in 2002, D1 impleads D2 in 2004. Now 2010 P wants to amend to add D2

Issue: Whether a plaintiff's direct claim against a third-party D, which is asserted in an amended complaint, relates back to the date of service of the third-party complaint for purposes of SOL, pursuant to 203(e), where the third-party complaint and the amended complaint are based on the same transaction or occurrence.

Back 68

Holding: Yes it does.

Reasoning: Where, within the statutory period, a potential D is fully aware that a claim is being against him with respect to the transaction or occurrence involved in the suit, and is, in fact a participant in the litigation, permitting an amendment to relate back would not necessarily be at odds with the policies underlying the SOL.

D(family physician) was not put on notice in original complaint, but put on notice on the date of service of third party complaint. Court analyzed this as though P had brought in 3rd party complaint b/c physician would have been aware of the suit and alleged malpractice at that time.

An amendment of the complaint may be permitted, and a direct claim asserted against the 3rd party D, which, for the purposes of computing the SOL period, relates back to the date of service of the third-party complaint.

CoA says YES adeq notice b/c already in case BUT can only relate back to date when D2 brought in, not to orig lawsuit. Here, pers inj SOL=3 yrs so 2004 is still too late

Front 69

Yarusso v. Arbotowicz

- P made several attempts, to no avail, to secure jurisdiction over D for a personal injury action.
- P could not locate him out of state.
- D moved for SJ dismissing the default action on grounds that it was time-barred.
- P relied on CPLR 207 to toll the SOL for the time that D was out of state.

Back 69

Holding: SOL was not tolled under CPLR 207 b/c under 207(3) jurisdiction over D could have been obtained w/o personal service.

• Rule: When statutory authorization exists for obtaining personal jurisdiction by some manner other than personal delivery of summons within state, statute of limitations is not tolled by defendant's absence from state, even though plaintiff may in fact be unsuccessful in obtaining jurisdiction by manner so provided. Vehicle and Traffic Law §§ 253, 254; CPLR 207.

Front 70

Andrea v. Arnone, Hedin, Casker, Kennedy & Drake, Architects & Landscape Architects, P.C.


- P brought a suit and for some reason P's were in default in discovery.
-Judge got disgusted w/P's non-compliance and dismissed the suit.
- In 2000, P's started a second suit and relied on 205 to toll the SOL.

Back 70

-Because termination of action occurred on 06/08/2001 "for neglect to prosecute," CPLR 205(a) is innaplicable and the new P may NOT commence an action with the privilege of a New Action Toll.

-Where a case is dismissed for reasons like this, it is not acceptable to permit plaintiffs to start al over again, after the SOL has expired.

The plain purpose of excluding actions dismissed "for neglect to prosecute" from those that can be revived by a new filing under 205(a) was to assure that a dismissal for neglect to prosecute would be a serious sanction, not just a bump in the road.

Front 71

Dreger v. New York State Thruway Authority


- In each of these actions, a claim was dismissed for failure to serve a copy of the claim on the AG.
-Because of these failures, the actions were subsequently dismissed and are now time-barred.

Issue: whether these claimants failed to meet the statutory timely commencement requirement b/c of their failure to serve the AG properly.

Back 71

Holding: Claimants have not met the literal requirement of Court of Claims 11, their actions are not timely commenced, and relief under 205(a) is not available.

Front 72

Henry v. City of NY


Issue: whether an infant's COA against a municipality is time-barred when the infant through a parent or guardian timely files a notice of claim but fails to commence the action w/i 1 year and 90-day limitation period.

Back 72

Holding: 208 tolls a SOL for the period of infancy, and the toll is not terminated by the acts of a guardian or legal representative in taking steps to pursue the infant's claim. Action not time-barred.


• Infancy Toll: get until you reach majority plus the SOL for the action. So if the SOL is 1 yr you have until you are 18 plus 1 yr, or until you are 19.
• Infancy: when you stop being an infant (18 years old) plus SOL up to 3 years.
o General Rule: No cap: 18 plus up to 3 years.
• Exception: medmal, 10 yr cap
• Infant w/medmal case is subject to a 10-year cap similar to insanity.
• Thus, there is no 10 year cap, except for medmal cases, where there is a 10 year cap.
• Think of cap (insanity and infancy medmal), when c/a accrues, max 3 year tack on.

Front 73

Global Financial Corp. v. Triarc Corp.

Borrowing statute applies if COA accrued outside of NY, unless P is a resident.

Issue: where does a non-resident's contract claim accrue for purposes of SOL?

Back 73

Holding: A COA accrues where it sustained its alleged injury: it's place of residence.

Rule: When a nonresident sues on a COA accruing outside New York, 202 requires the COA to be timely under the limitations periods of both New York and the jurisdiction where the COA accrued. This prevents nonresident from shopping in NY for a favorable SOL.

The purpose of borrowing statutes is to prevent plaintiffs from engaging in forum shopping in order to find the longest available statute of limitations.

Front 74

CPLR 203 - Method of computing periods of limitation generally.

Back 74

(b) Claim in complaint where action commenced by service. In an action
which is commenced by service, a claim asserted in the complaint is
interposed against the defendant or a co-defendant united in interest
with such defendant when:
1. the summons is served upon the defendant; or
2. first publication of the summons against the defendant is made
pursuant to an order, and publication is subsequently completed; or
3. an order for a provisional remedy other than attachment is granted,
if, within thirty days thereafter, the summons is served upon the
defendant or first publication of the summons against the defendant is
made pursuant to an order and publication is subsequently completed, or,
where the defendant dies within thirty days after the order is granted
and before the summons is served upon the defendant or publication is
completed, if the summons is served upon the defendant's executor or
administrator within sixty days after letters are issued; for this
purpose seizure of a chattel in an action to recover a chattel is a
provisional remedy; or
4. an order of attachment is granted, if the summons is served in
accordance with the provisions of section 6213; or
5. the summons is delivered to the sheriff of that county outside the
city of New York or is filed with the clerk of that county within the
city of New York in which the defendant resides, is employed or is doing
business, or if none of the foregoing is known to the plaintiff after
reasonable inquiry, then of the county in which the defendant is known
to have last resided, been employed or been engaged in business, or in
which the cause of action arose; or if the defendant is a corporation,
of a county in which it may be served or in which the cause of action
arose; provided that:
(i) the summons is served upon the defendant within sixty days after
the period of limitation would have expired but for this provision; or
(ii) first publication of the summons against the defendant is made
pursuant to an order within sixty days after the period of limitation
would have expired but for this provision and publication is
subsequently completed; or
(iii) the summons is served upon the defendant's executor or
administrator within sixty days after letters are issued, where the
defendant dies within sixty days after the period of limitation would
have expired but for this provision and before the summons is served
upon the defendant or publication is completed.
6. in an action to be commenced in a court not of record, the summons
is delivered for service upon the defendant to any officer authorized to
serve it in a county, city or town in which the defendant resides, is
employed or is doing business, or if none of the foregoing be known to
the plaintiff after reasonable inquiry, then in a county, city or town
in which defendant is known to have last resided, been employed or been
engaged in business, or, where the defendant is a corporation, in a
county, city or town in which it may be served, if the summons is served
upon the defendant within sixty days after the period of limitation
would have expired but for this provision; or, where the defendant dies
within sixty days after the period of limitation would have expired but
for this provision and before the summons is served upon the defendant,
if the summons is served upon his executor or administrator within sixty
days after letters are issued.

(c) Claim in complaint where action commenced by filing. In an action
which is commenced by filing, a claim asserted in the complaint is
interposed against the defendant or a co-defendant united in interest
with such defendant when the action is commenced.

(e) Effect upon defense or counterclaim of termination of action
because of death or by dismissal or voluntary discontinuance. Where a
defendant has served an answer containing a defense or counterclaim and
the action is terminated because of the plaintiff's death or by
dismissal or voluntary discontinuance, the time which elapsed between
the commencement and termination of the action is not a part of the time
within which an action must be commenced to recover upon the claim in
the defense or counterclaim or the time within which the defense or
counterclaim may be interposed in another action brought by the
plaintiff or his successor in interest.
(f) Claim in amended pleading. A claim asserted in an amended pleading
is deemed to have been interposed at the time the claims in the original
pleading were interposed, unless the original pleading does not give
notice of the transactions, occurrences, or series of transactions or
occurrences, to be proved pursuant to the amended pleading.
(g) Time computed from actual or imputed discovery of facts. Except as
provided in article two of the uniform commercial code or in section two
hundred fourteen-a of this chapter, where the time within which an
action must be commenced is computed from the time when facts were
discovered or from the time when facts could with reasonable diligence
have been discovered, or from either of such times, the action must be
commenced within two years after such actual or imputed discovery or
within the period otherwise provided, computed from the time the cause
of action accrued, whichever is longer.

Front 75

CPLR 205 - Termination of action.

Back 75

(a) New action by plaintiff. If an
action is timely commenced and is terminated in any other manner than by
a voluntary discontinuance, a failure to obtain personal jurisdiction
over the defendant, a dismissal of the complaint for neglect to
prosecute the action, or a final judgment upon the merits, the
plaintiff, or, if the plaintiff dies, and the cause of action survives,
his or her executor or administrator, may commence a new action upon the
same transaction or occurrence or series of transactions or occurrences
within six months after the termination provided that the new action
would have been timely commenced at the time of commencement of the
prior action and that service upon defendant is effected within such
six-month period. Where a dismissal is one for neglect to prosecute the
action made pursuant to rule thirty-two hundred sixteen of this chapter
or otherwise, the judge shall set forth on the record the specific
conduct constituting the neglect, which conduct shall demonstrate a
general pattern of delay in proceeding with the litigation.
(b) Defense or counterclaim. Where the defendant has served an answer
and the action is terminated in any manner, and a new action upon the
same transaction or occurrence or series of transactions or occurrences
is commenced by the plaintiff or his successor in interest, the
assertion of any cause of action or defense by the defendant in the new
action shall be timely if it was timely asserted in the prior action.
(c) Application. This section also applies to a proceeding brought
under the workers' compensation law.

Front 76

DeWeerth v. Baldwinger.

Facts: Deweerth owned a Monet painting before WWII. Near the end of the war, Soldiers were quartered in the home where the painting was being kept, and after they left the painting was missing. Eventually the painting turned up elsewhere and was purchased by Baldinger. From 1957 to the time of discovery, it was published in a book that could be found in a museum near the Deweerth's place of residence. In the '80s, Deweerth discovered that the painting was on display in America and eventually found that Baldinger was the owner. Deweert demanded the painting returned.

Back 76

There should not be a resonable diligence in applying SOL in replevin cases. SOL doesn't run until demand is refused.? (Verify this)

Front 77

203(d) Defense or counterclaim interposition

Back 77

(d) Defense or counterclaim. A defense or counterclaim is interposed
when a pleading containing it is served. A defense or counterclaim is
not barred if it was not barred at the time the claims asserted in the
complaint were interposed, except that if the defense or counterclaim
arose from the transactions, occurrences, or series of transactions or
occurrences, upon which a claim asserted in the complaint depends, it is
not barred to the extent of the demand in the complaint notwithstanding
that it was barred at the time the claims asserted in the complaint were interposed.

If you assert a counterclaim or defense that has a shorter SOL than original claim, then you can only offset damages to the extent of the original claim.

Front 78

Buran v. Coupal

-Deals w/ 203(c)

-Service on a Co-Defendant "United in Interest"

Back 78

-P can bring in wife even past SOL expired b/c wife was united in interest w/husband who was interposed in a timely manner

Front 79

Small v. Lorillard Tobacco Co.


Class action against Tobacco Co.

Cause of Action: Fraud in omissions of addictive properties in nicotine.

Back 79

Monetary Damages: recovery of amount paid for cigarettes. This was done, instead of asking for physicla injury damages, because they would have to prove the individual damages of each member of the class and thus 901(a)(2) would be hard to satisfy.

Rule: CPLR 901(a)

Analysis:

D's argue that individual issues predominate. Proof of injury is essential to P's General Business Law claims and they cannot show that as a class. Deception alone does not equal injury.

Also, reliance is required in actions for false-advertising and common law fraud, which cannot be accomplished here because information about addictivie properties of smoking was ubiquitous.

This proposed class action would be unmanageable b/c of the individual issues of reliance, causation and damages with respect to each of the 5 million plaintiffs.

Every class member would be in a different position as far as reliance on warning. Some people read the warnings, some people didn't. They would have to take individual testimony of each class member of why they stopped smoking, if they did. P's couldn't satisfy commonality, under 901(a)(2).

Indivudualized proof of addiction and reliance would be too hard to prove.

Res Judicata: You only get one bite of the apple. You cannot sue again seeking a different remedy for the same wrong. The bigger remedy would be forever lost to them if they wanted to sue later for cancer, which would warrant more damages.

Front 80

Weinberg v. Hertz Corp.

Facts: this is an action seeking injunctive relief and damages against Hertz for acts and practices in the automobile rental business, alleged to be unfair, deceptive and in breach of K.

This is different smoking case because in smoking it's unclear what these people relied on or didn't rely on, whereas here there was only 1 document that are standard to Hertz.

Back 80

Rule: Class actions must satisfy the prereqs of numerosity, commonality, typicality, adequacy of representation and superiority. 901(a)

Posture:
Denied below b/c didn't satisfy 5th criteria that class action must be superior to other available methods for the fair and efficient adjudication of the controversy.

Holding: Reversed. It is inconceivable that a nationwide company such as D would not be able to obtain the necessary data from its offices around the country without the expenditure of millions of dollars.

Even though the claim was only $31 per person, it doesn't matter because the only way to induce socially and ethically responsible behavior on the part of large institutions to change business practices is by bringing a class action.

Front 81

Boulevard Gardens Tenants Action Committee, Inc. v. Boulevard Gardens Housing Corp


Facts: tenants were complaining that the housing corp had doubled the cost of their air conditioning. They claimed this raise was improper b/c there wasn't a public hearing about this price change. Tenants want declaratory relief that raise was improper.

Back 81

Court says notice, under 904(a), to class is not necessary when you bring a declaratory action unless necessary to protect the class and the cost will not prevent the class action from going forward.

In determining whether an organization may challenge governmental action on behalf of those affected, the Court must consider the capacity of the organization to assume adversary position, by looking at its size and composition as fairly representing those affected, the adverse effect action would have on the group and whether organization membership is open to full participation by those it seeks to represent. C.P.L.R. 901.

Front 82

Woodrow v. Colt Industries, Inc.


Facts: There was an intended merger b/t Morgan Stanley and Colt. MS offered $17 a share. Once they bought outstanding shares, they would effectuate the merger. Class claimed the price was too low. P's were asking for injunctive relief to enjoin the merger. If merger goes thru, they want a rescission. After this, there was a settlement, of the "mickey mouse" variety, because it gave the shareholders a lot less than what they were asking. After this Merritt emerges b/c they had an independent economic interest (i.e. they owned a substantial block of shares). Merritt is out of Missouri and isn't happy about settlement. Merritt asks for exclusion from the class settlement and files his own claim in Missouri. DJ denies exclusion and approves settlement with prejudice.


Issue: whether a P, with no ties to NY, has a due process constitutional right to opt out of a NY class action in which the relief sought in the complaint was largely equitable in nature.

Back 82

Holding: When a class action complaint demands predominantly equitable relief that will necessarily benefit the class as a whole if granted, the Trial Judge is not required to give class members the opportunity to opt out of the class.

Merrit has no right to opt out with respect to a declaratory action and rescissionary relief, but with respect to damages, it is a violation of due process to take away from Merritt this right without giving him the chance to opt out.

Front 83

The right to contribution is subject to these additional exceptions:

Back 83

1) An otherwise culpable party who has a right to be indemnified by another cannot be subjected to a contribution claim by the indemnity.
2) A wrongdoer who settles prior to judgment gives up the right to seek contribution but is protected against contribution claims by other wrongdoers.
3) Contribution is not available when the damages suffered by the plaintiff are purely economic and are due solely to breach of contract (other than products liability.)
4) The employer of an injured plaintiff is subject to a claim for contribution only if the employee has died or suffered a "grave injury."

Front 84

Allowing class actions: 901 & 902

Back 84

In determining whether to allow an action to proceed as a class action, the court will consider whether:

1) Numerosity: The class is so numerous that joining all members would be impracticable;
2) Commonality: Questions of law or fact common to the class predominate over individual questions;
3) Representation: the rep will adequately and fairly protect the class;
4) Typicality: The rep's claim or defense is typical of those of the entire class;
5) Superiority: The class action is superior to other means available;

902:
6) Individual control: whether individual members of the class have an interest in individual control of separate actions;
7) Impracticability: whether separate actions would be impracticable or inefficient;
8) Pending Litigations: The nature and extent of other relevant pending litigation;
9) Forum: the desirability of concentrating the litigation in one court; and
10) Manageability: The manageability of the class action.

Front 85

CPLR 904 Notice of class action.

Back 85

Notice of class action.

(a) In class actions brought primarily
for injunctive or declaratory relief, notice of the pendency of the
action need not be given to the class unless the court finds that notice
is necessary to protect the interests of the represented parties and
that the cost of notice will not prevent the action from going forward.
(b) In all other class actions, reasonable notice of the commencement
of a class action shall be given to the class in such manner as the
court directs.

Front 86

Dole v. Dow Chemical Co.

Facts: Dole was poisoned in course of his work and theory was that he didn't get adequate warning that his work was poisonous. Dow Chemical brings a 3rd party claim against George Urban Milling Co., for indemnity. P didn't bring action against 3rd party b/c she was limited under Worker Compensation Laws.

Back 86

Holding: Court says this active/passive approach to determining when indemnification will be allowed by one party held liable for negligence against another negligent party is elusive and should have no application here. They bring a new test based on apportionment. Juries will decide relative culpability.

Rule: Where to or more people have contributed to the same injury and both are at fault, the New York law provides for relative culpability.

Court points out that there are various procedures to follow to establish relative culpability:
1) if P sues all tort-feasors, then each D can file cross-claims for contributions.
2) or if Dole sues Dow, Dow can bring a 3rd party compaint against a tortfeasor and join them in the case,
3) or after a final judgment, a D can bring another case for indemnity.

Joint tortfeasors are still liable for the entire judgment in NY.

Front 87

1401 Claim for contribution.

Back 87

Claim for contribution.

Except as provided in sections 15-108
and 18-201 of the general obligations law, sections eleven and
twenty-nine of the workers' compensation law, or the workers'
compensation law of any other state or the federal government, two or
more persons who are subject to liability for damages for the same
personal injury, injury to property or wrongful death, may claim
contribution among them whether or not an action has been brought or a
judgment has been rendered against the person from whom contribution is
sought.

Front 88

1601 Limited liability of persons jointly liable.

Back 88

Limited liability of persons jointly liable.

1.
Notwithstanding any other provision of law, when a verdict or decision
in an action or claim for personal injury is determined in favor of a
claimant in an action involving two or more tortfeasors jointly liable
or in a claim against the state and the liability of a defendant is
found to be fifty percent or less of the total liability assigned to all
persons liable, the liability of such defendant to the claimant for
non-economic loss shall not exceed that defendant's equitable share
determined in accordance with the relative culpability of each person
causing or contributing to the total liability for non-economic loss;
provided, however that the culpable conduct of any person not a party to
the action shall not be considered in determining any equitable share
herein if the claimant proves that with due diligence he or she was
unable to obtain jurisdiction over such person in said action (or in a
claim against the state, in a court of this state); and further provided
that the culpable conduct of any person shall not be considered in
determining any equitable share herein to the extent that action against
such person is barred because the claimant has not sustained a "grave
injury" as defined in section eleven of the workers' compensation law.
2. Nothing in this section shall be construed to affect or impair any
right of a tortfeasor under section 15-108 of the general obligations
law.

Front 89

1602 Application.

Back 89

The limitations set forth in this article shall:
1. apply to any claim for contribution or indemnification, but shall not include:
(a) a claim for indemnification if, prior to the accident or occurrence on which the claim is based, the claimant and the tortfeasor had entered into a written contract in which the tortfeasor had expressly agreed to indemnify the claimant for the type of loss suffered;
4. not apply to claims under the workers' compensation law or to a claim against a defendant where claimant has sustained a “grave injury” to the extent of the equitable share of any person against whom the claimant is barred from asserting a cause of action because of the applicability of the workers' compensation law provided, however, that nothing in this subdivision shall be construed to create, impair, alter, limit, modify, enlarge, abrogate, or restrict any theory of liability upon which any person may be held liable.
5. not apply to actions requiring proof of intent.
6. not apply to any person held liable by reason of his use, operation, or ownership of a motor vehicle or motorcycle
7. not apply to any person held liable for causing claimant's injury by having acted with reckless disregard for the safety of others.
9. not apply to any person held liable for causing claimant's injury by having unlawfully released into the environment a substance hazardous to public health, safety or the environment, a substance acutely hazardous to public health, safety or the environment or a hazardous waste,
10. not apply to any person held liable in a product liability action where the manufacturer of the product is not a party to the action and the claimant establishes by a preponderance of the evidence that jurisdiction over the manufacturer could not with due diligence be obtained and that if the manufacturer were a party to the action, liability for claimant's injury would have been imposed upon said manufacturer by reason of the doctrine of strict liability, to the extent of the equitable share of such manufacturer.
11. not apply to any parties found to have acted knowingly or intentionally, and in concert, to cause the acts or failures upon which liability is based;

Front 90

Ravo v. Rogatnick

Dr. Rogatnick, the obstetrician who delivered Ravo, failed to ascertain pertinent medical information about the mother, incorrectly estimated the size of the infant, and employed improper surgical procedures during the delivery. Dr. Harris, who cared for Ravo after birth, misdiagnosed and improperly treated Ravo’s condition. As a result, Ravo suffered severe and permanent retardation. Plaintiff’s expert, Dr. Charash, said hypoxia and trauma caused by Rogatnick’s negligence was the two primary causes, but Dr. Harris’ inadequate treatment of the excessively high hematocrit level could not be excluded as having a contributing effect. Another expert, Dr. Perrotta, couldn’t quantify what Harris contributed. As such, there was no way to determine which aspects of the injury were caused by the respective negligence of the doctors.

Back 90

Reasoning
When tort-feasors act concurrently or in concert to produce a single injury, they may be held jointly and severally liable. When they don’t act concurrently or in concert, their wrongs are independent and successive. The initial tort-feasor may be liable for the entire damage resulting from his own wrongful acts, including the injury caused by the successive tort-feasor. The successive tort-feasor is liable only for the separate injury his conduct caused. However, where two parties by their separate and independent acts of negligence, cause a single, inseparable injury, each party is responsible for the entire injury (Slater v. Merserau). Simultaneous conduct is not necessary to a finding of joint and several liability when there is an indivisible injury (Hawkes v. Goll). A subsequent tort-feasor is not to be held jointly and severally liable for the acts of the initial tort-feasor whenever it is difficult to separate the harm done by one from the others. However, here the brain damages was a single indivisible injury, and defendant failed to provide evidence upon which the jury could apportion damages. The jury’s apportionment of fault does not alter the joint and several liability for the single indivisible injury. It merely defines the amount of contribution defendants may claim from each other and doesn’t impinge on the plaintiff’s right to collect the entire judgment from either defendant.

Front 91

Schauer v. Joyce

Defendant attorney, who is being sued by a former client for malpractice in connection with the client's matrimonial matter in the main action, asserts a third-party claim for contribution against another attorney who subsequently represented the client in the same matter. Defendant claims that the third-party defendant, as an independent, successive tort-feasor, contributed to or aggravated plaintiff's alleged injuries. Plaintiff asserts that she suffered a loss of the alimony to which she was allegedly entitled for a period of nearly two years between the time defendant obtained a temporary award of alimony for plaintiff, which was subsequently vacated, and the time she began receiving support through the efforts of her new attorney. Said payments were prospective only.

Back 91

The Court of Appeals reversed the Appellate Division order and denied the motion to dismiss the third-party complaint, holding, in an opinion by Chief Judge Cooke, that the relevant question under CPLR 1401 and Dole v Dow Chem. Co. (30 NY2d 143) on the viability of the contribution claim asserted herein is not whether the third-party defendant owed a duty to defendant, but whether each owed a duty to plaintiff and whether, by breaching their respective duties, they contributed to her ultimate injuries, and that defendant's third-party complaint is, therefore, sufficient to withstand a motion to dismiss for failure to state a cause of action.

Contribution is available between not only tortfeasors who have acted concurrently, but also those whose misconduct has been successive. The original wrongdoer is then entitled to contribution from the later actor for the amount of the damages attributable to the subsequent wrong.

Front 92

General Obligations Law 15-108

Back 92

(a) Effect of release of or covenant not to sue tortfeasors. When a release or a covenant not to sue or not to enforce a judgment is given to one of two or more persons liable or claimed to be liable in tort for the same injury, or the same wrongful death, it does not discharge any of the other tortfeasors from liability for the injury or wrongful death unless its terms expressly so provide, but it reduces the claim of the releasor against the other tortfeasors to the extent of any amount stipulated by the release or the covenant, or in the amount of the consideration paid for it, or in the amount of the released tortfeasor's equitable share of the damages under article fourteen of the civil practice law and rules, whichever is the greatest.

(b) Release of tortfeasor. A release given in good faith by the injured person to one tortfeasor as provided in subdivision (a) relieves him from liability to any other person for contribution as provided in article fourteen of the civil practice law and rules.

(c) Waiver of contribution. A tortfeasor who has obtained his own release from liability shall not be entitled to contribution from any other person.

Front 93

Rosado v. Proctor & Schwartz, Inc.


Issue: whether a manufacturer of a defective product may obtain indemnification from the purchaser where the sales contract contains a provision requiring the purchaser to install certain safety devices and the purchaser's employee, who is injured by the failure to properly install such devices, brings an action against the manufacturer predicated on the manufacturer's marketing of a machine that is not reasonably safe.

Back 93

HOlding: indemnification may not be obtained in such circumstances.

Reasoning: The manufacturer is in the best position to know the dangers inherent in its product, and the dangers do not vary depending on the job site, it is also in the best position to determine what safety devices should be employed.

To allow a manufacturer like Proctor, which sells a product like a garnett with no safety devices, to shift the ultimate duty of care to others through boilerplate language in a sales contract, would erode the economic incentive manufacturers have to maintain safety and give sanction to the marketing of dangerous, stripped down, machines.

Front 94

In the Matter of New York City Asbestos Litigation (Didner v. Keene Corp.)

Which method for computing the amount of the General Obligations Law offset to the jury award should be adopted: (1) teh case-by-case method, under which each settling defendant is taken separately and, for that defendant, the amount of the settlement or the amount of the corresponding apportioned share, which is higher, is deducted from the verdict; or (2) the aggregate method, in which the settling tortfeasors are viewed collectively, the settlement amounts and the corresponding apportioned shares are totaled, and the offset is allowed for the greater of the two totals.

P commenced this action against 18 D's to recover damages for wrongful death, pain and suffering and loss of consortium by reason of the death of her husband due to asbestos exposure.

When the case was submitted to the jury, only 2 D's were left who did not settle. The jury was asked to apportion liability among all 18 D's.

Back 94

Holding: the aggregate method is preferred.

Under such calculation Ds would not be compelled to absorb more than their equitable share of liability and P's would not obtain any windfall benefit thereby serving the statute's primary goals of encouraging settlements and preserving Dole's equitable fault-sharing principles.

Holding: if more than one tortfeasor has settled with the plaintiff, the reduction is to be made on an aggregate basis: the verdict against the non-settling defendant is reduced either by the total of the dollar amounts paid by all the settling tortfeasors or the total dollar amounts of their apportioned liability, whichever is greater.

Front 95

NY Code - Section 2103: Service of papers In a Pending Action

Back 95

(a) Who can serve. Except where
otherwise prescribed by law or order of court, papers may be served by
any person not a party of the age of eighteen years or over.
(b) Upon an attorney. Except where otherwise prescribed by law or
order of court, papers to be served upon a party in a pending action
shall be served upon the party's attorney. Where the same attorney
appears for two or more parties, only one copy need be served upon the
attorney. Such service upon an attorney shall be made:
1. by delivering the paper to the attorney personally; or
2. by mailing the paper to the attorney at the address designated by
that attorney for that purpose or, if none is designated, at the
attorney's last known address; service by mail shall be complete upon
mailing; where a period of time prescribed by law is measured from the
service of a paper and service is by mail, five days shall be added to
the prescribed period; or
3. if the attorney's office is open, by leaving the paper with a
person in charge, or if no person is in charge, by leaving it in a
conspicuous place; or if the attorney's office is not open, by
depositing the paper, enclosed in a sealed wrapper directed to the
attorney, in the attorney's office letter drop or box; or
4. by leaving it at the attorney's residence within the state with a
person of suitable age and discretion. Service upon an attorney shall
not be made at the attorney's residence unless service at the attorney's
office cannot be made; or
5. by transmitting the paper to the attorney by facsimile
transmission, provided that a facsimile telephone number is designated
by the attorney for that purpose. Service by facsimile transmission
shall be complete upon the receipt by the sender of a signal from the
equipment of the attorney served indicating that the transmission was
received, and the mailing of a copy of the paper to that attorney. The
designation of a facsimile telephone number in the address block
subscribed on a paper served or filed in the course of an action or
proceeding shall constitute consent to service by facsimile transmission
in accordance with this subdivision. An attorney may change or rescind a
facsimile telephone number by serving a notice on the other parties; or
6. by dispatching the paper to the attorney by overnight delivery
service at the address designated by the attorney for that purpose or,
if none is designated, at the attorney's last known address. Service by
overnight delivery service shall be complete upon deposit of the paper
enclosed in a properly addressed wrapper into the custody of the
overnight delivery service for overnight delivery, prior to the latest
time designated by the overnight delivery service for overnight
delivery. Where a period of time prescribed by law is measured from the
service of a paper and service is by overnight delivery, one business
day shall be added to the prescribed period. "Overnight delivery
service" means any delivery service which regularly accepts items for
overnight delivery to any address in the state; or
7. by transmitting the paper to the attorney by electronic means where
and in the manner authorized by the chief administrator of the courts by
rule and, unless such rule shall otherwise provide, such transmission
shall be upon the party's written consent. The subject matter heading
for each paper sent by electronic means must indicate that the matter
being transmitted electronically is related to a court proceeding.
(c) Upon a party. If a party has not appeared by an attorney or the
party's attorney cannot be served, service shall be upon the party by a
method specified in paragraph one, two, four, five or six of subdivision
(b) of this rule.

(d) Filing. If a paper cannot be served by any of the methods
specified in subdivisions (b) and (c), service may be made by filing the
paper as if it were a paper required to be filed.
(e) Parties to be served. Each paper served on any party shall be
served on every other party who has appeared, except as otherwise may be
provided by court order or as provided in section 3012 or in subdivision
(f) of section 3215. Upon demand by a party, the plaintiff shall supply
that party with a list of those who have appeared and the names and
addresses of their attorneys.

Front 96

Mallory v. Mallory

• Facts: There was a default judgment of divorce granted against D (the wife). The default judgment was vacated by order upon the consent of the attorneys for both parties. Movant is a friend of P who seeks an order to vacate the order that vacated the Judgment of Divorce. Movant alleges that she lived with the husband for 16 years and has power of attorney.

Back 96

Movant, who holds a power of attorney from an individual who was the plaintiff in a divorce action, lacks standing to bring an order to show cause seeking to set aside an order vacating a default judgment of divorce in favor of plaintiff husband and against defendant wife, since movant is not one of the parties to the marital action and the public policy of New York does not permit such interference with the marital state by a third party;

• Judicial Discretion: Order to show cause is truly a product of judicial discretion
• NOTES:
• Rule: In exercising its discretion on order to show cause, and before signing such an order, court must look not only at questions of alternate means of service, but must also look at relief requested and authority of person seeking such relief to do so, and then ascertain if under set of facts most favorable to movant the relief could be granted. McKinney's CPLR 2214(d), 2214 comment.

Front 97

Section 5701 Appeals to appellate division from supreme and county courts

Back 97

(a) Appeals as of right. An appeal may be taken to the appellate
division as of right in an action, originating in the supreme court or a
county court:
1. from any final or interlocutory judgment except one entered
subsequent to an order of the appellate division which disposes of all
the issues in the action; or
2. from an order not specified in subdivision (b), where the motion it
decided was made upon notice and it:
(i) grants, refuses, continues or modifies a provisional remedy; or
(ii) settles, grants or refuses an application to resettle a
transcript or statement on appeal; or
(iii) grants or refuses a new trial; except where specific questions
of fact arising upon the issues in an action triable by the court have
been tried by a jury, pursuant to an order for that purpose, and the
order grants or refuses a new trial upon the merits; or
(iv) involves some part of the merits; or
(v) affects a substantial right; or
(vi) in effect determines the action and prevents a judgment from
which an appeal might be taken; or
(vii) determines a statutory provision of the state to be
unconstitutional, and the determination appears from the reasons given
for the decision or is necessarily implied in the decision; or
(viii) grants a motion for leave to reargue made pursuant to
subdivision (d) of rule 2221 or determines a motion for leave to renew
made pursuant to subdivision (e) of rule 2221; or
3. from an order, where the motion it decided was made upon notice,
refusing to vacate or modify a prior order, if the prior order would
have been appealable as of right under paragraph two had it decided a
motion made upon notice.
(b) Orders not appealable as of right. An order is not appealable to
the appellate division as of right where it:
1. is made in a proceeding against a body or officer pursuant to
article 78; or
2. requires or refuses to require a more definite statement in a
pleading; or
3. orders or refuses to order that scandalous or prejudicial matter be
stricken from a pleading.
(c) Appeals by permission. An appeal may be taken to the appellate
division from any order which is not appealable as of right in an action
originating in the supreme court or a county court by permission of the
judge who made the order granted before application to a justice of the
appellate division; or by permission of a justice of the appellate
division in the department to which the appeal could be taken, upon
refusal by the judge who made the order or upon direct application.

Front 98

Section 5601 Appeals to the court of appeals as of right

Back 98

(a) Dissent. An
appeal may be taken to the court of appeals as of right in an action
originating in the supreme court, a county court, a surrogate's court,
the family court, the court of claims or an administrative agency, from
an order of the appellate division which finally determines the action,
where there is a dissent by at least two justices on a question of law
in favor of the party taking such appeal.
(b) Constitutional grounds. An appeal may be taken to the court of
appeals as of right:
1. from an order of the appellate division which finally determines an
action where there is directly involved the construction of the
constitution of the state or of the United States; and
2. from a judgment of a court of record of original instance which
finally determines an action where the only question involved on the
appeal is the validity of a statutory provision of the state or of the
United States under the constitution of the state or of the United
States.
(c) From order granting new trial or hearing, upon stipulation for
judgment absolute. An appeal may be taken to the court of appeals as of
right in an action originating in the supreme court, a county court, a
surrogate's court, the family court, the court of claims or an
administrative agency, from an order of the appellate division granting
or affirming the granting of a new trial or hearing where the appellant
stipulates that, upon affirmance, judgment absolute shall be entered
against him.
(d) Based upon nonfinal determination of appellate division. An appeal
may be taken to the court of appeals as of right from a final judgment
entered in a court of original instance, from a final determination of
an administrative agency or from a final arbitration award, or from an
order of the appellate division which finally determines an appeal from
such a judgment or determination, where the appellate division has made
an order on a prior appeal in the action which necessarily affects the
judgment, determination or award and which satisfies the requirements of
subdivision (a) or of paragraph one of subdivision (b) except that of
finality.

Front 99

Morning Glory Media, Inc. v. Enright


• Synopsis: On a motion for an order confirming an order of seizure granted in a replevin action, the Supreme Court, Monroe County, John A. Mastrella, J., held that: (1) the replevin statute complied with requirements of due process, and (2) the plaintiff did not meet the statutory burden of proof.
Motion denied.

Back 99

• Rule: Strong presumption of constitutionality attaches to act of Legislature and this presumption can be overcome by clear and convincing proof, persuasive beyond reasonable doubt.
• Held: Replevin statute, as amended, met requirements of due process. CPLR 7102(c), (d), par. 1; U.S.C.A.Const. Amend. 14.
• Held: In replevin action, plaintiff did not meet its statutory burden of proof, in light of fact that plaintiff was closely held corporation, one defendant personally guaranteed loan for purchase of replevied machine, two defendants posted collateral as security for said loan, two defendants were directors of corporation and claimed that they acted to prevent chattel from being foreclosed and to keep security for chattel intact, and directors were willing to transfer title to machine upon release of their security. CPLR 7102(c), (d), par. 1.

Front 100

Christie's Inc. v. Davis

Facts: This issue arises out of the efforts of P Christie's Inc to collect on multiple loans made to D's Jerome and Sharon Davis. The loans are secured by hundreds of pieces of fine and decorative art and antique furniture, kept in their house in Greenwich, CT. After the Davsies defaulted on their loans, Christie's field this action, seeking repossession of the collateral, pursuant to the New York recovery of chattels statute.

Back 100

Rule: CPLR 7109(b): where the chattel is unique, the court, in addition to granting a judgment under section 7108, may direct that a party in possession deliver the chattel to the party entitled to possession.

Contrary to D's argument, the uniqueness requirement does not force P's to prove that each chattel is rare or irreplaceable, but simply that it is not a mass-produced item readily available on the market, such that a money judgment enabling purchase of a replacement would be an adequate remedy.

Front 101

Societe Generale Alsacienne De Banque, Zurich v. Flemingdon Development Corp.


• Societe Generale is a Zurich bank and sought a money judgment bc D bounced a big check. D’s account was overdrawn. D said it would give bank a check drawn from another bank, but that check bounced. But, P didn’t wait for that check to clear. When bank goes back to D to tell them it bounced, D said it was an error and try it again. D closed all its accounts and fled with the money.
• P got a federal order of attachment for $300k. But, D moved to dismiss for lack of diversity jurisdiction
• Perhaps anticipating a dismissal, bank sued in NY state court—sued corporation, the shareholder and his wife for conversion, fraud, unjust enrichment
• Wanted an attachment

Back 101

• Held: Attachment was proper on the fraud frustration ground. P produced enough evidence that there was a high probability of success for the bank
• Ct noted that D knew the first check written was not covered with sufficient funds
• D refused to respond to P’s inquiries after check bounced
• Ds did try to get their money out of bank in NY after attachment order was made
• No attachment against shareholder’s wife bc no facts sufficient to show probability of success against her. All acts were by the company, the shareholder and not enough to show right now that wife is liable.


Rule: 6201(3) the D, with intent to defraud his creditors or frustrate the enforcement of a judgment that might be rendered in P's favor, has assigned, disposed of, encumbered or secreted property, or removed it from the state or is about to do any of these acts.

Front 102

Abkco Industries, Inc. v. Apple Films, Inc.


• What kind of property is subject to attachment
• Attachable property is any property that can be used to satisfy a judgment
• CPLR 5201
• Issue: Whether a property interest in a contract was attachable
• Contract here was btw D(debtor) whereby P would give D 80% of net profits for distributing Beatles album.

Back 102

• Held: The net profits are attachable regardless of value. Might be worthless at the time of attachment, but still can be attached.
• Distinguished Glassman v. Hyder
• Obligation to attach future rents is not attachable
• The reason there was that it was future rent was in New Mexico and the state law there was a property interest in a leasehold and so not attachable.

Rule: CPLR 5201(b). Interest in Licensing Agreement with INC can be classified as intagible personal property belonging to LTD. Therefore falls under purview of 5201(b).

Front 103

Remedy for Wrongful Attachment.
A&M Exports, Ltd. v. Meridien International Bank Ltd.

Facts: • Sued for D’s failure to honor letters of credit. P applied for attachment of bank account and applied for TRO to prevent transfer of $ out of the account pending decision of attachment order
• Trial Ct first dismissed the case on grounds of forum non conveniences and vacated the TRO
• Issue: D’s claim for damages is a consequence of $1.4m being restrained.
• D claims they were damaged by $125k in attorneys fees, not being able to use their money. Prob is the bond was only for $89k
• Trial court said it didn’t matter and wouldn’t limit it to $89k

Back 103

Appelate Ct: No attachment, so only get damages for issuing wrongful TRO—just get $89k

Rule: The damages recoverable for an improper PI or TRO are set forth in CPLR 6315. Such an award may include counsel fees incurred in connection with an erroneously granted TRO, where supported by the record.

o Held: Record in action for failure to honor certain letters of credit was insufficient to sustain award of damages to defendant arising from temporary restraining order prohibiting transfer of assets maintained by defendants, which order was ultimately vacated without any order of attachment ever being issued; trial court did not assess extent of defendants' damages, but simply rendered award for full amount of undertaking, and there was no hearing as to propriety of counsel fees or any findings with respect to nature and extent of damages incurred by defendants. McKinney's CPLR 6212(b, e), 6315.

Front 104

Injunction. Credit Agricole Indosuez v. Rossiyskiy Kredit Bank.


• Ps are 3 banks suing on default of $30m loan to a Russian bank
• In addition to 2 causes of action for debt, they also asked for injunctive relief to ensure they can collect when they win.
• Under this 3rd cause of action, P alleged D breached fiduciary duties
• Sought provisions remedies of attachment and PI
• Court granted both PR
• This is just a regular action for a money judgment

Back 104

A PI to restrain the D from transferring assets is not available in a legal action that seeks solely money damages. For example, an unsecured creditor has no interest (legal or equitable) in the debtor's property until the creditor obtains a judgment. The fact that the creditor might seek a permanent injunction to help enforce the judgment does not change the essential nature of such action from one in which the object is money damages. Attachment is the proper provisional remedy in a case where the debtor is transferring assets to frustrate the creditor's potential judgment.

Holding: They cannot enjoin the assets of the Russian bank without obtaining a money judgment first.

Front 105

Notice of Pendency: CPLR Article 65.
Parr Meadows Racing Association, Inc. v. White.

• Property owner was to get a mortgage at a good rate and was sued in a money action only w/o any relevance to the mortgage. Bank won’t give mortgage bc bank’s right woujld be subordinate to lis pendens. D settled w/ P to get lis pendens lifted then sued P—got cancellation, reimbursement & legal fees.

Back 105

• Synopsis: In a suit to recover compensatory and punitive damages for abuse of process, the Supreme Court, Suffolk County, Jones, J., denied the defendants' motions to dismiss and for summary judgment and they appealed. The Supreme Court, Appellate Division, held that: (1) the complaint adequately stated a cause of action for abuse of process, and (2) issues of material fact existed precluding summary judgment.

Front 106

CPLR 7102 Seizure of chattel on behalf of plaintiff

Back 106

(a) Seizure of
chattel. When the plaintiff delivers to a sheriff an order of seizure,
the papers on which the order was granted, the undertaking and a summons
and complaint bearing the index number and the date of filing with the
clerk of the court, in the action to recover the chattel, he shall seize
the chattel in accordance with the provisions of the order and without
delay.

(c) Affidavit. The application for an order of seizure shall be
supported by an affidavit which shall clearly identify the chattel to be
seized and shall state:
1. that the plaintiff is entitled to possession by virtue of facts set
forth;
2. that the chattel is wrongfully held by the defendant named;
3. whether an action to recover the chattel has been commenced, the
defendants served, whether they are in default, and, if they have
appeared, where papers may be served upon them;
4. the value of each chattel or class of chattels claimed, or the
aggregate value of all chattels claimed;
5. if the plaintiff seeks the inclusion in the order of seizure of a
provision authorizing the sheriff to break open, enter and search for
the chattel, the place where the chattel is located and facts sufficient
to establish probable cause to believe that the chattel is located at
that place;
6. that no defense to the claim is known to the plaintiff; and
7. if the plaintiff seeks an order of seizure without notice, facts
sufficient to establish that unless such order is granted without
notice, it is probable the chattel will become unavailable for seizure
by reason of being transferred, concealed, disposed of, or removed from
the state, or will become substantially impaired in value.
(d) Order of seizure. 1. Upon presentation of the affidavit and
undertaking and upon finding that it is probable the plaintiff will
succeed on the merits and the facts are as stated in the affidavit, the
court may grant an order directing the sheriff of any county where the
chattel is found to seize the chattel described in the affidavit and
including, if the court so directs, a provision that, if the chattel is
not delivered to the sheriff, he may break open, enter and search for
the chattel in the place specified in the affidavit. The plaintiff shall
have the burden of establishing the grounds for the order.
2. Upon a motion for an order of seizure, the court, without notice to
the defendant, may grant a temporary restraining order that the chattel
shall not be removed from the state if it is a vehicle, aircraft or
vessel or, otherwise, from its location, transferred, sold, pledged,
assigned or otherwise disposed of or permitted to become subject to a
security interest or lien until further order of the court. Unless the
court otherwise directs, the restraining order does not prohibit a
disposition of the chattel to the plaintiff. Disobedience of the order
may be punished as a contempt of court.
3. An order as provided in paragraph one of this subdivision may be
granted without notice only if, in addition to the other prerequisites
for the granting of the order, the court finds that unless such order is

granted without notice it is probable the chattel will become
unavailable for seizure by reason of being transferred, concealed,
disposed of, or removed from the state, or will become substantially
impaired in value.
4. An order of seizure granted without notice shall provide that the
plaintiff shall move for an order confirming the order of seizure on
such notice to the defendant and sheriff and within such period, not to
exceed five days after seizure, as the court shall direct. Unless the
motion is made within such period, the order of seizure shall have no
further effect and shall be vacated on motion and any chattel seized
thereunder shall be returned forthwith to the defendant. Upon the motion
to confirm, the plaintiff shall have the burden of establishing the
grounds for confirmation.
(e) Undertaking. The undertaking shall be executed by sufficient
surety, acceptable to the court. The condition of the undertaking shall
be that the surety is bound in a specified amount, not less than twice
the value of the chattel stated in the plaintiff's affidavit, for the
return of the chattel to any person to whom possession is awarded by the
judgment, and for payment of any sum awarded by the judgment against the
person giving the undertaking. A person claiming only a lien on or
security interest in the chattel may except to the plaintiff's surety.

Front 107

CPLR 7103 Reclaiming, impounding or returning chattel

Back 107

(a) Reclaiming
chattel. A chattel may be reclaimed by any person claiming the right to
its possession, except a defendant claiming only a lien thereon or a
security interest therein , by service upon the sheriff, and upon all
parties to the action, of a notice that the reclaiming party requires a
return of all or part of the chattels replevied; an undertaking executed
as required by subdivision (e) of section 7102 and an affidavit stating
that the reclaiming party is entitled to possession by virtue of facts
set forth. The sheriff shall retain custody of the chattel for ten days
after such papers have been served upon him. At the expiration of such
period he shall deliver the chattel to the person serving the notice if
there has not been served upon him a notice of exception to sureties or
a notice of motion for an impounding order. Upon failure by the surety
to justify, the sheriff shall deliver possession of the chattel to the
plaintiff. If more than one person serves a reclaiming notice on the
sheriff, the sheriff shall move, on notice to all parties, to have the
court determine to whom the chattel shall be delivered.
(b) Impounding chattel. A chattel which is in the custody of the
sheriff may be impounded pending judgment or further order of the court,
upon motion of any person claiming the right to its possession, upon
notice to the sheriff and to all parties to the action. The motion shall
be granted if the chattel is of such a nature, or the circumstances are
such, that the moving party, if found to be entitled to possession,
would not be adequately compensated for its loss by the payment of its
pecuniary value. An undertaking shall accompany the motion, in an amount
not less than two hundred and fifty dollars, that the moving party will
indemnify the sheriff for all expenses incurred by him in transporting,
handling and safekeeping the chattel pending determination of the
motion, and, if the motion is granted, pending judgment or further order
of the court. All expenses resulting from impounding shall be taxed as
disbursements in the action as the court may direct.
(c) Returning chattel. 1. If a chattel which is in the custody of the
sheriff is personal property which if owned by a defendant would be
exempt from application to the satisfaction of a money judgment, if the
value of the possession of the chattel to the defendant is greater than
the value of its possession to the plaintiff, if the interest of the
plaintiff would not thereby be prejudiced and if the interests of
justice so require, upon motion of the defendant, upon notice to the
sheriff and to all parties to the action, and on such terms and on such
security and conditions as to the court may seem proper, the court may
order its return to the defendant.

Front 108

CPLR 7108 Judgment; execution in certain cases; enforcement by contempt

Back 108

(a) Generally. Damages for wrongful taking or detention or for injury to
or depreciation of a chattel may be awarded to a party. If an order of
seizure granted without notice is not confirmed as required pursuant to
paragraph four of subdivision (d) of section 7102, the plaintiff, unless
the court orders otherwise upon good cause shown, shall be liable to the
defendant for all costs and damages, including reasonable attorney's
fees, which may be sustained by reason of the granting of the order of
seizure without notice, and the plaintiff's liability shall not be
limited to the amount of the undertaking. Except as provided in
subdivision (b), judgment shall award possession of each chattel to the
prevailing party or, if the action is discontinued or dismissed, to the
person from whom it was seized; and where the person awarded possession
is not in possession when judgment is entered, it shall in the
alternative, award the value of each chattel at the time of trial or the
sum for which it was sold under section 7105, decreased by the value of
the interest of an unsuccessful party.
(b) Where value of chattel should not be awarded; execution. A
verdict, report or decision in favor of the defendant where the chattel
is in possession of the plaintiff at the time it is rendered shall not
fix the value of the chattel where:
1. the plaintiff is the owner of the chattel but it was rightfully
distrained doing damage, and the value of the chattel is greater than
the damages sustained by the defendant; or
2. the plaintiff is the owner of the chattel, but the defendant had a
special property therein, the value of which is less than the value of
the chattel.
The verdict, report or decision shall state why the value of the
chattel is not fixed, and the final judgment shall award to the
defendant the amount of damages or value of his special property and, if
such sum is not collected, possession of the chattel. An execution shall
direct the sheriff to deliver possession of the chattel to the defendant
unless the party in possession pays the sum awarded to the defendant
with interest and sheriff's fees and in case the chattel cannot be found
within his county, then to satisfy that sum from the property of the
party against whom the judgment is entered. If the chattel is in
possession of the defendant, it may remain in his possession until the
amount awarded is paid.
(c) Failure of jury to fix sum. If the jury shall fail to fix any sum
required to be fixed by this section, such sum shall be fixed by a jury
empanelled for the purpose upon motion made before the judge who
presided at the trial within fifteen days after verdict.

Front 109

CPLR 7109 Unique chattel

Back 109

(a) Injunction, temporary restraining order.
Where the chattel is unique, the court may grant a preliminary
injunction or temporary restraining order that the chattel shall not be
removed from the state, transferred, sold, pledged, assigned or
otherwise disposed of until the further order of the court.
(b) Judgment enforceable by contempt. Where the chattel is unique, the
court, in addition to granting a judgment under section 7108, may direct
that a party in possession deliver the chattel to the party entitled to
possession. Disobedience of a judgment or order so directing may be
punished as a contempt of court. If a party accepts the value of the
chattel awarded to him by the judgment, he shall have no claim to the
chattel.

Front 110

CPLR 6201 Grounds for attachment

Back 110

An order of attachment may be granted
in any action, except a matrimonial action, where the plaintiff has
demanded and would be entitled, in whole or in part, or in the
alternative, to a money judgment against one or more defendants, when:
1. the defendant is a nondomiciliary residing without the state, or is
a foreign corporation not qualified to do business in the state; or
2. the defendant resides or is domiciled in the state and cannot be
personally served despite diligent efforts to do so; or
3. the defendant, with intent to defraud his creditors or frustrate
the enforcement of a judgment that might be rendered in plaintiff's
favor, has assigned, disposed of, encumbered or secreted property, or
removed it from the state or is about to do any of these acts; or
4. the action is brought by the victim or the representative of the
victim of a crime, as defined in subdivision six of section six hundred
twenty-one of the executive law, against the person or the legal
representative or assignee of the person convicted of committing such
crime and seeks to recover damages sustained as a result of such crime
pursuant to section six hundred thirty-two-a of the executive law; or
5. the cause of action is based on a judgment, decree or order of a
court of the United States or of any other court which is entitled to
full faith and credit in this state, or on a judgment which qualifies
for recognition under the provisions of article 53.

Front 111

CPLR 6211 Order of attachment without notice

Back 111

(a) When granted;
contents. An order of attachment may be granted without notice, before
or after service of summons and at any time prior to judgment. It shall
specify the amount to be secured by the order of attachment including
any interest, costs and sheriff's fees and expenses, be indorsed with
the name and address of the plaintiff's attorney and shall be directed
to the sheriff of any county or of the city of New York where any
property in which the defendant has an interest is located or where a
garnishee may be served. The order shall direct the sheriff to levy
within his jurisdiction, at any time before final judgment, upon such
property in which the defendant has an interest and upon such debts
owing to the defendant as will satisfy the amount specified in the order
of attachment.
(b) Confirmation of order. Except where an order of attachment is
granted on the ground specified in subdivision one of section 6201, an
order of attachment granted without notice shall provide that within a
period not to exceed five days after levy, the plaintiff shall move, on
such notice as the court shall direct to the defendant, the garnishee,
if any, and the sheriff, for an order confirming the order of
attachment. Where an order of attachment without notice is granted on
the ground specified in subdivision one of section 6201, the court shall
direct that the statement required by section 6219 be served within five
days, that a copy thereof be served upon the plaintiff, and the
plaintiff shall move within ten days after levy for an order confirming
the order of attachment. If the plaintiff upon such motion shall show
that the statement has not been served and that the plaintiff will be
unable to satisfy the requirement of subdivision (b) of section 6223
until the statement has been served, the court may grant one extension
of the time to move for confirmation for a period not to exceed ten
days. If plaintiff fails to make such motion within the required period,
the order of attachment and any levy thereunder shall have no further
effect and shall be vacated upon motion. Upon the motion to confirm, the
provisions of subdivision (b) of section 6223 shall apply. An order of
attachment granted without notice may provide that the sheriff refrain
from taking any property levied upon into his actual custody, pending
further order of the court.

Front 112

CPLR 6212 Motion papers; undertaking; filing; demand; damages

Back 112

(a)
Affidavit; other papers. On a motion for an order of attachment, or for
an order to confirm an order of attachment, the plaintiff shall show, by
affidavit and such other written evidence as may be submitted, that
there is a cause of action, that it is probable that the plaintiff will
succeed on the merits, that one or more grounds for attachment provided
in section 6201 exist, and that the amount demanded from the defendant
exceeds all counterclaims known to the plaintiff.
(b) Undertaking. On a motion for an order of attachment, the plaintiff
shall give an undertaking, in a total amount fixed by the court, but not
less than five hundred dollars, a specified part thereof conditioned
that the plaintiff shall pay to the defendant all costs and damages,
including reasonable attorney's fees, which may be sustained by reason
of the attachment if the defendant recovers judgment or if it is finally
decided that the plaintiff was not entitled to an attachment of the
defendant's property, and the balance conditioned that the plaintiff
shall pay to the sheriff all of his allowable fees. The attorney for the
plaintiff shall not be liable to the sheriff for such fees. The surety
on the undertaking shall not be discharged except upon notice to the
sheriff.
(c) Filing. Within ten days after the granting of an order of
attachment, the plaintiff shall file it and the affidavit and other
papers upon which it was based and the summons and complaint in the
action. Unless the time for filing has been extended, the order shall
be invalid if not so filed, except that a person upon whom it is served
shall not be liable for acting upon it as if it were valid without
knowledge of the invalidity.

(e) Damages. The plaintiff shall be liable to the defendant for all
costs and damages, including reasonable attorney's fees, which may be
sustained by reason of the attachment if the defendant recovers
judgment, or if it is finally decided that the plaintiff was not
entitled to an attachment of the defendant's property. Plaintiff's
liability shall not be limited by the amount of the undertaking.

Front 113

CPLR 5201 Debt or property subject to enforcement; proper garnishee

Back 113

(a)
Debt against which a money judgment may be enforced. A money judgment
may be enforced against any debt, which is past due or which is yet to
become due, certainly or upon demand of the judgment debtor, whether it
was incurred within or without the state, to or from a resident or
non-resident, unless it is exempt from application to the satisfaction
of the judgment. A debt may consist of a cause of action which could be
assigned or transferred accruing within or without the state.
(b) Property against which a money judgment may be enforced. A money
judgment may be enforced against any property which could be assigned or
transferred, whether it consists of a present or future right or
interest and whether or not it is vested, unless it is exempt from
application to the satisfaction of the judgment. A money judgment
entered upon a joint liability of two or more persons may be enforced
against individual property of those persons summoned and joint property
of such persons with any other persons against whom the judgment is
entered.

Front 114

CPLR 6312 Motion papers; undertaking; issues of fact

Back 114

(a) Affidavit;
other evidence. On a motion for a preliminary injunction the plaintiff
shall show, by affidavit and such other evidence as may be submitted,
that there is a cause of action, and either that the defendant threatens
or is about to do, or is doing or procuring or suffering to be done, an
act in violation of the plaintiff's rights respecting the subject of the
action and tending to render the judgment ineffectual; or that the
plaintiff has demanded and would be entitled to a judgment restraining
the defendant from the commission or continuance of an act, which, if
committed or continued during the pendency of the action, would produce
injury to the plaintiff.
(b) Undertaking. Except as provided in section 2512, prior to the
granting of a preliminary injunction, the plaintiff shall give an
undertaking in an amount to be fixed by the court, that the plaintiff,
if it is finally determined that he or she was not entitled to an
injunction, will pay to the defendant all damages and costs which may be
sustained by reason of the injunction.
(c) Issues of fact. Provided that the elements required for the
issuance of a preliminary injunction are demonstrated in the plaintiff's
papers, the presentation by the defendant of evidence sufficient to
raise an issue of fact as to any of such elements shall not in itself be
grounds for denial of the motion. In such event the court shall make a
determination by hearing or otherwise whether each of the elements
required for issuance of a preliminary injunction exists.

Front 115

CPLR 6313 Temporary restraining order

Back 115

(a) Generally. If, on a motion
for a preliminary injunction, the plaintiff shall show that immediate
and irreparable injury, loss or damages will result unless the defendant
is restrained before a hearing can be had, a temporary restraining order
may be granted without notice.
(c) Undertaking. Prior to the granting of a temporary restraining
order the court may, in its discretion, require the plaintiff to give an
undertaking in an amount to be fixed by the court, containing terms
similar to those set forth in subdivision (b) of rule 6312, and subject
to the exception set forth therein.

Front 116

CPLR 6501 Notice of pendency; constructive notice

Back 116

A notice of pendency
may be filed in any action in a court of the state or of the United
States in which the judgment demanded would affect the title to, or the
possession, use or enjoyment of, real property, except in a summary
proceeding brought to recover the possession of real property.

Front 117

CPLR 6512 Service of summons

Back 117

A notice of pendency is effective only if,
within thirty days after filing, a summons is served upon the defendant
or first publication of the summons against the defendant is made
pursuant to an order and publication is subsequently completed.

Front 118

CPLR 6513 Duration of notice of pendency

Back 118

A notice of pendency shall be
effective for a period of three years from the date of filing. Before
expiration of a period or extended period, the court, upon motion of the
plaintiff and upon such notice as it may require, for good cause shown,
may grant an extension for a like additional period. An extension order
shall be filed, recorded and indexed before expiration of the prior
period.

Front 119

CPLR 6514 Motion for cancellation of notice of pendency

Back 119

(a) Mandatory
cancellation. The court, upon motion of any person aggrieved and upon
such notice as it may require, shall direct any county clerk to cancel a
notice of pendency, if service of a summons has not been completed
within the time limited by section 6512; or if the action has been
settled, discontinued or abated; or if the time to appeal from a final
judgment against the plaintiff has expired; or if enforcement of a final
judgment against the plaintiff has not been stayed pursuant to section
5519.
(b) Discretionary cancellation. The court, upon motion of any person
aggrieved and upon such notice as it may require, may direct any county
clerk to cancel a notice of pendency, if the plaintiff has not commenced
or prosecuted the action in good faith.
(c) Costs and expenses. The court, in an order cancelling a notice of
pendency under this section, may direct the plaintiff to pay any costs
and expenses occasioned by the filing and cancellation, in addition to
any costs of the action.
(d) Cancellation by stipulation.

Front 120

Limits on What May Be Demanded: Felock v. Albany Medical Center Hospital

Suit brought 10 years after malpractice but it was tolled because the P was under 18. Medical malpractice tolling lasts only 10 years.

CLaims by D was that answers to BP were vague, but P rebutted that they couldn't provide the info asked for b/c they don't have info from hospital that they needed to answer the BP. The hospital couldn't find the papers that P requested.

Back 120

In a medical malpractice action, as in any action for personal injuries, the bill of particulars requires only a general statement of the acts or omissions constituting the negligence claimed.

An answer to a BP need not provide evidentiary material or information to be gleaned from expert testimony.

Judge, first, required the D to provide the documents.

On another matter, the D's demand for loss of earning capacity, special damages and medical expenses can provided at a later time.

Front 121

Bouton v. County of Suffolk.

P claimed that he was involved in a traffic accident b/c the defendant town failed to provide adequate traffic controls and misplaced a stop sign at an intersection.

The demand for a bill of particulars included requests to state where the stop sign should have been placed and what additional traffic controls should have been provided.

Back 121

These were held improper b/c they "sought matters which are evidentiary in nature requiring expert testimony and thus are outside the scope of a BP."

Front 122

The Scope of Disclosure: Andon v. 302-304 Mott Street Associates.

In a case where damages were sought for an infant who had digested lead-based paint, D moved to compel plaintiff-mother to submit to an IQ test. The injuries allegedly sustained by the infant included "learning disabilities."

The purpose of the IQ test was to determine whether the infant's cognitive disabilities were, in fact, genetic. In support of the motion was an affidavit from Dr. Adesman who concluded that maternal IQ is relevant in assessing a child's cognitive development.

Back 122

Competing interests must always be balanced; the need for discovery must be weighed against any special burden to be borne by the opposing party.

Reasoning: the burden of subjecting plaintiff-mother to an IQ test outweighed any relevance her IQ would bear on the issue of causation.

Rule: Each discovery request must be evaluated on a case-by-case basis with due regard for the strong policy supporting open disclosure. Absent an abuse of discretion as a matter of law, this Court will not disturb such determinations.

Appelate Division can give permission to appeal this question of discretion for COA.

The D's showed an affidavit in support of its request but it was not supported by enough evidence.

The lower court was in its right to use discretion to deny the request for an IQ test b/c the test not material to the D's theory of causation.

Front 123

Bertocci v. Fiat Motors of North America, Inc.

Fact: Following an inspection of Fiat's customer complaints files, P served his second set of interrogatories(i.e. detailed questions involving looking to records) to elicit information as to the number of Fiat Model "128" vehicles sold in the US for the model years 1974 through 1977, and the number of recommended replacement clutch cables, fuel pumps and timing belts for said models sold during that period of time.

Special Term granted the motion for a protective order striking the interrogatories as irrelevant to the issues in dispute.

Back 123

HOlding: The interrogatories propounded are overly broad in seeking information pertaining to model years other than that purchased by P.

There is neither allegation nor proof that the Fiat Model "128" vehicles for the model years 1974, 1976 and 1977 were identical or substantially similar to the 1975 model claimed to be defective, sufficient to sustain the expansive disclosure sought by P.

Front 124

Holzman v. Manhattan and Bronx Surface Transit Operating Authority.

Facts: P filed a timely notice of claim alleging negligence in the operation of a bus.

D's objected that P had not even set forth a theory of liability, let alone a prima facie case, and was instead seeking pre-action discovery so as to tailor his complaint to fit whatever the inspection revealed.

IAS Court granted the motion to the extent of directing respondents to identify the bus and produce it for inspection within 20 days after petitioner testified at the General Municipal Law.

Back 124

Holding: Pre-action discovery may be appropriate to preserve evidence or to identify potential D's; however, it cannot be used by a prospective plaintiff to ascertain whether he has a cause of action at all.

A petition for pre-action discovery should only be granted when the petitioner demonstrates that he has a meritorious COA and that the information sought its material and necessary to the actionable wrong.

P has not met his burden as he has failed to allege any facts supporting his bare claim that D's were negligent and that this negligence caused his injury. P cannot establish a prima facie case of negligence if he cannot explain what caused him to fall.

Front 125

Spectrum Systems v. Chemical Bank.

Facts: In an Action to recover fees for consulting services, P demanded that D, Chemical Bank, produce certain documents pertaining to the bank's internal investigation of possible fraud by employees and vendors, including P.

Chemcial had concerns that its employees were engaged in collusion with Spectrum's employees.

Chemical responded by seeking a protective order, asserting that the documents were protected from disclosure by the attorney-client privilege, by the attorney work product doctrine, and as material prepared in anticipation of litigation.

Issue: whether a report prepared by Chemical's specially retained outside counsel is privileged and therefore immune from discovery.

Back 125

Privilege upheld to the extent the document contained legal advice the document is exempt.

Court says this isn't attorney work product b/c it wasn't prepared in connection with and in anticipation of litigation.

Privileged doc b/c it was given to a client in response to a request for legal advice and reflected legal advice. It doesn't matter that docs reflected a conclusion.

Legal advice often begins - and may end - with a preliminary evaluation and a range of options.

Entire doc was held to be privileged.

Front 126

NY Pleadings

Back 126

Initial pleading is the complaint.

In an action for fraud, you have to set forth allegations with particularity.

Next pleading is the answer.

There are various affirmative defenses. Similar to federal rules(i.e. res judicata, statute of frauds, statute of limitations).

D can assert a counter-claim, but in NY there is no compulsory counterclaim. NY D can plead counterclaim at a later time.

Verification of Complaint: when a case is started you have option to use a typical complaint or a verified complaint meaning P has to sign an affidavit that information is true to his knowledge. If served then D has to provide a verified answer that everythign is true to his knowledge. Always use a verified complaint b/c if you don't, the opposing counsel will bring up that complaint is unverified.

Front 127

Bill of Particulars

Back 127

The purpose of such a bill is to amplify the pleadings and to indicate with more particularity than is ordinarily required in a formal plea the nature of the claim made in order that surprise upon the trial may be avoided and that the issues may be more intelligently met.

Front 128

Hoffman v. Ro-San Manor.

Woman was mugged and robbed and blamed management for not providing a safe place.
P argues that only names of witnesses that needed to be disclosed are eye-witnesses. P argues that she doesn't have an obligation to provide witnesses, other than eye, who can give evidence towards safety conditions of residence.

Issue: whether a party in a negligence action is entitled to disclosure of the names and addresses of witnesses other than eyewitnesses to the accident.

Back 128

Holding: Discovery of witnesses does not qualify as attorney work-product. That matter relates only to attorney skill.

Finding a witness, as opposed to creating a report, also does not justify work-product privilege.

Holding: the names of eyewitnesses to the occurrence, even if obtained by investigation made after the occurrence, are discoverable if they are material and necessary to the prosecution or defense of the action.

Holding: the existence of a witness to an event, or to conditions bearing upon an event, is independent of and precedes any work done by an attorney.

Front 129

Miranda v. Blair Tool & Machine Corp.

Facts: P was an employee that was injured by machined manufactured by D. Suit was against manufacturer of machine. Can't sue employer b/c of work comp laws. Manufacturer, in turn, brings a 3rd party complaint against the employer. There's a recording and written transcript. P wants to know what supervisor told his advisors and others.

D argues that this was material prepared in anticipation of litigation.

Back 129

Document concerning the supervisor's statement was produced.

There are two provisions, 1 which allows for material prepared in anticipation of litigation and another provision (3101(g) which says there shall be full disclosure of an accident prepared in the regular course of business and operations. This latter provision, accident report, trumps the former provision.

If you want to get report, then the burden is on you to prove that report wasn't created in the regular course of business.

Front 130

Section 3043 Bill of particulars in personal injury actions

Back 130

(a)
Specified particulars. In actions to recover for personal injuries the
following particulars may be required:
(1) The date and approximate time of day of the occurrence;
(2) Its approximate location;
(3) General statement of the acts or omissions constituting the
negligence claimed;
(4) Where notice of a condition is a prerequisite, whether actual or
constructive notice is claimed;
(5) If actual notice is claimed, a statement of when and to whom it
was given;
(6) Statement of the injuries and description of those claimed to be
permanent, and in an action designated in subsection (a) of section five
thousand one hundred four of the insurance law, for personal injuries
arising out of negligence in the use or operation of a motor vehicle in
this state, in what respect plaintiff has sustained a serious injury, as
defined in subsection (d) of section five thousand one hundred two of
the insurance law, or economic loss greater than basic economic loss, as
defined in subsection (a) of section five thousand one hundred two of
the insurance law;
(7) Length of time confined to bed and to house;
(8) Length of time incapacitated from employment; and
(9) Total amounts claimed as special damages for physicians' services
and medical supplies; loss of earnings, with name and address of the
employer; hospital expenses; nurses' services.

(c) Discretion of court. Nothing contained in the foregoing shall be
deemed to limit the court in denying in a proper case, any one or more
of the foregoing particulars, or in a proper case, in granting other,
further or different particulars.

Front 131

Section 3101 Scope of disclosure

Back 131

(a) Generally. There shall be full
disclosure of all matter material and necessary in the prosecution or
defense of an action, regardless of the burden of proof, by:
(1) a party, or the officer, director, member, agent or employee of a
party;
(2) a person who possessed a cause of action or defense asserted in
the action;
(3) a person about to depart from the state, or without the state, or
residing at a greater distance from the place of trial than one hundred
miles, or so sick or infirm as to afford reasonable grounds of belief
that he or she will not be able to attend the trial, or a person
authorized to practice medicine, dentistry or podiatry who has provided
medical, dental or podiatric care or diagnosis to the party demanding
disclosure, or who has been retained by such party as an expert witness;
and
(4) any other person, upon notice stating the circumstances or reasons
such disclosure is sought or required.
(b) Privileged matter. Upon objection by a person entitled to assert
the privilege, privileged matter shall not be obtainable.
(d) Trial preparation.
1. Experts. (i) Upon request, each party shall identify each person
whom the party expects to call as an expert witness at trial and shall
disclose in reasonable detail the subject matter on which each expert is
expected to testify, the substance of the facts and opinions on which
each expert is expected to testify, the qualifications of each expert
witness and a summary of the grounds for each expert's opinion. However,
where a party for good cause shown retains an expert an insufficient
period of time before the commencement of trial to give appropriate
notice thereof, the party shall not thereupon be precluded from
introducing the expert's testimony at the trial solely on grounds of
noncompliance with this paragraph. In that instance, upon motion of any
party, made before or at trial, or on its own initiative, the court may
make whatever order may be just. In an action for medical, dental or
podiatric malpractice, a party, in responding to a request, may omit the
names of medical, dental or podiatric experts but shall be required to
disclose all other information concerning such experts otherwise
required by this paragraph.
(ii) In an action for medical, dental or podiatric malpractice, any
party may, by written offer made to and served upon all other parties
and filed with the court, offer to disclose the name of, and to make
available for examination upon oral deposition, any person the party
making the offer expects to call as an expert witness at trial. If any party, having made or accepted the
offer, fails to make that party's expert available for oral deposition,
that party shall be precluded from offering expert testimony at the
trial of the action.
(iii) Further disclosure concerning the expected testimony of any
expert may be obtained only by court order upon a showing of special
circumstances and subject to restrictions as to scope and provisions concerning fees and expenses as the court may deem appropriate. However,
a party, without court order, may take the testimony of a person
authorized to practice medicine, dentistry or podiatry who is the
party's treating or retained expert, as described in paragraph three of
subdivision (a) of this section, in which event any other party shall be
entitled to the full disclosure authorized by this article with respect
to that expert without court order.
2. Materials. Subject to the provisions of paragraph one of this
subdivision, materials otherwise discoverable under subdivision (a) of
this section and prepared in anticipation of litigation or for trial by
or for another party, or by or for that other party's representative
(including an attorney, consultant, surety, indemnitor, insurer or
agent), may be obtained only upon a showing that the party seeking
discovery has substantial need of the materials in the preparation of
the case and is unable without undue hardship to obtain the substantial
equivalent of the materials by other means. In ordering discovery of the
materials when the required showing has been made, the court shall
protect against disclosure of the mental impressions, conclusions,
opinions or legal theories of an attorney or other representative of a
party concerning the litigation.
(e) Party's statement. A party may obtain a copy of his own statement.

(g) Accident reports. Except as is otherwise provided by law, in
addition to any other matter which may be subject to disclosure, there
shall be full disclosure of any written report of an accident prepared
in the regular course of business operations or practices of any person,
firm, corporation, association or other public or private entity, unless
prepared by a police or peace officer for a criminal investigation or
prosecution and disclosure would interfere with a criminal investigation
or prosecution.

Front 132

Section 3102 Method of obtaining disclosure

Back 132

(a) Disclosure devices.
Information is obtainable by one or more of the following disclosure
devices: depositions upon oral questions or without the state upon
written questions, interrogatories, demands for addresses, discovery and
inspection of documents or property, physical and mental examinations of
persons, and requests for admission.


(c) Before action commenced. Before an action is commenced, disclosure
to aid in bringing an action, to preserve information or to aid in
arbitration, may be obtained, but only by court order. The court may
appoint a referee to take testimony.
(d) After trial commenced. Except as provided in section 5223, during
and after trial, disclosure may be obtained only by order of the trial
court on notice.

Front 133

Section 3106 Priority of depositions; witnesses; prisoners; designation of deponent

Back 133

(a) Normal priority. After an action is commenced, any
party may take the testimony of any person by deposition upon oral or
written questions. Leave of the court, granted on motion, shall be
obtained if notice of the taking of the deposition of a party is served
by the plaintiff before that party's time for serving a responsive
pleading has expired.
(b) Witnesses. Where the person to be examined is not a party or a
person who at the time of taking the deposition is an officer, director,
member or employee of a party, he shall be served with a subpoena.

Front 134

Expert Witness Disclosure Timetable: Saar v. Brown and Obadashian, P.C.

D, after discovery was almost complete, would not provide expert testimony b/c they said they were not ready to designate one.

P argued prejudice b/c of a possible last minute expert testimony.

Back 134

Rule: CPLR 3101(d)(1)(i) states:

...”that even when a party retains an expert an insufficient period of time before the commencement of trial to give appropriate notice thereof, the party shall not thereupon be precluded from introducing the expert’s testimony at the trial solely on grounds of noncompliance with this paragraph.”

Holding: the Court allowed an 11th hour designation of an expert and opined:

Although sympathetic to the plaintiff’s concern about an eve-of-trial disclosure by defendant Odabashian, the court cannot compel a response where the statute provides no specific time for compliance.

Relief: the D's expert is precluded from testifying unless they correct w/i 20 days.

Note: D served BP on P(usually other way around) because they asserted contributory negligence.

Front 135

Disclosure of Expert Report Who is Not Testifying: Gilly v. City of New York.

Back 135

Holding: Once a physician's report has been reduced to writing and served on the adversary, it ceases to be for the exclusive use of D. At that point both sides have access to this probative evidence and there is no basis for withholding it from the trier of fact.

Decisive Factors:
1) Doctor was already involved by creating a report, being retained, and
2) Doctor did not object to testifying

Side Note: an expert may not be compelled to give expert opinion in NY.

Front 136

When You Can Depose a Non-Party: CPLR 3101(a). Dioguardi v. St. John's Riverside Hospital.

Back 136

Holding: it is proper to direct disclosure against a nonparty witness only in the presence of adequate special circumstances.

Rule: 3101(a)(4)

THe existence of such "special circumstances" may be shown by establishig that the information sought to be discovered cannot be obtained from other sources.

Analysis: A defendant in a personal injury action may not, as of right, depose any and all physicians who are shown to have treated the injuries claimed by the P. More than mere relevance and materiality is necessary to warrant disclosure from a nonparty.

Front 137

Compelling Answers at EBT's: Goberman v. McNamara.

During the examination before trial of plaintiff, counsel for the defendants posed three questions to plaintiff which were objected to by his attorney. Defendants sought to ascertain (1) whether plaintiff was ever convicted of a crime, (2) whether he was known by any other name or names within the last five years and (3) what were his addresses during the same period. Unable to settle their disagreement on the propriety of these matters counsel appeared before this court in Special Term, Part II for a ruling.

Back 137

Holding: should plaintiff testify during the trial his credibility will be subject to impeachment in the same manner as any other witness and he may be questioned as to whether he has been convicted of a crime (CPLR 4513).

"There shall be full disclosure of all evidence material and necessary in the prosecution or defense of an action, regardless of the burden of proof" (CPLR 3101, subd. [a]), and as long as the "`"information is sought in good faith for possible use as evidence-in-chief or in rebuttal or for cross-examination, it should be considered `evidence material * * * in the prosecution or defense'

Rule: In an EBT unless a question is clearly violative of the witness's constitutional rights, or of some privilege recognized in law, or is palpably irrelevant, questions should be freely permitted and answered, since all objections other than as to form are preserved for the trial and may be raised at that time.

Front 138

Permissibility into Evidence of Pretrial Deposition: Wojtas v. Fifth Avenue Coach Corp.

Facts: The plaintiffs' sole contention on this appeal is that the Trial Justice committed prejudicial error in permitting defendants' trial counsel to read into evidence the pretrial deposition of the defendant bus driver (taken by the plaintiffs), although plaintiffs had not offered any part thereof at the trial. It was in effect conceded by plaintiffs' counsel that, at the time of the trial and as a consequence of a coronary thrombosis, Williams (the bus driver) was considered by his physician to be sick and unable to testify.

Back 138

Rule: Under 3117 only an adverse party may use a deposition in the first instance; and the deposition of a party-deponent may not be read in evidence by his own counsel without calling the deponent to the stand, unless the court finds that at least one of the conditions set out in the five subparagraphs of the third paragraph of subdivision (a) of the rule (CPLR 3117) exists at the time of trial.

Holding: Since at bar there was a finding by the Trial Justice that the illness of the defendant Williams precluded his attendance at the trial, the procedural requisite for reading his deposition by defendants' trial counsel was established (CPLR 3117, subd. [a], par. 3, cl. [iii]).

Front 139

Discovery and Inspection: MacKinnon v. MacKinnon.

Facts: P made a demand pursuant to 3120 for the production of various financial documents and records concerning D's business holdings and personal finances covering a period from 1980 to the present or in some instances an unspecified time period.

D moved for a protective order to limit P's discovery demands on the ground that the demand was overly broad and burdensome.

Back 139

Holding: the proper procedure requires that the party seeking discovery and inspection pursuant to 3120 initially make use of the deposition and related procedures provided by the CPLR to ascertain the existence of such documents.
Court believe that P was on a "fishing expedition."

Rule: a court has broad discretion in limiting discovery to prevent unreasonable annoyance, expense, embarrassment, disadvantage, or other prejudice. CPLR 3103(a)

Front 140

Notice to Admit: CPLR 3123. Villa v. New York City Housing Authority.

Facts: Plaintiff seeks damages for defendant's alleged negligence in failing to provide appropriate apartment window safeguards, resulting in the fatal fall by plaintiff's infant decedent. The notice is devoted to questions of D's ownership and control of the premises and its duty to install and maintain window guards for the safety of the tenants.

Back 140

Rule: While the notice to admit can be used to probe a party's understanding of his own duties under law (as in Nos. 9 and 10, supra), it is inappropriate as a vehicle for asking a party to interpret the law or someone else's compliance therewith.

Holding: Consequently, it was improper to permit plaintiff to seek defendant's interpretation of section 131.15 of the New York City Health Code, general requirement as to when window guards are required (No. 11). Likewise, it was error to require defendant to admit or deny the propriety of plaintiff's notice of claim under section 50-e of the General Municipal Law (No. 16, supra), although there was nothing improper in asking defendant to confirm its written acknowledgement of the filing of that claim and its subsequent failure to indicate any defects in that notice (No. 17).

It was also error for Special Term to permit inquiry under a notice to admit with regard to an "ownership registration on file as a public record" (No. 5), inasmuch as plaintiff would have as much access to such information as does defendant.

Front 141

Physical and Mental Examinations: CPLR 3121. Dillenbeck v. Hess.

Facts: plaintiff's intestate was killed by a motorist believed to be intoxicated at the time of a collision. Thereafter, the administrator sought production of the defendant's hospital records to further this claim.

Back 141

Holding: Initially, waiver of that claimed to be privileged necessitates that the party seeking disclosure, demonstrate that the condition has been affirmatively placed "in controversy." In Dillenbeck, the Court found this standard to have been met by, inter alia, defendant's conviction for criminally negligent homicide. Thereafter, and after meeting this threshold requirement imposed by CPLR '3121, the Court found that disclosure of that which was otherwise protected by CPLR '4504, would nevertheless be barred unless and until a waiver could be found on the part of the party resisting discovery. Here the Dillenbeck plaintiff failed:

Defendant cannot be said to have waived the privilege simply by denying the allegations in the complaint or by testifying that she cannot remember any details of the incident where the fact of her memory loss is not being advanced to excuse her conduct. Nor has she waived the privilege by asserting the defenses of comparative negligence and the failure of plaintiffs to wear seat belts since neither defense seeks to excuse the conduct complained of by asserting a mental or physical condition

Front 142

Compelling and Avoiding Disclosure: Siegman v. Rosen

Facts: Defendants, however, continually failed to produce any pre-1986 documents, despite several alleged promises to do so, and, as a result, plaintiff moved for sanctions in January 1999. At this juncture, defendants, for the first time, made the revelation that the documents in question could not be found. Thus, it was not until defendants contested the production of these documents, won the point at the trial court, saw the restriction removed on plaintiff's appeal, were subsequently ordered by the IAS Court to produce the documents, and had to answer a motion for sanctions after more delays and excuses, that they suddenly discovered that the documents simply could not be found. Further, what makes defendants' actions even more egregious is that they supply no indication whatsoever of the fate of the documents or what efforts were undertaken to locate them.

Back 142

Rule: in order to impose the drastic remedy of preclusion, the court must determine that the offending party's failure to comply with discovery demands was willful, deliberate and contumacious.

Willfulness can be inferred when a party repeatedly fails to respond to discovery demands and/or to comply with discovery orders, coupled with inadequate excuses for those defaults.

Front 143

Preservation of Evidence: Voom HD Holdings LLC v. EchoStar Satellite LLC


Background: Order was entered by the Supreme Court, New York County, Richard B. Lowe III, J., granting plaintiff's motion to impose sanctions against defendant for its spoliation of evidence. Defendant appealed.

Issue: This case requires us to determine the scope of a party's duties in the electronic discovery context, and the appropriate sanction for failure to preserve electronically stored information (ESI).

Back 143

Rule: Party seeking sanctions based upon spoliation of evidence must demonstrate: (1) that party with control over evidence had obligation to preserve it at time it was destroyed; (2) that records were destroyed with culpable state of mind; and (3) that the destroyed evidence was relevant to the party's claim or defense, such that trier of fact could find that evidence would support that claim or defense.

Obligation to preserve: once party reasonably anticipates litigation, it must suspend its routine document retention/destruction policy and put in place a “litigation hold”;

Holdings:
2 satellite television provider did not implement a proper litigation hold once it should reasonably have anticipated litigation with company whose television programming it was contractually obligated to distribute, or even for four months after company filed suit;
3 provider was at least grossly negligent, if not guilty of bad faith conduct, in failing to timely implement a proper litigation hold, such that relevance of destroyed e-mails could be presumed;
4 provider failed to rebut presumption of relevance; and
5 adverse inference was appropriate spoliation sanction.

Front 144

Discovery Production Reimbursements: U.S. Bank National Association v. GreenPoint Funding, Inc.

Background: In litigation arising out of mortgage lender's practices in originating mortgages, pooling them together in securitized trusts, and selling interests therein, lender moved for protective order conditioning production on establishment of discovery protocol to require each party to pay for its own discovery requests, and to reimburse producing party for pre-production attorney review time for purposes of privilege and confidentiality assertions. The Supreme Court, New York County, Bernard J. Fried, J., concluded that requesting party should bear costs of discovery, and entered order to that effect. Appeal was taken.

Issue: This case requires us to determine which party is to incur the cost of searching for, retrieving and producing both electronically stored information and physical documents that have been requested as part of the discovery process.

Back 144

Holding: in the context of preservation and spoliation, we are persuaded that Zubulake should be the rule in this Department, requiring the producing party to bear the cost of production to be modified by the IAS court in the exercise of its discretion on a proper motion by the producing party.

When evaluating whether costs should be shifted, the IAS courts may follow the seven factors set forth in Zubulake:
“(1) [t]he extent to which the request is specifically tailored to discover relevant information;
(2)[t]he availability of such information from other sources; (3)[t]he total cost of production, compared to the amount in controversy;
(4)[t]he total cost of production, compared to the resources available to each party;
(5)[t]he relative ability of each party to control costs and its incentive to do so;
(6)[t]he importance of the issues at stake in the litigation; and,
(7)[t]he relative benefits to the parties of obtaining the information”

Front 145

§ 3121. Physical or mental examination

Back 145

(a) Notice of examination. After commencement of an action in which the mental or physical condition or the blood relationship of a party, or of an agent, employee or person in the custody or under the legal control of a party, is in controversy, any party may serve notice on another party to submit to a physical, mental or blood examination by a designated physician, or to produce for such examination his agent, employee or the person in his custody or under his legal control. The notice may require duly executed and acknowledged written authorizations permitting all parties to obtain, and make copies of, the records of specified hospitals relating to such mental or physical condition or blood relationship; where a party obtains a copy of a hospital record as a result of the authorization of another party, he shall deliver a duplicate of the copy to such party. A copy of the notice shall be served on the person to be examined. It shall specify the time, which shall be not less than twenty days after service of the notice, and the conditions and scope of the examination.
(b) Copy of report. A copy of a detailed written report of the examining physician setting out his findings and conclusions shall be delivered by the party seeking the examination to any party requesting to exchange therefor a copy of each report in his control of an examination made with respect to the mental or physical condition in controversy.

Front 146

Rule 3122. Objection to disclosure, inspection or examination; compliance

Back 146

(a) 1. Within twenty days of service of a notice or subpoena duces tecum under rule 3120 or section 3121, the party or person to whom the notice or subpoena duces tecum is directed, if that party or person objects to the disclosure, inspection or examination, shall serve a response which shall state with reasonable particularity the reasons for each objection. If objection is made to part of an item or category, the part shall be specified. The party seeking disclosure under rule 3120 or section 3121 may move for an order under rule 3124 or section 2308 with respect to any objection to, or other failure to respond to or permit inspection as requested by, the notice or subpoena duces tecum, respectively, or any part thereof.
2. A medical provider served with a subpoena duces tecum, other than a trial subpoena issued by a court, requesting the production of a patient's medical records pursuant to this rule need not respond or object to the subpoena if the subpoena is not accompanied by a written authorization by the patient. Any subpoena served upon a medical provider requesting the medical records of a patient shall state in conspicuous bold-faced type that the records shall not be provided unless the subpoena is accompanied by a written authorization by the patient, or the court has issued the subpoena or otherwise directed the production of the documents.
(b) Whenever a person is required pursuant to such a notice, subpoena duces tecum or order to produce documents for inspection, and where such person withholds one or more documents that appear to be within the category of the documents required by the notice, subpoena duces tecum or order to be produced, such person shall give notice to the party seeking the production and inspection of the documents that one or more such documents are being withheld. This notice shall indicate the legal ground for withholding each such document, and shall provide the following information as to each such document, unless the party withholding the document states that divulgence of such information would cause disclosure of the allegedly privileged information: (1) the type of document; (2) the general subject matter of the document; (3) the date of the document; and (4) such other information as is sufficient to identify the document for a subpoena duces tecum.

Front 147

Rule 3117. Use of depositions

Back 147

(a) Impeachment of witnesses; parties; unavailable witness. At the trial or upon the hearing of a motion or an interlocutory proceeding, any part or all of a deposition, so far as admissible under the rules of evidence, may be used in accordance with any of the following provisions:
1. any deposition may be used by any party for the purpose of contradicting or impeaching the testimony of the deponent as a witness;
2. the deposition testimony of a party or of any person who was a party when the testimony was given or of any person who at the time the testimony was given was an officer, director, member, employee or managing or authorized agent of a party, may be used for any purpose by any party who was adversely interested when the deposition testimony was given or who is adversely interested when the deposition testimony is offered in evidence;
3. the deposition of any person may be used by any party for any purpose against any other party who was present or represented at the taking of the deposition or who had the notice required under these rules, provided the court finds:
(i) that the witness is dead; or
(ii) that the witness is at a greater distance than one hundred miles from the place of trial or is out of the state, unless it appears that the absence of the witness was procured by the party offering the deposition; or
(iii) that the witness is unable to attend or testify because of age, sickness, infirmity, or imprisonment; or
(iv) that the party offering the deposition has been unable to procure the attendance of the witness by diligent efforts; or
(v) upon motion or notice, that such exceptional circumstances exist as to make its use desirable, in the interest of justice and with due regard to the importance of presenting the testimony of witnesses orally in open court;
4. the deposition of a person authorized to practice medicine may be used by any party without the necessity of showing unavailability or special circumstances, subject to the right of any party to move pursuant to section 3103 to prevent abuse.

Front 148

§ 3123. Admissions as to matters of fact, papers, documents and photographs

Back 148

(a) Notice to admit; admission unless denied or denial excused. At any time after service of the answer or after the expiration of twenty days from service of the summons, whichever is sooner, and not later than twenty days before the trial, a party may serve upon any other party a written request for admission by the latter of the genuineness of any papers or documents, or the correctness or fairness of representation of any photographs, described in and served with the request, or of the truth of any matters of fact set forth in the request, as to which the party requesting the admission reasonably believes there can be no substantial dispute at the trial and which are within the knowledge of such other party or can be ascertained by him upon reasonable inquiry. Each of the matters of which an admission is requested shall be deemed admitted unless within twenty days after service thereof or within such further time as the court may allow, the party to whom the request is directed serves upon the party requesting the admission a sworn statement either denying specifically the matters of which an admission is requested or setting forth in detail the reasons why he cannot truthfully either admit or deny those matters. If the matters of which an admission is requested cannot be fairly admitted without some material qualification or explanation, or if the matters constitute a trade secret or such party would be privileged or disqualified from testifying as a witness concerning them, such party may, in lieu of a denial or statement, serve a sworn statement setting forth in detail his claim and, if the claim is that the matters cannot be fairly admitted without some material qualification or explanation, admitting the matters with such qualification or explanation.
(b) Effect of admission. Any admission made, or deemed to be made, by a party pursuant to a request made under this rule is for the purpose of the pending action only and does not constitute an admission by him for any other purpose nor may it be used against him in any other proceeding; and the court, at any time, may allow a party to amend or withdraw any admission on such terms as may be just. Any admission shall be subject to all pertinent objections to admissibility which may be interposed at the trial.

Front 149

§ 3126. Penalties for refusal to comply with order or to disclose

Back 149

If any party, or a person who at the time a deposition is taken or an examination or inspection is made is an officer, director, member, employee or agent of a party or otherwise under a party's control, refuses to obey an order for disclosure or wilfully fails to disclose information which the court finds ought to have been disclosed pursuant to this article, the court may make such orders with regard to the failure or refusal as are just, among them:
1. an order that the issues to which the information is relevant shall be deemed resolved for purposes of the action in accordance with the claims of the party obtaining the order; or
2. an order prohibiting the disobedient party from supporting or opposing designated claims or defenses, from producing in evidence designated things or items of testimony, or from introducing any evidence of the physical, mental or blood condition sought to be determined, or from using certain witnesses; or
3. an order striking out pleadings or parts thereof, or staying further proceedings until the order is obeyed, or dismissing the action or any part thereof, or rendering a judgment by default against the disobedient party.

Front 150

Forum Non Conveniens: 8 Factors

Back 150

• Substantial nexus to NY state (Martin v. Meath)
• Discovery Test—where are the witnesses located (Bewers)
• Whose law applies? (Bewers)
• Greater interest test-- Where is there a greater interest in resolving this case? (Bewers)
• Availability of another suitable forum (Iran v. Pahlavi)
• Potential for contradictory decisions (Hart)
• Burden on the NY Courts (Hart)
• Potential hardship to the defendant (Hart)

Front 151

Failure to State a Cause of Action: CPLR 3211(a)(7). Rovello v. Orofino Realty Co., Inc.


• Facts: K involved 3 separate transfers. D moved to dismiss. Allegation by D that P never made required down payment. Nothing about this was in the complaint—it was submitted in the affidavits. P never challenged the allegations and instead relied on the 4 corners of the complaint
• If it was a SJ motion, the unchallenged allegation would be deemed admitted
• But, since this is MTD affidavits aren’t looked at and ct looks only to the complaint and P’s case was ok

Back 151

• Illustrates difference btw motion to dismiss & motion for SJ
• RULE/Held: Motion to dismiss for failure to state cause of action is limited to face of the complaint/counterclaim. Party seeking to dismiss can’t use outside info (affidavits) to support its decision even though CPLR says you can

Prof. says that he would have filed a motion for SJ after the issue has been joined (i.e. after answer provided)

Front 152

The Motion for Summary Judgment, When Granted: Ugarriza v. Schmieder.

Facts: P was passenger and sued owner and driver. Driver hit a barrier and P was hurt. Driver was turning around in a parking lot. Parking lot was not lit w/ no visible markings. P agreed that Driver was alert and paying attention and that the concrete barrier was short and unpainted and suddenly appeared and agree that driver was sober.
• P claims that hitting a divider is as a matter of law negligent

Issue: whether plaintiff in this automobile negligence action is entitled to SJ on the issue of liability, or whether there exist genuine and substantial triable issues of fact which serve to preclude SJ.

Back 152

• RULE/Held: Not negligent as a matter of law unless there is no other possible explanation. This is a case for the jury: whether conduct constitutes negligence is a question of fact b/c court cannot say as a matter of law that D's conduct fell far below the standard of reasonableness under the circumstances.
• Different from another case that P uses to support bc in that case is that driver looked in her purse

You cannot say as a matter of law that D was negligent. You couldn't say that D's conduct was so unreasonable that P was entitled to SJ.

This is not like the Andre case where driver took her eyes off the road to look down at her purse.

Front 153

Commencing an Action by a Motion for Summary Judgment: CPLR 3213: Weissman v. Sinorm Deli, Inc.


Facts: P and 5 Ds were all shareholders in a deli and had differences and decided to have a company buyout P. P got some $ at closing and gave up its shares and gave buyer a $200k promissory note. Agreement is secured. K also had default provision for 10 days cure period to make payment and if not met P could accelerate entire amt. Indemnification allowed Ds to indemnify P for any breaches or reps and warranties. Buyer defaulted and didn’t cure and P accelerated the loan and filed under 3213.
• Corp didn’t defend motion for SJ. Individual Ds cross moved for SJ—Indemnity is not a personal guarantee of the loan—it is only a promise to pay if default arises on any breach of reps or warranties.

Issue: Is the indemnification sued on an "instrument for the payment of money only" within 3213?

Is the indemnification a guaranty by the individual d's of the corp's obligation?

Back 153

• RULE/Held: If there is an unconditional guarantee to pay, then that’s clear under 3213. But, if guarantee requires D to do anything else other than pay, then not subject to 3213.
o No writing saying D will pay promissory note if corp doesn’t not
o No indication or obligation of indemnity clause
• D wins—

• Rule: Provision allowing for motion of summary judgment in lieu of complaint, when suit involves "an instrument for the payment of money only or a judgment," may be used only if prima facie case would be made out by instrument and failure to make payments called for by its terms. McKinney's CPLR 3213.

Front 154

Judgment by Default: Reynolds Securities, Inc. v. Underwriters Bank & Trust Co.

action by brokerage firm to recover difference between amount it had received for stock ordered sold by defendant and money it had expended, inclusive of commissions, to purchase stock to cover the sales when defendant failed to deliver certificates for transfer to the buyers, the securities having appreciated in the interim, default judgment obtained as a result of defendant's willful refusal to comply with discovery orders.

Issue: whether a default judgment, obtained as a result of a willful refusal to comply with discovery orders, was properly entered for the full amount of the ad damnum without the holding of an inquest to assess the damages.

Back 154

Holding: Judgment was improperly entered for the full amount of the ad damnum without holding inquest to assess damages where damages sought could not be determined without extrinsic proof of the reasonableness of the time which broker permitted to elapse before making the cover purchases and the correctness of the calculation of commissions

Front 155

Res Judicata: Claim Preclusion. Gowan v. Tully.

Facts: petitioners are former part-time estate tax attorneys in the noncompetitive class of the civil service in the State Department of Taxation and Finance. They brought this proceeding udner CPLR article 78 for reinstatement to the positions from which they had been removed by respondent commissioner. They appeal from an order of the Appellate Division which affirmed the dismissal of their petition on grounds of res judicator. An earlier petition seeking the same relief had resulted in a final judgment for respondent.

Issue: whether petitioners may escape the doctrine of res judicator by tendering an additional basis for finding their dismissals illegal, namely, that the dismissals were patronage dismissals made in bad faith in contravention of the Supreme Court's intervening decision in Elrod v. Burns.

Back 155

Holding: THe conclusive effect of a final disposition is not to be disturbed by a subsequent change in decisional law.

Analysis: Many of his legal theories (the specific patronage claim, not just the general Nolan bad faith claim) could have been brought in Nolan, but weren’t, so he can’t raise them now. Though not identical, they arose out of same series of transactions

Rule: If judgment for D, P’s claim, or anyone in privity with P, is extinguished and the judgment bars another action on that claim.

Front 156

Claim Preclusion: Matter of Hodes v. Axelrod.

Facts: petitioners Hodes and Herman, owners of a nursing home, were convicted of Medicaid fraud in April, 1979. The Department of Health pursuant to a hearing revoked their nursing home operating certificate; but it was determined on appeal that a provision in the Correction Law barring automatic license revocations based on conviction prevented the revocation. The Public Health Law and the COrrection Law were promptly amended by the Legislature to eliminate the conflict, whereupon the Department of Health commenced a second proceeding to revoke petitioner's certificate. The IAS court enjoined the proceeding on res judicator grounds and a divided Appellate Division affirmed, the majority finding that petitioners had a vested property right in the first determination.

Issue: whether the doctrine of vested rights or res judicator bars a second administrative proceeding - where the first has failed - for automatic revocation of petitioners' nursing home operating certificate owing to their industry-related felony convictions.

Back 156

Holding: the vested rights doctrine does not preclude application of the amended statute to these petitioners. Res judicata, as well, does not bar application of the amended statute to these petitioners b/c the amendment materially changed the parties' rights such that the new request was independent from the first and thus a wholly distinct transaction.

Front 157

Rule 3211. Motion to dismiss

Back 157

(a) Motion to dismiss cause of action. A party may move for judgment dismissing one or more causes of action asserted against him on the ground that:
1. a defense is founded upon documentary evidence(i.e. cancelled check); or
2. the court has not jurisdiction of the subject matter of the cause of action; or
4. there is another action pending between the same parties for the same cause of action in a court of any state or the United States; the court need not dismiss upon this ground but may make such order as justice requires; or
5. the cause of action may not be maintained because of arbitration and award, collateral estoppel, discharge in bankruptcy, infancy or other disability of the moving party, payment, release, res judicata, statute of limitations, or statute of frauds; or
6. with respect to a counterclaim, it may not properly be interposed in the action; or
7. the pleading fails to state a cause of action; or
8. the court has not jurisdiction of the person of the defendant; or
10. the court should not proceed in the absence of a person who should be a party.

(b) Motion to dismiss defense. A party may move for judgment dismissing one or more defenses, on the ground that a defense is not stated or has no merit.
(c) Evidence permitted; immediate trial; motion treated as one for summary judgment. Upon the hearing of a motion made under subdivision (a) or (b), either party may submit any evidence that could properly be considered on a motion for summary judgment. Whether or not issue has been joined, the court, after adequate notice to the parties, may treat the motion as a motion for summary judgment. The court may, when appropriate for the expeditious disposition of the controversy, order immediate trial of the issues raised on the motion. ( Motions should all be made at once, except these can be made later: 1)subject matter, 2) failure to state a cause of action, 3)necessity of party)
(d) Facts unavailable to opposing party. Should it appear from affidavits submitted in opposition to a motion made under subdivision (a) or (b) that facts essential to justify opposition may exist but cannot then be stated, the court may deny the motion, allowing the moving party to assert the objection in his responsive pleading, if any, or may order a continuance to permit further affidavits to be obtained or disclosure to be had and may make such other order as may be just.
(e) Number, time and waiver of objections; motion to plead over. At any time before service of the responsive pleading is required, a party may move on one or more of the grounds set forth in subdivision (a), and no more than one such motion shall be permitted. Any objection or defense based upon a ground set forth in paragraphs one, three, four, five and six of subdivision (a) is waived unless raised either by such motion or in the responsive pleading. A motion based upon a ground specified in paragraph two, seven or ten of subdivision (a) may be made at any subsequent time or in a later pleading, if one is permitted; an objection that the summons and complaint, summons with notice, or notice of petition and petition was not properly served is waived if, having raised such an objection in a pleading, the objecting party does not move for judgment on that ground within sixty days after serving the pleading, unless the court extends the time upon the ground of undue hardship.

Front 158

Rule 3212. Motion for summary judgment

Back 158

(a) Time; kind of action. Any party may move for summary judgment in any action, after issue has been joined;
(b) Supporting proof; grounds; relief to either party. A motion for summary judgment shall be supported by affidavit, by a copy of the pleadings and by other available proof, such as depositions and written admissions. The affidavit shall be by a person having knowledge of the facts; it shall recite all the material facts; and it shall show that there is no defense to the cause of action or that the cause of action or defense has no merit. The motion shall be granted if, upon all the papers and proof submitted, the cause of action or defense shall be established sufficiently to warrant the court as a matter of law in directing judgment in favor of any party. Except as provided in subdivision (c) of this rule the motion shall be denied if any party shall show facts sufficient to require a trial of any issue of fact. If it shall appear that any party other than the moving party is entitled to a summary judgment, the court may grant such judgment without the necessity of a cross-motion.

(f) Facts unavailable to opposing party. Should it appear from affidavits submitted in opposition to the motion that facts essential to justify opposition may exist but cannot then be stated, the court may deny the motion or may order a continuance to permit affidavits to be obtained or disclosure to be had and may make such other order as may be just.

Front 159

§ 3213. Motion for summary judgment in lieu of complaint

Back 159

When an action is based upon an instrument for the payment of money only or upon any judgment, the plaintiff may serve with the summons a notice of motion for summary judgment and the supporting papers in lieu of a complaint. The summons served with such motion papers shall require the defendant to submit answering papers on the motion within the time provided in the notice of motion.

Front 160

§ 3215. Default judgment

Back 160

(a) Default and entry. When a defendant has failed to appear, plead or proceed to trial of an action reached and called for trial, or when the court orders a dismissal for any other neglect to proceed, the plaintiff may seek a default judgment against him. If the plaintiff's claim is for a sum certain or for a sum which can by computation be made certain, application may be made to the clerk within one year after the default. The clerk, upon submission of the requisite proof, shall enter judgment for the amount demanded in the complaint or stated in the notice served pursuant to subdivision (b) of rule 305, plus costs and interest. When a plaintiff has failed to proceed to trial of an action reached and called for trial, or when the court orders a dismissal for any other neglect to proceed, the defendant may make application to the clerk within one year after the default and the clerk, upon submission of the requisite proof, shall enter judgment for costs. Where the case is not one in which the clerk can enter judgment, the plaintiff shall apply to the court for judgment.
(b) Procedure before court. The court, with or without a jury, may make an assessment or take an account or proof, or may direct a reference. When a reference is directed, the court may direct that the report be returned to it for further action or, except where otherwise prescribed by law, that judgment be entered by the clerk in accordance with the report without any further application. Except in a matrimonial action, no finding of fact in writing shall be necessary to the entry of a judgment on default. The judgment shall not exceed in amount or differ in type from that demanded in the complaint or stated in the notice served pursuant to subdivision (b) of rule 305.

(f) Proof. On any application for judgment by default, the applicant shall file proof of service of the summons and the complaint, or a summons and notice served pursuant to subdivision (b) of rule 305 or subdivision (a) of rule 316 of this chapter, and proof of the facts constituting the claim, the default and the amount due by affidavit made by the party. Where a verified complaint has been served, it may be used as the affidavit of the facts constituting the claim and the amount due. When jurisdiction is based on an attachment of property, the affidavit must state that an order of attachment granted in the action has been levied on the property of the defendant, describe the property and state its value.

Front 161

§ 3218(a) & (b). Judgment by confession

Back 161

(a) Affidavit of defendant. Except as provided in section thirty-two hundred one, a judgment by confession may be entered, without an action, either for money due or to become due, or to secure the plaintiff against a contingent liability in behalf of the defendant, or both, upon an affidavit executed by the defendant;
1. stating the sum for which judgment may be entered, authorizing the entry of judgment, and stating the county where the defendant resides or if he is a non-resident, the county in which entry is authorized;
2. if the judgment to be confessed is for money due or to become due, stating concisely the facts out of which the debt arose and showing that the sum confessed is justly due or to become due; and
3. if the judgment to be confessed is for the purpose of securing the plaintiff against a contingent liability, stating concisely the facts constituting the liability and showing that the sum confessed does not exceed the amount of the liability.

Ex: if you settle out of court and are afraid that D still won't pay, you can have them confess that judgment is entered against them if they don't pay settlement amount.

Front 162

Rule 3214. Motions heard by judge supervising disclosure; stay of disclosure

Back 162

(b) Stay of disclosure. Service of a notice of motion under rule 3211, 3212, or section 3213 stays disclosure until determination of the motion unless the court orders otherwise. If the motion is based solely on the defense that the summons and complaint, summons with notice, or notice of petition and petition was not properly served, disclosure shall not be stayed unless the court orders otherwise.

Front 163

Rule 5015. Relief from judgment or order

Back 163

(a) On motion. The court which rendered a judgment or order may relieve a party from it upon such terms as may be just, on motion of any interested person with such notice as the court may direct, upon the ground of:
1. excusable default, if such motion is made within one year after service of a copy of the judgment or order with written notice of its entry upon the moving party, or, if the moving party has entered the judgment or order, within one year after such entry; or
2. newly-discovered evidence which, if introduced at the trial, would probably have produced a different result and which could not have been discovered in time to move for a new trial under section 4404; or
3. fraud, misrepresentation, or other misconduct of an adverse party; or
4. lack of jurisdiction to render the judgment or order; or
5. reversal, modification or vacatur of a prior judgment or order upon which it is based.

Front 164

Claim Preclusion: O'Brien v. City of Syracuse

Facts: P argues that city seized his land in the first action under a de facto appropriation. Once that was dismissed P brought another action for trespass.

Back 164

Holding: Once a claim is brought to a final conclusion, all other claims arising out of the same transaction or series of transactions are barred, even if based upon different theories or if seeking a different remedy.

Front 165

Matrimonia Torts Excepton for Res Judicata: Xiao Yang Chen v. Fischer

W sues H for divorce. W claims cruel and unusual treatment. H counter-claims and alleges cruel and unusual treatment. This claim was withdrawn. Entered into a final judgment for divorce. Then brought tort action in subsequent action.

Issue: Can the wife bring this tort action subsequent to a final judgment for divorce.

Back 165

Holding: For reasons of public policy, a spouse's tort claim for damages against the other spouse for acts of cruelty is not merged in a prior judgment of divorce based on the same facts.

If the spouses were required by the "same transaction" doctrine to litigate related tort claims in the divorce proceeding, a divorce action would become unduly complicated, emotional damage could be worsened, and dissolution of the marriage and resolution of child custody could be delayed.

Front 166

Torts Cases for Issue Preclusion: Kaufman v. Eli Lilly and Co.

Issue: whether Eli Lilly is precluded from relitigating those issues, such as whether DES was reasonably safe, that were determined against it in the earlier case of Bichler v. Eli Lilly, because the "legal theory in both actions is the same and because there are no significant factual differences between them."

Back 166

Rule: The requirements for issue preclusion are:
1) the issue as to which preclusion is sought must be identical with the issue decided in the prior proceeding; and
2) the issue must have been necessary to the decision in the prior proceeding; and
3) the litigant who will be held precluded in the present proceeding must have had a full and fair opportunity to litigate the issue in the prior proceeding.

An issue is not actually litigated if:
1) there has been a default,
2) a confession of liability,
3) a failure to place a matter in issue by proper pleading or even b/c of a stipulation
4) evidence of a jury compromise(shaky grounds)

Holding: as to the issue of concerted action of liability, the Court doesn't apply collateral estoppel b/c Lilly did not challenge the appropriateness of this theory and therefore it was not actually litigated. However, as to the other 6 issues the court held barred by res judicator.

If Lilly one in the first case, Lilly would not be able to use defensive estoppel. So offensive estoppel is a one way street b/c second D would not have had their day in Court.

Front 167

Identity of Issue in Issue Preclusion: O'Connor v. State of New York

Facts: Claimant's decedent was crossing a street on the State Office Building Campus in Albany in a marked pedestrian crosswalk when he was struck and killed by a bicyclist involved in a time trial. Claimant sued the cyclist and others involved in the time trial in Supreme Court, where damages were assessed at $980,000 and comparative negligence was found to be 60%. The claimant then commenced this action against the State in the Court of Claims, where the court found that the decedent and the State were each 50% at fault and assessed damages at $680,870. The Appellate Division affirmed the Court of Claims order, from which the State now appeals.

Back 167

Collateral estoppel is, therefore, inapplicable (1) because the issues of decedent's comparative negligence with respect to the defendants in the Supreme Court action and with respect to the later proceeding against the State in the Court of Claims are discrete, not identical; and (2) because, in any event, claimant never had a full and fair opportunity to litigate decedent's comparative negligence in relationship to the State

Also, Prof says that claimant had to see in different courts and could not raise the issue of contr. negligé. against the state in the first action.

Front 168

Identity of Issue in Issue Preclusion: O'Connor v. G & R Packing Co.

Facts: Previous holding was phrased in terms of P's status as a trespasser, and the cases cited in support of the holding all concerned the duty of a landowner to a trespasser, there can be no question that the essence of the ruling was that no breach of duty had been proved.

Back 168

Rule: Issue preclusion is available to protect a D who was not a party to an earlier lawsuit from the relitigation of an issue considered alternatively in the prior trial only when it is clear that the prior determination squarely addressed and specifically decided the issue.

Holdings: None of the cases cited in the previous action concerned contributory negligence, nor does the language used indicate taht consideration had been given to P's age, experience, intelligence, and degree of development. Litigation of the "contributory negligence" issue is not precluded by such a nonspecific nonfactual determination in the previous action.

B/c judge didn't use the words "contributory negligence" in the first case, the issue was not precluded in the second action.

This case is old law, prior to rule 1411.

Front 169

Identity of Issue in Issue Preclusion: Weiss v. Manfredi

Facts: P commenced this action against D attorneys seeking damages for legal malpractice and fraud in connection with settlement in previous action.

Back 169

Holding: In the prior action to vacate the settlement, the sole issue necessarily decided was that - as between P and the settling defendants (the premises owner and decedent's employer) - there was no fraud, collusion, mistake or acdident to vitiate the settlement.

At issue in the current action for legal malpractice, by contrast, is whether D attorneys were negligent in their misrepresentation of P.

Because there is no identity of issue, P is not collaterally estopped in this action. Just because settlement was deemed adequate in prior action doesn't mean that there wasn't malpractice.

Front 170

A Full and Fair Opportunity to be Heard: Gilberg v Barbieri

First suit:

Gilberg filed a criminal complaint charging Barbieri with harassment, a petty offense the city court found Barbieri guilty

Second suit:

Barbieri then sought $250,000 in a civil suit for damages
Gilberg moved for summary judgement arguing the City Court ruling estopped Barbieri's denial of liability

Issue: whether a conviction for the petty offense of harassment can later be used to preclude the D from disputing the merits of a civil suit for assault, involving the same incident and seeking $250,000 in damages.

Back 170

Holding: although nominally a criminal trial, the D was not actually charged with committing a crime. He was just charged with a violation. B/c of the relative insignificance of the charge, the D had no constitutional or statutory right to a jury trial, as he would have in a true criminal prosecution and did not have reason to vigorously defend his position. Thus it is not unfair to permit him one opportunity to fully defend the civil complaint on the merits in a manner consistent with the potential magnitude of the suit.

Rule: these minor suits are under accepted common-law principles should not be held conclusive in later cases.

Front 171

A Full and Fair Opportunity to be Heard: Koch v. Consolidated Edison Co. of N.Y.

Facts: G, a grocer sues a major public utility for food spoilage resulting from a widespread power blackout, seeking $75,000 in property damages. G proves the utility was grossly negligent and recovers damages. P then sues the utility for her personal injuries incurred during the blackout.

Back 171

Holding: P, and all others damaged by the blackout, are entitled to affirmative use of G's judgment as an estoppel against the utility on the issue of its gross negligence.

Similar to Eli Lilly case.

Front 172

The Privity Problem: Buechel v. Bain


Issue: whether D's - parties in the Rhodes action who were not named in the P's counterclaim - should, nevertheless, be bound by the determination rescinding the trust.

Back 172

Holding: b/c for the purposes of collateral estoppel, D's were in privity with their former law partner Rhodes as to the validity of the fee arrangements, we conclude they should be bound.

Front 173

Person sues police. Then brings another action for damages.

Back 173

A mandamus suit which has limited jurisdiction, you can bring a suit later for relief based on a COA arising out of same occurrences

Front 174

If a case is dismissed b/c of SOL, you can bring a second suit for breach of contract.

Is the dismisal of first suit preclusive of second suit under Res Judicata?

Back 174

Smith v. Russel Sage College applies res judicator to this scenario.

COA thinks SOL is close to dismissing a case on the merits.

(i.e. Dismissal for lack of PJ is not on the merits, dismissal for lack of cause of action is on the merits)

Front 175

Meagan S.

Paternity suit dismissed on grounds of SOL. Then legislature changed the statute.

Back 175

Court says not barred by res judicator.