Study your flashcards anywhere!

Download the official Cram app for free >

  • Shuffle
    Toggle On
    Toggle Off
  • Alphabetize
    Toggle On
    Toggle Off
  • Front First
    Toggle On
    Toggle Off
  • Both Sides
    Toggle On
    Toggle Off
  • Read
    Toggle On
    Toggle Off
Reading...
Front

How to study your flashcards.

Right/Left arrow keys: Navigate between flashcards.right arrow keyleft arrow key

Up/Down arrow keys: Flip the card between the front and back.down keyup key

H key: Show hint (3rd side).h key

A key: Read text to speech.a key

image

Play button

image

Play button

image

Progress

1/147

Click to flip

147 Cards in this Set

  • Front
  • Back
Subject Matter Jurisdiction: Competence
• court must have Subject matter jurisdicition (competence) to hear type of controversy before it
• court of general, original SMJ is a trial court with the power to hear any type of action
NY Supreme Court most important trial court in NY
• NY Supreme Court only court in NY with general subject matter jurisdiction
• Any NY Supreme Court has jurisdiction statewide, county does not matter
• NY Supreme Court only court unlimited monetary jurisdiction (no max or minimum)
• NY Supreme Court only court with full equity jurisdiction (ex. specific performance)
NY Supreme Court has exclusive subject matter jurisdiction
• Matrimonial Actions (divorce, separation, annulment)
• CPLR Article 78 proceedings (judicial review of administrative action)
• Declaratory Judgment Actions (judicial declaration of rights of the parties to an actual controversy before one of them engages in conduct that could cause liability)
Exception to NY Supreme Court's Jurisdiction
• Cases where Federal Law confers exclusive jurisdiction on federal courts (ex. patents)
• Claims for money damages in tort or contract against State of New York
NY Court of Claims
• only court in which State of New York can be sued for torts or contracts
• only defendant in court of claims is State of New York (not employees/the state)
• normally sue all parties in one court if suit arises same transaction (exception: separate out New York and sue it in Court of Claims, other party other court)
• government subvisions (counties, school districts) are not the State of New York
All Other NY Courts
• have limited monetary jurisdiction (maximum of 3,000 in Justice Courts)
• for example: $25,000 maximum in County Court & NYC Civil Courts
Appellate Courts in NY
• NY Supreme Court (most important trial court)
• NY Appellate Division (intermediate appellate court)
• NY Court of Appeals (highest appellate court in New York)
Statue of Limitations: General Concepts
• affirmative defense based on passage of time raised by defendant
• SOL begins to run when cause of action accrues (when injury occurs)
o For personal/property injury, date of physical impact (injury)
o For breach of contract, date of the breach of contract
• In New York discovery of injury not accrual point.
• SOL Begins to run even if unaware of injury or breach.
• Infant injured in utero has no cause action unless child born alive (run date of birth)
Statue of Limitations: Commencement
• action must be commenced no later than last day of prescribed limitations period
o example: June 1, 2002 > 3 year SOL > June 1, 2005 (last day to commence)
• commence consists of Filling Process (summons & complaint or summons w/ notice)
• filling must occur on or before last day of SOL (same as commencement rule)
o exception Justice CT where process must be served on D on or before last day
• last day is Saturday, Sunday or public holiday, then plaintiff has till next business day
Most Important Statue of Limitations Periods
• 20 Years
o Action on Judgment
• 10 Years
o Action to Recovery Realty (same as adverse possession)
o Action by Crime Victim against convicted defendant for serious crime
• 7 Years
o Action by Crime Victim against convicted defendant for any crime
• 6 Years
o Contracts, express or implied (other than UCC Article 2 – Sales)
o Indemnity and Contributions
o Fraud
o Equity Actions (rescission, reformation, accounting)
• 4 Years
o Contracts Governed by UCC Article 2 – Sales
• 3 Years
o Personal injury based on negligence & strict products liability
o Property damage, including conversion & replevin
o Professional malpractice, other than medical malpractice
• 2 1/2 Years
o Medical, dental and podiatric malpractice
• 2 Years
o Wrongful Death
• 1 Year
o Intentional Torts (ex. assault, battery, false imprisonment, defamation)
• 4 Months
o Article 78 Proceedings
Statue of Limitations: Medical Malpractice
• 2 1/2 period from date of malpractice (doctors, dentists, podiatrist, nurses, hospitals)
• Date of discovery of medical malpractice is irrelevant
• Hospital are vicariously liable for employees (doctors/nurses) using this 2 1/2 period
• If hospital sued under separate theory of liability (negligent hiring) apply 3 year rule
Statue of Limitations: Medical Malpractice Exceptions: Continuous Treatment Rule
o plaintiff gets 2 1/2 years from termination of continuous treatment
o continuous treatment must relate to original condition give rise to malpractice
Statue of Limitations: Medical Malpractice Exceptions: Foreign Object Rule
o when doctor is responsible for introducing a foreign object into body
o foreign object is something doctor did not intend to leave behind (ex. sponges)
o following are not: chemical substance (medicine), prosthetic, fixation device
o failure to detect something already in the body not covered (must introduce it)
o plaintiff gets two options (P takes option that is longer)

2 1/2 years from date of operation OR

1 year P discovered or w/ reasonable diligence should have discovered
Statue of Limitations: Other Professional Malpractice (members of learned professions)
example: architects, engineers, accountants, attorneys, not insurance brokers

• client's cause of action for malpractice has 3 year SOL & runs from the termination of particular services which malpractice occurred (ex. architect date house is completed)
• attorneys, accountants & architects also subject doctrine of continuous representation
• SOL period is 3 years regardless if underlying theory based on contracts or torts
Statue of Limitations: Architects & Engineers
• If building collapses (past SOL), injured persons can sue architect (responsible tort feasor) up to 3 years after bodily injury occurs (different injury involved/independent)
• there is no time limit for suing architect or engineer for personal injuries legislation imposes this procedural framework if more than 10 years after building completed
o plaintiff must serve notice of claim on A or E at least 90 days before suit
o plaintiff may obtain discovery from potential D during 90 day waiting period
o after suit is commenced, if P moves for summary judgment, burden will be on D to make immediate evidentiary showing there is "substantial basis" to believe D's negligence was the proximate cause of the injuries
Statue of Limitations: Products Liability
• when defective widgets cause personal injuries, P has three possible cause of action
• as matter of pleading, P can assert all of these causes of actions at the same time
o Negligence
• 3 years SOL from injury against all D's in chain of distribution
o Strict Products Liability
• 3 years SOL from injury against all D's in chain of distribution
o Breach of Warranty
• Governed by UCC. Each defendant is treated independently.
• 4 year SOL runs when particular D made its sale of product
Statue of Limitations: Indemnity and Contribution
6 years from payment of judgment (for which indemnity or contribution sought)
Statue of Limitations: Discovery Rules in Cases of Exposure to Toxic Substances
• inherently harmful toxin w/ latent or slow developing effects (ex. asbestos)
• SOL runs on date of injury discovered or should have been by reasonable diligence
• discovery rule for toxic substances inapplicable to claims of medical malpractice
Tolls & Extensions: Tolls for Defendant's Absence
o if D is not in NY when cause of action accrues (occurs), SOL does not begin to run until D comes to NY, OR
o If D is in NY when cause of action accrues, but leaves state and continuously absence for at least 4 months, then toll applies to entire period of absence

Toll for absence not available if P has basis for personal jurisdiction over D such that process can be served validly outside of New York
Tolls & Extensions: Plaintiff's Infancy or Insanity
o Infants (under 18) or Insane plaintiffs may sue within regular SOL through competent adult representative, buy they can also get benefit of a toll
• If P is infant or insane at time cause of action accrues, SOL tolled until disability ends. Parents & spouse do not get toll for derivative claims
o When disability ends, how long does plaintiff have to sue?
• If original SOL 3 years or more, P get 3 years from date disability ends
• If original SOL less than 3 years, period specified by original SOL
o Ten Year Cap for commencement of action in 2 situations
• when relying on infancy toll, claim for medical malpractice must be commenced no later than 10 years from date of accrual (injury)
• run the continuous treatment toll separate from infancy toll
• claims of insane plaintiff, regardless of nature of cause of action, become time barred after 10 years from date of accrual (10 year cap)
Tolls for Death (brought by representatives of estate)
Survival Claim
• any cause of action P could have brought if still alive (not only torts)
• all damages incurred prior to death (ex. pain and suffering)
• get time still remaining on claim or one year from date of death
• must show underlying claim was timely at time of death

Wrongful Death
• a tort claim for pecuniary (economic) damages of decedent's statutory distributees. Punitive damages recoverable but not pain and suffering
• SOL 2 years from Date of Death
• must show underlying claim was timely at time of death

Potential Defendant
• if potential defendant dies any time before SOL expires, 18 months are always added to relevant limitations period (P gets extra 18 months)
Tolls & Exceptions: Six Month Grace Period
o if NY action timely commenced but dismissed before trial and at time of dismissal SOL has expired or has less than 6 months remaining, P gets six months from date of dismissal to re-file the same action and serve process

Exceptions (six month grace period not applicable)
• Dismissal on the Merits
• Voluntary Discontinuance by P (drops suit)
• Plaintiff's Neglect to Prosecute
• Dismissal for Lack of Personal Jurisdiction
o Timely action dismissed from federal district ct NY, does P have 6 months to start over again in NY State Court (depends on reason of dismissal)

due to lack of diversity of citizenship
• yes, b/c diversity relates to subject matter jurisdiction
• no, if dismissal relates to personal jurisdiction
The Borrowing Statue
• if cause of action arises outside of NY, choice law problem if different SOL

if Plaintiff was a non-resident of NY when out-of-state claim arose
o NY will apply SOL of state where claim arose if shorter SOL
o it will apply NY SOL if NY is shorter (prevent forum shopping)

if Plaintiff was a NY resident when the out-of-state claim arose
o NY will always apply NY SOL (regardless if longer or shorter)
Service: Overview
• In addition to SMJ, three additional jurisdictional elements must be satisfied
o Proper Commencement of the Action
o Proper Service of Process on the Defendant
o Proper Basis of Jurisdiction over Person or Property (basis jurisdiction)
Service: Commencement Procedures
• In Justice Courts (an action is commenced by)
o serving process on the defendant
o process is summons/complaint or summons/notice
• In All Other Courts
o action is commenced by filing process
o summons and notice or summons and complaint with court clerk
o called the County Clerk in NY Supreme Court
o filing must be accompanied by payment of fee for an Index Number
Service: Valid Commencement
This is Valid Commencement Provided that:

o process served on D within 120 days from filing
court has discretion to extend 120 days
o P makes showing of good cause OR
o Judge rules it is in Interest of Justice
o Ct has discretion to give more time retroactively

If D wants to challenge, has to make motion to dismiss for untimely service
Forms of Process

(initiatory paper that invoke court's jurisdiction)
• Summons and Complaint
o summons advices D that P is suing in particular court
o complain is P's pleading, spells out elements of cause of action
• OR Summons with Notice
a Notice consists of:
• brief statement of nature of action
• specify nature of relief being sought (injunction or damages)
• specify the amount of damages (if seeking damages)
o personal injury or wrongful death claim not allow to specify damages
• Consequence of Filing Naked Summons (unaccompanied by complaint or notice)
• Considered defect. Impersonal jurisdiction & subject to dismissal
• D must make a timely jurisdictional objection
Methods of Serving Process: Basic Points
• Process may be served any person at least 18 years old, provided not a party to action
• Process may be served on any day of the week except
• Sunday
• If D is Saturday-Sabbath observer and P knows. Innocent service not a defect
• Services on a holiday, if does not fall on Sunday, is allowed (Thanksgiving)
• Defective service is grounds for dismissal. Statue must be followed strictly
Methods of Serving Process: Natural Persons – Traditional Methods
Personal Delivery to D

Leave and Mail

Affixing and Mailing ("Nail and Mail")
Personal Delivery to D
• service by personal service directly to D is complete
• must not be through go-between (personal delivery required)
Leave and Mail
• may deliver process to person of suitable age and discretion at defendant's actual dwelling place or actual place of business plus mail a copy by regular mail to defendant at defendant's place of business or last known residence
• two service steps must be performed within 20 days of each other & 120
• multiple copies of process must be left and mailed if multiple defendants
Affixing and Mailing ("Nail and Mail")
• process server may affix process to the door of defendant's actual dwelling place or actual place of business plus mail a copy by regular mail to defendant at defendant's actual place of business or last known residence
• two service steps must be performed within 20 days of each other & 120
• process server must first exercise due diligence in attempting to serve defendant direct or leaving process with a person of suitable age & discretion

For leave and mail and nail and mail, service is complete 10 days after proof of service filed. This is when D's response time will begin to run (fail to file proof of service not jurisdictional defect, not grounds dismissal, delays D's response time)
Natural Person Service: Expedient Service
if foregoing methods not practicable, p may make motion to court for order allowing an improvised method (reasonable alternative) (ex. service via email)
Natural Person Service: Agent Specifically Designated by D to Receive Process
in written commercial contract, party may specify agent upon whom process may be serviced in dispute arising from contract
Natural Person Service: Infants and the Mentally Incapacitated
when D is infant, D's name on summons but process served on eligible adult
o Child's Parents
o Child's Guardian
o Any Person having Legal Custody
o If Infant's Adult Spouse (if resides w/ them)

o if infant 14 or over, must serve on eligible adult and infant
o when mentally incapacitated person whom court has appointed a guardian, process must be served on the guardian and the incapacitated person
Natural Person Service: Service Outside New York
• Same methods used to serve D within NY are used when D located outside NY
• Who may serve process in the other jurisdiction?
• any NY resident who is authorized under NY Law (NY process server)
• anyone authorized to serve process in jurisdiction where service made
• any attorney in other jurisdiction where service is made
Corporations – Traditional Methods of Service
Personal Delivery to any one of the following (anywhere in the United States)

• Officer of Corporation
• Director of Corporation (Board of Directors)
• Designated Agent
• Managing Agent (any corporate employee with supervisory responsibility)
Leave and mail and nail and mail not valid. Personal delivery is required.
• Service on the NY Secretary of State
Corporations – Traditional Methods of Service: Domestic Corporation or Authorized Foreign Corporation
For domestic corporation (incorporated in NY) or foreign corporation authorized to do business in NY (not incorporated in NY):

• personally delivery 2 copies of process to NY Secretary of State
• secretary is designated agent per certification of incorporation
Corporations – Traditional Methods of Service: Unlicensed Foreign Corporation
• personally delivery one copy to NY Secretary of State
• AND P mail one copy to corporation by certified mail w/ return receipt
Non-Traditional Methods: Available to all types of D's

(Except N/A Infants & Mentals)
Service by First Class Mail Plus Acknowledgment

• mail process to D by first class mail w/ 2 copies of acknowledgment form
• service effective only if D signs and returns one acknowledgment form
• if D does not sign, P has to re-serve with traditional method (D must pay)
• service by mail may be used regardless of whether D in NY or person or corporation
• D's return of acknowledgment not concession court has jurisdiction (may make motion or an answer, D is merely acknowledging receipt not conceding jurisdiction)
Personal Jurisdiction

(basis for jurisdiction over D's person)
enables judgment for money damages enforced in full

• territorial connection between defendant and the State of New York
General Jurisdiction
jurisdiction for any cause of action, regardless of where it arose:

• D's Presence in NY
• D Doing Business in NY
• D's Domicile in NY
Specific Jurisdiction
jurisdiction over claim related specifically to jurisdiction of NY

• Long-Arm Jurisdiction
• Non-Resident Motorist Statue
• Consent to Jurisdiction
General Jurisidiction: Personal Delivery to D while D is Physically Present in NY
• physical presence at time of service is valid basis of personal jurisdiction
• any cause of action regardless of where it arose (nothing to do with NY)
General Jurisidiction: "Doing Business" in NY
Domestic corporation and foreign corporation authorized to do business in N Yare subject to personal jurisdiction in NY on any claim, no matter where it arose

Unlicensed foreign corporations present in NY if it is "Doing Business" in NY

Test: at the time the action is commenced, corporation employees or agents are in NY engaging commercial activity on a continuous, regular & systematic basis (ex. corporation maintains office in NY which is continuously staffed)
o Transient physical presence of corporate officer (CEO) in NY is not enough.
o A mere sale of products in NY does not qualify. Advertising is not also not enough (mere solicitation). Need employees continuously present in NY.
• "Doing Business" in NY by foreign corp gives general jurisdiction (sue any claim)
• Doing Business standard usually only necessary if cause of action outside of NY
(if the cause of action arose within the state, long-arm jurisdiction will be available)
• Doing business basis probably be used jurisdiction over individuals & partnerships
General Jurisidiction: Domicile
• D who is domiciliary of NY at time action is commenced
• D can be served w/ process anywhere in United States
• Residence = place person lives fair amount of time (can have multiple residences)
• Domicile = the once resident person intends to remain indefinitely (principal home)
Specific Jurisidicition: Long-Arm Jurisidiction
origins in "minimum contacts" jurisdiction

• NY long arm statue allows out-of-state service conferring personal jurisdiction based on certain specific acts by defendant that have sufficient connection with NY
To obtain long-arm jurisdiction, plaintiff's case must be one of the following categories:
1. Plaintiff's claim arise from a transaction of business by defendant in NY

2. P's claim arises from contract made outside NY in which D's agreed to supply goods or services in NY.

3. Plaintiff's claim arise from D's commission of tortuous act within NY

4. Plaintiff's claim arises from D's tortuous act outside NY which causes injury in NY

5. P's claim arises from defendant's ownership, use or possession of real property in
Long Arm Categories: Plaintiff's claim arise from a transaction of business by defendant in NY
o there needs to be a substantial nexus between P's cause of action and defendant's transaction in NY (example: signing employment contract)
o example: no nexus between negligent driving and NY drivers license
Long Arm Categories: P's claim arises from contract made outside NY in which D's agreed to supply goods or services in NY.
The contract must be economically significant (sizeable quantity)

o a simple one shot telephone order, fax, email, mail coming from out of state buyer is not enough to qualify as business in NY by the buyer
o contract to pay money in NY is not a contract to supply goods or services
Long Arm Categories: Plaintiff's claim arise from D's commission of tortuous act within NY
o Example: driving negligently on NY roadway.
o Exception: defamation is excluded from tortuous act rule (libel or slander)
Long Arm Categories: Plaintiff's claim arises from D's tortuous act outside NY which causes injury in NY
PLUS there exists some additional link between D and NY (one of following)
o D regularly solicits business or other persistent conduct in NY
o D derives substantial revenue from goods or services consumed in NY
o D expects or should reasonably expect act to have consequences in state and derives substantial revenue from interstate or international commerce (interstate commerce must purposefully be directed to NY)
Long Arm Categories: P's claim arises from defendant's ownership, use or possession of real property in NY
o example: slip-and-fall litigation at D's building, D backs out deal to sell house
Medical Care and Long Arm Statue
• Physician's medical services, "inherently local in nature"
• To constitute injury in NY the injury must originate here
General Points about Long-Arm Statue
• it covers all types of defendants
• acts giving rise to jurisdiction can be performed by agent or employee
• evidence if D dies decedent's estate can be served outside NY
• P must use same methods of service on D outside NY as inside NY
Structure for Personal Jurisdiction Essay Question
• First, discuss whether P can establish jurisdiction under any non-long-arm categories
• Second, discuss whether facts of P's case fall within one or more long-arm categories
• Third, briefly discuss whether jurisdiction would satisfy constitutional due process
Long Arm Due Process Test
Test: for long arm jurisdiction, due process is satisfied if P's claim arises out of conduct by D that is so purposefully directed to NY, that D reasonably should anticipated being hailed into NY court
Specific Jurisidiction: Non-Resident Motorist Statue
• confers personal jurisdiction over accident claim arising from nondomiciliary motorist's ownership or use of an auto on a NY roadway

o P serves process on D by personally serving one copy on the NY Secretary of State PLUS mailing copy to D by certified mail to D out-of-state residence
o allow jurisdiction over car owner if car drive in NY with owner's permission
Specific Jurisidiction: Consent to Jurisdiction
parties to a contract may consent in advance to PJ in NY in forum selection clause
Matrimonial Jurisdiction
• Only NY Supreme Court has subject matter jurisdiction over matrimonial actions
• A basis for personal jurisdiction over D is not required for matrimonial jurisdiction
• Personal jurisdiction is required if P spouse is seeking MONETARY SUPPORT
• If P is domiciliary of NY then have In Rem Jurisdiction over marital status in NY
• Cannot serve in matrimonial action by leave & mail or nail & affix w/o court order
Matrimonial Long-Arm Statue
P spouse resident of NY, long-arm jurisdiction over D spouse for monetary support:

• NY was matrimonial domicile of P and D prior to separation OR
• D abandoned P in NY OR
• D's monetary obligation under agreement executed in NY (separation agreement)
• OR D's monetary obligation accrued "under the laws of NY"
Matrimonial Jurisdicition: NY's Durational Residency Requirement
policy rationale: concern over NY becoming Divorce Mill (NV)

In addition to PJ, P spouse must meet condition precedent to a matrimonial action

• if P fails to prove satisfaction of at least one of residence requirements, proper defense is failure to state a cause of action (relates to merits of case not jurisidiction)
Matrimonial Jurisdicition: NY's Durational Residency Requirement: Required Categories
Complaint must allege satisfaction of one of these categories (or dismissed on its merits)

• Both parties are NY resident and grounds for matrimonial action arose in NY
o no period of prior residence is required

• Either party has been NY resident for continuous period of at least 1 year AND NY has PRIOR LINK TO THE MARRIAGE:
o Marriage took place in NY
o NY was matrimonial domicile
o Grounds for action arose in NY

• Either Party has been NY resident for continuous period at least 2 year prior to action
o Sufficient. No need to show any other link to marriage
Venue: Overview
• rule of venue regulate proper county in NY for trial of a Supreme Court action
• plaintiff chooses venue and specifies it in the summons (with the following rules)
Venue: In Action which Judgment
Effects title or possession to real property
• proper venue is county where real property located

In all other actions
• any county in which one party resides at time action commenced
Remedy for Improper Venue
• plaintiff's improper venue not jurisdictional defect (not basis for dismissible)
• defendant must serve a demand plaintiff for change of venue to a proper county
• defendant serves a demand with or before filing an answer
• if plaintiff concedes changes of venue designated by D, then change is automatic
• if plaintiff objects or does not respond, D must make motion for change of venue
• motion granted as matter of right if P chose improper and D designated proper venue
The Answer and Other Pleadings
Two basic pleadings are P's Complaint & D's Answer (respective claims & defenses)
Answer
• d's answer consist of denial of allegations (wishes contest) & any affirmative defenses
• affirmative defenses not raised are waived, if d doesn't deny fact then an admission

Counterclaims
• d may assert own cause action against p in answer as counterclaim
• reply is p's pleading in response to counterclaim (denials and affirmative defenses)
• if there is no counterclaim plaintiff cannot serve a reply without court permission

Cross-Claims
• in multi-defendant case, d may assert cross-claim against any other defendant
• cross-claims asserted in d's answer and can be based on ANY type of claim
• example: car accident claim D and D2, D may cross unrelated breach of K
• each party must serve copy of pleading on all parties in the action
How the Answer and Other Interlocutory Papers are Served
after p's initial services of process (initiatory papers) all other litigation paper are interlocutory papers. This includes d's answer, all other pleadings, motions, etc.
interlocutory papers are served by regular first class mail to attorneys for parties
services of interlocutor paper by mail is deemed made upon mailing not receipt
Time Limits for Serving the Answer
If D served with process by personal delivery within New York
• D must serve answer within 20 days from delivery

If D served with process by First Class Mail Plus Acknowledgment
• D must serve answer within 20 days from D's mailing acknowledgment

If D served with process UNDER ANY OTHER CIRCUMSTANCES
• D must serve answer within 30 days after service is complete
Motion to Dismiss (CPLR 3211)
D may move to dismiss a cause of action prior to answer on several grounds:
(pneumonic: MOTION TO DISMISS IS A DOWNFALL MOTION)

• Documentary Evidence as basis for defense
o mortgage, deed or contract
• Other Action Pending
o between same parties on same cause of action
• Want Of Capacity
o p suing an infant, beneficiary suing on behalf of a trust
• Non-Joinder of Necessary Party
o co-maker of promissory note, joint obligations
• Failure To State a Cause of Action
o even if allegations deemed true, substantive law does not recognize COA
o procedural standard for determining this motion: P is entitled to every favorable inference that can be drawn from allegation of the complaint
o motion should be denied if any basis for relief under substantive law
• Additional Affirmative Defenses (pneumonic: SPARE RIBS DEFENSES)
o Statue of Limitations
o Payment (paid debt)
o Arbitration Award
o Release
o Estoppel (collateral estoppel)
o Res Judicata
o Infancy of Defendant
o Bankruptcy Discharge
o State of Frauds
• Lack of Personal Jurisdiction (three personal jurisdiction defects included)
o commencement defects
o improper services of process
o lack of a basis for jurisdiction
• Lack of Subject Matter Jurisdiction
Motion to Dismiss: Procedural Aspect of pre-answer motion
• Motion is made before service of answer
o on or before last day of time limit for service of answer (20/30 days)
• Making the motion extends D's time to answer
o if motion denied, d must then serve answer within 10 days
• Only Can Make One Pre-Answer Motion to Dismiss but can be on multiple grounds
Motion to Dismiss: Waiver Rules
Motion to Dismiss on any grounds listed in 3211 does not preclude raise any of other grounds in answer (save up defenses not raises & use affirmative defenses in answer)
o Exception: Lack of Personal Jurisdiction (do not raise in 3211, lost it answer)
o Example: Statue of Limitations (saved), Improper Service (waved 3 PJ defect)
How to Preserve Personal Jurisdiction Defenses
• Before serving answer, make 3211 motion including lack of personal jurisdiction
• Make no 3211 motion on any ground and include PJ affirmative D in the answer
• Although pleading improper services of process as defense in answer is proper way to assert jurisdictional objection, objection waived if d does not make follow up motion for summary judgment on this ground within 60 days (not apply to other PJ objection)
Affirmative Defenses Not Raised On Answer are Waived unless an amendment(Defense Exceptions)
Exception: Three Defenses Are Never Waived

• Non-Joinder of a Necessary Party
• Failure to State a Cause of Action
• Lack of Subject Matter Jurisdiction
Amendments of Pleadings
can amend anything including personal jurisdiction objection
Making a Free Amendment
(without judicial permission)
Each party entitled to amend pleading once as matter of right. P can amend complain as matter of right any time up to 20 days after D serves answer. D can amend answer as matter of right up to 20 days after D serves answer
Motion for Leave to Amend
required to amend when free amendment used or expired:

• in general, amendment will be allowed so long as opponent will suffer no incurable prejudice. Opponent must show he suffered detrimental change of position as result of delay of amending (example: evidence/witness losses)
Responses to Summons with Notice
• Serve a Demand for the Complaint
• Serve a Notice of Appearance
D's Time Limit for Serving Demand or Notice of Appearance
• same as initial response to summons & complaint (20/30 days)
• 20 days if D serves personal delivery in NY, 30 days for other circumstances
P's Time Limit to Serve Complaint
• D's service of demand and/or notice of appearance both have the effect of requiring P to serve complaint within 20 days of D's service of demand or notice of appearance
If P Timely Serves Complaint
D has 20 days from such service to either:

o answer or
o make pre-answer motion to dismiss
If P Fails to Meet 20 day Time Limit to serve his Complaint
D may move to dismiss (Neglect to Prosecute)

When Defending Motion, P must show
• Reasonable Excuse for the Delay, AND
• Make evidentiary showing there is merit to P's cause of action (affidavit of merit)
After P Serves complaint, may D still object to court's personal jurisdiction
• neither a demand nor notice of appearance is waiver of jurisdictional objection
• D can still raise lack of personal jurisdiction in answer or preanswer 3211 motion
Third Party Practice (Impleader): General
• Impleader is a procedural device used by defendant to join another party alleged to be liable in whole or part to defendant for damages that defendant may have to pay to P
• The usual claim in these circumstances is for indemnity or contribution
• Impleader enable D to join the other party as a third party defendant (D is 3rd party P)
Impleader Mechanics
Mechanics
o D does not need a court order (no need to make a motion)
o D may implead third party defendant any time after D serves answer to complaint

Steps for Joining Third Party Defendant
o File Summons and Third Party Complaint
o Serve Summons on Third Party D & P within 120 days of filing
Third Party Answer
o Third Party Defendant must serve a third party answer on D & P and all other parties
o Time limit for answer is same as D, 20 or 30 days depending on type of service
o P may make amendment to complaint to claim directly against third party defendant
o P needs no judicial permission 20 days (motion after) after served w 3rd party answer
"Relation Back" Concept
o plaintiff's added claim against third party defendant will be deemed interposed on date D filed the interpleader paper provided p's claim based on same facts as claim
o regardless of when P makes claim, amendment relate back SOL to date D impleaded
o policy: there is no prejudice to third party defendant b/c impleaded within SOL
Indemnity & Contribution
Indemnity Allows One Party to Shift 100% of responsibility to another party:

By Contract
• ex. construction contract where subcontract indemnifies general contractor

Implied-in-law Indemnity
• Products Liability
o retailer liable selling defective product indemnity from manufacturer
• Vicarious Liability Situations
• ex. owner of car vicariously liable to damages by any person who he gives permission to drive car. Owner gets indemnity from driver.
Contribution
• involves sharing of loss (apportionment) among multiple tortfeasor
• six year SOL begins to run from date of payment of judgment for which contribution is sought (when contribution based on med malpractice, six year SOL is followed)
Joint & Several Tort Liability
Under joint & several tort liability (MBE & NY Rule) each tort feasor is liable to plaintiff for full amount of plaintiff's damages regardless of percentage of fault
Contribution is meant to mitigate the harshness of joint and several tort liability
Liability Based on Intentional Torts
MBE: contribution not available

NY Law: contribution allowed in all tort cases
Ways to Assert Claims for Contribution (same for indemnity)
• If P originally joined tortfeasor as co-d's, can assert cross claims against each other
• If P omits a tortfeasor, a D can implead the outside as a third party defendant
• Tortfeasor may sue third party defendant in separate action (problematic)
o Finding of fact (percentage of fault) not binding in separate action
Res Judicata & Collateral Estoppel cannot be used against tort feasor not joined as parties in the first action when suing them in the separate action
Equal Shares Formula of Contribution (Minority View)
• the contribution shares by tort feasors are always equal amount (1/3, 1/3, 1/3)
• Percentage of fault is irrelevant. Only on multistate when explicitly mentioned
Comparative Degrees of Fault (Majority Rule and New York)
amount of contribution which tortfeasor is entitled is the excess actually paid by him over and above his equitable share of the judgment (apply actual percentage of fault)
a party for who contribution sought cannot be compelled to pay more than his own equitable share (for example: seek contribution two parties, one party is bankrupt)
rules of contribution do not change P's right to collect 100% from any tort feasor
(example: collect 100% from d, though d2 and d3 are bankrupt/will not contribute)
Substantive Law of Contribution
• right to contribution exists whenever third party defendant breached duty in tort which contributed to or aggravated the damages which D may be held liable to P.
• third party defendant may be held liable for contribution even when no liability to P.
Contribution: Workers' Compensation Exception
• If employee is injured on job, he cannot sue employer because of worker's compensation law. Employee can sue third person who is partially at fault.
• The third person is barred from seeking contribution from employer unless P sustained a grave injury (death, total loss of arm, leg hand, total blindness, etc)
• The loss of a thumb, loss of tips of middle finger, blindness in one eye not grave
• On Multistate, third person never has right to contribution from p's employer
Settlements in Cases Involving Multiple Tortfeasors
• P's pre-trial release of one tortfeasor in partial satisfaction of a claim does not discharge P's claim against other tortfeasor. Same on Multistate & NY Law.
• Law prohibits excess recovery; any judgment against non-settling tortfeasor will have to be reduced to take account of the settlement. Reduction Formula: any judgment against non-settling tortfeasor must be reduced by either the amount of the settlement or the settling tortfeasor's equitable share of the fault, whichever is larger (risk for P).
• Pre-trial settlement extinguishes contribution claims by & against settling party
• Pre-trial settlements does not extinguish claims for indemnity against settling party
CPLR Article 16
• NY rule modifies law of joint & several tort liability in personal injury claims
• A joint tortfeasor whose fault is 50% or less cannot be required to pay plaintiff more than his equitable share of non-economic damages (51% or more j & several liability)
• to extent D is liable for P only for his own percentage, contribution is eliminated

Important Article 16 Rules:
• Article 16 only applies to personal injury claims and non-economic damages
• Article 16 does not apply in property damages, wrongful death or other actions
Exclusions from Article 16
Following tortfeasors are subject to full joint and several liability for all damages:

• Tortfeasors who acted with intent or reckless disregard
• Tortfeasors liable for releasing hazardous substance into environment
• Drivers and owners of motor vehicles other than police & fire vehicles (owner is NY)
Motion Practice
• Motion is an application for an order of court
• A request for some type of preliminary or incidental relief
Motions on Notice

(Moving party sets return date)
• A motion on notice gives adversary an opportunity to be heard in opposition

What Must be Served
• Must serve notice of motion to other party. Notifies party of nature & timing of motion and supporting affidavits to other party (written statements under oath)

When is the Motion Made
• when motion papers are served on other party or when dropped in mailbox
• day which motion papers presented to court called "return date" (set by moving party)
• moving party must serve motion paper on opponent at least 8 days before return date
• all motion papers (opponent included), must be filed w/ court no later than return date
Order To Show Cause

(Judge sets return date)
Alternative way to make motion on notice. Preliminary order, signed by judge directing adversary to show cause on date specified by judge, why the motion should not be granted. The judge rather than the moving party, is giving the notice of motion

Reasons for Order to Show Cause rather than Notice of Motion:
• Statue Governing Motion requires it
• Accelerates the Return Date where exigent circumstances make 8 day notice too long
• Judge can Grant Immediate Stay of Proceeding or Temporary Restraining Order

Procedure for Order to Show Cause:
• moving party drafts order to show cause and submits to a judge
• Judge will set return date in order and will specify method of service on opponent
• After order to show cause is signed, order and motion papers served on opponent
• Opponent may then submit opposition papers on the return date
Order to Show Cause: Deciding Order and Service of the Order
The Deciding Order
• the court's decision must be in a written ORDER signed by the court
• the prevailing party serves a copy of order on the losing party

Service of the Copy of the Order
• service of the order is necessary in order for order to take effect
• service of copy or order starts running of 30 day time limit to take appeal on order
NY Rule on Appeals of Orders from Motions On Notice
• allows immediate appeal from Supreme Court to Appellate Division as matter of right within 30 days of service of any order that results from a motion on notice
• Federal Rule: only appeals on final judgments. NY allows interlocutory appeals.
Ex Parte Motion
• a motion in which no advance notice given to adversary
• moving party goes straight to court and seeks relief (no opportunity for opposition)
• no appeal can be taken from ex parte order. Make a motion on notice to vacate
• If motion to vacate motion is denied, then can appeal the denial

Types of Ex Parte Motions
• ex parte motions only allowed when express statutory authorization (which is rare)
• ex: motion expedient notice, extension time service of process, provisional remedies
Motion for Summary Judgment
• Purpose for motion to enable party show, before trial, even though pleadings may be sufficient on their face, there is no genuine issue of material fact requiring a trial.
• In New York, motion for summary judgment cannot be made until D serves answer
• After answer, any party can move for summary judgment on any claim in pleadings

Satisfying Burden of Show No Material Issues
• moving party must submit evidence; affidavits, documents or discovery materials
Time Limit for Motion for Summary Judgment
• 120 days time limit from filing of the notice the issue (placing on trial calendar)
• unless moving party shows good cause: good excuse for delay (merits are irrelevant)
Defeating A Motion for Summary Judgment
• opponent must come forward with same type of evidence (depositions, etc)
• to show there is a genuine issue of material facts (triable issues of fact)
• cannot rely on pleadings, pleadings is not evidence it is allegations
• if motion denied, cases goes back on court calendar

If Opponent is not yet able to produce opposing evidence
• court can deny motion or grant continuance to permit evidence to be obtained
"Boomerang Effect" of Summary Judgment
• A motion for summary judgment searches the record, court reviews all evidence
• court may grant summary judge to opponent even if opponent did not make motion
Summary Judgment & Damages
• If only fact is amount of damages (only material fact where there genuine issue)
• Court can do summary judgment on liability & order immediate trial on damages
Pre-Answer Motions for Summary Judgment
In two situations, summary judgment is possible prior to service of the answer:

Defendant's pre-answer motion to dismiss for failure to state a cause of action can be converted by the court into summary judgment (two prerequisites must be satisfied)
• parties must have submitted factual affidavits with motion to dismiss
• court gives notice to parties with opportunity to submit additional evidence


Motion for Summary Judgment in Lieu of a Complaint
• in two types of actions, P may moves for SJ at same time serves process by accompanying the summons with motion papers for summary judgment
o Action on an instrument for payment of money only (promissory note)
o Action on a Out-of-State Judgment
• after filing process with court, p must serve d with summons, a notice of motion for summary judgment with supporting documents and affidavits
o response required no sooner than date D's response service of process
o example: 20 days personal service in NY, 30 days all other methods
Provisional Remedies: Overview
• lawsuits take time to resolve and p's rights may be jeopardized while matter pending
• provisional remedies provide security for P for enforcement of potential judgment
• if P shows grounds for more than one provisional remedy, court has the discretion to require P to elect between those remedies to which he would otherwise be entitled
Types of Provisional Remedies
• Attachment
• Preliminary Injunction
• Temporary Receivership
• Order to Seize Chattel in action to recover chattel (common law: replevin)
• Notice of Pendency
Provisional Remedies Require Court Order
• all provisional remedies require court order (motion practice)
• exception: notice of pendency requires no court order
Attachment
• main purpose is to provide security for enforcement of money judgment
• p obtains order of attachment from court and gives to NY sheriff who levies upon property of d in New York. Levy imposes a lien (freeze) on the property pending outcome of action. Gives p a security interest superior than subsequent lien holder.
• tangible personal property (car) & intangible property (bank account) qualify for levy
• garnishee = 3rd person in NY who owes debt to d or has possession tangible property
Mechanics of Attachment
• sheriff files order of attachment with county clerk in county where property located
• sheriff deliver order of attachment to person in possession of d's property in NY
• delivery is levy and imposes lien, disallowing transfer of property pending litigation
Types of Action Attachment may be Used
Plaintiff must be seeking money damages (OK to join other equitable claims) AND

o D is an unlicensed foreign corporation or a non-domiciliary of NY, OR
o D is about to conceal or remove assets from state with intent to defraud creditors or frustrate the enforcement of the judgment
Procedure of Receiving an Attachment
• Plaintiff must make motion for order of attachment. Required in the motion are:
o affidavits in support show one of two grounds & action for money damages
o affidavits must show probability of success on merits of P's cause of action
o p posts undertaking, indemnify D damages or expenses caused by attachment
• d entitled damages if: attachment is wrongful or D wins case on merits
Additional Requirement must be met to satisfy due process if ex parte motion of Attachment
Additional Requirement must be met to satisfy due process if file ex parte motion
o must be a hearing promptly after the seizure of defendant's property
o d at hearing has opportunity to contest the attachment
o after sheriff levies on property, P must make motion on notice to confirm ex parte order of attachment. This brings on hearing where defendant contests

Motion to Confirm Ex Parte Order
• ex parte order will become automatically void if P fails to make motion to confirm
o If D is unlicensed foreign corporation or non-domiciliary of NY must serve motion paper no later than 10 days after levy (category # 1 for attachment)
o If D is about to conceal assets must serve no later than 5 days after the levy.
Preliminary Injunction
used to maintain status quo while action is pending

Action Preliminary Injunction may be used:
• Equity action which p's complaint seeks EITHER
o permanent injunction OR
o D threatens to harm P's interest in the subject matter of the action
• Action seeking solely money damages not support PI (remedy is attachment)
Procedure for Obtaining Preliminary Injunction
• motion for PI must be made on notice
• motion paper can be served with or after summons and anytime up to final judgments
o P's affidavits show grounds equitable relief including threat irreparable injury
o P must show probability of success on the merits of the cause of action
o P must post an undertaking to indemnify D for damages (wrongfully granted)
Relationship between Temporary Restraining Order and Preliminary Injunction
• In any case involving threat of immediate harm, P may request from court a TRO ex parte. Function of TRO is limited, to maintain status quo until motion for preliminary injunction is decided (short term purpose of the TRO is to maintain status quo)
Procedure for Obtaining Temporary Restraining Order
• P commences an action seeking equitable relief
• P moves by order to show cause for PI to maintain status quo until action resolved
• in order to show cause, p request TRO to obtain immediate injunctive relief pending the outcome of the motion for preliminary injunction (which is a motion on notice)
• Serve order to show cause w/ affidavits. D will be restrained pending resolution of PI
Temporary Receivership
• person appointed by court to manage property in D's possession
• if action seeks solely money damages, temporary receivership unavailable

Types of Actions Available
• P must be asserting equity claim which specific property is subject matter AND
• There is danger that D will injure or destroy value of property while action pending
• Appointment of temporary receiver requires making a motion on notice
Seizure of Chattel (Replevin)
• action which seeks to recover possession of a chattel
• a chattel is a tangible personal property: car, animal, laptop, etc

Function of Seizure
• to insure enforcement of judgment awarding possession of chattel to P
• Sheriff who seizes chattel will retain custody (impoundment)
• chattel could be lost or destroyed while pending (monetary damages for chattel)
Procedure of Seizure of Chattel
• P's affidavits must show probability of success on merits of cause of action
• AND P must give undertaking to indemnify D for loss or damages if wrongful
Special Requirement for Ex Parte Motion of Seizure of Chattel
• P must show threat of immediate loss of chattel AND
• P must make follow-up motion on notice within 5 days of seizure
Notice of Pendency
• in action which judgment will have direct effect on real property, notice of pendency gives record notice to any potential buyer or mortgagees any interest they acquire will be subordinate to that of the plaintiff (gives P a lien on property, title is unmarketable)

Types of Actions May Be Used
• equity action which judgment will direct effect title, possession, use of real property
• in a mortgage foreclosure, the filing of a notice of pendency is statutorily required
Procedure for Notice of Pendency
• P files a notice of pendency with County Clerk of county in NY where real property located. This gives record notice of pendency and gives P a lien on the real property
• Notice of Pendency is only provisional remedy requiring no court order and no bond
• As his remedy to improperly filed, D may make motion to cancel notice of pendency
Time Limits for Notice of Pendency
• is effective for three years after filing
• party can move for three year extension but must be prior to expiration period
• party who lets a notice lapse cannot another notice on same property for same COA
o exception: mortgage foreclosure action may receive notice (second bite)
Placement on Trial Court's Calendar
• when discovery is complete and case is ready for trial matter is placed on trial court's calendar when either party files notice of issue and serves all parties with the notice
• Notice of Issue = is a document saying that court case is ready for trial (either party)
How Does a Party who is entitled to a Jury obtain it
• Party whole files note of issue makes demand for jury trial in the notice of issue
• If filing party makes no demand, then that party waves right to jury
• Other parties (who did not file the notice of issue) must file separate demand for jury
When does a party in a civil action have Right to Trial by Jury
• Action seeking solely money damages
• Seizure of Chattel (Replevin )
• Claim to Real Property
• Annulment of a Marriage
• In Divorce Action, in respect to grounds of divorce (adultery)
Jury Verdict in Civil Action
• a civil jury consists of 6 jurors
• there needs to be 5 out of 6 votes for decision
Res Judicata (claim preclusion)
• purpose is avoidance and prevention of re-litigation on same claim
• NY uses transactional approach. When a claim against a particular D is brought to final judgment on merits all other claimed barred by P if arise out of same transaction
• cannot relitigate is only based on a different theory or a different remedy
• NY Court of Appeals: exception in matrimonial actions involving Domestic Abuse
Collateral Estoppel (Issue Preclusion)
Prevents re-litigation of specific facts were decided in prior proceeding - required :

o Issue in former and current case is identical
o issue was actually litigated and decided in first case
o parties against whom issue preclusion is asserted had full & fail opportunity to litigate issue in the former proceeding (only used against party in prior action)
Special Proceedings: Overview
• a speedy, streamlined procedure, asking to motion practice
• purpose of which is to obtain a judgment as a final resolution of a dispute
• Ex: CPLR Article 78 proceeding, habeas corpus, probate of a will, eviction, etc.
• pursuit of remedy by special proceeding requires specific statutory authorization
Special Proceedings: Procedure
• To commence the petitioner files the petition (analogous to a complaint)
• Petition and notice of petition then must served on respondent (normal methods)
• Notice of Petition advises respondent to serve an answer and appear on return date
• Return date for a special proceeding can be no sooner than 8 days from service
• Can initiate by order to show cause to accelerate return date in exigent circumstances
• Affidavits usually submitted in support of and in apposition to petition on return date
Arbitration: Overview
• arbitration is a private procedure, based on contract for binding resolution of disputes
• arbitrators are not bound by substantive law or rules of evidence
• the scope of judicial review of arbitration and arbitrators is extremely narrow
• the public policy of NY favors arbitration (courts are guided by this principle)
Arbitration: Judicial Gatekeeping
• when one of the parties to arbitration agreement resists, the courts may be called upon to decide threshold issues as to whether arbitration should proceed the following threshold issues:

Did the parties agree to arbitration
o question of contract law
o agreement to arbitrate must be in writing (not req'd signed)
o agreement must be clear, explicit and unequivocal

Is the dispute within the scope of the arbitration clause
o in broad clauses, arbitrators will decide virtually everything

Is the arbitration clause valid
o clause invalid if induced by fraud, duress or coercion
o invalid also when clause is contrary to public policy

Is there express condition precedent to arbitration (has it been complied)
o example: party is required to go to architect before going to arbitration

Statue of Limitations
Arbitration: Doctrine of Severability
• Validity of an arbitration clause is severable from the question of the validity of a contract. Arbitration clause itself must be induced by fraud, coercion, or duress.
• Overall contract may be tainted by fraud, will not undue validity of arbitration clause
Arbitration: How to Bring Threshold Issues to the Court
• In pending action D should make motion to stay the action and compel arbitration
• If proponent files Notice of Intention to Arbitration, shifts burden to opponent to commence a special proceeding for a stay of arbitration (time: 20 days from notice)
Judicial Review of Arbitration Awards
only three grounds for vacating an arbitration award:
o corruption, fraud or misconduct in arbitration proceeding
o bias of an arbitrator who is chosen to be neutral
o arbitrator exceeded his power (NY = no power to award punitive damages)
Article 78 Proceedings
• Article 78 of CPLR authorizes a special proceeding for judicial review of action by government or quasi-governmental (ex. corporations) officers or bodies of any kind
Grounds for Article 78 Proceedings

(common law "prerogative writs")
• Mandamus to Compel
o compel performance of an act required by law
o an act as to which no discretion is involving (refusing to file marriage license)
• Prohibition
o proceeding to stop a judicial officer from exercising power that exceeds officers jurisdiction. Most be gross excess of jurisdiction (double jeopardy)
• Certiorari
o proceeding to challenge results of a "trial-type" hearing (hearing under oath with right of cross-examination) conducted by an administrative agency.
o court shall uphold results if determination supported by substantial evidence
• Mandamus to Review
o proceeding to review any type of administrative action not covered by above
o often review used to challenge agency determination w/o trial type hearing
o court will uphold agency determination unless arbitrary and capricious
Article 78 Proceeding Procedure
• Article 78 proceeding may only be brought in NY Supreme Court
• 4 Month Statue of Limitation running from receipt of notice of act being challenged
• Declaratory or Injective Relief granted. Damages recover if incidental to main relief.

Article 78 > sue State in Supreme Court.

Tort or K damages > sue in NY Ct of Claims