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59 Cards in this Set

  • Front
  • Back
place for suits for money damages against NY
NY Ct of Claims
lower court maxes
county courts $25k; justice courts, $3k
beating the SoL
by filing process, on or before last day (not by serving process)
products liability SoL
Breach of warranty is a UCC claim, so 4 years
Action on judgment SoL
20 years; also co-tenant AP
action to recover realty SoL
10 years (same as AP)
action by crime victim against any convicted D for serious crime SoL
10 years from date of conviction; also 3 year SoL for damages from date of discovery of D's receipt of money or property
action by crime V against convicted D for any crime SoL
7 years from date of crime
contracts SoL
6 years from breach, except UCC art 2
indemnity & contribution SoL
6 years from payment/settlement
fraud SoL
6 years from commission or 2 years from discovery, whichever is longer
equity actions (recission, reformation, accounting) SoL
6 years
contracts SoL for Art 2
4 years from tender of delivery
personal injury by negligence and S/L produts, SoL
3 years from injury, unless toxic substances, then date of discovery
property damage, including conversion and replevin SoL
3 years
professional malpractice, other than med/mal SoL
3 years
med, dental and podiatric mal, SoL
2.5 years; except foreign object discovery, then 1 year
intentional torts to person, SoL
1 year
article 78 proceeding, SoL
4 months
tolling SoL for incapacity
P gets 3 years from end of incapacity or original SoL, whichever is less
survival claim SoL
ANY claim D could have brought himself if alive, then 1 year from date of death, OR time remaining
tolling SoL for D's absence
if D is not in NY when CoA accrues, S/L starts running when he comes back; if D is in NY, but leaves for 4 months, then the tolls the entire period, UNLESS can get personal jurisdx over D anyway
tolling SoL for infancy or insanity
if original SoL was < 3 years, then you get that after disability ends; if ≥ 3yrs, then you get 3 years even; but 10 year max for infancy med/mal and all insanity Ps
tolling SoL for dead Ds
if any D dies, 18 months are added to SoL so you can find the estate
6 month grace period for SoL
if timely commenced, but dismissed b/f trial, you get 6 months grace period unless dismissed on merits; voluntary discontinuance; P's neglect to prosecute; or lack of personal jurisdx
borrowing statute for SoL
if P was non-NY resident, use the shorter period; if P was a NY resident, always use NY
people who may serve process
anyone ≥ 18, if NOT party to the axn; not on Sunday
service on natural persons
1 copy per person, even if H/W; personal delivery; leave and mail with suitable person w/in 20 days of each; Affix and Mail, if first due diligence in attempting to serve D directly
service on corporations
personal delivery to O or D or designated agent, anywhere in US if there is a basis of jurisdx; no leave/mail or nail/mail; or service on NY Sec of State for authorized NY corp; unlicensed corp - 1 copy to NY Sec of State, 1 copy by mail
on defamation and personal jurisdx
no long-arm
non-resident motorist statute
personal jurisdx over accident claim arising from non-domiciliary motorist's ownership or use of auto on NY roadway (so if I come into the state and break a leg)
matrimonial personal jurisdx
if P is NY domiciliary, none for divorce, annulment, separation; yes for economic, but special long-arm, see next card
matrimonial long arm
if P is Ny resident, long arm if 1) NY was matrimonial domicile; 2) D abandoned P in NY; 3) Ds monetary obligation accrued in NY
matrimonial process serviing
no leave/mail nor affix/mail w/o court order
matrimonial durational residency reqs, when apply
only for divorce/separation/annulment, NOT monetary support (those that you don't need personal jurisdx over D)
matrimonial durational residency reqs, go.
none if both parties are NY residents and grounds arose in NY; if either party was NY resident for 1 year and NY has prior link (marriage in NY; or matrimonial domicile; or grounds arose in NY); or (3) if either party was NY resident for 2 years
on affirmative defenses
affirmative defenses not raised in the answer are waived, except non-joinder of necessary party; failure to state CoA; lack of SMJ
standard for failure to state CoA
"P is entitled to every favorable inference that can be drawn from the allegations of the complaint and the motion should be denied if there is any basis for relief under the substantive law"
Third Party Ds and SoL
P's claim against TPD will be deemed interposed on the date that D filed the impleader claim, if P's claim is based on the same facts
right of contribution in tort cases
MBE: none for intentional tortious conduct; NY: right to contribution in ALL tort cases
equal shares formula of contribution
(NOT NY) contribution shares are always equal, even if jury finds one to be 45% responsible, if first D of 3 pays 100%, he can only collect 33%.
comparitive degrees for contribution
on MBE & NY, tortfeasor is entitled to the excess of what he paid
workers comp and contribution
EE sues manufacturer; manufacturer gets no contribution from ER; except in NY, then manufacturer can if P has GRAVE injury (not in MBE)
NY modified Joint & Sev liability
in a personal injury claim (not wrongful death), joint tortfeasor ≤ 50% cannot be required to pay more than his equitable share of non-economic damages; UNLESS 1) intent or reckless disregard; 2) hazardous substance; 3) drivers & owners of motor vehicles
attachment, explain
P gets order of attachment; sheriff levies upon property of D; the levy imposes a lien pending the outcome of the axn;
reqs for attachment
P must be seeking money damags and D is unlicensed foreign corp or non-domiciliary of NY; OR D is about to conceal or remove assets from the state
preliminary injunction
P must show grounds for equitable relief, threat of irreparable harm, probability of succes on the merits; you can also get a TRO first, ex parte b/f the PreInj
temporary receivership
P must be asserting an equity claim in which specific property is the subject; and danager that D will injure or destroy the value
seizure of chattel (replevin)
available in axn which seks to recover possessoin of a chattel; the sheriff seizes the chattel and retains custody
notice of pendency
in axn where judgment will affect real property, notice of pendency gives record notice to buyers that they will acquire an interest subordinate to the P; may be filed w/o court order
right to jury
1) axn for money damages; 2) replevin (seizure of chattel); 3) claim to property; 4) annulment; 5) divorce axn on the issue of grounds for divorce (NOT money issues);
jury size
grand jury 16-23, need 12 to indict; civil are 6 jurors, 5 can decide
res judicata
claim preclusion - if a claim against a D has been decided on the merits, all further claims arising from same transaction are barred;
collateral estoppel
issue preclusion - prevents relitigation of specific fact issues if 1) issue in both cases is identical; 2) issue was litigated and decided; 3) party had a full & fair opportunity to defend
arbitration
the public policy of NY favors arbitration; but the ct may be called on for "threshold issues" - whether arb should proceed; no punitives in arbs; judicial review for fraud, corruption, bias
wrongful death SoL
where D's tortious conduct caused death, 2 years from death; (no punitives for P's pain & suffering); if his underlying personal injury claim hadn't expired yet; if criminal proceeding, executor gets 1 year from termination of proceedings, even if acquittal
personal jurisdx
presence of NATURAL person (not corporate officer); or NY domiciliary, anywhere; or doing business in NY (if corp is engaging in commercial activities for the company on a continuous, regular & systematic basis) -- so need an office, not mere sales and advertising
long arm personal jurisdx
1) transaction of business by D in NY; 2) K made outside Ny in which D agreed to supply goods or services in NY; 3) D's tortious act in NY; 4) D's tortious act outside NY, causing injury in NY, plus hook (see next card); 5) from D's ownership of real property in NY
long arm extra hooks
If long arm by D's tortious act outside NY, injury in NY, need: 1) D regularly solicits business in NY; or 2) D derives substantial revenue in NY; or 3) D expects the act to have consequences in NY and derives substantial revenue from interstate commerce (but not med services)