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142 Cards in this Set
- Front
- Back
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Define "Answer"
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An answer is the defendant's pleading, which responds to a complaint with denials, defenses, or counterclaims that the defendant wishes to assert
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Define "Collateral Estoppel"
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Doctrine known as "issue preclusion". It applies when a litigant attempts to retry an issue that has been determined against her on the merits.
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Define "Ex Parte Motion"
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Motion made without notice to the other party
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Define "Forum Non Conveniens"
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The power of a court, upon defendant's motion, to dismiss an action where the court finds that the convenience of witnesses and interests of justice require that the action be heard in a court in a different state.
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Describe the difference between indemnity and contribution
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Under indemnity you were vicariously liable and now you are bringing a third party action against the person whose misconduct you were answerable for and you want 100% reimbursement
Contribution comes into play with one joint tortfeasor going after the other joint tortfeasors for the amount that exceeds his equitable share. |
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What's the longest SOL out there (20 years)
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Action on judgment
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What's another very long SOL out there, related to property (10 years)
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Adverse possession, action to recover realty. and convicted defendant for a serious crime
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What another pretty long SOL out there with which pertains to crimes?
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7 years for an action by crime victim against convicted defendant for "any" crime. Period runs form date of crime.
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What are the 6 year SOL?
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Contracts (express or implied)
Indemnity and contribution Fraud Equity Actions (rescission, reformation, accounting) |
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What are the 4 years SOLs
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Contractcs governed by the UCC article 2-Sales (Breach of warranty claim accrues upon tender of delivery)
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What are the 3 years SOL?
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PErsonal injury based on negligence and SL
Propery damage Professional malpractice, other than medical malpractice |
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What are the 2 1/2 year SOLs that were lobbied hard in Albany to get?
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Medical, Dental, and podiatric malpractice
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What is the 2 year SOL?
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Wrongful death
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What are the really short ones, say 1 year for SOL?
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Intentional Torts
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What is the super short, 4 month SOL?
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Article 78 proceedings
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Define SMJ
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It means the competence of the court to hear the type of controversy being brought before it.
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How does Form Non- Conveniens work?
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Its the discretion the court has to move the case to another court more appropriate to make the ultimate disposition on the matter.
The D makes the motion for "lack of a substnative nexus to NY." |
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What are the 2 instances I should look out for where the NYSC does not have jurisdiction?
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Cases to which federal law confers exclusive juris...
Claims for money damages in tort or K against State of NY. Those go to the NY Ct. of Claims |
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What types of cases does the NY SC have exclusive jurisdiction over?
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Matrimonial Actions
CPLR Article 78 Proceedings Declaratory Judgment Actions |
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Tell me the basics of the SOL
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Its an affirmative defense that must be raised by the D
It begins to run when the cause of action accrues, and most of the time, accrual occurs when injury/breach occurs. |
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When a product malfunctions and causes a PI, what are the 3 separate bases of liablity?
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1. Negligence (3 yr)
2. Strict Liability (3 yr) 3. Breach of Warranty (express or implied) (4 yrs and tenders when delivery is made, at every step along the way) |
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What is the SOL for Toxic Torts?
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First look to see if latent effects. If there are latent effects, then SOL runs from the date of discovery of injury or when P should have discovered injury.
NB: IF P discovers the injury, but not the cause, he will get 1 year from the discovery of the cuase proviced the discovery of cause occurs less than 5 years after discovery of the injury. NB: Toxic Tort of Discovery does not apply to claims of medical malpractice. |
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When does SOL toll if the D is absent from NY?
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When his absence prevents the exercise of jurisdiction over D.
If D is not in NY when cause of action accrues, SOL does not begin to run until D comes to NY If D is in NY when cause of action accrues, but D thereafter leaves the state and is continuously absent for more than 4 months, toll applies to entire period of absence. |
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How does the SOL toll work for infants and the disabled?
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May sue w/in SOL with a competent adult representative, but also get benefit of toll
Tolls until disability ends, if original SOL was +3 years, you get 3 more. If -3 years, you get the original SOL. Outside limit of no more than 10 years for medical malpractice and the insane. |
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How do the tolls work when someone dies?
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For survival claims, the deceased estate gets time remained on SL or 1 year, whichever is longer
For wrongful death, 2 years. If the D dies, SOL tolls for 18 months. |
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Explain the "Do-Over" Rule wrt the SOL.
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If you timely commenced a suit and its terminated, you may commence a new action based on the same transaction or occurren within 6 months as long as you didn't lose on the merits or because lack of PJ.
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Explain how the borrowing statute works:
(NY REPRESENT!) |
A claim accruing out of state in favor of a nonresident of NY has to clear both NY and local SOLs. A claim accruing out of state in favor of a resident is measured only by NY SOL.
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In addition to SMJ, what are the three other things that must be satisfied for a court to render a valid judgment?
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1. Proper commencement of the action
2. Proper service of process on the D 3. Proper basis of jurisdcition over the person or property involved in the action. |
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Describe how an action is commenced:
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1. File process (summons and notice or summons and complaint) with court clerk
2. W.in 120 days of filing, serve process |
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What's the difference bw a "summons and complaint" and a "summons and notice"
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S and C is more elaborate and includes the P's pleading, it specifies the transaction or occurrence that is the subject matter and spells out the essential elements of P's cause of action
A S and N is an abbreviated complaint. just has a brief statement of the nature of the action, the relief sought and if money damages, the amount sought. |
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What are the basic stuff you should know about serving process?
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can be done by anyone over 18 that's not a party to the action.
can be done on any day except sunday if its been done in an unauthorized way, but works anyway, that's not cool |
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Describe the 5 ways to serve process on a D.
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1. Personal delivery
2. leave and mail 3. service upon a designated agent 4. Nail and mail (only if DD to do 1 and 2) 5. Expedient Service (only with court permission) |
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How do you serve a corporation?
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1. Personal delivery to an officer, director, designated agent, or cashier
2. Deliver a copy to Secretary of State in Albany and then they mail it out If its an unauthorized foreign corporation, you serve the SoS and mail a copy to the officer. |
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How do you serve a partnership?
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Obtained by service on any partner or an agent authorized to receive it.
Delivery and mailing to a managing parter or other agent. |
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What are the 6 ways that personal jurisdiciton (and money damages being allowed) can kick in?
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1. Presence in NY
2. Doing Business 3. Domicile in NY 4. Long-Arm Jurisdiction 5. Non-resident Motorist Statute 6. Consent |
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Define "doing business" in NY and who it applies to wrt personal jurisdiction.
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It applies to unauthorized foreign corporations because all domestic and authorized foreign corps are always amenable to in personam jurisdiction
The test is, are the corps agents or employees in NY engaging in commercial activity for the corporation on a regular, systematic, ongoing basis. (ie, do they have an office?) |
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Describe "long-arm jurisdiction"
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Think of it as a "long-shot," transactional, requires substantially less than "doing business"
examples: making of an in-state visit by the D or his agent during which purposeful activity is carried on; in person or through an agent, contracts to supply goods or services in state...it can also be phone calls and letters, but not a one-shot deal |
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Describe the disctinction between tortious acts wrt long-arm jurisdiction
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tortious acts IN ny means the act occurred here.
Tortious acts outside NY means i manufacture a defective product in WI and it explodes in NY, Plus there exists some additional link between me and NY. Maybe I make a lot of money from selling products in NY. Also the NY consequences of my tort must be reasonably foreseeable. |
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How should I handle a Long-Arm question?
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1. First discuss whether P can establish jurisdiction under any non-long arm categories
2. Discuss whether facts of P's case falls within one or more of the long-arm categories. 3. Briefly discuss whether the particular assertion of jurisdiction would satisfy constitutional due process 4. Remember the int'l shoe language: due process will be satisfied if claim arises out of conduct by the D that is purposefully directed to NY such that D should reasonably anticipate being sued in a NY court. |
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How does the non-resident Motorist Statute work?
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Confers PJ on owner and driver involved in an accident claim on a NY roadway
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Under what circumstances would someone "consent" to PJ?
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in a "forum selection clause"
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When does the LA Statute permit exercise of jurisdiction over a nonresident defendant in action for alimony or child support?
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The "dead beat dads" statute allows it if the plaintiff resides or is domiciled in NY at the time the demand is made and one of the 4 following applies:
1. NY was the matrimonial domicile of the parties before they separated 2. The claim for support arises out of an agreement made in NY 3. The D abandoned the P in NY 4. The claim for support arose under NY law |
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Describe the general rules on Venue
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P's choice by putting it in the summons according to the rules:
1. in an action for property, its where the property is located 2. its where one of the parties resides, if don't reside in any county in NY, any county will do. 3. There is a discretionary ground for change of venue based on the convenience of material witnesses. Either party, by motion, may request the court for a change of venue |
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What are the two ways a D can respond to the summons and complaint (and thereby avoid default)?
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1. Serve an ANSWER, which is the D's pleading. The ANSWER responds to the allegation of the complaint.
2. Make a motion to dismiss under CPLR 3211 |
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What are the two basic pleadings and ultimately, what are they really about?
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Pleadings are nothing more than formal written allegations with each parties respective claims and defenses
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What is included in the answer?
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Denials and affirmative defenses
If D wishes to assert his own cause of action against P, he goes with a counterclaim |
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If and only if D counterclaims, what does P get to pleade in response?
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The REPLY. It can include the P's denials and affirmative defenses
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After P's initial service of process, how are all other litigation papers served?
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INTERLOCUTORY PAPERS are all served by 1st class mail and deemed served when mailed
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What are the two ways a D can respond to the summons and complaint (and thereby avoid default)?
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1. Serve an ANSWER, which is the D's pleading. The ANSWER responds to the allegation of the complaint.
2. Make a motion to dismiss under CPLR 3211 |
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What are the two basic pleadings and ultimately, what are they really about?
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Pleadings are nothing more than formal written allegations with each parties respective claims and defenses
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What is included in the answer?
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Denials and affirmative defenses
If D wishes to assert his own cause of action against P, he goes with a counterclaim |
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If and only if D counterclaims, what does P get to pleade in response?
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The REPLY. It can include the P's denials and affirmative defenses
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After P's initial service of process, how are all other litigation papers served?
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INTERLOCUTORY PAPERS are all served by 1st class mail and deemed served when mailed
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How long does the D have to serve the answer?
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20 days if he got it by personal delivery
30 days if if he got it any other way |
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How does one remember the 8 grounds which D may move to dismiss a cause of action CPLR 3211
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DOWNFALL
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What is the D of DOWNFALL?
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Documentary Evidence
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What is the O of DOWNFALL?
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Other action pending b/w the same parties on the same cause of action
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What is the W of DOWNFALL?
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Want of capacity. E.G. P is an infant suing without a proper representative, or P is a beneficiary suing on behalf of a trust (only the trustee has capacity)
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What is the N of DOWNFALL?
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Nonjoinder ofa necessary party, e.g. is a maker of a promissory note
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What is the F of DOWNFALL?
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Failure to state a cause of action. EVEN IF all of the allegations are deemed to be true, the substantive law does not recognize a cause of action,
In answering this, remember to discuss the elements of the underlying cause of action |
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What is the A of DOWNFALL?
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Additional Affirmative Defenses, SPARERIBS
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What are the Additional Affirmative Defenses, known as SPARERIBS?
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Statute of limitations
Payment Arbitration Award Release Estoppel Res Judicata Infancy of the D Bankruptcy Statute of Frauds |
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What is the L of DOWNFALL?
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Lack of personal jurisdiction (commencement defencts, improper service of process, etc)
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What is the last L of DOWNFALL?
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Lack of subject matter jurisdiction
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Procedurally, how does one make a pre-answer motion to dismiss?
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1. The motion is made before the answer
2. Making the motion extends D's time to answer. If the motion is denied, D must then serve the answer within 10 days 3. If D has one or more of the defenses listed in CPLR 3211, he can raise them all or none. His discretion. 4. A motion to dismiss on any ground listed in 3211 does not preclude raising any other ground in the answer EXCEPT lack of Personal Jurisdiction |
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What are the 2 ways to preserve your Personal Jurisdiction Defenses?
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1. Before serving the answer, make a 3211 answer that includes lack of personal jurisdiction
2. Make no 3211 on any ground and instead includelack of PJ as an AD in the answer |
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If I plead improper service as an AD in the answer, what else must i do?
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Within 60 days, you must make a follow-up motion for summary judgment on this ground within 60 dyas after servigin the answer
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What is the general rule about AD's that are not raised in the ANSWER?
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Normally, they are waived
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What are the AD's that are never waived, that you can always make post-answer motions on?
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1. Failure to state a cause of action
2. Nonjoinder of a necessary party 3. Lack of SMJ |
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How does one respond to a summons with notice?
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1. Serve a demand for the complaint or a notice of appearance
2. This then requires P to serve the complaint within 20 days of D's service 3. Assuming P timely serves the complaint, D has 20 days from such service to serve the answer or the 3211 motion to dismiss |
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What can you do if P fails to meet the 20 day time limit to serve the complaint?
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D may move to dismiss based on P's NEGLECT TO PROSECUTE.
To stay alive, the P must show a reasonable excuse for the delay and make an evidentiary showing that there is a merit to her cause of action. |
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What effect does the demand for the complaint or the notice of appearance NOT HAVE?
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It doesn't waive your jurisdictional objections. You can still include them in the answer or pre-answer 3211 motion to dismiss
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How many times can each party amend his pleadings as a matter of right, without obtainting judicial permission?
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Once.
P and D can both amend up to 20 days after D serves the answer |
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What are the AD's that are never waived, that you can always make post-answer motions on?
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1. Failure to state a cause of action
2. Nonjoinder of a necessary party 3. Lack of SMJ |
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How does one respond to a summons with notice?
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1. Serve a demand for the complaint or a notice of appearance
2. This then requires P to serve the complaint within 20 days of D's service 3. Assuming P timely serves the complaint, D has 20 days from such service to serve the answer or the 3211 motion to dismiss |
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What can you do if P fails to meet the 20 day time limit to serve the complaint?
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D may move to dismiss based on P's NEGLECT TO PROSECUTE.
To stay alive, the P must show a reasonable excuse for the delay and make an evidentiary showing that there is a merit to her cause of action. |
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What effect does the demand for the complaint or the notice of appearance NOT HAVE?
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It doesn't waive your jurisdictional objections. You can still include them in the answer or pre-answer 3211 motion to dismiss
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How many times can each party amend his pleadings as a matter of right, without obtainting judicial permission?
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Once.
P and D can both amend up to 20 days after D serves the answer |
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What happens when the period for free amendment expires?
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A motion for leave to amend is required at the court's discretion. Court's apply a liberal standard. Standard is as long as the opponent will not suffer any incurable prejudice. Opponent must show that he will suffer a detrimental change of position as a result
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What is impleader?
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Its a procedural device used by D to join another party alleged to be liable in whole or in part to D for damages that D may have to pay to P. D is usually after Indemnity or Contribution.
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What are the steps for joining a TPD?
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1. File: D files and serves TPD
2. Serve: w/in 120 days of the complain, sends a copy of summons to P and TPD |
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What steps must the TPD take after being served?
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He must serve a TP answer on D and P and all other parties. He has 20 or 30 days to answer, depending on how he was served.
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After TPD is joined, what may the P do?
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He may amend is complaint to assert a claim directly against TPD, thereby making TPD an additional D in P's action.
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What is the "relation-back" concept?
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When you have a TPD come in via impleader from the D, as long as the TPD was impleaded before SoL runs, the P can assert a claim after the SoL against the TPD
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What is indemnity?
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Its the shifting 100% of the responsibility to another party. Can be done in contract or implied in law indemnity (like the retailer who got sued for sellinga defective product going after the manufacturer, or in NY an owner of a car who got sued going after the driver who caused the harm by negligently driving)
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What is contribution?
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Its the sharing of the loss among multiple tortfeasors who are all participants in the tort.
NY allows contribution in ALL cases |
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What are the ways to sue for contirbution?
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1. Cross claims
2. Impleader 3. Separate actions. (but, if you do this, you have to prove it all over again against the tortfeasor |
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What is the NY rule on how much you can get back from the other tortfeasors?
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Its called "comparative degrees of fault" rule. You can only get from the other tortfeasors the excess you paid over what you yourself owe.
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What is the substantive law rule for contribution?
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This is the idea is that you still may have to contribute if your negligence caused or aggravated the damages. for which D is being held liable Doesn't matter if you didn't actually do anything to the P
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What is the reduction formula?
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Any judgment against a non-settling tortfeasor must be reduced be either the amount of the settlment or the settling tortfeasor's equitable share fo the fault, whichever is larger
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What is the effect of settlment?
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It extinguished contribution claims by and against the settling party.
Settlment does not extinguish claims of indemnity by or against a settling tortfeasor. |
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What is CPLR Article 16?
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It modifies the law of joint and several tort liability in NY to the following extent:
in a personal injury claim, a joint tortfeasor who's fauult is found to be 50% or less cannot be required to pay the P more than his own equitable share of P's NONECONOMIC DAMAGES |
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Who and what is excluded from Article 16?
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TFs who act with intent or reckless disregard for the safety of others
TFs who are liable for releaseing a hazardous substance into the environment Drivers and owners of motor vehicles other than police and fire vehicels |
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What is a motion?
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Its a request for some type of preliminary or incidental relief
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What is a motion on notice?
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There are 2 types of motions: ex parte and motion on notice. this one is much more common. Its a heads up that you're making a motion. It gives the opponent a heads up about the nature and timing of the motion. It must have supporting affidavits to show why the motion should be granted.
YOu mail them to the opponent 8 days before the hearing date All the motion papers must be filed with the court no later than the return date. The court begins the decision making process on the return date and then issues an order either granting or denying the motion |
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What is an order to show cause?
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Its an alternative way to make a motion on notice. Its a a preliminary order, signed by the judge, directing the adversary to show cause on a date specified by the judge why the motion should not be granted
It basically saying judge, lets do this unless he has a good reason why he shouldint' |
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Can you appeal the deciding order of the judge on the motion?
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Yes, as a matter of right within 30 days.
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What is an Ex Parte Motion
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ITs the type that happens right away, with no notice to the adversary. They are very rare. And there's no appeal.
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What is a motion for summary judgment?
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The purpose of the motion is to enable a party to show, before trial, there is no genuine issue of material fact requiring a trial. the moving party is contending that reasonable persons cannot differ and that he is entitle to the judgment as a matter of a law.
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When does the motion for summary judgment come?
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After the answer and either party can do it , within 120 days from when the place the case on the trial calendar, unless moving party shows good cause for the delay.
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How does the moving party show and how does the opponent defeat a motion for summary judgment?
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With Evidence in the form of affidavits, relevant documents and discovery material.
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What is the boomerang effect?
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The court "searches the record" which means it will consider all the evidence on the record, regardless of which side submitted it. This means the party that moved for summary judgment could lose not just the motion, but have summary judgment against him
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What happens if the motion for SJ is denied?
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It means there is a triable issue of fact and the case resumes its normal course.
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How can a pre-answer motion for summary judgment be converted into summary judgment?
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A pre answer motion to dismiss for failure to state a cause of action can be converted if
1. parties have submitted factual affidavits in connection with the motion to dismiss 2. Court has given notice to the parties that the conversion to SJ is being made. THis gives other parties the opportunity to submit additonal evidence |
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When may a P move for SJ at the same time when she serves the D?
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Clear cut documentary evidence when action is for payment only. Best example is a promissory note. This is very rare.
If P does this, the D has 20 or 30 days to reply, not the usual 8 days of advance notice for a hearing on a motion |
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What is the point of provisional remedies?
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They provide a meausre of security to P while the ultimate enforcement of a potential judgment. They protect his rights
All require a court order except a notice of pendency |
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What are the 5 provisional remedies?
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1. Attachment
2. Preliminary Injunction 3. Temporary Receivership 4. Order to seize chattel in an action to recover the chattel (replevin) 5. Notion of pendency |
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What is attachment?
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1. It provides security for the enforcement of a money judgment
2. P gets the order of attachment from the court, NY sheiff enforces it by filing an order of attachment with the county clerk of the court clerk in which the real property is located. |
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What sort of property qualifes for a levy?
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Tangible assests like cars and boats, but also bank accounts. can also be a garnishee, a 3rd person who owes a debt to the D
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How is a sheriff's levy made on personal property?
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Sheriff delivers the order for attachment to the person holding D's personal property. Its essentially an injunction against selling or transferring the property.
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What are the 2 typesof actions in which attachment may be used?
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1. D is an unlicensed foreign corporation or a non-domiciliary of NY
2. D is about to conceal or remove assets from the state with the intent to defraud creditors or frustrate the enforcement of a judgment |
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What is the procedure for getting an order of attachment?
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1. P makes a motion
2. Include affidavits that say its one of the 2 categories 3. P puts up a bond to cover damages if attachment was wrongful or if D wins on the merits 4. Its important to note that he needs to show probability of success on the merits |
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The motion is normally made on notice. May it be made ex parte?
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Yes. but DP is only satisfied if there is a hearing promptly after the seizure of the D's property.
The way it works is P gets ex parte motion, then makes motion on notice to confirm it and that's D's hearing essentially |
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How much time does the P have to make the motion to confirm?
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If its an unlicensed corp, no later than 10 days
If its bc D may try to remove assets from the state with intent to defraud, its 5 days. |
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Is it just foreign corps or can nondomiciaries satisfy category 1?
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Nondomiciliaries aswell.
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What is a preliminary injunction?
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Used to maintain the status quo while an action is pending
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What are the 2 types of actions in which a preliminary injunction may be used?
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An equity action in which P's complaint seeks either
1. A permanent injunction 2. or where D is about to an act rendering equity judgment ineffectual |
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Will an actionthat seeks solely money damages support a preliminary injunction?
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No.
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What is the procedure for a motion for a preliminary injunction?
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Must be done ON NOTICE
P's affidavits must show grounds for equitable relief, including the threat of irreparable injury Must show a probability of succes on the mreits of the underlyng claim P must post a bond to indemnify D for damage if it is later determined that in injunction should not have been granted |
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How does one get immediate injunctive relief?
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With a TRO (temporary restraining order)It maintains the status quo while the motion for preliminary injunction is decided.It can be granted ex parte if the P can show that prior noticeto D of the TRO could result in a significant prejudice. You make it at the same time you make the motion for preliminary injunction.
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What is a seizure of a chattel?
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Anything tangible. Function of the order is to insure enforcementof a judgment awarding possession of the chattel. Sheriff seizesthe chattel and retains custody.
P's affidavid must show a probability of success on the merits and P must give an undertaking to indemnify the D Motion can be made ex parte or on motion. |
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What is a notice of pendency?
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In an action in which the judgment will have a direct effect on real property, the filing of a notice of pendency gives record notice to any potential buyers or mortgagees that any interest they acquire in the property will be subordinate to that of the P. It renders the title unmarketable
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What is the procedure for a notice of pendency?
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Its done any time there'a an equity action will have a direct effect on title, possession or use of property
P files notice with the County Clerk of the county in NY in which the real property is located. It may be done without a court order. P need not file a bond. |
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What is a notice of issue?
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Either party may file it, its when discovery is complete and the case is ready for trial. Then its placed on the court's calendar.
If the party filing wants a jury trial he does it then. If its the other party who wants a jury trial, he makes a separate filing. |
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When does a party in a civil action have a right to trial by jury?
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1. An action seeking solely money damages
2. Replevin 3. A claim to real property 4. Annulment of a marriage 5. In a divorce action, either party canget a jury on the issue of the grounds for divorce A civil jury consistsof 6 jurors. A 5/6 is sufficient |
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What is Res Judicata, aka Claim Preclusion?
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After you litigated against a partiuclar D and gotten a final judgment, you can't bring another claim against him if that claim arose from the same transaction, even if the additional claims are based on different theories or seeking a different remedy
AKA, bring all your claims at once or you are fucked |
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What is the exception to NY's rules on Claim Preclusion?
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Matrimonial Disputes
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What is Collateral Estoppel, aka Issue PReclusion?
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It avoids the need for relitigation of specific factissues that were decided ina prior proceeding upon a 3 part showing
1. Issue in former and current proceeding is identical 2. Issue was actually litigated and decidedin the former proceeding 3. Party against whom issue preclusion is asserted had a full and failr opportunity to litigate the issue in the prior proceeding This is the court saying, "didn't we already decide this issue and didn't you already have your day in court?" |
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Describe how in NY issue preclusion can be used as a sword, but not as a shield?
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Well, if the D loses and issue, similarly situated parties can go afte rhim. If he wins though, those other similarly situated partiesdidn't have their day in court so other parties can still sue.
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When are special proceedings allowed?
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Only when authorized by statute
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What is the procedure for getting special proceedings?
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1. Petitioner files a petition
2. Notice of petition served on the Respondent 3. Respondent is advised he needs to erve an answer and appear in court on the specified date of the hearing 4. Affidavits are usually served in support and in opposition to the petition. all submitted on the return date for decision by the court |
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Tell me about arbitration in NY?
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Arbitrators are not bound by substantive law or the rules of evidence. They may do justice as they see fit and the scope of judicial review is extremely narrow.
Courts may be called upon to decide threshold isssues but the public policy of NY favors arbitration |
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What are the 5 threshold issues that can be presented to the court in an effort to avoid arbitration?
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Basically, the court is asking if there was an enforceable agreement to arbitrate this issue?
1. Did parties agree to arbitrate? must be in writing, must be clear, explicit and unequivocal 2. Is the dispute within the scope of the arbitration clause 3. Is the arbitration clause valid? (was it induced by fraud or duress 4. Is there an express condition precedent to arbitration 5. Statute of limitations |
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What are the 3 narrow grounds which provide a basis for vacating an arbitration award?
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1. Corruption, fraud, or misconduct in the preceding
2. The bias of the arbitrator who was chosen to be neutral 3. If arbitrator has exceeding his powers |
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What are Article 78 proceedings?
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Authorize a special proceeding for judicial review of action by governmental or quasi governmental officers or bodies of any kind.
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What is the first of the 4 grounds for an article 78 proceeding?
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1. Mandamus to compel- to compel the performance of an act required by law- an act as to which no discretion is involved. E.g city clerk refuses to issue a marriage license. Or President of a corporation refuses to convene an annual meeting of shareholders
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What is the second of the 4 grounds for an article 78 proceeding?
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2. Prohibition. A proceeding to stop a judicial officerfrom exercising power that exceeds the officer's lawful jurisdiction
Must be a grossly improper exercise of jurisidiction. Like a violation of double jeopardy. For other stuff, normal appeals process is the appropriate way to go |
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What is the thirdof the 4 grounds for an article 78 proceeding?
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Certiorari. A proceeding to challenge the resultsof a trial type hearing conducted by an administrative agency.
Eg. A tenured civil service employee is fired. (personswitha vested property or quasi property right are entitled to a trial-type hearing prior to divestiture. Afterthe agency's final determinationof a trial-type hearing, the aggrieved person's form of judical review is certiorari. The court must uphold the agency's trial type hearing if the results were determination was supported by substantial evidence. |
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What is the 4th of the 4 types of Article 78 proceedings?
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Mandamus to review- a proceeding to review any type of administrativeaction not covered by categories 1-3. Most often, this is the form of review used to challenge an agency determination that was made without a trial type hearting
eg. your liquor licens is denied. , the court must uphold the agency's determination unless it was ARBITRARY and CAPRICIOUS |
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In what court may article 78 proceedings be brought?
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Supreme Court
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What is the SOL for Article 78 proceedings?
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4months.
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What type of relief may be sought in an Article 78 proceeding?
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Injunctive or Declaratory...can get damages like back pay.
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