New York Practice

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JURISDICTION IN GENERAL

Whether exercising personal jurisdiction in rem or quasi rem jurisdiction, the Due process clause requires that a Defendant must have ___ ___ ___ before a court can validly affect the Defendant's property (or money).

Back 1

Whether exercising personal jurisdiction in rem or quasi rem jurisdiction, the Due process clause requires that a Defendant must have M O P before a court can validly affect the Defendant's property (or money).

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What does M O P stand for?

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M- Minimum contacts with New York ( D must have solid contact with NY so that the D should anticipate being (foreseeability) sued in a NY court)

O- Opportunity to be heard (Defendant)

P- Process, defendant must be properly served.

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What happens if any one of the MOP elements is lacking?

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If any one of the MOP elements is lacking, the Plaintiff does not have valid procedural jurisdiction and if the Defendant properly raises this objection in a motion, then the court shall dismiss the Plaintiff's action, however, this dismissal is NOT on the merits and the same action can be recommenced provided the statute of limitations has not expired in the interim.

Front 4

CPLR 306-b

Proper Process

Back 4

- Plaintiff must file process with the Clerk of the Court (summons with notice or summons and complaint)

- Once process has been filed with the clerk of the court (the county clerk) then the P only has 120 days from filing to properly serve the D.

- If process is not served properly or is simply not served at all within 120 days, and the statute of limitations expires within the 120 day period, then the P can make a motion or cross-motion to extend the 120 day period.

- Court can extend the 120 days for "good cause shown" or in the "interests of justice"

Front 5

To obtain personal jurisdiction over the D, the D must have some ________ ________ with the State of New York.

Back 5

To obtain personal jurisdiction over the D, the D must have some MINIMUM CONTACT with the State of New York.

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6 Minimum Contacts for obtaining personal jurisdiction- DIAL DC

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D- Domiciliary of New York is an automatic minimum contact

I- Instate Service of a non-domiciliary is a minimum contact.

A- Agent- Serving defendants "agent" within New York (someone who the defendant has expressly or impliedly appointed to accept service on the defendant's behalf.

L- Long Arm Jurisdiction (CPLR 302) : Involves a non-domiciliary activity, or the activity of a non-domiciliary's agent, either within or outside of NY which has an effect in NY.

D- Doing business in New York is basis for jurisdiction over a non-domicile corporation conducting purposeful activity within NY on a day- to-day basis.

C- Consent to jurisdiction (SCAMMS)

Front 7

If no DIALDC minimum contacts exist then there cannot be ___________ ___________ over the defendant.

Back 7

If no DIALDC minimum contacts exist then there cannot be PERSONAL JURISDICTION over the defendant.

Front 8

CPLR 302

Back 8

Allows a NY court to use its "long arem" and obtain personal jurisdiction over the non-domiciliary, for claims arising out of that 302 activity.

Front 9

CPLR 302 (a) (1)
The Long Arm may be used when a non-domiciliary:

(3 situations)

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1. Transacts business in NY, or

2. Enters a contract anywhere to ship goods into NY (mere shipment rule) or to perform services in NY.

3. PAN: Whether the non-domicile defendant purposely availed itself of NY business opportunities.

Front 10

CPLR 302 (a) (2) NY acquires jurisdiction over a non-domicile who commits a ____ within the state (does not include the ____ of _____________)

Back 10

CPLR 302 (a) (2) NY acquires jurisdiction over a non-domicile who commits a TORT within the state (does not include the TORT of DEFAMATION)

See Feathers: An OHIO manufacturer negligently makes an oitl tanker in Ohio , sells it to a NY refinery, which fills it and later on NY thruway oil falls out, sets car on fire and burns passengers. The Ohio manufacturer moves to dismiss. Court rules no jurisdiction because although the injury occurred in NY the tort occurred in Ohio.

Front 11

CPLR 302 (a)(3) applies when a non-domicile commits a ____ outide the state (except for the _____ of defamation) and its ______ ________ cause ______ in NY (personal _______, property __________, economic __________)

Back 11

CPLR 302 (a)(3) applies when a non-domicile commits a ____ outide the state (except for the TORT of defamation) and its FIRST EFFECTS cause INJURY in NY (personal INJURY, property DAMAGE economic INJURY)

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D E E R

One element must be present wher the defendant:

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Derives - substantial revenues from goods used or consumed in NY or services rendered in NY (aimed at "deep pocket" companies)

Engages- in some persistent course of conduct in NY, e.g., renting a NY apartment for both personal and business use

Expects- or should reasonably expect (foreseeability) that its tortious conduct would have a consequence in NY and the defendant derives substantial revenues from interstate or international business. Simply placing a defective product in the stream of interstate commerce and foreseeing that it would enter NY is not by itself a sufficient minimum contact; there must also exist some other "3S" activity purposely directed at NYS.

Regularly-Regularly does or solicits business in NY

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What is "3S" activity

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S- solicitation of NY business

S- sales in NY


S- services performed in NY

Must show sales or solicitation of business in NY or performed services in NY, not that mere defective product was shipped there (Asahi)

Front 14

CPLR 302 (a)(4) Where a non-domicile ____, ____, or _________(_____) NY real estate and the cause of action __________out of this __________, ___, or __________ the NY courts have ___________ jurisdiction.

Back 14

CPLR 302 (a)(4) Where a non-domicile owns, uses, or possesses (rents) NY real estate and the cause of action arises out of this or ownership , use, or possession, the NY courts have personal jurisdiction

Front 15

CPLR 302 (b): In a ___________ action or in a proceeding in the ______court, wher the plaintiff is seeking ___________(alimony) or ______ support, there exists __ ________ jurisdiction over the ____-________ provided there is DADA

Back 15

CPLR 302 (b): In a MATRIMONIAL action or in a proceeding in the FAMILY court, wher the plaintiff is seeking MAINTENANCE (alimony) or CHILD support, there exists IN PERSONAM jurisdiction over the NON- DOMICILE provided there is DADA

Front 16

What does DADA stand for?

How many elements of DADA must be present for the NY court court to have in personam jurisdiction over the non-domicile?

Back 16

ONE element of DADA must exist to give court jurisdiction over the non-domicile.

D- Domicile- NY was the last recent marital DOMICILE of the parties, or



A-ABANDONMENT took place in NY, or

D- DECREE- Claim for support accrued under a NY decree or under a NY law, or

A- AGREEMENT- The parties execute a separation AGREEMENT in NY.

Front 17

CPLR 302(c) Restricted appearance. A 302 non-domiciliary has a qualified appearance ___________the plaintiff from ________the ________to ___another cause of action on which there is no DIAL-DC minimum contact other than the defendant's appearance in the 302 action.

Back 17

CPLR 302(c) Restricted appearance. A 302 non-domiciliary has a qualified appearance PREVENTING the plaintiff from AMENDING the COMPLAINT to ADD another cause of action on which there is no DIAL-DC minimum contact other than the defendant's appearance in the 302 action.

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How may a defendant consent to jurisdiction?

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S-C-A-A-M-S

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What does S-C-A-A-M-S stand for?

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S- STIPULATING- Stipulating in open court, in a plea, contract, or letter consenting to jurisdiction.

C- COUNTER-CLAIM- Asserting an unrelated counter-claim in the defendant's answer which does not arise out of the same transaction and occurrence on which the plaintiff's claim is based.

A- ANSWER- By serving an ANSWER and failing to raise the jurisdictional objection as a defense.

A- AFFIRMATIVE DEFENSE- Asserting improper service as an affirmative defense in an answer but failing to move for summary judgment on that issue within 60 days. ( The 60 day rule doesn't apply to asserting the "M" in MOP)

M- MAKING- Making any 3211 motion to dismiss and failing to include the MOP objection.

S- SUMMARY JUDGMENT - Moving for SUMMARY JUDGMENT on a related counter-claim which is tantamount to the defendant's seeking affirmative relief from a NY court, thereby consenting to jurisdiction in the NY court

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What are the elements of a SUMMONS?

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1. Issued and signed by Plaintiff's attorney.
2. One page sheet naming the parties
3. Index Number
4. Date it was filed to the clerk
5. Basis of venue
6. Name and address of the Plaintiff's attorney
7. Notice that failure to appear within 20 -30 days can result in a default judgment.

Front 21

A mistake in the Defendant's name or spelling on a summons IS/ IS NOT a jurisdictional defect?

Back 21

A mistake in the Defendant's name or spelling on a summons IS NOT a jurisdictional defect, if the name fairly apprised to the Defendant that she was intended as the party named.

Front 22

Can a summons be filed and served without a complaint?

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A summons CAN be filed and served without a complaint but it must briefly state the nature of the cause of action (i.e. negligence), as well as the relief being sought (i.e. specific performance, injunction, monetary damages) .

Front 23

As of 9/9/05 both the summons and complaint must be served with the _____?

Back 23

CLERK

Front 24

The summons can be served dfay or night inside or outside NY, but regardless of where it is served, NEVER on ______, unless the summons is accompanied by an __________ needed to avoid__________ ________.

Back 24

The summons can be served dfay or night inside or outside NY, but regardless of where it is served, NEVER on SUNDAY unless the summons is accompanied by an INJUNCTION needed to avoid IRREPARABLE INJURY.

Front 25

A court cannot extend the ________ __ ____________, but may extend the time to _______.

Back 25

A court cannot extend the STATUTE OF LIMITATIONS, but may extend the time to SERVE.

Front 26

There is no service on SATURDAY upon a Defendant who is observing SATURDAY as a day of worship if the service is done with _________.

Back 26

SATURDAY upon a Defendant who is observing SATURDAY as a day of worship if the service is done with _________.

Front 27

Gen Bus Law Section 11 - Must be "____________" - can't be at work and still ___________.

Back 27

Gen Bus Law Section 11 - Must be "OBSERVING" - can't be at work and still OBSERVING.

Front 28

Who can serve a summons in NY?

Back 28

An adult non-party who is not a party to the action may serve a summons in NY.

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Who may serve a summons outside of NY?

Back 29

One may serve a summons outside the state of NY if they meet an A-L-R-A-N requirement.

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A-L-R-A-N

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A- ATTORNEY in the jurisdiction

L- Look to the LAWS of that jurisdiction ( if the state allows 14 year old to serve process, the allowed in NY)

R- A RESIDENT of NY

A- An ADULT

N- must be a NON-PARTY

Front 31

Once process (summons with notice or summons and complaint) has been properly filed with the clerk of the court, then regardless of where the D is served, service is only proper if made pursuant to ________?

Back 31

C-I-D-S-MAIL

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How many elements of C-I-D-S-MAIL must be present?

Back 32

ONE

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C-I-D-S-MAIL

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C- Court invented service

I- In hand personal delivery

D- Due diligence, nail, mail, filed

S- Delivery to a Suitable and Discretion (SAD) person at the defendant's residence or place of business, followed up by mailing a copy of process to the D's last known residence and then filing proof of service with the clerk of the court. No attempt to personally serve the D is required before using SAD service.

MAIL- Mailing process to the defendant, but only if the D agrees to accept such service.