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239 Cards in this Set
- Front
- Back
What is the only trial court in NY w general subject matter jurisdiction? |
The Supreme Court
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When may a court dismiss for forum non conveniens?
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Court has discretion, upon motion by defendant, to dismiss on forum non conveniens when the action lacks a substantial nexus to NY
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In what two instances does the SC not have subject matter jurisdiction?
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1) federal law confers exclusive jurisdiction
2) claims for damages against the State of New York |
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In what three kinds of actions does the SC have exclusive j/d?
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1) matrimonial action
2) judicial review of administrative action 3) declaratory judgment action |
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In general, when does a statute of limitation begin to run?
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When the cause of action accrues
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For the purposes of determining statute of limitations, when does a cause of action generally accrue?
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When the injury occurs
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For the purposes of determining statute of limitations, when does a cause of action accrue for an infant injured in utero?
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On the date of birth. The infant has no cause of action unless born alive
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How do you compute the statute of limitations?
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1) Exclude day on which triggering event occurs, start counting the next day
2) For whole year intervals, SL expires on anniversary date of triggering event 3) Saturday/Sunday/Holidays: Last day for performing procedural act falls on Saturday/Sunday/holiday → P has until end of next business day |
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What is the statute of limitations for medical malpractice actions?
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2 1/2 years from the date of injury
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To what kind of defendants does the medical malpractice statute of limitations apply?
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Doctors, dentists, podiatrists, nurses, and hospitals
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What is the statute of limitations for a negligence action?
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Three years
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What is the statute of limitations in a suit against a hospital for negligent hiring?
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Three years (NOT 2 1/2 years for malpractice, b/c this is not a malpractice action
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What are the two exceptions to the general medical malpractice statute of limitations?
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1) Continuous treatment
2) Foreign object rule |
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What is the continuous treatment exception to the medical malpractice statute of limitations?
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If a doctor has continuously treated a patient for same condition, the statute of limitations begins to run at the end of the period of continuous treatment
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What is the foreign object rule for medical malpractice actions?
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For malpractice actions relating to foreign objects unintentionally left behind in the body, the statute of limitations is st longer of:
1) 2 ½ from date of operation, or 2) 1 yr from date of discovery, or date P should have discovered |
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What is a "foreign object" for purposes of the foreign object medical malpractice rule?
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A foreign object is anything introduced by a medical profession and unintentionally left behind in the body
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What three things do NOT constitute a foreign object for purposes of the foreign object medical malpractice rule?
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1) chemical substances (e.g. medicine)
2) Prostheses 3) Fixation devices |
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What is the statute of limitations for negligence actions against professionals other than medical professionals?
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3 years from the termination of service
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What types of people qualify as "professionals" for the purposes of the professional malpractice statute of limitations?
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Architects, engineers, accountants, attorneys.
Note: Insurance brokers and security analysts ARE NOT professionals |
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What is the statute of limitations for an action for personal injury or property damage against government subdivisions of the state?
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1 year and 90 days from the date of the injury
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What must a plaintiff do prior to initiating an action against a municipal subdivision for personal injury or property damage?
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Serve notice of the claim on the municipal defendant, no later than 90 days from the date of the accident
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What is the statute of limitations for a strict products liability action?
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3 years
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What is the statute of limitations for a breach of warranty action?
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4 years
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What is the statute of limitations for an action for contribution or indemnity?
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6 years from the date of ACTUAL PAYMENT
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What is the statute of limitations for an action based on exposure to toxic substances?
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3 years from the earlier of
1) DISCOVERY of the injury, or 2) Date the injury should have been discovered |
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In what situations will the statute of limitations be tolled? (5)
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1) D's absence
2) P's infancy or insanity 3) Death of P or D 4) Grace period after dismissal 5) Borrowing statute |
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When can the statute of limitations be tolled on account of D's absence?
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1) P has no basis for PJ over absent D, AND
2) Either: A) D not in NY when COA accrues, or B) D in NY when COA accrues but thereafter leaves NY and is continuously absent for 4 months |
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May an infant sue prior to reaching adulthood?
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Yes, prior to age 18, an infant may sue w/in the regular statute of limitations through a competent adult representative
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When can the statute of limitations be tolled on account of P's infancy or insanity?
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If infant or insane at the time the COA accrues, the statute of limitations is tolled until the disability ends
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If the statute of limitations is tolled on account of infancy or insanity, what is the statute of limitations after the period of disability has ended?
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1) Original disability 3 years or more:
Longer of (a) 3 yrs from the end of disability, or (b) original SL measured from date of accrual 2) Original SL < 3 yrs: original SL from measured from the end of the disability. |
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What is the sole exception to the general rule regarding the tolling of the statute of limitations on account of infancy or insanity?
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Medical malpractice
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What is the special rule regarding tolling the statute of limitations on account of infancy or insanity in a medical malpractice action?
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In an action for medical malpractice, the statute of limitations cannot exceed 10 years from the date of accrual
NOTE: Do NOT incorporate the continuous treatment rule (i.e. the SL can never be longer than 10 yrs from original injury, w/o regard to any continuous treatment) |
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What is a claim for survival?
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A survival claim is any cause of action that P could have brought if she were still alive. It is not limited to torts, and includes ALL damages incurred by P prior to death (including pain and suffering)
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What is a claim for wrongful death?
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A wrongful death suit is a tort claim for the economic damages of a decedent's statutory distributees. Punitive damages are recoverable. Neither emotional damages of distributees nor decedent's pain and suffering are recoverable
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What is the statute of limitations in a wrongful death action?
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2 years from the date of death
Decedent must have possessed a timely cause of action at the time of death |
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What is the statute of limitations in a survival action?
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The greater of:
1) time remaining on decedent's original SL, or 2) 1 yr from P's death Note: P must die before original SL expires |
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How does the death of a potential D affect the SL?
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Add 18 months to the relevant SL
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What is the 6-month grace period statute of limitations toll? When is it applicable?
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If a NY action (including in NY FEDERAL court) is timely commenced and then dismissed before, trial, and at the time of trial, the SL is either
1) expired, or 2) has less than 6 months remaining → P gets 6 months from the date of dismissal to re-file hte same action |
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To what four categories of dismissal is the 6 month grace period inapplicable?
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1) prior dismissal on the merits
2) voluntary discontinuance by P 3) dismissal for failure to prosecute 4) lack of PJ |
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In general, when does the SL borrowing statute apply?
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Actions by non-resident P for a COA that originated out of stat
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What is the general rule of the SL borrowing statute?
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1) Out-of-state SL < NY SL → apply out-of-state SL
2) Out-of-state SL > NY SL → apply NY SL basically: apply whichever is shorter? |
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What is the rule under the borrowing statute for NY resident Ps in actions involving out-of-state causes of action?
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Apply the NY SL
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How is an action commenced?
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By filing process w the county clerk
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What are the two types of process?
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1) summons and notice
2) summons and complaint |
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When must service be accomplished in order for the filing of process to be valid?
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w/in 120 days of filing
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When may a court extend the 120-day time period for serving process after filing process?
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Court has discretion to extent the time period
1) for good cause 2) in the interest of justice |
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What are the three requirements of the "notice" in a summons and notice commencement?
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1) brief statement of the nature of the action
2) statement of relief sought 3) if monetary relief → amount being sought |
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Who may serve process in NY?
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Process may be served by anyone who is:
1) at least 18 yrs old, AND 2) not a party to the action |
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On what days of the week may process be served?
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Any day exception Sunday
But: If D is a Saturday Sabbath observer, and P knows it, P may not properly serve D on Saturday |
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What is the effect of D's actual notice on whether process has been validly served?
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None. Actual notice is irrelevant to a determination of whether process is validly served
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What are the ways in which a P may serve a (non-infant or insane) individual? (6)
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1) Personal delivery
2) Leave and mail 3) Affix and mail 4) Expedient service (court-invented) 5) Agent specifically designated to receive process 6) First-class mail and acknowledgment |
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When is service "complete" for the purposes of personal service on an individual?
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Service is complete upon the process server's tender of summons directly to the D
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What are the requirements of the leave and mail method of serving process?
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Leave, AND
1) Deliver process to person of suitable age and discretion at D’s A. Actual dwelling place, or B. Actual place of business Mail a copy by regular mail to D at D’s 1) Actual place of business or 2) Last known residence |
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What are the relevant time constraints for the leave and mail method of service?
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The two steps must be performed w/in 20 days of each other, and both steps must take place w/in 120 days of filing process
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What are the steps required in the "affix and mail" method of serving process?
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Affixing
1) Attaching process to the door of D’s A. Actual dwelling place, or B. Actual place of business Mail a copy by regular mail to D at D’s 1) Actual place of business or 2) Last known residence |
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What are the relevant time limits for the affix and mail method of service of process?
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The two steps must be performed w/in 20 days of each other, and both steps must take place w/in 120 days from filing process
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What is required before a P is allowed to use the affix and mail method of service of process?
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Due diligence to effectuate:
1) personal delivery, or 2) leave and mail |
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What must a P do AFTER serving D w leave and mail or nail and mail process?
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P must file a proof of service
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When is service complete, for the purposes of leave and mail and nail and mail?
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10 days after filing proof of service
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What is expedient - or court-invented - service?
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Other methods of service impracticable → P may make an ex parte motion to the court for an order allowing an improvised, expedient method
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What special rules apply to service on an infant?
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1) D’s name goes on summons
2) Process served on one of the following adults A. Parent B. Guardian C. Any person w legal custody of D D. If infant married → adult spouse w/ whom infant resides 3) D > 14 → process must be served on adult and infant |
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How do you serve process on a mentally incapacitated D w a guardian?
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Process must be served on BOTH the guardian and the D
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How do you serve process on a mentally incapacitated D that has no guardian?
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Serve D directly
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How do you serve process on a D outside of NY?
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Use the same methods as you would to serve a D in NY
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Who may serve process to a D outside NY? (3)
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1) Anyone authorized under NY law (18, not party to action), who is a resident of NY
2) Anyone authorized to service process by laws of j/d where service is made 3) Any attorney licensed in j/d where service is made |
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What are the three ways to serve process on a corporation?
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1) Personal delivery
2) Service on the NY Secretary of State 3) Service by First-Class mail and acknowledgment |
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Who may personal service be made upon when serving a corporation?
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1) Officer
2) Director 3) Designated agent 4) Managing agent 5) Cashier or assistant cashier |
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How do you serve process on a domestic or licensed corporation, using the the NY Sec of State?
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Personally deliver two copies to the NY Sec of State
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How do you serve an unlicensed foreign corporation using the NY Sec of State method?
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1) personally deliver 1 copy to the Sec of State, and
2) mail 1 copy by certified mail to the corporation |
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When is service complete, when serving a corporate defendant using the NY Sec of State method?
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Service is complete upon delivery to the secretary of state
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What are the steps required for service using first-class mail?
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1) Mail process to D by first-class mail
2) Enclose two copies of statutory acknowledgement form, plus return envelope, postage paid, addressed to sender 3) Service effective only if D signs and returns acknowledgment forms to P w/in 30 days after D receives mailed process |
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When is service complete, when using the first-class mail method?
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service is complete upon D's posting of the signed acknowledgment form
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What are the three scenarios in which a D is subject to general personal j/d in NY?
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1) presence in NY
2) doing business in NY 3) domicile in NY |
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What are the three scenarios in which a D is subject to specific personal j/d in NY?
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1) long-arm statute
2) non-resident motorist statute 3) consent |
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When is a domestic corporation subject to general PJ in NY under the "doing business" category?
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Always
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When is an authorized foreign corporation subject to general PJ under the "doing business" category?
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Always
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When is an unlicensed foreign corporation subject to general PJ in NY under the "doing business" category?
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At the time the action is commenced, corporation’s agent’s or employees are in NY engaging in commercial activity for the corp on a regular, systematic, ongoing basis
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What is a domicile?
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Residence + intent to stay
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What is long-arm j/d?
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PJ on the basis of certain acts by D that have sufficient connection w NY, provided that P’s claim arises from those acts
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What are the five categories of long-arm jurisdiction?
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1) Transaction of business by D in NY
2) K made outside NY, in which D agrees to provide goods and services in NY 3) Commission of tortious act in NY 4) Tortious act outside NY, which causes injury in NY 5) D’s ownership, use, or possession of real property in NY |
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For long-arm j/d based on a K made outside NY, in which D agrees to provide goods and services in NY, what is required of the contract in order to be sufficient?
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The contract must be economically significant
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What is the one category of tort in which long-arm j/d cannot be based on commission of a tort in NY, or harm caused in NY?
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Defamation
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What is required for long-arm j/d based on a tortious act outside of NY, which causes harm in NY (in addition to the harm and the tort)
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Some additional link between defendant and NY.
E.g. 1) D regularly solicits business or engages in any other persistent course of conduct in NY 2) D derives substantial revenue from goods used or consumed, or services rendered, in NY 3) D expects or should reasonably expect the act to have consequences in NY and derives substantial revenue from interstate or international commerce |
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To what kinds of defendants can the long-arm statute be applied?
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All kinds of defendants, individual and corporation
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What is the due process requirement for the use of a long-arm statute?
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Requires conduct purposefully directed to NY, such that D should reasonably anticipate being sued in NY ct
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When does the non-resident motorist statute confer PJ?
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Confers PJ over an accident claim arising from a nondomicilliary motorist’s ownership or use of an auto on NY roadway
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How must servive of process be effectuated w/r/t the non-resident motorist statute?
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1) Personally serve one copy to Sec of St AND
2) Mail one copy by certified mail to D’s out-of-state residence |
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When does a court have personal j/d over an action to obtain a divorce/annulment/separation?
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P must be domiciliary of NY
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When does a court have personal j/d to decide an action to obtain monetary support relating to a marriage?
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1) regular basis of personal j/d, or
2) matrimonial long-arm statute |
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When is a marriage D subject to PJ in NY under the matrimonial long-arm statute?
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If P is resident of NY, long-arm j/d over D if
1) NY was matrimonial domicile of P and D prior to separation 2) D abandoned P in NY 3) D’s monetary obligation accrued under an agreement executed in NY 4) D’s monetary obligation accrued “under the laws of NY |
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How must actions for monetary support relating to a marriage be served on the D?
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Personal service, unless court order
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When is there NO durational requirement for a matrimonial action?
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Both parties NY residents at time action commenced, AND grounds for matrimonial action arose in NY
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When is there a ONE-YEAR durational requirement for a matrimonial action in NY?
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Either party has been a NY resident for a continuous period of 1 yr immediately prior to the action AND one of the following:
1) Marriage took place in NY 2) NY was the matrimonial domicile of the souses at some point 3) Grounds for divorce action arose in NYW |
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When is there a TWO-YEAR durational requirement for a matrimonial action in NY?
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Either party has been a NY resident for continuous period of 2 yrs immediately prior to the action
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In an action where the judgment would affect title of possession to real property, where is proper venue?
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County in which real property is located
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For all actions where judgment would NOT affect title or possession of real property, where is proper venue?
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1) Any county in which one of the parties resides at the time the action is commenced
2) If no party NY resident → any county is proper |
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When may a judge change venue at his discretion?
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Upon motion, for
1) convenience of material witnesses, or 2) impartial trial cannot be had in the county where the action is commenced |
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What are the two ways in which a D can respond to a summons and complaint?
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1) answer
2) pre-answer motion |
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What types of claims are the proper subject of a cross-claim between defendants?
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Can be based on any type of claim that D has against the other D’s. Does not have to relate to the main claim
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On whom must pleadings be served?
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Parties must serve copies of their pleadings on all other parties who have appeared in the action
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How are interlocutory papers served? (4)
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1) Regular mail
2) Personal delivery 3) Fax 4) Overnight courier |
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In serving interlocutory papers by first-class mail, where must the papers be mailed from?
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Must be made through a post office or official depository under exclusive care and custody of USPS w/in NY
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When is service by fax of an interlocutory complete?
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Service is complete when a follow-up copy is MAILED
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What is the time limit for serving an answer, when process was served on D via personal service?
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20 days
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What is the time limit for serving an answer, when process was served on D by first class mail plus acknowledgment?
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20 days after mailing the acknowledgment
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What is the time limit for serving an answer for all methods of serving process besides personal service and first-class mail?
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30 days after service is complete
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What are the eight grounds for a motion to dismiss?
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1) Documentary evidence as the basis for defense
2) Other action pending btw same parties on same cause of action 3) Want of capacity of P 4) Non-joinder of necc party 5) Failure to state COA 6) All affirmative defenses 7) Lack of PJ 8) Lack of SMJ |
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What are the 9 affirmative defenses that are grounds for a motion to dismiss?
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1) SL
2) Payment 3) Arbitration and award 4) res judicata 5) collateral estoppel 6) release 7) infancy of D 8) bankruptcy discharge 9) statute of frauds |
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What three categories of errors fall under the umbrella of a motion to dismiss for lack of PJ?
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1) Improper commencement/filing
2) Improper service of process 3) Lack of j/d |
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What is the effect of filing a pre-answer motion to dismiss, on D's time limit for filing an answer?
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Making the motion extends D’s time to answer. If the motion denied → D must answer w/in 10 days
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How many pre-answer motions can be made by a single D?
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One
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Can a defense be raised in the answer, or must it be raised in a pre-answer motion to dismiss?
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Defenses may be raised in the answer
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If a D raises some defenses in a pre-answer motion to dismiss, are all other defenses waived?
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No. Pre-answer mot to dismiss on any grounds above does not preclude (waive) raising any other grounds in answer
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What defense IS waived if not included in a pre-answer motion to dismiss?
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Lack of PJ
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What is the general effect of not including a defense in an answer?
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It is waived
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What defenses are not waived even if not included in the answer?
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1) Non-joinder of a necc party
2) Failure to state a COA 3) Lack of SMJ |
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What is D's proper response to a summons + notice
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1) serve a notice of appearance, and
2) demand complaint |
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What are the time limits for a D to serve a notice of appearance and demand for complaint, in response to a summons + notice?
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1) 20 days for personal service in NY
2) 20 days after acknowledgment for service via First Class mail 3) 30 days after completion for all other service methods |
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What is P's response time after receiving a notice of appearance and demand for complaint from D?
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P must serve complaint w/in 20 days of D’s service
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What are P's options if D serves a notice of appearance and demand for complaint, and P fails to serve the complaint w/in 20 days?
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To avoid dismissal, P must:
1) Establish reasonable excuse for delay,and 2) Submit an affidavit of merit of P’s claim |
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Does a notice of appearance and demand for complaint constitute a waiver of any defenses?
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No
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Does a party have a right to amend their pleading?
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Each party is entitled to amend her pleading once as a matter of right
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What may be included in an amendment as of right to a pleading?
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May include anything that could have been in the original pleading, including PJ objection
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What is the time limit for amending a pleading as of right?
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20 days after D serves the answer
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When will a court grant a party leave to amend their complaint, outside an amendment as of right?
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Amendment will be allowed if opponent has suffered no incurable prejudice
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Does a D need to make a motion to implead a third party?
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No
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What are the steps required for a D to implead a third party?
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1) File summons + third party complaint w county clerk
2) Serve summons and third party complaint, and all prior pleadings, on third party D w/in 120 days of filing |
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What is the time limit for a TPD to respond to an impleader against them?
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same as would apply to an ordinary D
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How does impleader of a TPD affect P's right to amend their complaint?
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After TPD joined, P may amend complaint to assert a claim directly against TPD
1) w/in 20 days → no need to make mot or obtain ct permission 2) after 20 days → need motion and obtain ct permission |
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When a P amends a complaint to include a claim against an impleaded TPD, how is the statute of limitations calculated with regards to this claim?
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For SL purposes, P’s added claim against TPD deemed interposed on date TPD was impleaded, provided claim against TPD based on same transaction or occurrence as the impleaded claim
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When is indemnity implied at law?
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1) products liability
2) vicarious liability |
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On the MBE, what is the effect of an intentional tort on claims for contribution?
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Contribution is not available where the nature of the conduct is intentional wrongdoing
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In NY, what is the effect of an intentional tort on claims for contribution?
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Contribution is available in all tort cases, including intentional torts
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How is contribution calculated in both NY and on the MBE?
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Amt of contribution to which a tortfeasor is entitled is the excess actually paid by him over and above his equitable share of the judgment (based on comparative fault)
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Can a party from whom contribution is sought ever be required to pay more than their proportionate share?
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No
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Do the rules of contribution change the rules of joint and several liability?
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No. 3. The rules of contribution do not change the right to joint and several liability → one party can be required to pay full amount, even if only some % liable, if all other Ds are insolvent
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When does a D have a right to contribution?
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Right to contribution exists whenever TPD breached a duty in tort which contributed to or aggravated the damages for which D may be held liable to P
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What is the one type of case in which contribution may not be sought?
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Worker's compensation. Under workers comp law, employee may not sue employer, regardless of fault.However, employee can sue third person who is partially at fault (e.g. manufacturer). Third party is barred from seeking contribution or indemnity from P’s employer unless P has sustained a grave injury
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What is a grave injury for the purposes of the worker's compensation exception to contribution?
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Death, total loss of an arm, leg, hand, foot, nose, ear, or index finger; total loss of multiple fingers or toes; paraplegia or quadriplegia; severe facial disfigurement; total deafness or blindness; brain damage causing total disability
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What is the primary distinction between the worker's compensation exception to contribution in NY and on the MBE?
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MBE: D never has a right to contribution against employer
NY: Third party has right to contribution against employer where she can show grave injury |
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What is the statute of limitations for seeking contribution?
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6 years from the date of payment
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In a case w multiple D, how does the settlement of one tortfeasor affect the judgment against the non-settling tortfeasors?
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Any judgment for P against a non-settling tortfeasor must be reduced by the larger of:
1) The amount of the settlement, or 2) The settling tortfeasor’s equitable share of the fault |
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What is the effect of a settlement on the settling tortfeasor's claims for contribution?
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Claims for contribution cannot be asserted by or against a settling tortfeasor
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What is the effect of a settlement on the settling tortfeasor's claims for indemnity?
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Settlement does not extinguish claims for indemnification by or against a settling tortfeasor
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How does CPLR art. 16 modify the rule for joint and several liability in NY?
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In general, if a joint tortfeasor is less than 50% at fault, they are only required to pay their PROPORTIONATE share of NON-ECONOMIC damages.
They are still jointly and severally liable for all economic damages |
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What three categories of defendants are excluded from the CLPR art. 16 modification to joint and several liability?
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1) Tortfeasors who acted w intent or reckless disregard for the safety of others
2) Tortfeasors who released a hazardous substance into the environment 3) Drivers and owners of automobiles other than police and fire vehicles |
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What is a motion on notice?
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A motion on notice gives the adversary an opportunity to be heard in opposition
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In a motion on notice, what papers are served on the other party?
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1) Notice of motion
2) Affidavits (why you are entitled to relief) 3) Memos of law |
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When is a motion "made"?
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A motion is made when it has been served (i.e. when it has been dropped in the mail)
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What is the "return date" of a motion?
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The return date is the day upon which the motion papers are presented to the court
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How much notice (i.e. time) is required to be given to an adversary party, for a motion made on notice?
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Moving party must serve motion papers on opponent at least 8 days before the return date
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In addition to serving a motion on the adversary party, what must a movant do with the motion?
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File with the court,
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By when must a movant file their motion with the court?
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By the return date
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What is an order to show cause?
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The order to show cause is a preliminary order, signed ex parte by the judge, directing the adversary to show cause, on a date specified by the judge, why the motion should not be granted
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What are the three reasons why a party might prefer to make a motion by an order to show cause?
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1) Means of accelerating the return date
2) Judge can grant immediate stay of the proceedings or a temporary restraining order 3) Statute may require it |
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What is the proper method for a judge to issue a deciding order?
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Court’s decision must be embodied in a written order, signed by the court
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What is required to serve the deciding order?
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Prevailing party must serve a copy on the losing party w notice of entry of the order
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What is the effect of service of a deciding order upon the non-prevailing party?
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1) Necessary to give effect to the order
2) Service starts the time to appeal |
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In NY, may a party make an interlocutory appeal from a decision on a motion on notice?
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Generally, yes
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What is the process for a party who wishes to appeal a decision on a motion on notice?
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1) file and serve a notice of appeal
2) w/in 30 days from service |
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What is an ex parte motion?
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A motion in which no advance notice is given to the adversary, i.e. w/o giving any opportunity to be heard in opposition
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When may a party make an ex parte motion?
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Only w express statutory authorization
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What is the absent party's remedy to an adverse decision on an ex parte order?
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1) Ex parte motions are not appealable
2) Opponent must make a motion to vacate the ex parte order 3) If motion to vacate denied → opponent may appeal denial of motion to vacate |
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When should a motion for summary judgment be granted?
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When there is no genuine issue of material fact requiring trial, and a party is entitled to judgment as a matter of law
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How does a person demonstrate that they are entitled to summary judgment?
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submit evidence in the form of affidavits, documentary evidence, or discovery materials
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What is the requirement for affidavits made in support of a motion for summary judgment?
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They must be based on personal knowledge
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How does a party defeat a motion for summary judgment?
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Opponent must provide evidence that there is a triable issue of fact
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What may a judge do if the opponent to a motion for summary judgment can establish, w/ an affidavit that he is not yet able, through no fault of his own, to produce opposing evidence?
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1) deny the motion, or
2) grant a continuance to permit additional evidence to be obtained |
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What is the time limit for making a motion for summary judgment?
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A motion for summary judgment must be made w/in 120 of the filing of a notice of issue (which places the trial on the calendar)
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Under what circumstances may a motion for summary judgment be made after the typical deadline (i.e. after 120 days from the filing of a notice of issue)?
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For good cause
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Can a party generally move for summary judgment prior to the answer?
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No
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When can a party move for summary judgment prior to the answer?
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1) Judge converts motion to dismiss to a motion for summary judgment, or
2) Motion for SJ in lieu of complaint |
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What is required before a court can convert a party's motion to dismiss to a motion for summary judgment?
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1) Parties must have submitted factual affidavits
2) Ct must give advance notice to parties of the conversion to give them a chance to submit additional evidence |
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When may a motion for summary judgment be made in lieu of a complaint?
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1) Action based on an instrument for payment of $ only (E.g. promissory note, negotiable instrument)
2) Action on an out-of-state judgment |
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What is the return earliest return date after a party has made a motion for summary judgment in lieu of a complaint?
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1) Personal service on D in NY: At least 20 days
2) Service via any other method: At least 30 days |
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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) Notice of pendency |
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In what types of actions may a P seek an attachment?
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P must be seeking money damages, AND
1) D is an unlicensed foreign corporation or non-domiciliary residing outside NY, or 2) D is about to conceal or remove assets from NY w intent to defraud creditors or frustrate enforcement of judgment |
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What is the only provisional remedy that does not require the P to make a motion?
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Notice of pendency
|
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What are the requirements of a motion for an attachment?
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1) Affidavits showing grounds above
2) Probability of success on the merits 3) Undertaking (P must post a bond to indemnify D for any damage or expenses caused by P) |
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May a motion for an attachment be made ex parte?
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Yes
|
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What are the additional requirements necessary for an attachment motion to be made ex parte?
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1) Due process requires prompt hearing after seizure of D’s property
2) After sheriff levies on D’s property, P must make a follow-up motion, on notice, to confirm ex parte order of attachment |
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What is the time limit for a P to make a follow-up motion on notice for an attachment, after having been granted an ex parte motion for an attachment?
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1) D unlicensed foreign corporation or non-domiciliary residing outside of NY: Motion to confirm must be served w/in 10 days after levy
2) D is fraudulently moving assets: Motion to confirm must be served w/in 5 days after levy |
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In what types of actions may P seek a preliminary injunction?
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An equity action where P seeks either:
1) Permanent injunction, or 2) D threatens to harm P’s interest in the subject matter of the action |
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May a motion for a preliminary injunction be made ex parte?
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No
|
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What are the requirements of a motion on notice for a preliminary injunction?
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1) P’s affidavits must show grounds for equitable relief
2) Affidavits must show probability of success on the merits 3) Undertaking (if motion granted) to indemnify D for damages if it is later determined that the preliminary injunction should not have been granted |
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When is P entitled to a temporary restraining order?
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When there is a threat of immediate irreparable harm
|
|
May a motion for a temporary restraining order be made ex parte?
|
Yes
|
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What is required in order for a party to move for a temporary restraining order ex parte?
|
Affidavit demonstrating that there will be significant prejudice to party seeking TRO if notice is provided to adversary
|
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What is the procedure for obtaining a temporary restraining order?
|
1) Make motion for preliminary injunction by an order to show cause
2) In order to show cause, judge can accelerate return date and include TRO |
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What is a temporary receiver?
|
A temporary receiver is a person appointed by the court to manage D’s property pending the outcome of an equity action in which the property is the subject of the action
|
|
In what types of actions may P seek a temporary receivership?
|
1) P must be asserting an equity claim, and
2) Danger that D will injure or destroy the value of the property while the action is pending |
|
What is a temporary receiver?
|
A temporary receiver is a person appointed by the court to manage D’s property pending the outcome of an equity action in which the property is the subject of the action
|
|
In what types of actions may P seek a temporary receivership?
|
1) P must be asserting an equity claim, and
2) Danger that D will injure or destroy the value of the property while the action is pending |
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May a motion for a temporary receivership be made ex parte?
|
No
|
|
In what types of action may P seek a seizure of chattels?
|
In an action for replevin seeking to recover possession of actual chattel
|
|
What are the requirements of a motion seeking seizure of chattel?
|
1) P’s affidavit must show probability of success
2) Undertaking |
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May a motion for a seizure of chattels be made ex parte?
|
Yes
|
|
What additional requirements exist if a P wishes to make an ex parte motion for seizure of chattels?
|
1) P must show threat of immediate loss of chattel
2) Ex parte order granted → P must make a follow-up motion by order to show cause w/in 5 days of impoundment to confirm ex parte order |
|
What is a notice of pendency?
|
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
|
|
In what types of actions may P seek a notice of pendency?
|
Equity action in which the judgment will have a direct effect on title, possession, or use of real property
|
|
In what type of action is a notice of pendency required?
|
Mortgage foreclosure actions
|
|
What is the procedure for seeking a notice of pendency?
|
1) P files notice of pendency w county clerk of the county in N Yin which the property is located
|
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Does a notice of pendency require a court order?
|
No
|
|
Does a notice of pendency require an undertaking?
|
No
|
|
What is D's remedy in response to a notice of pendency?
|
Motion to cancel notice of pendency
|
|
How long does anotice of pendency last?
|
Three years
|
|
May a notice of pendency be extended after the initial three-year term is up? If so, how so?
|
Yes. Motion must be made prior to expiration date
|
|
What is a note of issue?
|
A note of issue is how a matter is placed on the trial court’s calendar, after discovery
|
|
Who may make a notice of issue? How is it made?
|
1) May be made by either party
2) Filed w the county clerk |
|
How does the party who files the note of issue obtain a jury trial?
|
Party who files a note of issue must make a demand for a jury trial in the note of issue
|
|
If the party filing a notice of issue does not make a demand for a jury trial in the notice of issue, is their right to a jury trial waived?
|
Yes
|
|
How does the party NOT filing the notice of issue seek a jury trial?
|
Other parties who want a jury trial when filing party has not requested it must serve and file their own demand w/in 15 days of service of the original note of issue
|
|
In what 5 actions does a party have a right to a jury trial?
|
1) Action seeking solely $ damages
2) Replevin 3) Claim to real property 4) Annulment of marriage 5) Divorce action (but not $ support or child custody) |
|
How many jurors are on a NY jury?
|
6
|
|
How many jurors must be in agreement on a verdict in order for the verdict to be valid?:
|
5 out of 6. Unanimity is not required.
|
|
When does res judicata bar a claim in NY?
|
If claim against D has been brought to final judgment on the merits, all other claims by P against D are barred if they arise out of same transaction or occurrence, even if based on different theories, or seeking different remedies
|
|
What is the one situation in which res judicata will not bar a claim, despite the fact that it arose out of the same transaction/occurrence as a previous claim between the same P and D?
|
Spouse-1 v. Spouse-2 for personal injuries arising out of assault, AFTER Spouse-1 v. Spouse-2 for divorce based on cruel and unusual treatment
|
|
When will collateral estoppel prevent the relitigation of a fact?
|
1) Issue in former and current proceeding is identical
2) Issue was necessarily litigated and decided in the former proceeding 3) Party against whom issue preclusion is asserted had a full and fair opportunity to litigate the issue in the former proceeding |
|
When may a party use a "special procedure" (i.e. streamlined, speedy)?
|
when there is specific statutory authorization to do so
|
|
What are some examples of types of action for which special procedures are available?
|
probate of a will, election disputes, summary proceeding by a landlord for eviction, dissolution of a corporation, habeas corpus, enforcement of an arbitration agreement
|
|
If a party erroneously initiates a special procedure, will the action be dismissed?
|
No. Court will convert special proceeding to a traditional action
|
|
What is filed to initiate a special procedure?
|
A petition
|
|
By when must a petition for a special procedure be served?
|
W/in 15 days after expiration of statute of limitations of special proceeding
|
|
How is a petition for a special proceeding served on the D?
|
Same methods used to serve process in a traditional action
|
|
What is the earliest return date for a special proceeding? (generally)
|
No sooner than 8 days from when service is complete
|
|
What is the one situation in which a special proceeding requires a return date more than 8 days from when service is complete? What is the return date?
|
Art 78 proceedings require a return date no sooner than 20 days from when service is complete
|
|
What 5 issues re: arbitration may be properly adjudicated by a NY court?
|
1) Did the parties agree to arbitrate?
2) Dispute w/in the scope of the arbitration clause? 3) Arbitration clause valid? 4) Express condition precedent to arbitration, and has it been complied w? 5) Statute of limitations |
|
What are the three grounds for judicial review of an arbitration award?
|
1) Corruption/fraud/misconduct in an arbitration proceeding
2) Partiality/bias of arbitrator chosen to be neutral 3) Arbitrator has exceeded her powers |
|
What is an Art. 78 proceeding?
|
Art. 78 of the CPLR authorizes a special proceeding for judicial review of action by governmental or quasi-governmental officers or bodies of any kind
|
|
What are the four common law writs that govern a petitioner's right to relief under an Art. 78 proceeding?
|
1) mandamus to compel
2) prohibition 3) certiorari 4) mandamus to review |
|
What kind of showing does a petitioner have to make in order to succeed on an Art. 78 proceeding?
|
That his case would have been subject to review under one of 4 common law writs
|
|
What is the writ of mandamus to compel?
|
A procedure to compel the performance of an act required by law – an act as to which no discretion is involved
|
|
What is a writ of prohibition?
|
A proceeding to stop a judicial officer from exercising power that exceeds the officer’s lawful jurisdiction
|
|
What is a writ of certiorari?
|
A proceeding to challenge the results of a “trial-type” hearing conducted by an administrative agency
|
|
What is a writ of mandamus to review?
|
1. Procedure to review any type of administrative action not covered by the other three writs under Art. 78. It is most often used to challenge an agency determination that was made w/o trial-type hearing
|
|
In what court must an Art 78 proceeding be brought?
|
The Supreme Court
|
|
What is the statute of limitations for an Art. 78 proceeding?
|
4 months from the date petitioner's receipt of the action being challenged
|
|
By when must an Art. 78 proceeding be served?
|
At least 20 days before the return date
|
|
Exotoxins released by Streptococcus pyogenes?
|
Scarlet fever (superantigen)
1. Erythrogenic 2. Causes toxic shock-like syndrome Streptolysin O (hemolysin). The antigen for ASO antibody is found in rheumatic fever |