New York Practice

Front 1

SOL for medical malpractice

Back 1

2 1/2 years

Front 2

SOL for professional malpratice

Back 2

3 years

Front 3

SOL for Products liability

Back 3

3 years

Front 4

SOL for personal injury/negligence

Back 4

3 years
(same for strict liability)

Front 5

SOL for UCC contracts

Back 5

4 years

Front 6

SOL for non UCC contracts

Back 6

6 years

Front 7

SOl to recover for real property

Back 7

10 years

Front 8

SOL for actions by the state to recover real property; enforcement of judgment or recovery of bonds

Back 8

20 yrs

Front 9

SOl for serious violent crime/felony

Back 9

10 yrs

Front 10

SOL for wrongful death

Back 10

2 years

Front 11

SOL for intentional tort

Back 11

1 yr from act

Front 12

SOl for Fraud

Back 12

2 years (after fraud is discovered)

Front 13

Tolls for Defendants Absence

Back 13

a) If D is not in NY, SOL wont run until D comes to NY
b) If in NY, but then leaves and is absent for at least 4 mths, toll applies to entire period of absence

Front 14

Toll on Infancy/Insanity

Back 14

When Disability ends (18 yrs or no longer insane)
a) If original SOL 3 years or more - then P gets 3yrs
b) If SOL originally was less than 3yrs - Take the original SOL.

Front 15

Borrowing Statute

Back 15

Prevents forum shopping
If COA arises from outside NY:
a)NY will apply the SOL where COA arose if it is shorter than NY
**If SOL of out of state is longer, than NY will apply NY SOL.

Front 16

Survival Claim

Back 16

Brought by estate:
Any COA that P could have brought if still alove. Include all damages incurred prior to death (i.e., pain and suffering)

Front 17

Wrongful Death

Back 17

Brought by Surviving family:
COA for economic damages. Punitive damages are recoverable by emotional suffering NOT allowed.

Front 18

SOL on Survival Claim

Back 18

SOL is time remaining on Decedents claim for 1 year drom date of death

Front 19

SOL of Wrongful Death

Back 19

SOL is 2 yrs from date of deeath (but must show that the claim would still be timely)

Front 20

Grounds for Motion to Dismiss (CPLR 3211)

Back 20

DOWNFALL
Documentary Evidence
Other Action Pending
Want of capacity
Necessary Party
Failure to State a Claim
Affirmative Defenses
Lack of PSJ
Lack of SMJ

Front 21

Affirmative Defenses for Answer or Motion to Dismiss

Back 21

SPARERIBS
SOL
Payment
Arbitration Award
Release
Estoppel
Res Judicata
Infancy of D
Bankruptcy Discharge
SOF

Front 22

Pre-Answer Motion to Dismiss

Back 22

Motion made before answer is served
Extends time to answer, if motion denied, D must sevre answer in 10 days

Front 23

How to preserve Personal Matter Jurisdiction

Back 23

Before serving answer, make 3211 an affirmative defense that lacks PJ or
Make no pre-answer motion and instead include lakc of PJ as affirmatve defense in answer

Front 24

Supreme court has exclusive SMJ over..

Back 24

Matrimonial actions
Article 78 Proceedings
Declaratory judgment

Front 25

Discovery Rule in cases od exposure to Toxic Substances

Back 25

SOL starts to run when inury is discovered or should have been discovered (reasonably) whichever is earlier.

Front 26

Sol Continuous Treatment (use medical malpractice)

Back 26

SOL begins from the date of last treatment

Front 27

Foreign Objects Exception (SOL)

Back 27

If doctor left foreign object, the suit may be brought within 2 yrs and 6 mths of operation or within 1 yr from date of discovery.

Front 28

Time limit for making a motion for summary judgment

Back 28

After service of the answer, any party can move for SJ within 120 days from note of issue.

Front 29

How to satisfy the burden for MSJ:

Back 29

Satisfy the burden of proof through affidavits from people with actual knowledge of the facts

Front 30

How do you defeat the MSJ?

Back 30

If opponent can show that there is a material fact at issue

Front 31

What does "Searches the record" mean?

Back 31

When you file a motion for SJ that searches the record.
Means court will review all evidence of the records regardless of who submitted the MSJ.

Front 32

Motion for SJ in lieu of complaint

Back 32

P can move for Summary Judgment at the same time she serves process in 2 types of action:
1. Action for the payment of money only(must contain D's unconditional promise to pay)
2. Action on out of state judgment

Front 33

What happens if the opponent of a MSJ can not establish affidavits to support that a material fact is at issue?

Back 33

Court can deny the motion or grant a continuance to permit additional evidence to be obtained.

Front 34

What is a Motion for Summary Judgment?

Back 34

There is no GENUINE ISSUE OF MATERIAL FACT requiring a tria;. The moving party is contending that a reasonable persons can differ and therefore entitled to JUDGMENT AS A MATTER OF LAW

Front 35

Basis of Personal jurisdiction over defendant

Back 35

1. D was physically present in NY when served with process
2. D is doing business in NY
3. D is NY domiciliary
4. D is nondomiciliary subject to NY long arm
5. D is nondomiciliary driver or owner of motor vehicle in NY accident
6. D consented to NY jurisdiction

Front 36

NY long arm statute

Back 36

Claim must be based on any one of the following:
1. Transaction of business in NY
2. Contract to supply goods or services in NY
3. Tortious act in NY
4. Tortious act outside of NY causing injury in NY (D must have addt'l ties to NY)
5. D's ownership of real property in NY

Front 37

Proper Process of Service on Individual

Back 37

1. Personal delivery
2. Leave and mail
3. Nail and mail
4. Expedient service via court order
5. Service on designated agent of D
6. Service by 1st class mail, provided D returns acknowledgment form

Front 38

Proper Process of Service on Corporation

Back 38

If Domestic or licensed foreign corporation:
2 copies of service on NY secretary of State
If unlicensed foreign corporation:
1 copy to secretary of state and 1 copy by certified mail to corp.

Servce by 1st class mail, provided D returns acknowledgment form
Expedient service via court order

Front 39

Who is allowed to process service

Back 39

Any person 18 yrs or older authorized by law who is not a party to the action.

Front 40

Timing after Summons and Complaint

Back 40

1. 20 days after personal delivery
2. 20 days after D returns acknowledgment form (if served by 1st class mail)
3. 30 days after service in all other circumstances

Front 41

Transfer and Removal

Back 41

A case may be transferred from one court to another when it appears that the transferee court is the appropriate one to make the ultimate disposition of the matter.

Front 42

Forum non Conveniens

Back 42

If, upon motion of a party, the court finds that the interests of substantial justice require an action to be heard in the court of some other state, it may stay or dismiss the action in whole or in part.

Front 43

What is accrual of SOL?

Back 43

The SOL on a claim starts to run at the time the CAUSE OF ACTION accrues

Front 44

What days are service allowed?

Back 44

All days except for Sunday. If however, the party's sabbath is Saturday you may not serve that day. HOLIDAYS are allowed for service, provided not SUNDAY.

Front 45

Personal Delivery

Back 45

Within the presence or purview of the defendant

Front 46

Leave and Mail Service

Back 46

Delivery to one of suitable age at the defendants actual place of business, dwelling place, or usual place of abode, and a 1st class mailing of a copy of summons and complaint to the defendant's last known residence or actual place of business.

Front 47

Nail and Mail

Back 47

CANNOT be used if service can be accomplished with due diligence by physical delivery or leave and mail.
The "affixing" must be followed by a 1st class mailing either to the defendant's last known residence or actual place of business.

Front 48

Expedient Service

Back 48

Can only occur with the courts permission after an ex parte application is made

Front 49

Service on Infants

Back 49

Personal service upon an infant is made by personally serving the summons withing the state upon a parent or any guardian or any person having legal custody (If infant is 14, serve upon him/her as well)

Front 50

Service on person declared incapacitated

Back 50

Personal service upon the incompetant and his committee

Front 51

Whom can you serve on a Corporation?

Back 51

Officer, director, managing or general agent. cashier, or agent authorized by appointment or law to receive service.

Front 52

Physical Presence

Back 52

A person served with process while he is within the borders of the state is subject to PJ as to any and all claims.

Front 53

Two Restrictions on the courts exercise of personal jurisdiction based on physical presence:

Back 53

If it resulted from Fraudulent enticement into the state
and
To which immunity attaches.

Front 54

Corporate Presence - "Doing Business" in NY

Back 54

The test is whether in state activity is substantial to make an unauthorized foreign corp amenable to any and all suits in NY. PERMANENCE and CONTINUITY of corporate activity is required (within the state)

Front 55

Domicile

Back 55

The place where an individual has his permanent home or principal establishment, to where, whenever he is absent, he has the intention of returning. You can only have ONE domicile.

Front 56

Residence

Back 56

The place of general abode; principal, actual dwelling place in fact, without regard to intent. You can have more than one residence. (A residence is generally tran-sient in its nature)

Front 57

What is the definition of Long Arm Statute

Back 57

Long arm jurisdiction is limited to a COA arising from the commission of certain acts by nondomiciliaries within the state.

Front 58

Service in Long Arm

Back 58

A D may be served out of state in the same manner as NY

Front 59

Venue (Define)

Back 59

Venue refers to the geographic location of a court that may hear a case

Front 60

Jurisdiction (Define)

Back 60

Jurisdiction refers to the POWER of the court to hear a particular type of case

Front 61

Permissive Joinder

Back 61

P or D may join or be joined if there is 1) a common question of law or fact which will arise as to each of the parties sought to be joined 2) if the common question arises out of the same transaction.

Front 62

Misjoinder

Back 62

Is never grounds for dismissal; the improper party is merely dropped.

Front 63

Interpleader

Back 63

Is available when a stakeholder is under a conceded obligation to pay certain money but has been confronted with conflicitng claims ot the performance of the obligation. The stakeholder may join conflicting claimants in an action to determine who is liable.

Front 64

Intervention

Back 64

This involves a situation where a person not joined wishes to become a party

Front 65

Permissive Intervention

Back 65

A party may seek exercise of a courts discretion to allow him to intervene if he has a claim or defense containing a common question of law or fact

Front 66

Pleadings

Back 66

Pleadings should give notice to the court and the adversary of the material elements of each COA or defense asserted.

Front 67

Affirmative Defense

Back 67

The failure to plead an affirmative defense consitutes a waiver of the defense

Front 68

Counterclaim

Back 68

Counterclaims may be asserted in an answer but NOT a reply.

Front 69

Cross Claims

Back 69

One may assert any and all claims existing in his favor. Cross claims may be unrelated to the P suit and are asserted in answer

Front 70

Types of Motions

Back 70

Exparte Motions
Motions on Notice

Front 71

Responding to motion on notice

Back 71

If minimum notice is given, answer is to be given 2 days before hearing [8-2]
If papers are served 12 or 17 days before the hearing, answering papers may be served 7 days before the hearing date and reply papers 1 day. [12-7-1]

Front 72

Contents of Notice of Motion

Back 72

Specifies the place, date, time and papers on which the motion is based, the relief demanded and gorunds. The moving party sets time for hearing

Front 73

Motion to Amend Pleadings

Back 73

1) Can be made within 20 days after service
2) Before the time to reply has expired

Front 74

Jurisdiction based on Attachment

Back 74

The exercise of state court jurisdiction founded solely upon the attachment of the defendants in state property is UNCONSTITUTIONAL.
Attachment is obtainable in any action where the P demands money judgment

Front 75

Preliminary Injunction

Back 75

PI us sought in an action seeking permanent injunction. The P is required to show that the D is now doing or threatens to do that which suit seeks to stop.

Front 76

Disclosure

Back 76

CPLR requires disclosure of all matter material and necessary in the prosecuution or defense.

Front 77

Deposition

Back 77

Notice must be served at least 20 days prior to deposiiton date (25 if mailed)
Deposition of non party is obtained via subpoena and service to all parties.
Must be obtained through motion to the court after trial has begun.

Front 78

Notice to Admit

Back 78

All requsts not denied within 20 days are admitted. Request for admission may be served on any adverse party to the truth of any matter of fact.

Front 79

Notice of Issue

Back 79

A case is placed on the court calendar by service and filing of a note of issue.

Front 80

Right to a jury trial

Back 80

Under NY law there is a right to a jury trial in cases seeking judgment for money only

Front 81

Res Judicata

Back 81

Claim preclusion - applies to when there has been a final judgment on the merits (final conclusion) in an earlier action btwn same parties. It BARS relitigation of any issue decided in the 1st action.

Front 82

Collateral Estoppel

Back 82

Issue preclusion- applies when a litigant attempts to rety an issue which has been finally determined on the merits

Front 83

Doctrine of Collateral Estoppel has 2 components

Back 83

1) Affirmative use against a losing party in the 1st proceeding to establish liability to a party in 2nd
2) defensive use against a losing party in the 1st proceeding to defeat his claim against party in the 2nd.

Front 84

Appeal

Back 84

An appeal must be taken within 30 days after the appellant is served with a copy of the judgment or order.

Front 85

Issue Preclusion applies when:

Back 85

1) The issue is identical with the issue decided in the prior proceeding
2) The issue was necessarily decided in the prior proceeding and
3) The litigant had a full and fair opportunity to litigate the issue in the prior

Front 86

Arbitration

Back 86

Arbitration agreements must be in writing but they need not be signed by either party.

Front 87

Grounds for challenging arbitration

Back 87

1) Corruption, fraud or misconduct
2) partiality of an arbitrator
3) The arbitrator has exceeed the powers granted to him or failed to make a definitive award w/scope pf the controversy
4) Failute to follow procedural rules

Front 88

A proceeding is not arbitrable if:

Back 88

1) the matter at issue was not embraced in the arbitration agreement
2) the agreement was induced by fraud
3) the agreement is subject to a condition precedent not yet fulfilled
4) the performance of the contract is prohibited by statute
5. The underlying claim is barred by SOL or res judicata

Front 89

Article 78 - Certiorari

Back 89

Proceedings in the nature of Certiorari is typically used to obtain judiical review of quasi judicial administrative action after a hearing and determination made by an agency

Front 90

Article 78 - Mandamus

Back 90

An article 78 proceeding in the nature of mandamus seeks judicial direction that an agency perform an act or seeks reveiw of agency determination made when no hearing was required to be held

Front 91

Article 78 - Prohibition

Back 91

Is typically used to obtain judicial retraint of actual or threatened administrative action in excess of the lawful powers of the admin agency.

Front 92

SOL on Article 78

Back 92

There is a 4 month SOL period for Article 78 proceedings

Front 93

General Verdict

Back 93

General verdict is a finding in favor of one or more parties CPLR 4111(a)

Front 94

Special Verdict

Back 94

the jury is asked to answer questions of the interrogatories, and then the judge has to make legal interpretation on these answers.
The jury verdict finds the facts only and the courts determines which party is entitled to judgment on the basis of findings.

Front 95

Directed Verdict

Back 95

At close of opponents case when opponent has failed to offer sufficient evidence as to matter of law. You waive it if you don’t request it.

Front 96

Post Verdict Motion

Back 96

contrary to weight of evidence. The court has to decide that the jury could not have made the decision made based on the evidence.

Front 97

Motion after Trial

Back 97

1. A motion under this article shall be made within 15 days after the decision, verdict or discharge of the jury. The court shall have no power to grant relief after argument or submission of an appeal from the final judgment.

Front 98

Amendment to Pleading

Back 98

ii. Each party is entitled to amend her pleading once as a matter of right without the need for judicial permission
iii. If there is an error in the summons, the summons can only be amended if there is no prejudice unless the defendant was fairly appraise of the action against her

Front 99

Timing for Amendment

Back 99

1. Within 20 days of the pleadings service
2. Before the period for responding to the pleading has expired (assuming a responsive pleading is required)
3. Within twenty days of receipt of a responsive pleading,

Front 100

Necessary Joinder

Back 100

i. CPLR 1001(a) A party is a necessary party to an action if she is needed to allow for complete relief between the parties who are already in the action or that missing party might be inequitably effected by a judgment in the action

Front 101

Order to SHow Cause

Back 101

i. Moving party drafts the order, takes it to the court house, submits it to a judge with the supporting affidavits for the underlying motion.
Presumably the judge signs it, sets the return date, and specifies the method of serving the papers on the adversary. Usually since moving quickly the judge has it be served by personal delivery.
ii. Judge gives the motion back to the moving party who has to serve it, with the motion itself, on the opponent. That way the opponent is given notice of the return date and can submit opposition papers on the return date

Front 102

Forms of Summons

Back 102

i. The summons advises defendant that plaintiff is suing in a particular court. The complaint is plaintiffs pleading which specifies the transaction or occurrence that is the subject matter of the action and spells out the essential elements of plaintiffs cause of action.
ii. When the summons is not accompanied by a complaint it must have sufficient notice inscribed on the face of the summons or on one page attachment. The notice consist of
1. Brief statement of nature of action
2. Specific nature of relief sought – damages
3. If you want damages you must specify
iii. If plaintiff files a naked summons (unaccompanied by complaint or notice) the action is subject to dismissal, defendant make an objection.
iv. Summons with notice: When the summons is not accompanied by complaint, The notice has to state 3 things: the nature of the action, the relief being sought and damages on default.