New York Practice

Front 1

What are the 3 basic requirements to bring a COA in NY?

Back 1

1. SMJ
2. PJ
3. DP (notice and hearing)

Front 2

What SMJ does the NY Supreme Court have? What Exceptions?

Back 2

SC has General SMJ AND EXCLUSIVE SMJ over matrimonial actions, CPLR 78 proceedings, and Declaratory Judgment actions.
SC does NOT have jurisdiction over:
-Matter under exclusive federal jurisdiction, e.g.: Bankruptcy, Patents, and Copyrights.
-Action where the state is a named party--matter may ONLY be heard in the NY court of claims.

Front 3

What are the statutes of limitations for NY CoA's?

Back 3

refer to table.

Front 4

Medical Malpractice (Medmal)

Back 4

SOL= 2.5 years from the date of malpractice, NOT discovery (unless foreign object or continuous treatment)
Foreign object: 2.5 years from medmal OR 1 yr from discovery

Front 5

SOL for Professional Malpractice:

Back 5

SOL: 3 years from the end of continuous representation
ONLY applies to learned professions

Front 6

How are architects and Engineers protected by the SOL?

Back 6

1. P must serve notice 90 days before filing suit (may obtain discovery during 90 days)
2. Burden Shifting: When D moves for SJ, burden shifts to P to make evidentiary showing that architect’s negligence led to injury

Front 7

What result if Architect/ engineer designs a building and it collapses 8 years later?

Back 7

Architect designs bldg in 2000 which collapses in 2008 NO ONE hurt; P/Owner sues for negligence in building—COA FAILS for SOL of 3yrs

Front 8

What result if Architect/ engineer designs a building and it collapses 8 years later hurting someone. they sue 2 years after that?

Back 8

Architect designs bldg in 2000 which collapses in 2008 hurting P; P sues and is inside SOL because suit is Pers. Inj. (SOL 3 yrs from time of harm) NOT professional malpractice—so accrual is at time of harm

Front 9

SOL for Municipal Tort Liability?Why? Any special requirements?

Back 9

SOL: 1year and 90 days from the date of the accident
Policy: Shorter SOL because of legis. policy to protect local govt
Notice of claim: As a condition precedent, d must serve gov’t subdivision 90-day notice of claim from the date of the accident; Failure to Notice: the D may have the claim dismissed of “failure to state a claim”

Front 10

SOL for Products Liability?

Back 10

3 possible COA’s:
1. Negligence: 3 years SOL from the date of injury; as against all D’s in chain of distribution
2. Strict Products Liability: 3 years SOL
3. Breach of Warranty Governed by UCC: 4 year SOL governing sales; begins to run when the particular D against whom the warranty claim is asserted made its delivery of the product

Front 11

SOL Indemnity and Contribution?

Back 11

SOL: 6 yrs running from the date of actual payment of the judgment from which indemnity is sought; date of harm is irrelevant

Front 12

SOL for Toxic Torts?

Back 12

SOL: 3 years
Accrual: Runs from date when injury is discovered OR should have been discovered with reasonable diligence
Defined: any inherently harmful toxin that has latent or slow-developing effects,

Front 13

How will a D's absence from NY affect the SOL? (2)

Back 13

1. If D is absent from NY when the COA accrues; SOL does not begin to run until the D comes to NY;
2. If D is in NY when the action accrues but leaves for 4 months or more, SOL tolled in D’s absence
Exception: This does not apply if the P has long arm jurisdiction over the D ANYWAY. In which case the D would be hailed into state anyway and you do not need tolling (suspending) the SOL

Front 14

How will a P's infancy or incapacity affect the SOL?

Back 14

1. Infants or insane can bring lawsuits through adult reps w/in SOL
2. P infant or insane gets a toll until they are adult or no longer insane for 3yrs if SOL is 3 yrs or greater;
If orig. SOL is less than 3 yrs; when disability ends, he gets the SOL for that COA from when disability ends (turns 18 or is no longer crazy)

Front 15

if an infant brings a COA for medmal, any tolling?

Back 15

Yes- but only for 10 years regardless of infant's age and ONLY for medmal. no such limit on other COA's

Front 16

What if an insane person brings a COA after being insane for 20 years?

Back 16

Action is time-barred; Tolling of SOL's is limited to 10 years for the insane REGARDLESS of COA.

Front 17

Distinguish wrongful death from a survival claim.

Back 17

Wrongful death: a claim for pecuniary damages by distributees for economic loss of the decedent
Survival Claim: any claim the decedent himself could have brought if he were alive.

Front 18

What is the SOL for a wrongful death claim?

Back 18

SOL: 2 years from the date of death BUT it must also be shown that at the time of death the decendent’s underlying personal injury claim would also have been timely

Front 19

What is the SOL for a survival claim?

Back 19

Survival claim: If on date of death the underlying claim would still be timely, the executor gets:
Whatever time is still remaining on decedent’s claim OR
ONE year from the date of death—whichever is LONGER

Front 20

What if it is the Defendant who dies? Any tolling of the SOL?

Back 20

If potential D dies at any time before the sol expires then add 18 months to allow the P to sue the decedent’s estate when the D dies during the SOL

Front 21

If P, just makes it but is still timely on the SOL and sues on a NY action but thereafter gets dismissed before trial, what result?

Back 21

P gets 6 month grace from date of dismissal to re-file;
Exceptions; 6-months grace will NOT be allowed if:
a. If dismissal was on merits (with prejudice)
b. If dismissal was a voluntary discontinuance by the P
c. If the dismissal was based on P’s neglect to prosecute consisting of a general pattern of delay
d. For dismissal based on lack of personal jurisdiction; Dismissal for lack of SMJ DOES get 6 month grace

Front 22

P wants to bring an action in NY b/c the SOL in FL has run but NY's is longer. Any problem?

Back 22

The New York borrowing problem:
i. Because NY can hear out of state cases, to prevent forum shopping by out of state P’s we always choose the shorter if there are alternative SOL’s
ii. If P is NY resident ALWAYS USE NY SOL

Front 23

Aside from valid SMJ, what additional elements must be satisfied for the court to render a proper judgment? (3)

Back 23

1. Proper commencement of the action
2. Proper service of process on the D
3. Proper basis of jurisdiction over the person or property involved in the action

Front 24

What is necessary for proper commencement of the case?

Back 24

Proper commencement consists of:
1. Summons and Notice OR Summons and Complaint
2. Served on the Court; and
3. Served on the D's w/in 120 days

Front 25

What MUST you purchase from the clerk of ct. to commence an action?

Back 25

an index number

Front 26

Distinguish a Notice from a Complaint.

Back 26

1. Notice is 1 pg. short form which expedites filing and includes: (i)breif statement of the facts, (ii) relief sought, and (iii) damages. Complaint Must followed.
2. Complaint is a pleading specifies injury and spells out elements of COA + above

Front 27

What are 5 methods for proper service of process on the D?

Back 27

1. physical delivery
2. leave and mail
3. nail and mail
4. Expedient
5. Voluntary (non-traditional)

Front 28

Physical Delivery of process requires?

Back 28

Personal delivery to D
If D refuses, server may leave in vicinity; NO redelivery by a go-between (can’t leave with another)

Front 29

Leave and Mail? (2)

Back 29

1. Process can be delivered to person of suitable age and discretion at D’s home or actual place of business; AND
2. Mail a copy to last known residence or actual place of business; either combination
Each D must be served individually

Front 30

Nail and Mail

Back 30

1. Affix to door of actual dwelling place or actual place of business; AND
2. Mail a copy to actual place of business or last known address; affixing and mailing must be performed 20 days from each other and 120 from filing

Front 31

When does the Answer clock starts ticking?

Back 31

When Service is complete:
1. D is Personally served OR
2. For Leave and Mail or Nail and Mail:
a. Affidavit of server submitted to court AND
b. 10 days pass

Front 32

For which type of service is an ex parte motion required? Why?

Back 32

Expedient: Upon ex parte motion, D can motion to improvise a more expedient method to serve process
Court has discretion to extend 120 days or allow other methods (serve insurer, family member, business associate, or email)

Front 33

Who in the corporation may be served process on behalf of the Corp? (5)

Back 33

Personally deliver to any of the following:
1. Officer or Director
2. Designated Agent (above)
3. Managing agent (supervisor of employees)
—OR –file on Sec'y of State as agent
4. File 2 copies of process with the secretary of state—This also works for foreign corporations, licensed in NY (registered in NY)
5. For unlicensed corps personally deliver a copy to NY secretary of state plus P mails a copy to the corp, certified mail, return receipt requested

Front 34

To effect proper service on infants and the mentally incapacitated?

Back 34

If D Is infant/incapacitated, D is still named the D on summons BUT YOU MUST serve BOTH: the infant/incap. AND the parent/guardian

Front 35

To effect proper service of those Outside NY?

Back 35

Same methods used in NY MUST be used on D’s outside of NY, BUT:
1. Process may be served by
Any NY resident who is 18 or older, OR
2. Anyone authorized to serve process in THAT state, OR
3. Attorney in THAT state

Front 36

What is required for proper commencement? (2)

Back 36

Proper commencement = Summons and Notice OR Summons and Complaint
1. commenced by filing w/ clerk of ct. –NOT the sup ct clerk
2. Service of process—within 120 days; ct may extend 120 days, on ex-parte motion, for good cause (due diligence) or interest of justice; ct may extend even more if compelling

Front 37

Distinguish Complaint from Notice.

Back 37

1. Notice (abbreviated) contains:
a. A brief statement of the nature of the action
b. Type of relief sought
c. Amount of Damages (except in Pers. Inj. or wrongful death)
2. Complaint (long form)
a. Summons tells the D which court + date
b. Complaint is a pleading (specifies injury and spells out elements of COA)

Front 38

5 types of Service.

Back 38

1. Physical Delivery
2. Leave and Mail
3. Nail and Mail
4. Expedient
5. Voluntary (non-traditional)

Front 39

Elements of Physical Delivery of Service. (3)

Back 39

1. Must physically deliver to D only or leave in vicinity (if refused)
2. Server must file affidavit describing delivery
3. W/in 120 days of filing

Front 40

Elements of Leave and Mail Service. (3)

Back 40

1. Leave with a person of suitable age at residence
2. Mail to a copy to last known residence or actual place of business. ANY ORDER; each D served individually
3. 1 & 2 must be w/in 20 days of each other AND w/in 120 days fro filing

Front 41

Element of service by Nail and Mail. (3)

Back 41

1. Affix to door of actual dwelling place or actual place of business, PLUS
2. Mail a copy to actual place of business or last known address; affixing and mailing
3. Must be performed 20 days from each other and 120 from filing

Front 42

When does the Answer clock start ticking?

Back 42

Service is complete (and Answer clock starts ticking)when:
1. Personally served OR
2. For Leave and Mail or Nail and Mail:
a. 10 days from Affidavit of server submitted to court

Front 43

Under what type of service is an ex parte motion required? How many days does the P have to serve?

Back 43

Expedient Service
i. Upon ex parte motion, D can motion to improvise a more expedient method to serve process
ii. Court has discretion to extend 120 days or allow other methods (serve insurer, family member, business associate, or email)

Front 44

In a corporation, who can accept service? (5)

Back 44

Personally deliver to any of the following:
1. Officer or Director
2. Designated Agent (above)
3. Managing agent (supervisor of employees)
OR – serve Sec'y of State as agent:
4. Domestic and foreign licensed: File 2 copies of process with the secretary of state.
5. Foreign unlicensed corps: Personally deliver a copy to NY secretary of state plus P mails a copy to the corp, certified mail, return receipt requested .

Front 45

How do you serve infants or the incapacitated?

Back 45

i. If D Is infant/incapacitated, D is still named the D on summons BUT
ii. YOU MUST serve BOTH: the infant/incap. AND the parent/guardian

Front 46

Who can serve process in NY? Who can serve out of NY? How?

Back 46

In NY: Server must be 18
Out of NY:
i. Same methods used in NY MUST be used on D’s outside of NY, BUT
ii. Process may be served by:
1. Any NY resident who is 18 or older, OR
2. Anyone authorized to serve process in THAT state, OR
3. Attorney in THAT state

Front 47

What is ultimately required to effect proper service by the voluntary method?

Back 47

Nontraditional (voluntary) method:
i. Mail to D 2 copies of statutory acknowledgement form, plus return envelope, postage prepaid, addressed to sender
ii. Service effective ONLY if D returns signed formed

Front 48

What are 3 bases permit you General PJ? What is General PJ?

Back 48

General Jurisdiction: achieves jurisdiction for any claim
i. Presence in NY
ii. Doing Business in NY
iii. Domiciled in NY

Front 49

What are 3 bases permit you Specific PJ? What is Specific PJ?

Back 49

iv. Long arm jurisdiction: single act
v. Non-resident motorist statute
vi. Consent

Front 50

How is long arm jurisdiction different from the Doing Business in NY basis for General PJ?

Back 50

Long-Arm is based on "Minimum Contacts" where Doing Business must be continuous, regular and systematic--e.g. keeping a staffed office in NY.

Front 51

What is the Minimum Contacts Mantra?

Back 51

USE THIS LANGUAGE: “Due process is satisfied if the P’s claim arises out of conduct by the D that is so purposefully directed at NY that the D should reasonably anticipate being sued in a NY court”

Front 52

Under the Minimum Contacts analysis, what are the 5 categories of NY related activity?

Back 52

1. A “transaction of business” by the D in NY
2. Contract made outside NY in which the D agreed to supply goods or services in NY
3. P’s claim arises from D’s tortious act in NY
4. P’s claim arises from the D’s tortious act out of NY and causes injury in NY
5. P’s claim arises from the D’s possession, ownership or use of real property in NY

Front 53

If a K is made outside NY for goods to be supplied in NY, is there sufficient grounds for minimum contact?

Back 53

Gnerally NO.
K Must be of economic significance; A simple boiler-plate telephone, mail, fax, internet NOT ENOUGH: the D must project himself into NY such that he reasonably expects to be hailed into court there

Front 54

If a P’s claim arises from the D’s tortious act out of NY and causes injury in NY, is there sufficient grounds for PJ?

Back 54

NO: You need ADDITIONALLY one of the following 3 linkages:
i. If the D regularly solicits business in NY
ii. If the D derives substantial revenue from goods or services sold into NY
iii. The D expects or should reasonably foresee the act to have consequences in NY and derives substantial revenue from interstate or international commerce

Front 55

What are 2 exceptions to torts committed out of NY having an effect in NY as a basis for PJ?

Back 55

1. “inherently local in nature” think Dr’s consultation
2. DEFAMATION excluded; even if the defamation looks like a tortious act in NY, some basis of jurisdiction other than the 2 long-arm provisions for tortious acts—NY is the media capital of the world hence policy

Front 56

how is process served under the Non-Resident Motorist Statute?

Back 56

P Serves process by serving a copy to the NY Sec. of State. + the P mails a copy to the D’s out-of-state address

Front 57

3 ways in which consent may invoked?

Back 57

i. Consent is Express by K
ii. Implied (as in case of non-resident motorist statute or use of NY courts
iii. Use of NY courts (if you hire a atty and sue on unrelated matter, your atty becomes your agent for service of process)

Front 58

If PJ is under Matrimonial Long-Arm, P MUST meet the NY residency requirements for the COA AND one of the following:

Back 58

a. NY is the domicile of P or D prior to their separation,
b. D abandoned the P in NY
c. D’s monetary obligation accrued under an agreement executed in NY; or
d. D’s monetary obligation accrued under the laws of NY

Front 59

What are the NY Durational residency requirements necessary to bring an action for money in divorce: (3)

Back 59

1 of 3:
a. If both are NY residents at time divorce commenced and grounds for matrimonial action arose in NY, then no period of prior NY residence is required; or
b. One year residency; if either party has been a NY resident for at least 1 year AND marriage took place in NY OR NY was the matrimonial domicile at some point OR the grounds for the action arose in NY; or
c. 2-year residency; if either party has been in continuous residency in NY the 2 years residency alone is sufficient, no other NY link to marriage is necessary

Front 60

If P fails to satisfy NY's matrimonial long-arm requirements, what result?

Back 60

D will claim that the P “failed to state a cause of action” NY

Front 61

When is venue required in a specific county?

Back 61

When real property is the basis of the CoA and the property is in the county.

Front 62

What alternative does the D have if he objects to the venue?

Back 62

D serves demand with or before service of the answer; the P may concede, if so, then automatic change of venue to a D's county choice is proper

Front 63

if P objects to D's demand or does not respond, what result if D still wants to change venue?

Back 63

D must make a motion for change of venue and D’s motion must be granted as a matter of right, if:
-If P chose an improper county and D designated a proper venue in his demand
convenience for witnesses/parties is discretionary

Front 64

How can the D respond to a complaint? (2)

Back 64

Service of an answer:
1. The answer is the D’s pleading responding to the allegations in the P's complaint, OR
2. Make a motion to dismiss under CPLR 3211

Front 65

What goes in to D’s Answer: (3)

Back 65

1. Denials: any allegation that the D wishes to contest must be denied or it becomes an admission
2. Affirmative Defenses: Those not raised in the answer are waived “raise them or lose them”
3. Counter Claims: The D wants to Counter Claim must do so in answer

Front 66

When does the P REPLY to the D's answer?

Back 66

P replies only when there is a counter-claim:
Contains denials or defenses to counter-claims by P

Front 67

Aside from denials, defenses and counter-claims, what else can the D alert the P to in his Answer?

Back 67

That the D is impleading other 3rd party defendants;
Cross claims in D’s answer; D can implead other D’s even if matter unrelated

Front 68

How can D serve answer on P?

Back 68

All interlocutory papers are served on the P's lawyer by mail

Front 69

By when must the D serve his answer to the P's lawyer? (3)

Back 69

1. If D was served by personal delivery; D must answer w/in 20 days
2. If D was served by non-traditional process; D must answer w/in 20 days of the D mailing the acknowledgment
3. If D was served under any other circumstances, D must answer w/in 30 days after service
--mailbox rule applies.

Front 70

What are the CPLR 3211 Motion to Dismiss grounds:DOWNFALL

Back 70

DOWNFALL:
Documentary evidence
Other action pending
Want of capacity: Like standing
Non-joinder of a necessary party
Failure to state a COA
Additional affirmative defense
Lack of PJ
Lack of SMJ

Front 71

What are the Additional affirmative defenses? SPARERIBS

Back 71

SPARERIBS
1. SOL
2. Payment/settlement
3. Arbitration award
4. Release
5. Estoppel (collateral estoppel)
6. Res judicata
7. Infancy of D
8. Bankruptcy discharge
9. Statute of frauds

Front 72

If the D has one of the DOWNFALL or SPARERIBS defenses, what may they do?

Back 72

File a 3211 PRE ANSWER Motion to Dismiss OR ANSWER in normal course; D need NOT raise defenses in 3211 Motion to dsimiss, can do so in answer.

Front 73

Until when can the D make a 3211 pre-answer motion to dismiss?

Back 73

the day before the answer is due (20 or 30 days from notice)

Front 74

What effect of making a 3211 motion to dismiss?

Back 74

D gets an additionall 10 days to file answer, if the motion is denied.

Front 75

Which of the DOWNFALL defenses MUST be raised in a 3211 motion to dismiss?

Back 75

PJ--but only if a 3211 motion is made; if no 3211 motion is made then the Answer may contain the defens of PJ OR raise it in 3211 motion and again in answer.

Front 76

How many 3211 motions to dismiss can a D make?

Back 76

ONE--but you can assert multiple grounds.

Front 77

If the D fails to make a 3211 motion to dismiss on the grounds of PJ, non-joinder of a nec. party, failure to state a claim, and lack of SMJ, what result?

Back 77

PJ is lost--Move it or lose it. However:
i. non joinder of nec party
ii. failure to state a claim, and
iii. lack of SMJ are never lost

Front 78

If P commenced the action with a Notice and Summons, the D may want to compel the P to file the Complaint--how can D do this? (2)

Back 78

File:
(1) Demand for Complaint or
(2) Notice of Appearance.

Front 79

If D files:
(1) Demand for Complaint or
(2) Notice of Appearance,
what must P do?

Back 79

Both have the effect of requiring P to serve Complaint w/in 20 days of Ds service.

Front 80

If P files Complaint, what must the D do?

Back 80

If P timely serves Complaint, D has 20 days to either (1) Answer or (2) make 3211 motion to dismiss.

Front 81

What if P fails to file a complaint w.in 20 days?

Back 81

If P fails to meet 20 day limit to serve Complaint, D may move to dismiss for Ps non-compliance (neglect to prosecute).
P may avoid dismissal by: (1) reasonable excuse for delay and (2) evidence: merit to Ps claim.

Front 82

Can the party's amend their pleadings (complaint and Answer)?

Back 82

YES. Each party is entitled to amend pleading once at any time up to 20 days after the D serves the answer

Front 83

Can the D raise PJ defense by means of AMENDED answer?

Back 83

YES, even IF:
i. D has PJ objection but failed to raise it in a pre-answer motion to dismiss; OR
ii. he made NO pre-answer motion to dismiss, when he served the answer, OR
iii. he did not put PJ into the answer BUT if the D then amends the answer within the 20-day period he can add it then
AS LONG AS amendment is timely.

Front 84

What are the elements involved in IMPLEADER filing: (4)

Back 84

1. D files a summons and 3rd party complaint (Note: Summons and Notice not available)
2. w/in 120 days of filing, D (3rd party P) serves a copy of the summons and 3rd party complaint on the 3rd party Def
3. since 3rd part D is being dragged into court there must be a basis of PJ over the 3rd party D AND
4. There must be proper service on the 3rd party D

Front 85

What must the 3rd party D do when served notice of IMPLEADER?

Back 85

3rd party D must respond by 3rd party ANSWER:
1. On orig. P AND on 3rd party P;
2. Same time limits that apply to orig. D, apply to 3rd party D

Front 86

Orig. P may add 3rd party to complaint IF

Back 86

P’s added claim meets 2 part TEST:
First: If P’s claim against 3rd party P is the same as impleader claim, AND
Second: If p’s claim against 3rd party P would have been timely on the date of the impleader—then amendment will RELATE BACK to the date the D impleaded the 3rd party P.

Front 87

What are the 2 CoA's that are generally relied on by orig. D as 3rd party P in bringing CoA against 3rd party D?

Back 87

Indemnity and Contribution

Front 88

Distinguish Indemnity from contribution.

Back 88

Indemnity means a 3rd party is 100% liable for the CoA.
Contribution means the 3rd party is partially liable.

Front 89

In an action for Contribution, T is held 50% liable along with D. D is judgment proof thus P demands satisfaction in full from T. What result?

Back 89

under joint and several liablity, T is liable for all of the damages. T may seek contribution from D (for 50% only) but since D is judgment proof, T is SOL.

Front 90

Assume previous facts but T's liability stems from only aggravating D's tort. Can T still be held jointly and severally liable even if P would not had had a COA against T?

Back 90

YES. Joint and Several does not depend on their being liabilty fromm T to P.

Front 91

Can D seek contribution from an assignee of a K who failed to perform?

Back 91

NO. contribution is not available for Breach of K. BUT D MAY seek indemnity.

Front 92

If P sues D and T in tort, and they are contributarily liable, D for 50% and T for 50%, Can P collect all the judgment from T

Back 92

NO-under NY statutory release statute, NO joint tortfeasor will be liable jointly and severally UNLESS they are liable in excess of 50% of liability

Front 93

If P sues D and T in tort, and they are contributarily liable, D for 40% and T for 60%, Can P collect all the judgment from T

Back 93

Yes b/c T is more than 50% liable; BUT can only collect 40% from D b/c D is 50% or less D is only liable for portion of liability prescribed by court

Front 94

Distinguish Indemnity from contribution.

Back 94

Indemnity means a 3rd party will be responsible for 100% of the judgment; contribution means the 3rd party will only be liable for a portion of the judgment

Front 95

What is necessary for impleader of a 3rd party defendant?

Back 95

D files a summons and 3rd party complaint (Note: Summons and Notice not available)

Front 96

What is necessary for impleader of a 3rd party defendant?

Back 96

D files a summons and 3rd party complaint (Note: Summons and Notice not available)
w/in 120 days of filing, D (3rd party P) serves a copy of the summons and 3rd party complaint on the 3rd party Def
since 3rd part D is being dragged into court there must be a basis of PJ over the 3rd party D AND
there must be proper service on the 3rd party D

Front 97

How does SOL apply against the 3rd party P?

Back 97

Relation Back Doctrine: P’s added claim will be deemed to relate back provided 2 part TEST is met:
First: If P’s claim against 3rd party P is the same as impleader claim AND
Second: If p’s claim against 3rd party P would have been timely on the date of the impleader—then amendment will relate back to the date the D impleaded the 3rd party P.

Front 98

What major exception to Joint and Several Liability modifies treatment?

Back 98

Personal Injury under Joint and Several Liability is modified so that tortfeasors liable for 50% or less of harm, will only be liable for their proportion of harm. Joint and Several Tortfeasors who are greater than 50% at fault, are liable Jointly and Severally—this is Hybrid comparative liability

Front 99

What is Hybrid Comparative liability?

Back 99

Article 16 provides that a P will be due joint and several liability from joint tortfeasors who are greater than 50% liable; if LESS than 50%, the tortfeasor will only be liable for the specific amount of their liability—this is Hybrid Comparative liability

Front 100

Can a P get joint and several liability from joint tortfeasors whose acts are intentional?

Back 100

Yes.
NY: allows for contribution for all cases including Intentional torts
HOWEVER: MBE contribution is not available when the tort is intentional; only avail. For negligence claims

Front 101

If you represent D in a matter and D is deciding whether to implead a 3rd party D or not, what do you explain?

Back 101

D can sue in a separate action, BUT
This causes problems: the finding of fact or percentages of fault in the underlying action are not binding on other tortfeasors in the contribution action.
Res judicata or collateral estoppel cannot be relied upon here.
The D from the underlying action must prove the case all over again against the other tortfeasors; this illustrates the benefit of impleader.

Front 102

Does joint and several liability limit the amount the P can sue any particular defendant for?

Back 102

NO, Joint and several ONLY limits a D’s liability, but the P can sue all D’s for 100% of the damages.

Front 103

If P brings a CoA against his employer for injury at work, what result?

Back 103

Barred under Worker’s Compensation

Front 104

What if P sues manufacturer of machine that hurt P?

Back 104

Action is permissible.

Front 105

What if manufacturer impleads employer?

Back 105

Barred under Worker’s Compensation

Front 106

What if P lost his life or his arm?

Back 106

Manufacturer may implead employer b/c harm is GRAVE defined as death, total loss of an arm or leg, hand, foot, nose, ear, index finger EXCEPT: loss of thumb

Front 107

If D settles and T continues with case and is found 70% liable, but D only paid 10%, what effect on T

Back 107

The Reduction Formula
Any judgment for the 3rd Party P against a non-settling tortfeasor’s must be reduced by EITHER:
The amount of the settlement, OR
The settling tortfeasor’s equitable share of the fault, whichever is larger
So T will only pay 70%, joint and severable does not apply b/c of settlement.

Front 108

What is a Motion on Notice? What is the alternative to this?

Back 108

Motion which in which advanced notice is given to the party opponent. Alternatively, a party can file an order to show cause which requires NO notice and is filed and signed by the judge ex parte

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How must Notice be given in support of a Motion on Notice? What other documents are required? How much Notice is Due?

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The notice of motion: indicates nature of motion and specifies the return date
Supporting affidavits: written statements under oath explaining why the motion should be granted
3. 8 days: you must give notice that motion papers will be served at least 8 days before the return date

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What procedure must be followed to file and order to show cause?

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Procedure
1. The moving party drafts and goes to judge ex parte with the OTSC and the affidavits.
2. Once won, the party serves the order on the losing party and starts the running of a 30 day time limit to appeal

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What does a Motion for SJ allege?

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1. There is no genuine issue of material fact requiring a trial
2. Asking for judgment as a matter of law
3. Given all inferences, the other party's case fails

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what is the boomerang effect?

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In filing a motion for SJ opens the door for the court to "search the record" and find SJ against the moving party

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When is a Pre-Answer Motion for SJ allowed? (2)

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1. One pary must have submitted factual affidavits in connection with the Motion to dismiss
2. The court must give notice to parties that the court is making the conversion to SJ to give the parties an opportunity to heard

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Can P make a motion for SJ at the same time she makes an answer?

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YES–this is called a motion for SJ in lieu of complaint and is available when:
1. An action on a instrument for the payment of money only—think promissory note
2. Action on an out-of-state judgment
BOTH must be submitted with the instruments in question and are thus prima facie proven.

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What are the Provisional Remedies, and what makes them provisional? (5) PATON

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ALL may be accomplished by ex parte motion and provide emergent relief where circumstances apt to change: PATON:
1. Preliminary injunction
2. Attachment
3. Temporary receivership
4. Order to seize chattel: replevin
5. Notice of pendency

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How does a sheriff levy on personal property (give effect to a notice of attachment)?

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a. The sheriff delivers an order of attachment to the person in NY holding the property or a garnishee
b. The sheriff’s delivery automatically imposes a lien on the personal property and
c. Has an injunctive effect b/c it prohibits transfer of property pending hearing

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In what type of action can a notice of attachment be sought?

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P must be seeking money damages, AND must show 2 alternative grounds:
i. D is an unlicensed foreign corp or
ii. D intends to remove or conceal property to defraud or frustrate a judgment

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Requirements for motions of attachment? (3)

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1. Affidavit that shows that D is unlicensed foreign corp or non-domiciliary OR that D is about to conceal or remove assets..., AND
2. Affidavit of probability of success on merits on Ps underlying c/a, AND
3. P must provide undertaking (bond).

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If P proceeds ex parte, what additional requirements must be satisfied?

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1. Motion to confirm: There must be a hearing promptly after the levy on the D’s property in order to give the D a chance to contest the levy

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What is the purpose of a preliminary injunction and when can it be requested?

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i. Permanent injunction
ii. D threatens to harm P’s interest in subject matter of the action
NOT avail. if solely for $ damages

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What Procedure is required for a preliminary injunction? (3)

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1. P’s affidavits must show grounds for equitable relief inc. threat of irreparable injury
2. P must show probability of success on the merits
3. P must provide an undertaking (a bond) to indemnify the D for damages

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What is the short form of a preliminary injunction?

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TRO: In the OTSC P requests the TRO to obtain immediate injunctive relief pending the outcome of the motion for the preliminary injunction

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What is a Temp Receiver?

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A person appointed by the court to manage property in the D’s possession taking over mgmnt of D property.
MUST be equity claim + there is a danger the D is going to waste the property

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Why is Replevin important if the property sought is unique?

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Sheriff seizes the chattel (impoundment) while the action is pending- if the chattel is lost or wasted while action is pending, you only get $ damages, not the property itself.

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What 2 elements are required of ALL Provisional Remedies except notice of pendency?

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1. P affidavits show that he will probably succeed on the merits of the action
2. Must put up bond (undertaking) to indemnify the D

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When can a Seizure of the chattel or Replevin be made ex parte?

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Can be made ex parte if:
i. Threat of immediate loss of the chattel
ii. If granted, P must make a follow-up motion on notice, w/in 5 days to confirm the ex parte order

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If suing over real property, what type of action will prevent the sale of the property while in contention?

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Notice of pendency
1. In an equity action
2. Puts a lien on real property and renders title unmartketable
3. Can be done w/out Ct. involvement

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What is filed when the parties are reay for trial? What does it tell the judge?

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Note of isse: Either party may file the note of issue-ready for trial
• Party who files note of issue makes demand for jury trial.
• If no demand for jury trial in note of issue then waived by that P (other party may still file).

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When does a party have a RIGHT to a jury trial? (5)

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a. Action for solely money damages
b. Replevin
c. Claim to real property
d. Annulment of marriage
e. In a divorce action on issue of grounds for divorce

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iii. When claim is brought to final judgment on the merits. All of the claims will be barred if they arise out of the “same transaction”--Doctrine?

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Claim Preclusion or Res Judicata

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The issue was actually litigated and decided in the proceeding--What doctrine?

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Issue Precllusion or Collateral Estoppel

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5 threshold issues to avoid arbitration:

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(1) party agree to arbitrate? For arbitration to be enforceable:
•In writing, but no need to sign.
•Clear, explicit, and unequivocal.
(2) Within scope of the arbitration clause?
(3) Arbitration valid?
•Invalid if: clause was induced by fraud, duress, or coercion.
(4) Express condition precedent?
(5) Statute of limitations (usually cts deal with this issue).

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What's the difference btw a Special Proceeding and a trial?

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Speedy, streamlined to obtain a judgment as a final resolution (probate will, Art 78).
• Requires specific statutory authorization.

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What are the Article 78 proceedings?

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1. Mandamus to compel
2. Prohibition
3. Certiorari
4. Mandamus to review

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Mandamus to Compel:

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• Compel performance of an act required by law, act where no discretion is involved.
• A corporation is considered quasi-governmental for mandamus purposes.

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Prohibition

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Like appeal to prevent adjudicating body (could be an agency) from gross misapplication of law

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Certiorari

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Trial type hearing by admin agency, where P’s have vested property right, and it is being taken away; so after admin hearing the appeal is considered a certiorari
ii. Court must uphold the results if the agency’s determination was supported by substantial evidence

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Mandamus to review

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Challenge to an agency determination made without a hearing. Eg, gun permit, or variance application
Std for jud. review: ct must uphold unless it was arbitrary or capricious