New York Practice Day 1

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NY State Supreme Court

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Has GENERAL SUBJECT MATTER JURISDICTION. One branch in each of the 62 counties (Venue). If any of those 62 courts has jurisdiction, the other 61 do also (proper county is a question of VENUE).

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NY State Supreme Court has UNLIMITED JURISDICTION over

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1. Amount of P's claim
2. Ability to assert an equity claim
3. Residency of Parties
4. Place where cause of action arose

note: Personal Jurisdiction is a separate and independent requirement

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Forum Non Conveniens

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Non-residency of parties in NY, or lack of relationship of claim to NY, does NOT deprive court of subject matter jurisdiction. BUT, defendant may move for dismissal on FNC grounds when action lacks any substantial nexus to NY.

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EXCEPTIONS to NY State Supreme Court GENERAL Subject Matter Jurisdiction

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1. Where federal law confers exclusive jurisdiction on federal courts (bankruptcy, patents, etc.)

2. Claims for money damages in tort or contract against STATE of NY - must be brought in COURT OF CLAIMS. Only the STATE of NY is allowed as a defendant in Court of Claims.

NOTE: employees of state & subdivisions of state (counties, cities, towns, school districts) may be sued in Supreme Court.

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EXCLUSIVE areas of NY State Supreme Court Subject Matter Jurisdiction

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1. Matrimonial Actions (NOT family court!)
2. Judicial review of NY State and local administrative actions under CPLR Article 78
3. Declaratory Judgment Actions (judicial declaration of parties' rights and obligations before the actual dispute arises)

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When does a STATUTE OF LIMITATIONS begin to run?

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When the Cause of Action ACCRUES (usually, when the injury first occurs).

Generally, it is NOT measured from date that P discovers the injury or breach (usually but there are exceptions).

Action must be commenced (via filing process) no later than the last day of the prescribed period.

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Computing Statute of Limitations

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Exclude the day upon which the triggering event occurs, and begin counting the next day.

Note: deadline will always be an anniversary of the event.

Note: if the last day for commencing an action falls on a weekend or holiday, P gets until the end of the next business day.

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Medical Malpractice SoL

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Generally, 2.5 years from the date of the malpractice. Date of P's discovery of malpractice is usually irrelevant.

Note: CoA against hospital for neg. hiring is ordinary negligence, not MedMal, and thus has 3 year SoL.

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Exceptions to General Med Mal SoL

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1) Continuous Treatment Rule = if physician continues to treat patient FOR THE EXACT SAME CONDITION that gave rise to malpractice - 2.5 years from date of last treatment.

2) Foreign Object Rule = P gets the LONGER of
(a) 2.5 years from date of operation, or
(b) 1 year from date that P discovers object or should have discovered thru reasonable diligence.

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"FOREIGN OBJECT" for purposes of Foreign Object Exception

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Anything the Dr. did not intend to leave behind.

Does NOT include chemical substances/medicine, prosthetic devices, fixation devices (screws, etc.), naturally occurring objects (tumors)

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Professional Malpractice SoL (non-Medical)

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Applies to "learned profession" (does NOT include brokers, securities analysts)

3 Year SOL, begins to run when services are completed, regardless of whether claim in Tort or Contract, regardless of P's lack of awareness.

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Exceptions to General Malpractice SoL (Non-Medical)

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1) Bodily Injury: SoL still 3 years, but begins to run from date of injury, regardless of date work was completed.

2)Bodily injury where action is brought more than 10 years after building is completed; P must:
a) serve notice of claim on architect or engineer at least 90 days before suit
b) may obtain pre-action discovery from the potential defendant during 90 day wait, AN
c) after suit is commenced, if D moves for sum. judg., burden is on P to show "substantial basis" to believe that D's neg. --> Injury

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Municipal Tort SoL

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Applies in actions against State, County, City, Town, School District, or municipal hospital.

SOL = 1 Year + 90 Days

A tort action against Municipal Defendant requires P to file separate "NOTICE OF CLAIM" no later than 90 DAYS FROM DATE OF ACCIDENT. Failure to comply = dismissal for failure to state a CoA. Once notice of claim is filed, P must wait 30 days before commencement of main action. Filing "notice of claim" is NOT commencement of action. If 90 day window has expired, but main SoL has not, P may request permission to file late notice, granted at Court's discretion.

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Products Liability SoL

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3 possibilities (all in same action OK)

1) Negligence: 3 Years from date of injury (applies against all D's in chain of distribution).
2) Strict Products Liability: 3 years from date of injury (applies against all D's in chain).
3) Breach of Warranty: UCC --> 4 years from when defendant delivered the product

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Indemnity & Contribution SoL

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6 years, running from date of payment of judgment from which relief is sought.

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Products Liability SoL for TOXIC SUBSTANCES

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3 Year SoL. Begins to run on the EARLIER of:

1) discovery of injury, or
2) date injury SHOULD have been discovered through reasonable diligence.

Note: if toxic substance is a medicine, do not confuse SoL against manufacturer (above) with SoL against doctor (2.5 years from injection).

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General ways to Toll SoL

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1) Def. Absent from NY State

2) Plaintiff's Infancy or legal disability

3) Death

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Toll for Absence of Defendant from NY

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- if D not in NY when CoA accrues, SoL does not begin to run until he comes to NY.

-if D is in NY when CoA accrues, and D then leaves NY and is continuously absent for at least 4 months, then toll applies to entire period of absence

EXCEPTION (to both): P has a basis of personal jurisdiction over the absent D, such that process could validly be served on D outside NY (ex: long-arm statute)

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Toll for Plaintiff's Infancy or Insanity

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If P is <18 or insane at time CoA accrues, SoL will toll until P turns 18 or insanity clears up. When toll ends:

-If original SoL was 3 years or more, P gets whichever is LONGER:
a) usual SoL period, running from usual date of accrual, OR
b) 3 years from the date legal disability ends
note: on exam, calculate both + compare

-If original SoL was less than 3 years, P gets specified statutory period, measured from date disability ends.

Outside 10 yr limit: in 2 situations
1) when relying on toll for infancy in a med mal case (10 years from date of accrual). BUT NOTE: CoA may still survive under continuous treatment exception. P gets benefit of whichever is longer.
2) When relying on toll for insanity in any action (10 years from date of accrual)

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Toll for Wrongful Death

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A tort claim for economic damages to family. Punitive damages allowed, but damages for emotional suffering of family or actual suffering of P prior to death not allowed.

SoL = 2 years from date of death, PROVIDED THAT decedent himself had a timely cause of action at time of death.

Often asserted alongside Survival Claim.

-if potential D dies at any time before SoL expires, P gets 18 additional months to commence action against that D's estate.

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Toll for Survival Claim

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A cause of action that P could bring himself if he were still alive. Not limited to tort. Include damages for P's pain and suffering prior to death.

SoL = if P dies before SoL expires, estate representative gets whichever is LONGER:
a) time remaining on applicable SoL, running from date of accrual, or
b) one year from P's death

Often asserted alongside Wrongful Death claim.

-if potential D dies at any time before SoL expires, P gets 18 additional months to commence action against that D's estate.

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6 Month Grace Period

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P gets 6 months from date of dismissal to re-file action and serve process on same D is two conditions are met:
1) Original action was timely commenced but dismissed before trial
2) at time of dismissal, SoL had either expired or had less than 6 months remaining

There are EXCEPTIONS

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Exceptions to 6 Month Grade Period

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1) Dismissal was on the merits
2) Dismissal was a voluntary discontinuance by P
3) Dismissal based on P's neglect to prosecute + that neglect consisted of a general pattern of delay (as opposed to 1 instance of delay)
4) Dismissal for lack of personal jurisdiction (but not subject matter jurisdiction)

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"BORROWING STATUTE"

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Where CoA arises outside of NY, we want to prevent forum shopping by non-residents who want a longer SoL in NY.

-If P was a non-resident when out-of-state CoA arose, NY will apply the SoL from whichever state that is SHORTER

-if P was a NY resident when out-of-state CoA arose, NY will apply the NY SoL, regardless of length.

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Commencement of the Action

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Action is commenced by:
1) Filing Process (summons & complaint, or summons & notice) with Clerk of the Court (COUNTY CLERK, in Supreme Court) + purchase of index number

+
2) Serving Process on defendant within 120 days

P may request extension beyond 120 days for good cause shown or interests of justice. If P makes mistake during filing, P can make motion to amend, which court will grant assuming that D suffers no prejudice, SoL hasn't run, and filing fee is paid.

D must raise untimely service of process defense, otherwise it is waived.

TIP: IF EXAM SAYS "DULY" COMMENCED, DO NOT DISCUSS THIS ISSUE.

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Forms of Process

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2 different kinds:

1) SUMMONS + COMPLAINT

2) SUMMONS + NOTICE (abbreviated complaint, which consists of):
a) brief statement of nature of action
b) type of relief being sought
c) if damages are sought, amount of damages (unless in a personal injury or wrongful death action, in which case, no damages specified)

"Naked summons" = defect in personal j'dn & immediate dismissal upon D's timely motion

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Basics of Serving Process

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1) Process may be served by any person who is at least 18 years old, but not including party himself (party's lawyer OK)
2) Process may be served any day, including holidays, but NOT on Sunday (or on a Saturday if process server KNOWS that defendant observes the Sabbath)
3) Actual Notice is IRRELEVANT to validity of process. Strict compliance with formalities is required

TIP: IF EXAM SAYS "DULY" SERVED, DO NOT DISCUSS THIS ISSUE.

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Types of Serving Process on a Natural Person

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1) PERSONAL DELIVERY
2) LEAVE AND MAIL
3) NAIL AND MAIL
4) COURT INVENTED SERVICE
5) AGENT SPECIFICALLY DESIGNATED
6) SERVICE ON INFANTS & INSANE
7) SERVICE OUTSIDE NY

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PERSONAL SERVICE

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Tendered directly to defendant. If D refuses to accept, server may leave in his immediate vicinity (on his desk, thrown at his legs, etc.)

No requirement to file affidavit of service.

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LEAVE + MAIL

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1) Left with person of suitable age & discretion
*at D's actual dwelling place or
*at D's actual place of business, +

2) Send copy in regular mail to
*D's actual place of business, or
*last known residence

3) File affidavit of Service (service is complete 10 days after this final step)

-2 steps must be performed within 20 days of each other (in either order)
-2 steps must BOTH be completed within 120 days of filing process
-If multiple defendants, each must receive his OWN copy (even if living at same address!)

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NAIL + MAIL

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1) Affix process to door of D's actual dwelling place or D's actual place of business+

2) Send copy in regular mail to D's actual place of business, or D's last known residence

3) File Affidavit of Service (service is complete 10 days after this final step)

-Before resorting to this step, process server must exercise DUE DILIGENCE by (1) making attempt to serve D directly, and if that fails, by (2) trying to leave process with a person of suitable age and discretion. DD = fact specific, but look for (a) multiple attempts, (b) different days of the week, and (c) different times of day

-2 steps must be performed within 20 days of each other (in either order)
-2 steps must BOTH be completed within 120 days of filing process
-If multiple defendants, each must receive his OWN copy (even if living at same address!)

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COURT INVENTED SERVICE

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If traditional service is not practicable, P may make ex parte motion to Court for an order allowing improvised, expedient method.

Exam tip: must get COURT ORDER for this to be valid

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SERVICE ON INFANTS & INSANE

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When D is infant, D's name goes on the summons but process must be served on (1) parent, (2) guardian, (3) any person having legal custody, or (4) adult spouse of married infant. If infant is over 14, he gets his own copy of service (along with copy for parent).

When D is insane + guardian, process must be served on insane + guardian.

When D is insane + no guardian, process served on insane & court will appoint "guardian ad litem" (for purpose of litigation.

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SERVICE OUTSIDE NYS

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ASSUMING THERE IS A BASIS FOR OUT OF STATE SERVICE, the following people can serve in another jurisdiction:
1) Any NY Resident at least 18
2) Anyone authorized to serve in that jurisdiction
3) Any attorney who is licensed in that J'dn

Note: NY methods of valid service apply to the foreign jurisdiction, but NY requirements of WHO may service process will NOT override the local rules.

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SERVICE ON CORPORATIONS

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1) Personal Delivery to (a) Officer (b) Director (c) Designated Agent, or (d) Managing Agent.
-assuming basis of J'dn over Corp., any of these individuals can be served anywhere in the US

2) Service on NY Secretary of State
A) for domestic corp (incorporated in NY) OR a licensed corp. (incorp. outside NY but licensed in NY):
*personally deliver 2 copies to NY Sec'y of State
B) For unlicensed foreign corp.
*personally deliver 1 copy to NY Sec'y of State + 1 copy by CERTIFIED MAIL to corporation.

NO LEAVE + MAIL SERVICE FOR CORPORATIONS

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Service by 1st Class Mail + Acknowledgment

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Non-Traditional Method:

3) Mail Process by first class mail w/ 2 copies of "statutory acknowledgement form" + prepaid return envelope.
*service effective only if D signs and returns form within 30 days (effective on mailing of return).
*if D fails to return, P must start again
*Returning is NOT concession of jurisdiction

Valid for ALL defendants (including Corps) EXCEPT infants and insane+guardian.