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107 Cards in this Set

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What is the only court with essentially unlimited/general jurisdiction?
New York Supreme Court
Over what subjects does the NY Supreme Court have exclusive jurisdiction?
1. Matrimonial actions
2. Article 78 Proceedings
3 Declaratory Judgment Actions
What are the exceptions to the NY Supreme Court's exclusive jurisdiction?
1. where Preempted by exclusive Fed jurisdiction (bankruptcy, patent, etc.)
2. Most claims against New York State (these go to Court of Claims)
How is transfer between the courts upward accomplished?
By motion to the NY Supreme Court and application to the transferee court
How is transfer down from NY Supreme Court to a court of more limited jurisdiction performed?
1. Generally requires consent of the party adversely affected (since affects amount of damages available)
2. Removal CAN be ordered to alleviate congestion on the calendar, but in these cases consent is not required as recovery will not be limited.
What is the only court with essentially unlimited/general jurisdiction?
New York Supreme Court
Over what subjects does the NY Supreme Court have exclusive jurisdiction?
1. Matrimonial actions
2. Article 78 Proceedings
3 Declaratory Judgment Actions
What are the exceptions to the NY Supreme Court's exclusive jurisdiction?
1. where Preempted by exclusive Fed jurisdiction (bankruptcy, patent, etc.)
2. Most claims against New York State (these go to Court of Claims)
How is transfer between the courts upward accomplished?
By motion to the NY Supreme Court and application to the transferee court
How is transfer down from NY Supreme Court to a court of more limited jurisdiction performed?
1. Generally requires consent of the party adversely affected (since affects amount of damages available)
2. Removal CAN be ordered to alleviate congestion on the calendar, but in these cases consent is not required as recovery will not be limited.
What is the SOL for a state or its grantee to recover Real Property
20 Years
What is the SOL for enforcement of a judgment
20 Years
What is the SOL to annul letters patent?
10 years
What is the SOL to redeem a mortgage?
10 years
What is the the SOL to recover real property?
10 years
What is the statute of limitations by a crime victim against a convicted defendant?
Generally it is 7 years running from the date of the crime
What is the statute of limitations by a crime victim against a convicted defendant where a special crime at issue?
10 years running from date of conviction.
What is the Statute of Limitations where crime victim discovers that defendant has recovered money or property from any source?
3 years from time of discovery, even if other statute of limitations has run.
What is the statute of limitations for non-UCC contractual obligations such as contribution and indemnification?
6 years
What is the statute of limitations for a personal injury claim sounding in strict liability or tort?
3 years
What is the SOL for an action for public property?
6 years
What is the SOL for shareholder derivative actions?
6 years
What is the SOL for a corporation's suit against its directors?
6 years
What is the SOL for all other civil actions not specified by statute?
6 years
What is the SOL for an intentional tort?
1 year
What is the SOL for replevin actions?
3 years
What is the SOL for actions for damage to property?
3 years
What is the SOL for actions to annul a marriage on the basis of fraud?
3 years from discovery of the fraud
What is the SOL for actions to recover nonpayment of money on execution of a levy?
3 years
What is the SOL for medical malpractice?
2 years, 6 months
What is the SOL for fraud actions and those based on mistake?
Generally 6 years. For fraud, plaintiff may sue within 6 years of fraud or 2 years of discovery (actual or imputed)a, whichever is longer
What is the SOL for contracts governed by UCC-Art 2?
4 years
What is the SOL for professional malpractice, other than medical?
3 years
What is the SOL for wrongful death?
2 years running from date of death, except must ALSO be shown that SOL on decedent's underlying personal injury claim had not expired on date of death.
If criminal claim brought against D, executor gets optional and independent 1 year from termination of criminal proceedings (regardless of whether conviction or acquittal)
What is the SOL for an Article 78 proceeding?
4 months
What is statute of limitations against a city, town, village or school district?
1 year, 90 days (notice of claim must be served on municipal defendant within 90 days)
What is the SOL for Defamations actions?
1 year running from first defamatory statement. Republication does not revive unless intended to reach a different audience.
What is the SOL for retaliatory evictions?
1 year
What is the SOL for actions on arbitration awards?
1 year
What is the SOL on Survival Claims?
If P dies before SOL expires, gets whichever is longer:
1. the remaining time on SOL
2. 1 year from death
What is SOL for breach of warranty?
four years from date product delivered.
From when do contribution and indemnity claims run?
date actual payment of judgment for which contribution or indemnity sought was actually sought
How is SOL measured in cases based on toxic exposure?
Three years running from discovery of injury or date should have been discovered with reasonable diligence?
What is the toll for D's absence from the state?
Absence WHICH PREVENTS EXERCISE OF JURISDICTION will toll claim in following ways during period of absence:
1. If D not in state when cause of action accrues, SOL does not run until comes to NY
2. If D was in state, but leaves and is continuously absent for four months or more, toll applies to entire period of absence.
Toll for infancy
Gets toll until disability ends, unless medical malpractice claim in which case there is an outside limit of 10 years.
1. If original SOL was 3 year or more, get the longer of 3 years or remaining SOL
2. If original SOL was less, get the original SOL running from end of disability
Toll for insanity?
Get until disability ends with outside limit of 10 years.
1. If original SOL 3 year or more, get either 3 years or remaining time on SOL, whichever longer.
2. If under 3 years, get original SOL.
What is the toll for the death of a potential defendant?
Any time before SOL expires, automatically get an extra 18 months.
What is the 6 month grace period for dismissal?
If action was timely dismissed, P may commence new action based on same transaction or occurrence within 6 months after termination, provided new action would have been timely if filed first time.
EXCEPTIONS:
1. dismissal for personal jurisdiction
2. dismissal on the merits
3. voluntary discontinuance
4. dismissal for neglect to prosecute (ex. failure to comply with discovery)
What is the NY borrowing statute?
Designed to prevent forum shopping. Provides that:
1. If P was not a NY resident when claim arose, and there is choice of law issue with SOL, she will get the shorter of NY or the out of state's statute.
2. If P is a NY resident, NY will apply its own SOL, even if it is longer (P gets benefit of doubt)
Apart from subject matter jurisdiction, what else does court require in order to render a valid judgment?
1. personal jurisdiction
2. proper commencement
3. proper service of process
How is commencement of action brought about in a justice court?
service on the defendant.
How does a P commence an action in any court other than the justice court?
Filing Process. Must file summons and notice or summons and complaint with county clerk and purchase an index number. Must then serve D within 120 days of filing.
If using summons and notice, what is contained in the notice?
1. brief statement of nature of action
2. statement of relief sought
3. If money damages, generally must be specified, except in cases of medical malpractice
What is consequence of serving a naked summons?
jurisdictional defect subject to dismissal.
Who may serve litigation papers?
Must be a person over 18, not a party to the action. (A party's attorney or guardian is not a party)
Can you serve on Sunday or a holiday or on Saturday?
1. Service on Sunday: void even when made in another state.
2. Public Holiday: this is fine.
3. Saturday: generally fine unless P had reason to know that D observed the Sabbath on this day.
How is personal service accomplished?
process complete upon process server's tender of summons directly to D
(note that cannot give to another person to give to D here).
What is Leave and Mail Service?
Delivery to one of suitable age at D's:
1. actual place of business, dwelling place, or usual place of abode; AND
2. first class mailing of a copy of summons to D's last known residence or actual place of business
How is Personal Service Accomplished on a corporation?
1. May serve upon a designated agent
What is Nail and Mail Service
cannot be used if serve by physial delivery or leave and mail is possibility. The affixing must be following by a first class mailing either to D's last known residence of actual place of business.
Affix to door of D's actual place of business or actual dwelling
What is expedient service?
only occurrs with court permission after ex parte application is made
Who may serve process when outside NY in another jurisdiction?
1. anyone authorized under NY law
2. anyone authorized under laws of jurisdiction where service made
3. an attorney licensed to practice in jurisdiction where service made.
What is method of service for corp where it is a licensed NY corp?
Personal delivery of two copies to NY Secretary of State
What is method of service for unlicensed foreign corporation?
Personally deliver one copy to NY Secretary of State and mail one copy by first certified mail to corporation with return receipt requested.
Service of Process by First Class Mail With Acknowledgement?
Process may be served on any defendant by first class mail. Must contain 2 copies of an acknowledgement of receipt form, which D must sign and return to P by mail or personal delivery within 30 days of receipt of process. If fails to return, then P must use one of traditional methods.
What are the Bases of In Personam jurisdiction over the person?
1. Physical presence of D within state at time of service
a. note immunity attaches where nondomiciliary appears in state for limited purpose of appearing for another proceeding)
b. fraudulent enticement to the state cannot be basis of presence in state
2. Doing business within state
3. Domicile of D in the forum
4. Single Act or Long Arm Jurisdiction
5. Express Consent
What constitutes "doing business in NY"?
whether, at time action commenced, D agents or employees were in NY engaging in regular commercial activity on a systematic basis
What are the bases of jurisdiction under NY's long-arm Statute?
1. Transaction of Business IN NY:
a. requires purposeful NY activity
b. A contract made in NY to supply goods or service to NY will be enough
c. torts suits around NY transaction of business ok

2. Contract made outside NY in which plan to supply goods or services to NY:
a. must be economically significant
b. purposeful NY activity
3. P's claim arises from commission of tortious activity in NY
a. EXCLUSION - defamation

4. Tortious Activity Outside NY causing injury in NY: requires:
a. that D regularly does or solicits business in NY, engages in other persistant conduct here, or derives substantial revenue from sales in state; OR
b. reasonably foresees NY consequences

5. Claim arises from ownership or possession of NY Realty

6. Matrimonial Actions or Family Court proceedings where P resides or is domiciled in NY at time of demand and one of the following applies:
a. NY was matrimonial domicile of parties before separation
b. claim for support arises out of agreement made in ANY
c. D abandoned P in NY
d. Claim for support arose under NY law
What jurisdiction conferred under the Nonresident motorist statute?
The nonresident user or operator of a motor vehicle involved in an accident in NY subject to personal jurisdiction. The nonresident owner of vehilce also subject to personal jursidiction, provided vehicle was operated for owner's business or with permission.
Who has choice of venue?
Plaintiff
What is proper venue where action involves real property or title to it?
proper venue is where property located
What is venue in all other actions (apart from property)?
County in which any one of the parties resides at time action commenced. If no partie reside in NY, any county is proper.
What is remedy for improper venue?
NOT a jurisdictional defect. D serves demand on P for change of venue. If does not comply, D must make a motion for change of venue. If D's motion is proper, automatically gets change if D's choice of venue is proper.
How may D respond to summons and complaint to avoid default?
Respond with a 3211 motion or with the answer
Time limit for serving answer?
Depends on P's method of service:
1. If personal delivery: within 20 days of delivery
2. If another traditional method: within 30 days
3. If by first class mail: within 20 days of D's mailing of acknowledgment form.
When must a 3211 motion be made, if at all?
Prior to answer (on or before last day of prescribed limit for answer)
What happesn upon service of 3211 motion?
D's time to answer automatically extended 10 days
What claims are waived if not raised in 3211 motion?
ONLY personal jurisdiction
What claims waived in not raised in answer?
1. personal jurisdiction, if not already put in 3211 motion
2. affirmative defenses (spareribs)
When does each party have ability to amend as of right?
Plaintiff: can amend complaint up to 20 days after D serves answer

Defendant: up to 20 days after D serves answer (can include personal jurisdiction here)

after that, only permissive amendment, which will be granted as long as no substantial and incurable prejudice to other party.
When can D implead?
At any time after D serves answer.
Relation-back and impleader
P will get benefit of relation-back so long as Ps claim based on same facts as impleader claim. Will related back for SOL purposes to time that D impleaded the TPD
When is there implied-in-law indemnity?
1. products liability case: retailer can sue manufacturer for indemnity if held liable
2. vicarious liability situations
What is reduction formula for P's judgment where partial settlement?
Either reduced by amount of settlement or the settling tortfeasor's share of the fault, whichever is larger.
CPLR Article 16
In personal injury case (not wrongful death), a joint tortfeasor's whose fault is 50% or less cannot be required to pay P more than his equitable share of P's noneconomic damages.
EXCEPTIONS:
1. Tortfeasor who acted with intent or reckless disregard for others
2. releasing a hazardous substance
3. drivers and owners of motor vehicles (other than police and fire vehicles)
For motions on notice, when must papers be served?
At least 8 days before return date.
NY Rule on Appeals from Motion on Notice
immediate appeal as matter of right within 30 days of service of ANY order determining a motion on notice
When is an ex parte motion permitted?
ONLY by statute. No appeal allowed here. Remedy is to make motion on notice to vacate ex parte order and if that fails, appeal that motion.
When is a motion for summary judgment permitted in NY?
Generally, not until after D has served answer EXCEPT:
1. Conversion of D's pre-answer motion for failure to state a cause of action to a summary judgment motion
2. motion for summary judgment in lieu of complaint (action must be based on clear-cut documentary evidence)
What are the five provisional remedies?
1. attachment
2. preliminary injunction
3. temporary receivership
4. order to seize chattel in an action to recover chattel
5. notice of pendency (lis pendens)
Requirements to get provisional remedy of attachment
1. must be seeking money damages and one of two grounds must exist:
a. D is unlicensed foreign corp or nondomiciliary who resides outside NY; OR
b. D is about to conceal or remove assets from NY with intent to defraud creditors

2. Order may be obtained ex parte, but P must make notion on notice to confrim within 10 days of levy if relying on ground 1 or 5 days if relying on ground 2
3. undertaking required
Requirements for provisional remedy of a preliminary injunction
1. must be seeking either permanant injunction or claim that D is about to do an act rendering equity judgment ineffectual

2. no ex parte order here. Motion by order to show cause for TRO can be included, thereby restraining D until hearing on this

3. requires an undertaking
Requirements for Temporary Receivership
1. property subject of an equity action and in danger of destruction, diminution in value, loss or removal from state

2. no ex parte order unless parties agreed in contract

3. undertaking required by receiver that will faithfully discharge duties
Requirements for seizure of chattel (replevin)
1. action to recover possession of chattel

2. can do ex parte, but must make motion on notice to confirm within 5 days of sheriff's seizure

3. undrtaking required in amount at least twice value of chattel
Requirements for Notice of Pendency
1. action in which judgment will directly affect title, use or possession of real property

2. No order required. Filing with county clerk is ex parte

3. no affidavits required

4. No undertaking required

5. court narrowly construes availability of this remedy. Duration of valid notice is 3 years from date of filing
When does a party in a civil action have a right to trial by jury?
1. action for money damages
2. replevin action
3. claim to real property
4. annul a marriage
5. In a divorce action, solely on issue of grounds

Party filing note of issue must make request at that time or waives. Other parties can do in separate motion.
What is NY test for res judicata?
when a claim against D is brought to judgment on the merits, all other claims by P against D arising out of the same transaction or occurrence are barred, even if based on different theory of seeking different remedy.
What is test for collateral estoppel?
Must make 3 part showing:

1. issues in prior action an this action identical
2. party against who issue preclusion sought had full and fair opportunity to litigate it in first action
3. issue was actually litigated in former proceeding
What are 5 thresholds issues that can be presented to court to avoid arbitration?
1. whether parties agreed to arbitrate
2. is dispute within scope of arbitration clause
3. is the arbitration clause valid
4. Is there express condition to arbitration that has not been complied with?
5. statute of limitations
What are the 3 grounds for vacating an arbitration award?
1. if corruption, fraud, or misconduct at proceeding
2. if arbitrator was biased
3. If arbitrator exceeded powers (in NY, can't award punitive damages0
When does a party in a civil action have a right to trial by jury?
1. action for money damages
2. replevin action
3. claim to real property
4. annul a marriage
5. In a divorce action, solely on issue of grounds

Party filing note of issue must make request at that time or waives. Other parties can do in separate motion.
What is NY test for res judicata?
when a claim against D is brought to judgment on the merits, all other claims by P against D arising out of the same transaction or occurrence are barred, even if based on different theory of seeking different remedy.
What is test for collateral estoppel?
Must make 3 part showing:

1. issues in prior action an this action identical
2. party against who issue preclusion sought had full and fair opportunity to litigate it in first action
3. issue was actually litigated in former proceeding
What are 5 thresholds issues that can be presented to court to avoid arbitration?
1. whether parties agreed to arbitrate
2. is dispute within scope of arbitration clause
3. is the arbitration clause valid
4. Is there express condition to arbitration that has not been complied with?
5. statute of limitations
What are the 3 grounds for vacating an arbitration award?
1. if corruption, fraud, or misconduct at proceeding
2. if arbitrator was biased
3. If arbitrator exceeded powers (in NY, can't award punitive damages0
4 grounds for Art 78 proceeding
1. mandamus to compel
2. prohibition
3. cert - challenging trial-type hearing by administrative officer
4. mandamus to review - review of administrative action not in first three categories
What is procedure for special proceeding?
1. petitioner files petition, which serves as commencement
2. next petition and notice of it must be served on Respondent using regular methods of service of process
3. notice of petition advises respondent to serve answer and appear on specified return date, which can be no more than 8 days from service of process
Affidavits usually served in support of petition