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256 Cards in this Set

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What is the only court in NY with general subject matter jurisdiction and what does that mean?
NY Supreme Court.

The NY Supreme Court is a court of general jurisdiction has the jurisdiction to hear ANY type of case.
None
What are the monetary restrictions on the NY supreme court?
None.
The New York SC has unlimited jurisdiction. The other civil courts have limited monetary jurisdiction.

County Courts (Max $25k)
Justice Courts ($3k Max)
None
what is the only court in NY that has full equity jurisdiction?
NY Supreme Court is the only NY Copurt with full equity jurisdcition.

E.g., Injunctions, Specific Performance, Damages, etc.
None
If none of the parties reside in NY, does the NYSC have subject matter jurisdiction to hear the case?
Yes, The court has jurisdiction to hear the case. But the court would have the discretion to dismiss the action on the ground of forum NON-CONVENIENS -- though this requires a motion on the part of one of the parties. But it is discretionary.
None
what are the two exceptions to the NYSC's general jurisdiction?
Two exceptions to NYSC's general jurisdcition are:

1. Cases as to which federal law confers exclusive jurisdiction to federal courts eg bankruptcy, patents, etc.

2. Claims for money damages in tort or contract against the State of NY. (Ct of Claims)
None
what court has exclusive jurisdiction to hear claims for money damages in tort or contract against the state of NY?
NY court of claims
Who can be sued in the Court of Claims?
Only the State of NY.
Assume Amy Fisher, while driving on the NY State Thruway, is injured in a collision with a state police car being driven by State Trooper Joey Buttafuco. In what court could Amy bring an action jointly against the State of NY and Trooper Buttafuco?
No court, since while there is the same transaction, there is not one court with competence in respect to both actions. NYS can be sued only in the Court of Claims where Joey cannot be sued. Joey can be sued in the NYSC where the State cannot be sued.
In what court can Nassau County, NY be sued?
The SC, since government subdivisions are NOT the state and can be sued in the SC (counties, cities, schools, etc.).
What court has exclusive subject matter jurisdiction over Matrimonial actions (divorce, separation, annulment, declaration of validity of a marriage);
The NY Supreme Court
What are the three areas in which the NYSC has EXCLUSIVE subject matter jurisdiction?
NYSC has exclusive jurisdcition over:
1. Matrimonial actions (divorce, separation, annulment, declaration of validity of a marriage);
2.CPLR Article 78 proceedings (e.g., judicial review of administrative action);
3. Declaratory judgment actions (judicial declaration of the rights and obligations of the parties to an actual controversy before one of them engages in conduct that could cause liability).
None
Where can cases from the NYSC be appealed to?
1. Appellate Division;

2. Then to the NY Court of Appeals -- this is the highest court in NY.
None
What is the statute of limitations
An affirmative defense raised by the defendant, based on the passage of time.
In general, when does the SOL begin to run?
The Statute of Limitations begins to run when the cause of action accrues. This means when the injury occurs.
For personal injury and property damage, when does the SOL begin to run? How about for Breach of Contract?
The SoL begins to run when the physical injury occurs. For a contract, the SoL begins the day of the breach regardless of whether the breach was discovered.
When an infant is injured in utero, when does the SOL begin to run?
The child has no cause of action unless the child is born alive, in which case the SoL begins to run from date of birth.
To satisfy SoL, the action must be commenced no later than the last day of the prescribed period of limitations. How is the action commenced?
In the NYSC and County Courts -- process (summons and complaint, or summons with notice) must be filed with the proper court clerk on or before the last day of SoL.
Assume Andretti's car collides with the Batmobile on June 1, 2000. The last day for timely commencement of Andretti's action for damages for personal injury and/or property damages would be:
June 1, 2003, since personal injury and property damage has a 3 year SoL. In case of years, the anniversary day is the last date of the SoL.
What is the SoL for Action on judgment?
20 years (the longest SoL)
What is the SoL for an Action to recover realty?
10 years

Same as period for adverse possession.
None
What is the SoL for an action by crime victim against convicted defendant?
7 years -- Period runs from date of crime.

In case of felony conviction, victim may also sue for damages for up to 3 years from discovery of "profits" of the crime (e.g. book contract).
None
What is the SoL for Contracts, express or implied (other than UCC Article 2 - Sales).
6 years.

Accrual begins on date of breach, regardless of plaintiff's lack of knowledge.
None
What is the SOL for fraud?
Plaintiff may sue within 6 years of commission of fraud
OR
2 years of discovery (actual or imputed), whichever is longer.
None
What is the SOL for indemnity and contribution?
6 years

Accrual on date of payment for which indemnity or contribution is sought.
None
What is the SOL for Contracts governed by UCC Article 2 - Sales?
4 years
What is the SOL for Personal injury based on negligence and strict products liability, property damage, including replevin and conversion and non-medical professional malpractice?
3 years.

Personal injury and property damage claims accrue on date original injury occurs.

No discovery rule applies except in cases of toxic substances.
None
What is the SOL for Medical, dental and podiatric malpractice?
2.5 years.

The Cause of action generally accrues on date of malpractice.

Exceptions for continuous treatment (period runs from end of treatment) and "foreign objects" (one year from discovery if insufficient time under regular rules).
None
What is the SOL for Wrongful death? (Statutory cause of action in favor of defendant's distributees where plaintiff's tortious conduct caused death; damages limited solely to distributees' economic losses).
2 years.

2 years runs from date of death, except it must ALSO be shown that SoL on plaintiff's underlying personal injury claim had not expired on date of death.
None
What is the SOL for Intentional torts to the person?
1 year SoL

Intentional torts include: assault, battery, false imprisonment, defamation, emotional distress.
None
SOL for Article 78 proceeding? (to challenge action (or inaction) by agencies and officers of state and local government.)
4 months.
Does the date of discovery of medical malpractice affect the SOL?
No. SoL runs from date of treatment.

Exceptions for continuous malpractice (period runs from end of treatment) and
"foreign objects" (one year from discovery if insufficient time under regular rules).
None
Where a hospital is sued for the vicarious liability for the malpractice of a doctor working there, what is the SoL?
2.5 years, since vicarious liability has the same SoL as that of the employee.
If a Hospital is sued on the grounds that it was negligent in hiring a doctor who committed malpractice, what SOL?
3 years. This is not a malpractice claim, but a negligence claim with a 3 year SoL.
What is the continuous treatment rule for medical malpractice SoL?
If the Dr. continues to treat Patient, after the malpractice occurs -- for the EXACT same medical condition that gave rise to the malpractice -- then P gets 2.5 years from the termination of the treatment.
What is the foreign object rule for medical malpractice SOL?
If Dr. was responsible for introducing a foreign object into P's body and leaves it behind: The SoL is either 2.5 years from the date of the operation or 1 year from the date the P discovered or should have discovered with due diligence the object, whichever is longer. A foreign object is something the Dr. did not intend to leave behind such as a sponge, scalpel, or clamps.
What is the SoL for malpractice against a lawyer?
3 Years.

For an attorney, accountant, architect, or other professional, the SoL runs from delivery of work product to client -- also subject to the doctrine of continuous representation which is similar to the continuous treatment doctrine applied to doctors.
None
If a building that was completed in 1990 collapses in 2001 and causes personal injuries, what is the last year in which the injured persons may sue the architect and contractors?
2004, since personal injury is involved and the SoL runs from the date the bodily injury occurred, regardless of the date of completion of the building. However, if the architect were sued for malpractice or negligent design of the building, the SoL would be 3 years from the date construction was completed.
When a defective widget causes personal injuries, the P has three possible causes of action which, can all be asserted in the same complaint. What is the S/L as to each theory and when does it begin to run?
1. Negligence: 3 years from the date of injury as to all Defendants in the chain of distribution.

2. Strict products liability: The same as negligence: 3 years from the date of injury as to all Defendants in the chain of distribution.

3. Breach of Warranty: UCC determines a 4 year SoL from when the particular Defendant against whom the warrant claim is asserted made its sale of the product.
None
What is the SoL for an indemnity and contribution claim?
6-years
Running from the date of ACTUAL PAYMENT of the judgment for which indemnity or contribution is sought.

The date of the original transaction or occurrence is irrelevant.
None
How is the SoL measured in a toxic substance-exposure case?
3 Year SoL.

Starts to run from the date the injury is discovered by plaintiff or should have been discovered by plaintiff with due diligence, whichever is earlier.
None
If a doctor injects a toxic substance into P, what is the SOL for malpractice wrt the injection?
2.5 years.

The discovery rule for toxic substances is inapplicable to claims of medical malpractice. It applies only to negligence and products liability against (e.g., the manufacturer of the substance.)
None
When does the absence of the D toll the SOL?
If the D is outside NY when the cause of action accrues, the SoL does not begin to run until D comes to NY, or

If D is in NY when cause of action accrues, but D leaves the state and is continuously absent for at least 4 months, then toll applies to entire period of absence.

EXCEPTION: There is no need for the absence toll if P can get valid personal jurisdiction over the D such that the D can be served outside of the state.

***The Exception usually swallows the rule.
None
If the SoL is tolled for a minor or an insane person, and the P reaches 18 or the insanity clears, what is the SoL?
If P is an infant or insane at the time the cause of action accrues, the SoL is tolled until the disability ends (infant reaches 18 or insanity clears up).
(1) If the original SoL was 3 years or more: P gets 3 years from the date the disability ends OR the SoL running from the accrued injury, whichever is longer.
(2) If original SoL was less than 3 years: P gets the period specified by the original SoL running from the end of the disability.
None
What is the SOL for a 3 year old who suffers injury resulting from medical malpractice?
10 years.

When relying on the toll for infancy, a claim for medical malpractice must be commenced no later than 10 years from date of accrual.
None
How long can the SoL be tolled for an insane person? How long can the SoL be tolled for an infant's claim for medical malpractice?
10 Years for Both.
(1) Claims of insane Ps regardless of the nature or cause of action, become time-barred after 10 years from date of accrual.

(2) When relying on the toll for infancy, a claim of medical malpractice must be commenced no later than 10 years from date of accrual.
None
What is the difference between a survival claim and a wrongful death claim?
Survival claim is any cause of action P herself could have brought if she were still alive. It is not limited to torts, and recoverable damages include all damages incurred by P prior to death, e.g., pain and suffering.

Wrongful death cause of action is a tort claim for the pecuniary (economic) damages of decedent's statutory distributees (e.g., surviving spouse, children). Punitive damages are also recoverable, but not the emotional suffering of the distributees or the decedent's personal pain and suffering.
None
What is the SoL for Wrongful death cause of action?
The SoL for a Wrongful death cause of action is 2 years from the date of death, but it must been shown that at the time of death, the SoL for underlying personal injury claim was still timely.
None
What is the SoL for a Survival claim?
For a Survival Claim:
If the underlying claim was still timely on the date of death, the executor gets wither the remaining time on the SoL for the claim,
OR
1 year from the date of death, whichever is longer. the time remaining on the original claim or 1 year from the date of death, whichever is longer.
None
What happens to the SoL if a potential D dies?
If potential D dies AT ANY TIME before the SoL expires, 18 months are always added to the relevant SoL period.

(E.g., Car accident on 6/1/2002, guy dies 3 weeks later, Negligence action SoL is 12/1/2006 (3 years + 18 months))
None
What is the Last Refuge of a Scoundrel in terms of SoL?
If a NY action is timely commenced, but is thereafter dismissed before trial,
AND
at the time of dismissal the S/L has either expired or has less than 6 months remaining, π gets 6 months from date of dismissal to re-file the same action and serve process on same D.
None
When is the 6-month grace period inapplicable?
There are 4 types of prior dismissals as to which the 6-month grace period is not applicable:
1. PRIOR DISMISSAL ON THE MERITS (e.g. SOL grounds);
2. VOLUNTARY DISCONTINUANCE BY THE PLAINTIFF;
3. PLAINTIFF’S NEGLECT TO PROSECUTE (e.g. failure to cooperate with discovery);
4. LACK OF PERSONAL JURISDICTION, (Dismissal for subject matter jurisdiction you DO get 6 month grace period).
None
What is the "Borrowing Statute?"
If the cause of action arises outside of NY, a choice of law problem is presented if the S/L of the other state is different from that of NY. The "borrowing statute" is intended to prevent forum-shopping by non-resident π 's seeking a longer S/L in NY.
Here's the rule:
1. If π was a non-resident of NY when the out-of-state claim arose: NY will use the S/L of the state where the claim arose if it is shorter. If it is longer, then use NY SOL. So here it’s 2 years, the FL SOL.
2. If π was a NY resident when the out-of-state claim arose: NY will always apply the NY SOL regardless of whether the other states is longer or shorter.
None
In addition to Subject Matter Jurisdiction, what are the other three jurisdictional elements?
4 Elements of Jurisdiction are:
1. Subject Matter Jurisdiction;
2. Proper commencement of an action;
3. Proper Service of Process on the ∆; and
4. Personal Jurisdiction over the person or property involved in the action.
None
How is an action commenced in the Justice Courts and lower civil courts, i.e., NYC Civil Court, all other city courts, District Courts of Nassau and Suffolk Counties?
Serving process on the ∆ (either summons and complaint or summons with notice). Therefore, for these courts the proper commencement and proper service requirements are one and the same.
How is an action commenced in courts such as the Supreme Court and County Courts?
An action in NYSC or County Courts is commenced by FILING process, i.e., summons and notice or summons and complaint, with the court clerk, which is the COUNTY CLERK, not the Supreme Court Clerk. The filing must be accompanied by payment of a fee for the PURCHASE OF AN INDEX NUMBER.
None
After an action commenced In Supreme Court and County Court, how long does P have to serve D with process?
120 days

The court has discretion to extend this period if P shows either good cause (due diligence in attempting to serve process) or interests of justice.
None
If process is not served in a timely basis, what is D's remedy?
If D wants to challenge the timeliness of P's service of process he has to file a motion to dismiss for untimely service. The court still has discretion to grant an extension, even retroactively.
Assume P was injured by D in an auto accident on March 1, 2000. She files process in an action against D on March 1, 2003, and process is served on D on June 25, 2003. Has P complied with the statute of limitations?
Yes, since the filing occurred on the last day of the SoL. The service of process was timely as well - within 120 days of the filing.
What are the two forms of process?
1. Summons and Complaint, and
2. Summons and Notice
None
What is a summons and complaint?
The summons advises a D that P is suing D in a particular court.

The complaint is P's pleading, which specifies the transaction or occurrence that is the subject matter of the action and spells out the essential elements of P's cause of action.
None
what is a summons with notice?
When the summons is not accompanied by a complaint, it must have sufficient "notice" inscribed on the face of the summons or on a one-page attachment.
What is sufficient notice for a summons with notice?
An abbreviated complaint which has to include:
1. A brief statement of the nature of the action (one sentence is sufficient).

2. Specify the nature of the relief being sought (damages, injunction, etc.)

3. If money damages are sought P must state the amount sought, unless medical malpractice.
None
What is the consequence if P files and/or serves a "naked" summons, i.e., unaccompanied by either a complaint or notice?
It is a defect in personal jurisdiction subject to dismissal for that reason alone.
Who can serve process?
Process may be served by any person who is at least 18 years old, provided the person is NOT A PARTY to the action.
None
On what days of the week can process be served?
Process may be served on ANY day of the week except: 1. Sunday; 2. If D is a Saturday-Sabbath observer, and P knows it, P may not properly serve that particular D on Saturday. Innocent service on such D is not a defect. 3. Service on a holiday, if it does not fall on a Sunday, is allowed, e.g., Thanksgiving.
Assume that D has been served with process in an unauthorized manner (e.g., tied with a red ribbon on the steering wheel of D 's car) but D finds the process. Is it sufficient that D has "notice" of the action?
No. Defective process is ground for dismissal. The statutory methods must be observed precisely.
When is personal service to a natural person "complete?
Service by personal delivery is "complete" upon process server's tender of summons DIRECTLY to D .
What is a PSA and D?
Person of suitable age and discretion. Can be a doorman or someone under 18.
What is the "leave and mail" form of service on a natural person?
Process server may:
1. DELIVER process to person of suitable age and discretion (PSA&D) at D 's actual dwelling place OR actual place of business;
PLUS,
2. mail a copy by regular mail (i.e. first class mail) to D 's actual place of business OR last known residence.

These 2 steps must be performed within 20 days of each other, AND must take place within 120 days from filing process. The delivery and mailing can be done in any order and can mix and choose between the residence and place of business.
None
What is "affix and mail" form of service on a natural person?
Process server may:
1. AFFIX process to the door of D's actual dwelling place OR actual place of business;
PLUS
2. Mail a copy by regular mail to D at D's actual place of business or last known residence.

Affixing and mailing must be performed within 20 days of each other, and within 120 days from filing process. **** BUT the process server must first exercise due diligence in attempting to serve D directly and to leave process with a person of suitable age and discretion.
None
Assume the process server arrives at defendant's place of business at noon and finds no one minding the store. Will service be valid if process is taped to the door and a second copy is mailed to defendant at defendant's last-known residential address?
No, due to the lack of due diligence. One attempt is not enough; several attempts on different days of the week, at different times of the day, is necessary at the least.
For both leave-and-mail and nail-and-mail, when is service COMPLETE ?
10 days after proof of service is filed.

Personal delivery has no requirement for filing proof of service. Proof can be filed, but is not required.
None
What is the consequence of Plaintiff's failure to file proof of service?
It is NOT a jurisdictional defect, i.e., it is NOT a ground for dismissal.

The only consequence of delay or failure to file proof of service is postponement of defendant's response time. (Proof of service is not required within the 120 day window.)
None
When is expedient service used?
If the normal methods of service are not practicable, P may make an ex parte motion to the court for an order allowing an improvised method -- some reasonable alternative appropriate in the circumstances, e.g., service on D's liability insurer, service via email.
How is process served when the Defendant is an INFANT? How is process served when the Defendant is mentally incapacitated?
Infant: Defendant's name goes on the summons but process is served on an eligible adult:
1. Parent;
2. Guardian;
3. Any person having legal custody;
4. If the infant is married, upon an adult spouse with whom he resides. If infant is 14 or over, process must be served on an eligible adult AND the infant.

Mentally Incapacitated: process must be served on the guardian (named by court) AND the mentally incapacitated person.
None
Assume that, after exercising due diligence, P has been unable to find a residential address or place of business for Defendant. Plaintiff then publishes, once a week for 4 weeks, a copy of the summons and complaint in a newspaper distributed in the neighborhood in which defendant was last seen. Is service valid?
No, service is not valid. The plaintiff must first get a court order permitting expedient service before this method will be valid.
How do you serve process when Defendant is OUTSIDE OF NY?
The same methods that are used to serve defendant within NY are used when D is located outside NY (this assumes that there is a basis for out-of-state service).
Who may serve process in a non-NY jurisdiction?
Service of Process outside of NY:
1. Anyone authorized under NY law to serve process (Over 18, non-party);
2. Anyone authorized to serve process by the laws of the jurisdiction where the service is made;
3. Any attorney licensed in the jurisdiction where process is served.

Note: Remember the NY methods must be used.
None
How is service of process made on a CORPORATION?
Service on a CORPORATION is made by PRESONAL DELIVERY to any one of the following:
1. Officer of the Corp.;
2. Director of the Corp.;
3. Designated agent;
4. Managing agent, (person who has general supervisory authority);
5. Cashier/assistant cashier.

ANYWHERE in the U.S.
** MUST BE BY PERSONAL DELIVERY **
None
Assume Plaintiff's process server walks into the headquarters of Ink, Inc., and leaves process with the receptionist, who later hands it to the president of Ink, Inc. A second copy is mailed to Ink, Inc. at its headquarters. Valid service?
No. The Leave and Mail method is NOT a valid method for serving process on a corporation; only the personal delivery method is valid.
How else can process be served on a domestic corporation (Incorporated in NY), OR a foreign corporation that is authorized to do business in NY (Aka a licensed corporation):
Personally deliver 2 copies of process to the NY Secretary of State.

(Secretary, who is the designated agent as per certificate of incorporation or certificate of doing business, will mail one copy by certified mail to corporation at the address on file in Secretary's office).
None
How can process be served on an UNLICENSED FOREIGN corporation?
By personal service, or by personally delivering one copy of process to the NY Secretary of State PLUS Plaintiff MAILS one copy to the corporation by certified mail with return receipt requested.
None
How is the non-traditional method of Service by First-Class Mail PLUS Acknowledgment performed?
Mail process to Defendant by first-class mail, enclosing two copies of a statutory acknowledgment form, plus a return envelope, postage prepaid, addressed to sender. Service will be effective only IF defendant signs and returns one of the acknowledgment forms to plaintiff within 30 days after defendant receives the mailed process. Service is complete upon defendant's posting of the signed form. If the defendant does not return the acknowledgment form then service is NOT effective and plaintiff must serve process all over again.
Who may be served by Mail Plus Acknowledgement?
Service by this method is available as to all types of Defendants (e.g., natural persons, corporations) EXCEPT infants and mentally incapacitated persons for whom guardians have been appointed. The latter must be served by traditional methods, previously discussed. Service by Mail Plus Acknowledgment may be used regardless of whether the defendant is within or outside NY.
Is defendant's return of acknowledgement form a concession that the court has jurisdiction?
No. The defendant can still make a motion to dismiss or raise a jurisdictional defense in the answer.
What is personal jurisdiction?
Personal jurisdiction enables judgment for money damages to be enforced in full.
Assume defendant, a NJ domiciliary runs over plaintiff in NJ. One day defendant comes to NY for the first time in her life to visit Grant's Tomb, and plaintiff 's process server tags defendant on the steps of the monument. Valid personal jurisdiction?
Yes. Even though defendant is non-domiciliary and cause of action arose outside NY, USSC determined physical presence is sufficient to grant personal jurisdiction. (1) Personal Delivery/Service to defendant (2) while physically in New York.
When is a domestic corporation subject to personal jurisdiction in NY?
A domestic corporation is subject to personal jurisdiction in NY on any claim whatsoever, no matter where in the world the claim arose. The same applies to a foreign corporation (not incorporated in NY) that has become authorized to do business in NY, i.e., the "licensed" corporation.
***When is a foreign corporation subject to personal jurisdiction in NY?
At time the action is commenced are the corporation’s employees or agents in NY engaging in commercial activity for the corporation on a continuous, regular, and systematic basis (and have not signed up with the NY Secretary of State).
***What is the test for an unlicensed foreign corporation "doing business in NY?"
If at the time the action is commenced the corporation's employees or agents are in NY engaging in commercial activity for the corporation on CONTINUOUS, REGULAR & SYSTEMATIC basis. Maintaining an office of some kind in NY enables to conclude the test is satisfied.
If an unlicensed foreign corporation that is not otherwise present in NY has an officer that is present temporarily in NY for a trade show, can he be served with process for his corporation?
Not doing business in NY. Transient presence by the corporation's officer in NY is NOT enough. It is enough to acquire personal jurisdiction over the president by not the corporation.
If defendant is domiciliary of NY at the time the action is commenced, but subsequently moves, does the court have personal jurisdiction?
Yes - If defendant is domiciliary of NY at the time the action is commenced, he can be served with process anywhere in the US regardless of where he claim arose.
***Distinguish domicile from residence:
(1) Residence is a place where a person lives for a fair amount of time with some degree of permanency. A person can have multiple residences.

(2) Domicile is the one residence at which a person intends to remain indefinitely and is treated by her as the principal home. A person has only one domicile.
None
***What is LONG-ARM JURISDICTION?
BASIC CONCEPT: CPLR 302 (NY's long-arm statute) has its origins in the "minimum contacts" standard of jurisdiction that allows for out-of-state service conferring personal jurisdiction on the basis of certain acts by defendant that have a SUFFICIENT CONNECTION with NY, provided plaintiff’s claim arises from those acts. (Specific Jurisdiction. See Helicopteros Nacionales)
***What are the five categories of NY-related activity that can give rise to long-arm jurisdiction?
1. Plaintiff's claim arises from a TRANSACTION OF BUSINESS BY DEFENDANT IN NY;
2. Plaintiff's claim arises from a CONTRACT MADE OUTSIDE OF NY IN WHICH DEFENDANT AGREED TO SUPPLY GOODS OR SERVICES IN NY;
3. Plaintiff's claim arises from defendant's commission of a TORTIOUS ACT BY D IN NY. (See note below about exclusion for defamation.);
***4. Plaintiff's claim arises from defendant's tortious act outside NY which causes injury in NY- PLUS there exists some additional link between defendant and NY;
5. Plaintiff's claim arises from defendant's ownership, use or possession of real property in NY.
None
***What are the 6 grounds for personal jurisdiction in NY?
6 Grounds for PJ:
1. Presence in NY (natural persons);
2. Doing Business in NY (corporations);
3. Domicile in NY (nat. persons);
4. Long-Arm Jurisdiction (any D);
5. Non-Resident Motorist Statute;
6. Consent
None
What is the basis for the long-arm statute?
That an otherwise not-present D has done one of the 6 things in NY that are sufficient links to NY to assert jurisdiction over him. CONTACTS IN NY.
*** What is the test to determine whether the particular assertion of long-arm jurisdiction would satisfy constitutional due process?
Due Process is satisfied if the Plaintiff's claim arises out of conduct by the defendant that is so purposefully directed towards NY, that defendant reasonably should have anticipated being haled into a NY court.
What is the non-resident motorist statute?
Confers personal jurisdiction over an accident claim arising from a non-domiciliary motorist's ownership or use of an auto on a NY roadway. Plaintiff serves process on the D by personally serving one copy on the NY Sec. of State PLUS mailing second copy to D by certified mail to D's out-of-state residence.
Where P is a domiciliary of NY, what is the requirement for personal jurisdiction over the D for divorce, separation and annulment?
None - Only need that plaintiff be a domiciliary of NY. The reason is that this is an in rem claim and only the marital status needs to be located in NY.
What are the 4 grounds for long-arm matrimonial jurisdiction for monetary support?
Long-Arm Matrimonial Jurisdcition:
1. NY was the matrimonial domicile of P and D prior to their separation; OR,
2. D abandoned P in NY; OR,
3. D's monetary obligation accrued under an agreement executed in NY, OR,
4. D's monetary obligation accrued "under the laws of NY."
None
Can a P in a matrimonial action serve process on D by "Leave and Mail" or "Nail and Mail?"
NO. In a matrimonial action the plaintiff cannot use "Leave and Mail" or "Nail and Mail" without a court order.

There is a preference for personal delivery in matrimonial action.
None
What is the durational residency requirement if BOTH parties are NY RESIDENTS at the time the divorce action is commenced, AND the GROUNDS for the matrimonial action AROSE IN NY?
No period of prior residency is required.
Durational Residency Requirements: If EITHER PARTY has been a NY RESIDENT for a continuous period of at least 1 YEAR immediately prior to the action, what else is required to satisfy the durational residency requirement?
NY must also have a PRIOR LINK to the marriage, i.e. either:
1. The marriage took place in NY;
2. NY was the matrimonial domicile at some point;
3. The grounds for the action arose in NY.
None
Durational Residency Requirements: If EITHER PARTY has been a NY RESIDENT for a continuous period of at least 2 YEARS immediately prior to the action, what is the durational residency requirement?
There is no need to show any other link between the marriage and NY.
Durational Residency Requirements: If Plaintiff FAILS to allege and prove satisfaction of at least one of the residency requirements, what is the proper defense?
Dismissal of the action on its merits due to failure to state cause of action; not lack of jurisdiction.
In an action not affecting title or possession to real property, where is the correct venue for the action?
Proper venue is ANY county in NY in which any one of the parties resides at the time the action is commenced (not where the action arose). If no party resides in NY any county is proper venue.
What is defendant's remedy for improper venue?
Improper venue is not a jurisdictional defect, and therefore is not a basis for dismissal.

D's Remedy: Defendant must serve a demand on the plaintiff for change of venue to a proper county designated by the Defendant. Defendant serves the demand with or before service of the answer. If plaintiff concedes there is automatic change of venue. If plaintiff objects or doesn't respond defendant needs to make a motion. Defendant's motion will be granted as a matter of right if Plaintiff chose an improper county and Defendant designated a proper county.
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Can the court grant a CHANGE OF VENUE based on the convenience of a material witnesses?
Yes - This is a DISCRETIONARY GROUND. Either party, by motion, may request the court for a change of venue to the county that would be most convenient for witnesses. This will often (but not always) be the county where the cause of action arose.
What are the 2 methods by which a Defendant can respond to the summons and complaint (and thereby avoid default)?
Defendant can respond to summons and complaint by either of two methods:

1) Serve an answer. The answer (Defendant's pleading) that responds to allegations of the complaint.

2) Motion to dismiss under CPLR 3211.
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What is contained in the D's answer?
Defendant's answer consists of DENIALS of the allegations that D wishes to contest, and any AFFIRMATIVE DEFENSES (e.g., SoL, lack of jurisdiction, P's comparative negligence).
If D does not raise a particular affirmative defense in its answer, can it raise it later?
No - Affirmative defenses not raised in the answer are WAIVED (subject only to Defendant's possible amendment of the pleadings).
If D wishes to assert her own cause of action against P, how can she do this?
She may assert her own cause against the P IN THE ANSWER by means of a COUNTERCLAIM.
What is the reply?
The REPLY is Plaintiff's pleading in response to a counterclaim. The reply consists of denials and affirmative defenses. If there is no counterclaim, Plaintiff cannot serve a reply without court permission.
If there is no counterclaim, can Plaintiff serve a reply?
If there is no counterclaim, Plaintiff cannot serve a reply without court permission.
In a multi-D case, how can one D assert a claim against another D?
Defendant may assert any CROSS-CLAIM against any other Defendant. Cross-claims are asserted in Defendant's answer, and they can be based on any type of claim that Defendant has against other Defendants.
who must be served with an answer or a reply?
Each party must serve a copy of her pleading on all other parties who have appeared in the action.
What are INTERLOCUTORY PAPERS?
After Plaintiff's initial service of process, all other litigation papers are called INTERLOCUTORY PAPERS. These include the Defendant's ANSWER, all other pleadings, motions, discovery notices, etc. . .
How are interlocutory papers served?
Interlocutory papers are served by First-Class Mail to the PARTY'S ATTORNEY. Service of an interlocutory paper by mail is deemed made upon the mailing NOT the receipt. MAILBOX RULE.
*** If Defendant was served with process by PERSONAL DELIVERY WITHIN NY, what is D's Time Limit for Serving the Answer?
Defendant must serve the answer within 20 days of the delivery. Must be WITHIN NY State.
If Defendant was served with process by FIRST CLASS MAIL PLUS ACKNOWLEDGMENT, when must D's answer be served?
Defendant must serve an answer within 20 days from the date of the defendant's mailing of the acknowledgment. Defendant's return of acknowledgment is merely a notification of Defendant's receipt of process, it is not a pleading.
** If Defendant was served with process other than by PERSONAL DELIVERY WITHIN NY or FIRST CLASS MAIL PLUS ACKNOWLEDGMENT, when must D's answer be served?
Defendant must serve the answer within 30 days after service is complete.
Assume Defendant was served with process by personal delivery in OH on March 1, 2000. What is the last timely date for Defendants service of the answer?
March 31, 2000. 30 days after service is complete (remember for personal delivery, service is complete on the date of delivery).
***What are the 8 grounds on which Defendant may move to dismiss a cause of action, prior to service of the answer?
("DOWNFALL"):
D Documentary evidence as the basis for a defense (a legally operative document),
O Other action pending between the same parties on the same cause of action;
W Want of capacity of Plaintiff to bring an action e.g., Plaintiff is an infant suing without a proper representative;
N Non-joinder of a necessary party e.g., co-maker of a promissory note.
F Failure to state a cause of action. This motion is directed to the substantive insufficiency of the complaint on its face. (should be denied if there is any basis for relief under substantive law.)
A Affirmative defense as specified by CPLR 3211.
L Lack of personal jurisdiction. (This category includes Lack of basis, Improper service of process, Defective form of the summons.)
L Lack of subject matter jurisdiction.
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**What are the affirmative defenses agaisnt MTD?
S Statute of limitations.
P Payment.
A Arbitration award.
R Release.
E Estoppel (collateral estoppel).
R Res judicata.
I Infancy of the Defendant.
B Bankruptcy discharge.
S Statute of frauds.
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*** What is the standard used by the Court in deciding on a Motion to Dismiss for Failure to State a Cause of Action?
Plaintiff is entitled to every favorable inference which can be drawn from the allegations of complaint and the motion should be denied if there is any basis for relief under the substantive law.
If D brings a motion to dismiss, what happens to his time to serve an answer?
Making the motion extends Defendant's time to answer. If the motion is denied, Defendant must then serve the answer within 10 days.
Assume Defendant makes a pre-answer motion on only one of the CPLR 3211 affirmative grounds and loses the motion. To what extent may Defendant thereafter raise the other CPLR 3211 objections in the answer, i.e., what is the rule on potential waiver of CPLR 3211 defenses?
A motion to dismiss in any of the grounds listed in CPLR 3211 does NOT preclude raising any of the other grounds in the answer EXCEPT that of PJ (personal jurisdiction).
Assume Defendant makes a pre-answer motion to dismiss on the ground of release, and the motion is denied. When Defendant serves the answer, could he properly assert, as an affirmative defense: Statute of frauds? or Improper service of process?
Statute of frauds: Yes.
Improper service of process: No. Improper service of process is a lack of personal jurisdiction defect which is waived if not included in the pre-answer motion to dismiss.
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How can D PRESERVE PERSONAL JURISDICTION DEFENSES?
1. Before serving the answer make a 3211 motion to dismiss that includes lack of personal jurisdiction as one of the grounds.

2. Make no 3211 motion (on any grounds) and instead include lack of personal jurisdiction as an affirmative defense in the answer.
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What additional step is required if the D objects on the grounds of improper service of process?
Although pleading improper service of process as a defense in the answer is a proper way to assert jurisdictional objection, the objection will nevertheless be waived if defendant does not make a follow-up MOTION FOR SUMMARY JUDGMENT on this ground within 60 days after serving the answer. Note that the 60-day time limit DOES NOT apply to the defense that court lacks a BASIS of personal jurisdiction.
What are the 3 defenses that are never waived?
1. Non-joinder of a necessary party.
2. Failure to state a cause of action.
3. Lack of subject matter jurisdiction. These can be raised at any stage of the litigation.
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What are the D's possible Responses to Summons with Notice?
Serve either:
1. A demand for the complaint.
2. A notice of appearance.

Both have the same effect.
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What is the effect of Defendant's service of a demand for the complaint and/or a notice of appearance?
Both require Plaintiff to serve the complaint within 20 days of Defendants service.
If P serves the timely complaint, what must D then do?
Defendant has 20 days from such service to serve either:
1. An answer to the complaint.
2. Motion to Dismiss under CPLR 3211.
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What can the defendant do if the plaintiff fails to meet the 20-day time limit to serve the complaint? How can the plaintiff respond?
If π fails to meet the 20-day time limit to serve the complaint, D may move to dismiss the action based on P’s noncompliance, which is a form of NEGLECT TO PROSECUTE. This is not a 3211 motion, this is unique. To avoid dismissal the P must show: 1. A reasonable excuse for the delay; AND 2. Make an Evidentiary showing there is merit to her cause of action. (Affidavit of merit by the plaintiff or witness).
Each party is entitled to amend her pleading once as a matter of right, w
what can this amendment be used for and what are the time limits?
When making a free amendment, the party can put anything into the pleading that could have been in the original.

The one free amendment can be made during the following time periods:
a. Plaintiff can amend the complaint as a matter of right at any time up to 20 days after Defendant serves the answer
b. Defendant can amend the answer as a matter of right up to 20 days after Defendant serves the answer.
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May D raise an omitted personal jurisdiction objection by means of Amendment?
Yes. If D amends the answer within 20 days as a matter of right, the D can still include the PJ defense.
After the one free amendment to the pleadings has been made or the time has expired, what is the standard applied by courts on a motion for leave to amend?
Amendment will be allowed so long as the opponent will not suffer any INCURABLE PREJUDICE. The opponent has the burden to show a detrimental change of position as a result of the delay in amending; e.g. loss of evidence. LIBERAL STANDARD.
What is impleader?
Impleader is a procedural device used by Defendant to join another party alleged to be liable in whole or in part to Defendant for damages that Defendant may have to pay Plaintiff. The usual claim in these circumstances is for indemnity or contribution.
When can D implead a third party D?
Defendant may Implead 3rd Party Defendant at any time after Defendant serves the answer to the complaint.
What are the steps for joining a 3rd Party Defendant?
1. FILE with the court a summons and third party complaint.

2. SERVE within a 120 days of the filing a copy of the summons and third party complaint on the 3rd Party Defendant and a copy on the Plaintiff.

Note: there has to be a personal jurisdiction basis on the 3rd Party Defendant
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After 3rd Party Defendant is joined, can Plaintiff amend her complaint to assert a claim directly against 3rd Party Defendant, thereby making 3rd Party Defendant an additional Defendant in Plaintiffs action?
Yes. Plaintiff can make this amendment without the need to obtain judicial permission if she does so within 20 days after Plaintiff was served with the third-party answer. If Plaintiff waits beyond 20 days, Plaintiff must make motion to get court's permission for such amendment.
Assume Rachel, Monica and Phoebe collided on June 1, 2000. Rachel sues Monica for her injuries on April 1, 2003, and Monica impleads Phoebe for contribution on May 1, 2003. On August 1, 2003, Rachel seeks permission to amend her complaint to assert a claim for her injuries against Phoebe. Is Rachel's claim against Phoebe time-barred?
No. Plaintiff's claim against 3rd Party Defendant is deemed timely since the 3rd Party Defendant was impleaded as such within the SoL period. Rachel gets the benefit of "relation back" concept.
What is indemnity?
This allows one party to shift 100% of the responsibility to another party.
What are the two situations that give rise to indemnity?
1. By contract: E.g., construction contract, subcontractor may agree to indemnify general contractor or any losses that contractor incurs in connection with subcontractor's performance in the construction project.

2. Implied-in-law indemnity:
a. Products liability: retailer held liable for selling defective product is entitled to indemnity from manufacturer.
b. Vicarious liability situations: E.g., in New York, owner of car is vicariously liable for damages caused by negligent driving of any person to whom owner has given permission to drive the car. Owner who pays victim is entitled to indemnity from driver.
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What is contribution?
Contribution involves a sharing of the loss -- apportionment --among multiple tortfeasors who are all actual participants in the tort. Its purpose is to mitigate the harshness of the law of joint and several tort liability.
Assume that on the way to the World Series, cars driven by Jeter, A-Rod and Torre negligently smash into Piazza, who sues them all. A jury finds the Defendants each equally at fault and awards a judgment of $100,000. Could Piazza compel A-Rod to pay the entire amount of the judgment?
Yes. Because the law of joint and several tort liability (NY and MBE). Each tortfeasor is liable to the Plaintiff for the full amount of the damages regardless of the individual percentages of the fault among the tortfeasors. However, in NY this general rule is subject to CPLR Article 16.
If the liability of three Ds is based on intentional tortious conduct, can one D who has had to pay the P's full award get contribution from the others?
MS RULE: NO. Contribution is NOT available when the nature of the liability involves intentional wrong doing. NY RULE: YES. Contribution is available in all torts, including intentional torts.
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What are the 3 ways to Assert Claims for Contribution/Indemnity?
a. If Plaintiff originally joined the tortfeasors as co-Defendants, they can assert cross-claims against each other.

b. If Plaintiff omits a tortfeasor, a Defendant can implead the outsider as 3rd Party Defendant.

c. Tortfeasor may sue 3rd Party Defendant in a separate action.
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Assume Piazza sues Torre alone and gets a judgment for $100,000. During the course of the trial, it was established that Jeter's conduct also contributed to Piazza's injuries. If Torre thereafter sues Jeter in a separate action for contribution, would Jeter be bound by the findings of fact in Piazza's action?
No. The findings of fact and percentages of fault in action #1 are not binding on the other tortfeasors in action #2. Res judicata and collateral estoppel cannot be raised against tortfeasors who weren't a party to action #1.
What is the Equal Shares Formula of Contribution?
Minority view (relevant only to MS): the contribution shares are always equal in amount, regardless of apportionment of percentage liability.
What is the Comparative Degrees of Fault formula of contribution?
Multistate and NY formula: The amount of contribution to which a tortfeasor is entitled is the excess actually paid by him over and above his equitable share of the judgment.
*** Can a 3rd Party Defendant may be held liable for contribution even if he had no direct liability to Plaintiff?
Yes - The general rule is that a right to contribution exists whenever 3rd Party Defendant breached a duty in tort which contributed to or aggravated the damages for which Defendant may be held liable to Plaintiff. Thus 3rd Part D may be held liable for contribution even if 3rd Party D has no direct liability to P.
What is the REDUCTION FORMULA?
Any judgment against a non-settling tortfeasor must be reduced by EITHER the amount of the settlement OR the settling tortfeasor's equitable share of fault, whichever is larger.
Plaintiff, a building owner, installed a fire alarm system manufactured by A, and entered into a written contract with B to provide monitoring services. The contract with B limited B's liability to gross negligence. In a fire at Plaintiff's building, the alarm system failed, and B negligently reported it too late to avoid catastrophic damages. Plaintiff sues A in products liability and A impleads B for contribution based on B's negligence. can B be held liable to A in contribution even though B is not liable to Plaintiff because of the exculpatory clause in the contract?
YES - contribution liability is broader than liability to Plaintiff. B's negligence aggravated the damages for which A may be held liable to Plaintiff.
Assume Piazza was an employee of Torre, and Piazza was on the job when the auto accident with Jeter, A-Rod and Torre occurred. Piazza suffered two broken legs, a broken arm and several puncture wounds. Piazza sues only Jeter and A-Rod, who implead Torre for contribution. If Torre moves to dismiss the contribution claims, what result?
The motion will be granted. Since Piazza's injury is not "grave injury" there is no contribution from the employer MS: Third person has no right of contribution from Plaintiff's employer. NY: Third person has a right of contribution from Plaintiff's employer if Plaintiff's injury is grave injury.
Assume that immediately after the accident, which took place on June 1, 2000, Piazza was taken to a hospital where Dr. Pain, in the course of treating Piazza for his injuries, made matters worse by severing some arteries. Piazza sues Jeter alone in February 2003 and Jeter impleads Dr. Pain for contribution in August 2003. Jeter is liable to Piazza for all injuries that proximately flow from the accident, including the subsequent malpractice inflicted by Dr. Pain, a "successive tortfeasor." Since Dr. Pain's conduct aggravated the damages for which Jeter can be liable, there is a basis for contribution. But should the court grant Dr. Pain's motion to dismiss for SoL?
No. Dr. Pain was indeed impleaded more than 2.5 years after the medical malpractice, HOWEVER Jeter's claim is for contribution which has a 6 year SoL from the date of payment and not medical malpractice. Here Jeter hasn't paid yet so that the SoL hasn't even started running yet.
Assume Piazza sues Jeter and A-Rod, who cross-claim against each other for contribution. Before trial, Piazza settles with Jeter for $30,000. Does this extinguish Piazza's claim against A-Rod?
MS and NY: Plaintiff's pretrial release of a tortfeasor in partial satisfaction of the claim does NOT discharge the Plaintiff's claim against the other tortfeasors for the balance of the claim.
Assume that, following Piazza's $30,000 settlement with Jeter, the case against A-Rod goes to trial. The jury finds in Piazza's favor, assessing damages at $100,000 and apportioning fault at 10% for Jeter and 90% for A-Rod. What is the proper judgment to be entered by Piazza against A-Rod?
The law prohibits excess recovery, so any judgment against a non-settling tortfeasor will have to be reduced to take account of the settlement.

THE REDUCTION FORMULA: Any judgment against a non-settling tortfeasor must be reduced by EITHER the amount of the settlement OR the settling tortfeasor's equitable share of the fault, whichever is larger.
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In the situation where Jeter settled for $30,000 but was found to be only 10% at fault for the $100k award, could Jeter seek contribution from A-Rod?
NO. A pre-trial settlement extinguishes contribution claims BY AND AGAINST the settling party.
Assume the car being driven by Jeter was owned by Steinbrenner. Piazza sues Steinbrenner alone, asserting Steinbrenner's vicarious liability for Jeter's driving. Steinbrenner settles with Piazza for $60,000. Would a claim by Steinbrenner against Jeter for $60,000 reimbursement be barred?
NO. Settlement does NOT cut off claims for indemnity by and against the settling tortfeasor. Here Steinbrenner's claim is indemnity and not contribution.
What is the NY RULE that modifies the law of joint and several tort liability wrt personal injury claims?
CPLR Article 16 states that in a personal injury claim: A joint tortfeasor who's fault is found to be 50% or less cannot be compelled to pay more than his equitable share of the Plaintiff's non-economic damages. Non-economic damages include pain and suffering, loss of consortium and mental anguish. CPLR Article 16 does NOT apply to a claim for wrongful death; only to personal injury claim of the victim.
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EXCLUSIONS FROM ARTICLE 16: What are the three categories of tortfeasors that are subject to full joint and several liability for all damages, regardless of equitable share of responsibility?
a. Tortfeasors who acted with intent or reckless disregard for the safety of others.
b. Tortfeasors who are liable for releasing a hazardous substance into the environment.
c. Drivers and owners of motor vehicles other than police and fire vehicles.
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What is the exception to the Substantive Law Rule for Contribution?
"Worker's compensation cases. If an employee is injured on the job, she cannot sue her employer because of the workers’ compensation law.
However, the employee can sue a 3rd person who is partially at fault for the accident, e.g., the manufacturer of a product that the employee was using at work. The third person is barred from seeking contribution from plaintiff's employer UNLESS: the P sustained a ""GRAVE INJURY.""
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Why do you have to watch for numerous claims in one suit when dealing w/ J&S liability?
ALL Defendants J&S liable for NON-PERSONAL injury claims. This does NOT apply to economic damages even if from a personal injury claim (e.g. medical expenses, & loss of income) Pain & Suffering = covered by modification (b/c non-economic damages)
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What is a motion?
Application for an order of the Court. A request for preliminary or incidental relief. E.g. motion to obtain order for compliance w/ a disclosure request
What types of motions are there?
The two Types of Motions are:

1. Ex Parte and
2. Motion on Notice.
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When may a motion be ex parte?
When there is either:
1) Express authority (eg, attachment or TRO); or

2) It is necessary (eg, motions to make expedient service).
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What is the procedure for motion on notice?
See notes.
What motion addresses the face of the pleading?
1) Motion for more definite statement;

2) Motion to strike unnecessary, scandalous, or prejudicial matter; and

3) Motion that pleading allegations be separately stated and numbered.
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What regulatory motions?
Regulatory Motions
1) Motions affecting venue;

2) Motions to consolidate or sever actions; and

3) Motions for separate trials (severance of claims or issues).
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What is a Motion on Notice? What papers are involved?
A MOTION ON NOTICE gives the adversary opportunity to be heard in opposition.

Motion on Notice Requires:
1. Notice of Motion (Nature and timing)
AND
2. Supporting Affidavits.
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What is the "return date?"
The RETURN DATE is the day upon which the motion papers are presented to the Court a/k/a the "hearing date" of the motion.
When is the Motion on Notice made? When must a Motion on Notice be served on the other party?
The MoN is MADE when the other party is served or if by mail, the day mailed. The party must SERVE the MoN on the opponent at least 8 days prior to return date
When must papers be filed with the Court for motions on notice?
All motion papers from both parties must be filed with the Court no later than the return date. The Court begins the decision making process on the return date and then issues an order granting or denying the motion.
What is an ORDER TO SHOW CAUSE?
Order to Show Cause is: An alternative way to make a motion on notice. The Order to Show Cause is a preliminary order, signed by a judge, directing the adversary to "show cause" on a date specified by judge, why the motion should not be granted. The Judge rather than the party is giving notice of motion.
What are 3 possible reasons for an ORDER TO SHOW CAUSE?
1. Statute which governs the particular motion may require it;

2. Means of accelerating the return date where exigent circumstances make the 8-day advance notice too long. (judge can specify return date < 8 days)

3. Judge can grant immediate stay of the proceedings OR temporary restraining order (TRO)
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What is the procedure for an ORDER TO SHOW CAUSE?
1. Moving party drafts the order to show cause AND submits it to judge along w/supporting affidavits for underlying motion;

2. Judge will set return date in order and specify method of service (usually personal delivery);

3. Then signed by Judge and served on opponent & opponent may submit opposition papers on return date
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What is a DECIDING ORDER? What does the winning party do with the order?
After the return date of a motion on notice, the Court's decision must be embodied in a written ORDER signed by the CT. The prevailing party serves a copy on the losing party.
What are the 2 effects of service of the copy of a deciding order on a losing party?
1. Service of the deciding order is necessary for it to take effect
AND
2. Service of the copy of the order starts the running of a 30 day time limit to take an appeal from the order.
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***What is the NY rule on appeals of orders from motions on notice?
NY allows immediate appeal from the Supreme Court to the Appellate division as a matter of RT w/in 30 days of service of ANY order that results from a motion on notice (e.g. order denying motion to dismiss or to change venue). (Interlocutory Appeal). Losing party can wait and appeal from final judgment.
What is an EX PARTE MOTION?
AN EX PARTE MOTION is a motion in which no advance notice is given to the adversary (i.e. w/o opportunity to be heard in opposition). The moving party goes straight to the Court and requests order granting relief sought.
May any type of motion be ex parte?
NO!!! ONLY those with express statutory authorization can be ex parte motions.
What are 3 examples of express statutory authorization to make an ex parte motion?
(1) Expedient service of process;
(2) Extension of the time to serve process;
(3) Provisional remedies

For test assume all motions need notice.
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If the opponent is aggrieved by the ex parte order, what is her remedy? Can she appeal the ex parte order?
NO!!! There are no appeals from an ex parte order. BUT opponent may make a motion on notice to vacate the ex parte order. If the motion to vacate is denied, the party may appeal from the denial.
*** What is a motion for summary judgment?
MSJ: purpose of the MSJ is to enable a party to show BEFORE trial that even though the pleadings may be sufficient on their face, there is no GENUINE ISSUE OF MATERIAL FACT requiring a trial.
What is the moving party contending in a motion for summary judgment?
The moving party is contending that reasonable persons cannot differ, and that she is therefore entitled to judgment as a matter of law (JMOL).
EXAM TIP: What must you remember to do when discussing a motion for summary judgment?
Discuss the elements of the underlying CoA!!! = Way for them to combine procedure w/ substantive elements of the law!!!
When can a motion for summary judgment be made?
MSJ cannot be made until AFTER the defendant has served the Answer.
Who can move for motion for summary judgment after service of the answer and what can they make the motion based on?
After service of the answer ANY party can make the motion w/respect to ANY claim OR defense asserted in the pleadings
What is the time limit for a motion for summary judgment?
MSJ must be made within 120 days from filing of note of issue (placing a case on trial calendar)
UNLESS
the moving party shows "good cause," i.e. good excuse for the delay.
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How does the moving party satisfy her burden of showing that there are no material issues of fact requiring a trial?
The moving party must submit evidence in the form of affidavits, documents, or discovery materials. The evidence must be from persons with actual knowledge.
How does the opponent defeat a motion for summary judgment?
By using the same type of evidence to show that a triable issue of fact does exist. Requires evidence with actual knowledge of the facts. Statements in pleadings (allegations) do not count.
Can a Party just rely on his pleading when providing E in the summary judgment process?
No - his pleading is NOT E!
If the opponent establishes through affidavits that he is not yet able, through no fault of his own, to produce opposing evidence, what can the CT do?
EITHER deny the motion OR grant a continuance to permit additional evidence to be obtained. MERCY RULE
What does it mean to say that a motion for summary judgment "searches the record"?
Court reviews all the evidence in the record regardless of which side submitted it. If it concludes the opponent is entitled to Summary Judgment, the Court may grant it to opponent even though he did NOT make a cross-motion.
What is the "boomerang effect" w/ summary judgment?
Even if an opposing party is merely trying to show an issue of fact, if the CT finds his E so strong, it can grant summary judgment for him rather than the other party.
What happens if summary judgment is denied?
Then a triable issue of fact exists and the case resumes the normal course to trial. If the only issue in question is the amount of damages, the court can grant SJ on liability and trial on the issues of damages.
In what 2 situations is summary judgment possible prior to service of the answer?
(1) Defendant's pre-answer motion to dismiss (MTD) for failure to state a Cause of Action can be converted BY THE CT into summary judgment, thereby deciding the case on the basis of the facts rather than on the face of the pleadings
AND
(2) Motion for summary judgment in lieu of complaint
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What are the 2 prerequisites for a pre-answer motion to be CONVERTED BY THE COURT into summary judgment?
Converted by the Court:
(1) parties must have submitted factual affidavits in connection w/ the motion to dismiss AND
(2) CT must give notice to the parties of the conversion to summary judgment
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What are the 2 types of actions in which a plaintiff may, if she wishes, move for summary judgment at the same time she serves process by accompanying the summons w/ motion papers for summary judgment?
(1) action on an instrument for payment of money only (e.g. promissory note ... CANNOT be used for ordinary breach of K)
(2) Actions on an out-of-state judgment

Based on clear cut documentary evidence that shows prima facie the plaintiff's right to recover.
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What is the procedure for a summary judgment in LIEU OF COMPLAINT?
After filing process with the court, Plaintiff must serve Defendant w/the summons, a notice for summary judgment w/ supporting docs & affidavits
What is the min advance notice for the return date for a summary judgment in lieu of a complaint?
Usually 8 days advance notice for hearing on a motion, but not here. IN THIS CASE return date can be no sooner than date for response to service of process. (20 days if personal service, 30 days if other method).
What are 5 types of PROVISIONAL REMEDIES?
5 Types of Provisional Remedies
(1) Attachment;
(2) Preliminary Injunction;
(3) Temporary Receivership;
(4) Order to Seize Chattel in an action to recover the chattel (Replevin)
(5) Notice of Pendency (lis pendens)
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Which is the only provisional remedy which does NOT require a Court order?
NOTICE OF PENDENCY does NOT require a court order.
What does an attachment do and what happens when it is granted?
An attachment provides security for the enforcement of a money judgment.

After the plaintiff obtains the order from the court, he gives it to a NY sheriff who levies upon the property pending the outcome of the case. The Sheriff files an order of attachment with the county clerk where the property is located.
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What happens if the attachment is for real property?
Sheriff simply files order of attachment w/ county clerk in the county where defendant's real property is located
What happens if the attachment is for personal property & what are examples of personal property?
Sheriff delivers order of attachment to person in possession of the property or debt. Tangible (car, boat, etc) OR intangible (such as a bank account or a debt) property qualifies.
What happens when there is delivery of an attachment for personal property? What is the effect?
Delivery of the order of attachment by the by the Sheriff automatically imposes the lien on the property and serves as an injunction against transfer of the property pending the outcome of the action.
***What type of action is attachment used in?
Plaintiff must be seeking money damages AND must show one of the following:
1. Defendant is an unlicensed foreign corporation or a non-domiciliary of NY OR
2. Defendant is about to conceal or remove assets from the state w/intent to defraud creditors or frustrate the enforcement of a judgment.
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What is the procedure for attachment and what are the 3 requirements?
Plaintiff MUST make a motion for an order of attachment and show 3 Requirements in making motion:
(1) Affidavits in support of the motion must show one or the other of 2 grounds identified (D is an unlicensed foreign Corp or a non-domiciliary of NY OR D is about to conceal or remove assets from the state w/ intent to defraud) AND that it is an action for money damages
(2) Affidavits must show a probability of success on the merits of the P's cause of action
(3) P  must post an undertaking (a bond that indemnifies the D for any damages or expenses caused by the attachment)
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How can a motion for attachment be made?
Motion for attachment can be made on notice OR ex parte. They are often made ex parte so defendant cannot move property.
What extra procedures are required for ex parte attachment motions and why?
Ex parte motion of attachment Triggers Due Process concerns so there are additional requirements.
(1) Must have prompt hearing after seizure of D's property (gives D an opportunity to contest attachment)
(2) After Sheriff levies on property, Plaintiff must make a motion on notice to confirm ex parte order of attachment
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When will an ex parte attachment motion become automatically void?
An ex parte motion of attachment will become automatically void if the plaintiff fails to make a follow-up motion to confirm within:
(1) 10 Days if defendant is an unlicensed corp. or non-domiciliary of NY
(2) 5 Days is defendant is about to conceal or remove assets from the state with intent to defraud creditors or frustrate judgment.
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What is a preliminary injunction?
PRELIMINARY INJUNCTION is used to maintain the status quo while an action is pending.
What is required for a preliminary injunction? What must P seek?
HAS TO BE an equity action where P seeks EITHER:
(1) Permanent injunction OR
(2) if Defendant threatens to harm Plaintiff's interest in the subject matter of the action.
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***Can you get a preliminary injunction if the claim is for money damages?
***NO. If it's an action that seeks SOLELY money damages you CANNOT get preliminary injunction. Only remedy, if any, is attachment. E.g., P sues D for nonpayment of a debt. Prior to judgment, P cannot enjoin D from transferring assets or spending money. P’s remedy, if any, would be attachment (Lien).
What is the procedure to get a preliminary injunction? What are the 3 requirements for the motion?
Motion for PRELIMINARY ACTION must be ON NOTICE. The Motion papers can be served with, or after, the summons and anytime up to the final judgment.
The 3 Requirements of the motion are:
(1) P's affidavit must show grounds for equitable relief including a threat of irreparable injury;
(2) P's affidavit must show PROBABILITY OF SUCCESS ON THE MERITS OF THE UNDERLYING ACTION;
(3) P must post an undertaking (bond) to indemnify D for damages if later determined that injunction should not have been granted.
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How does the TEMPORARY RESTRAINING ORDER relate to the preliminary injunction?
Provides immediate injunctive relief in a case until a preliminary injunction can be decided. In case of immediate injury, P may request an ex parte TRO.
How does a person get a TRO?
1. Make motion of PI by order to show cause;
2. Go directly to CT and ask judge to sign an order to show cause for motion for PI;
3. Ask Judge to INCLUDE TRO (when signing the motion to show cause);
4. Have an order to show cause w/ TRO in it, and then serve that to ∆ along w/ supporting affidavits for PI;
5. ∆ then will be immediately restrained by TRO pending resolution of motion for PI
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What is a TEMPORARY RECEIVERSHIP and how often/when is it available to a party?
Person appointed by the CT to manage property within D's possession (Drastic Remedy). P must be seeking an equity claim in which specific property is the subject matter of the action AND there is a danger that D will injure or destroy the value of the property while action is pending. Requires P to make a MOTION ON NOTICE.
When is a SEIZURE OF A CHATTEL allowed?
SEIZURE OF CHATTEL is only allowed in 1 type of action. An action seeking to recover possession of a chattel. (chattel is tangible personal property. E.g., pet monkey, computer, car, etc). Replevin
What is the procedure for a seizure of chattel? What must a party do/show?
P must make a motion on notice or ex parte. Motion must show:
(1) P's affidavit must show PROBABILITY OF SUCCESS ON THE MERITS OF THE UNDERLYING ACTION;
(2) P must post an undertaking (bond) to indemnify D for damages if later determined that injunction should not have been granted.
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What are the 2 special requirements for an ex parte motion for a seizure of chattel?
It implicates DP, so special requirements:
(1) P must show threat of immediate loss of the chattel AND
(2) If granted by CT, P must make a follow-up motion on notice w/in 5 days of the seizure to confirm the ex parte order (the D gets a hearing to challenge what has happened)
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What is a notice of pendency? What does it do?
In an action in which a judgment will have direct effect on real property, a filing of a notice of pendency gives record notice to any potential buyers/mortgagees who comes along that any interest they acquire in the property will be subordinate to that of Plaintiff. (Lien on Property.)
What type of action is sufficient for a notice of pendency to be filed?
An equity action in which judgment will have a direct effect on title, possession or use of real property (e.g. specific performance, ejectment, etc)
When is a notice of pendency statutorily required?
In a mortgage foreclosure, the filing of notice of pendency is statutorily required
What is the procedure for filing a notice of pendency? What is and is not required?
Notice of Pendency is the only provisional remedy that may be filed without a court order. ALL that has to be done is for the P to file w/county clerk in county where property located (gives record notice).
How long does a notice of pendency stay in effect? What happens when it expires?
Notice of Pendency stays in effect for 3 years: P May need to make a motion for a 3 yr extension BUT must make it before original 3 years expires otherwise it will lose its effect and party who has allowed the lapse MAY NOT seek another notice of pendency. P Don't get another bite at the apple EXCEPT in mortgage foreclosure cases.
When discovery is completed and the case is ready for trial, how is the matter placed on the trial Court's calendar?
When discovery is complete, either party may file NOTE OF ISSUE (tells CT that it is ready to be put on calendar) and then serve all the parties with the note of issue.
What right must a party ask for in the note of issue if they don't want to waive it?
The Party who files it should make a demand for jury trial in note of issue. If filing party makes no such demand then that party waives the right to a jury trial.
What must other parties do if they want a jury trial and they do not file a note of issue?
If a Party wants to demand a JT then they have to file a separate demand for jury.
When does a party in civil action have a RIGHT TO TRIAL BY JURY? Who can demand it?
Either party can demand a jury trial.
They have a right to a jury trial in:
1. Action seeking solely money damages.
2. Replevin action (trying to get monkey or car or something back)
3. Claim to real property
4. Annulment of a marriage
5. Divorce action either party can get a jury on issue of the grounds for the divorce (e.g. acts of adultery) (BUT NOT entitled to JT on children or money issues)
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How many jurors are on a civil jury in NY? Does it need to be unanimous?
A Civil Jury in NY contains 6 jurors and does NOT need to be unanimous (5/6 is sufficient for a verdict).
What is the rule for RES JUDICATA?
RES JUDICATA
NY Rule: When a claim against a particular D has been brought to final judgment on the merits, all other claims by the P against same D are barred IF they arise out of the same transaction; EVEN IF those claims are based on a different theory OR seek a different remedy.
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What is a policy-based EXCEPTION TO CLAIM PRECLUSION?
A policy based exception to Res Judicata is in matrimonial actions based upon domestic abuse. Plaintiff can sue spouse for tort damages even if grounds are abuse.
***What is collateral estoppel? What is the rule and what is the 3 part showing involved?
Collateral Estoppel is issue preclusion.
It avoids and prevents the need for re-litigation of specific fact issues that were decided in a prior proceeding upon a 3-part showing:
(1) Issue in the former case and current case are identical AND
(2) Issue was actually litigated and decided in the 1st case AND
(3) Party against whom issue preclusion is asserted had a full & fair opportunity to litigate the issue in the former proceeding.

***Issue preclusion CANNOT be used against someone who was NOT a party in the prior action.
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What are special proceedings in NY? Examples?
A special proceeding is a speedy, streamlined procedure, akin to a motion, the purpose of which is to obtain judgment as a final resolution of a dispute. E.g., probate of a will; election disputes; summary proceeding by a landlord for eviction; dissolution of a corporation; habeas corpus; enforcement of an arbitration agreement; CPLR Article 78 proceeding.
What are the procedures for a initiating a special proceeding ?
1. Person w/ grievance (petitioner) files a petition (complaint) that commences the special proceeding.

2. The petition and a notice of petition (analogous to a summons) are served on the respondent. Must be served in the same manner as on serves process (leave & mail, affix & mail, etc). The notice of petition advises the respondent to serve an answer and to appear on the specified return date for the hearing.
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What is the return date for a service of process? Can it be sped up?
Return date for service of process in a special proceeding can be no sooner than 8 days from the service of process. If exigent circumstances and need accelerated proceeding, you can initiate a special proceeding by an order to show cause.
How are the sides proved in a special proceeding?
Affidavits are usually served in support of, and in opposition to, the petition. All pleadings and affidavits are submitted to the court on the return date for decision by the court.
What is arbitration and what are its 3 major characteristics?
Arbitration is a private procedure, based on CONTRACT, for the binding resolution of disputes (common in commercial Ks).

The 3 Major Characteristics of Arbitration are:
(1) Not bound by substantive law or rules of evidence;
(2) Arbiters may do justice as they see fit;
(3) Scope of judicial review is extremely narrow.

NY Courts favor arbitration
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What are the 5 threshold issues considered by the court in an effort to AVOID arbitration?
(1) Did the parties actually agree to arbitrate (Q of K law)
(a) Must be in Writing (does not have to be signed though (b) Must be clear, explicit & unequivocal;
(2) Is the dispute w/.in the scope of the arbitration clause?
(3) If BROAD clause then there are very few issues that CT can decide & arbitrator will decide virtually everything
*** (3) Whether arbitration clause is valid (Invalid and unenforceable viewed in isolation as induced by Fraud, duress, coercion, or if contrary to public policy);
(4) Whether there is some express condition precedent to arbitration & whether it has been complied with? (E.g. before submitted to arbitration, a construction dispute must 1st be submitted to the architect)
(5) SOL
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What is the doctrine of severability in the area of arbitration?
The Arbitration clause is distinct from K in which it is contained, is severable from the question of the validity of the overall K. Tainted K overall (fraud problem) will not undue validity of arbitration clause itself.
What happens when one party serves a notice of intention to arbitrate? What time limit is involved once it is served?
Party (who wants to arbitrate) takes initiative before other party brings a lawsuit in Court by serving a notice of intention to arbitrate on the opponent. Notice of intention to arbitrate shifts burden to the opponent of arbitration to commence a special proceeding for a stay of arbitration. Strict time limit = opponent only has 20 days from receipt of notice to arbitrate (otherwise opposition waived)
What are the 3 grounds on which a party can get judicial review of an arbitration decision?
(1) Corruption, fraud or misconduct in arbitration proceeding;
(2) Bias of an arbitrator who was chosen to be neutral;
(3) Show that an arbitrator has exceeded his power (9xs out of 10 that is a loser unless parties themselves have agreed to restrict the arbitrator's powers b/c they have a lot of power)
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What is an Article 78 Proceeding? Who is typically the respondent?
CPLR Art. 78 authorizes a special proceeding for judicial review of action (or inaction) by governmental or quasi-governmental officers or bodies of any kind.
What are the 4 grounds that the case must fall into the for the petitioner to have a RT of relief under CPLR Art. 78?
1. Mandamus to Compel;
2. Prohibition;
3. Certiorari;
4. Mandamus to Review
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What is a mandamus to compel? What is an area of the law where it comes up?
A Mandamus to Compel performance of an act that is required by law to be performed and in which no discretion is involved. E.g., city clerk refuses to issue a marriage license. Note: Officers of a private corporation are quasi governmental and can be compelled by a Art. 78 motion to take action such as holding an annual meeting.
What is the "prohibition" ground for an art 78 proceeding?
Prohibition is a proceeding to stop a judicial officer from exercising power that exceeds the officer's lawful jurisdiction. Reserved for a grossly improper exercise of jurisdiction (NOT routine judicial error, for which the remedy is to appeal).
What is the "certiorari" ground for Art 78 proceedings? What is the standard involved?
Certiroari is a proceeding to challenge the results of a trial type hearing of an administrative agency. A trial type hearing is one which testimony was taken under oath with a right to cross-examination.
What is the "mandamus to review ground" for Art 78 proceedings? What is the standard?
A Mandamus to review under Art 78 is a proceeding to review any type of admin action not covered in other 3 categories. Most often this is the form used to challenge an agency determination that was made without a trial-type hearing. (e.g. denied a gun permit, denied application for a liquor license). The Standard of Review is that the court must uphold the agency determination unless it was arbitrary and capricious.
What NY CT can an Art 78 proceeding be brought in?
ONLY in the Supreme Court
What is the Statute of limitations for an Art 78 proceeding?
The SoL for an Art 78 proceeding is 4 months and runs from receipt of notice of the act being challenged.
Can a person recover money damages in an art 78 proceeding?
Yes, damages are recoverable in an Art 78 proceeding IF THEY ARE INCIDENTAL to the main relief being sought (here = reinstatement). Normally seeking declaratory or injunctive relief (e.g. trying to annul an agency's determination or reinstate a discharged civil service employee)