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351 Cards in this Set
- Front
- Back
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The C in ASCAM
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Consent by asserting an unrelated counterclaim in D’s answer. Asserting a relating counterclaim, that arose out of the same transaction on which the P is suing, does not constitute a consent to jur. unless the D moves for summary judgment on the related counterclaim.
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What is the second A in ASCAM?
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If D asserts improper service in the answer but then the D does not move for summary judgment on that issue within 60 days from serving the answer, then the D is deemed to have consented. (This 60 day rule does not apply when the answer asserts lack of minimum contacts with NY.)
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What is the M in ASCAM?
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If D makes a pre-answer motion to dismiss, but fails to raise the MOP objection, then there is consent.
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What is in rem jurisdiction used to determine?
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a. Title to property or the right to possess property located in NY
b. Determine or terminate marital status that is located in NY |
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What is an ex parte divorce?
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Where the court lacks personal jur. over the D spouse, but where the court has in rem jur. over the parties marital status, which is located in NY, whenever one of the spouses is a NY domicile.
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When does an ex parte divorce arise?
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i. A NY domicile leaves NY and commences a marital action in State X
ii. Where the parties formally resided in State X and one spouse moves to NY and becomes a NY domicile and commences a matrimonial action in NY. But the other spouse lacks any minimum contacts with NY. |
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What happens to marital property that when there is no PJ over the D?
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A court cannot affect vested economic marital rights such as the right to child support, maintenance, equitable distribution, or realty held as TEs in the D spouse’s state. These rights CANNOT be affected without PJ.
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What is a summons and what does it contain?
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It is a one page sheet issued and signed by the P's attorney, that names parties, court, index number, date it was first filed with clerk of the court, the basis for the venue, the name and address of the P’s attorney, and notice that failure to appear within 20-30 days will result in a default judgment.
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What happens with a misspelling of D's name in summons?
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A mistake in the spelling of the D’s name is not a jurisdictional defect, provided the name that was used fairly advised the D that it was the intended party in the action.
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Can you file and serve a summons w/o a complaint?
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Yes but it must briefly state the nature of the cause of action and the relief being sought. Failure to include this notice is a jurisdictional defect and if the D properly raises this issue (in a motion to dismiss or in the D’s answer), then the court will dismiss the P’s action.
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When/where can a summons be served?
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The summons can be served day or night inside or outside of NY, but regardless of where it is served, NEVER ON SUNDAY, unless it is accompanied by an injunction needed to avoid irreparable injury.
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What about service on sat?
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Service cannot be done on Sat. if it is made with malice on a D, who is observing Sat. as a day of worship.
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After an action has commenced when can a party be added?
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1. By a motion to the court
2. By stipulation to the parties-on the record, in open court, or in writing 3. “Once as of right” without having to go to court within 20 days after the plaintiff is served with D’s answer. |
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Who can serve a summons in NY?
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A non party adult
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Who can serve a summons outside NY?
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A-attorney admitted in that jur.
L-look to the laws of that jur. RAN- A nonparty adult NY resident. |
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What must be done before you serve the summons?
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The P must first purchase an index number and file process with a county clerk who by law is the clerk of the Supreme court and the county court.
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How long does the P have to serve?
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120 days from filing
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What mistakes in filing would prejudice the D and will allow D to move to dismiss?
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1. Service of a summons without a complaint where the summons failed to recite the nature of the claim or the relief being sought.
2. Serving process on the D before the process was filed with the county clerk, 3. Process that was filed with the administrative clerk of the supreme court, instead of properly filing it with the county clerk. |
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After the summons has been filed with the county clerk, when is service of process proper.
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Only if made pursuant to CIDS MAIL.
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At what moment is service of process complete?
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The moment process is handed to the D, and the affidavit of service does not need to be filed with the court.
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What is CIDS MAIL?
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Court-Invented Service
In hand personal delivery to D Due Diligence SAD process Mailing Process |
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In a matrimonial action how must service be conducted?
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Requires in hand delivery to the defendant unless the court orders another method of service, or the D consents to service by mail. The same rule applies to service on a corporation. No substituted service without a court order.
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What is SAD service?
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Service on a D can also be accomplished by delivering it to a SAD person (suitable age and discretion-youngest age that has been upheld is 12) at the D’s current dwelling place or place of employment.
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When can SAD service be used?
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SAD delivery can be used without first attempting to personally serve the D. Where a doorman prevents entry to a D, then that doorman is a SAD person. Must be served on appropriate premises.
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When can you use Nail and Mail service?
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As a condition precedent to utilizing this method of service, the P’s process server must first exercise DUE DILIGENCE in attempting in hand personal delivery and/or SAD delivery. Thus if a court later determines that SAD service or personal delivery was available, then it will set aside nail and mail service as defective.
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What satisfies due diligence for SAD?
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“Due diligence” is strictly observed by the courts because of the reduced likelihood that process served in this method will be received by the D. (Two attempts can be due diligence but not if done within business hours).
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What is substituted service?
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SAD and nail and mail service.
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What is done with a copy of the service?
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The mailing must be done within 20 days from the SAD delivery or the nailing, and a copy of service must be mailed to the D’s last known residence or actual place of business. If it is sent to the D’s place of business, it must be marked personal and confidential, and it cannot indicate that it is from an attorney.
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What must the P do after using a substituted service?
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After utilizing substituted service, the process server affidavit of service should be filed with the court within twenty days and service is complete 10 days thereafter which starts the D 30 days to appear. Thus a defendant served by substituted service has 40 days from when the P files proof of service.
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What does the 20 day filing requirement apply to?
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The 20 day filing for the affidavit of service applies only to the time the D has to appear and the failure to file within 20 days is not a jurisdictional defect but the D’s time to appear is indefinitely postponed until the affidavit of service is filed
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What is CIDS MAIL?
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N/A
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In a matrimonial action how must service be conducted?
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Requires in hand delivery to the defendant unless the court orders another method of service, or the D consents to service by mail. The same rule applies to service on a corporation. No substituted service without a court order.
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What is SAD service?
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Service on a D can also be accomplished by delivering it to a SAD person (suitable age and discretion-youngest age that has been upheld is 12) at the D’s current dwelling place or place of employment.
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When can SAD service be used?
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SAD delivery can be used without first attempting to personally serve the D. Where a doorman prevents entry to a D, then that doorman is a SAD person. Must be served on appropriate premises.
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When can you use Nail and Mail service?
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As a condition precedent to utilizing this method of service, the P’s process server must first exercise DUE DILIGENCE in attempting in hand personal delivery and/or SAD delivery. Thus if a court later determines that SAD service or personal delivery was available, then it will set aside nail and mail service as defective.
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What satisfies due diligence for SAD?
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“Due diligence” is strictly observed by the courts because of the reduced likelihood that process served in this method will be received by the D. (Two attempts can be due diligence but not if done within business hours).
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What is substituted service?
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SAD and nail and mail service.
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What is done with a copy of the service?
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The mailing must be done within 20 days from the SAD delivery or the nailing, and a copy of service must be mailed to the D’s last known residence or actual place of business. If it is sent to the D’s place of business, it must be marked personal and confidential, and it cannot indicate that it is from an attorney.
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What must the P do after using a substituted service?
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After utilizing substituted service, the process server affidavit of service should be filed with the court within twenty days and service is complete 10 days thereafter which starts the D 30 days to appear. Thus a defendant served by substituted service has 40 days from when the P files proof of service.
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What does the 20 day filing requirement apply to?
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The 20 day filing for the affidavit of service applies only to the time the D has to appear and the failure to file within 20 days is not a jurisdictional defect but the D’s time to appear is indefinitely postponed until the affidavit of service is filed
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What happens if there is a defect in CIDS MAIL service?
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The D must promptly bring this to the court’s attention, otherwise the defect is waived.
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How must the D contest what he believes to be a defect in service?
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The D can make a 3211 pre-answer motion to dismiss and that motion has to obtain the MOP objection or if the D does not make this motion, then the MOP objection must be included in the D’s answer.
If the answer asserts defective service, then the D must make a summary judgment motion on this issue within 60 days, otherwise the defect is waived. |
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What should a P do when D claims defective service
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The P should always cross move, and ask the court to extend the P’s 120 day time limit to serve process by asserting “good cause” or in the interest of justice.
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How do you serve by mail?
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A D can be served by first class mail addressed to the D anywhere. It must contain two acknowledgment forms and a self-addressed envelope. The D has thirty days to consent to such service by signing and returned acknowledgment form
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When is service by mail complete?
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Service is “complete” when the D mails back the acknowledgment to the Plaintiff and the D has 20 days from that date to appear to avoid a default judgment. If a D does not consent to service by mail, then the P must use some other method of CID service, but the expense incurred for that service, can be imposed on the D.
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What is the court-invented service rule?
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If the other CIDS MAIL methods of servicing prove “impractical” then the P can make an exparte motion asking the court to prescribe some other method of service. Frequently, service by publication under CPLR 316 is prescribed by the court.
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What has the sup ct said about court invented service?
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US supreme court has held that this court invented service does not have to guarantee that D will receive actual notice. It is constitutionally sufficient if the prescribed method is “reasonably calculated” under the circumstances to give the D notice of the lawsuit.
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When is service by publication not applicable?
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If the D’s address is known or is reasonably ascertainable.
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If using registered mail and the envelope is returned unclaimed what must be done next?
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the P must take further reasonable steps to attempt to give actual notice of the lawsuit. The court suggested regular mail, or attaching a copy of process to the front door of the property. The P must behave like a person who actually desired to inform the D of the impeding tax sale.
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How do you properly serve a D who has not reached their 18th b-day?
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1) Infant’s parent, guardian of infant property or person having legal custody.
2) If the Infant is married then serve the infants adult spouse with whom she resides. |
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What if the D is between the ages of 14 and 17 as well?
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Serve the infant as well.
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What must be done to approve a settlement for an infants cause of action?
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Any settlement of an infants cause of action must be approved by the court, in a CPLR 1208 compromise proceeding, the court is a necessary party when dealing with an infant’s claim.
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Who is named in service on a partnership?
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In a lawsuit against a partnership the P can name the partnership as well as all of the partners because Partners are jointly and severable liable for torts committed in furtherance of the partnership as well as for breach of partnership contracts.
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How do you serve process on a partner?
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By using any of the CIDS MAIL.
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Who can accept service of process on a corp?
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AMAC DOG (must be in-person)
A: Assistant Cashier M: Managing Agent (as distinguished from a mere employee) A: Any other Agent authorized to receive service (Express, implied or by estoppel) C: Corporate Cashier D: Director O: Officer G: General Agent |
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How do you serve on a LLC?
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If management of the LLC is vested in its members then personally serve any LLC member found in the state. If management is vested in one or more managers then personally serve any manager as if that person was a D.
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What if personal service on a LLC is impracticable?
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If personal service is impracticable then apply to the court to prescribe some other method of service. Service on a LLC can also be accomplished by serving NY Sec of State.
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What does a timely appearance do?
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It avoids a default judgment and it entitles the appearing D to notice of all subsequent motions in that action
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What are the ways to formally appear?
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M: Make a pre answer motion that automatically extends the D’s time to answer. Either a CPLR 3211 motion to dismiss or a 3024 corrective motion.
A: Serve an answer to the P’s complaint N: Serve a notice of appearance in response to a summons served without a complaint. It is a one page sheet that usually contains a demand that the P serve a complaint within 20 days. Otherwise the D can move to dismiss for neglect to prosecute. the mere service of a notice of appearance or a demand for a complaint does not result in the D waiving a jurisdictional objection, this occurs only by SCAAM. (KNOW FOR BAR EXAM) |
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What happens if D fails to timely appear?
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A default judgment can be entered in favor of P.
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What amount can the default judgment be in?
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A DJ shall not exceed the amount demanded in the complaint or the summons and it cannot differ from the type of relief that was demanded in the process served by the D.
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What happens when the P seeks a fixed sum of money?
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the P’s application for default judgment can be made directly to the clerk of the ct.
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What if the default judgment requires an assessment of damages?
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The application for the DJ must be made by motion to the ct.
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What can a defaulting D do in terms of damages?
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A D who defaults concedes liability but only that defaulting D can appear at the damages inquest and can offer evidence to mitigate the P’s claim for damages.
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How can a ct vacate a default judgment?
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The ct can vacate a DJ by order to show cause that is brought by the D within one year from when the D was served with a copy of the default judgment, it requires the D to submit a REAM of papers.
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What is reasonable excuse for default judgment?
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Reasonable excuse why the defendant defaulted. Law office failure by the D’s attorney maybe (not must) a reasonable excuse, but it must be supported by a detailed and credible explanation.
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What is an Affidavit of Merit?
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AM: The D must also offer an “Affidavit of Merit” asserting a viable claim to the D’s claim and also demonstrating that the P will not suffer prejudice if the default judgment is vacated.
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What happens if you fail to serve an Affidavit of Merit?
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It is error as a matter of law to vacate a default judgment if the D neglects to serve an affidavit of merit containing a meritorious defense to the P’s claim.
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If a D’s Lawyer negligently allows a P to take a default judgment can the D sue her lawyer for legal malpractice?
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Yes, but only if the client is able to show that but for the D’s malpractice the client as a P would have prevailed in the underlying lawsuit and would have been able to collect the amount of damages sought by the attorney or as a D would not have sustained any damages.
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What can a lawyer do with their malpractice?
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A Lawyer cannot hide her malpractice and is under an ethical duty to promptly report this fact to the client. The lawyer must advise the client to seek the advice of independent counsel before attempting to settle the malpractice claim with the client.
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When do you not have to demonstrate REAM?
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where the grounds for setting aside a default judgment is lack of jurisdiction (MOP) then the one year SOL does not apply and the D does not have to demonstrate REAM, because a judgment violating due process (MOP) is void.
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What is the P's time limit regarding a default judgment?
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if the P does not enter a default judgment within one year from the D’s default then absent REAM, the court shall dismiss the P’s complaint as abandoned.
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What are the grounds to vacate a judgment (not just DJ)?
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1) Party’s fraud, misrepresentation or misconduct
o Forged or altered documents were introduced at court o Perjury o False representation that the action will be discontinued. 2) Is newly discovered evidence by showing: o Through diligent efforts the evidence could not have been discovered at the time of the trial o A probability of a different verdict if the new evidence had been offered at the first trial o This same rule also applies to criminal judgments. |
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What is a 327 motion?
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A 327 motion seeks to dismiss the P’s action because another state or country will be a more proper forum to hear that case based on:
• The availability of an alternative forum, • The residence of the parties, • The location of the event, • The hardship on the D and • The burden on the NY courts. |
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What will not prevent the ct from granting a 327 motion?
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The fact that one of the parties is a NY domicile will not prevent the NY ct from granting a 327 motion
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What if neither P nor D is a NY resident?
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If neither the P nor the D reside in NY then generally a D’s 327 motion will receive a favorable ruling.
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What can be a basis for denying the 327 motion?
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If D delays in making the motion.
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Can a ct revoke FNC on its own?
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No, it must be done by motion of the parties.
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What if the K has a forum selection clause?
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The ct generally will not entertain a FNC motion and will bind the contracting parties to their agreement.
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What should a well drawn forum selection clause contain?
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1) A consent to jurisdiction in the selected forum (SCAAM)
2) An express designation of the venue which provides for the NY County where the action must be litigated. 3) A Choice of Law Clause providing that in the event of litigation NY law will govern. (Will not need if dealing with both New Yorkers) |
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CPLR 201
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Prevents a ct from extending the statute of limitations.
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What can a ct do regarding SOL?
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The SC has held that state legislature can revive a time barred civil claim by extending an existing SOL.
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Ex post facto?
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Prohibits legislature from extending a criminal SOL, once that time period has expired against a criminal D.
Once the criminal SOL has expired it becomes an irrevocable amnesty for criminal offenders. |
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How do you measure SOL?
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The CPLR says to look at when the cause of action first accrued and when the claim was interposed.
A Claim accrues on the date when the P first could have commenced a lawsuit. |
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When is a claim interposed?
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A claim is interposed on the date an index number is purchased by the P and process is filed with the clerk of the ct.
Measure between these two time periods to determine whether the P’s action was timely. |
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What if SOL falls on a sat, sun or public holliday?
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B/c the clerk’s office is closed the P has until the next business day to timely interpose her claim.
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What is laches?
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Laches is a D’s equitable defense similar in concept to the SOL, but it is available only in equitable claims when a P has unduly delayed in commencing a lawsuit but has nevertheless commenced it within the SOL. But under the circumstances if the ct were to grant the P equitable relief it would be unfair to the D.
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What is the SOL of most equitable claims?
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Most equitable claims are governed by a 6 yr SOL. In order to invoke this doctrine the D must show.
1) Unreasonably delay by the P in seeking equitable relief from the ct 2) A substantial change in circumstances resulting in substantial prejudice to the D if the ct grants equitable relief. |
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When is laches not available?
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Laches is not available as a defense when the P is suing for money damages at law.
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What are the 3 steps when having a SOL problem?
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• What is the applicable SL
• Know when the cause of action accrued and when the claim was interposed (as soon as P walks into county clerk and file process with the court) • Know the tolling the extending provisions |
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What is the SOL of a money judgment?
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A money judgment has a SOL of 20 yrs; the CPLR 211(b) creates a conclusive presumption of payment after 20 yrs, unless:
• There has been an intervening acknowledgement or • Part payment of the judgment by the judgment debtor |
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Adverse possession SOL?
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In NY adverse possession of land is governed by a 10 year SOL except for real property owned by the state of NY which requires 20 yrs SOL.
• Lands held by a municipality are governed by a 10 yr SOL. |
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What are the ways a state can hold land?
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There is a distinction between lands held by a sovereign (the state or municipality) in trust for the public and lands held by a sovereign (state) as a proprietor for purposes of resale or other dispositions. (E.g. Real property tax disclosure in which government takes title)
• Land held as a proprietor can be lost to an adverse possessor but • Lands held to the public streets, public streams, parks or forest preserves cannot be lost to an adverse possessor. |
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When is the 10 yr SOL measured from?
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The ten years is measured from when the judgment was first docketed and entered in the clerk’s records.
• The ten yrs is not measured form when the judgment was first filed and the lien created. |
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How is a lien on property created?
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• A lien on real property created by a judgment creditor filing a money judgment in the county where the judgment creditor owns real property.
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Can a lien be extended?
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This lien can be extended for a second 10 yr period but the cts order must be obtained bet the 9th and 10th yr, otherwise the lien priority is extinguished and a subsequent judgment lien then takes priority.
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What happens if the judgment lien is foreclosed?
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If the judgment lien is foreclosed and the property sold then under the NY homestead exemption, the first 50 k of equity in the judgment debtor principal residence is exempt from the judgment lien and is paid directly to the judgment debtor. This 50 k does not apply to a mortgage foreclosure.
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How does a filed money judgment effect the judgment or the judgment debtor's personal property?
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A filed money judgment has no effect on the judgment or the judgment debtors’ personal property. In order to affect personal property the Judgment Creditor must serve a one page judgment execution on the sheriff in the county where the property is located.
• The sheriff then has 60 days to seize property. At the end of the 60 days the sheriff will return the judgment execution to the judgment creditor. |
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How much of the judgment debtors wage can be garnished?
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10 percent of the judgment debtor wages or trust income can be garnished by the sheriff, but there is no prejudgment garnishment in NY.
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How long is the SOL for a crime victim?
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A crime victim has 10 years for certain specified crimes running from the date of the D’s conviction or 7 yrs from the date of the crime for other crimes.
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What 4 documents must be submitted to obtain DJ?
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1. Affidavit of merit (or verified complaint containing non hearsay information, presenting a prima facie case for the P’s claim),
2. An affidavit of military service, showing a. Whether or not the D is in the military or is dependent on someone in the military, together with facts supporting such a conclusion or b. The P is unable to determine whether or not the D is in the military. 3. An affidavit of service by process server which is prima facie evidence of proper service. To overcome this evidence, a D cannot simply receipt of process, but must set forth substantial facts that process was not received. (Process servers must provide a description of the person or premises served). 4. An affidavit of the D’s default, prepared by P’s attorney. |
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When does the mailing requirement not apply?
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1. Small claims matters
2. To landlord dispose cases (eviction proceedings) 3. Or actions affecting title to realty, such as commercial mortgage foreclosures, but the mailing requirement is now required on residential foreclosures. |
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What must be done prior to commencing a residential foreclosure?
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A 90 day notice must be mailed to the mortgagor.
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What is required in a summons in a residential foreclosure?
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A summons served in a residential foreclosure requires a colored sheet to be attached to the summons, advising the mortgagor that making mortgage payments will not stop the foreclosure and advising the D to speak to an attorney or go to the court of the NY state banking department for assistance.
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What crimes have a 6 year SOL?
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S-specific performance of a contract
C-breach of contract actions seeking money damages, except UCC sale of goods (SOL is 4 years). Note-25% of the MC come from Article 2. A-actions recognized by courts at common law, but the legislature has not proscribed an SOL. R-reformation of a K, running from when the K was executed. F-fraud, deceit, negligent misrepresentation. Here the SOL is either 6 years from the fraud or 2 years from when the fraud was discovered, whichever is longer. |
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Where does the extra 2 years for fraud not apply?
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Does not apply to constructive fraud-it is governed by a flat six year SOL).
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What is constructive fraud?
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A claim for constructive fraud arises when a debtor transfers assets for less than full consideration and is rendered insolvent or where he believes he will have debts in the future (a lawsuit is on the horizon) and because of that transfer he will be unable to pay that debt.
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Can a victim move for sj on liability issue?
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If the D is convicted of the crime in the criminal ct and his victim subsequently sues in the civil ct then the victim can move for Summary Judgment on the liability issue based on collateral estoppel. Based on IF:
• I: Issues in the civil and criminal cases are identical • F: The party against whom collateral estoppel is being asserted (civil D) had a full and fair opportunity to litigate that issues |
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What conveyances are deemed fraudulent?
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Every conveyance made without full and fair consideration when that person is a named D in a lawsuit or a judgment has been attained against him is deemed fraudulent without regard to his intent.
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What if there was intent to defraud the creditors?
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If it is proven that there was actual intent to defraud the creditor then the creditor can recover attorney’s fees.
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What happens when a debtor denies an intent to defraud?
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When a debtor denies an intent to defraud creditors there are certain badges of fraud commonly associated with a fraudulent transfer which if established raises an inference of an intent to defraud. SHIFTS
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SHIFTS
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S: Transfer was SECRETLY done
o H: HASTILY done I: INADEQUATE consideration F: FAMILY MEMBER or close friend T: TRANSFEROR continued to control the property S: SCIENTOR of the creditors claim an inability to pay the claim after the transfer. |
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What are some constructive frauds?
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C: Corporate derivative actions
R: Recession of a K, except recession of a nuptial or prenuptial agreement which has a three year SOL, running from the date that a spouse o Is served with divorce papers or o Dies I: Indemnification or contribution claims o The 6 yrs do not start to run until the P has paid more than she should have (See lecture 4- Pleadings) M: Mortgage foreclosures E: Other Equitable claims o Such as unjust enrichment, constructive trust. Claim for an accounting, or a claim from breach of fiduciary duty seeking equitable relief. |
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5 yr SOL
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Five year SOL-RULE-an action for divorce or separation cannot be maintained more than 5 years after the complained of event.
RULE-an action for adultery is measured from when the D’s adultery was first discovered by the P. |
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4 yr SOL
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An action for breach of any contract for the sale of goods is governed by a four year SOL measured from when the contract was breached. On a breach of warranty claim, the four years runs from the date the defective good was first tendered by that defendant, despite the P’s lack of knowledge of the breach.
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What is an exception to the 4 yr SOL?
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An exception to this rule is where the warranty expressly extends to the future performance of the goods. Here the four year SOL is measured from when the warranty is breached during the 8 yr period.
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Three year SOL.
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A-actions that did not exist at common law but the statute did not give the claim a SOL. Civil rights claims, claims for violating the dram shop act, and claims for prima facie tort.
S-strict products liability O-misapproprriation of a corporate or partner business opportunity. F-breach of fiduciary duty where only money damages are demanded. If the complaint also seeks equitable relief, then the P’s claim is also governed by a six year SOL, even of the equitable claim is also joined by a demand for money damages. T-damages for a D’s trepass on the P’s land. R-replevin or conversion-the 3 year SOL starts to run on either claim depending on if the chattel, 1. Was wrongfully taken by the D(the thief) 2. Was obtained in good faith-purchased in good faith by a thief, or it involved a bailment contract. A-annullment of a marriage for fraud, three years from when the fraud was discovered. I-tortouos interference with another persons contractual right. Here the defendant must prove that the D was a KID- Knew of D’s enforceable contract, Intentionally procured its breach, and breach proximately cause Damages. N-negligence and professional malpractice except for medical malpractice. In NY, is governed by a three year SOL regardless of whether the P’s theory for malpractice is based in contract or tort. |
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Is replevin subject to laches?
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In a replevin action, even though it is considered a law action not equity, it is subject to the defense of laches,
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What happens with the SOL for a claim against a thief?
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In a claim against a thief, the three years run from the date the chattel was stolen. However, the claim against a good faith possessor accrues from the earlier of the time from when the D refused to return property or disposed of it.
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Who are professionals for 3 yr SOL reasons?
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Professionals are engineers, accountants, psychologists, lawyers, but not insurance brokers (this is governed by a 6 year breach of contract claim)
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What is legal malpractice?
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Legal malpractice is negligence by an attorney in rendering legal services.
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Can a convicted client sue for legal malpractice?
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A client convicted of a crime cannot assert a legal malpractice claim against the attorney unless that client can plead and prove his innocence. He must prove that the conviction was due soley to the attorneys malpractice and was not due to the client’s own criminal guilt. As long as the criminal conviction remains undisturbed, the client cannot sue for legal malpractice
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When does malpractice begin?
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Malpractice runs from the date the P was injured and not when the injury was first discussed. 1202. An exception in NY is a latent injury to persons person or property after being exposed to toxic substance. Here the SOL does not start to run until the symptoms of the injury become apparent.
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When do loss of consortium claims rise?
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loss of consortium claims arise out of an injury during a marriage proximately caused by the D’s tortious conduct. If one spouse is injured because of the D’s tortutous conduct, then the non-injured spouse can sue the tortfeasor for loss of sex and spousal services. It has a 3 yr SOL. And that claim must be joined with the injured spouses personal injury claim, otherwise it is barred.
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How long is the SOL is med mal? And what is it exactly?
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2 ½ years-Medical Malpractice-is a failure to use that degree of skill and learning ordinarily used under similar circumstances by members of the D’s profession. It requires a P to prove that D departed from accepted practices and that that deviation proximately caused the P’s injury. Usually, expert testimony (other doctors) is required to establish the standard of care owed by the D, and that the standard was not met and that it proximately caused the P’s injurys.
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How do you bring a claim for med mal?
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Claim must be brought with an affidavit of merit12:11-unless attorney was unable to do so after contacting three doctors
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What is the SOL for leaving a foreign instrument in P's body?
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Then the SOL is either 2 ½ years from the date of the injury or one year from when the object was first discovered.
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What are not foreign instruments?
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Items implanted with the intent they remain in the body are not considered foreign objects, for example, fixation devices, misplaced stitches, metal limbs
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What if the P's claim is caused by malfunction of a prosthetic device?
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The P’s claim is not malpractice but strict product’s liability and the three years run from the date the P suffered the injury, and not from the date the device was implanted.
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When does a med mal claim accrue?
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a malpractice claim accrues on the date the malpractice occurred but in a medical malpractice case, if the doctor continues to treat the KNOWN injury that was proximately caused by the doctors malpractice, then the SOL is tolled (put on hold) until that later treatment ceases
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What is the doctrine of continuous treatment?
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The injured P should not be required to interrupt ongoing corrective efforts to sue the professional. This doctrine also applies to other professionals, under the doctrine of continuous representation,
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Doctrine of informed consent?
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the doctrine of informed consent is based on a concept, that every person has the right to determine, what should be done to one’s body
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What happens if the doctor fails to inform the patient of foreseeable risks?
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the doctrine of informed consent is based on a concept, that every person has the right to determine, what should be done to one’s body
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What must a patient plead and prove
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1. The treatment chosen by the doctor proximately caused an unwanted result
2. The doctor did not fully inform the patient of the foreseeable risks or of the various alternative treatments available, which a reasonable doctor would disclose. Medical testimony is required to prove this element. 3. A reasonable person, if fully informed, would not have consented to the treatment, 4. A casual connection between the failure to disclose and the injury suffered by the Plaintiff |
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When is there no duty to obtain informed consent?
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BEAR
B-best interest of the patient not to disclose the risk E-Emergency treatment was required because of an eminent danger or threat of death to the patient. A Patient asked the doctor to proceed regardless of any risk. R- risks were so commonly known that the doctor did not have to disclose them |
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What happens if the patient consents to one surgery but gets another?
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Not med mal but a tort for battery.f
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What if the med mal patient is an infant?
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under the 10 year rule, the P’s disability of infancy cannot extend the SOL, for more than ten years from the date of the malpractice. It cannot be further extended by the continuous treatment theory
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How is it determined whether the conduct of the hospital is med mal or not?
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Determined by whether the conduct by the D constitutes medical treatment.
For example-chemo overdose, wrong blood type given, too much blood thinner given, is clearly med mal. However a patient’s claim arising against a hospital for negligently hiring or retaining an unfit doctor, or a claim resulting from a fall caused by a slippery fall in a hospital or doctors office, is a negligence claim governed by a three year SOL. |
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2 year SOL for wrongful death
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when a D’s tort proximately causes the P’s death, the tort claims survives death, and there also arises an additional cause of action, for wrongful death, to be paid to the intestate distributes who have suffered an economic loss because of the death. This claim can only be commenced by the estate’s representative. Each claim is governed by a separate SOL, and the money recovered is paid out differently.
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What is a NY wrongful death recovery limited to?
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A NY wrongful death recovery is limited only to economic injuries resulting from the decedents death. For example, the decedents lost earnings that would have passed to the heirs as well as the value of the loss of the decedents assistance and services.
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What recovery is allowed for under wrongful death?
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Majority view-allows recovery for grief, loss of affection, and conjunctical fellowship. NY DOES NOT allow such a recovery
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How is a NY wrongful death recovery distributed?
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A NY wrongful death recovery is distributed directly to intestate distributes and not the decedent’s estate. But the P’s…recovery is distributed to the decendent’s estate.
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When does a wrongful death claim arise?
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a wrongful death claim arises ONLY IF, at the moment of death, the decedent had not settled the personal injury claim, it had not gone to judgment, and that claim was not barred by the SOL.
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What does the 2 year SOL for wrongful death only apply to?
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the two year SOL for wrongful death applies only if prior to death, the P had not commenced a personal injury action against the D. However, if at the time of death, the P’s personal injury claim was pending, then the wrongful death application is not governed by the 2 yr SOL, and the personal injury complaint can be amended thereafter.
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What type of damages can be awarded?
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punitive damages may be awarded in a wrongful death recovery if such damages are awardable in the tort action that causes the death.
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How long is the tort claim for municipalities?
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One year and 90 days
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When must a tort claim against a municipality be commenced?
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within one year and 90 days from P’s injury. A municipality is a county, town, city, village, school district, water district, or fire district
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What is the condition precedent to the tort claim?
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As a condition precedent to the tort claim, a sworn notice of claim under oath must be served on the municipality within 90 days of the P’s injury. As of 2010, it can now be done online against the city of NY.
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What are the reasons to extend the 90 day SOL?
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1. The motion must be made before the SOL expires,
2. The P has a reasonable excuse for the delay 3. The municipality had actual knowledge of the essential facts constituting the claim. (General knowledge that someone was injured is not sufficient). 4. The municipality will not be prejudiced by the late finding. A substantial delay in making this motion allows a court to infer prejudice to the municipality. |
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What offenses have a one year SOL?
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A DIMPLE FIB
A-arbitration awards must be confirmed by the SC within 1 year of the award. D-Defendant has one year to open a default judgment I-to recover excess interest paid on a usurious loan. M-claim for malicious prosecution. One year does not begin to run until the malicious act is terminated. P-right to publicity aka the right to privacy. Based on a D’s unauthorized commercial use in NY of a living P’s name, picture or voice, for advertising purposes, without the P’s written consent. L-Libel and slander, but a dead person cannot be defamed. E- A claim by a tenant for a LL’s wrongful eviction, against a residential tenant for reporting health or safety violations in a dwelling with four or more residential units, including the claim for constructive eviction or retaliatory eviction. If the landlords eviction proceeding is commenced with 6 months of tenants complaint, then a presumption arises that eviction was in retaliation of victims complaint. F-false imprisonment or false arrest I-Intentional Infliction of emotional harm B-battery or assault |
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What is the single publication rule?
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under the single publication rule, regardless of the number of copies published by print or internet, it constitutes one publication, giving rise to single cause of action, and the one year starts to run from when the publication first became available to the public. However, if it is republished in a new format, for example, a hardcover book republished in paperback, or the defamatory material is relocated to a second website, or a newspaper article is republished in a new edition, then a new one year SOL starts to run, from the date of the republication.
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What falls under the 4 month SOL?
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Article 78 of the CPLR-“Special proceeding” commenced in Supreme court used to quickly challenge decisions or inactivity of governmental agencies
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Under the 4 mth SOL, how long for service of process?
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service of process has to be made no later than 15 (not 120) days from when the SOL expires (this 15 days is not measured from when process is filed with the clerk of the court). The court can extend the 15 time period for service of process in the interest of justice or for good cause shown.
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Which offenses are governed by article 78 but have a 30 day SOL?
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A special proceeding to challenge a zoning board determination, tax certarior cases, challenging the tax imposed on realty, or challenges to eminent domain determinations use Article 78, but these proceedings are governed by a 30 day SOL and not four months
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What is the special proceeding rule?
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Article 4 governs special proceedings which permit certain claims to be summarily decided by a court with a speed of a motion. However, the CPLR provides that all judicial proceedings shall proceed as ordinary actions except where special proceedings are permitted by statute.
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When must process generally be served in a special proceeding?
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generally, process in a special proceeding must be served on the respondent (D) at least eight days before the court hearing and D does not have to answer before two days before court date.CPLR 403(b).
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How long for service of process for an Article 78 proceeding?
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, process must be served at least 20, not 8, days before petition is heard. And the answer must be served at least five days before court date. Examples of special proceedings:
1. landlord/tenant eviction proceedings 2. Article 78 3. A proceeding to appraise a dissenting shareholders shares of stock (CAMP) 4. Vicious dog confined or destroyed 5. Election disputes 6. Proceeding to compel arbitration or to confirm arbitration award (see lecture 6) 7. An infant’s compromised proceeding RULE-in any special proceeding, including article 78, court permission is required for a. D to implead a third party into proceeding (because it takes a longer time) b. Pre-trial discovery except notices to admit do not require a court order. c. To take an immediate appeal of a court’s order |
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What are the four types of Article 78 proceedings?
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a. To compel an administrative act where the duty is not discretionary but is mandated by law. It is used to judicially compel a public servant to perform an act required by law.
b. Article 78 to prohibit a judge from proceeding to act without subject matter jurisdiction. E.g. where a criminal D seeks to prohibit a retrial based on double jeopardy or from being tried for a crime which was committed outside the courts geographic jurisdiction. c. A SC review of whether a Government agency acted arbitrarily, capriciously or irrationally in making its determination. d. Appellate division review of a Quasi judicial administrative trial type of hearing required by law where evidence was taken under oath |
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When seeking to prohibit a SC or county court judge under article 78, what must you do?
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o When seeking to prohibit a SC or county court Judge an Art. 78 must be commenced in the appellate division the SC lacks Subject Matter Jurisdiction in such a case
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What is an example of an agency acting arbitrary or capricous?
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o Agencies decision did not adhere to its own prior precedent and its decision did not indicate any reason for reaching a different result on essentially the same facts.
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What is a quasi judicial administrative trial type of hearing?
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• Hearing on unemployment compensation
• Workers compensation • Disciplinary proceedings of prisoners • Disbarment proceedings of lawyers • Here the standard of judicial review is whether the agencies determination was warranted by SUBSTANTIAL EVIDENCE which requires some credible evidence in the record. Hearsay alone is credible if it is believable and it can constitute “substantial evidence”. |
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What happens if the only issue raised in an Art 78 is the substantial evidence question?
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b/c there is already a typed record for judicial review the SC must transfer that proceeding to the Appellate division.
a. However, if there is some other issue to be determined by the ART. 78 (SPARE RIBS the SOL or MOP) jurisdiction that would terminate the ART. 78, the SC must first decide those issues. |
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When suing against NY city for money damages, where is the suit commenced?
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when suing the state of NY for money damages the action must be commenced in the NY court of claims. However, when suing the state for Art 78 relief the proper forum is the SC. In the Art. 78 the SC can award money damages against the state but only if it is “incidental” to the ART. 78.
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What is the difference between art. 78 and DJ?
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declaratory judgment action which allows the SC to declare the “rights and other legal relations of the parties involved in a controversy” CPLR 3001. It is frequently used to challenge the constitutionality of a statute as well as to determine the rights and obligations of the parties involved in a disputed contract.
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What is the threshold question in an Art. 78 claim?
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The threshold question is whether the essential nature of the P’s claim is either to recover money, or, money sought by the Plaintiff is only incidential to the article 78 proceeding. If the money damages sought is only incidental to the article 78, then the supreme court can award money damages against the state of NY.
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What has a 30 day SOL?
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A non domicile sued in the New York state court has 30 days from when she can intelligently ascertain that diversity jurisdiction exists, to remove the action into the federal court.
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In personal injury or wrongful death what happens with the SOL?
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in personal injury or wrongful death claims, CPLR 3017 prohibit a monetary amount from being included in the complaint. Thus the 30 days to remove the action to the federal court does not began to run from when the D was served with process.
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When can you not move for diver. juris?
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When one of the party's is a ny domicile.
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How long does a party have to appeal from a final judgment or courts order?
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a party has 30 days to take an appeal from a final judgment or from a courts order. If the order or judgment was served by mail then the appellant has 35 days to take the appeal. The 30 days does not begin to run until the order or judgment is served by a party(service by court does not start 30 days) the judgment or order must contain notice of date that it was entered in the courts official log (notice of entry).
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What is the distinction between taking an appeal and perfecting an appeal?
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. Taking an appeal simply requires that the notice of appeal be filed with the clerk of the original court and on the opposing attorney. But as long as one of these two steps is timely undertaken in 30 days, then the court can extend the thirty days to take the other step.
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What can the appellate division not do?
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The appellate division does not have the authority to grant relief to the non-appealing party.
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What is the process when deciding a SOL claim?
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STEP 1-KNOW APPLICABLE PERIODS STEP
2-WHEN DOES IT START TO RUN/WHEN WAS IT INTERPOSED STEP 3-IF THE APPLICABLE PERIOD HAS RUN, THEN THE P SHOULD CONSIDER LEAP DADS CAT |
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What is the LEAP in LEAP DADS CAT?
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L-lengthing SOL. Although a court cannot lengthen SOL, the parties can agree not to plead the SOL or to lengthen at a year or two but only in assigned writing, executed AFTER the P’s cause of action has accrued.
E-equitable estoppel prevents a D from pleading SOL, A-written acknowledgment of old debt, P-part payment-rule-where a debtor pays part of an admitted debt, together with an express or implied unqualified acknowledgment that more is due and owing, then it will start the SOL running anew on the balance of the debt. |
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Can parties shorten the SOL?
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CPLR 201 says yes, and it can be done without assigned writing by one party conspicuously placing it in writing, in the original contract, and provided it is shortened to a “reasonable” period. 90 days on a construction contract was found to be reasonable.
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How short can the SOL be in a sale of goods?
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in a contract involving the sale of goods, the SOL can be shortened, but not to less than one year.
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When can equitable estoppel be used?
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This P’s remedy is rarely successful, but it can be used in both law and equity actions, when the P’s SOL has expired, because of the D’ affirmative wrongdoing, which prevented the P from commencing a timely action, based on D’s fraud or misrepresentation, that was justifiably relied upon by the P.
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When can equitable estoppel not be used?
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mere silence or a failure to disclose wrongdoing, will not permit the use of equitable estoppel.
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How does a written acknowledgment of an old debt affect the SOL?
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when a debtor signs a writing acknowledging an old debt, its starts the SOL running all over again, providing the writing contains nothing inconsistent with the debtors intent to repay the debt. It starts the SOL running as to the amount promised to be repaid.
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What is DADS in LEAP DADS CAT?
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D- disability of a P.
A-amending pleadings to add new claims or new parties after the SOL has expired. D-a defendants death prior to being sued automatically extends the SOL by 18 months. S-service member’s relief act. RULE-both state and federal law provide that the period for military service of a P or a D shall not be included in computing any state of limitations period. |
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What if at the moment the cause of action first accrued against the D the P was an infant or mentally incompetent?
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Then this disability tolls the SOL but the disability toll does not apply to derivative claims.
A P’s mental incompetency must render her unable to protect her legal rights because of an overall inability to function in society. RULE-in every cause of action, except for med mal, if the P is an infant, then the SOL on the infant’s claim is tolled, until the infants 18th birthday. |
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What is the SOL for both infancy and mental disability
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for both infancy and mental disability (subject to the ten year rule), if the SOL is less than three years on the P’s claim, then apply the applicable period from when the disability ceases. If the SOL is three years or more, then apply a flat three year period from when the disability ceased.
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What happens if the P’s disability is either
a. Mental incompetency for any cause of action (ex, in a coma because of accident) or b. Infancy, but only for med mal claims |
If the P’s disability is either
a. Mental incompetency for any cause of action (ex, in a coma because of accident) or b. Infancy, but only for med mal claims then under the ten year rule, regardless of the continuation of P’s disability, action must be commenced with ten years from date it accrued, otherwise it is barred by SOL. |
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What if the infant suing for med mal is 11 years old or older,
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Then she will never get the full ten years to sue, because if she was 11, and celebrating her 11th birthday, she would have seven years to reach majority, and then 21/2 years to sue from that date. However, if she was celebrating her 7th birthday and was injured by a doctor, then the med mal action must be commenced no later than her 17th birthday under the ten year rule.
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What if the P makes a motion to amend her complaint to add a new claim which at the time of the amendment is then barred by the SOL?
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, that claim is nevertheless timely, provided
1. The claim sought to be added to the P’s complaint “relates to” a claim already pleaded in the complaint. That is, it arose out of the same transaction and occurrences pleading in the P’s complaint. 2. The new claim was timely when the P commenced the action. That is, it was not barred by the SOL when the P filed process with the clerk of the court. 3. The original complaint gave the D notice of the transaction or occurrence sought to be established in the amended complaint. That is, the new claim is based on facts already pleaded. |
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What is the procedure for adding a new D to the complaint after the SOL has run on the D sought to be added?
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If the P makes a motion to add a new D after SOL has expired against the new D, then that amendment is nevertheless timely, provided the new party to be added, is “united in interest” with the D already named in the lawsuit. This new claim relates back to the date when the original claim was first interposed but only if
1. The claim against both Ds arose out of the same transaction. 2. The new D had notice of the lawsuit and she except for the P’s mistake that she should have been named in the original complaint and 3. The new party is united in interest with the original defendant so that they stand or fall together in the lawsuit. That is, a judgment against one will likewise affect the other. |
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Are two active tortfeasors united in interest?
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generally two active tortfeasors are not united in interest. But parties united in interest frequently involve the vicarious liability of POPE parties.
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What are POPE parties?
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P-partners are jointly and severally liable for each other’s torts that were committed in furtherance of partnership business.
O-NY owner and driver of motor vehicle that was driven with the owner’s express or implied provision within NY, but this vicarious liability is not imputed to commercial leasing companies (ex. Avis). AND joint owners of realty (TE, JTS, TCs). P-principal and agent, in which a principal is vicariously liable for the torts of the agent. E-employer and employee. |
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What is the doctrine of respondent superior?
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It renders an employer vicariously liable for the torts committed by an employee while acting in the scope of employment. An employee’s actions fall within the scope of employment where the purpose of performing such activity is to further the employer’s interest, or to carry out the duties imposed on the employee. Conversely, where an employees actions are taken solely for personal motives unrelated to furthering employer’s business interest, then the employee’s activities does not render the employer vicariously liable for that tortuous conduct.
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When does a P's death affect the SOL?
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only time a P’s death affects the SOL, is if on the date on the P’s death, the SOL remaining on the P’s claim has less than one year to go, this guarantees that the P’s estate will have at least one year from the date of death to discover and timely commence the P’s cause of action.
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For SOL purposes, when is counterclaim the deemed interposed?
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at the moment the P’s complaint is interposed, which is the date process was filed with the clerk of the court. The timeliness of a D’s counterclaim relates back to the date that process was filed by the P with the county clerk. If the counterclaim was timely on that date, then the D’s counterclaim will not be barred by the SOL.
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What if a counterclaim was barred when P commenced the action?
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even if a counterclaim was time barred when the P commenced the action, that time barred counterclaim nevertheless can be asserted provided it relates to P’s cause of action, that it is it arose out of the same transaction or occurrence, asserted in the P’s complaint
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What is the doctrine of equitable recoupment?
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The value of that time barred related counterclaim is limited and can be used by the D only as an offset to reduce the P’s judgment.
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What is CAT in FLIP DADS CAT?
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C-counterclaims
A-causes of action arising outside NY. T-termination of a timely action after SOL has expired. |
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What are causes of action arising outside NY?
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1. Under CPLR 207, claims arising outside NY, against a non New York resident, over whom personal jurisdiction cannot be obtained in a NY court (no DIAL DC) indefinitely suspends the SOL on that claim, until personal jurisdiction can be obtained in NY. NYEB SOL QUIZ pg. 7 question 9.
2. Under CPLR 202, the borrowing statute is used when the claim arises outside NY (look to where the P’s injury was sustained) and at the time the P was a non resident of NY, but who comes to NY and commences a lawsuit, then the NY court will apply NY SOL or it will “borrow” the SOL of the state where the cause of action accrued, WHICHEVER PERIOD IS SHORTER. The borrowing statute requires the non residence claim to be timely under both NY law and the law of the jurisdiction where the claim arose, NYAA pg. 163-164. RULE-the borrowing statute does not apply to claims arising outside NY commenced by a NY domicile. 3. Under CPLR 207, when a cause of action accrues in NY, and the defendant leaves the state for four or more consecutive months, or goes into hiding, or takes on an assumed name, AND SERVICE CANNOT BE MADE ON THAT D, to obtain personal jur., then this tolls the SOL indefinitely. This tolling provision is almost NEVER available because of CIDSMAIL. |
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What if the P’s action is timely commenced, in any state or federal court but is subsequently dismissed, due to a technical defect, which can be remedied in a new action, even though the SOL has expired, while the first action was pending?
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the P has an additional six months from termination of the first action to refile new process and reserve the D. Both the filing and serving of the D must occur within six months. For example
1. A dismissal because arbitration is required 2. A dismissal in federal court because the court found there was no diversity jur. 3. Where a wrongful death action is commenced by a relative of the decendent, but the court dismisses that action for lack of standing because it should have been commenced by the estate’s representative. |
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When will the six month allowance not apply?
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if the first action was terminated because of JPMD,
J-lack of MOP jurisdiction. P-first claim was dismissed based on the P’s neglect to prosecute but only if the court’s order expressly indicates the P’s “GENERAL PATTERN OF DELAY” M-dismissal on the merits, eg summary judgment D-P’s voluntarily discontinued first action, |
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Problem-in 2010 N, a NY domicile, sued O, an Ohio domicile, for personal injuries O suffered in an automobile accident, negligently caused by O in Ohio in 2005. O has no minimum contacts with the state of NY. O retained NY counsel who moved to dismiss N’s claim based on the SOL. How should the court decide this motion?
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First step-what is the SOL
Second step-when did it start to run, when was the claim interposed Third step-if we conclude that SOL was a bar, look to the tolling provisions LEAPSDADCAT. -N claim is timely because the SOL is tolled when the court has no personal jur. over a D for an action arising out of an accident outside NY with a NY domicile. ALSO, O has consented to jur. by consenting when he moved to dismiss for a SOL bar without mentioning a MOP objection. |
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Problem-after the SOL had expired, X wrote to Y, that because X had given Y a fur coat last year, X was only going to pay Y 3000 of the 7000 ten year old debt that she owed to Y. X’s writing would revive 3000 of that debt, but not the original 7000
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RULE-X’s new promise does not have to be supported by any new consideration (see question 43 NCEB, OPE #1)
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What is a motion
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a motion is a written pretrial request for relief which is accompanied by notarized affidavits in support or in opposition to the motion.
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What can an attorney, doctor, or a dentist, who is not a party to the action do?
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They can can submit an affirmation which affirms the truth of her statements under penalty of perjury, and her signature does not have to be notarized.
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What is the most frequent method to serve papers on opposing counsel?
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Done by mail from a mailbox w/in NY state.
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Whenever a time period is measured from the service of papers (notice of appel-30 days) and service is done by mail, what do you do to the time?
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Add 5 days
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Who picks the date the motion is to be heard in court?
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the moving party attorney picks the date the motion is to be heard in court but the minimum notice time is 8 days, but add five days if the motion is served by mail. Add one day if it is served by overnight courier. The problem with giving only 8 days (or 13 by mail) is that the opponents answering papers do not have to mailed until two days before the return date.
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What if at least 16 days (21 by mail) notice is given?
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, then the moving party can DEMAND that answering papers be served at least seven days before the court date, and the moving party can reply to the answering paper one day before the court date.
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A written motion is drafted by the attorney and if made either?
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1. Ex parte directly to the court without any notice to the opposing party but only if this type of motion is authorized by statute, because of due process problems.
2. A motion unnoticed to the other side and the motion papers can be served by mail, fax, federal express, or personally delivered to the attorney’s office. Fax service can be used only if authorized by opposing attorney. But including a fax number in a blueback impliedly authorizes service by fax. 3. A speedy alternate method to making a motion is an ex parte order to show cause, which asks the opposing party to immediately show cause in court. Why the requested relief should not be granted. This paper must be first be signed by a judge, and served by the time and in the manner specified by the judge. It is used to commence an article 78 proceeding when seeking an injunction, or when there is not enough time to use the regular method of a motion on notice. |
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What does a motion result in?
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A motion results in an order granting or denying the relief in whole or in part. The judge must issue the order within sixty days, unless the motion seeks a provisional remedy, which requires the judge to issue the order within 20 days.
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What if a judge does not timely issue the order?
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The remedy is to commence an article 78 special proceeding, to compel the judge to do what the law requires.
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What does a party adversely affected by a pre-trial order has the option of doing?
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Immediately appealing within 30 days, or waiting until final judgment and then appealing that order.
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What if an order is not immediately appealed?
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then the issue decided in the order becomes “law of the case” and that order will control that issue, whenever it arises prior to final judgment, NYAA g. 119. The law of the case doctrine seeks to prevent relitigation of issues that have already been determined at an earlier stage in the proceeding.
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What is an alternative to an immediate expensive appeal?
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Make a motion to reargue or to renew the original motion.
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What does a motion to reargue assert?
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that the court has overlooked or misapplied an important fact or point of law, but this motion is not based on any new evidence. The motion must be made before the 30 day time period to appeal the order expires. A motion to renew seeks to introduce new facts and new law or a change in the law that was not previously available. But this motion will be denied if the moving party fails to offer a justifiable excuse for not earlier submitting the additional facts or law in the original motion. NYAA, pg. 123
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Whats the difference between a motion to reargue and a motion to renew?
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the difference between the two motions is important, primarily for the purpose of taking an immediate appeal. An order granting or denying a motion to renew, or an order granting re-argument is an appealable order, but an order DENYING re-argument is an unappealable order, thus whenever making a motion to reargue in order to appeal the court’s order, the moving party should serve a notice of appeal of the first order to preserve the right to appeal, NYLB pg. 165-166
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What is a Corrective Motion?
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RULE-a CM is a MAN appearance because by making this pre-answer motion, it automatically extends the D’s time to answer. The motion must be made within 20 days after the objectionable pleading was served, even though the D may have 30 or 40 days to answer that complaint.
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What are the 3 types of CM?
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1. S-separately state and number each allegation in the pleading because 3014 specifically states that a pleading shall consist of plain and concise statements in consecutively numbered paragraphs and each paragraph shall contain a single allegation.
2. S-motion for a more definite statement in the pleading. This motion is frequently against pro se litigants. 3. S-to strike irrelevant prejudicial or scandalous matter from a pleading. |
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What if the CM is granted?
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if the corrective motion is granted, the P has ten days to amend and correct the complaint. If the motion is denied, the D has ten days to serve an answer (15 if by mail).
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What do the grounds for a CPLR 3211 Motion to dismiss involve?
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enmurated issues which if decided in favor of the moving party will terminate the litigation. It is simply a mechanical device to expediciously bring to the courts attention grounds which support an early dismissal of the complaint.
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How many 3211 motions can be made?
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only one 3211 motion can be made
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Diff btwn 3211 and 3212?
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A major difference between the two motions is that a motion for summary judgment cannot be made until after an answer has been served and that motion can be made by either the P or D, however the 3211 motion to dismiss is made by a D before service of the answer, except for 3211(a)2,7,10, which can be made anytime, even after service of the D’s answer.
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What if the court grants a motion to dismiss under 3211(a)2,3,6,7,10,?
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The P has six months to re-commence the action, even if the SOL has expired in the interim.
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When can the 3211(a) grounds be raised?
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the 3211(a) grounds do not have to be raised in a pre-answer motion to dismiss but can be asserted in the D’s answer as affirmative defenses.
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3211(a)(1)
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seeks dismissal where there exists documentary evidence utterly refuting the P’s factual allegations and conclusively establishing a defense to the P’s claim as a matter of law. It can be a judicial record or transcript, a contract, a deed, a mortgage, or an insurance policy, expressly excluding the P’s claim. But it generally is not an affidavit submitted by the D.
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3211(a)(2)
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seeks dismissal because the NY court lacks SMjur. This ground is never waived and can be raised at any time during litigation. Can be raised for the first time during an appeal.
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3211(a)(3)
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seeks dismissal based on the P’s lack of capacity to sue. The following P’s lack capacity.
1. An infant, whose claim must be commenced in the name of a guardian, parent, or person having custody of the child. 2. Next of kin have no capacity to commence a wrongful death claim (it can only be commenced in the name of the estates representative) 3. Action by a non NY corp., that is regularly doing business in NY on a day to day basis, but has not filed with the secretary of state to do business, lacks the capacity to commence an action in a NY state court, or in a federal court on the basis of diversity jur. 4. A Plaintiff lacks capacity to sue on a cause of action that was not listed as an asset in the P’s earlier bankruptcy proceeding. That claim is an asset of the bankruptcy trustee and the court would dismiss the injured P’s claim. |
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(3211)(a)(4
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seeks dismissal on the ground that another action was earlier commenced and is pending in another NY or sister state federal court between the same parties for substantially the same cause of action. The critical element decided by the court in this motion, is whether both actions arose out of the same transaction.
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When is a prior action not pending?
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a prior action is not pending if it was commence solely by filing and serving a summons with notice but without a complaint.
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What if the prior similar action is pending in another NY state court?
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then instead of dismissing the later action, the court can order consolidation of both actions into one NY court.
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RULE(3211)(a)(5)
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lists nine grounds that can be easily resolved and quickly decided by the court. The court can order an immediate hearing or trial on a factual issue raised in this motion. The grounds under 3211(a)(5) are SPARE RIBS
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Which console connection configuration options have to be entered when connecting from a Linux or Windows Client?
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9600 Bits, 8 Data bits, Parity none, Stop bit 1, Flow Control No
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What is res judicata?
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res judicata is also referred to as claim preclusion, whereas collateral estoppels is referred to as issue preclusion (IF)
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When does res judicata usually arise?
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when a P brings a lawsuit and loses, but then commences a second action involving the same basic facts but sues on a different theory.
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NY exception to res judicata?
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a NY exception to the res judicata exception is that after a spouse sues for cruel and inhuman treatment to obtain a divorce, she can subsequently assert substantially the same facts and sue the other spouse for the tort of battery.
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RULE-3211(a)(6)
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is the only a motion made by a P. It seeks dismissal of a non interposable counterclaim. For example, whenever a P sues in a fiduciary capacity, then the D can only counterclaim against the P in her fiduciary capacity, and the D cannot interpose a personal counterclaim against the P.
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RULE3211(a)(7)
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seeks dismissal based on the P’s failure to assert a cause of action. Here the court looks only at the P’s complaint to see if the P has stated a cause of action. The court will assume the accuracy and truth of the P’s allegations. It simply looks at whether the facts alleged in the complaint give rise to a conzigable cause of action.
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When will the court grant a 3211(a)(7) motion?
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1. An allegation of a civil conspiracy to commit a tortuous act because NY does not recognize this claim, but restatement of torts and MBE recognize it, but the D must have provided assistance or encouragement to the conspiracy.
2. Educational malpractice 3. A child’s claim against a parent for a parents lack of parental supervision of the child, resulting in the child’s injury. Essay four July 2009. MBE recognizes such a claim 4. A defamation cause of action, if the defamatory words are not specifically set forth in the P’s complaint 5. Tort claim for intentional infliction of emotional distress (SADCEO) between spouses. |
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What is the scope of the courts review for 3211(a)(7) motion and a 3212 motion for summary judgment?
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They're very different. In an 3211(a)(7) motion, the court examines the sufficiency of the pleading, whereas in a 3212 motion, it examines the sufficiency of the evidence underlying the pleading.
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When is a 3211(a)(7) dismissal not res judicata?
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unless the court granted the motion because of an omission or defect in the P’s complaint which could easily be corrected in a subsequent action, then the dismissal is not on the merits.
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3211(a)(8)
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seeks a dismissal for lack of personal jur.
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3211(a)(9)
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seeks dismissal for lack of in rem jur.
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(3211)(a)(10)
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seeks dismissal because the P has failed to join a necessary party in the lawsuit in order for the court to grant full and complete relief of the P’s claim. (party is indispensable).
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What does mandatory joinder of parties do?
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parties prevents inconsistent judgments, and it prevents absent parties from being harmed by a judgment, where they lacked any opportunity to be heard.
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When will the court dismiss P's action because of lack of joinder?
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the court will dismiss the P’s action on this ground only if there is jur. over that non party, and she will not voluntarily appear. However, if the non party is within the court’s jur.(DIAL DC) and refuses to come into the action, then the court will order that non-party to be summoned and added as a named party.
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What if the 3211(a) motion is denied?
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the D has ten days after service of the order on the D (15 days if served by mail) to serve an answer on the D.
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3211(b)
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A motion made by the P to dismiss one or more defenses in the D’s answer as a matter of law.
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3212
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Either P or D can move for summary judgment, after issue is joined (the D has served the answer). This motion is designed to expediate litigation, but only on claims that can be resolved by the court “as a matter of law”. It is frequently used in mortgage foreclosures, debt collections, or other breach of K claims, but it is also available in tort claims. This motion limits the court’s role to finding issues, but not resolving them.
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What must the party making the 3212 motion must set forth?
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evidentiary facts sufficient to entitle that party to judgment as a matter of law. The burden of production then shifts to the opposing party to demonstrate the existence of a triable issue of material fact.
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When is a 3212 motion granted?
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1. There is not triable issue of material fact that would warrant a trial and
2. The court can decide the claim as a matter of law/ |
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What if the only issue of fact is for damages or could have been decided in a 3211(a) motion?
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then the court can order an immediate hearing on that issue and grant summary judgment.
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How late can a summary judgment be filed?
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no summary judgment motion can be made later than 120 days after the notice of issue has been filed placing the case on the trial calendar (after all pretrial discovery has been completed) unless “good cause” can be shown for making this motion so late. Courts can shorten the 120 day period, but not to less than 30 days from filing the note of issue.
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When can the ct grant a partial summary judgment?
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the court can grant partial summary judgment or it can be directed in favor of or against one of several causes of action which then severs that action from the main complaint. Even if the 3212 motion is completely denied, the court has discretion to determine any facts that are in dispute, that can be decided as a matter of law. The court’s order then becomes “law of the case” for all purposes at the trial.
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What can the ct do when a SJ motion is made?
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when a summary judgment motion is made, the court not only can deny that motion to the moving party, but can “ SERVE THE RECORD” and grant summary judgment to a nonmoving party on issues or causes of action that were the subject of the summary judgment motion. For example, P moved for summary judgment against D. The court can grant summary judgment for the D, even though the D did not request summary judgment.
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When is SJ frequently used?
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in tort cases involving
1. Dog bites-on order to sue a dog owner, must show that D knew or should have known the dog was vicious 2. Slip and fall cases 3. Automobile injuries where the P fails to prove a “serious injury” required under the no-fault insurance law. 4. Rear end collision with a stop or stopping car, creates a prima facie case of negligence against the operator of the rear vehicle, requiring that operator to rebut the inference of negligence, by providing a non-negligent explanation for the collision (ex., the P’s vehicle abruptly changed lanes, or the P without any vehicles in front of her car, stopped suddenly, proximately causing the rear end collision). |
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Can a D's counterclaim defeat SJ?
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if a P is entitled to SJ, but the D has interposed a counterclaim that will require a trial, then the D’s counterclaim will not defeat SJ, unless the D would be prejudiced, such as, where the P is financially insolvent, and may not be able to pay the counterclaim judgment.
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When will the court automatically deny a SJ motion?
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The court will automatically deny the SJ motion, unless it accompanied by a copy of all pleadings.
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What to think of when thinking of SJ?
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Think of LIPS (covers SJ)
L-motion can be decided as a matter of law I-no issues of material fact to be litigated (except for damages or a 3211(a)(5) issue) P-court can grant partial SJ S-court can serve the record but only on issues raised in the motion papers. |
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3213
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in lieu of a complaint. This motion is limited to an instrument for the payment of money only. For example, promissory notes and bounced checks. If proof outside of the instrument is needed to establish P’s claim other than proof of nonpayment, then the instrument does not qualify for 3213 treatment. For example, this motion cannot be used for a breached employment contract, a spouse’s separation agreement or prenuptial agreement, or a claim for nonpayment of a lease, because all of these claims require proof of something more than the D’s explicit promise to pay a sum of money.
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What is the procedure for a 3213 motion?
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The 3213 procedure is to attach a summons to the motion for summary judgment, but the return date for that motion to be heard in court must allow the D at least 20,30,or 40 days, depending on how that D is served with those papers.
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What are examples of documents for the payment of money only?
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1. A negotiable instrument
2. A default judgment from a sister state court, a 3213 motion allows a D to raise the MOP jurisdictional issue if it exists, if the judgment from the sister state court was not by default, the D appeared in that action, the procedure is to simply file an authenticated copy of the judgment, which an affidavit that the judgment was not obtained by default or with an application, and file it in any county where the D has assets. 3. A foreign country’s judgment (documents for the payment of money only), NY is very liberal and generous in enforcing foreign country money judgments, provided its judicial process is fair. Note-full faith and credit only applies to sister states, not foreign countries. RULE-CPLR 5304 prohibits NY courts from recognizing or enforcing a foreign’s country defamation judgment, unless that country’s defamation laws offers “at least” the same first amendment protections found in NY and the USSC. 4. A confession of judgment, in which a debtor confesses to a debt which is already due, or a debt with to become due in the future, and it permits the creditor to file the debtors affidavit, and the confession of judgment at any time within three years from when it was signed. |
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What are examples of documents for the payment of money only, frequently used for?
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these documents are frequently used by creditors to give a debtor one more chance to pay off a debt before a judgment is entered, and this document can also be used as security for a future debt. The debtor’s affidavit must contain detailed and precise facts as to how the debt rose to show that the confessed judgment was truly owed.
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Trial and post trial motions.
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a motion for judgment as a matter of law, can be made at any time during the trial, it is called a directed verdict. It is simply summary judgment motion made during the trial. Usually, it is made after the opponents case has been fully presented, unless, that party earlier makes a failed admission.
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What does the moving party assert in a directed verdict?
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the moving party asserts that as a matter of law, it is impossible for her opponent to receive a favorable verdict.
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How can the court set aside the jury's verdict? and on what grounds?
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1. Enter a directed verdict for the loser as a matter of law. This is called a judgment n.o.v. (judgment not withstanding jury’s verdict). It is summary judgment for the loser.
2. Request a new trial in the interest of justice (start all over again because there was simply insufficient evidence to support jury verdict. Because the evidence so predominately favored the opposing party, that the jury must have been mistaken, and the verdict was utterly irrational. 3. Order a new trial, but only on the issue of the amount of damages, or the apportionment of damages, based on an excessive or inadequate amount, awarded or apportioned by the jury. To grant this motion, the court must conclude that the amount awarded by the jury deviated materially from what the court believes is reasonable compensation for that injury. NYAA, 131-132 4. During or after a trial, (15 days) the court on motion can order a new trial, in the interest of justice, because a. The jury is deadlocked b. Jury misconduct c. Evidentiary errors committed during the trial, or inflammatory remarks by counsel during closing statements, provided there was specific and timely objection made on the record. |
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Can the ct substitute a new amount in place of the jury's amount?
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the court cannot substitute a new amount for the jury’s verdict, but it can order a new trial on the damages issue only, unless the D stipulates to a specific increased amount, or where the verdict was excessive, the P stipulates to a specific decreased amount, within a specified period of time.
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What is the purpose of using Provisional Remedies?
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the purpose of using PR is to maintain the status quo prior to judgment. Generally courts allow only one PR, but it has discretion to admit more. For example, where the court orders attachment of the D’s assets, it can also appoint a receiver to oversee those assets.
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How are PR's usually requested?
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PR usually are requested by Ps, but they are also available to the D, on a counterclaim, cross claim, or an inpleader complaint.
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What are the four PR's?
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LIAR
L-lis pendens aka a notice of pendency, which warns someone not to buy a D’s real property or to issue a mortgage on the property, because of the P’s claim in the D’s real property. I-preliminary injunction restraining a party pending final judgment A-attaching the D’s property by the sheriff, to hold as security, for payment of the final money judgment. R-the appointment of a receiver to oversee and preserve property, involved in the lawsuit. |
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Is a PR always granted?
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even if a P establishes the statutory requirements to obtain a provisional remedy, it is always discretionary with the court as to whether the PR should be granted.
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What is the purpose behind filing a lis pendens?
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the purpose for filing a lis pendens is to protect some interest claimed by the P, in the defendants real property, which interest could be lost by the P, if the D transfers the real property to a BFP (bonafide purchaser prior to judgment).
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What is a lis pendens?
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an LP is a one page sheet filed in the county clerk’s office, in the county where the D owns the realty. It serves as constructive notice under the recording statute and if after the LP is filed, anyone who acquires an interest in the D’s property, eg buyer or bank issue in mortgage, cannot claim buyer status, and they will be bound by the court proceeding in the courts action.
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What does filing a LP do?
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by filing lis pendens, it renders the D’s title to the realty unmarketable.
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What must you do to be able to file a LP?
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in order to be able to file a lis pendens, the judgment sought by the P, must directly divest the D of ownership or possession of that realty. Think of local actions in venue. (WASPMEN)(Provisional remedies, pg.10,NYEB)
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When is a LP not available?
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a lis pendens is not available in
1. A nuisance action, where the P seeks to enjoy an injunction on the D’s use of her land 2. In a landlord tenant eviction proceeding, to recover possession of the real property. |
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When is P not entitled to file a LP?
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a P is not entitled to file a lis pendens when solely seeking money damages, because the money judgment will not directly affect the D’s title or possession of the real property.
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What is the procedure to file a LP?
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the procedure for the lis pendens is the simplest of the PRs. The P’s attorney just files the one page document in the county clerk’s office where realty is located. It can even be filed prior to the service of process, but process must then be served on the D within 30 days.
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What makes a LP different from all the other PR's?
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the lis pendens is the only provisional remedy where the P is not required to be a SLOB
S-Sheriff is not involved L-no court review of the P’s likelihood of success on the merits O-no court order is required B-no bond has to be posted by the P |
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How long is a LP good for?
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a lis pendens is good for three years, then it expires, unless earlier it was extended for another three years upon “good cause shown” to the court. This motion has to be made before the first three years expires, otherwise, under the “the no second chance rule”, the P is prevented from refilling another lis pendens in that action, NYAA pg. 157
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Problem-X an real estate broker brought B a buyer to S to sell his prop and they entered a real property K. X and B disputed whether B owed X a fee, but before title closed, X sued S for the fee and filed for a lis pendens.
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There is no basis to file a lis pendens for a money action only and the court held that this baseless filing constituted the following torts
1. Slander of title 2. Tortours interefence with contract 3. Tort of abuse of process. The court said the sole purpose for X filing the lis pendens was to compel seller to pay broker the fee or risk losing the buyer. (as soon as you file a lis pendens the title becomes unmarketable). |
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What is a preliminary injunction?
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a PI seeks to prevent one party from harming another’s interest during a lawsuit. It is used to maintain the status quo. Generally, injunctions are not available where the P is suing to collect a debt, but seeks an injunction to prevent the D from transferring her NY assets.
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When is a PI available?
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1. Where the D’s conduct threatens to destroy the P’s right in the subject matter of the lawsuit, for example, the D;s transfer, removal, or destruction of property, which is the subject matter of the P’s lawsuit or
2. In an actions seeking a permanent injunction |
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What must a P do for an injunction wrongfully issued?
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the P must deposit with the court a bond to pay the D for damages causes by the injunction wrongfully issued. Thus, if the P loses her cause of action, or the court ultimately determines that the facts do not warrant a PI, then unlike the other PRS, here the sole remedy for damages for a PI is the amount of the bond, unless the D can establish commonlaw malice.
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A PI will not be granted unless?
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the P demonstrates by “clear and convincing evidence” LIE
L-likelihood, a probability but not a certainity, of a P’s success on the merits of the claim I-irreparable injury is occurring or will occur to the P, unless a PI is granted by the court. RULE-in a typical breach of K action, a P’s harm usually is financial, which could be adequately addressed in a monetary award, and courts will deny an injunction in these cases. E-equities when balanced by the court, clearly tip or weigh in the P’s favor. Here, the court uses the comparative hardship test, by weighing the harm the moving party would suffer, if the injunction was denied, balanced against the other party would suffer if the injunction was granted. Here the court will grant the injunction if the moving party presents proof that the comparative harm she would suffer, if the injunction is not granted is significantly greater than the harm the D would suffer, if the injunction was granted. |
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Is apprehension of an irreperable injury enough?
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mere apprehension of an irreparable injury is not enough. It must be demonstrated to the court that the D’s acts are occurring or that they are threatened and likely to occur.
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What is irreparable injury?
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1. That which cannot be repaired or restored, for example, loss of goodwill or loss of reputation
2. Where the P cannot be adequately compensated by money damages 3. Where money damages cannot be easily measured by the court, that is, where determining damages would be difficult and complex. |
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What can a TRO do for a PI?
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a temporary restraining order (TRO) can be granted by the court pending a hearing for a preliminary injunction. If it appears that an immediate and irreparable injury will result unless the D is restrained before the hearing for the preliminary injunction.
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Diff btwn TRO and PI?
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a TRO can be granted without a bond and prior to service of summons, but a preliminary injunction is just the opposite, it requires a bond, it requires notice to the D, and it can only be issued after process is served.
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Do you need notice for a TRO?
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it use to be that TRO could be obtained without notice but today in order to obtain a TRO exparte, the P must be able to show to the court that will SIP (significant and immediate prejudice) by giving notice to the D. Absent SIP, the P must show that a good faith effort was made to notify the D of the date and time of the order to show cause motion. Which would allow a D an opportunity to be heard, before the court issues a TRO.
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Who is affected by a PI?
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once an injunction is granted by the court, it is binding on D’s family members or employees, who had knowledge of the injunction, even though they were not served with it.
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What is the penalty for disobeying a PI?
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The penalty for disobeying an injunction is contempt of court, by commencing a special proceeding, with notice, to the D, that the D may be imprisoned, fined, or both.
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What does an order of attachment do?
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a court order of attachment directs the sheriff to attach the D’s property located in NY, at any time prior to final judgment. The court’s order acts only on the D’s property located in NY, the D’s assets attached by the sheriff, are used as security, to pay the money judgment when it is obtained by the P.
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When is an order of attachment available?
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An order of attachment is available whenever a P has demanded money in whole or in part or in the alternative, except it is not available in a matrimonial action.
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When can an order of attachment be obtained?
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the order of attachment can be obtained even before process is served on the D. But the summons must be served within 60 days from court signed the order, otherwise the D can vacate the order of attachment.
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What must a ct do before it grants an order of attachment?
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it must find extraordinary circumstances. FINDCJ
F-d is a foreign corporation not licensed to do business in NY I-intent to defraud creditors or to frustrate the enforcement of a money judgment. The D has concealed or transferred NY assets, or is about to do so. Here the P should consider the badges of constructive fraud. SHIFTS N-defendant is a non-domicile who does not have a residence in NY D-defendant is a NY domicile or resident, but who cannot be personally served with process despite diligence efforts to do so. This allows attachment against a D whose whereabouts are unknown. C- P is a crime victim suing a convicted felon. J-P’s cause of action is based on the following judgments 1. Default judgment from sister state 2. Money judgment from a foreign country. |
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What is the procedure to obtain an order of attachment?
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The procedure to obtain an order of attachment is by motion to the court either by notice to D or exparte, and the P must demonstrate a FINDCJ extraordinary circumstance. If notice is given to the D, then the court in an order to show cause can grant the P a TRO preventing the D from removing her assets pending the attachment hearing.
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What must the P's attachment motion papers set forth?
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1. A FIND CJ extraordinary ground.
2. An affidavit of merit demonstrating a probability of success for the P 3. The amount demanded by the P exceeds all counterclaims that could be asserted by the D 4. Whether any other PRs have been previously requested or obtained by P. |
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What if the order of attachment is obtained ex parte?
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then the P must obtain from the court, an order to show cause to confirm the order of attachment which must be signed by a judge AND SERVED on the D, no later than five days after D’s property was seized (ten days if the D is an out of state corp. or a nondomicile).
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What is a condition to obtaining an OOA?
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the P must post a bond, because if the court ultimately determines that the P was not entitled to the order, or the D prevails and not the P in the underlying action, then liability for the wrongful attachment is absolute, including the D’s attorney’s fees attributable to the wrongful attachment, and the P’s liability can exceed the value of the bond/undertaking.
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What do ct's do prior to judgment?
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courts usually appoint receivers prior to judgment, where the P has made a clear showing of the necessity of conserving property involved in an equitable action, where there is a clear danger of waste, mismanagement or disspeation of the subject matter of lawsuit for example
1. In actions to dissolve a corp where there is risk of fraud or insolvency if a receiver is not appointed 2. In foreclosure actions of commercial mortgages |
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What must be taking into account for PR?
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Due Process
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What msut be done before the court permits the use of LIAR?
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it must ensure that due process is satisfied by a COP
C-showing by clear and convincing evidence that P is likely to succeed in action and is entitled to provisional remedy requested because of existing extraordinary circumstances O-a judge cannot issue the order unless it determines the P’s likelihood of success and P-an immediate post serizure hearing is consistutionally required if courts order is obtained exparte (5 or ten days is immediate). |
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What is not subject to cop?
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a notice of pendency is not subject to cop, because it merely provides others with notice that an action is pending against the real property. The D does not actually seize the D’s realty and the D is not deprived of its use or possession.
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What else in addition to LIAR, also provides for a prejudgment order of seizure in a replevin action?
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CPLR 71
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What can the P do in a replevin action?
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The P in a replevin action can seek a court order directing the sheriff to seize the chattel and to turn it over to the P for safekeeping during the lawsuit.
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What is required to obtain a replevin order?
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a bond is required and it must be in the amount of twice the value of the chattel.
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What happens if the replevin order was granted ex parte?
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within five days of seizure of the chattel, the P must obtain an order to show cause, signed by the judge, and it must be served on the defendant in five days.
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What can be done instead of suing for replevin?
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a P can sue for conversion but the measure of damages in conversion is the value of the good on the date it was converted. Both claims can be asserted in the same complaint, but the P must elect just one remedy before the issue is submitted to the jury.
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What does venue refer to?
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Venue refers to the county in Ny where the P has chosen to commence the lawsuit. The basis for the P’s choice of venue should be set forth on the face of the summons.
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What happens if the P places venue in an improper county?
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the D cannot timely move to dismiss the P’s cause of action, because in NY practice venue is NOT jurisdictional.
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How is venue chosen?
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venue is chosen according to the type of action involved (TLC), it can either be
T-transitory action L-local action C-action to recover a chattel (replevin) |
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What does local action involve?
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disputes of ownership, use or possession of real property. Venue is proper in any county where the real property is located. The residence of the P or D is not considered in choosing venue in a local action. Examples of local actions are WASP MEN, but a lis pendens cannot be filed in a nuisance action, or in a tenants action to regain possession of a leasehold, even though these actions may affect the D’s use or possession of the realty.
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What is proper venue for a replevin action?
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in a replevin action venue is properly placed either in the county where
1. Any party resides 2. The county where the chattel is located when the action is commenced. |
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What are transitory actions?
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Transitory actions are any action that is not local or replevin. Venue is placed where a defendant or plaintiff resides. But if no NY resident is involved in a transitory action, then the action can be commenced in any county in NY state. However, where the P and D are both not residents, then a motion to dismiss based on forum non convinence should be considered.
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What is the venue for a court appointed fiduciary?
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court appointed fiduciary has dual residences for venue purposes. The fiduciary is considered the resident of the state of the county where the court appoint the fiduciary or the county where the fiduciary resides.
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What is the residence for a NY corp? or one licensed to do business in NY?
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the sole residence for a NY corporation or a sister state corporation licensed to do business in NY is the county of residence designated in the certificate of incorporation filed with the secretary of state.
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Where is venue in a suit against a municipality?
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venue in an action against a municipality is won in the county where the municipality is located or where the city of NY is sued, it is the county where the P’s cause of action arose, but if it arose outside the city of NY, then venue is proper in NY county (manhattan)
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What is venue in a consumer credit transaction?
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where a creditor provides money, property, or services on credit, for a consumer’s personal, family, or household purposes. RULE-when a creditor sues a consumer
1. The summons most boldly display the words CONSUMER CREDIT TRANSACTION 2. Venue must be placed by the creditor either where the consumer resides or where the consumer credit transaction occurred. RULE-a court shall not accept any CCT papers for filing if venue have been improperly placed by the creditor. |
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Once P has chosen venue what are the grounds to change the venue?
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those grounds are found in a BIN
B-bad venue. RULE-where the P has chosen a bad venue, the Defendant can change venue to a proper county “as of right” (court has no discretion) but only if D first makes a written demand on the P to change the venue to a proper county and this demand must be served with or before the D’s answer. I-Fair and impartial trial cannot be had in the proper county. Here the court is given broad discretion. N-motion to change venue for the convienence of necessary witnesses. Here the court has broad discretion. To prevail in this motion, the motion party must set forth the willingness of the witnesses to testify, the substance of the witnesses’s testimony and show to the court how the witnesses will be inconvinenced by the current venue. NYAA 175-177 |
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What if D fails to follow the procedure to change venue?
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a D’s failure to follow this procedure waives the D’s right to change venue as of right and the motion is now addressed to the court’s discretion unless misleading statements were made on the P’s summons as to the basis to the P choosing venue, NYAA pg. 195, and 197-198
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What witnesses are generally not considered for venue change?
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1. Expert witnesses
2. Parties, family members, or employees of a party, 3. A witness who lives outside the state |
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What's the difference btwn the rules for convenience and FNC?
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Changing venue speaks of changing the place of trial, from one county in NY to another NY county. FNC speaks of changing the forum from within NY state to a court OUTSIDE NY.
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What can a K do with venue?
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It can stipulate the venue in the K.
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Can parties change venue w/o ct?
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the parties can consent to change venue without obtaining a court order.
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What must happen w/ every motion, pleading or document?
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must be filed with a NY court or served on another party, must be signed by an attorney, and that signature certifies to the court, that to the best of the lawyer’s knowledge, that was formed after a reasonable inquiry, that the contents of the filed document are not frivolous.
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What is frivolous conduct?
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Friviolous conduct is
1. Knowlingly making a false statement 2. Any conduct taken preliminarily to delay the litigation to harass an opposing party. Asserting a legal argument that is completely without any merit and which cannot be supported by a good faith argument for modification or reversal of the existing law. |
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What disciplinary actions are possible for frivolous acts?
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the court can impose punitive sanctions on a party, attorney, or both for frivolous conduct, but it must be in a detailed written order after giving the attorney and the client an opportunity to be heard. The sanction cannot exceed 10k for each frivolous incident.
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Is there a limit on compensation for non punitive sanction?
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there is no 10k limitation on compensatory, not punitive sanctions, to compensate the other party for attorney fees that were spent to oppose the frivolous conduct.
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What if the legal fees are above $3K?
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Where the legal fee to be charged to the client is 3000 or more, then at the outset of the representation, the lawyer must provide the client with an engagement letter unless the lawyers services are the same kind previously rendered and paid for by the client, then an engagement letter is not required.
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What must the engagement letter explain?
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1. The scope of the legal services to be performed
2. The lawyer’s hourly fees and expenses 3. The billing cycle 4. The approximate time the lawyer will spend on the matter 5. Advising the client of the clients right to arbitrate any fee dispute with the attorney between 1,000 -50,000 dollars. |
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What if the lawyer doesn't provide an engagement letter?
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A failure to provide an engagement letter will not automatically forfeit an attorney;s right to sue for a legal fee as it would in a matrimonial action, instead, that lawyer forfeits the right to sue for breach of K, and is limited to a suit in quasi contract, to recover quantam merit for the fair market value of the lawyer’s service which will be decided by the court, NYAA 13-14. A lawyer’s failure to provide this letter is also an ethical violation under NY new model rules of professional conduct.
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What can't be plead in a NY personal injury or wrongful death case?
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, a P can no longer plead a specific amount of damages in the complaint. It simply has to allege that the damages sought by the P exceeds the jurisdictional amounts of the lower courts.
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What can an atty do in closing statements in a personal injury or wrongful death suit?
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in such an action in the closing statements to the jury, counsel can suggest a specific amount for the jury to award. But the opposing counsel can then ask the court to instruct the jury
1. The dollar amount recommended is not evidence and should not be considered as evidence 2. The amount of damages is solely to be decided by the jury. |
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What does CPLR 3013 require?
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requires that only a short and plain statement is required in the pleading to give the other side notice of the P’s cause of action. Usually evidentiary facts do not have to be pleaded.
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What prevents claims alleging fraud, defamation, serious injury, arising from a motor vehicle accident, or in divorce actions from being dismissed.
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these claims must set forth the particular facts in detail, otherwise the court will dismiss the P’s complaint under 3211(a)(7)
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How are omissions or defects in pleadings corrected?
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omissions or defects in pleadings are easily corrected by motion because court permission to amend or supplement a pleading, “shall be freely granted at any time, unless the amendment is
1. Patently improper or insufficient as a matter of law 2. Prejudice will directly result from the P’s delay in seeking the amendment Query-8 months after the D served an answer, can the D make a motion to assert a valid SPARERIBS defense in her answer? Yes, because mere lateness is not a barrier to amending a pleading, instead, it must be lateness coupled with substantial prejudice, directly resulting from the delay. |
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How often can a pleading be amended as of right?
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Every pleading can be amended once as of right WITHOUT having to go to court. It can be used to correct errors or omissions, to add new causes of action or defenses, or even to add a new party, within
1. 20 days after pleading was served 2. At any time before the period, 20, 30, or 40 days, for responding to that pleading expires. 3. Within 20 days after the service of pleading responding to the pleading sought to be amended. |
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What if the pleading does not require a response?
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D’s answer that does not contain a counterclaim, then the D’s time to amend as of right is just 20 days from service of the answer.
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PROBLEM-P sued D, D moved to dismiss based on the SOL and for the P’s failure to join a necessary party. The court denied the motion, and D served an answer within ten days. P then served D “as of right” with an amended complaint within 20 days from service of D’s answer. D then served a new answer to P’s amended complaint and it included the affirmative defense of lack of MOP.
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The COA said it was too late because the MOP objection should have been raised in D’s earlier motion to dismiss and because it was not, it was waived. (ASCAM)
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What is another way a D can waive the MOP jurisdictional objection and consent to jur.?
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Serve an answer without raising a MOP defect as an affirmative defense.
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What is the difference between an amended pleading and a supplemental pleading?
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A supplemental pleading adds a cause of action that arose subsequent to the date that the pleading was served.
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How can a pleading can be supplemented?
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only by stipulation or by court order. There is no such thing as supplementing a pleading “as of right”
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What is the complaint?
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the complaint is the first pleading served. It can assert ANY related or unrelated causes of action against the defendant. The plaintiff can plead different claims in consistently, alternativelty, or even hypothecially, for example, in one complaint pleading breach of k and a second claim for quasi contract.
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What is the answer?
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the answer to the complaint is the second pleading served by the defendant in response to the P’s complaint. It can contain affirmative defenses as well as ANY related or unrelated counterclaims. A P does not respond to D’s answer unless it contains a counterclaim, which must be responded to within 20 days (25 days if by mail). A P does not respond to affirmative defenses without leave of court. If the defendant’s affirmative defense lacks merit, then the remedy is to move to dismiss is as a matter of law, under 3211(b).
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What if the D serves an answer, asserting the affirmative defense of MOP, but the answer also contains an unrelated counterclaim against P?
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then the D has impliedly waived the MOP objection in that jur. (DIAL DC/ASCAM) NYAA pg. 67
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What are cross-claims?
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cross claims are asserted when a P sues multiple defendants. A cross claim contains ANY related or unrelated claims that one defendant has against another named defendant. A cross claim does not have to be answered unless it expressly requests an answer. All other pleadings contain claims (the complaint, the counterclaim in answer, impleader or interpleader complaint) must be answered and any allegations in those pleadings that are specifically denied are deemed admitted.
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When are there no jury trials?
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there are no civil jury trials for equitable claims only for legal claims seeking money damages. An exception to this rule is a claim for replevin, which is a legal action, and the P is entitled to a jury trial.
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What vote is required in a NY civil jury?
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5 out of 6
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What if the P joins related, equitable, and legal claims (both claims arose out of the same transaction)?
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then this waives the P’s right to demand a jury trial on the legal claim but it does not waive the defendant’s right to waive a jury trial on the legal claim. But the defendant’s jury demand must be made within 15 days from when P served notice of issue (20 days if notice of issue was served by mail).
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What if if the P joins unrelated legal and equitable claims?
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the right to a jury is not waived on the legal claim. The P demands a jury trial in the notice of issue which is served with a statement of readiness after all pre-trial discovery has been completed and case is placed on trial calendar.
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When is it against NY’s public policy to waive a jury trial?
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in a suit by a tenant against the landlord for negligence by the landlord, when the P is seeking to recover property damage or for personal injury.
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What is a basis for an automatic new trial?
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even though each juror signs the verdict sheet, the court must grant a party’s post verdict request to have the jury polled in open court, and the courts denial of this request is a basis for automatic new trial (no harmless error).
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What is intervention?
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intervention speaks of a non party who wishes to become a party to a lawsuit but where no one has named her as a party. Intervention is permitted only by court order either “as of right” or “by permission”.
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When does intervention of right arise?
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1. When it is conferred by statute for example, the new York state attorney general has the right to intervene in any law suit challenging a NY state statute, and he must be given notice to intervene. Failure to give this notice prohibits the court from deciding the constitutional issue. The same rule applies whenever a local law is challenged.
RULE-whenever the constitutionality of any statute is attacked (usually in a declaratory judgment action) then the challenger must overcome the strong presumption of constitutionality by proof beyond a reasonable doubt. 2. When an intervening party’s interest are not being adequately protected by a lawsuit and she may be bound by that lawsuit’s judgment (res judicata). For example, a class action or corporate derivative action. 3. The judgment may adversely affect the intervening party by distributing property determining title, or determining a claim for damages, in which the intervening party has an interest. For example, health and disability insurance companies have been attempting to intervene in their insured personal injury action, to recover the amount paid to the injured plaintiff, under an insurance policy, but this motion to intervene has not been successful in most cases. (See the collateral source rule lecture 5). |
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What is intervention by permission?
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intervention by permission arises where the intervening party has a cause of action against a party in a pending lawsuit and both claims involve a common question of law or fact and intervention will not unduly delay the pending proceeding or prejudice the right of one of the parties. Example-H sued D for personal injuries, W sought to intervene to assert her loss of consortium cause of action. The court granted W’s motion because even though the claims were different, they both involve a common question of fact (D’s negligence).
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