Ny - Motion Practice - Mnemonics

Front 1

Dismiss the plaintiff's complaint with 'SPARE RIBS'

Back 1

o 3211a5 motion to dismiss lists 9 Grounds which can easily be resolved by the court. These grounds SPARE RIBS can be asserted in motion to dismiss and/or in the Defendant’s answer as affirmative defenses.
 Statute of limitations
 Payment
 Arbitration & award – claim decided by an arbitrator already
 Release given by plaintiff to defendant – either in signed writing or in open court
 Estoppel collateral – issue preclusion
 Res adjudicata – claim preclusion
 Infant/incompetent
 Bankruptcy – D’s claim was discharged in bankruptcy – no longer liable for debt
 Statute of Frauds – ct will determine this issue soley on documents submitted
• Q: If P’s k action is dismissed on SoF grounds, can P thereafter who detrimentally relied on the unenforceable oral k, commence a second action in quasi-k for quantum meruit for D’s unjust enrichment?
• A: NO! Because of Claim Preclusion (Res Adjudicata).
o R: Even though P has a good claim for quasi-k, under the tran

Front 2

summary judgment has 'LIPS' to kiss

Back 2

• When thinking of Summary Judgment, think LIPS
o (1) Law - the motion can be decided as a matter of Law
o (2) Issues - no Issues of material fact to be litigated except damages or a 3211a issue
o (3) Partial summary judgment - the court can grant Partial summary judgment
o (4) Search - court can Search the record only for issues raised in the motion papers