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39 Cards in this Set

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Subject Matter Jurisdiction-
Required for the court to hear and adjudicate the action. The court in which the action is commenced is called the court of original subject matter jurisdiction.
Subject matter jurisdiction- General jurisdiction
Has the power to hear any type of action. The Supreme Court is the only trial court in NY with general jurisdiction. Supreme Court has unlimited jurisdiction as far as money damages. It also has full equitable jurisdiction.
EXCEPTIONS: (1) cases as to which federal law confers exclusive jurisdiction on federal courts- copyright, patent, bankruptcy. (2) Claims for money damages in tort or k against the state.
forum non conveniens
the non-residency and the lack of a relationship of the claim to NY. Does not deprive court of subject matter jurisdiction, but may in its discretion, upon motion, dismiss when it lacks a substantial nexus to NY. Cannot be sua sponte.
Court of claims
Suits in k or tort against the state. The ONLY defendant that can be in the court of claims is the state. Other D's must be sued seperately.
A county is a government subdivision of the state- cannot be sued in court of claims.
Supreme Court- exclusive subject matter jurisdiction
(1) Matrimonial actions- asked to adjudicate marital status
(2) CPLR Article 78 proceeding
(3) Declaratory judgment action- judicial determination of rights/obligations before the party engages in the conduct
Subject matter jurisdiction of county courts
$25,000.
Statute of Limitations
Begins to run when the cause of action accrues. The action must be commenced before the SOL runs. To commute the SOL, exclude the date the triggering event occurred, begin counting next day.
Commencing a cause of action
filing process. Either summons and complaint or summons with notice. Must be filed with the clerk of the court.
If the last day for commencing an action falls on a Saturday, Sunday or public holiday, P gets until the end of the next business day to perform the required act.
SOL- Medical Malpractice.
Applies to doctors, dentists, podiatrists, nurses, and hospitals. When the suit is against the hospital for vicarious liability they get 2.5 years. - but not if the suit is that the hospital was negligent.
2.5 years from the date of accrual- the date of malpractice.
EXCEPT: (1) Continuous treatment- 2.5 years from the end of continuous treatment if the treatment is for the same condition that gave rise to the Med. Mal. (2) Foreign object rule- P gets the longer of: 2.5 years from the date of the operation, or 1 year from the date P discovers the presence of the object, or reasonably should have discovered the object with reasonable diligence.
Foreign object- something doctor did not intend to leave. NOT chemical substance, prostehetic device, fixation device.
SOL- Professional Malpractice
Architect, Engineer, accountant, attorney- who are members of a learned profession, but NOT insurance brokers, security analyst, plumbers.
Exclusive SOL of 3 years, whether tort or k. Beware of disguising it as a claim for breach of k. runs from the termination of services in which malpractice occurred.
Subject to continuous representation- like continuous treatment.
SOL- personal injury
3 years from the date of the injury.
Special procedure for personal injury against architect or engineer when action is brought more than 10 years after the building was completed.
(1) must serve notice of claim on architect/engineer at least 90 days before suit
(2) P may obtain pre action discovery during the 90 days.
(3) If D moves for summary judgment, burden will be on P to make an immediate showing that there is a substantial basis to believe that D's negligence was the proximate cause of the injuries.
SOL- Municipal Tort Liability
In an action for personal injury or property damage against a government subdivision SOL is 1 year and 90 days.
Condition precedent- for tort action need notice of claim within 90 days from accident.If they dont, can be dismissed for failure to state a cause of action.
Must plead compliance with the notice of claim requirement. Court has discretion to grant a motion to serve a late notice if the municipal entity will not be prejudiced,- had actual knowledge of facts within 90 days of the accident.
SOL- products liability
Negligence- 3 years from date of injury as against all D's in the chain of distribution.
Strict products liability- 3 years from date of injury as against all D's.
Breach of warranty- governed by UCC. 4 years from when the particular D, against whom warranty claim is asserted, made its delivery of the product- look at each D separately.
SOL- indemnity and contribution
6 years from the date date of actual payment of the judgment for which indemnity or contribution is being sought.
SOL- toxic torts
toxic substance- any inherently harmful toxin that has latent or slow developing effects (DES, asbestos)
3 year SOL- begins to run on the earlier of: (A) the discovery of the injury, or (B) the date the injury should have been discovered with reasonable diligence.
**distinguish from med mal.
SOL- Tolls for D's absence
If D is not in NY when the cause of action accrues, SOL does not begin to run until D comes to NY.

If D in in NY but then leaves, and is continuously absent for 4 months, SOL toll applies to the entire period of absence.

UNLESS (as to both)- not available if P has a basis of personal jurisdiction over absent D such that process could be properly served on D outside of NY.
SOL- toll for infancy/insanity
may sue within SOL with a competent adult representative.
Tolled until disability ends- until 18 or not insane. When the toll ends:
--If the SOL was 3 years or more: P gets the longer of (A) 3 years from end of disability, or (B) time remaining on statutory period measured from original date of accrual.
--If original SOL was less than 3 years: statutory period measured from the date the disability ends.
EXCEPT: infancy toll in med mal must be commenced no later than 10 years from date of accrual. Claims of insane P's, regardless of nature of cause of action, must be brought within 10 years from the date of accrual if relying on insanity toll.
Insane- overall inability to function in society.
survival claim
any cause of action P herself could have brought if she were still alive. Can get pain and suffering for injuries suffered before death.
If P dies before SOL expires, representative gets the rime remaining or 1 year from P's death, whichever is longer.
wrongful death
cause of action is a tort for the pecuniary damages of decedents statutory distributees. Punitive damages are recoverable, but not emotion suffering of distributee ors decedents personal pain and suffering.
Brought by executor or administrator.
SOL 2 years from date of death. It must also be shown that D possessed a timely cause of action at the time of death.
SOL- death of a defendant
If a potential D dies before the SOL expires, 18 months are always added to the SOL.
SOL- 6 month grace period.
If NY cause of action timely commenced, and dismissed before trial, and SOL has either expired or has less than 6 months left. P gets 6 months from date of dismissal to re-file the same claim and serve process on the same D. EXCEPT
(1) If dismissal made on the merits
(2) if the dismissal was based on a voluntary discontinuance by the P.
(3) based on P's neglect to prosecute if it consisted of a general pattern of delay.
(4) if the dismissal is for lack of personal jurisdiction (not subject matter jurisdiction).
Borrowing Statute
If the cause of action arises outside NY.
-If P is a non-resident when the out of state claim arose, NY will apply SOL of state where claim arose if it is shorter than that of NY. NY will apply its own SOL if the state where the cause of action arose has a longer SOL.
-If P was a NY resident when the out of state claim arose: NY will always apply NY SOL.
commencing the cause of action
by filing process (summons and and complaint or summons with notice) with the clerk of the Court. In Supreme Court the clerk of the court is the county clerk, not the supreme court clerk.
Filing is valid for commencement provided process be served within 120 days of filing. Court has discretion upon P's motion to extend time for service if P demonstrates: good cause or interest of justice.
Challenging untimely service
D must make motion, if not waived.
Serving process
Summons and complaint- summons says they are being sued in a particular court. complaint is the pleading, which specifies the transaction/occurrence and spells out the essential elements.
summons with notice- notice must consist of (1) a brief statement of the nature of the action, (2) type of relief sought, (3) If they seek damages, the type of damages sought. EXCEPT- personal injury or wrongful death- neither the notice nor complaint may specify the amount of damages being sought.
naked summons
a summons with no compliant. Defect in personal jurisdiction, action subject to dismissal, provided D makes timely objection.
Methods of service- Basics
Person may be served by any person who is at least 18 provided they are not a party to the action.
Process may be served on any day of the week, EXCEPT: (1) sunday, (2) If D is a sabbath observer and P knows it, may not serve on saturday- innocent mistake ok.
**May be served on a holiday.
Defective service is grounds for dismissal. Must be statutorily prescribed way, actual notice not sufficient.
Each defendant in the action must be served with one set of papers each or the suit can be dismissed.
Serving a natural person
(1) personal delivery to D himself. Complete upon tender of delivery. If they refuse to accept can leave in vicinity.
(2) Leave and Mail- deliver process to a person of suitable age and discretion at D's actual dwelling place or actual place of business PLUS mail a copy to the last known residence or actual place of business. These steps must be done within 20 days of each other and 120 days from filing service. First class mail, doesnt matter which step happens first.
(3) Affixing and Mailing- taping/rubber band to door. Must affix to actual dwelling place or actual place of business PLUS mail a copy by regular mail to actual place of business or last known residence. Must be performed within 20 days of each other and 120 days from filing. **Process server must first exercise due diligence by (1) making an attempt to serve D directly and (2) to leave with a SAD person at home or place of business. Several attempts on different days of the week and at different times.
(4) Expedient Service- if other methods are not practicable, need a court order for this. Some reasonable alternative- serving a family member, insurance carrier, via e-mail etc. Assumes cannot find a business address or local address for D.
(5) Agent specifically designated by D to receive process- sometimes written into k.
Filing proof of service
for affix and mail and leave and mail- proof of service must be filed after two steps have been performed. Filing is necessary to make service complete.
Service is complete 10 days after proof of service is filed.
Consequence of delay of filing proof: postpones D's time to respond.
Does not have to be filed in 120 days.
serving infants
When D is an infant there name goes on summons- process must be served on: (1) a parent, (2) a guardian, (3) any person having legal custody, (4) if infant is married, can serve process on adult spouse w/ whom infant resides.
If infant is 14 or older, process must be served on an eligible adult AND the infant.
Serving the mentally incompetent
if the court has appointed a guardian, process must be served on the guardian AND the incapacitated person.
If mentally incompetent and no proceeding has been brought to appoint a guardian, D appointed in same manner as any other D.
Serving a natural person outside of NY
Same methods- NY's methods of service are controlling.
Who may serve? (1) any NY resident who is at least 18, (2) anyone authorized to serve process by laws where service is made, (3) any attorney licensed in the jurisdiction service is made.
Serving a corporation
(1) Personal delivery- to a corporate representative. (1) officer of the corp, (2) director, (3) designated agent, (4) managing agent--employee with supervisory authority.
If there is a basis for jurisdiction service can be made anywhere in the US.
(2) service on NY secretary of state- (A) domestic corp or foreign corp licensed to do business in NY- personally deliver 2 copies of process to secretary of state. (B) for an unlicensed foreign corp- personally deliver 1 copy of process to NY secretary of state PLUS P must mail one copy to corporation, certified mail return receipt requested.
Service by first class mail plus acknowledgement
Can be used for corporations or people- everyone except infants or insane.
Mail process by first class mail, enclose 2 copies of statutory waiver form plus prepaid return envelope addressed to sender.
Service is effective if D signs and returns one of the acknowledgement forms within 30 days of receiving it.
can be used whether D is in or outside NY.
If he does not return, must serve by another means. The D will become responsible for the cost of service.
Can still raise objections to jurisdiction in the answer or on motion, does not waive the objections.
Personal Jurisdiction
enables a judgment of money damages to enforced in full.
Personal Jurisdiction- general jurisdiction
Does not matter where the claim arose- (1) Presence in NY, (2) Doing business in NY, (3) Domicile in NY.
Personal jurisdiction- specific jurisdiction
Claim must be specific to D's NY activity or within terms of k.
(1) long arm jurisdiction, (2) non-resident motorist statute, (3) consent.
Personal Jurisdiction-
Presence in NY
personal delivery to D while D is physically present in NY.
Personal Jurisdiction- Doing Business in NY
A domestic corp, any claim, no matter where the claim arose. Same to foreign corps licensed to do business in NY. An unlicensed foreign corp is said to be present in NY only if it is doing business in NY.
Test- at the time the action is commenced, are the corporations employees or agents in NY engaging in a commercial activity for corp on a regular, systematic, ongoing process. *most signifiant factor- if corp has office or physical facility in NY w/ employees coming and going on regular systematic, and on going basis.
Mere sales of products does not constitute doing business. A corporate officers presence in NY is not enough to constitute doing business in NY.
try long arm statute first- if the action arose in NY.
If foreign corp is doing business in NY service can be made inside or outside.