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31 Cards in this Set
- Front
- Back
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Can mediation convrsations be disclosed in litigation?
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No
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Grounds for Art. 78 proceeding
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Mandamus to Compel (e.g. ballot)
Prohibition Certiorari Mandamus to review |
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Where are money damages claims against the state of NY brought?
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Court of Claims
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What commences an action?
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Filing (notice + complaint or notice + process)
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When is S/L not tolled for D's absence
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When P has personal jurisdiction
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When is S/L tolled for D's absence?
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When D's not in NY when S/L starts to run, and when D leaves for at least 4 months
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Rules for tolling S/L for infancy or disability
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P can sue through competent adult within regular S/L, or wait until disability/infancy ends, in which case he gets:
S/L > 3 years: longer of 3 years from end of disability or time remaining on regular S/L S/L < 3 years: statutory period measured from end of disability 10 year cap on both, running from date of injury |
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Elements of personal jurisdiction
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Proper commencement, servis and basis
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How long does P have to serve process after it's filed?
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120 days
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What must notice include?
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Statement of nature of motion, type of relief sought, and if money (but not for personal injury), amount of money sought
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Who can serve process?
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Anyone who's 18 and not a party
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What does "general" personal jurisdiction mean?
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Doesn't matter where claim arose
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Three types of general personal jurisdiction
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Presence in NY
Doing business in NY Domicile in NY |
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3 types of specific personal jurisdiction
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Long-arm
Non-resident motorists Consent |
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Requirements for "doing business" in NY
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Corp is domestic or licensed in NY, OR
Foreign corporation that, at time action is commenced, has empoyees or agents in NY engaging in commercial activity on a regular, systematic and ongoing basis |
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Is Doing Business general or specific jurisdiction?
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General
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Domicile definition
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Intends to remain indefinitely, can have only 1
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Bases of long-arm jurisdiction
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Claim arose from x-action of business in NY
Claim arose from K x-acted anywhere under which D supplies goods or servides in NY CLaim arose form D's tortious conduct in NY Claim arose from D's tortious conduct outside of NY that caused injury in NY IF (i) D regularly solicits business or engages in persistent course of conduct in NY, (ii) D intentionally derives substantial revenue from goods used or services rendered in NY or (iii) D should reasonably expect his acts to have consequences in NY Claim arose form D's ownership, use or possession of REAL PROPERTY in NY |
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Test for whether assertion of jurisdiction will satisfy DP
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DP satisfied if D's conduct is so purposefully directed toward NY that D reasonably should have anticipated being sued on that claim in NY
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Why use Non-Resident Motorists Satute?
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Gives jurisdiction over owners who gave permission to drive in NY (vicarious liability)
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What happens if D doesn't raise affirmative defenses in answer?
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He waives them
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Grounds for motion to dismiss
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DOWNFALL
Documentary evidence Other action b/w same parties Want of capacity Non-joinder of necessary party Failure to state CoA Affirmative defenses Lack of personal jurisdiction Lack of subject-matter jurisdiction |
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What defenses are never waived?
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Non-joinder of necessary party
Failure to state CoA Lack of subject matter jurisdiction |
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When can a party implead?
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Anytime after D serves answer to complaint
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When can third party sue employer for contribution if P has collected worker's comp?
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When P has suffered a grave injury
MBE: no exception; third party never has contribution right from P's employer |
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What is excessive recovery rule?
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Any judgment for P against non-settling tortfeasor must be reduced by LARGER of (i) amount of settlement or (ii) settling tortfeasor's equitable share of fault
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What can a party who settles be sued and sue for?
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Indemnity, but NOT for contribution
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What is CPLR Art. 16?
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In personal injury, when joint tortfeasor is 50% or less at fault, the tortfeasor can only be required to pay HIS share of NON-economic damages (pain and suffering, mental anguish, loss of consortium)
Doesn't apply to intentional or reckless torts |
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When is right to a jury available in civil actions?
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Action seeking solely money damages
Replevin Claim to real property Annulment of marriage Divorce other than no-fault |
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How big is civil jury, what's required to convict?
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6, and 5/6
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NY approach to res judicata
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Transactional approach: when claim against particular D has been brought to final judgment on the merits, all other claims by P against that D are barred if they arise out of the same transaction or occurence
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