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63 Cards in this Set
- Front
- Back
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What are the two types of cases that the NY supreme court has exclusive jurisdiction over?
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1. Marital Status Cases
2. CPLR Art. 78 Proceeding |
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What is the statute of limitations for a personal injury tort?
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3 years
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What is the SOL for a general contract claim?
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6 years
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What is the SOL for an intentional tort?
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1 year
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What is the statute of limitations for defamation?
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1 year
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What is the SOL for an action for replevin?
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3 years
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What is the statute of limitations for Medical Malpractice?
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2.5 years running from date of injury
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What is the SOL for foreign object in medical malpractice?
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2.5 years from the date of operation or 1 year from date of discovery
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What is the SOL for learned professionals?
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3 years
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What is the SOL for actions against municipalities?
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1 year and 90 days from date of injury
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What is the SOL for negligent and strict products liability?
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3 years running from date of injury against all those in the products chain
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What is the SOL for a breach of warranty claim under the UCC?
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4 years.
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What is the SOL for a claim for contribution r indemnity?
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6 years running from the paying of the actual judgment.
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What is the SOL for an action based on a Toxic Substance exposure?
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3 years running from the date of discovery or when the P should have discovered the injury with due diligence.
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What is the toll for D's absence from NY?
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1. If D s not in NY when the action accrues then t doesn't begin until D is in NY OR
2. If D was in NY at time of accrual but leaves for 4 continuous months, then toll applies to the entire action |
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What is the toll for legal disability?
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1. P gets greater or 3 years or SOL of the SOL was less than 3 years.
2. P gets 3 years if SOL was more than 3 years. 3. 10 year rule applies. |
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What is the SOL for survival claim?
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1 year or time left on SOL if it would have been timely at the time of death
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What is the SOL for a wrongful death claim?
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2 years from time of death
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If the D dies, how much time is added to the SOL?
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18 months
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What is the 6 month grace period rule?
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Gives P 6 months to refile when P's case has been dismissed but was initially commenced in a timely manner
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Is unauthorized service of process a harmless error?
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No. It is grounds for dismissal.
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What constitutes "doing business" in NY"
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D has agents in NY working on a 'continuous, regular and systematic" basis.
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Name 4 categories of long arm jurisdiction.
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1. Transaction of business in NY
2. Contract to supply goods and services in NY 3. Tortious act in NY 4. Tortious act outside of NY (with minimum contacts) |
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Name 3 elements for minimum contacts for tort liability in NY
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1. D does or should reasonably expect consequenses in NY AND
2. Derives substantial revenue from interstate/international commerce 3. The commerce purposely includes NY |
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In an action for divorce AND financial support, what must be true for the court to have jurisdiction over the parties?
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1. NY must have been matrimonial domicile before separation
2. D abandoned P in NY 3. D's money obligation accrued under a K executed in NY 4. D's money obligation accrued under the laws of NY |
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In an action for just divorce, what must be true for the SC to have jurisdiction?
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P must be domiciled in NY.
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What are the durational residency requirements for a marital action brought in NY
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1. Both parties residents of NY at time of action and grounds arose in NY
2. 1 year residence in NY and substantial marital action took place in NY 3. Either party resident of NY for 2 years before action |
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Where is venue proper?
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1. Real estate - county where property located
2. Other actions - where one of the parties reside when action commenced |
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How much time does a D have to file an answer where he has been served personally?
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20 days
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How much time does a D have to file and answer where he has been served by "first class mail plus acknowledgment?"
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20 days
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How much time does a D generally have to file an answer?
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30 days
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What are the 7 grounds for a CPLR 3211 Motion to dismiss? (DOWNFAL)
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1. Documentary Evidence as defense
2. Other pending action 3. Want of capacity 4. Non-joinder of necessary party 5. Failure to state a claim 6. Affirmative Defenses 7. Lack of Jurisdiction |
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What are the 9 affirmative defenses that can lead to CPLR 3211 motion to dismiss? (SPARERIBS)
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1. Statute of limitations
2. Payment 3. Arbitration Award 4. Release 5. Estoppel 6. Res Judicata 7. Infancy of D 8. Bankruptcy Discharge 9. Statute of Frauds |
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How long do the parties have to amend their pleadings as a matter of right?
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20 days
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When can the defendant implead?
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Anytime after service of answer.
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What is the SOL for a plaintiff to amend pleadings to include an impleaded third party plaintiff?
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Anytime as long as ...
1. Based on the same T/O and 2. P's claim against TPD would have been timely on the date of impleader |
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Define indemnity
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Allows D to shift 100% of its responsibility to another party.
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When is indemnity implied in law?
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Products liability-(retailer/manufacturer)
Vicarious liability-employer/employee |
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Define Contribution
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Sharing of loss among multiple tortfeasors who were all actual participants in the tort.
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Under NY law contribution is allowed for all actions including _________.
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Intentional Torts
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In an action for contribution, how much can a defendant recover from another tortfeasor in a equal shares jurisdiction?
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1/3 from each of the other tortfeasors regardless of how must the D was at fault
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In an action for contribution, how much can a D recover from the other tortfeasors in the majority of states?
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The actual percentage of fault from the other tortfeasors
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What can P recover from other tortfeasors after having settled with one or more tortfeasors?
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P can still recover up to the amount of the judgment from the other tortfeasors.
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D's settlement with the P extinguishes P's claim against D but also _______.
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D's contribution claim against other tortfeasors but not indemnity claims.
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What is the CPLR article 16 rule?
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Defendant with %50 or less in fault cannot be compelled to pay more than their share of P's non-economic damages.
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What are 3 exceptions to CPLR article 16?
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1. Tortfeasors that acted with reckless disregard for the safety of others
2. Tortfeasors who released a hazardous substance into the environment 3. Drivers and owners of motor vehicles other than police and fire vehicles |
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Define motion for summary judgment.
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Movant contends that ...
1. There is no genuine issue of material Fact 2. They are entitled to judgment as a matter of law |
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When can a party move for summary judgment?
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1. After the answer but
2. within 120 days after notice of isssue |
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How can a CPLR 3211 motion for failure to state a claim be converted into a motion to dismiss?
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1. At least one party must submit affidavits with Motion to dismiss
2. Judge gives notice to parties so they can give additional evidence |
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A plaintiff can move for summary judgment rather than serve a complaint, True/False?
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True.
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Name 6 provisional remedies.
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1. Notice of pendancy
2. Seizure of Chattels 3. Attachment 4. Preliminary Injunction 5. Temporary Restraining Order 6. Temporary Receivership |
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What is a temporary receivership?
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Person is appointed by the court to manage property because there is a risk that D will destroy the property while action is pending.
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What is a notice of pendancy?
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Notifies potential buyers of real property that P has a superior claim to it.
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How long is a notice of pendancy valid and when must the subsequent suit be filed?
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3 years after filing and within 30 of filing notice.
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What must P show to obtain seizure of chattel?
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1. Threat of immediate loss of chattel
2. Must make follow-up motion within 5 days |
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What kind of motion is needed for a preliminary injunction?
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Motion on notice.
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What must the P show to obtain a preliminary injunction?
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1. Irreparable harm
2. Likelihood of success on the merits 3. Must get an undertaking |
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What are 5 threshold issues to avoid arbitration?
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1. Did the parties agree to arbitrate?
2. Is the dispute within the scope of the arbitration clause? 3. Is the arbitration clause valid? 4. Was there an unmet express condition precedent to arbitration 5. Statute of limitations |
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What are the 4 types of article 78 proceedings?
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1. Mandamus to compel
2. Mandamus to review 3. Prohibition 4. Certiorari |
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What is Mandamus to review?
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Petition to review any administrative act not covered by the other article 78 measures
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What is petition for mandamus to compel?
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Petition to compel performance of an act required by law without discretion
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What is a petition or prohibition?
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Petition to stop a judicial officer from exercising power that is beyond its jurisdiction.
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What is a petition for certiorari?
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Petition to challenge the "trial type" proceeding held by an administrative agency
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