Ny Practice 2013

Front 1

the court in which an action is commenced is called?

Back 1

The court of original subject matter jurisiction

Front 2

Courts of Original Subject Matter Jx:

- What are these?
- What does it mean to have General Jx?

Back 2

Court of Original SMJ = the court in which the action is COMMENCED

GENERAL Jx = the court has the power to hear ANY type of action

Front 3

which court has general subject matter jurisdiction in NY?

Back 3

Supreme Court is the only one.

there is one in every NY county

Front 4

what is the monetary jurisdition of the supreme court?

Back 4

unlimited

Front 5

Which couts have full equity jurisdiction?

Back 5

Supreme court

Front 6

supreme court subject matter jurisdiction residency requirement

Back 6

For purposes of SMJ, it is immaterial whether neither party in a case is a NY resident;

the Supreme Court has general power and can hear any type of action

Front 7

Forum Non-conveniens

Back 7

Despite that the non-residency of parties does not deprive a court of SMJ, the court has discretion, upon motion, to dismiss on grounds of forum non conveniens when the action lacks any substantial nexus to NY. Such motion must be made by Δ.

Front 8

Exceptions to supreme courts general jurisdiction

Back 8

i. Cases as to which federal law confers EXCLUSIVE jurisdiction on federal courts
(e.g. bankruptcy, patents, copyrights)

ii. Claims for money damages in TORT or CONTRACT against the State of New York....
.......such claims may be brought in the New York Court of Claims only

If Π injured by a state trooper, must sue state trooper personally in Supreme Court, and sue the state in the Court of Claims

Front 9

Actions the Supreme court has exclusive subject matter jurisdiction over

Back 9

1. Matrimonial action
2.CPLR Article 78 proceedings
3. Declaratory Judgement Action

Front 10

limited monetary jurisdiction of the county courts is

Back 10

$25,000

Front 11

limited monetary jurisdiction of the civil courts is

Back 11

$3,000

Front 12

New york hierarchy of courts

Back 12

1. Court of appeals - highest
2.Appellate Division 2nd
3.Supreme Court - Lowest

Front 13

Statue of limitations is what type of defense

Back 13

Affirmative, based on passage of time

Front 14

Date of Discovery?

Back 14

. New York does not use the date of discovery of injury/breach; the SOL runs from when the action accrues under law, even if Π is unaware of the injury/breach.

Front 15

An Infant injured in utero case S/L

Back 15

Under the substantive law, when an infant is injured in utero, the child has no cause of action unless the child is born alive, in which case, the S/L begins to run from the date of birth.

Front 16

How do you satisfy the S/L

Back 16

the action must be commenced no later than the last day of the prescribed period of limitations.

Front 17

Commencement

Back 17

consists of filing process (process = summons and complaint or summons with notice). The filing must be made with the clerk of the court on or before the last day of S/L.

Front 18

How to compute the S/L

Back 18

To compute S/L (and any other CPLR time period), exclude the day upon which the triggering event occurs and begin counting the next day (anniversary date).

Front 19

If exam says timely filed

Back 19

DONT ADDRESS SOL!

Front 20

Exceptions to the Med Mal S/L

Back 20

1. The Continuous Treatment Rule.
If a doctor continues to treat person after an operation for the exact same medical condition that gave rise to the malpractice, Π gets 2 ½ years from the end of the continuous treatment. Note that the condition must relate!


2. The Foreign Object Rule.
If a doctor was responsible for introducing a foreign object into Π’s body and leaving it behind, Π gets the longer of either
a. 2 ½ years from the date of operation; or
b. One year from that date Π discovers the presence of the object, or the date Π should have discovered the object with reasonable diligence.

Front 21

Who are "Other professionals" for S/L purposes

Back 21

Members of a learned profession e.g., architects, engineers, accountants, attorneys; NOT insurance brokers, securities analysts, plumbers, etc.

Front 22

NON-MEDICAL PROFESSIONALS

S/L for financial Loss

Back 22

Client’s cause of action (whether based on contract or tort) for malpractice against a non-medical professional for financial loss as an exclusive S/L of 3 years that runs from the termination of the particular services in which the malpractice occurred.

Front 23

Architect S/L

Back 23

3 Years from COMPLETION OF BUILDING NOT INJURY

Front 24

S/L for accountant/Attorney and when does it begin?

Back 24

3 years.
S/L runs from delivery of work product.

Note: Non-medical professions subject to the doctrine of “continuous representation,” which is similar to the continuous treatment doctrine applied to doctors

Front 25

Personal Injury/Arcitect S/L

Back 25

Any person who suffers BODILY INJURY (not financial loss) Π can sue tortfeasor for up to 3 YEARS from date of INJURY, REGARDLESS OF DATE OF COMPLETION
(e.g., building completed in 1990, collapses in 2010; Π can sue until 2013).

Front 26

Actions vs. ARCHITECTS/ ENGINEERS

Building Collapse + Bodily Injury -- when the action is brought more than TEN YEARS after the building was completed...

- THREE SPECIAL PROCEDURAL RULES?

Back 26

1) NOTICE OF CLAIM:
P must serve a NOTICE OF CLAIM on the architect or engineer at least 90 days before suit;

2) PRE-ACTION DISCOVERY
P may obtain PRE-ACTION DISCOVERY from the potential Δ during the 90 day waiting period; and

3) BURDEN OF PROOF:
After suit is commenced, if Δ moves for summary judgment, the burden will be on Π to make an immediate evidentiary showing that there is a “substantial basis” to believe that Δ’s negligence was the proximate cause of the injuries.

Front 27

Actions Against Municipal Subdivisions for PERSONAL INJURY/PROPERTY DAMAGE.
(county, city, town, school district, municipal hospital)

Back 27

the statute of limitations is 1 year plus 90 days from the date of the accident

1) Must file a notice of claim no later than 90 days from accident

2) after service of notice of claim, must wait 30 days

3) commence action with the 1 year and 90 days time period, and must PLEAD COMPLIANCE with notice of claim

Front 28

Products Liability

When do actions expire?

Back 28

1. Negligence/Strict Liability Claims:
will expire in 2011, three years from date of injury. (Applies to all Δ’s).


2. Breach of Warranty Claims: Four years from the date the particular defendant made its delivery of the product

Front 29

TOXIC TORTS {Products Liability}

- DEF: "Toxic Substance"
(For Purposes of SoL-- Products Liability)

- SoL?

Back 29

“Toxic Substance” – any inherently harmful toxin that has latent or slow-developing effects (e.g., DES, asbestos, insecticides, HIV)


S/L measured in a toxic substance-exposure case by using a 3 year S/L that begins to run on the earlier of
a. Discovery of the injury; or
b. The date the injury should have been discovered with reasonable diligence.

Front 30

SoL:

What happens when D isnt in NY when C/A accrues?

Back 30

S/L does not begin to run until Δ comes to NY.

BIG EXCEPTION: The toll for absence is not available if the P has a basis for Personal Jurisdiction over Δ such that process could be validly served over Δ
Ex: If a long-arm statute applies

NOTE: this exception almost always applies and P is RARELY entitled to an absence toll!

Front 31

SoL

What happens If Δ Is In New York When Cause of Action Accrues, but Δ Thereafter Leaves NY and is Continuously Absent for At Least 3 Months

Back 31

SoL is tolled for the ENTIRE period of absence—so long as DF is CONTINUOUSLY ABSENT for at least 4 months

BIG EXCEPTION: The toll for absence is not available if the P has a basis for Personal Jurisdiction over Δ such that process could be validly served over Δ
Ex: If a long-arm statute applies

NOTE: this exception almost always applies and P is RARELY entitled to an absence toll!

Front 32

Infants/Insane people may sue through...

Back 32

Infants (under 18yrs old) or Insane persons may sue within the regular SoL thru a COMPETENT ADULT representative—BUT—they also get the benefit of this toll

Front 33

Tolled SoL for Infants and insane...

RULE?

Back 33

If P is an INFANT or is INSANE at the time the C/A Accrues → SoL is Tolled UNTIL the Disability ENDS
• If Infant → until P reaches the age of 18
• If Insane → until P is no longer insane

Front 34

DEF: Insanity

(for purposes of tolling SoL)

Back 34

Any mental disorder that causes an overall inability to function in society

• P need NOT have gone thru a formal judicial proceeding (i.e had a guardian appointed)

Front 35

After disability (insanity/ infancy) ENDS -- how long do they have to sue?

Back 35

If Original SoL was 3+ YEARS → P gets whichever is LONGER of:
a) 3 years from the end of the disability; or
b) The time remaining on the statutory period as measured from the date of accrual.



If Original SoL was LESS than 3 Years…
When the legal disability ends → P gets Specified Statutory Period—measured from the date the disability ends

Front 36

EXCEPTIONS for tolling the SoL based on infancy/ insanity

Back 36

(1) MEDICAL MALPRACTICE CASES:
When relying on the toll for infancy, a claim for medical malpractice must be commenced no later than 10 years from the date of accrual


(2) TOLLS FOR INSANITY: 10 Year max
Claims of insane Ps—regardless of the C/A—have a max of 10 years from date of accrual when relying on Toll for Insanity

Front 37

Wrongful death C/A

SoL period?
C/A accrues when?

Back 37

2 years from the time of death...

BUT-- it must also be shown that decedent possessed a timely cause of action at the time of death.

Front 38

Survival Claim C/A

SoL?

Back 38

If P Dies Before SoL Expires → Estate Rep gets whichever is LONGER of:

(a) Time remaining on the applicable SoL- running from the date of accrual; OR

(b) 1 year from P’s death

Front 39

Death of Potential Defendants

SoL Rule?

Back 39

If a Potential Df dies AT ANY TIME before the SoL Expires...

18 MONTHS are ALWAYS ADDED to the relevant limitations period (regardless of whether P needs the extra time)

Front 40

4 types of prior dismissals as to which 6 month grace period is not applicable

Back 40

a. If dismissal was on the merits;

b. Voluntary discontinuance by Π;

c. Dismissal was based on Π’s neglect to prosecute consisting of a general pattern of delay; or

d. Dismissal based on a lack of personal jurisdiction

Front 41

Jurisdiction over the particular case.

Back 41

. In addition to subject matter jurisdiction, three additional jurisdictional elements must be satisfied in order for a court to render a valid judgment


i. Proper commencement of the action
ii. Proper service of the action
iii. Proper basis of jurisdiction over the person or property involved in the action.

Front 42

What is process

Back 42

summons and notice/summons and complaint

Front 43

Trouble serving p in 120 days what can you do?

Back 43

court has discretion, upon Π’s motion, to extend the time, provided that Π
i. Shows good cause (e.g., diligence); or
ii. The interests of justice warrant extension.

Front 44

D wants to challenge untimely service? what must he do?

Back 44

b. If Δ wants to challenge Π’s untimely service of process, Δ must preserve this defense and make a motion upon it. If Δ fails to raise the defense of untimely service, it is waived.

Front 45

steps on game day for proper service of process

Back 45

Do S/L Analysis, referencing filing of process; then 120 day analysis, to determine whether service of process proper

Front 46

Summons with Notice

Back 46

When the summons is not accompanied by a complaint, it must have sufficient “notice” inscribed on the face of the summons or on a one-page attachment. Notice must consist of
a. A brief statement of the nature of the action;
b. The type of relief being sought; and
c. If Π seeking damages, the amount must be specified, unless a personal injury or wrongful death action, where neither notice nor complaint may specific damages amounts.
i. Think of Notice as an abbreviated complaint.

Front 47

What happends if u file a naked summons (no complaint, or no notice)

Back 47

)? This is a defect in Personal Jurisdiction, which means that the action is subject to dismissal for this alone, provided that Δ timely objects. Same if Π serves a naked complaint/notice.

Front 48

Who may serve process?

Back 48

any person who is at least 18 years old provided the person is not a party to the action.

Front 49

Which days of the week may process be served?

Back 49

any day of the week except sunday. ii. If Δ is a Saturday-Sabbath observer and Π knows it, Π may not serve that Δ on Saturday. Innocent service on such a Δ is not a defect.

Front 50

service on Holidays

Back 50

YEs. if not sunday

Front 51

Is defective service grounds for dismissal

Back 51

Yes Sir. GOtta follow satatuory methods precisly

Front 52

Personal delivery service

Back 52

Service by personal delivery is “complete” upon process server’s tender of summons directly to Δ. (Δ’s response time is measured from date that service is complete

Front 53

What if D refuses PErsonal delivery of service?

Back 53

Process can be left in Δ’s immediate vicinity (e.g., at his feet, on his desk, etc).

Front 54

Leave and Mail

Back 54

Process server may deliver process to person of suitable age and discretion at Δ’s actual dwelling place or actual place of business PLUS mail a copy by regular mail to Δ at Δ’s actual place of business of Δ’s last known residence.

Front 55

LEave and Mail against more than 1 D

Back 55

If suit against more than one Δ, each Δ must be served with his own set of process

Front 56

Other Service rules

Back 56

1. The two service steps must be performed within 20 days of eachother, and both steps must take place within 120 days from filing process.
2. Delivery need not occur prior to the mailing.
3. Same location of delivery and mailing not required (e.g., deliver to business, send to home is OK).
4. Certified mail not required; Regular first class mail sufficient.
5. Person of suitable age and discretion need not be an adult; under caselaw, can be teenager, but if under 12, not suitable age and discretion.

Front 57

Whats proof of service?

Back 57

1. Proof of service is an affidavit by the process server describing the details of service (date, time, place, description of person served, etc).

Front 58

Whats the purpose of proof of service?

Back 58

it is a necessary step to make service complete. (Recall that Δ’s time to respond runs from date on which service is complete). Service is complete 10 days after proof of service filed.

Front 59

Consequnece of failure to file proof of service?

Back 59

failure to file proof of service NOT a jurisdictional defect; only consequence of Π’s delay in filing proof of service is that it postpones Δ’s time to respond.

Front 60

Does proof of service need to be within 120 days of two service steps?

Back 60

No. Although the two service steps must be completed within 120 days of service, filing proof of service need not be within 120 days.

Front 61

Expediant service

Back 61

: If the foregoing methods of service are not practicable, Π may make an ex parte motion to the court for an order allowing an improvised, expedient method (i.e., some reasonable alternative appropriate in the circumstances, like email, serving a liability insurer, publishing copy of complaint and summons in newspaper, etc).
1. Requires Court Order!

Front 62

Agent for recieving process

Back 62

in a written commercial contract, party expressly specifies agent upon whom service may be served in dispute arising from contract.

Front 63

Defendant is an Infant how may they be served/ who may recieve process?

Back 63

When Δ is an infant, Δ’s name goes on the summons but process must be served on any of the following adults:
1. A parent
2. A guardian
3. Any person having legal custody
4. If infant married, upon adult spouse with whom infant resides. Hmm.
a. Note: If infant over 14, process must be served on eligible adult AND the infant; 2 sets necessary

Front 64

Service on mentally incapacitated person

Back 64

when Δ is a mentally incapacitated person for whom the court has appointed a guardian, process must be served on the guardian AND the incapacitated person.
1. Note: If Δ is mentally incompetent but there has been no judicial proceeding for the appointment of a guardian, Δ is served in same manner as any other Δ; Court will later appoint a guardian ad litem.

Front 65

service outside NY

Back 65

1. : the same methods that are used to serve Δ within NY are used when Δ is located outside NY.

2.The following persons may serve process in other jurisdictions:
1. Any New York resident who is at least 18
2. Anyone authorized to serve process by the laws where the service is made
3. Any attorney licensed in the jurisdiction where service is made.


HUGE POINT: While out-of-state laws that determine who may serve process are controlling, the out-of-state rules that address methods of service are irrelevant → Use NY Methods!

Front 66

Service of corporation

Back 66

Two traditional methods


a. Personal Delivery to any one of the following corporate representatives:
i. An officer of the corporation;
ii. A director of the corporation (member of the Board);
iii. A designated agent;
iv. A managing agent (i.e., a corporate employee with supervisory responsibility)

Front 67

in which states can a officer of a corp be served?

Back 67

: If there is a basis for jurisdiction (see below) any one of the eligible corporate representatives may be served with process by personal delivery anywhere in the US.

Front 68

Leave and mail service on corporation?

Back 68

Leave-and-mail method not valid process method of service to corporation; personal delivery must be made into hands of corporation (e.g., giving process to Corp. receptionist, who hands it to president, then mailing copy

Front 69

Service on Secretary on state

Back 69

: For a domestic corporation (incorporated in NY) OR a foreign corporation authorized to do business in NY (licensed corporation), server may personally delivery two copies of process to the NY Secretary of State.
1. Secretary will then mail one copy to the address on file
2. Note: Service of process is complete upon delivery of process to Secretary of State, regardless of when Δ corp. receives it.

Front 70

General Jurisdiction(doesn't matter where claim arose)

Back 70

i. Presence in NY
ii. Doing Business in NY
iii. Domicile in NY

Front 71

Unlicensed Foreign Corporation Diong business in NY. [Bar Exam Favorite]

Back 71

An unlicensed foreign corporation is said to be “present” in NY is it is “doing business” in NY.

Front 72

DEF: Residence

Back 72

a place where a person lives for a fair amount of time with some degree of permanency; a person can have multiple residences.

Front 73

Long arm jurisdiction: Transaction of business

Back 73

Transactions” include substantial negotiations, even for one day, that form basis of a contract; such contract need not be executed in NY.

Caveat: Plaintiff’s claim must arise out of the transaction of business in NY.

Front 74

Consent for personal jurisdiction

Back 74

Parties to a contract may consent in advance to personal jurisdiction in NY in a :forum selection clause” (such as “any dispute relating to the contract shall be resolved in NY courts”). Such clause is generally enforceable in the absence of fraud, overreaching, or unreasonableness.

Front 75

When is durational residency requirement not needed

Back 75

If both parties are NY residents at the time the action is commenced, and the grounds for the matrimonial action arose in NY, no period of prior NY residency is required.

Front 76

1 year residencey requirement in matrimonial divorces

Back 76

If either party has been a NY resident for a continuous period of at least one year immediately prior to the action AND NY has any 1 of 3 possible prior links to the marriage:

1. Marriage took place in New York; or

2. New York was the matrimonial domicile of the spouses at some point; or

3. Grounds for divorce action arose in NY

Front 77

2 year residencey requirement in matrimonial divorces

Back 77

If either party has been a NY resident for a continuous period of at least 2 years immediately prior to the action, then the two-year residency standing alone is sufficient; need not show any other connection to NY

Front 78

Durational residency requirements apply to which types of actions

Back 78

actions affecting marital status, not support actions.

Front 79

Improper venue

"Dismissal?"

Back 79

Π’s choice of an improper venue is not a jurisdictional defect, and therefore it is not a basis for dismissal.

Front 80

If plaintiff object or consents to demand for change of venue

Back 80

1. If Π consents to the demand: Change in venue to Δ’s designated county will be automatic.

2. If Π objects to the demand or fails to respond to it: The Δ must make a motion for change in venue.

Note: Δ’s motion must be granted as a matter of right if Π chose an improper venue and Δ chose a proper venue in his demand.

Front 81

Discretionary Grounds for Change of Venue

Back 81

Convenience of Material Witnesses.

Either party, by motion, may request the court for a change in venue to the county that would be most convenient for witnesses. This will often (but not always) be the county where the cause of action arose.


Impartial Trials. If there is reason to believe that an impartial trial cannot be had in the county where the action is commenced, either party may make a motion to change venue.

Front 82

Defendants response to summons and complaint

Back 82

serve and answer or make a pre-answer motion to dismiss

Front 83

ANswer consists of?

Back 83

a. Denials of the allegation Δ wishes to contest (failure to deny an allegation is an implied admission); and


b. Any affirmative defenses
(e.g., S/L, lack of jurisdiction, Π’s comparative negligence).

Affirmative defenses not raised in the answer are waived (subject only to Δ’s possible amendment of the pleadings;

Front 84

Serving answer if D is served by personal delivery within NY

Back 84

Must be within 20 days of delivery

Front 85

Affirmative defenses not raised in the answer

Back 85

Are waived

Front 86

the 3 defenses that are never waived even if D doesn include them in answer. These can be raised at any point.

Back 86

1. Nonjoinder of a necessary party
2. Failure to state a cause of action
3. Lack of subject-matter jurisdiction

Front 87

ways to respond to a summons with notice

Back 87

A demand for the complaint( just a single paper) OR Notice of appearance

Front 88

Time requierment for demanding complaint or notice of appearance

Back 88

Δ’s time limit for serving either a demand for the complaint or a notice of appearance is the same as the response time for responding to a summons and complaint:
1. 20 days if served by personal delivery
2. 20 days from acknowledgment if served by first class mail plus acknowledgment
3. 30 days after service complete in all other circumstances

Front 89

Impleader

Back 89

Impleader is a procedural device used by Δ to join another party alleged to be liable in whole or in part to Δ for damages that Δ may have to pay Π.

Front 90

Procedural steps for impleader

Back 90

1. File a summons and third party complaint

2. Serve a copy of summons/third party complaint within 120 days of filing.

3. TPD must serve a third-party answer on Δ, Π and all other parties who have appeared in the action. 4. After TPD is joined, Π may amend her complaint to assert a claim directly against TPD, thereby making an additional Δ in Π’s action.

Front 91

DEF: Indemnity.

Back 91

This allows one party to shift 100% of the responsibility to another party.

Front 92

common indemnity situations?

Back 92

Products liablity/ciarious liability situations

Front 93

NUTSHELL:: comparative degrees of fault.

(NY RULE) of contribution

Back 93

The amount of contribution to which a tortfeasor is entitled is the excess actually paid by him over and above his equitable share of the judgment.

Front 94

Settlement in contribution claims

Back 94

A party who settles cannot sue or be sued for contribution.

Front 95

when is ex parte motion allowed

Back 95

Ex parte motion is not allowed without express statutory authorization. Very rare.

Front 96

5 provisional remedies

Back 96

1. Attachment
2. Preliminary Injunction
3. Temporary Receivership
4. Order to Seize Chattel in an action to recover the chattel (replevin)
5. Notice of Pendency (lis pendens)

Front 97

The fact that the Supreme Court's SMJ is General means that it is unlimited regarding which FOUR things?

Back 97

1) Monetary Amount of P's claim

2) Ability to assert EQUITY claims

3) Residency of th eparties

4) Place where the C/A arose

Front 98

FORUM NON CONVENIENS

- Definition?
- Relationship to NY Supreme Court?

Back 98

Forum Non Conveniens = the court has DISCRETION, upon motion, to dismiss on the ground of forum non conveniens when the action lacks a substantial nexus to New York
-- The claim must be made by DEFENDANT
-- THe court may NOT dismiss on this ground on its own


RELATIONSHIP TO SUPREME COURTNY Supreme Court = GENERAL Jx: therefore: the non-residency of the parties and the lack of relationship of the claim to NY do NOT deprive the court of SMJ-- but it has the DISCRETION to dismiss if it so decides

Front 99

the court has DISCRETION, upon motion, to dismiss an action when the action lacks a substantial nexus to New York...

This is known as?

- What are the two rules to remember?

Back 99

FORUM NON CONVENIENS

1) The claim must be made by DEFENDANT
-- the court may NOT dismiss on this ground on its own!

2) NY Supreme Court = GENERAL Jx: therefore: the non-residency of the parties and the lack of relationship of the claim to NY do NOT deprive the court of SMJ-- but it has the DISCRETION to dismiss if it so decides

Front 100

Claims for money damages in TORT or CONTRACT against the State of New York.... Must be brought in WHICH COURT?

Back 100

.......such claims may be brought in the New York Court of Claims only

Front 101

Who is the only defendant that can be sued in the NY Court of Claims

Back 101

The STATE of NEW YORK

-- Employees of the state and SUBDIVISIONS of the state (counties, towns, schools) must all be sued in SUPREME COURT

Front 102

Employees of the state and SUBDIVISIONS of the state (counties, towns, schools) must all be sued in which Court?

Back 102

in NY SUPREME COURT

Front 103

What is the NY Court of Claims?

Back 103

The ONLY court where NY State can be sued for claims for money damages in TORT or CONTRACT!

NYS is the ONLY defendant that be sued here!

-- Employees of the state and SUBDIVISIONS of the state (counties, towns, schools) must all be sued in SUPREME COURT

Front 104

Assume Amy Fisher, while driving on the NY State Thruway, is injured in a collision with a state police car being driven by State Trooper Joey Buttafuoco. In what court could Amy bring an action jointly against the State of NY and Trooper Buttafuoco?
•

Back 104

NONE: Amy must bring 2 separate actions: (1) vs. NY State for vicarious liability in the Court of Claims (2) vs. JOEY in Supreme Court

Contrast this with FRCP General Rule re: Multiple Claims/ Multiple Defendants (P CAN sue all in the same court- as long as the claims arise out of the same transaction or occurrence)

Front 105

Assume Amy Fisher, while driving on the NY State Thruway, is injured in a collision with a state police car being driven by State Trooper Joey Buttafuoco. In what court would Amy sue if the accident took place on a road maintained by Nassau County, NY and Buttafuoco was an officer employed by Nassau County?

Back 105

Proper court to sue Nassau County = SUPREME Court…

--- Nassau County = SUBDIVISION of NYS → Therefore: Must be sued in Supreme Court and NOT the Court of Claims

THUS: Amy CAN bring a JOINT action against both Nassau County AND the individual officer (Joey)

Front 106

MATRIMONIAL ACTIONS
-DEF: Matrimonial action?

- Where must these actions be brought?

Back 106

DEF: Matrimonial action?
Action in which the court is asked to adjudicate MARITAL STATUS (divorce, separation, annulment, declaration of validity of the marriage)


** MUST BE BROUGHT IN NY SUPREME COURT! **
- Supreme Court has EXCLUSIVE Jx over these cases!
- Family Court does not have jurisdiction to grant this relief

Front 107

CPLR ARTICLE 78 PROCEEDINGS

- What are they?
- Where must these claims be brought?

Back 107

CPLR Article 78 proceeding = judicial review of NY state and local government administrative action
• Distinguish this from claims against the State for money damages in tort and contract, which must be brought in the Court of Claims


** MUST BE BROUGHT IN NY SUPREME COURT! **
- Supreme Court has EXCLUSIVE Jx over these cases!

Front 108

DECLARATORY JUDGMENT ACTIONS

- Definition?
- Claims must be brought in which court?

Back 108

Declaratory judgment action = judicial declaration of the rights and obligations of the parties to an actual controversy before one of them engages in conduct that could cause liability.

** MUST BE BROUGHT IN NY SUPREME COURT! **
- Supreme Court has EXCLUSIVE Jx over these cases!

Front 109

Convenience of Material Witnesses

Back 109

➢ Either party, by motion, may request the court for a change of venue to the county that would be most convenient for the witnesses

➢ This will often (but not always) be the county where the C/A arose

Front 110

Danger of Bias at Trial

Back 110

➢ If there is reason to believe that an impartial trial cannot be had in the county where the action is commenced → EITHER party may make a motion to change venue

Front 111

SoL: When does the SoL on a claim start to run?...
What are the 2 Most Common Examples you MUST KNOW?

Back 111

RULE: The SOL on a claim starts to run at the time the C/A ACCRUES

2 Most Common Examples You Will See on the Bar
1. Personal Injury or Property Damage Action
C/A ACCRUES on the date of the injury → i.e. the date of bodily impact

2. Breach of K Actions
C/A ACCRES on the date of the breach

REMEMBER:: ***HIGHLY TESTED***
The SoL is NOT measured from the date that P “DISCOVERS” the injury!!

Front 112

WHAT IS THE GENERAL RULE FOR SATISFYING THE STATUTE OF LIMITATIONS?

Back 112

RULE: To satisfy SoL → The action must be COMMENCED no later than the last day of the prescribed period of limitations

➢ DEF: Commencement:: Commencement consists of FILING PROCESS with the clerk of the court on or before the last day of the SoL

Exception: Justice Courts
Commencement = Date of Service; not Date of Filing Process


* TIP *
If the fact pattern tells you that the action was “TIMELY COMMENCED” → do NOT address this issue!!

Front 113

SoL → Commencement: Adding Parties Later On

Back 113

RULE: If the original summons omits a party who is later added to the action AFTER the expiration of the SoL → Timely commencement against the ORIGINAL Df will also toll the SoL as against the NEWLY added party IF:
1. Both claims arise out of the SAME conduct;
2. The parties share LIABILITY—either jointly or vicariously; AND
3. The New Party KNEW or SHOULD’VE KNOWN that—but for P’s mistake in identifying all parties—the action would also have been brought against him

Front 114

How is SoL computed regarding claims in AMENDED PLEADINGS?

Back 114

GENERAL RULE: Claims asserted in an AMENDED PLEADING are measured for timeliness as of the date of the service of the amended pleading

EXCEPTION: Where the original pleading gives NOTICE of the events on which the NEWLY ADDED C/A is based
➢ Here: Claim asserted in the amended pleading relates back to time of commencement of the ORIGINAL action

Front 115

What are the ONLY 2 opportunities for raising SoL as an AFFIRMATIVE DEFENSE?

Back 115

Defense of SoL must be raised either:
(a) In a Preanswer Motion to Dismiss; OR
(b) As an Affirmative Defense in the Answer Itself

Front 116

TIME LIMITS UNDER THE CPLR: Saturdays, Sundays & Holidays?

Back 116

GENERAL RULE for ALL TIME LIMITS UNDER CPLR:
If the last day for performing any procedural act, such as commencing an action or serving a paper, falls on a Saturday, Sunday or Public Holiday → P gets until the end of the NEXT BUSINESS DAY to perform the required act

Front 117

Which Causes of Action have a 10-YEAR SoL?

Back 117

1. Actions to Recover REAL PROPERTY
o i.e. will be the same period as Adverse Possession

2. Actions to ANNUL LETTERS PATENT

3. Actions to Redeem a MORTGAGE

Front 118

Which Causes of Action have a 20-YEAR SoL?

Back 118

1. Actions by the STATE or its Grantee to recover REAL PROPERTY

2. Enforcement of JUDGMENTS;

3. Actions to Recover PRINCIPAL or INTEREST on certain BONDS

Front 119

ACTIONS BY CRIME VICTIMS:
Which Causes of Action have a 10-YEAR Statute of Limitations?

Back 119

Actions by Victims of Certain Specific SERIOUS CRIMES (ex: Violent Felonies) of Date of CONVICTION

EXCEPTION:: Discovery of Df’s Receipt of Money or Property From Any Source
➢ Even if the 10-yr SoL period for the specified Serious Crime has run → Action may STILL be commenced for up to THREE YEARS from the discovery of Df’s receipt of money or property from ANY source

Front 120

ACTIONS BY CRIME VICTIMS:
Which Causes of Action have a 7-YEAR Statute of Limitations

Back 120

This is the CATCHALL for ANY CRIME → i.e. the GENERAL RULE

Actions by Victims of Crimes Against a CONVICTED Df
7 years from the date of the CRIME

Front 121

ACTIONS BY CRIME VICTIMS:
What causes of action have a 5-YEAR Statute of Limitations?

Back 121

RAPE VICTIMS
Rape Victims: have the longer of:

(a) 5yrs from the date of the CRIMINAL ACT; or

(b) 5yrs from the END of the CRIMINAL PROCEEDINGS (even if the trial ended in acquittal)

Front 122

Which Causes of Action have a 6-YEAR SoL?
[9]

Back 122

1) NON-UCC Contractual Obligations
a. Includes Indemnity and Contribution Claims
b. NOTE: Accrual = Date of the BREACH—regardless of P’s lack of knowledge

2) Actions Upon Sealed Instruments or on Notes/Bonds Secured by Real Property Mortgages

3) Actions For PUBLIC Property

4) FRAUD Actions
o P can choose whichever is longer of:
(a) 6 years of commission of the fraud; Or
(b) 2 years of discovery (actual or imputed)

5) Actions Based on MISTAKE

6) Shareholder Derivative Actions

7) Actions by a CORPORATION Against Directors

8) EQUITY ACTIONS: Rescission, Reformation, Accounting

9) *** ALL OTHER CIVIL ACTIONS NOT SPECIFIED BY STATUTE ***

Front 123

Which causes of action have a 3-YEAR statute of limitations?

Back 123

1) Actions for Non-Payment of Money on Execution
2) Actions for Statutory Liability
3) Replevin Actions
4) Actions for DAMAGE to PROPERTY
5) PERSONAL INJURY Actions based on NEGLIGENCE and STRICT LIABILITY
a. NOTE: Personal Injury and Prop Damage Claims: Accrue on date the ORIGINAL injury occurs—NOT date of discovery (except in cases of toxic substances)

6) ALL Professional MALPRACTICE Other than those for Medical Malpractice

7) Actions to ANNUL a MARRIAGE on the Basis of FRAUD

8) STRICT LIABILITY In Tort

Front 124

MEDICAL MALPRACTICE—SoL Rules?

Back 124

Medical Malpractice SoL applies to: Doctors, Dentists, Podiatrists, Nurses, and Hospitals

SoL Period: 2 ½ years… from the date of MALPRACTICE
➢ Date of P’s DISCOVERY of the Malpractice = IRRELEVANT!!

EXCEPTIONS:
(1) CONTINUOUS TREATMENT RULE – (“END OF Continuous Treatment”)

RULE: SoL = 2 ½ years from end of continuous treatment if Dr continues to treat patient for exact same condition that gives rise to the Med. Mal Action



(2) FOREIGN OBJECT RULE: If the physician was responsible for introducing a foreign object and then leaves it behind → SoL for the Medical Malpractice Action is…
(a) [Ordinary Rule]: 2 ½ years from Date of the malpractice—OR…

(b) 1 year from the date P DISCOVERS the PRESENCE of the object—OR—SHOULD HAVE discovered with reasonable diligence


(3) FRAUDULENT CONCEALMENT: If the Dr knowingly conceals his act of malpractice and P reasonably relies on the Dr → Dr may be estopped from pleading the SoL

Front 125

Dr. Evil, a doctor employed by Mercy Hospital, bungles a hemorrhoid operation on Austin on June 1, 2010. Austin does not discover the malpractice until September 1, 2012. The last timely date for commencement of Austin’s action against Mercy Hospital on a theory of respondeat superior (vicarious liability) would be?

Back 125

December 1, 2012—(answer does not change)

RULE: When P’s suit is based on a Hospital’s Vicarious Liability for Med. Mal by one of the employees (doctor) → SAME RULE applies as with the employee himself

SoL = 2 ½ YEARS!!

Front 126

MEDICAL MALPRACTICE ACTIONS: What are the EXCEPTIONS to the General SoL period?

Back 126

EXCEPTIONS:
(1) CONTINUOUS TREATMENT RULE – (“END OF Continuous Treatment”)

RULE: SoL = 2 ½ years from end of continuous treatment if Dr continues to treat patient for exact same condition that gives rise to the Med. Mal Action



(2) FOREIGN OBJECT RULE: If the physician was responsible for introducing a foreign object and then leaves it behind → SoL for the Medical Malpractice Action is…
(a) [Ordinary Rule]: 2 ½ years from Date of the malpractice—OR…

(b) 1 year from the date P DISCOVERS the PRESENCE of the object—OR—SHOULD HAVE discovered with reasonable diligence


(3) FRAUDULENT CONCEALMENT: If the Dr knowingly conceals his act of malpractice and P reasonably relies on the Dr → Dr may be estopped from pleading the SoL

Front 127

MEDICAL MALPRACTICE: What is the SoL when the doctor fraudulently conceals an injury to the plaintiff?

Back 127

EXCEPTION to General 2 ½ year SoL Period

FRAUDULENT CONCEALMENT: If the Dr knowingly conceals his act of malpractice and P reasonably relies on the Dr → Dr may be estopped from pleading the SoL

Front 128

Medical Malpractice → “Continuous Treatment Rule” ? Rationale?

Back 128

EXCEPTON TO THE GENERAL SoL PERIOD FOR MED. MAL

RULE: If a physician continues to treat the patient, after an operation, for the exact same medical condition that gave rise to the malpractice → P gets 2/12 years from the END of CONTINUOUS TREATMENT—IF—he is suing for a condition that GAVE RISE to the malpractice C/A

➢ RATIONALE:: Don’t want to hurt Dr-Patient relationship → let the Dr. keep treating to see if he can fix the problem without putting the patient in a position where he has to hurry to commence—i.e. allow the patient to feel safe keeping his life in the hands of the Dr

Front 129

Medical Malpractice → “Foreign Object Rule” ? Rationale?

Back 129

EXCEPTON TO THE GENERAL SoL PERIOD FOR MED. MAL

RULE: If the physician was responsible for introducing a foreign object and then leaves it behind → P gets whichever is longer of:
➢ (a) [Ordinary Rule]: 2 ½ years from Date of the Operation (i.e. date of the malpractice); OR
➢ (b) 1 year from the date P DISCOVERS the PRESENCE of the object—OR—SHOULD HAVE discovered with reasonable diligence

DEF: Foreign Object: Something the doctor did not intend to leave behind
Ex: Temporary surgical clamps, sponges, scalpels, etc)

NOT Foreign Objects Under This Exception
** MUST KNOW **
1. Chemical Substances
2. Prosthetic Devices
3. Fixation Devices:

Front 130

Where a doctor knowingly conceals an act of malpractice and the Plaintiff reasonably relies on the doctor, the doctor may be estopped from pleading SoL as a defense.

This is known as what rule?

Back 130

The FRAUDULENT CONCEALMENT Exception

Front 131

What is a “FOREIGN OBJECT” for the Purposes of Medical Malpractice? Why is this important?

Back 131

DEF: Foreign Object: Something the doctor did not intend to leave behind
Ex: Temporary surgical clamps, sponges, scalpels, etc)

******
EXCEPTON TO THE GENERAL SoL PERIOD FOR MED. MAL

RULE: If the physician was responsible for introducing a foreign object and then leaves it behind → P gets whichever is longer of:
➢ (a) [Ordinary Rule]: 2 ½ years from Date of the Operation (i.e. date of the malpractice); OR
➢ (b) 1 year from the date P DISCOVERS the PRESENCE of the object—OR—SHOULD HAVE discovered with reasonable diligence

*****NOT Foreign Objects Under This Exception
** MUST KNOW **
1. Chemical Substances
2. Prosthetic Devices
3. Fixation Devices

Front 132

Which causes of action have a 2-YEAR SoL?

Back 132

WRONGFUL DEATH ACTIONS
NOTE: 2 year SoL runs from Date of DEATH—EXCEPT it must ALSO be shown that SoL on decedent’s underlying PI claim had not expired on date of death

NOTE: If Criminal Proceeding is brought against Df → Executor gets optional and independent 1-year period from termination of criminal proceedings—regardless of whether Df is convicted or acquitted

Front 133

WRONGFUL DEATH Actions—SoL?

Back 133

SoL = 2 years from the Date of DEATH

REQUIREMENT: It must ALSO be shown that the SoL on the decedent’s underlying personal injury claim had not expired on the date of death

Front 134

Which causes of action have a SoL of 1 YEAR?

Back 134

1. INTENTIONAL Torts
2. Actions for Official Acts or Omissions
3. Actions to Recover Overcharges of Interest
4. Actions to Enforce a Penalty or Forfeiture
5. Retaliatory Evictions
6. Actions on ARBITRATION AWARDS

Front 135

What is COMMENCEMENT and why is it important?

Back 135

DEF: Commencement:: Commencement consists of FILING PROCESS with the clerk of the court on or before the last day of the SoL

RULE: To satisfy SoL → The action must be COMMENCED no later than the last day of the prescribed period of limitations

Front 136

What is the General Rule for COMPUTING SoL?

Back 136

To Compute SoL or ANY OTHER CPLR Period → EXCLUDE the day upon which the triggering event occurs and begin counting the NEXT day

i.e. last day to commence a C/A will be some anniversary of the event giving rise to the C/A

Front 137

Car driven by Billy Joel negligent smashes into Mayor Bloomberg’s mansion on June 1, 2012 → Last day for timely commencement of Bloomberg’s action against Billy for damages for personal injury and/or property damages would be?

Back 137

June 1, 2015 (the anniversary)
➢ Personal Injury/ Property Damage: SoL = 3 years

To Compute SoL or ANY OTHER CPLR Period → EXCLUDE the day upon which the triggering event occurs and begin counting the NEXT day

Front 138

Actions by Victims of Serious Crimes (e.g. violent felonies)… What is the EXCEPTION to the General SoL?

Back 138

General SoL = 10 YEARS

EXCEPTION:: Discovery of Df’s Receipt of Money or Property From Any Source

Action may STILL be commenced for up to THREE YEARS from the discovery

Front 139

Dr. Evil, a doctor employed by Mercy Hospital, bungles a hemorrhoid operation on Austin on June 1, 2010. Austin does not discover the malpractice until September 1, 2012. When is the last timely date for commencement of Austin’s action against Dr. Evil?

Back 139

December 1, 2012—2 ½ years from the actual malpractice; NOT from P’s discovery of the malpractice

Front 140

MEDICAL MALPRACTICE:: What is the SoL For Claims based on Respondeat Superior/ Vicarious Liability

Back 140

RULE: When P’s suit is based on a Hospital’s Vicarious Liability for Med. Mal by one of the employees (doctor) → SAME RULE applies as with the employee himself

SoL = 2 ½ YEARS!!

Front 141

Dr. Evil, a doctor employed by Mercy Hospital, bungles a hemorrhoid operation on Austin on June 1, 2010. Austin does not discover the malpractice until September 1, 2012. The last timely date for commencement of Austin’s action against Mercy Hospital on a theory of negligent hiring would be?

Back 141

June 1, 2013—Because this action against Mercy Hospital is based on the theory that the hospital was independently negligent when it hired Dr. Evil b/c it should have known that he was incompetent

Tort of Negligent Hiring = ORDINARY Negligence—because it is not considered Med Mal to negligently hire someone → Therefore: Ordinary 3-YEAR SoL applies

Front 142

If a physician continues to treat the patient, after an operation for the exact same medical condition that gave rise to a malpractice claim, the SoL period is three years from the end of continuous treatment… This is known as what rule?

Back 142

The “CONTINUOUS TREATMENT RULE”

RATIONALE:: Don’t want to hurt Dr-Patient relationship → let the Dr. keep treating to see if he can fix the problem without putting the patient in a position where he has to hurry to commence—i.e. allow the patient to feel safe keeping his life in the hands of the Dr

Front 143

Dr. Evil fails to detect the presence of a tumor in Austin’s body during the operation, and sews him back up with the tumor left behind. Austin discovers the tumor three years later. Will the Foreign Object Exception apply to the date of Commencement?

Back 143

NO—b/c a tumor is NOT a Foreign Object—i.e. nothing was left behind; Dr. merely failed to detect something already there

Therefore: The action must be commenced within 2 ½ years from the failure to discover the tumor

Front 144

Claims Against Municipal Defendants
(Gov’t Subdivision of the State → City, County, Town, School District, Fire Dept, City Hospitals)

WHAT IS THE SoL?

What is the MAJOR RULE REQUIREMENT?

Back 144

➢ SoL RULE—1 year, 90 days

*****
MAJOR RULE REQUIREMENT::
NOTICE OF CLAIM PREREQUISITE

- As a CONDITION PRECEDENT to a tort action against a Municipal Df—P must serve a NOTICE OF CLAIM on the potential Municipal Df no later than 90 DAYS from the date of the accident

NOTE: This Service of the notice is NOT commencement of the action
• The notice merely gives the potential municipal Df advance warning of the potential lawsuit to enable the Df to engage in early investigation and possible settlement without need for litigation

* If P Commences the Action WITHOUT This Notice of Claim --> Municipal Df is entitled to have the action DISMISSED on the ground of FAILURE TO STATE C/A

Front 145

Claims Against Municipal Defendants
(Gov’t Subdivision of the State → City, County, Town, School District, Fire Dept, City Hospitals)

"NOTICE OF CLAIM" ?

Back 145

MAJOR RULE REQUIREMENT::
NOTICE OF CLAIM PREREQUISITE

- As a CONDITION PRECEDENT to a tort action against a Municipal Df—P must serve a NOTICE OF CLAIM on the potential Municipal Df no later than 90 DAYS from the date of the accident

NOTE: This Service of the notice is NOT commencement of the action
• The notice merely gives the potential municipal Df advance warning of the potential lawsuit to enable the Df to engage in early investigation and possible settlement without need for litigation

* If P Commences the Action WITHOUT This Notice of Claim --> Municipal Df is entitled to have the action DISMISSED on the ground of FAILURE TO STATE C/A

Front 146

Claims Against Municipal Defendants
(Gov’t Subdivision of the State → City, County, Town, School District, Fire Dept, City Hospitals)


"COMMENCING THE ACTION AFTER NOTICE OF CLAIM"

Back 146

COMMENCING THE ACTION AFTER NOTICE OF CLAIM

After serving the Notice of Claim on the Municipal Df… (Two Rules)
(1) P must wait 30 DAYS before commencing the action
(2) P’s complaint must plead compliance with the Notice of Claim Req

Front 147

Claims Against Municipal Defendants
(Gov’t Subdivision of the State → City, County, Town, School District, Fire Dept, City Hospitals)

"LATE NOTICE OF CLAIM" ?

Back 147

If the 90 day period to serve the Notice of Claim on the Municipal Df has expired—but the time remaining on the 1 year + 90 days SoL has NOT expired → P may make a motion requesting permission to serve a LATE NOTICE OF CLAIM

- The court has discretion to grant the motion IF:
The Municipal Df will not be prejudiced

Ex: Not prejudiced where city has actual knowledge of the facts within 90 days of the accident

Front 148

On September 1, 2012, Forrest Gump sat down on a park bench in the city of Rome, NY, to eat some chocolates. The bench collapsed, causing personal injury to Forrest. What must Forrest do before he may sue the city for damages based on negligent maintenance?

Back 148

o He must serve a NOTICE OF CLAIM on the city—must do so NO LATER THAN 90 DAYS from Sept 1, 2012.

Front 149

Assume Forrest serves a Notice of Claim on the city of Rome on Oct. 1, 2012. The city does not offer a settlement. Forrest now wants to sue the city. What would be the last timely date for commencement of his action?

Back 149

o NOW apply the SoL rule → 1 year + 90 days from the date of the accident

Therefore: Nov. 30th, 2013

Front 150

CLAIMS vs. MEMBERS OF A LEARNED PROFESSION

When does the SoL begin to Run?

Back 150

When services are completed—regardless of P’s lack of awareness of the malpractice

In Other Words: If the claim arises during the course of the professional services → C/A does not ACCRUE until actual termination of the services, when the professional has completed work

Front 151

Mike Brady negligently designs a building which is completed in 2006. In 2010, the building collapses. Would the owner’s suit against Brady for the cost of restoring the building, alleging breach of K for negligent performance of the K, be timely if brought in 2011?

Back 151

NO—b/c this is a suit for Non-Med Professional Malpractice (“Learned Profession”) → Therefore: 3yr SoL begins to run in 2006 (when the work was completed) → it expired in 2009

Date of Collapse of the Building → Irrelevant! (SoL ran before P even KNEW about the claim!)

P CANNOT allege breach of K (ordinarily has 6yr SoL) to get his claim in—b/c Professional Malpractice SoL is “EXCLUSIVE” (i.e. SUPERSEDES) all others, regardless of whether suing in Tort or Breach of K

Front 152

In 2006, an Insurance Broker fails to procure adequate insurance to cover the losses caused by a potential collapse in the Brady building. The last timely date for a Break of K action against the Insurance Broker would be?

Back 152

2012—b/c the Insurance Broker’s failure to perform properly does NOT amount to Professional Malpractice (aka Learned Profession)

- Insurance Brokers are NOT members of a Learned Profession (do not require advanced degrees; no ethics code)
• Therefore: Ordinary 6yr SoL applies

Front 153

If a building that was completed in 1990 collapses in 2012 and causes personal injuries, what is the last year in which the injured persons may sue the architect?

Back 153

2015—Because this is Bodily Injury → Different theory of Tort recovery (because the general rule for Non-medical professional malpractice applies ONLY to FINANCIAL LOSS

- P can sue responsible tortfeasors from up to 3 years of the date of bodily injury—regardless of the date the building was completed

Front 154

DEFAMATION: When does SoL begin to run?

Back 154

SoL begins to run when the 1st Defamatory Statement is made

-- It is NOT revived by repeated publications of the SAME STATEMENT—UNLESS: the repeated publication is intended to reach a different audience

Ex: Paperback edition rather than Hardcover

Front 155

ACTIONS BASED ON FRAUD

- When does the C/A accrue?
- What is the SoL period?

Back 155

The claim ACCRUES when the P acts in reliance on the fraud, and the reliance is detrimental


SoL: 6 years from accrual
- HOWEVER: P may Commence within TWO years after the fraud was DISCOVERED—or should have been discovered—despite the limitations period of 6yrs from accrual

Front 156

Where a defective product causes Personal Injuries → P has Three Possible C/A that can all be asserted in the same complaint:

- What are they?
- What is the SoL period for each?

Back 156

(1) NEGLIGENCE

SoL = 3 years from Date of P’s INJURY (date of bodily impact)

NOTE: This rule also applies to ALL Df’s in the “Chain of Distribution”



(2) STRICT PRODUCTS LIABILITY
Same Rule as Negligence



(3) BREACH OF WARRANTY
• Governed by UCC

• SoL = 4 years (General Rule for UCC Sales)
•Begins to run when the particular Df against whom the Warranty Claim is asserted made its own DELIVERY of the Product--- because that is when the Df-Seller breached its warranty
........... In Other Words: you look for the date the particular Df “tenders delivery” of the product—NOT on the date that some third party sells it to P

• Must look at EACH DF separately!

Front 157

PRODUCTS LIABILITY CASES

- SoL Rules?

Back 157

Where a defective product causes Personal Injuries → P has Three Possible C/A that can all be asserted in the same complaint:

(1) NEGLIGENCE

SoL = 3 years from Date of P’s INJURY (date of bodily impact)

NOTE: This rule also applies to ALL Df’s in the “Chain of Distribution”



(2) STRICT PRODUCTS LIABILITY
Same Rule as Negligence



(3) BREACH OF WARRANTY
• Governed by UCC

• SoL = 4 years (General Rule for UCC Sales)
•Begins to run when the particular Df against whom the Warranty Claim is asserted made its own DELIVERY of the Product--- because that is when the Df-Seller breached its warranty
........... In Other Words: you look for the date the particular Df “tenders delivery” of the product—NOT on the date that some third party sells it to P

Front 158

INDEMNITY and CONTRIBUTION Claims

- Will usually see these claims in which context?
- SoL period?
- Claim accrues when?

Back 158

*** TIP ***
Will usually see this sub-issue in the context of PRODUCTS LIABILITY—although theoretically possible in ANY tort C/A

****

SoL RULE:
6 YEARS running from the date of ACTUAL PAYMENT of the judgment for which the indemnity or contribution is sought

Front 159

Consumer is injured by a product in 2002. Consumer gets a judgment against Retailer that is paid in full on May 1, 2010. Retailer’s claim for indemnity or contribution against Wholesaler and/or Manufacturer would be timely thru when?

Back 159

May 1, 2016—6 years from the date of payment of Consumer’s judgment

Front 160

TOXIC TORTS
-DEF: Toxic Torts
- This is a form of what General Tort Theory?
- DEF: "Toxic Substance"

Back 160

DEF: “Toxic Torts” Cases
Suit against the manufacturer, distributor or supplier of the toxic substance for injuries caused by the latent defects of exposure

- Injuries may consist of:
a) Personal Injury
b) Injury to Property
c) Wrongful Death

***
This is a form of PRODUCTS LIABILITY
***
“Toxic Substance” – any inherently harmful toxin that has latent or slow-developing effects (e.g., DES, asbestos, insecticides, HIV)

Front 161

TOXIC TORTS

- SoL?
- When does C/A accrue?

Back 161

THREE YEARS-- that begins to run on the earlier of...
a. Discovery of the injury; or
b. The date the injury should have been discovered with reasonable diligence.

Front 162

Dr. injects medicine into Joe on May 1, 2006. Liver problems traceable to the medicine are first discovered by Joe on July 1, 2011 and could not have been reasonably discovered prior to that time. What is the last timely date for Joe’s action in negligence and/or strict products liability against the manufacturer of the medicine?

Back 162

• July 1, 2014—this is a Toxic Torts Case → Therefore: P gets 3 YEARS from discovery of the symptoms

Front 163

Dr injects medicine into Joe on May 1, 2006. Liver problems traceable to the medicine are first discovered by Joe on July 1, 2011 and could not have been reasonably discovered prior to that time. When would be the last timely date for Joe’s action in Medical Malpractice against the Dr?

Back 163

• Nov. 1, 2008—2 ½ years from the Dr’s malpractice (i.e. the date he should not have put this into P’s body)

•Foreign Objects Rule does NOT apply—because medicines are NOT a foreign object (they are a strictly carved-out exception)

Front 164

TOXIC TORTS
➢ WHERE THE TOXIC SUBSTANCE DOES NOT PRODUCE “LATENT” EFFECTS

SoL Rules?

Back 164

The “Discovery Rule” ( where SoL runs from date of P’s discovery/ date P should have discovered) does NOT apply UNLESS the toxic substance produces “LATENT EFFECTS”

***

If the Claim is Based Solely on CONTINUING PRESENCE of a Toxic Substance that has only the POTENTIAL to Cause Injury:

•C/A accrues when Df breaches the duty to REMOVE the substance—NOT when P first discovers its presence

Front 165

Toxic Torts Cases...

WHERE PLAINTIFF DOES NOT KNOW THE CAUSE


SoL rules?

Back 165

If P—at time of discovery of the Injury—does not know that the cause of the injury was exposure to a toxic substance → he may sue within one year of discovery that the toxic substance was the cause—SO LONG AS:

1) Discovery of the cause occurs less than 5 YEARS after discovery of the injury;.... AND

2) Technical or medical knowledge concerning the relationship between the injury and its cause could NOT have been ascertained within 3 YEARS of discovery of the injury

Front 166

SoL

Tolls For Defendant's Absence...

What is the MAJOR EXCEPTION to this Rule?

Back 166

BIG EXCEPTION: The toll for absence is not available if the P has a basis for Personal Jurisdiction over Δ such that process could be validly served over Δ
Ex: If a long-arm statute applies

NOTE: this exception almost always applies and P is RARELY entitled to an absence toll!

Front 167

SoL

OVERVIEW: What are the 4 PRIMARY TOLLS AND EXTENSIONS?

Back 167

(1) Toll For Defendant’s Absence
(2) Plaintiff’s Infancy or Insanity (Legal Disability)
(3) Tolls For Death
(4) 6-Month Grace Period

Front 168

SoL

OVERVIEW: What are the 4 PRIMARY TOLLS AND EXTENSIONS?

Back 168

(1) Toll For Defendant’s Absence
(2) Plaintiff’s Infancy or Insanity (Legal Disability)
(3) Tolls For Death
(4) 6-Month Grace Period

Front 169

Harry Potter (16yrs old) has a breach of K claim that accrued in 2010. When he reaches age of 18 in 2012, how much time will he have to sue?

Back 169

2016

Analysis: He has Two Options:
1. Usual Rule: 6yrs SoL for breach of K → 2016 (winner)
2. 3yrs from Date the Legal Disability Ends → 2015

Front 170

Harry Potter has a Breach of K claim accrues in 2004, when Harry is only 10 years old. When he reaches the age of 18, how much time will he have to sue?

Back 170

2015

Analysis: He has Two Options
1. Usual Rule: 6yrs SoL for breach of K → 2010
2. 3 yrs from Date the Legal Disability Ends → 2015 (winner)

Front 171

12yr old Harry Potter is assaulted by an evil wizard. When Harry turns 18, how long will he have to sue?

Back 171

1 year from his 18th Birthday→ because assault has a 1-year SoL

Original SoL under 3 years = when the disability ends → P gets the Usual rule under the statutory period—i.e. “1 year SoL for assault claims”

Front 172

3-yr old infant is injured by medical malpractice on Jan 10, 2000. The claim against the Dr is time-barred when?

Back 172

Jan 10, 2010

Despite the fact that P will still be only 13 (i.e. still an “infant”)—RULE = max time to sue Dr for Med Mal (no matter how young the infant is) = 10 years from date of accrual

Front 173

Dr. Suess commits Med Mal on 3-yr old Bart on Jan 10, 2000, and continues to treat him for the same condition until Jan 10, 2012. When does Bart’s C/A for Med Mal expire?

Back 173

Bart’s action will be timely up thru July 10, 2014
-- Under the Infancy Toll: Action expires in Jan 2010
-- HOWEVER—Under the Continuous Treatment Toll—Bart gets 2 ½ years from the END of the Treatment
i.e. the Continuous treatment toll operates SEPARATELY from the Infancy toll


In Med Mal cases – the Continuous Treatment toll and the Infancy Toll are SEPARATE TOLLS!!

Do NOT ADD the tolls together when computing the SoL → If the tolls are applicable run EACH toll SEPARATELY and determine if the action is timely under EITHER toll

Front 174

DEF: Survival Claim

- Damages Include....?

Back 174

Any C/A P himself could have brought if he was still alive—NOT limited to Torts


Damages: include all damages incurred by P prior to death (i.e. includes Pain and Suffering)


REMEMBER:: For BOTH Claims (Survival and Wrongful Death) → P must die within the ORIGINAL SoL (i.e. the original personal injury claim)

Front 175

DEF: Wrongful Death Claim

- Damages include...?

Back 175

Tort claim for the PECUNIARY (economic) damages of decedent’s statutory distributee’s (ex: surviving spouse, children)



Damages: Punitive damages may be claimed; but NOT the emotional suffering of the distributes OR the decedent’s pain and suffering


REMEMBER:: For BOTH Claims (Survival and Wrongful Death) → P must die within the ORIGINAL SoL (i.e. the original personal injury claim)

Front 176

Auto accident on June 1, 2009, in which Lady Gag’s negligence called Pete’s eventual death on May 1, 2012. When is the last date for timely commencement of an action for Pete’s pain and suffering?

Back 176

May 1, 2013—because pain and suffering damages = SURVIVAL ACTION

At the time of Pete’s death → Personal injury claim would still be timely b/c there is still 1 month remaining on the underlying SoL → Therefore: the Executor of Pete’s estate can take advantage of the 1-year extension from the date of death to bring a Survival Claim

Front 177

Auto accident on June 1, 2009, in which Lady Gag’s negligence called Pete’s eventual death on May 1, 2012.
When is the last date for timely commencement of an action for Pete’s wrongful death?

Back 177

May 1, 2014—2 years from the date of death for Wrongful Death C/As

Available b/c at the time Pete died, the underlying personal injury claim was still timely

Front 178

Auto accident on June 1, 2009, in which Lady Gag’s negligence called Pete’s eventual death on May 1, 2012. Lady Gaga drops dead 3 weeks after the June 1, 2009 accident. How long does Pete have to commence a negligence action against Gaga’s estate?

Back 178

December 1, 2013

• If a Potential Df dies AT ANY TIME before the SoL Expires → 18 MONTHS are ALWAYS ADDED to the relevant limitations period (regardless of whether P needs the extra time)

Front 179

SoL

6-MONTH GRACE PERIOD

GENERAL RULE?

Back 179

IF…

1) NY Action is TIMELY Commenced- but is thereafter dismissed before trial… AND

2) At the time of the dismissal-- the SoL has either expired or has less than 6 months remaining....

THEN… P gets 6 MONTHS from the date of dismissal to RE-FILE the same action and serve process on the same Df

Front 180

Father commences timely action in the name of his deceased child, but fails to obtain the necessary letters of administration appointing him as rep of the estate. The action is therefore dismissed due to P’s lack of capacity. At the time of the dismissal, the SoL has expired. Can Father re-file?

Back 180

YES—6 Month Grace Period Applies → within 6 months of the dismissal, Father can cure the capacity defect (i.e. obtain the proper letters) and sue again

RULE----IF…

1) NY Action is TIMELY Commenced- but is thereafter dismissed before trial… AND

2) At the time of the dismissal-- the SoL has either expired or has less than 6 months remaining....

THEN… P gets 6 MONTHS from the date of dismissal to RE-FILE the same action and serve process on the same Df

Front 181

SoL

What are the EXCEPTIONS to the 6-Month Grace Period?

Back 181

6-Month Grace Period does NOT Apply Where:

1) Dismissal was ON THE MERITS
Res Judicata AND SoL would prevent

2) VOLUNTARY DISCONTINUANCE by P
i.e. P drops the suit

3) Dismissal based on P’s NEGLECT TO PROSECUTE—IF—Neglect consisted of a “General Pattern of Delay”
Two Parts: 1) Neglect to prosecute; and 2) General Pattern of Delay → If both are not present → 6-Month grace period is still available

4) Dismissal Based on LACK OF IPJ
vs. Dismissal for Lack of SMJ—where P still gets the 6-month Grace Period

Examples Where Lack of IPJ cancels out the Grace-Period Rule (where P cannot use it)
o Defect in the Form of the Summons
o Improper Service of Process
o Out-of-state service in case where there was no long-arm statute

NOTE: This rule puts pressure on P to make sure he commences the action properly → because if he screws up—No 2nd Bite at the Apple!!

Front 182

SoL

6-Month Grace Period

Rule & Exceptions?

Back 182

IF…

1) NY Action is TIMELY Commenced- but is thereafter dismissed before trial… AND

2) At the time of the dismissal-- the SoL has either expired or has less than 6 months remaining....

THEN… P gets 6 MONTHS from the date of dismissal to RE-FILE the same action and serve process on the same Df

** EXCEPTIONS**
6-Month Grace Period does NOT Apply Where:

1) Dismissal was ON THE MERITS
Res Judicata AND SoL would prevent

2) VOLUNTARY DISCONTINUANCE by P
i.e. P drops the suit

3) Dismissal based on P’s NEGLECT TO PROSECUTE—IF—Neglect consisted of a “General Pattern of Delay”
Two Parts: 1) Neglect to prosecute; and 2) General Pattern of Delay → If both are not present → 6-Month grace period is still available

4) Dismissal Based on LACK OF IPJ
vs. Dismissal for Lack of SMJ—where P still gets the 6-month Grace Period

Examples Where Lack of IPJ cancels out the Grace-Period Rule (where P cannot use it)
o Defect in the Form of the Summons
o Improper Service of Process
o Out-of-state service in case where there was no long-arm statute

NOTE: This rule puts pressure on P to make sure he commences the action properly → because if he screws up—No 2nd Bite at the Apple!!

Front 183

What happens where C/A arises outside of NY and SoL of the other state is different from that of NY?

Back 183

BORROWING STATUTE rules apply...

Borrowing Statute:: Intended to prevent FORUM-SHOPPING by Non-Resident Ps seeking longer SoL in NY

***
(1) If P is a NON-RESIDENT of NY…
NY Courts will apply the SoL of the State where the Claim Arose IF… it is SHORTER than that of NY

NY Courts will apply the SoL of NY IF…The State where the C/A arose has a LONGER SoL than that of NY

***
(2) If P was a NY RESIDENT…
NY will ALWAYS apply NY SoL—regardless of whether NY is longer/shorter than where the SoL arose

•Rationale: you live here → so NY SoL applies

Front 184

JURISDICTION OVER THE PARTICULAR CASE

Due Process Rule?

Back 184

GENERAL RULE
Before a state court may hear a case → Due Process requires that there be:

1) A Basis of Jx; AND

2) Adequate Notice and an Opportunity to Defend

Front 185

For a VALID JUDGMENT-- Need...

Back 185

DUE PROCESS REQUIREMENTS

1) A Basis of Jx; AND
2) Adequate Notice and an Opportunity to Defend

AND

➢ In addition to SMJ → Need THREE ADDITIONAL ELEMENTS
1) Proper Commencement of the Action
2) Proper Service of Process on Df
3) Proper Basis of Jx over the Person or Property Involved in the Action

Front 186

How is an action commenced?

Back 186

By filing process w the county clerk

Front 187

What does "VALID JUDGMENT" mean?

Back 187

VALID Judgment—i.e. one which can be enforced in NY and is entitled to “full faith and credit” in other states

Three Elements Needed
1) Proper Commencement of the Action
2) Proper Service of Process on Df
3) Proper Basis of Jx over the Person or Property Involved in the Action

Front 188

What are the two types of process?

Back 188

1) summons and notice
2) summons and complaint

Front 189

When must service be accomplished in order for the filing of process to be valid?

Back 189

w/in 120 days of filing

Front 190

When may a court extend the 120-day time period for serving process after filing process?

Back 190

Court has discretion to extent the time period
1) for good cause
2) in the interest of justice

Front 191

COMMENCING AN ACTION

Procedure

Back 191

REMEMBER: If the bar says the action has been “duly commenced” → Do NOT discuss this issue!

STEP 1: File Process With Clerk of the Court
* Action is “COMMENCED”—By FILING PROCESS with the Clerk of the Court

DEF: Process
1) Summons & Notice OR Summons & Complaint
2) Supreme Court Actions

Clerk of the Court = COUNTY Clerk—NOT Supreme Court Clerk

* FILING must be accompanied by payment of a FEE for the PURCHASE OF AN “INDEX NUMBER”


STEP 2: Service of Process on Df
For Valid Commencement → Process must be served on Df within 120 DAYS of filing with the County Clerk

-- If P has trouble serving Df within the 120 day period:
Court has discretion—upon P’s motion—to EXTEND the time to make service IF:

P Can Show Either:
(a) Good Cause: Measured by P’s diligence;
(b) Interest of Justice: Purely discretional


If Df Wants to Challenge P’s Untimely Service of Process: “Use it or Lose it” Applies

Df must raise the untimely service by Motion to Dismiss


* If Df FAILS to raise the defense of untimely service → the defense is WAIVED

Front 192

COMMENCING AN ACTION

Step 1 and Step 2

Back 192

STEP 1: File Process With Clerk of the Court
* Action is “COMMENCED”—By FILING PROCESS with the Clerk of the Court

Clerk of the Court = COUNTY Clerk—NOT Supreme Court Clerk

* FILING must be accompanied by payment of a FEE for the PURCHASE OF AN “INDEX NUMBER”


STEP 2: Service of Process on Df
For Valid Commencement → Process must be served on Df within 120 DAYS of filing with the County Clerk

Front 193

DEF: Process

Back 193

1) Summons & Notice OR Summons & Complaint
2) Supreme Court Actions

Front 194

What Happens If P has trouble serving Df within the 120 day period?

Back 194

Court has discretion—upon P’s motion—to EXTEND the time to make service IF:

P Can Show Either:
(a) Good Cause: Measured by P’s diligence;
(b) Interest of Justice: Purely discretional

Front 195

If Df Wants to Challenge P’s Untimely Service of Process:

Back 195

“Use it or Lose it” Applies

-- Df must raise the untimely service by Motion to Dismiss

-- If Df FAILS to raise the defense of untimely service → the defense is WAIVED

Front 196

What happens If P makes a mistake in the Filing Procedure (such as serving process before filing, or failing to purchase an index number)?

Back 196

Court has discretion—upon P’s motion—to permit correction of the mistake—SO LONG AS…

1) Df is NOT PREJUDICED
2) The Filing occurs within the SoL; and
3) The Filing Fee is Paid

Front 197

NOTICE

- Requirements?

Back 197

NOTICE: Requirements:

(1) Brief Statement of the Nature of the Action
Ex: “Personal Injury Case based on Negligence”

(2) The Type of RELIEF Sought
Ex: injunction

(3) IF P Seeks Damages → Must Specify the AMOUNT

EXCEPTION: In a personal injury or wrongful death case → must NOT specify the amount

Rationale: Tort Reform: keep press/public from seeing big $$ and looking to sue on similar facts

Front 198

NAKED SUMMONS

- Definition?
- Rule?

Back 198

DEF: Naked Summons

Where P attempts to commence the action with a summons that is unaccompanied by either a complaint or notice


RULE: Where P attempts to commence the action with a “naked” summons → there is held to be a DEFECT in IPJ

EFFECT: The action is subject to DISMISSAL for this reason alone if Df makes a timely jurisdictional objection

Front 199

What is ADEQUATE SERVICE?

Back 199

GENERAL RULE = Service is “adequate” if it follows statutory procedure and is “reasonably calculated to apprise interested parties of the pendency of the action”

Front 200

Who may serve process?

Back 200

1) 18 Years or older

2) NOT a party to the action
A party’s attorney or spouse = OK to serve

Front 201

WHEN may process be served (days of the week)?

Back 201

RULE: Process may be served on ANY DAY—EXCEPT…
1) Sundays
2) Saturday-Sabbath

If Df is a Saturday-Sabbath observer and P knows it
** However: If P does NOT know this → the innocent mistake is OK


* HOLIDAYS: OK—so long as its not a Sunday

Front 202

FORMALITIES Of the STATUTORY PROVISIONS For Proper Service of Process

Back 202

KEY POINT
P MUST Conform to the FORMALITIES Of the STATUTORY PROVISIONS For Proper Service of Process

Rationale: P is invoking the power of the courts...

Therefore: If he wants the Court’s help in obtaining relief, he should be required to follow the Court’s guidelines “with precision”

Front 203

What are the Methods of Serving Process on NATURAL PERSONS?

Back 203

FIVE TRADITIONAL METHODS
1. Personal Delivery to Df
2. Leave and Mail
3. Affix and Mail (aka “Nail and Mail”)
4. Service Upon Designated Agent
5. Expedient Service


1 NON-TRADITIONAL METHOD:
Service By First-Class Mail PLUS Acknowledgment

Front 204

What are the Methods of Serving Process on NATURAL PERSONS?

Back 204

FIVE TRADITIONAL METHODS
1. Personal Delivery to Df
2. Leave and Mail
3. Affix and Mail (aka “Nail and Mail”)
4. Service Upon Designated Agent
5. Expedient Service

1 NON-TRADITIONAL METHOD:
Service By First-Class Mail PLUS Acknowledgment

Front 205

PERSONAL DELIVERY TO DEFENDANT

Rules?

Back 205

RULE: Service by personal delivery is “COMPLETE” upon process server’s “tender of summons directly to Df”

Df’s Response Time: Measured from the date that service is “complete”

If Df REFUSES to Accept Delivery of Process:
• Process server may leave the process in Df’s IMMEDIATE VICINITY
• Leave it on his desk; if he run’s away → throw it at his feet!

Front 206

PERSONAL DELIVERY TO DEFENDANT

When is service complete?

Back 206

RULE: Service by personal delivery is “COMPLETE” upon process server’s “tender of summons directly to Df”

Df’s Response Time: Measured from the date that service is “complete”

Front 207

Following service of process, defendant's response time is measured by...

Back 207

Measured from the date that service is “complete”

Front 208

What happens if D refuses to accept personal delivery of process?

Back 208

Process server may leave the process in Df’s IMMEDIATE VICINITY

Leave it on his desk; if he run’s away → throw it at his feet!

Front 209

Ex: P- Ned Flanders, files an action against Homer Simpson (Df) and P sends the process server to Homer’s house, where Homer’s 15yr old son, Bart, is mowing the front lawn. If the process server delivers the summons to Bart, who then runs inside and hands it to Homer, has there been valid service of process?

Back 209

NO—b/c this is “re-delivery” → must be PERSONAL DELIVERY by process server himself (no go-betweens!)


NOTE: This action is subject to dismissal if Df timely asserts the defense of Lack of Proper Service

Front 210

SERVICE OF PROCESS

LEAVE AND MAIL Method

2 Steps?

Back 210

RULE: Service by the Leave and Mail Method is VALID IF… {TWO STEPS}

1) Process server DELIVERS to a person of suitable age and discretion at Df’s ACTUAL dwelling place or ACTUAL place of business; AND

2) P MAILS a copy of process by regular mail to Df at Df’s ACTUAL place of business or LAST KNOWN residence



MIX AND MATCH
• RULE: Mix and Match = OK… i.e. Mailing and delivery need NOT be made to the SAME location

Front 211

SERVICE OF PROCESS

LEAVE AND MAIL Method

"Suitable Age and Discretion"

Back 211

STEP 1) Process server DELIVERS to a person of suitable age and discretion at Df’s ACTUAL dwelling place or ACTUAL place of business

“Suitable Age and Discretion”
o Need NOT be an adult—no age is actually specified
o NY Decisions: 13yrs/older = OK

Front 212

SERVICE OF PROCESS

LEAVE AND MAIL Method

Apartment Buildings?

Back 212

Apartment Buildings

If the process server is prevented from going up to the actual apartment due to security guard → may leave the process in the lobby with the guard/ at the front desk and this step will be satisfied

Front 213

SERVICE OF PROCESS

If more than one defendant?

Back 213

RULE: If the suit is against MORE THAN ONE DF → EACH Df must be served with his own set of process

Front 214

SERVICE OF PROCESS

LEAVE AND MAIL Method

"Time Limits"

Back 214

TIME LIMITS

Two Requirements
1. The 2 service steps must be performed within 20 DAYS of ech other; AND

2. Both steps must take place within 120 DAYS from filing process

•ORDER In Which These Steps Occur – IRRELEVANT
Does NOT matter if delivery or mailing happen first—so long as both are within 20 days of each other

Front 215

DEF: Proof of Service

Back 215

An affidavit by the process server describing the details of service—i.e. date, time, place, description of the person served, due diligence if relevant

Front 216

DEF: Proof of Service

Back 216

An affidavit by the process server describing the details of service—i.e. date, time, place, description of the person served, due diligence if relevant

Front 217

What is the effect of Plaintiff's FAILURE to file PROOF OF SERVICE?

Back 217

** NOT a jurisdictional defect → Therefore: NOT a grounds for dismissal


Only Consequence = Postpones Df’s time to respond → Therefore Df cannot be held in default

Front 218

PROOF OF SERVICE

“Leave and Mail” AND “Affix and Mail” Service

Back 218

Must file PROOF OF SERVICE after the two service steps have been performed

** Service is not “COMPLETE” until this step has been taken!


** For Both of these service methods → Service is deemed “COMPLETE” 10 DAYS after proof of service is filed
- This is when Df’s response time begins to run

Front 219

Will and Grace (joint tortfeasors) live in a high-rise apartment building. When the process server arrives at the building, she is told by the guard that she may not go up to Will and Grace’s apartment. Would service be valid if one copy of the summons and complaint is left with guard and a second copy is then mailed to Will and Grace at their apartment address 10 days later, and within 120 days from the filing process?

Back 219

NO

GUARD = suitable age and discretion → OK

DELIVERY: actual dwelling place → OK (b/c RULE = lobby is sufficient b/c process server was not allowed upstairs due to the guard)

MAILING: within 10 days of delivery → OK


** PROBLEM ** Only one copy of process was delivered to the guard and only 1 copy was mailed → we have two Df’s here → requires 2 copies to the guard and 2 separate mailings (b/c each Df is entitled to their own service)

Front 220

Service of Process

AFFIX AND MAIL/ "NAIL AND MAIL"

Nutshell?

Back 220

NUTSHELL: Sounds and works just like Leave and Mail—BUT…

Process server must first exercise DUE DILIGENCE


DEF: Affixing
Tape, rubber band, etc

Front 221

Service of Process

AFFIX AND MAIL/ "NAIL AND MAIL"

Where is it affixed?

Back 221

Process server may....
(nearly identical to Leave and Mail)

(1) affix process to the door of Df’s ACTUAL dwelling place or ACTUAL place of business—AND

(2) MAIL a copy by regular mail to DF at Df’s ACTUAL place of business or LAST KNOWN residence

Front 222

Service of Process

AFFIX AND MAIL/ "NAIL AND MAIL"

Time Limits?

Back 222

(Same as Leave and Mail)

- Affixing and Mailing must be performed within 20 DAYS of each other

- Both steps must be completed within 120 DAYS from Date of Filing Process


NOTE: Order in which it occurs = irrelevant

Front 223

Service of Process

AFFIX AND MAIL/ "NAIL AND MAIL"


What is the EXTRA REQUIREMENT?

Back 223

DUE DILIGENCE

Before P can use this method...

Process server must FIRST exercise DUE DILIGENCE BY:
1) Making an attempt to serve DF DIRECTLY; and (if that fails);

2) Trying to leave process with a person of suitable age and discretion at the home or place of business

RULE: Due Diligence requires:
Several attempts on different days of the week AND at different times; AND

Must do research (find out where Df is)

Front 224

Service of Process

AFFIX AND MAIL/ "NAIL AND MAIL"


What is the preliminary requirement to be able to use this method?

Back 224

DUE DILIGENCE

Before P can use this method...

Process server must FIRST exercise DUE DILIGENCE BY:
1) Making an attempt to serve DF DIRECTLY; and (if that fails);

2) Trying to leave process with a person of suitable age and discretion at the home or place of business

RULE: Due Diligence requires:
Several attempts on different days of the week AND at different times; AND

Must do research (find out where Df is)

Front 225

Service of Process

AFFIX AND MAIL/ "NAIL AND MAIL"


"DUE DILIGENCE"

Back 225

DUE DILIGENCE

Before P can use this method...

Process server must FIRST exercise DUE DILIGENCE BY:
1) Making an attempt to serve DF DIRECTLY; and (if that fails);

2) Trying to leave process with a person of suitable age and discretion at the home or place of business

RULE: Due Diligence requires:
Several attempts on different days of the week AND at different times; AND

Must do research (find out where Df is)

Front 226

Service of Process

SERVICE UPON DESIGNATED AGENT

Back 226

** Be Careful: This is a SPECIAL type of agent


** Must show that the agent is “specifically designated” or this method will NOT work!


Ex: Specifically Designated
By written commercial K, a party may “expressly specify” an agent upon whom process may be served in disputes arising from the K (needs to be THIS SPECIFIC)

Front 227

Service of Process

EXPEDIENT SERVICE (“Court-Invented Service”)

Back 227

If the other 4 methods are “NOT PRACTICABLE” ...

P may make an EX PARTE motion to the court for an ORDER allowing an improvised, EXPEDIENT method

DEF: Expedient Method
Some reasonable alternative appropriate in the circumstances


Ex: service on Df’s family member, liability insurer, business associate; service by email


REMEMBER: This method can ONLY occur with Court permission (i.e. an ORDER) after an EX PARTE application has been made!


* Service By Publication in a Newspaper
CAN be OK—BUT—cannot improvise like this unless Court gives you the go-ahead

Front 228

Service of Process

EXPEDIENT SERVICE

Back 228

aka "COURT-INVENTED SERVICE"

If the other 4 methods are “NOT PRACTICABLE” ...

P may make an EX PARTE motion to the court for an ORDER allowing an improvised, EXPEDIENT method

DEF: Expedient Method
Some reasonable alternative appropriate in the circumstances


Ex: service on Df’s family member, liability insurer, business associate; service by email


REMEMBER: This method can ONLY occur with Court permission (i.e. an ORDER) after an EX PARTE application has been made!


* Service By Publication in a Newspaper
CAN be OK—BUT—cannot improvise like this unless Court gives you the go-ahead

Front 229

What is the NON-TRADITIONAL METHOD of service of process?

Back 229

➢ SERVICE BY FIRST-CLASS MAIL PLUS ACKNOWLEDGMENT

Front 230

Service of Process

"SERVICE BY FIRST-CLASS MAIL PLUS ACKNOWLEDGMENT"

- What kinds of defendants is this available for?

Back 230

ALL TYPES of Dfs—Natural Persons AND Corporations

EXCEPTION: Infants and Mentally Incapacitated persons for whom Guardians have been Appointed

Front 231

How do you Serve Via First-Class Mail + Acknowledgment?

Back 231

1st—Must MAIL process to Df by First Class mail…

PLUS: Must eclose two copies of a statutory ACKNOWLEDGMENT FORM…

PLUS: Return envelope with prepaid postage, and addressed to the sender


** TO BE EFFECTIVE SERVICE OF PROCESS:
Df must SIGN and RETURN one of the acknowledgment forms to P within 30 DAYS after Df receives the mailed process

Service = “COMPLETE” upon Df’s posting of the signed form

Front 232

Service of Process

"SERVICE BY FIRST-CLASS MAIL PLUS ACKNOWLEDGMENT"


Problem with this method?

Back 232

TO BE EFFECTIVE SERVICE OF PROCESS:
Df must SIGN and RETURN one of the acknowledgment forms to P within 30 DAYS after Df receives the mailed process


Problem with this method = relies heavily on Df’s cooperation

Front 233

Service of Process

"SERVICE BY FIRST-CLASS MAIL PLUS ACKNOWLEDGMENT"

WHAT HAPPENS IF DF DOES NOT RETURN THE ACKNOWLEDGMENT FORM?

Back 233

Service by Mail is then deemed NOT EFFECTIVE...

P must start ALL OVER, using one of the traditional methods above to serve process

HOWEVER: As punishment, Df will be forced to pay P’s expenses that result from the need to start all over

Front 234

Service of Process

"Infants"

Back 234

When Df is an INFANT (under the age of 18) → Df’s name goes on the summons—

BUT…PROCESS must be served on any one of the following adults:

1) Parents
2) Guardians
3) Any Person w/ Legal Capacity
4) If Married → Adult Spouse w/ whom Infant resides

If the Infant is 14YEARS or OLDER:
Process must be served on an Eligible Adult AND the Infant → TWO COPIES of Process are required!


-- How To Serve --
Any of the traditional methods above are sufficient for both the adult and the infant involved

Front 235

Service of Process

"Infants"

How to Serve

Back 235

PROCESS must be served on any one of the following adults:

1) Parents
2) Guardians
3) Any Person w/ Legal Capacity
4) If Married → Adult Spouse w/ whom Infant resides


-- How To Serve --
Any of the traditional methods above are sufficient for both the adult and the infant involved

Front 236

Service of Process

"Infants"

PROCESS must be served on any one of the following adults:

Back 236

PROCESS must be served on any one of the following adults:

1) Parents
2) Guardians
3) Any Person w/ Legal Capacity
4) If Married → Adult Spouse w/ whom Infant resides

Front 237

Service of Process


"MENTALLY INCAPACITATED"

Back 237

When Df is a mentally incapacitated person for whom the COURT HAS APPOINTED A GUARDIAN...

Process must be served on the Guardian AND the incapacitated Df → TWO COPIES of Process required!



If Df is mentally incompetent but NO JUDICIAL PROCEEDING has been brought for the appointment of a GUARDIAN...

Df is served in the same manner as ANY OTHER DF

Front 238

Service of Process

"SERVICE OUTSIDE OF NEW YORK"

Back 238

*** HIGHLY TESTED ***

RULE
The same METHODS that are used to serve a Df WITHIN NY are used when DF is located OUTSIDE NY—so long as—there is a valid basis for out-of-state service

Front 239

NY Case: Df is served in California by a 17-yr old process server who is licensed under CA law, by the affix-and-mail method (which is not recognized by CA law). Is this service valid?

Back 239

YES: NY methods control b/c this is a NY action

17yr old Server: No good in NY → but we’re serving in CA → So CA method is OK

Front 240

Service of Process

CORPORATIONS

What are the METHODS of Service?

Back 240

Two Traditional Methods of Serving a Corporation
1. Personal Delivery
2. Service on the NY Secretary of State


One Non-Traditional Method of Serving a Corporation
1. Service By First Class Mail PLUS Acknowledgment

Front 241

Service of Process

CORPORATIONS

What are the TRADITIONAL methods of service?

Back 241

Two Traditional Methods of Serving a Corporation
1. Personal Delivery
2. Service on the NY Secretary of State

Front 242

Service of Process

CORPORATIONS

NON-Traditional Method of Service?

Back 242

One Non-Traditional Method of Serving a Corporation
1. Service By First Class Mail PLUS Acknowledgment

Front 243

Service of Process

CORPORATIONS

What are the METHODS of Service?

Back 243

Two Traditional Methods of Serving a Corporation
1. Personal Delivery
2. Service on the NY Secretary of State


One Non-Traditional Method of Serving a Corporation
1. Service By First Class Mail PLUS Acknowledgment

Front 244

Service of Process

CORPORATIONS


"Personal Service"

Back 244

[1st Traditional Method]

RULE: If there is a valid Basis of Jx over the Corporation...
Service of Process to a Df Corporation May be made to any one of the following corporate reps by PERSONAL DELIVERY—ANYWHERE in the United States

1. OFFICER of the Corp
2. DIRECTOR
3. DESIGNATED Agent
4. MANAGING Agent
DEF: Managing Agent
Any corporate employee who has supervisory responsibility

Front 245

Service of Process

CORPORATIONS


"Personal Service"-- May be made on who?

Back 245

1. OFFICER of the Corp
2. DIRECTOR
3. DESIGNATED Agent
4. MANAGING Agent
DEF: Managing Agent
Any corporate employee who has supervisory responsibility

Front 246

Service of Process

CORPORATIONS


"Personal Service"-- May be made on where?

Back 246

ANYWHERE in the United States

Front 247

P’s process server walks into the Dunder-Mifflin Corp HQ and leaves process with the receptionist, who later hands it to the President of Dunder-Mifflin. A second copy is sent by regular mail to Dunder-Mifflin at its HQ. Valid Service?

Back 247

• NO—b/c the “Leave and Mail” method is NOT available when serving corporations (only available to serve an INDIVIDUAL)

Front 248

Service of Process

If Df is a DOMESTIC CORPORATION (incorporated in NY)

SERVICE ON THE NY SECRETARY OF STATE-- Rules?

Back 248

Service of Process: Consists of PERSONAL DELIVERY of 2 COPIES of process to the Office of the NY Secretary of State

- Secretary = the designated agent as per the certificate of incorporation or certificate of doing business

- Secretary mails one copy by certified mail to the corporation at the address on file in the Secretary’s office


** Service of Process = COMPLETE upon DELIVERY to the Secretary of State—REGARDLESS of when the corporation actually receives it

Front 249

What is a DOMESTIC Corporation?

Back 249

Incorporated in NEW YORK

Front 250

Service of Process

If Df is a DOMESTIC CORPORATION (incorporated in NY)

SERVICE ON THE NY SECRETARY OF STATE-- When is service complete?

Back 250

** Service of Process = COMPLETE upon DELIVERY to the Secretary of State—REGARDLESS of when the corporation actually receives it

Front 251

Service of Process

If Df is a LICENSED FOREIGN CORPORATION

SERVICE ON THE NY SECRETARY OF STATE-- Rules?

Back 251

*** SAME EXACT RULES AS DOMESTIC CORPORATIONS! ***

Service of Process: Consists of PERSONAL DELIVERY of 2 COPIES of process to the Office of the NY Secretary of State

- Secretary = the designated agent as per the certificate of incorporation or certificate of doing business

- Secretary mails one copy by certified mail to the corporation at the address on file in the Secretary’s office


** Service of Process = COMPLETE upon DELIVERY to the Secretary of State—REGARDLESS of when the corporation actually receives it

Front 252

What is a LICENSED FOREIGN CORPORATION?

Back 252

FOREIGN CORPORATION = (incorporated OUTSIDE NY)

LICENSED corporation = “authorized to do business in NY” (i.e. a

Front 253

What is an UNLICENSED FOREIGN CORPORATION

Back 253

FOREIGN CORPORATION = (incorporated OUTSIDE NY)

UNLICENSED corporation = NOT “authorized to do business in NY” (i.e. a

Front 254

What are the three requirements of the "notice" in a summons and notice commencement?

Back 254

1) brief statement of the nature of the action

2) statement of relief sought

3) if monetary relief → amount being sought

Front 255

What is the effect of D's actual notice on whether process has been validly served?

Back 255

None. Actual notice is irrelevant to a determination of whether process is validly served

Front 256

When is service "complete" for the purposes of personal service on an individual?

Back 256

Service is complete upon the process server's tender of summons directly to the D

Front 257

What are the requirements of the leave and mail method of serving process?

Back 257

Leave, AND
1) Deliver process to person of suitable age and discretion at D’s
A. Actual dwelling place, or
B. Actual place of business

Mail a copy by regular mail to D at D’s
1) Actual place of business or
2) Last known residence

Front 258

What are the relevant time constraints for the leave and mail method of service?

Back 258

he two steps must be performed w/in 20 days of each other, and both steps must take place w/in 120 days of filing process

Front 259

What are the relevant time limits for the affix and mail method of service of process?

Back 259

The two steps must be performed w/in 20 days of each other, and both steps must take place w/in 120 days from filing process

Front 260

When is service complete, for the purposes of leave and mail and nail and mail?

Back 260

10 days after filing proof of service

Front 261

What is expedient - or court-invented - service?

Back 261

Other methods of service impracticable → P may make an ex parte motion to the court for an order allowing an improvised, expedient method

Front 262

What special rules apply to service on an infant?

Back 262

1) D’s name goes on summons
2) Process served on one of the following adults
A. Parent
B. Guardian
C. Any person w legal custody of D
D. If infant married → adult spouse w/ whom infant resides

3) D > 14 → process must be served on adult and infant

Front 263

How do you serve process on a mentally incapacitated D w a guardian?

Back 263

Process must be served on BOTH the guardian and the D

Front 264

How do you serve process on a mentally incapacitated D that has no guardian?

Back 264

Serve D directly

Front 265

How do you serve process on a D outside of NY?

Back 265

Use the same methods as you would to serve a D in NY

Front 266

What are the three ways to serve process on a corporation?

Back 266

1) Personal delivery
2) Service on the NY Secretary of State
3) Service by First-Class mail and acknowledgment

Front 267

How do you serve process on a domestic or licensed corporation, using the the NY Sec of State?

Back 267

Personally deliver two copies to the NY Sec of State

Front 268

How do you serve an unlicensed foreign corporation using the NY Sec of State method?

Back 268

1) personally deliver 1 copy to the Sec of State, and
2) mail 1 copy by certified mail to the corporation

Front 269

Service of Process

UNLICENSED FOREIGN CORPORATIONS

Via NY Secretary of State

Back 269

The Secretary of State is held to be an “IMPLIED AGENT”

P must PERSONALLY DELIVERY ONE copy of process to the Office of the NY Secretary of State—PLUS—

One copy to the Corporation via certified mail + Return receipt requested


In Other Words: Puts the Burden on P—b/c there is nothing on file with NY State ...

Therefore: don’t want to make NYS do the extra work/ research to help P (P should have to do this on his own)

Front 270

OVERVIEW:

What are the Six Bases (Methods) of Obtaining Personal Jx?

Back 270

** 3 By General Jurisdiction **
1. Physical Presence In NY
2. “Doing Business” In NY (Corporate Presence)
3. Domicile in NY


** 3 By Specific Jurisdiction **
4. Long-Arm Statutes
5. Non-Resident Motor Statutes
6. Consent

Front 271

OVERVIEW:

What are the Six Bases (Methods) of Obtaining Personal Jx?

Back 271

** 3 By General Jurisdiction **
1. Physical Presence In NY
2. “Doing Business” In NY (Corporate Presence)
3. Domicile in NY


** 3 By Specific Jurisdiction **
4. Long-Arm Statutes
5. Non-Resident Motor Statutes
6. Consent

Front 272

OVERVIEW:

What are the Six Bases (Methods) of Obtaining Personal Jx?

Back 272

** 3 By General Jurisdiction **
1. Physical Presence In NY
2. “Doing Business” In NY (Corporate Presence)
3. Domicile in NY


** 3 By Specific Jurisdiction **
4. Long-Arm Statutes
5. Non-Resident Motor Statutes
6. Consent

Front 273

OBTAINING PERSONAL JURISDICTION

- 3 Methods by Personal Jx?

Back 273

** 3 By General Jurisdiction **
1. Physical Presence In NY
2. “Doing Business” In NY (Corporate Presence)
3. Domicile in NY

Front 274

OBTAINING PERSONAL JURISDICTION

Methods by Personal Jx?

Back 274

** 3 By General Jurisdiction **
1. Physical Presence In NY
2. “Doing Business” In NY (Corporate Presence)
3. Domicile in NY

Front 275

OBTAINING PERSONAL JURISDICTION

Methods by Specific Jx?

Back 275

** 3 By Specific Jurisdiction **
4. Long-Arm Statutes
5. Non-Resident Motor Statutes
6. Consent

Front 276

OBTAINING PERSONAL JURISDICTION

Methods by Specific Jx?

Back 276

** 3 By Specific Jurisdiction **
4. Long-Arm Statutes
5. Non-Resident Motor Statutes
6. Consent

Front 277

OBTAINING PERSONAL JURISDICTION

"PHYSICAL PRESENCE IN NEW YORK"

Back 277

[GENERAL JX]

Personal Delivery of Process to Df while Df is PHYSICALLY PRESENT in NY

➢ VALID even if Df is from outside of NY and has never been to NY

➢ VALID even if P’s claim revolves around something OUTSIDE of NY!

➢ Mere Presence is enough!

Front 278

OBTAINING PERSONAL JURISDICTION

"DOING BUSINESS RULE"

Applies to what types of corporations?

** Why not the others?

Back 278

Applies ONLY to UNLICENSED FOREIGN CORPORATIONS!!

Why?

Domestic Corporation (Incorporated in NY) is subject to IPJ in NY on ANY CLAIM whatsoever—no matter where in the world the claim arose

➢ Foreign Corporation (incorporated outside NY) that has become “authorized to do business in NY” (i.e. LICENSED) → Same Rule


In Other Words:: the Other Types of Corporations are ALWAYS "DOING BUSINESS IN NEW YORK"-- so ITS NOT NEEDED!!!

Front 279

OBTAINING PERSONAL JURISDICTION

Unlicensed Foreign Corporations-- What test?

Back 279

"DOING BUSINESS" IN NEW YORK

*** HIGHLY TESTED***

Held to be “present in NY” if it is “DOING BUSINESS IN NY”

TEST: “DOING BUSINESS IN NY”
P must show that at the time the action is commenced…

The Corporation’s EMPLOYEES or AGENTS in New York are engaging in commercial activity for the corporation on a REGULAR, SYSTEMATIC and ONGOING BASIS

Front 280

OBTAINING PERSONAL JURISDICTION

When is a domestic corporation subject to general PJ in NY under the "doing business" category?

Back 280

ALWAYS

Front 281

OBTAINING PERSONAL JURISDICTION

When is an authorized foreign corporation subject to general PJ under the "doing business" category?

Back 281

ALWAYS

Front 282

What is a domicile?

Back 282

Residence + intent to stay

Front 283

OBTAINING PERSONAL JURISDICTION

"DOING BUSINESS IN NEW YORK" TEST

Back 283

*** HIGHLY TESTED***

Held to be “present in NY” if it is “DOING BUSINESS IN NY”

TEST: “DOING BUSINESS IN NY”
P must show that at the time the action is commenced…

The Corporation’s EMPLOYEES or AGENTS in New York are engaging in commercial activity for the corporation on a REGULAR, SYSTEMATIC and ONGOING BASIS

MOST SIGNIFICANT FACTOR In determining if a corporation is “doing business in NY”
* An office or other physical facility


But Generally: just look for lots of employees doing lots of business!!


** If This Test is Satisfied:
Service of Process may be made be Personal Delivery to a proper corporate Representative ANYWHERE IN THE UNITED STATES—OR—by service on the NY Secretary of State


* EXCEPTIONS (All come from NY case law)
1) MERE SALES
Mere sales of a corporation’s products in NY does NOT constitute “doing business in NY”

2) MERE ADVERTISING/ SOLICITATION
Mere advertising/ solicitation in NY does NOT constitute “doing business”

3) MERE TRANSIENT PRESENCE
Mere “transient presence” of a corporate officer in NY at time of service on him does NOT qualify as “presence” by the corporate Df in NY OR as “doing business” in NY

Front 284

OBTAINING PERSONAL JURISDICTION

"DOING BUSINESS IN NEW YORK" TEST

- Exceptions?

Back 284

* EXCEPTIONS (All come from NY case law)
1) MERE SALES
Mere sales of a corporation’s products in NY does NOT constitute “doing business in NY”

2) MERE ADVERTISING/ SOLICITATION
Mere advertising/ solicitation in NY does NOT constitute “doing business”

3) MERE TRANSIENT PRESENCE
Mere “transient presence” of a corporate officer in NY at time of service on him does NOT qualify as “presence” by the corporate Df in NY OR as “doing business” in NY

Front 285

OBTAINING PERSONAL JURISDICTION

"DOING BUSINESS IN NEW YORK" TEST

- Exceptions?

Back 285

* EXCEPTIONS (All come from NY case law)
1) MERE SALES
Mere sales of a corporation’s products in NY does NOT constitute “doing business in NY”

2) MERE ADVERTISING/ SOLICITATION
Mere advertising/ solicitation in NY does NOT constitute “doing business”

3) MERE TRANSIENT PRESENCE
Mere “transient presence” of a corporate officer in NY at time of service on him does NOT qualify as “presence” by the corporate Df in NY OR as “doing business” in NY

Front 286

OBTAINING PERSONAL JURISDICTION

"DOING BUSINESS IN NEW YORK" TEST

- What is the effect of satisfying the test?

Back 286

** If This Test is Satisfied:
Service of Process may be made be Personal Delivery to a proper corporate Representative ANYWHERE IN THE UNITED STATES—OR—by service on the NY Secretary of State

Front 287

OBTAINING PERSONAL JURISDICTION

"DOING BUSINESS IN NEW YORK" TEST


- What is the TEST?
- Factors?

Back 287

TEST: “DOING BUSINESS IN NY”
P must show that at the time the action is commenced…

The Corporation’s EMPLOYEES or AGENTS in New York are engaging in commercial activity for the corporation on a REGULAR, SYSTEMATIC and ONGOING BASIS

MOST SIGNIFICANT FACTOR In determining if a corporation is “doing business in NY”
* An office or other physical facility


But Generally: just look for lots of employees doing lots of business!!

Front 288

"DOING BUSINESS" In New York Test?

Must P be suing on a claim that arose from the corporation’s NY business?

Back 288

NO

Doing Business = form of “PRESENCE JURISDICTION” → i.e. General Jx


Therefore: claim need not have any relationship to New York

Front 289

"DOING BUSINESS" In New York Test?

Relationship of the claim to New York State

Back 289

• NO
• Doing Business = form of “PRESENCE JURISDICTION” → i.e. General Jx
• Therefore: claim need not have any relationship to New York

Front 290

Assume Ink Inc., a DE corporation that is not licensed in any other state, manufactures printing ink (in DE), which is sold in NY by independent retailers. Ink advertises in the NY media but has no offices in NY. One day, the president of Ink comes to NY to attend a trade show, and π, who was injured by an Ink product in PA, has process served on the president while she is here. Has personal jurisdiction been acquired over Ink for π's NY action?

Back 290

NO—b/c it is missing the element of CONTINUOUS COMMERCIAL ACTIVITY in NY

- No physical facility; no regular/ systematic basis
- Mere Sales/ Mere solicitation are NOT enough
- Transient presence of the corporate officer are NOT enough

Front 291

OBTAINING PERSONAL JURISDICTION

"DOMICILE IN NEW YORK"

Back 291

RULE: Individual Df who is a domiciliary of NY at the time the action is commenced can be served with process ANYWERE in the US

- This will give P a basis of GENERAL JX over the NY domiciliary (i.e. ANY CLAIM—no matter WHERE it arose!)


➢ Domicile vs. Residence
DEF: Residence
Place where a person lives for a fair amount of time with some degree of permanency

- Person can have MULTIPLE residences!


DEF: Domicile
The ONE residence at which a person INTENDS TO REMAIN indefinitely and is treated by him as the principal home

Front 292

➢ Domicile vs. Residence

Back 292

DEF: Residence
Place where a person lives for a fair amount of time with some degree of permanency

- Person can have MULTIPLE residences!


DEF: Domicile
The ONE residence at which a person INTENDS TO REMAIN indefinitely and is treated by him as the principal home

Front 293

OBTAINING PERSONAL JURISDICTION

"DOMICILE IN NEW YORK"

Back 293

RULE: Individual Df who is a domiciliary of NY at the time the action is commenced can be served with process ANYWERE in the US

- This will give P a basis of GENERAL JX over the NY domiciliary (i.e. ANY CLAIM—no matter WHERE it arose!)

Front 294

➢ Specific Jx vs. General Jx

Back 294

General Jx—allows the court to adjudicate ANY CLAIM—no matter where it arose


Specific Jx—the SPECIFIC LOCATION where the C/A actually arose becomes the critical issue
- Court can adjudicate only claims that are “specific” to acts that arose in NY

- Therefore: If possible → P will always try to obtain Personal Jx thru a method that allows the Court to have GENERAL JURISDICTION over the Defendant!

Front 295

What are the five categories of long-arm jurisdiction?

Back 295

1) Transaction of business by D in NY
2) K made outside NY, in which D agrees to provide goods and services in NY
3) Commission of tortious act in NY
4) Tortious act outside NY, which causes injury in NY
5) D’s ownership, use, or possession of real property in NY

Front 296

What are the five categories of long-arm jurisdiction?

Back 296

1) Transaction of business by D in NY
2) K made outside NY, in which D agrees to provide goods and services in NY
3) Commission of tortious act in NY
4) Tortious act outside NY, which causes injury in NY
5) D’s ownership, use, or possession of real property in NY

Front 297

➢ GENERAL POINTS TO REMEMBER ABOUT LONG-ARM STATUTES

Back 297

1. It covers ALL types of defendants—corporations, individuals, partnerships, etc

2. The acts giving rise to jx can be performed by the Df himself OR by his agent or employee

NOTE: the agent/ employee’s acts in NY will also subject the agent/ employee himself to NY Jx

3. Even if Df dies → decedent’s estate rep can be served OUTSIDE of NY!

4. Serving Process: P must use the same methods of service on Df outside NY as he would inside NY

Front 298

➢ LONG-ARM JX: ANALYTICAL FRAMEWORK

Back 298

STEP 1: Can P establish jx under any NON-Long-Arm categories?

STEP 2: Discuss whether the facts of P’s case fall within one or more of the Long-Arm categories

- TIP: Devote most of your time to this step!!
Talk about the FACTS—how they fit into the long-arm category

STEP 3: Briefly discuss whether the particular assertion of jx would satisfy constitutional Due Process

Front 299

LONG-ARM JURISDICTION

➢ Category #1: TRANSACTIONS OF BUSINESS IN NY

Back 299

*** CRITICAL—MUST KNOW!! ***

APPLIES WHERE: P’s claim arises from a transaction of business by Df in NY


** “Doing Business” vs. “Transaction of Business”
Doing Business = continuous NY business activity → confers General IPJ

Transaction of Business = single commercial event in NY that must give rise to the C/A sued upon

Front 300

o HYPO Assume Pete Rose (of OH) reads an employment ad in the Cincinnati Gazette for a position as casino manager to work (in OH) for Trump Casinos, a NY company. Pete comes to NY for 1 day for an interview with Trump, during which substantial negotiations take place. At the end of the day, Pete signs a contract, and for the next 3 years manages the casino in OH, never again setting foot in NY. Trump sues Pete in NY, alleging breach of the contract, and serves process on Pete in OH. Does the Court have IPJ?

Back 300

• YES—Long-Arm Statute: Trumps C/A for breach of K arises from a valid TRANSACTION OF BUSINESS by Pete (Df) in NY → Allows for valid long-arm service of process

Front 301

o HYPO: Assume Pete Rose (of OH) reads an employment ad in the Cincinnati Gazette for a position as casino manager to work (in OH) for Trump Casinos, a NY company. Pete comes to NY for 1 day for an interview with Trump, during which substantial negotiations take place. Pete, after negotiating in NY, did not sign the contract until he was back home in Ohio and mailed the contract to Trump from Ohio. Valid IPJ?

Back 301

YES

Long-Arm Statute: Trumps C/A for breach of K arises from a valid TRANSACTION OF BUSINESS by Pete (Df) in NY → Allows for valid long-arm service of process

RULE = Not required to show that Df signed a K in NY to show he had a TRANSACTION Of BUSINESS in NY

NEGOTIATIONS: may be enough if P’s claim arises from those negotiations

Front 302

LONG-ARM JURISDICTION

Category #1: TRANSACTIONS OF BUSINESS IN NY

➢ SUB-ISSUE: ELECTRONIC TRANSMISSIONS

Back 302

In some cases Df’s phone, electronic and mail transmissions from out of state—if SUBSTANTIAL in NUMBER and relating to the PERFORMANCE of a significant contract → can rise to the level of a “transaction of business in NY”

REQUIREMENTS
(1) The CONTRACT—must be BIG (lots of $$$)
(2) Must have a substantial amount of back and forth communicating

HOWEVER: a single telephone call to NY by an out-of-state buyer does NOT qualify as a sufficient transaction in NY by the Buyer!

• *** TIP ***
LOOK OUT FOR THE FOLLOWING EXAMPLE ON THE BAR – This is a recent NY decision → VERY TESTABLE!!

Example: Δ, In California, called π, a NY attorney, to retain π’s legal services in a copyright dispute pending in California. During the course of a two-year representation, Δ sent hundreds of documents to π in NY and discussed the case with π in dozens of phone calls, faxes, and email transmissions to NY. Δ refused to pay for the legal services π rendered. The Court of Appeals held: Even though Δ never physically came to NY, Δ transacted business with π in NY by “projecting himself into NY,” and π’s claim for nonpayment had a substantial nexus to the transaction.

Front 303

LONG-ARM JURISDICTION

➢ Category #2: CONTRACTS FOR GOODS/ SERVICES IN NY

Back 303

APPLIES WHERE: P’s claim arises from a contract that was transacted ANYWHERE—by which Df agreed to SUPPLY Goods/Services in NY

REQUIREMENTS
The K for Goods/Services in NY must be “economically significant”—such as an agreement by Df to ship a sizeable quantity of merchandise to NY or to perform accounting, legal or entertainment services in NY

-- Does NOT include the payment of a DEBT

Front 304

For long-arm j/d based on a K made outside NY, in which D agrees to provide goods and services in NY, what is required of the contract in order to be sufficient?

Back 304

The contract must be economically significant

Front 305

What is the one category of tort in which long-arm j/d cannot be based on commission of a tort in NY, or harm caused in NY?

Back 305

Defamation

Front 306

Buyer in MA makes a phone call to NY Seller to order some goods. Buyer agrees to send a check for the goods upon delivery. NY Seller ships them to MA Buyer, who refuses to pay. Does seller have a basis of Long-Arm jx over Buyer for non-payment (breach) of the K in New York?

Back 306

NO—b/c this is a 1-shot boiler plate phone call from the out of state buyer → does not qualify as a “transaction of business” in NY (held in NY caselaw)

AND—Mere Payment of $$$ in NY is NOT included in this category → must be GOODS/SERVICES supplied by the out-of-state Defendant (i.e. DEFENDANT must be the SELLER/ SHIPPER of the Goods/Services)

Front 307

LONG-ARM JURISDICTION

➢ Category #3—TORTIOUS ACT IN NEW YORK

Back 307

APPLIES WHERE: P’s claim arises from Df’s tortious act in NY

Examples:
• Driving negligently on a NY roadway;
• Making fraudulent statements during sales negotiations in NY
• Converting goods while in NY
• Assaulting P in NY

NOTE: DEFAMATION is NOT included in this category!!

Front 308

LONG-ARM JURISDICTION

➢ Category #4—TORTIOUS ACTS OUTSIDE OF NEW YORK

Back 308

APPLIES WHERE: P’s claim arises from Df’s Tortious act OUTSIDE NY—but which causes injury INSIDE NY

Ex: Df manufactures a defective product in Wisconsin and it explodes in NY

“INJURY IN NY”
The injury must ORIGINATE in NY
-- i.e. any “Lingering After-Effects” of an injury that you BRING BACK to NY with you from an injury suffered outside NY are NOT ENOUGH!!

Ex: Injury to New Yorker while she is in NJ followed by suffering in NY hospital → does not qualify


**** REQUIREMENT ****
In addition to the above—(outside tortious act + inside injury)…

There must exist an ADDITIONAL LINK BETWEEN DF and NY—Consisting of EITHER

(a) Df regularly SOLICITS BUSINESS or engages in any other persistent course of conduct in NY; OR

(b) Df derives SUBSTANTIAL REVENUE from goods used or consumed, or services rendered in NY; OR

(c) Df EXPECTS or SHOULD REASONABLY EXPECT the act to have CONSEQUENCES in NY…AND... derives substantial REVENUE from INTERSTATE of INTERNATIONAL commerce

"COMMERCE"—Must PURPOSEFULLY include NY (i.e. not just mere / abstract “interstate commerce”
-- Must include some effort of Df to participate in NY commercial activity
-- This is the DUE PROCESS Safety Valve (Judge-made rule; not part of the actual statute)

-- Rationale: prevent long-arm from going too far

-- HOWEVER: this “additional linkage” requirement need not rise to the level of “doing business” in NY--------------------------------------------------------------
For Commercial Torts (Fraud, Conversion, Theft of Trade Secrets)…
- Injury In NY = ONLY if P suffers DIRECT financial effects IN NY (loss of NY customers, loss of NY sales, etc)
- If P’s sales are lost in some other sate → NO injury in NY—even if P is a NY Corporation!!

Front 309

LONG-ARM JURISDICTION

➢ Category #4—TORTIOUS ACTS OUTSIDE OF NEW YORK

For Commercial Torts (Fraud, Conversion, Theft of Trade Secrets)…

Back 309

For Commercial Torts (Fraud, Conversion, Theft of Trade Secrets)…
- Injury In NY = ONLY if P suffers DIRECT financial effects IN NY (loss of NY customers, loss of NY sales, etc)
- If P’s sales are lost in some other sate → NO injury in NY—even if P is a NY Corporation!!

Front 310

LONG-ARM JURISDICTION

➢ Category #4—TORTIOUS ACTS OUTSIDE OF NEW YORK


"Injury In New York"

Back 310

“INJURY IN NY”
The injury must ORIGINATE in NY

i.e. any “Lingering After-Effects” of an injury that you BRING BACK to NY with you from an injury suffered outside NY are NOT ENOUGH!!

Ex: Injury to New Yorker while she is in NJ followed by suffering in NY hospital → does not qualify

Front 311

LONG-ARM JURISDICTION

➢ Category #4—TORTIOUS ACTS OUTSIDE OF NEW YORK


"ADDITIONAL LINK"

Back 311

REQUIREMENT: In addition to the above—(outside tortious act + inside injury)…

There must exist an ADDITIONAL LINK BETWEEN DF and NY—Consisting of EITHER

(a) Df regularly SOLICITS BUSINESS or engages in any other persistent course of conduct in NY; OR

(b) Df derives SUBSTANTIAL REVENUE from goods used or consumed, or services rendered in NY; OR

(c) Df EXPECTS or SHOULD REASONABLY EXPECT the act to have CONSEQUENCES in NY…AND... derives substantial REVENUE from INTERSTATE of INTERNATIONAL commerce

"COMMERCE"—Must PURPOSEFULLY include NY (i.e. not just mere / abstract “interstate commerce”
-- Must include some effort of Df to participate in NY commercial activity
-- This is the DUE PROCESS Safety Valve (Judge-made rule; not part of the actual statute)

-- Rationale: prevent long-arm from going too far

-- HOWEVER: this “additional linkage” requirement need not rise to the level of “doing business” in NY

Front 312

LONG-ARM JURISDICTION

➢ Category #4—TORTIOUS ACTS OUTSIDE OF NEW YORK


MUST-KNOW HYPO

Back 312

HYPO BELOW is another fresh NY decision → MUST KNOW THIS….
(Bar examiners LOVE to test fresh Court decisions!!)

HYPO: Assume that in a transaction in Boston, MA, π of NY buys a car from R, a Boston retail dealer who advertises only in MA and neighboring RI. The car was manufactured by M in VT. M's cars are sold by independent retailers in all 50 states, including 15% in NY. π's car blows up in NY. π sues M and R in NY, serving process out of state. Jurisdiction over M? Over R?

As to Manufacturer
-- NOT “DOING BUSINESS” in NY—b/c the products are sold here—but mere sales of a product are not enough for general jx
-- HOWEVER—there IS Long-Arm Statute Jx—b/c P’s claim arises from tortious act OUTSIDE NY that caused injury INSIDE NY… AND (Additional Linkage) – Manufacturer derives SUSBTANTIAL REVENUE from NY
-- NOTE (c) also applies [Expects or Should reasonably expect the act to have consequences in NY]


** As to Retailer **
NO PERSONAL JURISDICTION

-- Interstate Commerce? YES—but NOT purposefully including NY
-- Therefore: 1st part of the long-arm statute is satisfied, but NO additional linkage

-- NOTE: trying to get jx over R in NY would violate (1) the Long-Arm statute AND (2) DUE PROCESS

Front 313

What is the due process requirement for the use of a long-arm statute?

Back 313

Requires conduct purposefully directed to NY, such that D should reasonably anticipate being sued in NY ct

Front 314

When does the non-resident motorist statute confer PJ?

Back 314

Confers PJ over an accident claim arising from a nondomicilliary motorist’s ownership or use of an auto on NY roadway

Front 315

LONG-ARM JURISDICTION

Non-Resident Motorist Statute

-- How is service of process effectuated?

Back 315

1) Personally serve one copy to Sec of St AND
2) Mail one copy by certified mail to D’s out-of-state residence

Front 316

LONG-ARM JURISDICTION

➢ Category #5—DEFENDANT’S OWNERSHIP, USE or POSSESSION OF REAL PROPERTY IN NEW YORK

Back 316

APPLIES WHERE: P’s claim arises from Defendant’s Ownership, Use or Possession of Real Property in New York!

Ex: Connecticut Defendant owns a building in NY and enters into a transaction in CT to sell it to P. Df breaches the K......

P has long-arm jx over Df in NY to sue for damages or specific performance


Ex 2: If P suffers a slip-and-fall accident in Connecticut Df’s building, located in NY→ P has long-arm jx over the CT Df

Front 317

NON-RESIDENT MOTORIST STATUTE

2 Unique Features

Back 317

(1) SERVICE OF PROCESS:
π serves process on Δ by personally serving one copy on the NY Secretary of State PLUS mailing second copy to Δ by certified mail to Δ's out-of-state-residence.
-- This is MUCH easier method!!


(2) Applies to NONDOMICILIARY vehicle owner who GAVE PERMISSION to drive in NY.

An agency or business relationship between the owner and driver is NOT required (as is the case with TORTS)

Front 318

• HYPO: Assume Sarah, of Wasilla, Alaska, loans her car to son Track for a cross-country drive to see the Big Apple, NY. Track is involved in an auto accident while in NY. Plaintiff would have NY jurisdiction over Track based on tortious act in NY (long-arm statute) or the non-resident motorist statute. But, would π have long-arm jurisdiction over Sarah for a claim based on vicarious liability? Could π use the non-resident motorist statute to get jurisdiction over Sarah?

Back 318

LONG-ARM JX?
-- NO—b/c Sarah herself did not commit the tort; AND—she did not act thru an AGENT (as the long-arm requires)


NON-RESIDENT MOTORIST STATUTE?
-- YES—b/c this statute specifically allows for jx over an OWNER of a car who gave PERMISSION to the driver to drive to NY
o ** This is the precisely designed value of this statute!! **

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OBTAINING PERSONAL JURISDICTION

“FORUM SELECTION CLAUSE”

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RULE: parties to a contract may consent in advance to personal jx in NY in a “FORUM SELECTION CLAUSE”

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Matrimonial Actions

- Proper Court?

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PROPER COURT: Supreme Court

Because it is the only court in NY with SMJ for Matrimonial Actions—i.e. those which affect marital STATUS

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Matrimonial Actions

- Basis of Jurisdiction?

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RULE: Valid PERSONAL Jx over Df is NOT necessary for Matrimonial Actions!!
- IN REM Jx will Suffice!


IN REM JURISDICTION
- To obtain a divorce, separation or annulment → all that is necessary is that P-Spouse is a DOMICILIARY of NY

WHY: b/c NY has IN REM JX over the MARRIAGE

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Matrimonial Actions

- "Monetary Support"

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RULE: Unlike pure matrimonial actions (those which affect the STATUS of the marriage)—If P-Spouse also seeks MONETARY SUPPORT → he must have a basis for PERSONAL JURISDICTION over Df-Spouse


MATRIMONIAL LONG-ARM STATUTES:: Where Df Cannot Be Served in NY

RULE: When P-Spouse is a resident of NY → Long Arm Jx can be acquired over Df-Spouse for Monetary Support IF ANY of the following applies:

1) NY was the MATRIMONIAL DOMICILE of P and Df prior to their separation

2) Df ABANDONED P in New York; OR

3) Df’s monetary obligation accrued under an agreement EXECUTED IN NY (ex: separation agreement)

4) CATCH-ALL: Df’s monetary obligation accrued “under the laws of NY”
• No case law examples where this has been used!!

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MATRIMONIAL LONG-ARM STATUTES

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MATRIMONIAL LONG-ARM STATUTES:: Where Df Cannot Be Served in NY

RULE: When P-Spouse is a resident of NY → Long Arm Jx can be acquired over Df-Spouse for Monetary Support IF ANY of the following applies:

1) NY was the MATRIMONIAL DOMICILE of P and Df prior to their separation

2) Df ABANDONED P in New York; OR

3) Df’s monetary obligation accrued under an agreement EXECUTED IN NY (ex: separation agreement)

4) CATCH-ALL: Df’s monetary obligation accrued “under the laws of NY”
• No case law examples where this has been used!!

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Matrimonial Actions

- Service of Process

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RULE: The ONLY proper method of serving process in a matrimonial action is PERSONAL DELIVERY to Df


-- Alternative methods such as deliver-and-mail may NOT be used without Judicial Permission by means of a COURT ORDER

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Matrimonial Actions

- Durational Residency Requirements

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➢ NOTE: This information still applies to Matrimonial Actions—but is going BEYOND the issue of Jurisdiction such an action…. This info is placed here b/c in a fact pattern on an Essay Q—this is the order in which you would place your ANALYSIS!

➢ Durational Residency Requirements = EVEN IF the Court does have jx over the case → if these requirements are not P may still be barred from bringing suit

Residency Requirements = Part of the MERITS (substance) of the Matrimonial Action

• They are NOT an element of the Court’s jx
• PURPOSE: to ensure that NY has a SUFFICIENT INTEREST in the marriage to adjudicate the marital status of the spouses
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(1) If BOTH PARTIES are NY RESIDENTS at the time the action is commenced AND the GROUNDS for the matrimonial action AROSE IN NY

THEN: No period of prior NY residency is required

(2) ONE YEAR RESIDENCY:
If EITHER PARTY has been a NY RESIDENT for a continuous period of at least 1 YEAR immediately prior to the action AND NY has any 1 of 3 possible PRIOR LINKS TO THE MARRIAGE: 


1) Marriage took place in New York; or

2) New York was the matrimonial domicile of the spouses at some point; or
3) Grounds for divorce action arose in New York.

(3) TWO-YEAR RESIDENCY
If EITHER PARTY has been a NY RESIDENT for a continuous period of at least 2 YEARS immediately prior to the action...

.... THEN: 2-year residency standing alone is sufficient (i.e. need not show ANY other prior NY connection to the marriage)

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Matrimonial Actions

- Durational Residency Requirements: 2-Year Residency

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If EITHER PARTY has been a NY RESIDENT for a continuous period of at least 2 YEARS immediately prior to the action...

.... THEN: 2-year residency standing alone is sufficient (i.e. need not show ANY other prior NY connection to the marriage)

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Matrimonial Actions

- Durational Residency Requirements: 1-Year Residency

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(2) ONE YEAR RESIDENCY:
If EITHER PARTY has been a NY RESIDENT for a continuous period of at least 1 YEAR immediately prior to the action AND NY has any 1 of 3 possible PRIOR LINKS TO THE MARRIAGE: 


1) Marriage took place in New York; or


2) New York was the matrimonial domicile of the spouses at some point; or

3) Grounds for divorce action arose in New York.

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Matrimonial Actions

If BOTH PARTIES are NY RESIDENTS at the time the action is commenced AND the GROUNDS for the matrimonial action AROSE IN NY

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THEN: No period of prior NY residency is required

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RULE: If P FAILS to allege and prove satisfaction of at least ONE of the residency requirements... Defendant's response?

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PROPER DEFENSE BY DEFENDANT = “Failure to State a C/A” [NOT Lack of Jx]

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Matrimonial Actions SOLELY to enforce Monetary Support Obligations

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The durational residency requirements do not apply in an action solely to enforce monetary support obligations. They apply only in actions seeking to affect the marital status. The durational residency requirements are also discussed in the Domestic Relations outline.

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Indemnity and contribution

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statute of limitations is 6 years running from the date of actual payment of the judgment for which indemnity or contribution is sought