Ny Practice

Front 1

What is the only court in NY with general subject matter jurisdiction and what does that mean?

Back 1

NY Supreme Court.

The NY Supreme Court is a court of general jurisdiction and has jurisdiction to hear ANY type of case.

Hint 1

None

Front 2

What are the monetary restrictions on the NY SC?

Back 2

None.
The NYSC has unlimited jurisdiction. The other civil courts have limited monetary jurisdiction.

County Courts (Max $25k)
Justice Courts ($3k Max)

Hint 2

None

Front 3

What is the only court in NY that has full equity jurisdiction?

Back 3

NYSC

E.g., Injunctions, Specific Performance, Damages, etc.

Hint 3

None

Front 4

If none of the parties reside in NY, does the NYSC have subject matter jurisdiction to hear the case?

Back 4

Yes, but the court would have discretion to dismiss the action on the ground of Forum NON-CONVENIENS, though this requires a motion on the part of one of the parties.

Hint 4

None

Front 5

The 2 exceptions to NYSC's general jurisdiction are...

Back 5

1. Cases where fed law confers exclusive jurisdiction to fed courts, e.g. bankruptcy, patents, etc.

2. Claims for $ damages in tort, or contract against the State of NY. (Ct of Claims)

Hint 5

None

Front 6

What court has exclusive jurisdiction to hear claims for $ damages in tort or contract against the state of NY?

Back 6

NY Court of Claims

Front 7

Who can be sued in the Court of Claims?

Back 7

Only the State of NY

Front 8

In what court can Nassau County, NY be sued?

Back 8

The SC, since government subdivisions are NOT the state and can be sued in the SC (counties, cities, schools, etc.).

Front 9

What court has exclusive SMJ over matrimonial actions (divorce, separation, annulment, declaration of validity of a marriage);

Back 9

The NY Supreme Court

Front 10

What are the 3 areas in which the NYSC has EXCLUSIVE SMJ?

Back 10

NYSC has exclusive jurisdcition over:
1. Matrimonial actions;
2. Article 78 proceedings (e.g., judicial review of admin action);
3. Declaratory judgment actions.

Hint 10

None

Front 11

To where can cases from the NYSC be appealed?

Back 11

1. Appellate Division;

2. Then, to the NY Court of Appeals, the highest ct in NY.

Hint 11

None

Front 12

What is the statute of limitations?

Back 12

An affirmative defense raised by the defendant, based on the passage of time.

Front 13

In general, when does the SOL begin to run?

Back 13

The Statute of Limitations begins to run when the cause of action accrues. This means when the injury occurs.

Front 14

For personal injury and property damage, when does the SOL begin to run? How about for Breach of Contract?

Back 14

The SoL begins to run when the physical injury occurs. For a contract, the SoL begins the day of the breach regardless of whether the breach was discovered.

Front 15

When an infant is injured in utero, when does the SOL begin to run?

Back 15

The child has no cause of action unless the child is born alive, in which case the SoL begins to run from date of birth.

Front 16

To satisfy SoL, the action must be commenced no later than the last day of the prescribed period of limitations. How is the action commenced?

Back 16

In the NYSC and County Courts -- process (summons and complaint, or summons with notice) must be filed with the proper court clerk on or before the last day of SoL.

Front 17

What is the SoL for Action on judgment?

Back 17

20 years (the longest SoL)

Front 18

What is the SoL for an Action to recover realty?

Back 18

10 years

Same as period for adverse possession.

Hint 18

None

Front 19

What is the SoL for an action by crime victim against convicted defendant?

Back 19

7 years -- Period runs from date of crime.

In case of felony conviction, victim may also sue for damages for up to 3 years from discovery of "profits" of the crime (e.g. book contract).

Hint 19

None

Front 20

What is the SoL for Contracts, express or implied (other than UCC Article 2 - Sales).

Back 20

6 years.

Accrual begins on date of breach, regardless of plaintiff's lack of knowledge.

Hint 20

None

Front 21

What is the SOL for fraud?

Back 21

Plaintiff may sue within 6 years of commission of fraud
OR
2 years of discovery (actual or imputed), whichever is longer.

Hint 21

None

Front 22

What is the SOL for indemnity and contribution?

Back 22

6 years

Accrual on date of payment for which indemnity or contribution is sought.

Hint 22

None

Front 23

What is the SOL for Contracts governed by UCC Article 2 - Sales?

Back 23

4 years

Front 24

What is the SOL for Personal injury based on negligence and strict products liability, property damage, including replevin and conversion and non-medical professional malpractice?

Back 24

3 years.

Personal injury and property damage claims accrue on date original injury occurs.

No discovery rule applies except in cases of toxic substances.

Hint 24

None

Front 25

What is the SOL for Medical, dental and podiatric malpractice?

Back 25

2.5 years.

The Cause of action generally accrues on date of malpractice.

Exceptions for continuous treatment (period runs from end of treatment) and "foreign objects" (one year from discovery if insufficient time under regular rules).

Hint 25

None

Front 26

What is the SOL for Wrongful death? (Statutory cause of action in favor of defendant's distributees where plaintiff's tortious conduct caused death; damages limited solely to distributees' economic losses).

Back 26

2 years.

2 years runs from date of death, except it must ALSO be shown that SoL on plaintiff's underlying personal injury claim had not expired on date of death.

Hint 26

None

Front 27

What is the SOL for Intentional torts to the person?

Back 27

1 year SoL

Intentional torts include: assault, battery, false imprisonment, defamation, emotional distress.

Hint 27

None

Front 28

SOL for Article 78 proceeding? (to challenge action (or inaction) by agencies and officers of state and local government.)

Back 28

4 months.

Front 29

Does the date of discovery of medical malpractice affect the SOL?

Back 29

No. SoL runs from date of treatment.

Exceptions for continuous malpractice (period runs from end of treatment) and
"foreign objects" (one year from discovery if insufficient time under regular rules).

Hint 29

None

Front 30

Where a hospital is sued for the vicarious liability for the malpractice of a doctor working there, what is the SoL?

Back 30

2.5 years, since vicarious liability has the same SoL as that of the employee.

Front 31

If a Hospital is sued on the grounds that it was negligent in hiring a doctor who committed malpractice, what SOL?

Back 31

3 years. This is not a malpractice claim, but a negligence claim with a 3 year SoL.

Front 32

What is the continuous treatment rule for medical malpractice SoL?

Back 32

If the Dr. continues to treat Patient, after the malpractice occurs -- for the EXACT same medical condition that gave rise to the malpractice -- then P gets 2.5 years from the termination of the treatment.

Front 33

What is the foreign object rule for medical malpractice SOL?

Back 33

If Dr. was responsible for introducing a foreign object into P's body and leaves it behind: The SoL is either 2.5 years from the date of the operation or 1 year from the date the P discovered or should have discovered with due diligence the object, whichever is longer. A foreign object is something the Dr. did not intend to leave behind such as a sponge, scalpel, or clamps.

Front 34

What is the SoL for malpractice against a lawyer?

Back 34

3 Years.

For an attorney, accountant, architect, or other professional, the SoL runs from delivery of work product to client -- also subject to the doctrine of continuous representation which is similar to the continuous treatment doctrine applied to doctors.

Hint 34

None

Front 35

When a defective widget causes personal injuries, the P has three possible causes of action which, can all be asserted in the same complaint. What is the S/L as to each theory and when does it begin to run?

Back 35

1. Negligence: 3 years from the date of injury as to all Defendants in the chain of distribution.

2. Strict products liability: The same as negligence: 3 years from the date of injury as to all Defendants in the chain of distribution.

3. Breach of Warranty: UCC determines a 4 year SoL from when the particular Defendant against whom the warrant claim is asserted made its sale of the product.

Hint 35

None

Front 36

What is the SoL for an indemnity and contribution claim?

Back 36

6-years
Running from the date of ACTUAL PAYMENT of the judgment for which indemnity or contribution is sought.

The date of the original transaction or occurrence is irrelevant.

Hint 36

None

Front 37

How is the SoL measured in a toxic substance-exposure case?

Back 37

3 Year SoL.

Starts to run from the date the injury is discovered by plaintiff or should have been discovered by plaintiff with due diligence, whichever is earlier.

Hint 37

None

Front 38

If a doctor injects a toxic substance into P, what is the SOL for malpractice wrt the injection?

Back 38

2.5 years.

The discovery rule for toxic substances is inapplicable to claims of medical malpractice. It applies only to negligence and products liability against (e.g., the manufacturer of the substance.)

Hint 38

None

Front 39

When does the absence of the D toll the SOL?

Back 39

If the D is outside NY when the cause of action accrues, the SoL does not begin to run until D comes to NY, or

If D is in NY when cause of action accrues, but D leaves the state and is continuously absent for at least 4 months, then toll applies to entire period of absence.

EXCEPTION: There is no need for the absence toll if P can get valid personal jurisdiction over the D such that the D can be served outside of the state.

***The Exception usually swallows the rule.

Hint 39

None

Front 40

If the SoL is tolled for a minor or an insane person, and the P reaches 18 or the insanity clears, what is the SoL?

Back 40

If P is an infant or insane at the time the cause of action accrues, the SoL is tolled until the disability ends (infant reaches 18 or insanity clears up).
(1) If the original SoL was 3 years or more: P gets 3 years from the date the disability ends OR the SoL running from the accrued injury, whichever is longer.
(2) If original SoL was less than 3 years: P gets the period specified by the original SoL running from the end of the disability.

Hint 40

None

Front 41

What is the SOL for a 3 year old who suffers injury resulting from medical malpractice?

Back 41

10 years.

When relying on the toll for infancy, a claim for medical malpractice must be commenced no later than 10 years from date of accrual.

Hint 41

None

Front 42

How long can the SoL be tolled for an insane person? How long can the SoL be tolled for an infant's claim for medical malpractice?

Back 42

10 Years for Both.
(1) Claims of insane Ps regardless of the nature or cause of action, become time-barred after 10 years from date of accrual.

(2) When relying on the toll for infancy, a claim of medical malpractice must be commenced no later than 10 years from date of accrual.

Hint 42

None

Front 43

What is the difference between a survival claim and a wrongful death claim?

Back 43

Survival claim is any cause of action P herself could have brought if she were still alive. It is not limited to torts, and recoverable damages include all damages incurred by P prior to death, e.g., pain and suffering.

Wrongful death cause of action is a tort claim for the pecuniary (economic) damages of decedent's statutory distributees (e.g., surviving spouse, children). Punitive damages are also recoverable, but not the emotional suffering of the distributees or the decedent's personal pain and suffering.

Hint 43

None

Front 44

What is the SoL for Wrongful death cause of action?

Back 44

The SoL for a Wrongful death cause of action is 2 years from the date of death, but it must been shown that at the time of death, the SoL for underlying personal injury claim was still timely.

Hint 44

None

Front 45

What is the SoL for a Survival claim?

Back 45

For a Survival Claim:
If the underlying claim was still timely on the date of death, the executor gets wither the remaining time on the SoL for the claim,
OR
1 year from the date of death, whichever is longer. the time remaining on the original claim or 1 year from the date of death, whichever is longer.

Hint 45

None

Front 46

What happens to the SoL if a potential D dies?

Back 46

If potential D dies AT ANY TIME before the SoL expires, 18 months are always added to the relevant SoL period.

(E.g., Car accident on 6/1/2002, guy dies 3 weeks later, Negligence action SoL is 12/1/2006 (3 years + 18 months))

Hint 46

None

Front 47

What is the Last Refuge of a Scoundrel in terms of SoL?

Back 47

If a NY action is timely commenced, but is thereafter dismissed before trial,
AND
at the time of dismissal the S/L has either expired or has less than 6 months remaining, π gets 6 months from date of dismissal to re-file the same action and serve process on same D.

Hint 47

None

Front 48

When is the 6-month grace period inapplicable?

Back 48

There are 4 types of prior dismissals as to which the 6-month grace period is not applicable:
1. PRIOR DISMISSAL ON THE MERITS (e.g. SOL grounds);
2. VOLUNTARY DISCONTINUANCE BY THE PLAINTIFF;
3. PLAINTIFF’S NEGLECT TO PROSECUTE (e.g. failure to cooperate with discovery);
4. LACK OF PERSONAL JURISDICTION, (Dismissal for subject matter jurisdiction you DO get 6 month grace period).

Hint 48

None

Front 49

What is the "Borrowing Statute?"

Back 49

If the cause of action arises outside of NY, a choice of law problem is presented if the S/L of the other state is different from that of NY. The "borrowing statute" is intended to prevent forum-shopping by non-resident π 's seeking a longer S/L in NY.
Here's the rule:
1. If π was a non-resident of NY when the out-of-state claim arose: NY will use the S/L of the state where the claim arose if it is shorter. If it is longer, then use NY SOL. So here it’s 2 years, the FL SOL.
2. If π was a NY resident when the out-of-state claim arose: NY will always apply the NY SOL regardless of whether the other states is longer or shorter.

Hint 49

None

Front 50

In addition to Subject Matter Jurisdiction, what are the other three jurisdictional elements?

Back 50

4 Elements of Jurisdiction are:
1. Subject Matter Jurisdiction;
2. Proper commencement of an action;
3. Proper Service of Process on the ∆; and
4. Personal Jurisdiction over the person or property involved in the action.

Hint 50

None

Front 51

How is an action commenced in the Justice Courts and lower civil courts, i.e., NYC Civil Court, all other city courts, District Courts of Nassau and Suffolk Counties?

Back 51

Serving process on the ∆ (either summons and complaint or summons with notice). Therefore, for these courts the proper commencement and proper service requirements are one and the same.

Front 52

How is an action commenced in courts such as the Supreme Court and County Courts?

Back 52

An action in NYSC or County Courts is commenced by FILING process, i.e., summons and notice or summons and complaint, with the court clerk, which is the COUNTY CLERK, not the Supreme Court Clerk. The filing must be accompanied by payment of a fee for the PURCHASE OF AN INDEX NUMBER.

Hint 52

None

Front 53

After an action commenced In Supreme Court and County Court, how long does P have to serve D with process?

Back 53

120 days

The court has discretion to extend this period if P shows either good cause (due diligence in attempting to serve process) or interests of justice.

Hint 53

None

Front 54

If process is not served in a timely basis, what is D's remedy?

Back 54

If D wants to challenge the timeliness of P's service of process he has to file a motion to dismiss for untimely service. The court still has discretion to grant an extension, even retroactively.

Front 55

What are the two forms of process?

Back 55

1. Summons and Complaint, and
2. Summons and Notice

Hint 55

None

Front 56

What is a summons and complaint?

Back 56

The summons advises a D that P is suing D in a particular court.

The complaint is P's pleading, which specifies the transaction or occurrence that is the subject matter of the action and spells out the essential elements of P's cause of action.

Hint 56

None

Front 57

what is a summons with notice?

Back 57

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.

Front 58

What is sufficient notice for a summons with notice?

Back 58

An abbreviated complaint which has to include:
1. A brief statement of the nature of the action (one sentence is sufficient).

2. Specify the nature of the relief being sought (damages, injunction, etc.)

3. If money damages are sought P must state the amount sought, unless medical malpractice.

Hint 58

None

Front 59

What is the consequence if P files and/or serves a "naked" summons, i.e., unaccompanied by either a complaint or notice?

Back 59

It is a defect in personal jurisdiction subject to dismissal for that reason alone.

Front 60

Who can serve process?

Back 60

Process may be served by any person who is at least 18 years old, provided the person is NOT A PARTY to the action.

Hint 60

None

Front 61

On what days of the week can process be served?

Back 61

Process may be served on ANY day of the week except: 1. Sunday; 2. If D is a Saturday-Sabbath observer, and P knows it, P may not properly serve that particular D on Saturday. Innocent service on such D is not a defect. 3. Service on a holiday, if it does not fall on a Sunday, is allowed, e.g., Thanksgiving.

Front 62

When is personal service to a natural person "complete?

Back 62

Service by personal delivery is "complete" upon process server's tender of summons DIRECTLY to D .

Front 63

What is a PSA and D?

Back 63

Person of suitable age and discretion. Can be a doorman or someone under 18.

Front 64

What is the "leave and mail" form of service on a natural person?

Back 64

Process server may:
1. DELIVER process to person of suitable age and discretion (PSA&D) at D 's actual dwelling place OR actual place of business;
PLUS,
2. mail a copy by regular mail (i.e. first class mail) to D 's actual place of business OR last known residence.

These 2 steps must be performed within 20 days of each other, AND must take place within 120 days from filing process. The delivery and mailing can be done in any order and can mix and choose between the residence and place of business.

Hint 64

None

Front 65

What is "affix and mail" form of service on a natural person?

Back 65

Process server may:
1. AFFIX process to the door of D's actual dwelling place OR actual place of business;
PLUS
2. Mail a copy by regular mail to D at D's actual place of business or last known residence.

Affixing and mailing must be performed within 20 days of each other, and within 120 days from filing process. **** BUT the process server must first exercise due diligence in attempting to serve D directly and to leave process with a person of suitable age and discretion.

Hint 65

None

Front 66

For both leave-and-mail and nail-and-mail, when is service COMPLETE ?

Back 66

10 days after proof of service is filed.

Personal delivery has no requirement for filing proof of service. Proof can be filed, but is not required.

Hint 66

None

Front 67

What is the consequence of Plaintiff's failure to file proof of service?

Back 67

It is NOT a jurisdictional defect, i.e., it is NOT a ground for dismissal.

The only consequence of delay or failure to file proof of service is postponement of defendant's response time. (Proof of service is not required within the 120 day window.)

Hint 67

None

Front 68

When is expedient service used?

Back 68

If the normal methods of service are not practicable, P may make an ex parte motion to the court for an order allowing an improvised method -- some reasonable alternative appropriate in the circumstances, e.g., service on D's liability insurer, service via email.

Front 69

How is process served when the Defendant is an INFANT? How is process served when the Defendant is mentally incapacitated?

Back 69

Infant: Defendant's name goes on the summons but process is served on an eligible adult:
1. Parent;
2. Guardian;
3. Any person having legal custody;
4. If the infant is married, upon an adult spouse with whom he resides. If infant is 14 or over, process must be served on an eligible adult AND the infant.

Mentally Incapacitated: process must be served on the guardian (named by court) AND the mentally incapacitated person.

Hint 69

None

Front 70

How do you serve process when Defendant is OUTSIDE OF NY?

Back 70

The same methods that are used to serve defendant within NY are used when D is located outside NY (this assumes that there is a basis for out-of-state service).

Front 71

Who may serve process in a non-NY jurisdiction?

Back 71

Service of Process outside of NY:
1. Anyone authorized under NY law to serve process (Over 18, non-party);
2. Anyone authorized to serve process by the laws of the jurisdiction where the service is made;
3. Any attorney licensed in the jurisdiction where process is served.

Note: Remember the NY methods must be used.

Hint 71

None

Front 72

How is service of process made on a CORPORATION?

Back 72

Service on a CORPORATION is made by PRESONAL DELIVERY to any one of the following:
1. Officer of the Corp.;
2. Director of the Corp.;
3. Designated agent;
4. Managing agent, (person who has general supervisory authority);
5. Cashier/assistant cashier.

ANYWHERE in the U.S.
** MUST BE BY PERSONAL DELIVERY **

Hint 72

None

Front 73

How else can process be served on a domestic corporation (Incorporated in NY), OR a foreign corporation that is authorized to do business in NY (Aka a licensed corporation):

Back 73

Personally deliver 2 copies of process to the NY Secretary of State.

(Secretary, who is the designated agent as per certificate of incorporation or certificate of doing business, will mail one copy by certified mail to corporation at the address on file in Secretary's office).

Hint 73

None

Front 74

How can process be served on an UNLICENSED FOREIGN corporation?

Back 74

By personal service, or by personally delivering one copy of process to the NY Secretary of State PLUS Plaintiff MAILS one copy to the corporation by certified mail with return receipt requested.

Hint 74

None

Front 75

How is the non-traditional method of Service by First-Class Mail PLUS Acknowledgment performed?

Back 75

Mail process to Defendant by first-class mail, enclosing two copies of a statutory acknowledgment form, plus a return envelope, postage prepaid, addressed to sender. Service will be effective only IF defendant signs and returns one of the acknowledgment forms to plaintiff within 30 days after defendant receives the mailed process. Service is complete upon defendant's posting of the signed form. If the defendant does not return the acknowledgment form then service is NOT effective and plaintiff must serve process all over again.

Front 76

Who may be served by Mail Plus Acknowledgement?

Back 76

Service by this method is available as to all types of Defendants (e.g., natural persons, corporations) EXCEPT infants and mentally incapacitated persons for whom guardians have been appointed. The latter must be served by traditional methods, previously discussed. Service by Mail Plus Acknowledgment may be used regardless of whether the defendant is within or outside NY.

Front 77

Is defendant's return of acknowledgement form a concession that the court has jurisdiction?

Back 77

No. The defendant can still make a motion to dismiss or raise a jurisdictional defense in the answer.

Front 78

What is personal jurisdiction?

Back 78

Personal jurisdiction enables judgment for money damages to be enforced in full.

Front 79

When is a domestic corporation subject to personal jurisdiction in NY?

Back 79

A domestic corporation is subject to personal jurisdiction in NY on any claim whatsoever, no matter where in the world the claim arose. The same applies to a foreign corporation (not incorporated in NY) that has become authorized to do business in NY, i.e., the "licensed" corporation.

Front 80

***When is a foreign corporation subject to personal jurisdiction in NY?

Back 80

At time the action is commenced are the corporation’s employees or agents in NY engaging in commercial activity for the corporation on a continuous, regular, and systematic basis (and have not signed up with the NY Secretary of State).

Front 81

***What is the test for an unlicensed foreign corporation "doing business in NY?"

Back 81

If at the time the action is commenced the corporation's employees or agents are in NY engaging in commercial activity for the corporation on CONTINUOUS, REGULAR & SYSTEMATIC basis. Maintaining an office of some kind in NY enables to conclude the test is satisfied.

Front 82

If an unlicensed foreign corporation that is not otherwise present in NY has an officer that is present temporarily in NY for a trade show, can he be served with process for his corporation?

Back 82

Not doing business in NY. Transient presence by the corporation's officer in NY is NOT enough. It is enough to acquire personal jurisdiction over the president by not the corporation.

Front 83

If defendant is domiciliary of NY at the time the action is commenced, but subsequently moves, does the court have personal jurisdiction?

Back 83

Yes - If defendant is domiciliary of NY at the time the action is commenced, he can be served with process anywhere in the US regardless of where he claim arose.

Front 84

***Distinguish domicile from residence:

Back 84

(1) Residence is a place where a person lives for a fair amount of time with some degree of permanency. A person can have multiple residences.

(2) Domicile is the one residence at which a person intends to remain indefinitely and is treated by her as the principal home. A person has only one domicile.

Hint 84

None

Front 85

***What is LONG-ARM JURISDICTION?

Back 85

BASIC CONCEPT: CPLR 302 (NY's long-arm statute) has its origins in the "minimum contacts" standard of jurisdiction that allows for out-of-state service conferring personal jurisdiction on the basis of certain acts by defendant that have a SUFFICIENT CONNECTION with NY, provided plaintiff’s claim arises from those acts. (Specific Jurisdiction. See Helicopteros Nacionales)

Front 86

***What are the five categories of NY-related activity that can give rise to long-arm jurisdiction?

Back 86

1. Plaintiff's claim arises from a TRANSACTION OF BUSINESS BY DEFENDANT IN NY;
2. Plaintiff's claim arises from a CONTRACT MADE OUTSIDE OF NY IN WHICH DEFENDANT AGREED TO SUPPLY GOODS OR SERVICES IN NY;
3. Plaintiff's claim arises from defendant's commission of a TORTIOUS ACT BY D IN NY. (See note below about exclusion for defamation.);
***4. Plaintiff's claim arises from defendant's tortious act outside NY which causes injury in NY- PLUS there exists some additional link between defendant and NY;
5. Plaintiff's claim arises from defendant's ownership, use or possession of real property in NY.

Hint 86

None

Front 87

***What are the 6 grounds for personal jurisdiction in NY?

Back 87

6 Grounds for PJ:
1. Presence in NY (natural persons);
2. Doing Business in NY (corporations);
3. Domicile in NY (nat. persons);
4. Long-Arm Jurisdiction (any D);
5. Non-Resident Motorist Statute;
6. Consent

Hint 87

None

Front 88

What is the basis for the long-arm statute?

Back 88

That an otherwise not-present D has done one of the 6 things in NY that are sufficient links to NY to assert jurisdiction over him. CONTACTS IN NY.

Front 89

*** What is the test to determine whether the particular assertion of long-arm jurisdiction would satisfy constitutional due process?

Back 89

Due Process is satisfied if the Plaintiff's claim arises out of conduct by the defendant that is so purposefully directed towards NY, that defendant reasonably should have anticipated being haled into a NY court.

Front 90

What is the non-resident motorist statute?

Back 90

Confers personal jurisdiction over an accident claim arising from a non-domiciliary motorist's ownership or use of an auto on a NY roadway. Plaintiff serves process on the D by personally serving one copy on the NY Sec. of State PLUS mailing second copy to D by certified mail to D's out-of-state residence.

Front 91

Where P is a domiciliary of NY, what is the requirement for personal jurisdiction over the D for divorce, separation and annulment?

Back 91

None - Only need that plaintiff be a domiciliary of NY. The reason is that this is an in rem claim and only the marital status needs to be located in NY.

Front 92

What are the 4 grounds for long-arm matrimonial jurisdiction for monetary support?

Back 92

Long-Arm Matrimonial Jurisdcition:
1. NY was the matrimonial domicile of P and D prior to their separation; OR,
2. D abandoned P in NY; OR,
3. D's monetary obligation accrued under an agreement executed in NY, OR,
4. D's monetary obligation accrued "under the laws of NY."

Hint 92

None

Front 93

Can a P in a matrimonial action serve process on D by "Leave and Mail" or "Nail and Mail?"

Back 93

NO. In a matrimonial action the plaintiff cannot use "Leave and Mail" or "Nail and Mail" without a court order.

There is a preference for personal delivery in matrimonial action.

Hint 93

None

Front 94

What is the durational residency requirement if BOTH parties are NY RESIDENTS at the time the divorce action is commenced, AND the GROUNDS for the matrimonial action AROSE IN NY?

Back 94

No period of prior residency is required.

Front 95

Durational Residency Requirements: If EITHER PARTY has been a NY RESIDENT for a continuous period of at least 1 YEAR immediately prior to the action, what else is required to satisfy the durational residency requirement?

Back 95

NY must also have a PRIOR LINK to the marriage, i.e. either:
1. The marriage took place in NY;
2. NY was the matrimonial domicile at some point;
3. The grounds for the action arose in NY.

Hint 95

None

Front 96

Durational Residency Requirements: If EITHER PARTY has been a NY RESIDENT for a continuous period of at least 2 YEARS immediately prior to the action, what is the durational residency requirement?

Back 96

There is no need to show any other link between the marriage and NY.

Front 97

Durational Residency Requirements: If Plaintiff FAILS to allege and prove satisfaction of at least one of the residency requirements, what is the proper defense?

Back 97

Dismissal of the action on its merits due to failure to state cause of action; not lack of jurisdiction.

Front 98

In an action not affecting title or possession to real property, where is the correct venue for the action?

Back 98

Proper venue is ANY county in NY in which any one of the parties resides at the time the action is commenced (not where the action arose). If no party resides in NY any county is proper venue.

Front 99

What is defendant's remedy for improper venue?

Back 99

Improper venue is not a jurisdictional defect, and therefore is not a basis for dismissal.

D's Remedy: Defendant must serve a demand on the plaintiff for change of venue to a proper county designated by the Defendant. Defendant serves the demand with or before service of the answer. If plaintiff concedes there is automatic change of venue. If plaintiff objects or doesn't respond defendant needs to make a motion. Defendant's motion will be granted as a matter of right if Plaintiff chose an improper county and Defendant designated a proper county.

Hint 99

None

Front 100

Can the court grant a CHANGE OF VENUE based on the convenience of a material witnesses?

Back 100

Yes - This is a DISCRETIONARY GROUND. Either party, by motion, may request the court for a change of 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.

Front 101

What are the 2 methods by which a Defendant can respond to the summons and complaint (and thereby avoid default)?

Back 101

Defendant can respond to summons and complaint by either of two methods:

1) Serve an answer. The answer (Defendant's pleading) that responds to allegations of the complaint.

2) Motion to dismiss under CPLR 3211.

Hint 101

None

Front 102

What is contained in the D's answer?

Back 102

Defendant's answer consists of DENIALS of the allegations that D wishes to contest, and any AFFIRMATIVE DEFENSES (e.g., SoL, lack of jurisdiction, P's comparative negligence).

Front 103

If D does not raise a particular affirmative defense in its answer, can it raise it later?

Back 103

No - Affirmative defenses not raised in the answer are WAIVED (subject only to Defendant's possible amendment of the pleadings).

Front 104

If D wishes to assert her own cause of action against P, how can she do this?

Back 104

She may assert her own cause against the P IN THE ANSWER by means of a COUNTERCLAIM.

Front 105

What is the reply?

Back 105

The REPLY is Plaintiff's pleading in response to a counterclaim. The reply consists of denials and affirmative defenses. If there is no counterclaim, Plaintiff cannot serve a reply without court permission.

Front 106

If there is no counterclaim, can Plaintiff serve a reply?

Back 106

If there is no counterclaim, Plaintiff cannot serve a reply without court permission.

Front 107

In a multi-D case, how can one D assert a claim against another D?

Back 107

Defendant may assert any CROSS-CLAIM against any other Defendant. Cross-claims are asserted in Defendant's answer, and they can be based on any type of claim that Defendant has against other Defendants.

Front 108

who must be served with an answer or a reply?

Back 108

Each party must serve a copy of her pleading on all other parties who have appeared in the action.

Front 109

What are INTERLOCUTORY PAPERS?

Back 109

After Plaintiff's initial service of process, all other litigation papers are called INTERLOCUTORY PAPERS. These include the Defendant's ANSWER, all other pleadings, motions, discovery notices, etc. . .

Front 110

How are interlocutory papers served?

Back 110

Interlocutory papers are served by First-Class Mail to the PARTY'S ATTORNEY. Service of an interlocutory paper by mail is deemed made upon the mailing NOT the receipt. MAILBOX RULE.

Front 111

*** If Defendant was served with process by PERSONAL DELIVERY WITHIN NY, what is D's Time Limit for Serving the Answer?

Back 111

Defendant must serve the answer within 20 days of the delivery. Must be WITHIN NY State.

Front 112

If Defendant was served with process by FIRST CLASS MAIL PLUS ACKNOWLEDGMENT, when must D's answer be served?

Back 112

Defendant must serve an answer within 20 days from the date of the defendant's mailing of the acknowledgment. Defendant's return of acknowledgment is merely a notification of Defendant's receipt of process, it is not a pleading.

Front 113

** If Defendant was served with process other than by PERSONAL DELIVERY WITHIN NY or FIRST CLASS MAIL PLUS ACKNOWLEDGMENT, when must D's answer be served?

Back 113

Defendant must serve the answer within 30 days after service is complete.

Front 114

***What are the 8 grounds on which Defendant may move to dismiss a cause of action, prior to service of the answer?

Back 114

("DOWNFALL"):
D Documentary evidence as the basis for a defense (a legally operative document),
O Other action pending between the same parties on the same cause of action;
W Want of capacity of Plaintiff to bring an action e.g., Plaintiff is an infant suing without a proper representative;
N Non-joinder of a necessary party e.g., co-maker of a promissory note.
F Failure to state a cause of action. This motion is directed to the substantive insufficiency of the complaint on its face. (should be denied if there is any basis for relief under substantive law.)
A Affirmative defense as specified by CPLR 3211.
L Lack of personal jurisdiction. (This category includes Lack of basis, Improper service of process, Defective form of the summons.)
L Lack of subject matter jurisdiction.

Hint 114

None

Front 115

**What are the affirmative defenses agaisnt MTD?

Back 115

S Statute of limitations.
P Payment.
A Arbitration award.
R Release.
E Estoppel (collateral estoppel).
R Res judicata.
I Infancy of the Defendant.
B Bankruptcy discharge.
S Statute of frauds.

Hint 115

None

Front 116

*** What is the standard used by the Court in deciding on a Motion to Dismiss for Failure to State a Cause of Action?

Back 116

Plaintiff is entitled to every favorable inference which can be drawn from the allegations of complaint and the motion should be denied if there is any basis for relief under the substantive law.

Front 117

If D brings a motion to dismiss, what happens to his time to serve an answer?

Back 117

Making the motion extends Defendant's time to answer. If the motion is denied, Defendant must then serve the answer within 10 days.

Front 118

How can D PRESERVE PERSONAL JURISDICTION DEFENSES?

Back 118

1. Before serving the answer make a 3211 motion to dismiss that includes lack of personal jurisdiction as one of the grounds.

2. Make no 3211 motion (on any grounds) and instead include lack of personal jurisdiction as an affirmative defense in the answer.

Hint 118

None

Front 119

What additional step is required if the D objects on the grounds of improper service of process?

Back 119

Although pleading improper service of process as a defense in the answer is a proper way to assert jurisdictional objection, the objection will nevertheless be waived if defendant does not make a follow-up MOTION FOR SUMMARY JUDGMENT on this ground within 60 days after serving the answer. Note that the 60-day time limit DOES NOT apply to the defense that court lacks a BASIS of personal jurisdiction.

Front 120

What are the 3 defenses that are never waived?

Back 120

1. Non-joinder of a necessary party.
2. Failure to state a cause of action.
3. Lack of subject matter jurisdiction. These can be raised at any stage of the litigation.

Hint 120

None

Front 121

What are the D's possible Responses to Summons with Notice?

Back 121

Serve either:
1. A demand for the complaint.
2. A notice of appearance.

Both have the same effect.

Hint 121

None

Front 122

What is the effect of Defendant's service of a demand for the complaint and/or a notice of appearance?

Back 122

Both require Plaintiff to serve the complaint within 20 days of Defendants service.

Front 123

If P serves the timely complaint, what must D then do?

Back 123

Defendant has 20 days from such service to serve either:
1. An answer to the complaint.
2. Motion to Dismiss under CPLR 3211.

Hint 123

None

Front 124

What can the defendant do if the plaintiff fails to meet the 20-day time limit to serve the complaint? How can the plaintiff respond?

Back 124

If π fails to meet the 20-day time limit to serve the complaint, D may move to dismiss the action based on P’s noncompliance, which is a form of NEGLECT TO PROSECUTE. This is not a 3211 motion, this is unique. To avoid dismissal the P must show: 1. A reasonable excuse for the delay; AND 2. Make an Evidentiary showing there is merit to her cause of action. (Affidavit of merit by the plaintiff or witness).

Front 125

Each party is entitled to amend her pleading once as a matter of right, w
what can this amendment be used for and what are the time limits?

Back 125

When making a free amendment, the party can put anything into the pleading that could have been in the original.

The one free amendment can be made during the following time periods:
a. Plaintiff can amend the complaint as a matter of right at any time up to 20 days after Defendant serves the answer
b. Defendant can amend the answer as a matter of right up to 20 days after Defendant serves the answer.

Hint 125

None

Front 126

May D raise an omitted personal jurisdiction objection by means of Amendment?

Back 126

Yes. If D amends the answer within 20 days as a matter of right, the D can still include the PJ defense.

Front 127

After the one free amendment to the pleadings has been made or the time has expired, what is the standard applied by courts on a motion for leave to amend?

Back 127

Amendment will be allowed so long as the opponent will not suffer any INCURABLE PREJUDICE. The opponent has the burden to show a detrimental change of position as a result of the delay in amending; e.g. loss of evidence. LIBERAL STANDARD.

Front 128

What is impleader?

Back 128

Impleader is a procedural device used by Defendant to join another party alleged to be liable in whole or in part to Defendant for damages that Defendant may have to pay Plaintiff. The usual claim in these circumstances is for indemnity or contribution.

Front 129

When can D implead a third party D?

Back 129

Defendant may Implead 3rd Party Defendant at any time after Defendant serves the answer to the complaint.

Front 130

What are the steps for joining a 3rd Party Defendant?

Back 130

1. FILE with the court a summons and third party complaint.

2. SERVE within a 120 days of the filing a copy of the summons and third party complaint on the 3rd Party Defendant and a copy on the Plaintiff.

Note: there has to be a personal jurisdiction basis on the 3rd Party Defendant

Hint 130

None

Front 131

After 3rd Party Defendant is joined, can Plaintiff amend her complaint to assert a claim directly against 3rd Party Defendant, thereby making 3rd Party Defendant an additional Defendant in Plaintiffs action?

Back 131

Yes. Plaintiff can make this amendment without the need to obtain judicial permission if she does so within 20 days after Plaintiff was served with the third-party answer. If Plaintiff waits beyond 20 days, Plaintiff must make motion to get court's permission for such amendment.

Front 132

What is indemnity?

Back 132

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

Front 133

What are the two situations that give rise to indemnity?

Back 133

1. By contract: E.g., construction contract, subcontractor may agree to indemnify general contractor or any losses that contractor incurs in connection with subcontractor's performance in the construction project.

2. Implied-in-law indemnity:
a. Products liability: retailer held liable for selling defective product is entitled to indemnity from manufacturer.
b. Vicarious liability situations: E.g., in New York, owner of car is vicariously liable for damages caused by negligent driving of any person to whom owner has given permission to drive the car. Owner who pays victim is entitled to indemnity from driver.

Hint 133

None

Front 134

What is contribution?

Back 134

Contribution involves a sharing of the loss -- apportionment --among multiple tortfeasors who are all actual participants in the tort. Its purpose is to mitigate the harshness of the law of joint and several tort liability.

Front 135

If the liability of three Ds is based on intentional tortious conduct, can one D who has had to pay the P's full award get contribution from the others?

Back 135

MS RULE: NO. Contribution is NOT available when the nature of the liability involves intentional wrong doing. NY RULE: YES. Contribution is available in all torts, including intentional torts.

Hint 135

None

Front 136

What are the 3 ways to Assert Claims for Contribution/Indemnity?

Back 136

a. If Plaintiff originally joined the tortfeasors as co-Defendants, they can assert cross-claims against each other.

b. If Plaintiff omits a tortfeasor, a Defendant can implead the outsider as 3rd Party Defendant.

c. Tortfeasor may sue 3rd Party Defendant in a separate action.

Hint 136

None

Front 137

What is the Equal Shares Formula of Contribution?

Back 137

Minority view (relevant only to MS): the contribution shares are always equal in amount, regardless of apportionment of percentage liability.

Front 138

What is the Comparative Degrees of Fault formula of contribution?

Back 138

Multistate and NY formula: 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 139

*** Can a 3rd Party Defendant may be held liable for contribution even if he had no direct liability to Plaintiff?

Back 139

Yes - The general rule is that a right to contribution exists whenever 3rd Party Defendant breached a duty in tort which contributed to or aggravated the damages for which Defendant may be held liable to Plaintiff. Thus 3rd Part D may be held liable for contribution even if 3rd Party D has no direct liability to P.

Front 140

What is the REDUCTION FORMULA?

Back 140

Any judgment against a non-settling tortfeasor must be reduced by EITHER the amount of the settlement OR the settling tortfeasor's equitable share of fault, whichever is larger.

Front 141

What is the NY RULE that modifies the law of joint and several tort liability wrt personal injury claims?

Back 141

CPLR Article 16 states that in a personal injury claim: A joint tortfeasor who's fault is found to be 50% or less cannot be compelled to pay more than his equitable share of the Plaintiff's non-economic damages. Non-economic damages include pain and suffering, loss of consortium and mental anguish. CPLR Article 16 does NOT apply to a claim for wrongful death; only to personal injury claim of the victim.

Hint 141

None

Front 142

EXCLUSIONS FROM ARTICLE 16: What are the three categories of tortfeasors that are subject to full joint and several liability for all damages, regardless of equitable share of responsibility?

Back 142

a. Tortfeasors who acted with intent or reckless disregard for the safety of others.
b. Tortfeasors who are liable for releasing a hazardous substance into the environment.
c. Drivers and owners of motor vehicles other than police and fire vehicles.

Hint 142

None

Front 143

What is the exception to the Substantive Law Rule for Contribution?

Back 143

"Worker's compensation cases. If an employee is injured on the job, she cannot sue her employer because of the workers’ compensation law.
However, the employee can sue a 3rd person who is partially at fault for the accident, e.g., the manufacturer of a product that the employee was using at work. The third person is barred from seeking contribution from plaintiff's employer UNLESS: the P sustained a ""GRAVE INJURY.""

Hint 143

None

Front 144

Why do you have to watch for numerous claims in one suit when dealing w/ J&S liability?

Back 144

ALL Defendants J&S liable for NON-PERSONAL injury claims. This does NOT apply to economic damages even if from a personal injury claim (e.g. medical expenses, & loss of income) Pain & Suffering = covered by modification (b/c non-economic damages)

Hint 144

None

Front 145

What is a motion?

Back 145

Application for an order of the Court. A request for preliminary or incidental relief. E.g. motion to obtain order for compliance w/ a disclosure request

Front 146

What types of motions are there?

Back 146

The two Types of Motions are:

1. Ex Parte and
2. Motion on Notice.

Hint 146

None

Front 147

When may a motion be ex parte?

Back 147

When there is either:
1) Express authority (eg, attachment or TRO); or

2) It is necessary (eg, motions to make expedient service).

Hint 147

None

Front 148

What is the procedure for motion on notice?

Back 148

See notes.

Front 149

What motion addresses the face of the pleading?

Back 149

1) Motion for more definite statement;

2) Motion to strike unnecessary, scandalous, or prejudicial matter; and

3) Motion that pleading allegations be separately stated and numbered.

Hint 149

None

Front 150

What regulatory motions?

Back 150

Regulatory Motions
1) Motions affecting venue;

2) Motions to consolidate or sever actions; and

3) Motions for separate trials (severance of claims or issues).

Hint 150

None

Front 151

What is a Motion on Notice? What papers are involved?

Back 151

A MOTION ON NOTICE gives the adversary opportunity to be heard in opposition.

Motion on Notice Requires:
1. Notice of Motion (Nature and timing)
AND
2. Supporting Affidavits.

Hint 151

None

Front 152

What is the "return date?"

Back 152

The RETURN DATE is the day upon which the motion papers are presented to the Court a/k/a the "hearing date" of the motion.

Front 153

When is the Motion on Notice made? When must a Motion on Notice be served on the other party?

Back 153

The MoN is MADE when the other party is served or if by mail, the day mailed. The party must SERVE the MoN on the opponent at least 8 days prior to return date

Front 154

When must papers be filed with the Court for motions on notice?

Back 154

All motion papers from both parties must be filed with the Court no later than the return date. The Court begins the decision making process on the return date and then issues an order granting or denying the motion.

Front 155

What is an ORDER TO SHOW CAUSE?

Back 155

Order to Show Cause is: An alternative way to make a motion on notice. The Order to Show Cause is a preliminary order, signed by a judge, directing the adversary to "show cause" on a date specified by judge, why the motion should not be granted. The Judge rather than the party is giving notice of motion.

Front 156

What are 3 possible reasons for an ORDER TO SHOW CAUSE?

Back 156

1. Statute which governs the particular motion may require it;

2. Means of accelerating the return date where exigent circumstances make the 8-day advance notice too long. (judge can specify return date < 8 days)

3. Judge can grant immediate stay of the proceedings OR temporary restraining order (TRO)

Hint 156

None

Front 157

What is the procedure for an ORDER TO SHOW CAUSE?

Back 157

1. Moving party drafts the order to show cause AND submits it to judge along w/supporting affidavits for underlying motion;

2. Judge will set return date in order and specify method of service (usually personal delivery);

3. Then signed by Judge and served on opponent & opponent may submit opposition papers on return date

Hint 157

None

Front 158

What is a DECIDING ORDER? What does the winning party do with the order?

Back 158

After the return date of a motion on notice, the Court's decision must be embodied in a written ORDER signed by the CT. The prevailing party serves a copy on the losing party.

Front 159

What are the 2 effects of service of the copy of a deciding order on a losing party?

Back 159

1. Service of the deciding order is necessary for it to take effect
AND
2. Service of the copy of the order starts the running of a 30 day time limit to take an appeal from the order.

Hint 159

None

Front 160

***What is the NY rule on appeals of orders from motions on notice?

Back 160

NY allows immediate appeal from the Supreme Court to the Appellate division as a matter of RT w/in 30 days of service of ANY order that results from a motion on notice (e.g. order denying motion to dismiss or to change venue). (Interlocutory Appeal). Losing party can wait and appeal from final judgment.

Front 161

What is an EX PARTE MOTION?

Back 161

AN EX PARTE MOTION is a motion in which no advance notice is given to the adversary (i.e. w/o opportunity to be heard in opposition). The moving party goes straight to the Court and requests order granting relief sought.

Front 162

May any type of motion be ex parte?

Back 162

NO!!! ONLY those with express statutory authorization can be ex parte motions.

Front 163

What are 3 examples of express statutory authorization to make an ex parte motion?

Back 163

(1) Expedient service of process;
(2) Extension of the time to serve process;
(3) Provisional remedies

For test assume all motions need notice.

Hint 163

None

Front 164

If the opponent is aggrieved by the ex parte order, what is her remedy? Can she appeal the ex parte order?

Back 164

NO!!! There are no appeals from an ex parte order. BUT opponent may make a motion on notice to vacate the ex parte order. If the motion to vacate is denied, the party may appeal from the denial.

Front 165

*** What is a motion for summary judgment?

Back 165

MSJ: purpose of the MSJ is to enable a party to show BEFORE trial that even though the pleadings may be sufficient on their face, there is no GENUINE ISSUE OF MATERIAL FACT requiring a trial.

Front 166

What is the moving party contending in a motion for summary judgment?

Back 166

The moving party is contending that reasonable persons cannot differ, and that she is therefore entitled to judgment as a matter of law (JMOL).

Front 167

EXAM TIP: What must you remember to do when discussing a motion for summary judgment?

Back 167

Discuss the elements of the underlying CoA!!! = Way for them to combine procedure w/ substantive elements of the law!!!

Front 168

When can a motion for summary judgment be made?

Back 168

MSJ cannot be made until AFTER the defendant has served the Answer.

Front 169

Who can move for motion for summary judgment after service of the answer and what can they make the motion based on?

Back 169

After service of the answer ANY party can make the motion w/respect to ANY claim OR defense asserted in the pleadings

Front 170

What is the time limit for a motion for summary judgment?

Back 170

MSJ must be made within 120 days from filing of note of issue (placing a case on trial calendar)
UNLESS
the moving party shows "good cause," i.e. good excuse for the delay.

Hint 170

None

Front 171

How does the moving party satisfy her burden of showing that there are no material issues of fact requiring a trial?

Back 171

The moving party must submit evidence in the form of affidavits, documents, or discovery materials. The evidence must be from persons with actual knowledge.

Front 172

How does the opponent defeat a motion for summary judgment?

Back 172

By using the same type of evidence to show that a triable issue of fact does exist. Requires evidence with actual knowledge of the facts. Statements in pleadings (allegations) do not count.

Front 173

Can a Party just rely on his pleading when providing E in the summary judgment process?

Back 173

No - his pleading is NOT E!

Front 174

If the opponent establishes through affidavits that he is not yet able, through no fault of his own, to produce opposing evidence, what can the CT do?

Back 174

EITHER deny the motion OR grant a continuance to permit additional evidence to be obtained. MERCY RULE

Front 175

What does it mean to say that a motion for summary judgment "searches the record"?

Back 175

Court reviews all the evidence in the record regardless of which side submitted it. If it concludes the opponent is entitled to Summary Judgment, the Court may grant it to opponent even though he did NOT make a cross-motion.

Front 176

What is the "boomerang effect" w/ summary judgment?

Back 176

Even if an opposing party is merely trying to show an issue of fact, if the CT finds his E so strong, it can grant summary judgment for him rather than the other party.

Front 177

What happens if summary judgment is denied?

Back 177

Then a triable issue of fact exists and the case resumes the normal course to trial. If the only issue in question is the amount of damages, the court can grant SJ on liability and trial on the issues of damages.

Front 178

In what 2 situations is summary judgment possible prior to service of the answer?

Back 178

(1) Defendant's pre-answer motion to dismiss (MTD) for failure to state a Cause of Action can be converted BY THE CT into summary judgment, thereby deciding the case on the basis of the facts rather than on the face of the pleadings
AND
(2) Motion for summary judgment in lieu of complaint

Hint 178

None

Front 179

What are the 2 prerequisites for a pre-answer motion to be CONVERTED BY THE COURT into summary judgment?

Back 179

Converted by the Court:
(1) parties must have submitted factual affidavits in connection w/ the motion to dismiss AND
(2) CT must give notice to the parties of the conversion to summary judgment

Hint 179

None

Front 180

What are the 2 types of actions in which a plaintiff may, if she wishes, move for summary judgment at the same time she serves process by accompanying the summons w/ motion papers for summary judgment?

Back 180

(1) action on an instrument for payment of money only (e.g. promissory note ... CANNOT be used for ordinary breach of K)
(2) Actions on an out-of-state judgment

Based on clear cut documentary evidence that shows prima facie the plaintiff's right to recover.

Hint 180

None

Front 181

What is the procedure for a summary judgment in LIEU OF COMPLAINT?

Back 181

After filing process with the court, Plaintiff must serve Defendant w/the summons, a notice for summary judgment w/ supporting docs & affidavits

Front 182

What is the min advance notice for the return date for a summary judgment in lieu of a complaint?

Back 182

Usually 8 days advance notice for hearing on a motion, but not here. IN THIS CASE return date can be no sooner than date for response to service of process. (20 days if personal service, 30 days if other method).

Front 183

What are 5 types of PROVISIONAL REMEDIES?

Back 183

5 Types of Provisional Remedies
(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)

Hint 183

None

Front 184

Which is the only provisional remedy which does NOT require a Court order?

Back 184

NOTICE OF PENDENCY does NOT require a court order.

Front 185

What does an attachment do and what happens when it is granted?

Back 185

An attachment provides security for the enforcement of a money judgment.

After the plaintiff obtains the order from the court, he gives it to a NY sheriff who levies upon the property pending the outcome of the case. The Sheriff files an order of attachment with the county clerk where the property is located.

Hint 185

None

Front 186

What happens if the attachment is for real property?

Back 186

Sheriff simply files order of attachment w/ county clerk in the county where defendant's real property is located

Front 187

What happens if the attachment is for personal property & what are examples of personal property?

Back 187

Sheriff delivers order of attachment to person in possession of the property or debt. Tangible (car, boat, etc) OR intangible (such as a bank account or a debt) property qualifies.

Front 188

What happens when there is delivery of an attachment for personal property? What is the effect?

Back 188

Delivery of the order of attachment by the by the Sheriff automatically imposes the lien on the property and serves as an injunction against transfer of the property pending the outcome of the action.

Front 189

***What type of action is attachment used in?

Back 189

Plaintiff must be seeking money damages AND must show one of the following:
1. Defendant is an unlicensed foreign corporation or a non-domiciliary of NY OR
2. Defendant is about to conceal or remove assets from the state w/intent to defraud creditors or frustrate the enforcement of a judgment.

Hint 189

None

Front 190

What is the procedure for attachment and what are the 3 requirements?

Back 190

Plaintiff MUST make a motion for an order of attachment and show 3 Requirements in making motion:
(1) Affidavits in support of the motion must show one or the other of 2 grounds identified (D is an unlicensed foreign Corp or a non-domiciliary of NY OR D is about to conceal or remove assets from the state w/ intent to defraud) AND that it is an action for money damages
(2) Affidavits must show a probability of success on the merits of the P's cause of action
(3) P  must post an undertaking (a bond that indemnifies the D for any damages or expenses caused by the attachment)

Hint 190

None

Front 191

How can a motion for attachment be made?

Back 191

Motion for attachment can be made on notice OR ex parte. They are often made ex parte so defendant cannot move property.

Front 192

What extra procedures are required for ex parte attachment motions and why?

Back 192

Ex parte motion of attachment Triggers Due Process concerns so there are additional requirements.
(1) Must have prompt hearing after seizure of D's property (gives D an opportunity to contest attachment)
(2) After Sheriff levies on property, Plaintiff must make a motion on notice to confirm ex parte order of attachment

Hint 192

None

Front 193

When will an ex parte attachment motion become automatically void?

Back 193

An ex parte motion of attachment will become automatically void if the plaintiff fails to make a follow-up motion to confirm within:
(1) 10 Days if defendant is an unlicensed corp. or non-domiciliary of NY
(2) 5 Days is defendant is about to conceal or remove assets from the state with intent to defraud creditors or frustrate judgment.

Hint 193

None

Front 194

What is a preliminary injunction?

Back 194

PRELIMINARY INJUNCTION is used to maintain the status quo while an action is pending.

Front 195

What is required for a preliminary injunction? What must P seek?

Back 195

HAS TO BE an equity action where P seeks EITHER:
(1) Permanent injunction OR
(2) if Defendant threatens to harm Plaintiff's interest in the subject matter of the action.

Hint 195

None

Front 196

***Can you get a preliminary injunction if the claim is for money damages?

Back 196

***NO. If it's an action that seeks SOLELY money damages you CANNOT get preliminary injunction. Only remedy, if any, is attachment. E.g., P sues D for nonpayment of a debt. Prior to judgment, P cannot enjoin D from transferring assets or spending money. P’s remedy, if any, would be attachment (Lien).

Front 197

What is the procedure to get a preliminary injunction? What are the 3 requirements for the motion?

Back 197

Motion for PRELIMINARY ACTION must be ON NOTICE. The Motion papers can be served with, or after, the summons and anytime up to the final judgment.
The 3 Requirements of the motion are:
(1) P's affidavit must show grounds for equitable relief including a threat of irreparable injury;
(2) P's affidavit must show PROBABILITY OF SUCCESS ON THE MERITS OF THE UNDERLYING ACTION;
(3) P must post an undertaking (bond) to indemnify D for damages if later determined that injunction should not have been granted.

Hint 197

None

Front 198

How does the TEMPORARY RESTRAINING ORDER relate to the preliminary injunction?

Back 198

Provides immediate injunctive relief in a case until a preliminary injunction can be decided. In case of immediate injury, P may request an ex parte TRO.

Front 199

How does a person get a TRO?

Back 199

1. Make motion of PI by order to show cause;
2. Go directly to CT and ask judge to sign an order to show cause for motion for PI;
3. Ask Judge to INCLUDE TRO (when signing the motion to show cause);
4. Have an order to show cause w/ TRO in it, and then serve that to ∆ along w/ supporting affidavits for PI;
5. ∆ then will be immediately restrained by TRO pending resolution of motion for PI

Hint 199

None

Front 200

What is a TEMPORARY RECEIVERSHIP and how often/when is it available to a party?

Back 200

Person appointed by the CT to manage property within D's possession (Drastic Remedy). P must be seeking an equity claim in which specific property is the subject matter of the action AND there is a danger that D will injure or destroy the value of the property while action is pending. Requires P to make a MOTION ON NOTICE.

Front 201

When is a SEIZURE OF A CHATTEL allowed?

Back 201

SEIZURE OF CHATTEL is only allowed in 1 type of action. An action seeking to recover possession of a chattel. (chattel is tangible personal property. E.g., pet monkey, computer, car, etc). Replevin

Front 202

What is the procedure for a seizure of chattel? What must a party do/show?

Back 202

P must make a motion on notice or ex parte. Motion must show:
(1) P's affidavit must show PROBABILITY OF SUCCESS ON THE MERITS OF THE UNDERLYING ACTION;
(2) P must post an undertaking (bond) to indemnify D for damages if later determined that injunction should not have been granted.

Hint 202

None

Front 203

What are the 2 special requirements for an ex parte motion for a seizure of chattel?

Back 203

It implicates DP, so special requirements:
(1) P must show threat of immediate loss of the chattel AND
(2) If granted by CT, P must make a follow-up motion on notice w/in 5 days of the seizure to confirm the ex parte order (the D gets a hearing to challenge what has happened)

Hint 203

None

Front 204

What is a notice of pendency? What does it do?

Back 204

In an action in which a judgment will have direct effect on real property, a filing of a notice of pendency gives record notice to any potential buyers/mortgagees who comes along that any interest they acquire in the property will be subordinate to that of Plaintiff. (Lien on Property.)

Front 205

What type of action is sufficient for a notice of pendency to be filed?

Back 205

An equity action in which judgment will have a direct effect on title, possession or use of real property (e.g. specific performance, ejectment, etc)

Front 206

When is a notice of pendency statutorily required?

Back 206

In a mortgage foreclosure, the filing of notice of pendency is statutorily required

Front 207

What is the procedure for filing a notice of pendency? What is and is not required?

Back 207

Notice of Pendency is the only provisional remedy that may be filed without a court order. ALL that has to be done is for the P to file w/county clerk in county where property located (gives record notice).

Front 208

How long does a notice of pendency stay in effect? What happens when it expires?

Back 208

Notice of Pendency stays in effect for 3 years: P May need to make a motion for a 3 yr extension BUT must make it before original 3 years expires otherwise it will lose its effect and party who has allowed the lapse MAY NOT seek another notice of pendency. P Don't get another bite at the apple EXCEPT in mortgage foreclosure cases.

Front 209

When discovery is completed and the case is ready for trial, how is the matter placed on the trial Court's calendar?

Back 209

When discovery is complete, either party may file NOTE OF ISSUE (tells CT that it is ready to be put on calendar) and then serve all the parties with the note of issue.

Front 210

What right must a party ask for in the note of issue if they don't want to waive it?

Back 210

The Party who files it should make a demand for jury trial in note of issue. If filing party makes no such demand then that party waives the right to a jury trial.

Front 211

What must other parties do if they want a jury trial and they do not file a note of issue?

Back 211

If a Party wants to demand a JT then they have to file a separate demand for jury.

Front 212

When does a party in civil action have a RIGHT TO TRIAL BY JURY? Who can demand it?

Back 212

Either party can demand a jury trial.
They have a right to a jury trial in:
1. Action seeking solely money damages.
2. Replevin action (trying to get monkey or car or something back)
3. Claim to real property
4. Annulment of a marriage
5. Divorce action either party can get a jury on issue of the grounds for the divorce (e.g. acts of adultery) (BUT NOT entitled to JT on children or money issues)

Hint 212

None

Front 213

How many jurors are on a civil jury in NY? Does it need to be unanimous?

Back 213

A Civil Jury in NY contains 6 jurors and does NOT need to be unanimous (5/6 is sufficient for a verdict).

Front 214

What is the rule for RES JUDICATA?

Back 214

RES JUDICATA
NY Rule: When a claim against a particular D has been brought to final judgment on the merits, all other claims by the P against same D are barred IF they arise out of the same transaction; EVEN IF those claims are based on a different theory OR seek a different remedy.

Hint 214

None

Front 215

What is a policy-based EXCEPTION TO CLAIM PRECLUSION?

Back 215

A policy based exception to Res Judicata is in matrimonial actions based upon domestic abuse. Plaintiff can sue spouse for tort damages even if grounds are abuse.

Front 216

***What is collateral estoppel? What is the rule and what is the 3 part showing involved?

Back 216

Collateral Estoppel is issue preclusion.
It avoids and prevents the need for re-litigation of specific fact issues that were decided in a prior proceeding upon a 3-part showing:
(1) Issue in the former case and current case are identical AND
(2) Issue was actually litigated and decided in the 1st case AND
(3) Party against whom issue preclusion is asserted had a full & fair opportunity to litigate the issue in the former proceeding.

***Issue preclusion CANNOT be used against someone who was NOT a party in the prior action.

Hint 216

None

Front 217

What are special proceedings in NY? Examples?

Back 217

A special proceeding is a speedy, streamlined procedure, akin to a motion, the purpose of which is to obtain judgment as a final resolution of a dispute. E.g., probate of a will; election disputes; summary proceeding by a landlord for eviction; dissolution of a corporation; habeas corpus; enforcement of an arbitration agreement; CPLR Article 78 proceeding.

Front 218

What are the procedures for a initiating a special proceeding ?

Back 218

1. Person w/ grievance (petitioner) files a petition (complaint) that commences the special proceeding.

2. The petition and a notice of petition (analogous to a summons) are served on the respondent. Must be served in the same manner as on serves process (leave & mail, affix & mail, etc). The notice of petition advises the respondent to serve an answer and to appear on the specified return date for the hearing.

Hint 218

None

Front 219

What is the return date for a service of process? Can it be sped up?

Back 219

Return date for service of process in a special proceeding can be no sooner than 8 days from the service of process. If exigent circumstances and need accelerated proceeding, you can initiate a special proceeding by an order to show cause.

Front 220

How are the sides proved in a special proceeding?

Back 220

Affidavits are usually served in support of, and in opposition to, the petition. All pleadings and affidavits are submitted to the court on the return date for decision by the court.

Front 221

What is arbitration and what are its 3 major characteristics?

Back 221

Arbitration is a private procedure, based on CONTRACT, for the binding resolution of disputes (common in commercial Ks).

The 3 Major Characteristics of Arbitration are:
(1) Not bound by substantive law or rules of evidence;
(2) Arbiters may do justice as they see fit;
(3) Scope of judicial review is extremely narrow.

NY Courts favor arbitration

Hint 221

None

Front 222

What are the 5 threshold issues considered by the court in an effort to AVOID arbitration?

Back 222

(1) Did the parties actually agree to arbitrate (Q of K law)
(a) Must be in Writing (does not have to be signed though (b) Must be clear, explicit & unequivocal;
(2) Is the dispute w/.in the scope of the arbitration clause?
(3) If BROAD clause then there are very few issues that CT can decide & arbitrator will decide virtually everything
*** (3) Whether arbitration clause is valid (Invalid and unenforceable viewed in isolation as induced by Fraud, duress, coercion, or if contrary to public policy);
(4) Whether there is some express condition precedent to arbitration & whether it has been complied with? (E.g. before submitted to arbitration, a construction dispute must 1st be submitted to the architect)
(5) SOL

Hint 222

None

Front 223

What is the doctrine of severability in the area of arbitration?

Back 223

The Arbitration clause is distinct from K in which it is contained, is severable from the question of the validity of the overall K. Tainted K overall (fraud problem) will not undue validity of arbitration clause itself.

Front 224

What happens when one party serves a notice of intention to arbitrate? What time limit is involved once it is served?

Back 224

Party (who wants to arbitrate) takes initiative before other party brings a lawsuit in Court by serving a notice of intention to arbitrate on the opponent. Notice of intention to arbitrate shifts burden to the opponent of arbitration to commence a special proceeding for a stay of arbitration. Strict time limit = opponent only has 20 days from receipt of notice to arbitrate (otherwise opposition waived)

Front 225

What are the 3 grounds on which a party can get judicial review of an arbitration decision?

Back 225

(1) Corruption, fraud or misconduct in arbitration proceeding;
(2) Bias of an arbitrator who was chosen to be neutral;
(3) Show that an arbitrator has exceeded his power (9xs out of 10 that is a loser unless parties themselves have agreed to restrict the arbitrator's powers b/c they have a lot of power)

Hint 225

None

Front 226

What is an Article 78 Proceeding? Who is typically the respondent?

Back 226

CPLR Art. 78 authorizes a special proceeding for judicial review of action (or inaction) by governmental or quasi-governmental officers or bodies of any kind.

Front 227

What are the 4 grounds that the case must fall into the for the petitioner to have a RT of relief under CPLR Art. 78?

Back 227

1. Mandamus to Compel;
2. Prohibition;
3. Certiorari;
4. Mandamus to Review

Hint 227

None

Front 228

What is a mandamus to compel? What is an area of the law where it comes up?

Back 228

A Mandamus to Compel performance of an act that is required by law to be performed and in which no discretion is involved. E.g., city clerk refuses to issue a marriage license. Note: Officers of a private corporation are quasi governmental and can be compelled by a Art. 78 motion to take action such as holding an annual meeting.

Front 229

What is the "prohibition" ground for an art 78 proceeding?

Back 229

Prohibition is a proceeding to stop a judicial officer from exercising power that exceeds the officer's lawful jurisdiction. Reserved for a grossly improper exercise of jurisdiction (NOT routine judicial error, for which the remedy is to appeal).

Front 230

What is the "certiorari" ground for Art 78 proceedings? What is the standard involved?

Back 230

Certiroari is a proceeding to challenge the results of a trial type hearing of an administrative agency. A trial type hearing is one which testimony was taken under oath with a right to cross-examination.

Front 231

What is the "mandamus to review ground" for Art 78 proceedings? What is the standard?

Back 231

A Mandamus to review under Art 78 is a proceeding to review any type of admin action not covered in other 3 categories. Most often this is the form used to challenge an agency determination that was made without a trial-type hearing. (e.g. denied a gun permit, denied application for a liquor license). The Standard of Review is that the court must uphold the agency determination unless it was arbitrary and capricious.

Front 232

What NY CT can an Art 78 proceeding be brought in?

Back 232

ONLY in the Supreme Court

Front 233

What is the Statute of limitations for an Art 78 proceeding?

Back 233

The SoL for an Art 78 proceeding is 4 months and runs from receipt of notice of the act being challenged.

Front 234

Can a person recover money damages in an art 78 proceeding?

Back 234

Yes, damages are recoverable in an Art 78 proceeding IF THEY ARE INCIDENTAL to the main relief being sought (here = reinstatement). Normally seeking declaratory or injunctive relief (e.g. trying to annul an agency's determination or reinstate a discharged civil service employee)