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73 Cards in this Set
- Front
- Back
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NY subject matter jurisdiction
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Supreme Court
- general subject matter jurisdiction * No limit in amount * Injunction - exclusive jurisdiction: * Matrimonial status * Article 78 proceedings * Declaratory judgment Surrogate Court: probate will Court of claims exclusive jurisdiction: monetary claims against the State |
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NY requirements for personal jurisdiction
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- Proper commencement of action
- Proper service of process - Basis of jurisdiction over D |
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NY commencement of action
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- Filing process with court clerk
* Supreme Court: county clerk * Summons and complaints * Summons and notice - complete service within 120 days of filing - If cannot complete, move to extend: * good cause of delay * Justice requires |
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NY notice of complaint content
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- Brief description of cause of action
- Remedy sought - amount of damages required - For tort case, no need to specify amount |
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NY service of process on natural persons
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- Servicer: NY resident, 18+, nonparty
- Personal delivery * Leave to D (each D a copy) * May leave in vicinity if D refuses * Complete upon delivery - Leave and mail * Leave to suitable age/discretion person * Mail (no need certified mail) * Completed within 20d of each other * Complete 10d after filing proof - Nail and mail * Due diligence * Nail (tape) * Mail (no need of certified mail) * Completed within 20d of each other * Complete 10d after filing proof - Tape/Leave: * Actual dwelling * Actual place of business * Last known dwelling * Actual place of business |
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NY service on corporations
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- Personal delivery to:
* Officer * Director * Agent for service of process * Managing agent w/ supervising - Domestic/licensed foreign corporation: * Personal delivery * 2 copies of process * Secretary of State * Secretary will mail to D Corp. - Foreign unlicensed corporation * 1 copy personal delivery to Secretary * 1 copy certified mail to D corp |
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NY service on owner/driver of cars
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- ordinary methods are allowed
- Special: * 1 copy personal delivery to Secretary * 1 copy certified mail to D |
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NY special service methods
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- Expedient service of process
* Ex parte motion to court * With court leave, any reasonable way - Mail and acknowledgement: * 1 copy of process * 2 acknowledge forms signed * 1 envelop prepaid (no need certify) * Mail to D (individual or corp) - Not to infants/incapacitated - D must sign and return - Complete upon mailing return - If D do not cooperate: pay expense |
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NY service on out-of-state party
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- Use any NY allowed method
- Servicer 1 of 3: * NY 18+ resident * Authorized persons in service jurisdiction * Attorney in service jurisdiction |
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NY service on infants (minors)
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- Service to 1 of 4:
* Parents * Guardians * Persons with legal custody * Adult spouse of infant - Service must also be made to 14+ infant |
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NY service on incapacitated (insane)
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- Service to both:
* Insane * Guardian - If no guardian: * insane * Guardian ad litem will be appointed |
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NY basis of jurisdiction
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General:
- Domicile at commencement of action - Doing business in NY - Physically serviced in NY Specific: - Long-arm statute - Long-arm for automobile owner/driver - Consent if not: * under duress * overreaching * unreasonable |
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NY "doing business in NY" jurisdiction
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- General jurisdiction
- Domestic corp. qualifies - Foreign licensed corp. qualifies - Foreign unlicensed corp: * Systematic, continuous, on-going * Some physical location in NY * Employees/agents regularly in NY * Advertisement: insufficient * Officer travels to NY: insufficient * Selling through retailers: insufficient |
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Domicile
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- Capacity to fend onself
- Intent to remain permanently - Presence in residence - Domicile remains until acquire new one - Length of stay irrelevant - Motive irrelevant - Action speaks louder than words - Infants (who can't fend): * Parents * Person who have physical custody - Woman: self * historically: husband |
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NY long-arm jurisdiction
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- Arising out of transactions in NY
- Selling goods into NY - Performing service in NY - Tort actions in NY - Tort consequences in NY: * Deriving substantial revenue in NY * Regularly solicit business in NY * Foresee consequence & incl. NY in sales - NY use, possession or title of RE - Defamation not included in tort prongs - Consequence of tort: * Injury in NY * loss of NY customers/sales - Constitutional check: * Purposefully avail (directed to NY) * Reasonably foresee being sued in NY |
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NY automobile long-arm jurisdiction
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- Auto accident in NY
- May reach out-state: * Drivers * Owners (i.e. permissive use) |
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SOL for Art. 78 review
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4 months after administrative decision
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SOL for defamation
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1 year
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SOL for intentional tort against person
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1 year
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SOL for claims against subdivisions of State
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1 year and 90 days from accident
- Notice of claim w/i 90d of accident - Failure to state a claim w/o notice |
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SOL for medical malpractice
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- 2.5 year from malpractice
- Continuous treatment toll - Foreign substance: * 1 year "extension" * from discovery/should discovery * not medicine * not medical device implant - 10y toll cap for infants - 10y toll cap for insane |
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SOL for professional malpractice (non-medical)
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- 3y from malpractice
- continuous representation toll - if sue after 10y under other theory: * notice of claim 90d before filing * D may move for summary judgment * P must prove with substantial evidence - 10y insane toll cap - no 10y toll cap for infant |
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SOL for negligence/strict liability tort
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- 3y from injury
- toxic substance from: * discovery * should discovery * NA to medical malpractice |
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SOL for breach of warranties under UCC
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4 years from tender of delivery to next merchant
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SOL for common law contract
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6 years from breach
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SOL for rape victim v. convicted criminal (in civil action)
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5 years from date of crime
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SOL for victim of non-serious crimes v. convicted criminal (in civil action)
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7 years from date of crime
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SOL for victim of serious crimes v. convicted criminal (civil action)
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- 10 years from conviction
- 3 years from date of discovery of source of money for recovery of damages |
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SOL for indemnification or contribution
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6 years from payment of judgment
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SOL for real estate
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10 years
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SOL for recognition of judgment
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20 years
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SOL for adverse possession by co-tenant with voluntary absence
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20 years (implied eviction)
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SOL toll for survival claims
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Tolled for 1 year if still timely upon death
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SOL toll for wrongful death claims
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2 years from death if survival claims timely upon death
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SOL toll for infant
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Tolled until becomes adult (18), afterwords:
- Original SOL>3y: extension to 3y - Original SOL<3y: extension to original - 10y cap for medical malpractice |
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SOL toll for insane
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Tolled until regain ability:
- Original SOL>3y: extension to 3y - Original SOL<3y: extension to original - 10y cap for all causes of actions |
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SOL toll for absence
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- Tolled if absent:
* upon cause of action accrues * >4m after cause of action accrues - AND: lack of personal jurisdiction |
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SOL for fraud
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Longer of:
- 6 years from action - 2 years from date of discovery |
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SOL for equity claims (rescission, accounting, reformation)
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6 years
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SOL for replevin/conversion
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3 years
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SOL for proprety damages
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3 years
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NY timing of serving answer (or pre-answer MTD)
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- 20d after personal delivery
- 20d after mail-acknowledgement - 30d after other methods of service - 10d after pre-answer MTD denied |
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NY content of answer
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- Denials
- Affirmative defenses - Cross-claims against other D - Counter-claims against P * P may reply if D counterclaims * P may not reply without leave otherwise |
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NY ways to respond to summons and complaint
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- Serve answer
- Serve pre-answer MTD |
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NY ways to respond to summons and notice
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- Serve demand for complaint
- Serve notice of appearance - P must serve complaint w/i 20d - Otherwise D may move to dismiss - P must: * Show cause of delay * Affidavit of merits |
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Defenses waived if not raised in the first response (answer or pre-answer MTD)
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Personal jurisdiction
If based on defective service: - must follow with MSJ w/i 60d - otherwise = withdrawn |
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Defenses never waived after answer
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- Failure to state cause of action
- Subject matter jurisdiction - Non-joinder of necessary parties |
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Amendment of answers
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- w/i 20d after service of answer
- once as of right - amended once / time expired: * Obtain leave from court * Granted if no irreparable injustice * favor amendment Prejudice if other party change position * witness gone * evidence gone - If answer is the first one, may add in personal jurisdiction at amendment |
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NY affirmative defenses in answer or pre-answer MTD
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- Documentary evidence
- Other actions between parties - Want of capacity - Non-joinder of necessary parties - Failure to state a cause of action - Lack of personal jurisdiction - Lack of subject matter jurisdiction - Statutory limitations - Paid (already performed) - Arbitration award - Release - Estoppel (collateral estoppel) - Res judicata - Infancy of defendant - Bankruptcy discharge - Statute of frauds |
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NY service method after P served complaint
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- First class mail
- USPS - in New York - To all parties (attorney) |
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Implead
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- D may implead 3rd party
- Anytime af. answer bf. judgment - Service w/i 120d of filing 3P complaint - Service on all parties - P may sue 3PD w/i 20d of 3P answer - Relation back SOL |
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Relation back SOL
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- P's cause arose out of same transaction
- P's cause at D's filing would be timely - P's case against 3PD is timely |
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SOL grace period for dismissal
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- 6 months to refile properly
- No grace period if dismissed: * Lack of personal jurisdiction * Voluntary dismissal * For pattern of delay * On merits |
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Motion on notice
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- Service at least 8d b/f return date
- Documents: * notice of motion * supporting affidavits * memorandum of law (optional) - Parties file b/f return date - Court consider on return date - Decision effective: * Entry by court clerk * Service of decision and notice of entry - interlocutory appeals allowed - 30d after serviced |
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Motion by order to show cause
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- Motion papers submit to judge
- with draft order to show cause - Judge signs and service on opponent - May expedite return date - TRO - Required for some proceedings |
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Ex parte motion
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- Only if authorized by law
- Examples * Motion to extend service * Expedient service * Some provisional measures - No appeal - Motion on notice to vacate - If denied: appeal |
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Motion for summary judgment
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- No genuine issue of material fact
- Counter: triable issue of fact - Search the record: SJ for either allowed - SJ on liability leaving damages allowed - Timing * After answer * b/f 120d after note of issues filed If MSJ after 120d limit: - Good cause for delay - E.g. new evidence, settlement discussion |
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NY special proceedings
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- Requires specific authorizations
- Court may convert: * Action to special proceedings * Special proceedings to actions - Filing petition - Service petition * 8d b/f return date * 20d for Article 78 proceedings - May use order to show cause * Expedite return date |
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Article 78 Proceedings
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- Special proceedings
* 20d return date - 4m SOL - Supreme Court exclusive jurisdiction - Remedy: injunction/declaratory - Basis * Certiorari * Review * Mandamus * Prohibition - May cause corporation to hold SH meetings |
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Attachment (provisional remedy)
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- Requirements:
* Affidavit * Probable success * Bond for damages - Situation: monetary damages * D is not domiciled in NY * D is foreign unlicensed corporations * D threatens to remove property * (i.e. defraud or frustrate judgment) - Ex parte allowed - Motion on notice to confirm * 5d after threaten prong * 10d after foreign prong |
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Preliminary injunction and TRO
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- Motion on notice required
- Requirement: * Affidavit * Probable success on merit * Bond - Available: * Seeking permanent injunction * D threatens to harm interest in subject matter TRO: - Motion by order to show cause - Order contains TRO - My shorten return date |
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Receivership (provisional remedy)
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- Element
* Affidavit * Probable success * Bond - Available * Equity claim * on specific property as subject matter * D threatens to destroy value of property - Motion on notice required |
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Seizure (provisional remedy)
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- Available
* P seeks reclaim physical possession - Element * Affidavit * Probable success * Bond - P gets property if still in hand - P gets damages if destroyed - Ex parte motion allowed - Follow by motion to confirm w/i 5d |
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Form of attachment (provisional remedy)
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- On real property
* Order of attachment * file with county clerk * Lien - On personal property * Order of attachment * On owner D or garnishee * Injunction not to transfer * Lien |
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Notice of pendency
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- No need of court action
- For use, title, possession of RE - Lien on property for subsequent buyer - Required for mortgage foreclosure - Remedy: motion to cancel - May file prior to action * Requires service of complant w/i 3d days * Otherwise D may move to vacate - Valid for 3 years - Extend before expiry - Not extended: cannot refile except mortgage |
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SOL toll for death of D
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18 months added to remaining SOL
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Res judicata (claim preclusion)
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- Claim precluded if arising out of the same transaction
- Not for domestic relation: * Divorce claim * Personal injury claim |
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Res judicata (issue preclusion)
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- Issue is precluded if:
* Actually litigated and decided * Identical issue * D has same incentive and full and fair opportunity to litigate |
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Venue
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- Venue default
* Situs county RE * One party lives in the county - If contest: * request and consent * move to change venue if silence/object - Grant if wrong venue chosen - Discretion for: * Prejudice * Convenience (material witnesses) |
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Pre-answer MSJ
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- Court conversion of pre-answer MTD
- Two situations * Recognition of judgment * Payment on instrument Require: - Summons - Notice for motion of SJ - Supporting documents - Return day as answer |
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Civil trial
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- On calendar after file of note of issues
- May request jury trial by either party - Right to jury: * Remedy at law (money) * Replevin * Claim on real property * Anulment * Divorce with fault (just for status) - Jury: 6 members; 5/6 decision |
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Arbitration under NY law
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- Policy in favor
- Threshold of arbitration * Existence of K (writing) * Validity of K (duress, fraud, coercion, PP) * Scope of K * CP for arbitration * SOL - Post-arbitration challenge * Bias of neutral arbitrator * Corruption/improper in procedure * Exceeding scope |
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Challenge of arbitration (procedure)
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- Motion to stay action and compel
- Special proceeding to stay arbitration |
