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200 Cards in this Set

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  • Back
What is needed to file a suit for relief in NY State Court
1) Subject Matter Jurisdiction

2) Personal Jurisdiction

3) Proper Commencement of the Action

4) Proper Service of Process on D.
What is Subject matter Jurisdiction
Constitutional/legislative authority of a court to grant the relief a party seeks. A court must have SMJ (competence) to hear the type of controversy brought before it.
Can SMJ be waived?
What court has general, original SMJ?
Trial Court!

This is the court in which any action is commenced, because it has the power to hear any action (with a few exceptions).

In NY, the Supreme Court is the only court with general jurisdiction. There is one Supreme Court in each of the 62 counties. (choice of proper county is an issue of VENUE).

If one SC in the state has SMJ, they all have SMJ over matter.
Can the Supreme court make decisions in equity and/or damages?
the SC is the only court with full equity jurisdiction to grant injunctions.

SC also has unlimited monetary jurisdiction to award damages. (other courts in the state have jurisdiction to award limited monetary jursdictions).
What are the EXCEPTIONS to the SC's general jurisdiction?
1) Where federal law confers exclusive jurisdiction on federal courts (e.g. bakruiptcy, patent, copyrights).

2) Claims for money damages in tort or contract against the STATE OF NY are brought in the court of claims (NY State is the only state in this court).

a) but note, that if you're suing an EMPLOYEE of the state, this would still be in NY SC

b) also - govt. subdivisions (counties/cities/villages/towns) are not the state, so sued in NY SC.
What matters does the SC have exclusive jurisdiction over?
1) Matrimonial actions (divorce, separation, annulment, declaration of validity of a marriage, etc) - these are not tried in family court.

2) CPLR Article 78 (judicial review of an administrative action) proceedings

3) Declaratory Judgment Actions (declarations of the rights/obligations of the parties to an actual controversy before one of them engages in conduct that could cause liability).
What are Statutes of Limitations?
SOL is an affirmative defense, based on the passage of time, that can be raised by the D.
When do SOLs begin to run?
When cause of action occurs, i.e. when injury occurs, when contract is breached.

NOTE that discovery of injury is generally irrelelvant in NY.

Also note that under substantive law, when an infant is injured in utero, child has no cause of action, unless child is born alive, in which case SOL starts to run at birth.
When must an action be commenced to satisfy SOL requirements?
No later than the last day of the prescribed period of limitations.

Commencement consists of filing process (summons & complaint or summons w/ notice), made with County Clerk (proper court clerk) on or before the last day of SOL.

NOTE - in justice court, process must be served on D on, or before, the last day.

NOTE - if the last day of a SOL is on a sunday, saturday, or public holiday, P gets until end of next business day to perform required act.
What is the SOL pertaining to Medical Malpractice?
2 and a 1/2 YEARS.

Period is applicable to doctors, dentists, podiatrists, nurses and hospitals.

Applies to hospitals through a vicarious liability-respondeat superior standard. Of course, if hospital is negligent in hiring, that is negligence action (w/ 3 year SOL), not med mal.
What are the exceptions to the Medical Malpractice SOL rule?
1. Continuous Treatment Rule - If Dr continues to treat a patient after the operation for the same medical condition, patient gets 2 1/2 years after end of continuous treatment.

2) Foreign object rule - if Dr. introduced a foreign object into patient's body and leaves it behind S/L is either
a) 2 1/2 years from operation or
b) 1 year from date patient discovers (or should have discovered). Foreign object is - something Dr. did not intend to leave behind - surgical clamps, sponges, scalpels, etc.
What is the SOL for other professional malpractice (architects, engineers, accountants, attorneys, NOT insurance brokers)?
Client's cause of action against a non-medical professional has a 3 year SOL that runs from the termination of the particular service in which the malpractice occurred (for architect, completion of building; for attorney or accountant, delivery of work product to client).
Any exceptions ot the SOL for professionals (other than doctors)?

1) Continuous representation rule (similar to continuous treatment doctrine) applies to attorneys accountants and architects.

2) For architects - realize that if building collapses and hurts someone, this is personal injury, not malpractice. Although no outside time limit for allowing people to sue architect/engineer for perosnal liability, there is a procedural framework imposed by statute if action is brought more than 10 years after building was completed.
a) P must serve D with notice of claim at least 90 days before suit,
b) P may obtain additional discovery from D during 90 days, and
c) after suit is commenced if D moves for SJ, burden will be on P to show immediate evidence that there is a substantial basis to believe that D's negligence was the proximate cause of injuries.
What is SOL for products liability?
In products liability, there are three possible suits that can be brought. All of which can, as a matter of pleading, be brought in the same complaint.

1) negligence - 3 year SOL, running from date of INJURY

2) strict products liability - 3 year SOL, running from date of INJURY

3) breach of warranty - 4 year SOL, running from date D DELIVERED PRODUCT

NOTE - there is a 6 year SOL running from date of actual payment of judgment for which indemnity or contribution is sought.
What is the SOL for products liability in the cases of exposure to toxic substances, i.e. an inherently harmful toxin that has latent or slow developing effects (DES, asbestos, HIV, insecticizes, leaking petroleum).
SOL is 3 years and begins to run upon discovery, or when P should have discovered it with dilligence (whichever is earliest).

Rule is inapplicable, though, to claims of medical malpractice. Don't care about date of discovery, except for foreign objects).
What are the Tolls and Extensions associated with SOL?
1) Toll for D's absence

2) Toll for P's infancy of insanity

3) Tolls for P and D's death

4) 6 month grace period for mistakes in filing.
What is the rule regarding tolling in D's absence?
1) if D is not in NY when cause of action accrues, SOL does not begin to run until D comes to NY

2) if D is in NY when cause of action accrues, but D thereafter leaves the state and is continuously absent for at least 4 MONTHS, then toll applies to entire period of absence, UNLESS in both situations P has a basis for personal jurisdiction over absent D such that D could be served outside of NY.

NOTE - no need for absence toll if P can get valid jurisdiction over D even when D is outside of NY (This exception usually swallows the rule)
What is the rule regarding Tolling for P's infancy or insanity?
INFANT Ps, if P is under 18,or INSANE Ps may sue within regular SOL through a competent adult representative, but also get benefit of the toll.

If P is infant/insane at time cause of action accrues, SOL is tolled until disability ends (i.e. P reaches 18 or until insanity clears up).

NOTE that insanity is defined as a metnal disorder that causes an overall inability to function in society. To be insane, P need not have gone through a formal judicial proceeding for the appointment of a guardian
What happens when disability (insanity/infancy) ends?
1) If original SOL was 3+ years, then P has three years form end of disaiblity, or the sOL running from accrual (whichever is longer)

2) If original SOL was less than 3 years, P gets period of original SOL when disability ends.

NOTE two situations where there is an outside limit of 10 years for the commencement of an action.
1) when relying on the toll for infancy, a claim of MED MAL must be commenced no later than 10 years from date of accrual, AND
2) claims of insane Ps, regardless of nature of cause of action, become time-barred after 10 years from the date of accrual. CAVEAT - for med mal - infancy toll and continuous treatment toll are separate tolls. Do not add the tolls together. If both tolls are applicable, run each toll separately and determine if the action is timely under either toll.
What is the rule for tolling for Death of PLAINTIFF?
Survival Claim: A cause of action that 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.
RULE - If P dies before SOL expires, estate representative gets time remaining on SOL, or 1 year from time of decedents death (whichever is longer)

Wrongful death Claim: cause of action is a tort claim for pecuniayr damages of decedent' statutory distributees. Punitive damages are recoverable, BUT NOT the emotional suffering of the distributees NOR decedent's personal pain and suffering.
RULE - SOL is 2 years from date of death, BUT must be shown that at the time of death, SOL for decedent's underlying claim had not expired.

NOTE - party who sues on behalf of decedents estate is an executor (if decedent died with a will), or administrator (if decedent died w/o a will).
What is the rule for tolling for Death of DEFENDANT?
If potential D dies at any time before the SOL expires, 18 months are always added to the relevant SOL period.
What is the Six Month Grace Period Extension?
If a NY action is timely commenced, but is thereafter dismissed before trial (for a mistake), AND at the time of dismissal the SOL has either expired or has less than 6 months remaining, P gets 6 months from date of dismissal to re-file the same action and serve process on the same D.
What are the Four Exceptions to the 6-month grace period extension? (when grace period is not applicable)?
1) prior dismissal on the merits 2) voluntary discontinuance by P 3) dismissed for neglect to prosecute (failure to cooperate in discovery) 4) Lack of Personal Jurisdiction - includes improper service of process, out-of state service in a case where long arm jurisdiction is lacking, and defect in form of summons. (but note, this does not include lack of SMJ).
What happens when cause of Action accrues outside of NY? and SOL in other state is different from NYs?
The Borrowing Statute Governs! borrowing statute is intended to prevent forum shopping by non-resident P's seeking longer SOL in NY
What is the Borrowing Statute?
RULE -- 1) If P was a non-resident of NY at time out-of-state claim arose, then
a) if SOL of state where claim arose is shorter than NYs, then other states (shorter) SOL is used
b) if SOL of state where claim arose is longer than NYs, use NYs SOL

2) if P was a NY resident when claim arose, use NY SOL.

NOTE - borrowing statute is based on residency, not domicile.
What is required to Commence an action properly?
Must FILE process (i.e. summons & notice, or summons & comlaint) with court clerk (county clerk, not supreme court clerk) AND Filing must be accompanied by payment of a fee for the purchase of an INDEX NUMBER.

Filing must be followed by valid service of process on Ds.

There is a valid commencement PROVIDED that a) process is served w/i 120 DAYS of filing (courts have discretion to extend 120 day period for good cause or in interest of justice), and
b) SOL is still running.

NOTE - If D want sto challenge timeliness of service, D must make a motion to do so.

NOTE - in JUSTICE Courts, action is commenced by serving process on D before SOL expires.
What Forms of Process (initiatory papers that invokes courts jurisidiction can be used?
Summons and complaint, or
Summons and notice.
What is Summons and Complaint?
Summons advises D that P is suing D in a particular court.

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
What is summons with notice?
When summons is not accompanied by complaint, it must have sufficient "notice" inscribed on face of summons OR on one-page attachment.

Notice (abbreviated complaint) must consist of
1) Brief statement of nature of the action
2) statement of relief sought.
3) if $$ damages are sought, must specify AMOUNT sought, EXCEPT in medical malpractice cases (law is strictly construed).

NOTE - if P files a naked summons (one unaccompanied by either a complaint or notice), or a bare complaint, this is a jurisdictaional defect and the case is subject to dismissal.
What Methods can be used to Serve Process?
Upon Natural Persons - Traditional Methods
1) Personal Delivery to D
2) Leave and Mail
3) Affixing (Nail) and Mail
4) Expedient service
5) Agent specifically designated by D to receive process
6) For infants/insane 7) For service outside of NY

Corporations - Traditional Methods
1) Personal Delivery
2) Service on Ny Secretary of State

Non-Traditional Method (Natural Persons and Corp).
1) Service by first class mail PLUS acknowledgment
Who may process be served by?
Process may be served on any person who is at last 18 years old, so long as he is NOT a party to the action (lawyer/spouse, not P).
When can process be served?
Any day of the week, except Sunday.

AND, if D is a Saturday-Sabbath observer, and P knows it, P may not properly serve that particular D on Sunday.

Innocent service on the sabbath, however, will not be defect. Service is allowed on a holiday, so long as it does not fall on a sunday (e.g. thanksgiving).
Service to Natural Persons -- What are the requirements of Personal Delivery?
Service by personal delivery is "complete" upon process server's tender of summons directly to D. (D's response time is measured from teh date that service is complete).

NOTE - must be handed to D directly, not wife, not son, but D.
Service to Natural Persons -- What are the requirements of Leave and Mail?
1) Process server may deliver process to a person of suitable age and discretion (doesn't have to be 18) at D's ACTUAL DWELLING place or ACTUAL PLACE OF BUSINESS, *PLUS* mail a copy by regular mail to D at D's ACTUAL PLACE OF BUSINESS or LAST KNOWN RESiDENCE

NOTE - 2 steps service porcess must be performed within 20 days of each other, and both must be within 120 days of filing process.
BUT - it doesn't matter which step comes first (nail, then mail; mail, then nail).

NOTE - service is complete 10 days after proof of service is filed. Proof of service is an affidavit by process server describing details of service (time/date/place/description of person served/mailing). This is when D's response time will begin to run in such cases.

BUT P's failure to file proof of service is NOT a jurisdictional defect (i.e. not groudns for dismissal).
Only consequence of delay or failure to file proof of service is postponement of D's response time (meaning, filing of proof of service need not take place w/i 120 day period.
Service to Natural Persons -- What are the requirements of Affixing and Mailing (Nail and Mail)?
***this can only be done after P has tried first two methods (personal delivery and leave & mail), with due diligence and failed ***

RULE - process server may AFFIX process to the door of D's ACTUAL DWELLING place or ACTUAL PLACE OF BUSINESS, *PLUS* mail a copy by regular mail to D at D's ACTUAL PLACE OF BUSINESS or LAST KNOWN RESiDENCE

NOTE - 2 steps service porcess must be performed within 20 days of each other, and both must be within 120 days of filing process.

NOTE - service is complete 10 days after proof of service is filed. Proof of service is an affidavit by process server describing details of service (time/date/place/description of person served/mailing). This is when D's response time will begin to run in such cases. BUT P's failure to file proof of service is NOT a jurisdictional defect (i.e. not groudns for dismissal). Only consequence of delay or failure to file proof of service is postponement of D's response time (meaning, filing of proof of service need not take place w/i 120 day period.
Service to Natural Persons -- What are the requirements of Expedient Service?
If foregoing methods of service are not practicalbe, P may make an ex parte motion to the court for an order allowing for an improvised method, some reasonable alternative appropriate given the circumstances, e.g. service on D's liability insurer, service via email, etc.
Service to Natural Persons -- What are the requirements of Agent specifically designated to receive process?
In a written commercial contract, parties can expressly specify agent upon whom rpocess can be served in a dispute arising from contract - this will govern.
Service to Natural Persons -- What are the requirements for Serving D's who are Infants?
When D is an infant, D's name goes on the summons, but process can be served on an eligible adult: 1) parent, 2) guardian, 3) person having legal custody, 4) if infant is married to adult spouse, to adult spouse.

When D is > or = 14, process must ber served on eligible adult AND D. May use any of the traditional methods abvoe for serving adult plus infant.
Service to Natural Persons -- What are the requirements for Serving D's who are Mentally Incapacitated?
When D is mentally incapacitated person for whom court has appointed a guardian, process must be served on the guardian, AND the incapacitated person.

If D is mentally incompetent, but no court action has been brought to appoint guardian, D is served in same manner as any other D, and court will later appoint a guardian ad litem.
Service to Natural Persons -- What are the requirements for Serving D's who are outside of NY?
Same methods can be used to serve D outside of NY as used for D's in NY (assuming basis for out-of-state service)
Service to Natural Persons -- What are the requirements for Serving D's out-of state? WHO can serve process in the other jurisdiction?
1) anyone authorized under NY law to make such service

2) anyone authorized to serve process by laws of jurisdiction where service is made

3) an attorney licensed in jurisdiction where service is made.
Service to Corporations -- Traditional Methods -- What are the requirements for serving process by PErsonal Delivery?
Can be made to any one of the following.

If there is basis of jurisdiction over corporation, any one of the eligible corporation represenatives maybe served with process by personal delivery, ANYWHERE in U.S. NOTE - MUST BE PERSONAL DELIVERY (no leave & mail, or nail& mail)

1) an officer 2) a director 3) a designated agent 4) a managing agent (someone with general supervisory authority) 5) a cashier or assistant cashier. I
Service to Corporations -- Traditional Methods -- What are the requirements for serving process by Service on Secretary of State
1) For a domestic corporation (incorporated in NY), or a foreign corporation that is authorized to do business in NY (licensed corp), you can personally deliver 2 copies of process to the NY SEcretary of State, who will then mail one copy by certified mail to corporation at address on file in Secretary's office

2) for an unlicensed foreign corporation, you must personally deliver one copy of process to the NY Secretary of State, PLUS P must mail one copy to the corproration by certified mail with return receipt requested.
What are the requirements for serving process by the Non-Traditional Methods of Service?
Service by first class mail, PLUS acknowledgment

1) mail process to D by first class, enclosing 2 copies of statutory acknowledgment form, plus a return envelope, prepaid postage, addressed to sender.

2) Service will be effective ONLY IF D signs and returns one of the acknowledgment forms to P within 30 days after D receives mailed process.

3) Service is complete upon D's posting of the signed form.

NOTE - If D does not sign acknowledgment form, P must serve process all over again, using one of traditioanl methods (but now D must pay for costs of service under one of these methods.

NOTE - acknowledgment by D of service is NOT a concession that court has jurisdiction. D can still make a motion to dismiss, or raise jurisdictional defenses in the answer
Who (What types of Ds) can the non-traditional method - of service by first class mail plus acknowledgment - be used for?
ALL Types of D's (natural persons, corporations) EXCEPT infants and mentally incapacitated persons who have guardians appointed for them -- these people must be served by traditional methods.
What is personal Jurisdiction?
Requirement for money damages to be forced in full against potential D.
What is needed to satisfy Personal Jurisdiction?
Either a connection to D through D's status -- 1) D's presence in NY, 2) D's doing business in NY, or 3) D's domiciling in NY.

Or, a connection b/c of the cuase of action and its relationship to NY -- 1) long arm jurisdiction and 2) non-resident motorist statute. Or, finally, CONSENT of D.
Does D's physical presence in NY provide personal jurisdiction over D?
YES! - so long as D is physically present in NY when served - that is enough!
Personal Jurisdiction Requirements - How does court get personal jurisdiction over a corporation in NY?
1) A domestic corporation, or foreign corporatoin licensed in NY, IS subject to personal jurisdiction in NY on any claim whatsoever, no matter where in the world claim arose,

2) An unlicensed corporation is said to be present in NY, if it is doing business in NY
Personal Jurisdiction Requirements - What does it mean for D to be "doing business" in NY?
TEST - at time action commenced, are the corp's agents/employees in NY engaging in commercial activity for a corp on a regular, systematic, ongoing basis?

*Mere sales of a company's products, or advertising, in NY is not enough*

If yes, corp can be sued on any claim - claim, itself, does NOT have to have ARISEN in NY.

Furthermore, service of process can be made either inside or outside NY.

NOTE 0 that this test is usually only necessary when cause of action arose outside of NY - otherwise long-arm jurisdiction will likely cover anything that happened within state.
Personal Jurisdiction Requirements - What does it mean for D to be domiciled in NY?
Rule - a D who is a domiciliary of NY at the time action is commenced can be served with process anywhere in U.S. in a NY action regardless of where claim arose.
Distinction Between Residency and Domicile?
- residence is a place where person lives for fair amount of time with some degree of permanency. A person can have multiple residencies. Domicile is the one resideny at which a person intends to remain indefinitely and treats as her principal home. A person has only one domicile.
Personal Jurisdiction Requirements - What is the long arm statute?
CPLR 302 - is NY's long arm statute - it allows for out-of-state service conferring personal jurisdictoin on the basis of certain acts by D that have sufficient connection to NY, provided P's claims arose from those acts.

Distinction of long-arm jurisdiction and other bases of jurisdiction is physical presence. In doing business and domicile, it doesn't matter where claim arose. BUT, to obtain long-arm jurisdiction, facts of case must arise out of one of five categories of NY-related activity.
Personal Jurisdiction Requirements - What are the Five Categories of NY-related activity that qualify for long-arm jurisdiction?
1) P's claim arose from a transaction of business by D in NY - substantial negotiations are not enough.

2) P's claim arose from a K made outside NY in which D agreed to supply goods/services in NY. K must be economically significant, such as agreement by D to ship a sizeable quantity of merchandise to NY, or perform in broadway play. A one-shot phone/mail order by an out-of-state entity to NY is NOT enough to qualify as a transaction of business by a buyer in NY, nor is a promise to pay $$ a contract to supply goods and services in NY.

3) P's claim arises from D's commission of a tortious act within NY (driving negligent on NY street, making fraudulent claim during sales negotiation in Ny, assaulting a NY employee in NY)

4) P's claim arises from D's tortuous act outside of NY, which causes injury in NY (e.g. D manufactures a defective product in WI and it explodes in NY), PLUS an additional link b/w D and NY (next card) *To cause injury in NY, injury must originate here.

5) P's claim must arise from D's owenrship, use or possession of real property in NY.

NOTE - defamation claims are excluded from both of tortuous act categories
Personal Jurisdiction Requirements - What ADDITIONAL LINKS b/w D and NY will combine with D's tortuous act outside of NY (which caused injury in NY) to provide for long arm jurisdiction?
Additional links:
a) D regularly solicits business or engages in any other persistent course of conduct in state (does not need to rise to level of "doing business" in NY) b) D derives substantial revenue from goods used or consumed or services rendered in state.
c) D expects, or should reasonably expect, act to have consequences in the state AND derives substantial reenue from interstate or international commerce. BUT - physician's medical services (even well known specialist with many out-of-state patients) are ALWAYS inherently local in nature.
Personal Jurisdiction Requirements - Some general points about long arm statutes
1) Covers all types of D's 2) Acts giving rise to jurisdiction can be performed by D herself or by her agent or employee. If agent's acts are in NY, agent will be subject to jurisdiction herself.
3) Even if D dies, decedent's estate's representatives can be served outside NY
4) Serving Process - P must use the same methods for serving process on D outside Ny as would be used for serving process inside NY.
Personal Jurisdiction Requirements - Tip for Essay Questions
1) Discuss if P can establish jurisdiction under any non-long-arm categories
2) Discuss whether facts of P's case fall within one or more of the long arm categories
3) briefly discuss whether particular assertion of jurisdiction would satisfy constitutional due process - DP will be satisfied if claim arises out of conduct by D that is purpsoefully directed to NY such that D should have reasonably anticipated being sued in Ny (Int'l Shoe)
Personal Jurisdiction Requirements - Non-Residential Motorist Statute
Confers personal jurisdiction over an accident claim arising from a non-domiciliary motorists ownership or use of an auto on a NY roadway.

2 unique features
1) P serves process on D by personally serving one copy on the NY secretary of state PLUS mailing a second copy to D by certified mail to D's out-of-state residence 2) Allows jurisdiction over car owner if car was being driven in NY with owner's permission (even if driven by someone other than owner) -- so not redundant with tortuous act, b/c gets jurisdiction over owner.
Personal Jurisdiction Requirements - Consent
Parties to a K may consent in advance to personal jurisdiction in NY in a forum selection clause (any dispute relating to K shall be resolved in NY courts). Such clauses are generally enforceable in the absence of overreaching, fraud, or unreasonableness.
How do you get jurisdiction over Matrimonial Actions? SMJ and personal jurisdiction (think domestic relations question)
Only the Supreme Court has SMJ for matrimonial actions. RULE - having basis of perosnal jurisdiction over D is not necessary in matrimonial claim. Rather, all that is required ist hat P is domiciled in NY (court has in rem jurisdiction). So, you can be served in another state, and still have in rem jurisdiction in NY.
What is the matrimonial long-arm statute?
If P spouse is a resident of Ny, long arm jurisdiction can be acquired over D for monetary support IF -
1) NY was matrimonial domicile of P and D prior to separation, OR
2) D abandoned P in NY, or
3) D's monetary obligations accrued under an agreement executed in NY, or 4) D's monetary obligation accrued "under laws of NY" (never happens)

NOTE - in matrimonial action, P cannot use leave & mail, or nail & mail, unless P has court order to do so.
What are durational residency requirements (again, look for domestic relations essay)?
Residency requirements are part of the substance (merits) of the matrimonial action, i.e. action for divorce, separation, or annulment -- not the court's jurisdiction.

Purpose is to insure that NY has sufficient interest in marriage to adjudciate marital status of spouses. They are statutory conditions precedent to a matrimonial action - meaning that P's complaint must allege satisfaction of any 1 of 3 optional durational residency categories.

1) If Both parties are NY residents at time action commenced, AND grounds for matrimonial action arose in NY -- no prior period of residency is required.

2) if Either party has been a NY resident for a continuous period of at least 1 year immediately prior to action, AND NY hsa prior link to marriage (i.e.
a) marriage took place in NY,
b) if NY was matrimonial domicile at some point, and
c) if grounds for action arose in NY).
3) If Either party has been a NY resident for a continuous period of at least 2 years immediately rpior to action -- you do not need to show any other links to the marriage.
What is Venue?
Rules of venue reguate the proper COUNTY in NY for trial of a Supreme Court action.
Who chooses the VENUE and where can it be found?
Plaintiff chooses venue, and specifies it in the summons.
What venue must an action in which the judgment would affect title or possession to real property be located?
On the county in NY in which real property is located!
What venue must be used for all other actions (not affecting title or possession of real property) be brought in?
1. Any county in NY in which any party resides at time action is commenced.

2. If none of parties reside in NY, than any county in NY is proper venue.
Improper Venue (note P's choice of an improper venue is not a jurisdictional basis, and thus not a basis for dismissal). What is the proper remedy for improper venue?
1) D serves a demand on P for change of venue to a proper county designated by D

2) D serves demand with or before service of answer

3) If P concedes, than change of venue to proper county will be automatic. BUT if P objects, or does not responde, then D must make a motion for change of venue, and motion must be granted as a matter of right if P did, in fact, choose an improper ground and D has designated a proper venue.
Can You ask for a Change of Venue on a Discretionary Ground?
YES. If it is based on the convenience of material witnesses. Either party, by motion, can request the court for a change of venue to the county that would be most convenient for all the witnesses. This will often (but not always) be the county where the cause of action arose.).
How can a Defendant respond to the summons and complaint, thereby avoiding default?
1) Serve an answer (D's pleadings) in response to allegations of P's complaint

2) make a motion to dismiss.
What is a pleading?
Formal allegations by parties about their respective claims and defenses. Two basic pleadings are P's Complaint and D's answer.
What must D's answer consist of?
Denials of allegations that D wishes to contest and any Affirmative defenses (SOL, lack of jurisdiction, P's comparative negligence).

NOTE - Affirmative defenses not raised in answer are waived!!!! Subject only to D's possible amendment of pleadings.
What if D wishes to assert his own cause of action against P?
May do so, in a counterclaim!
How does a P reply to a counterclaim?
Through a REPLY - this is P's pleading in response to countreclaim.
What does a reply consist of?
denials and affirmative defenses. If there is no counterclaim, P cannot serve a reply without court permission.
What about in multi-D case, who can D assert a cross-claim against?
Any other D!!! Cross-claims are asserted in D's answer, and can be based on any type of claim that D has against other D's.
Who must Parties serve a copy of their pleadings to?
All other parties who have appeared in the action.
How must interlocutory papers (all other litigation papers besides P's initial service of process/complaint, e.g. D's answer, pleadings, motions, discovery notices) be served?
By regular first class mail - simply by mailing a copy to the party's attorney!
When is service of interlocutory papers by mail deemed made?
Upon mailing, not upon receipt!!!
TIME LIMITS on Serving the Answer - What if D was served with process by Personal Delivery within the State of NY?
D must serve answer w/i 20 days of delivery.
TIME LIMITS on Serving the Answer - What if D was served with process by First Class Mail, plus Acknowledgment? Realize, D's return of acknowledgement is merely notification of receipt of D's process, not a pleading!
D must still serve answer within 20 days of D's mailing of acknowledgment
TIME LIMITS on Serving the Answer - What if D was served under any other circumstances (not personal delivery, not first class mail plus acknowledgment)?
D must serve answer within 30 days after service is complete.
On what Grounds may a D move for a motion to dismiss a cause of action, prior to serving answer? DOWNFALL
1) Documentary Evidence as the basis of defense (mortgage, deed, contract)
2) Other action pending b/w same parties on same cause of action
3) Want of capacity (P is infant suing without proper representation, or P is a beneficiary suing on behalf of trust, where only trustee has capacity)
3) Non-joinder of a necessary party
4) Failure to State a Cause of Action (substantive insufficiency of complaint on its face -- even if all allegations are deemed to be true, substantive law does not recognize a cause of action). P is entitled to every favorable inference that can be drawn from allegations of complaint - motion should be denied if any basis for relief exists under substnative law. Remember to discuss underlying cause of action!
5) Additional Affirmative defenses (SPARERIBS)
i) Statute of Limitations
ii) Payment
iii) Arbitrartion Award
iv) Release
v) Estoppel
vi) Res Judicata
vii) Infancy of Defendant
viii) bankruptcy of discharge
ix) Statute of Frauds
6) Lack of PErsonal jurisdiction (including commencement defects, improper service of process, lack of basis jurisdiction
7) Lack of Subject matter jurisdiction
Procedural Aspects of Pre-Answer Motion to Dismiss - When must it be made?
It is made BEFORE service of answer, on or before the last day of prescribed time limit for service of answer.
Procedural Aspects of Pre-Answer Motion to Dismiss - What happens when a D files a pre-answer Motion to Dismiss
Making a motion extends D's time to answer. If motion is denied, D must then answer within 10 days.
Procedural Aspects of Pre-Answer Motion to Dismiss - Does D have to raise affirmative defenses in pre-answer motion to dismiss?
NO - Defendant need not raise affirmative defenses in pre-answer motion to dismiss, rather he can save them for answer,
Procedural Aspects of Pre-Answer Motion to Dismiss - How many pre-answer motions can D make under 3211?
Just one, but it can be made on multiple grounds.
Procedural Aspects of Pre-Answer Motion to Dismiss - What if D argues 3211 grounds on a pre-answer motion and loses that motion? Does he waive other 3211 objections?
NO! they are not waived! he can raise any of these issues (EXCEPT lack of personal jurisdiction) in the answer.
Procedural Aspects of Pre-Answer Motion to Dismiss - Danger of waiving personal jurisdiction?
YES! In order to preserve personal jurisdiction defense, you must
1. before serving answer, make a 3211 motion to dismiss that includes lack of jurisdiction
2. make no 3211 motion on any ground and instead include lack of personal jurisdiction in an affirmative defense in the answer.
3.WARNING – 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 D does not make a follow-up motion for summary judgment on this ground within 60 day after serving the answer.

NOTE that 60-day time limit does not apply to the defense that court lacks a basis of personal jurisdiction
Procedural Aspects of Pre-Answer Motion to Dismiss - What about waiving affirmative defenses generally?
1) See personal jurisdiction issues for waiver.
2) (Rule If D does not raise affirmative defenses in answer, they are then waived (D’s only possible recourse is to amend)

EXCEPT – 3 defenses are never waived
1)Nonjoinder of necessary parties
2)Failure to state a cause of action
3) Lack of SMJ
How Should a D respond to a P's Summons with Notice?
1) serve a demand for the complaint
2) serve a notice of appearance. D's time limit for either a demand for complaint or a notice of appearance is the same as initial response times for summons and complaint (20 days if personal delivery in NY, 30 days if service is completed in other circumstances).
When must P respond to D's demand for complaint or notice of appearance?
D's service of demand for complaint or notice of apperance both have the effect of requiring P to serve the complaint within 20 days of D's service.
If P timely serves the complaint, after D's demand for complaint/notice of appearance, What must D do?
D has 20 days from such service to either
1) Serve the answer or
2) File a 3211 motion to dismiss.

SO -- after P serves a complaint, D may still object to court's personal jurisdiction. Neither a demand for complaint nor a notice of appearance is a waiver of jurisdictional objections.

D may still raise lack of personal jurisdiction as a defense with answer or include it in pre-answer 3211 motion to dismiss
What if P 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. To avoid such dismissal, a P must show 1) Reasonable excuse for the delay, and 2) make an evidentiary showing that there is merit to her cause of action (through an affidavit of merit, written statement of facts, under oath by P or witness).
What are the rules regarding AMENDING pleadings?
Each party is entitled to an amendment as a matter of right, i.e. without the need to obtain judicial permission. 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
1) Π can amend the complaint as a matter of right at any time up to 20 days after ∆ serves the answer
2) ∆ can amend the answer as a matter of right up to 20 days after ∆ serves the answer

NOTE – If ∆ has personal jurisdiction objection, but fails to make it in answer or pre-answer, D can amend answer w/I 20 days as a matter of right and can still include personal jurisdiction defense
What are the rules regarding AMENDING proceedings -- What if amendment as a matter of right has expired? or been used up?
A motion for leave to amend is required. Decision to permit an amendment lies in the court’s discretion.

Standard applied by courts on a motion for leave to amend: amendment will be allowed so long as opponent will suffer an incurable prejudice to establish prejudice, opponent has the burden to show that she has suffered detrimental change in position as a result of delay in amending.

Detrimental change is a loss of documents, death of witness, etc.
What is impleader?
Impleader is a procedural devise used by ∆ to join another party alleged to be liable in whole or in part to ∆ for damages that ∆ may have to pay Π. The usual claim in these circumstances is for indemnity or contribution. Rather than forcing ∆ to wait until after she has paid a judgment to Π, impleader enables ∆ to join the other party as a third party ∆ (TPD) . In relation to TPD, ∆ technically is referred to as a third party Π.
Impleader - How does it work?
∆ does not need a court order, i.e. no need to make a motion.

∆ may implead TPD at any time after ∆ serves the answer to complaint Steps for joining TPD
1) File - ∆ files a summons and 3rd party complaint
2) Serve – D, w/I 120 days of filing, D serves a copy of summons & 3rd party complaint on TPD and also on the plaintiff
3) TPD must serve a third party answer on the ∆, Π and all other parties who appeared in the action.

TPDs time limit for answering is the same that would apply to an ordinary ∆, i.e. 20 or 30 days depending on where an dhow TPD was served with process

4) After TPD is joined, Π may amend her complaint to assert a claim directly against TPD, thereby making TPD an additional ∆ to the Π’s action. Π can make this amendment w/o the need to obtain judicial permission if she does so within 20 days after Π was served with third party answer. If Π waits beyond 20 days, Π must make motion to get court’s permission for such amendment.
Impleader - how does it effect SOL?
S/L(relation-back benefit) – for S/L purposes, Π’s added claim against TPD will be deemed interposed on the date the ∆ filed the impleader papers with the court PROVIDED Π’s claim is based on the same facts as the impleader claim (e.g. same auto accident). Thus, regardless of when Π actually asserts her related claim against TPD, the amendment will relate back for S/L purposes to the date that ∆ impleaded TPD
What is indemnity?
Allows one party to shift 100% of responsibility to another party.
Indemnity -- What is Indemnity by Contract?
In construction contract, subcontractor may agree to indemnify General Contractor for any losses that contractor incurred in connection with sub’s performance in construction project
Indemnity - What is indemnity implied-in-law?
Arises in 2 situations

(1) Prod liability: retailer held liable for selling defective product is entitled to indemnity from manufacturer

(2)Vicarious liability: NY owner of car is vicariously liable for negligent driving by any borrower with permission. Owner after paying victim who pays victim is entitled to indemnity from driver.
What is Contribution?
Sharing or apportionment of the loss among multiple tortfeasors who are all actual participants in the tort. Mitigates the harshness of joint and several liability – (ie P can collect whole damn thing from whoever he wants to -each tortfeasor liable for full amount of damages regardless of percentage of fault)
Contribution - What are the mechanics of a judgment for joint and serveral liability?
Full judgment is entered against each D. Plaintiff entitled to collect max of total judgment but may collect as he sees fit.

Potential inequity to a joint and several tortfeasor who is held liable for full amount is cured by the right of contribution which enables him to seek partial reimbursement from other tortfeasors
Contribution -- How does contribution workwhen liability is based on Intentional Tortuous Conduct?
MBE -Contribution not available when liability is based on intentional wrongdoing.

NY - Contribution allowed in all tort cases.
Contribution -- How can you assert a claim for contribution (same as indemnity)?
(1) If P originally joined tortfeasors as co-Ds, they can assert cross-claim against eachother

(2) If P omits a tortfeasor, a ∆ can implead the outsider as a TPD

(3) Tortfeasor may sue TPD in a separate action: **BUT – shortcomings to this method - findings of fact and % of fault in action in suit 1 are not binding on other tortfeasors in suit 2! Res Judicata/collateral estoppel cannot be used against those not joined in action 1 – issues will be relitigated
Contribution -- What are the different methods for calculating Contribution?
1) Equal Shares Formula of Contribution- minority view – contribution shares are always equal in amount. Percentage fault is irrelevant.

2) Comparative Fault (MBE and NY)
RULE - Amount of contribution to which a tortfeasor is entitled is the excess actually paid by him over and above equitable share of the judgment. Each tortfeasor is liable for contribution in accordance w/ his individual % of fault – his own particular equitable share.

NOTE – contribution does not always provide a perfectly effective remedy b/c if one D is insolvent, you can’t require other D’s to chip in for his share; and if only one D is solvent, he’s on the hook for everyone!
Contribution -- What is the Substantive Law Rule for Contribution
General rule - Right to contribution exists whenever TPD breached a duty in tort which contributed to or aggravated damages for which D may be held liable to P.

Thus, TPD may be liable for contribution even if TPD has no direct liability to Π.

Point – contribution liability is broader than liability to substantive P

KEY – If B’s negligence aggravated the damages for which A can be held liable, then under substantive law, that is enough to sustain A’s claim for contribution against B based on B’s negligence; even though B is insulated from liability to P b/c of exculpatory clause – this doesn’t preclude B’s contribution liaiblity
Contribution -- Substantive Law Rule - Do any EXCEPTIONS exist?
EXCEPTION: Workers’ Comp cases, employee injured on the job can’t sue employer.

CAN sue third person partially at fault for the accident, e.g. manufacturer of product that employee was using at work

In NY (not on MBE) 3rd person can’t get contribution or indemnity from employer UNLESS P sustained a grave injury (death, total loss of arm, leg, foot, nose, ear or index finger, or multiple fingers or toes, paraplegia, quadriplegia, severe facial disfigurement, total deafness or blindness, brain damage causing total disability.) – loss of thumb standing alone is never a grave injury, loss of tips of three middle fingers is not a grave injury; blindness in one eye is not a grave injury

NOTE – claims from contribution from doctors for malpractice are not malpractice claims for purpose of s/L but contribution claims (which has a 6 year s/L running from date of payment of judgment for which contribution is sought)
What are the rules for Settlements in cases involving Multiple Tortfeasors?
1) P's pre-trial release of one tortfeasor in partial satisfaction of the claim does not discharge P's claim against other tortfeasors. P can still sue others for unpaid balance of claim.

2) NO Excessive recovery - after settlement, any judgmetn against non-settling tortfeasor is reduced to take into account the settlement, this is done by a "REDUCTION FORMULA" - any judgment against a non-settling tortfeasor is reduced EITHER by the amount of the settlement OR the settling tortfeasor's equitable share of the fault. Whichever is larguer.
Settlement and Multiple Tortfeasors -- What is the effect of Settlement on Contribution claims?
Pre-trial Settlement extinguishes contribution claims by and against settling party. Settling party becomes immune to claims against him for contribution (and gives up his own right for contribution)
Settlement and Multiple Tortfeasors -- What is the effect of Settlement on Indemnity claims?
Settlement does not extinguish indemnity claims by or against settling tortfeasor.
What is the NY rule on Joint and Several Liability (CPLR Article 16?
Subject to certain exclusions, in a PERSONAL INJURY claim, joint tortfeasor whose fault is found to be 50% or less cannot be required to pay P more than his own equitable share of P's noneconomic damages. Therefore, any D found liable for 51% or more of total liability is jointly and severally liable for the entire judgment.

EFFECTS - 1) reduces need for contribution to the extent thta D is liable only for his own % of fault. 2) does NOT extend to wrongful death.
NY rule on Joint and Several Liability (CPLR Article 16) --What are the exceptions to the rule?
Some tortfeasors are subject to full joint and serveral liability for all damages. these are 1) Tortfeasors who acted with intent or reckless disregard for the safety of others. In a case involving multiple tortfeasors, where some tortfeasors acted intentionally and others negligently -- only intentional tortfeasors are subject to full joint and several liability.

2) tortfeasors who are liable for releasing a hazardous substance into the environment.

3) drivers and owners of motor vehicles other than cop and fire vehicles.
What is a Motion?
Application for an order of the court - a request for some time of preliminary or incidental relief.
Motion Procedure -- What is a Motions on Notice?
Gives the adversary an opportunity to be heard in opposition of motion
Motions on Notice -- What papers are required?
Papers must be served on other party. 1) Notice of motion is a piece of paper that advises opponent of nature and timing of motion, and 2) supporting affidavit (written statement under oath) showing why motion should be granted.
Motions on Notice -- When is the motion made?
When it is served on other party (if by mail, then mailbox rule).
Motion Procedure -- Motions on Notice -- When are the papers presented to the court?
Return Date/Hearing Date of motion is specified by the Judge..

Moving party must serve motion papers on opponent at least 8 days before Return Date.

All motion papers, those of moving party and opponent must be filed with court no later than return date. Court begins the decision-making process on the return date and then issues an order either granting or denying the motion.
Motion Procedure -- Motions on Notice -- What is an Order to Show Cause?
Alternative way to make a motion on notice. Its a preliminary order, signed by judge, directing adversary to "show cause" on a date specified by judge about why motion shouldn't be granted. Judge, not party, is givivng notice of motion
Motion Procedure -- Why would you use an Order to Show Cause instead of an ordinary Notice of Motion?
1) Statute which governs particular motion may require it.

2) It accelerates the return date where exigent circumstances make the usual 8 day advance notice too long to wait for judicial assistance. In signing the order to show cause, judge can specify return date that is sooner than 8 day minimum that would otherwise apply.

3) Judge can grant TRO or immediate stay of proceedings.
Motion Procedure -- Motions on Notice -- What is the procedure for filing an order to show cause?
Moving party drafts an order to show cause and submits it to the judge, along with supporting affidavits for the underlying motion.

Judge will set the return date in the order and will specify the method of service on the adversary (usually personal delivery).

After order to show cause is signed, order and underlying motion papers are served on the opponent.

Opponent may then submit opposition papers on the return date.
Motion Procedure -- Motions on Notice -- How does a judge respond to a Motion on Notice?
Through a Deciding Order. After return date of motion on notice, court's decision must be embodied in a WRITTEN ORDER signed by the court.

Prevailing party (either movant or opponent) serves a copy of order on losing party.
Motion Procedure -- The Deciding Order -- What are the effects of Service of Copy of the Deciding Order?
1) SErvice of order is necessary for order to take effect

2) Starts running the 30 day time limit for appeal from order.
Motion Procedure -- Orders from Motions on Notice -- What are the NY Rule on appeals of orders from motions on notice?
1) NY allows immediate appeal from SC to appellate division as a matter of Right, w/i 30 days of service of any order determining a motion on notice (e.g. order toa mend pleadings, change venue, uphold service of process, etc).

2) NY stands alone in allowing interlocutory appeals

3) losing party is NOT required to take an interlocutory appeal, but can wait the appeal from final judgment.
What is an Ex Parte Motion
A motion in which no advance notice is given to adversary (i.e. without giving opportunity to be heard in opposition). Moving party goes straight to court with motion papers and requests an order granting relief sought.
What motions can be made by ex parte?
Those made by express statutory authorizations - which are VERY RARE
Are appeals allowed from Ex Parte Motions?
No. Rather, you can make a motion on notice to vacate ex parte order. If motion to vacate is denied, appeal from denial.
What is a Motion for summary Judgment?
Enables party to show, before trial, that even though pleadings my abe sufficient on their face, there is no genuine issue of material fact requiring a trial.

Moving party contends taht reasonable people cannot differ and that she is therefore entitled to judgment AS A MATTER OF LAW.

Always discuss elements of underlying cuase of action!
In NY, When can a motion for SJ be made?
Not until after D has served the answer.
How does one move for SJ?
After service of answer, any party (P or D) can move for SJ with respect to any claim or defense asserted in the pleadings.

Outside time limit for making SJ motion is 120 days from filing of the note of issue (placeing of case on trial calendar) unless hte moving party shows "good cause" i.e. good excuse for delay.

But note that strength on the merits is NOT good cause for delay -- only procedural delays.
What can be used to determine whether SJ should be granted?
1) Anything that was put into answer as defenses, 2) lack of substance of allegations, 3) P's claims that defenses have no merits.
What Burden must the moving party satisfy for SJ?
Moving party must satisfy burden of showing there are no material issues of fact requiring a trial by evidence. Thus, that he is entitled to judgment as a matter of law.
What evidence can the Movant use to satisfy burden for SJ?
1) submitting evidence in forms of affidavits, relevant docs, or discovery materials.

2) affidavits must be by people who have actual knowledge of facts, e.g. party herself or other witnesses.
How can the opposing party defeat a motion for SJ?
Using same type of evidence as movant -- from witnesses with personal knowledge of facts. Opponent cannot simply rely on allegations in pleadings. Need REAL EVIDENCE.
SJ - What if opponent shows, through affidavits, that he is not yet able (through no fault of his own) to produce opposing evidence?
Court can either deny motion or grant a Continuance (Adjournment) to permit additional evidence to be obtained.
SJ - What does the Court do when reviewing a motion for SJ?
"Searches the Record" -court reviews all of the evidence in the record, regardless of who submitted it.

If court concludes that the opponent, rather than movant, is entitled to SJ - court may grant SJ to opponent even though opponent did not make cross motion.
SJ - what is the "Boomerang Effect"?
D moves for SJ, attempting to show absence of triable issue, BUT! P's evidnece can be found to be so strong as to justify SJ for P.
SJ - What happens if motion for SJ is denied?
Case resumes normal course to trial.
SJ - Can court grant SJ on liability only?
YES - then court would order an immediate trial on the issue of damages.
SJ - Can SJ ever be possible prior to the service of the answer?
YES. In 2 situations.

1) D's pre-answer Motion to Dismiss for failure to state a cause of action can be converted BY THE COURT into SJ thereby deciding case on facts, rather than on the face of pleading. This requires
a) parties must have submitted factual affidavits in connection with MTD.
b) courts must give notice to parties that conversion to SJ is being made, to give them opportunity to submit additional evidence,

2) Motion for SJ in Lieu of a complaint.
SJ - What is a Motion for an SJ in Lieu of a complaint?
P moves for SJ at time she serves process by accompanying the summons with motion papers for summary judgment.

This can be used only for 1) Action on an instrument for payment of money only - requires D's unconditional promise to pay money (promissory note, not breach of contract) and

2) Action on an out of state judgment for collection in NY.

NOTE - both are based on clear-cut documentary evidence that prima facie, P has a right to recover
SJ - What is the procedure for filing a Motion for SJ in Lieu of a Complaint?
After filing process with the court P must serve on D with the summons, a notice of motion for SJ with supporting documentation and affidavits.
SJ - What is the mimum advanced notice for a return date for a Motion for SJ in Lieu of a Complaint?
No sooner than the date for the D's response to service of process (more than usual 8 days advance notice on hearing on motion-service of process notice is 20-30 days depending upon type of delivery
What is a Provisional Remedy?
Because lawsuits can take a long time to resolve, and P's rights may be jeopardized while pending, provisional remedies provide a measure of security to P for ultimate enforcement of potential judgment.

All provisional remedies require a court order, excet for a notice of pendency (motions pervade this entire area!)
What are the 5 types of provisional remedies?
1) Attachment

2) Preliminary Injunction

3) Temporary Receivership

4) Order to Seize Chattel in an action to recover it (Replevin)

5) Notice of Pendency - (doesn't require court order)
What is attachment?
Main purpose is to provide security for the enforcement of a monetary judgment.
How does an attachment work?
P obtains order of attachment from court who gives it to NY Sheriff who levies upon property of D in NY. Levy imposes a lien on property pending the outcome of the action.

This gives P a security interest in the proeprty that is superior to that of any subsequent lien holder (P gets priority, basically freezes property).
How does a Sheriff Levy on Real Property?
By filing an order of attachment with the county clerk in the county in NY in which real property is located.
Can Personal Property be levied? If So, what kinds?

1) Tangible - car, boat

2) Intangible - debt owed to D (through bank account)

3) Garnishee - 3rd person who owes debt to D, also 3rd person who has possession of D's tangible personal property
How does a sheriff levy on personal property?
Sheriff delivers order of attachment to person holding D's personal property interest, whether D himself or otherwise.

Sheriff's delivery automatically imposes a lien on personal property interest and serves as an injunction against transfer of the property.

Injunction lasts for the duration of the action
In what types of action can an attachment be used?
Plaintiff MUST be seeking money damages (can be joined to equitable relief claim) AND

1) D is unlicesed corp or non-domiciliary of NY OR

2) D is about to conceal or remove assets from state w/ intent to defraud creditors or frustrate enforcement of the judgment.
What is the Procedure associated with Obtaining an ATtachment?
P must make a Motion for an Order of Attachment.
What are the requirements of a Motion for the Order of Attachment?
1) Affidavits in support of motion must show one or other of categories of attachment.

2) Affidavits must show a probability of success on merits of P's underlying cause of action.

3) P must post an undertaking (bond) indemnifying D for damages or expenses caused by attachment. D will get damages if attachment is wrongful or he wins on the merits.
How must the Motion for Order of Attachment be made (on notice/ex parte, etc)?
Either on Notice OR ex-parte, P's option. But, additional requirements must be met if made ex-parte to satisfy DPC.
What additional DPC requirements are necessary for a P to obtain an Order of Attachment ex parte?
1) Hearing promptly after seizure of D's property (to give D an opportunity to contest an attachment)

2) After P gets ex parte order, sheriff levies on property immediately, but thereafter P makes a motion on notice to confirm ex parte order of attachment.

3) It is through this motion on notice that D learns about hearing to which he is entitled.
What if ORder of Attachment is obtained ex parte, but then P fails to make follow-up confirmation within proper number of days after levy on D's property.
Ex parte order is automatically void.

Two separate time limits apply, depending upon grounds of attachment.

1) If D is unlicensed, foreign corp or non-domiciliary of NY (attachment category #1) - then motion to confirm must be served on D no later than 10 days after levy.

2) IF D is about to conceal/remove assets (category #2) - must serve motion to confirm on D no later than 5 days after levy.
What is a Preliminary Injunction
It is used to maintain the status quo qhile an action is pending.
When may a PI be used?
In an equity action in which P's compliaint seeks EITHER
1) permanent injunction, or
2) if D threatens harm to P's interest in the subject matter of the claim.

NOTE - an action that seeks solely money damages will not support a Preliminary Injunction.
What is the procedure for making a Motion for PI (on notice, ex parte)?
Must be made On Notice! Papers served with or after the summons and anytime up to final judgment.
What are the requirements for the Motion on Notice for a PI?>
1) P's affidavits must show grounds for equitable relief, including threat of irreparable injury.

2) P's affidavits must show probability of success on the merits of underlying cause of action.

3) P must post an undertaking (bond) to indemnify D for damages if it is later determined that PI should not have been granted.
What is the Relationship between Temporary Restraining Orders and PIs?
1) In a case involving a threat of IMMEDIATE INJURY, P can ask court to grant a TRO. Purpose of TRO is to maintain status quo while motion for PI is being decided.

2) TRO can be granted ex parte, if P demonstrates that prior notice to D of the TRO would result in significant prejudice.

3) Make a motion for PI by Order to show Cause -- then go directly to court, get judge to sign order to show cuase, scheduling a return date for PI THEN
a) Judge can include a TRO in the order to show cause
b) Then, when order to show cause (with TRO) is served on D, you are making your motion for a PI. Upon that service on D, D will immediately be restrained by TRP pending resolution of motion for PI
What is Temporary Receivership?
A person appointed by court to maange proeprty in the D's possession. This actually takes property away from D - very drastic.
What Types of Actions can a Temporary Receivership be available for?
1) P must be asserting equity claims in which specific proeprty is the subject of the action, AND

2) there's a danger D will injure or destroy the value of the property while the action is pending,

3) NOTE - if action seeks only money damages, temporary receivership is not available.
How can a temporary receivership be obtained (on notice, ex parte)?
Must be obtained through Motion on Notice!
When is a Seizure of Chattel available?
When the action itself seeks to recover possession of a chattel - tangible, personal asset.
What is the function of an order for Seizure of Chattel?
An Enforcement of a Judgmetn awarding possession of chattel to P.

Sheriff, who seizes chattel, will retain custody of the chattel (impoundment). Otherwise, if the chattel is lost or destroyed while the action is pending, the judgment will be limited to the monteary value of teh chattel.
What are the procedural requiremenst for making a motion for an Order of Seizure?
1) P's affidavits must show a probability of success on the merits in underlying cause of action.

2) P must give undertakings to indemnify D
How can a Motion for Seizure of Chattel be made? (on notice, ex parte)
Motino can be made on notice or ex parte.
If Ex Parte Motion for SEizure of Chattel, what extra DP requirements exists?
1) P must show threat of immediate loss of chattel

2) If ex parte order of seizure is granted, P must make a followup motion on notice w/i 5 days of seizure to confirm ex parte order.

In this follow up motion to confirm is how D gets prompt notice to contest seizure
What is a Notice of Pendency
In an action in which the judgment will have a direct effect on real property, the filing of a notice of pendnecy gives record notice to any potential buyers or mortgages that any acquired interest in the property will be subordinated to that P
What type of actions is a Notice of Pendency available in?
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.

In a mortgage foreclosure, filing of a motion of pendency is statutory required.
What is the procedure for filing a Notice of Pendency?
P files notice of Pendency with county clerk in coutny in NY in which real property is located.

This is what gives record notice of pendency of P's action and gives P a lien on real property.

NOTE - this is only a provisional remedy so no court order is necessary, and P does not have to file a bond.
What happens if Notice of Pendency is improeprly filed?
D can make a motion to cnacel the notice of pendency.
How long is a Notice of Pendency valid for?
3 years after filing, but can be extended for 3 years if party moves for extension prior to expiration of original 3 year period.

If 3 year period expires w/o extension, notice of pendency has no effect. Party who has let a notice of pendency lapse cannot obtain another notice of pendency on the same property for the same cause of action, EXCEPT in a mortgage foreclosure action.
What happens if P can show grounds for more than 1 provisional remedy?
Court has discretion to require P to elect b/w these remedies to which she would otherwise be entitled.
When discovery is complete, and case is READY FOR TRIAL, what happens?
Either party may file a Notice of Issue telling the court the case is ready for trial.

Serve one copy on court, and one on other party
What must a party do to Obtain a Jury?
Party who files Notice of Issue can make a demand for a jury trial in the note of issue.

IF filing party makes no such demand, than party has WAIVED her right to trial-by-jury

BUT other party can file his own separate demand for jury - thus filing party's waiver of jury does not waive other party's rights.
When is there a Right to a Jury Trial?
1) Action seeking solely money damages

2) Replevin

3) Claim to Real Property

4) Annulment of Marriage

5) Divorce Action (issue of grounds for divorce, but no jury or monetary isssues or child custody).
What are the requirements for a Civil Jury in NY?
6 jurors, and need not be unanimous. 5 out of 6 are okay.
What is Res Judicata (claim preclusion)?
Purpose is to avoid and prevent relitigation of the SAME ISSUE.
What approach to Res Judicata does NY use?
"transactional approach."

When a claim is brought by a particular D to a final determination on the merits -- THEN all other claims by P against same D are barred if they arise out of same transaction.

Even if based on other theories, or seeking differen tremedy
What is the One Policy Exception to NY's "transactional approach" to res judicata?
Should not be applied in matrimonial action based on domestic violence. Spouse cna sue spouse 2 times based on same set of facts - for divorce and for personal injury tort damages for assaultive conduct.
What is collateral Estoppel (Issue Preclusion)?
Avoids and prevents the need for relitigation of specific fact issues decided in a prior proceeding.
What is the rule for Collateral Estoppel in NY?
Requires 3 part showing.

1) Issues are identical in former and current proceedings.
2) Issue was actually litigated and decided in former proceeding.
3) Party against whom issue preclusion is asserted had full and fair opportunity to litigate the issue in the prior proceeding.

KEY - issue preclusion cannot be used against someone who was not a party to prior action.
What is a Special Proceeding?
Speedy, streamlined procedure, like a motion practice, the purpose of which is to get a judgment as a final resolution of the dispute.

E.g. probate of will, election disputes, summary proceeding by landlord for evictoin, dissolution of corporation, habeas corpus, enforcement of an arbitratoin agreement, CPLR Article 78 Proceedings.
What is requried to pursue a remedy by means of special proceedings?
Requires specific statutory authorization.

Note that if you file a special proceeding in error, court doesn't dismiss it, just converts it into an action.
What is the procedure for obtaining a special proceeding?
1) Petitioner files a petition (analogous to complaint) this commences special proceeding - important for time limits.

2) Petition and notice of petition must be served on respondent (person from whom relief is sought). Such service is made through same methods as used to serve process. (note that jurisdiction must be acquired over respondent)

3. Notice of petition advises respondent to Serve an Answer and to Appear on the specified return date for the Hearing.

a) return date for hearing can be no sooner than 8 days from service of process.
b) if accelerated return date is needed, petitioner can intitiate special proceeding by order to show cause.

4) Affidavits served in support of, and opposition to, the petition. All pleadings and affidavits are submitted to the court by return date for decision by court.
What is ARbitration?
Private procedure based on contract for binding resolution of disputes. Two parties may agree to submit an existing or future dispute to arbitration (e.g. arbitration clauses are very common in commercial contracts).
Are arbitrators bound by substantive law or evidence rules?
No. They may do justic eas they see fit, and scope of judicial review is VERY narrow
What is the role of the Judge with Arbitration?
If one party to an arbitration agreement resists arbitration in an effort to resolve the case by conventional judicial proceeding, court may be called upon to decide certain "threshold issues" as to whether arbitration should proceed.

If threshold issues are resolved in favor of the particular arbitration, court involvement ends, and merits of dispute are for arbitrator to decide.

Public policy in NY favors arbitration, this guides courts in deciding any cases.
What are the 5 threshold issues that can be presented to the Court in an attempt to Avoid Arbitration?
1) Did parties agree to arbitration ?
this is a question of K law - agreement to arbitration
a) must be in writing, but no signing required, and
b) it must be clear, explicit and unequivocal.

NOTE that the contractual duty to arbitrate is enforceable separate and apart from remainder of contract (doctrine of severability) - even if K is found to be fraudulent only way to get out of arbitration is to show that arbitration clause itself was induced by fraud/duress/coercoin

2) Is dispute within the scope of the clause? both broad and narrow clauses are used - if broad clause, veyr few things that court can decide.

3) Is arbitration clause valid? Invalid and unenfroceable if arbitration clause, viewed in isolation, was induced by fraud, duress or coercion; OR if top ic that parties have agreed to arbitrate is contrary to public policy.

4) Is there an express condition precedent to arbitration that has been complied with

5) SOLS are determined by court.
How does one bring one of these threshold issues for ARbitration before a Court?
Through a Pending Action - D should make motion in the action to stay the action and to compel P to arbitrate.

If Proponent of arbitration serves a Notice of Intent to Arbitrate - opponents only remedy is to commence special proceeding for a stay of arbitration, where opponent can raise any of 5 threshold issues as arguemtns against stay, but must act quickly.

Special proceeding must be commenced no more than 20 days from notice of intent to arbitrate. Otherwise, all 5 threshold issues are WAIVED.
When Can a Judge Review an Arbitration Award?
1) If corruption, fraud or misconduct existed in arbitration proceedings.

2) If you can show bias of an arbitrator who was chosen to be neutral

3) If arbitrator has exceeded his powers (almost nothing does - b/c virtually unlimited powers.)

NOTE - In Ny, for public policy reasons, arbitrators can't award punitive damages.
What is an Article 78 Proceeding?
Authorizes a special proceeding for judicial review of any action/inaction by government or quasi-govt officers or bodies of any kind.
When is one entitled to relief under an Article 78 proceeding?
Art. 78 proceeding depends upon petitioner's showing that case would have been subject to review under one of the 4 CL "prerogative writs".
Article 78 proceeding - what are the 4 CL "preorgative writs" for a hearing?
1) Mandamus to compel - to compel - to compel the performance of an act required by law - act to which no discretion is involved (issuance of license). Note that corporation is considered quasi-govt for mandamus purposes and can get mandamus to compel meeting of annual shareholders).

2) Prohibition. PRoceeding to stop a judicial officer from exercising power that exceeds officer's lawful jurisdiction. Reserved for grossly improper exercise, e.g. Double Jeopardy violation; otherwise appeal is remedy for routine errors.

3)Certiorari. Proceeding to challenge the results of a "trial type" hearing conducted by an administrative agency. This is a hearing in which testimony was taken under oath with a right of cross-examination.

Court must uphold results if determination was suported by substantial evidence.

4) mandamus to Review - porceeding to review any type of administrative action not covered by other categories above. Most often, this form of review is used to challenge an agency determination made w/o a trial-type hearing. Standard of Review - court must uphold agency determination unless arbitrary and capricious
What court can an Article 78 proceeding be brought in?
Pnly the SC
What is the SOL for an Article 78 proceeding?
4 months, running from receipt of notice of act being challenged
What is the relief that can be sought in an Article 78 proceeding?
Either declaratory o rinjunctive (declaration of annulment of agency's interpretation, reinstatement of discharged civil service employee, etc).

Damages are recoverable under ARt. 78 proceeding if damages are INCIDENTAL to main relief being sought.