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86 Cards in this Set
- Front
- Back
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NY Statute of Limitations
Action on Judgement |
20 years
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NY Statute of Limitation
Action to recover realty |
10 years
same period as adverse possession |
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NY Statute of Limitations
Action by crime victim against convicted D for a SERIOUS crime |
10 years
runs from date of conviction. V may also sue for damages for up to 3 years from discovery of D's receipt of money or property from any source. |
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NY Statute of Limitations
Action by crime victim against convicted D for "any" crime |
7 years
period runs from date of crime |
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NY Statute of Limitations
Contracts, express or implied (other than UCC Article 2 sales) |
6 years
Accrual on date of breach regardless of P's lack of knowledge |
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NY Statute of Limitations
Indemnity and contribution |
6 years
accrual on date of payment for which indemnity or contribution is sought. |
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NY Statute of Limitations
Fraud |
6 years
P may sue within 6 years of commission of a fraud or 2 years from discovery (actual or imputed), whichever is longer. |
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NY Statute of Limitations
Equity actions - rescission, reformation, accounting |
6 years
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NY Statute of Limitations
Action by victim of rape-related felony |
5 years
Period runs from date of crime; and if perp is prosecuted, victim gets an extra 5 years from termination of the criminal proceeding regardless of outcome |
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NY Statute of Limitations
Contracts under UCC Article 2 - Sales |
4 years
breach of warranty claim accrues upon tender of delivery |
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NY Statute of Limitations
Personal injury based on negligence and strict products liability |
3 years
Personal injury and property damage claims accrue on date original injury occurs. No discovery rule applies except in causes of toxic substances. |
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NY Statute of Limitations
Property damage, including conversion and replevin |
3 years
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NY Statute of Limitations
Professional malpractice, other than medical malpractice |
3 years
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NY Statute of Limitations
Medical, dental and podiatric malpractice |
2 1/2 years
cause of action generally accrues on date of malpractice. Exceptions for continuous treatment (runs from end of treatment) and "foreign objects" (one year from discovery if insufficient time under regular rules). |
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NY Statute of Limitations
Wrongful death |
2 years
from date of death BUT ALSO must show that SoL on decedent's underlying PI claim had not expired on date of death. If criminal proceeding is brought against D, executor gets options and independent 1 year period from termination of criminal proceedings (regardless of whether conviction or acquittal) |
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NY Statute of Limitations
Personal injury and property damage claims against municipal D's |
1 year, 90 days
P must also show that she served a notice of claim on muni D within 90 days of the accident. Court has discretion to allow a late service of notice of claim, but in no event may such notice extend beyond SoL period plus applicable tolling provisions. |
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NY Statute of Limitations
Intentional Torts to the person (eg. assault, battery, false imprisonment, defamation) |
1 year
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NY Statute of Limitations
Article 78 proceedings |
4 months
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NY Statute of Limitations
20 years |
Action on judgment
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NY Statute of Limitations
10 years |
action to recover realty
action by crime victim against convicted defendant for a serious crime |
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NY Statute of Limitations
7 years |
action by crime victim against convicted defendant for "any" crime.
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NY Statute of Limitations
6 years |
Contracts, express or implied (other than UCC Article 2 - Sales)
Indemnity and contribution Fraud Equity Actions (recession, reformation, accounting) |
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NY Statute of Limitations
5 years |
Action by victim of rape-related felony
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NY Statute of Limitations
4 years |
Contracts governed by UCC Article 2 - Sales
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NY Statute of Limitations
3 years |
Personal injury based on negligence and strict products liability
property damage, including conversion and replevin. Professional malpractice, other than medical malpractice |
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NY Statute of Limitations
2 1/2 years |
medical, dental and podiatric malpractice
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NY Statute of Limitations
2 years |
wrongful death
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NY Statute of Limitations
1 year 90 days |
Personal injury and property damage claims against municipal defendants
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NY Statute of Limitations
1 year |
Intentional torts to the person
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NY Statute of Limitations
4 months |
Article 78 proceedings
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Subject Matter Jurisdiction
Supreme Court |
the NY court of general jurisdiction - may adjudicate all cases in NY except for cases where state is the D.
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Subject Matter Jurisdictions
Limited Jurisdiction Cases |
County court - $25,000 limit
Civil Court of City of NY - $25,000 limit District Court - $15,000 limit City Courts Small Claims Court - $5,000 limit Justice Courts - $3,000 Family Court Surrogate's Court Court of Claims |
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Transfer and Removal
1. orig. ct lacks smj 2. orig. ct has smj but events occurring after suit require transfer for complete relief. 3. orig. ct has smj but lesser court does too. |
1 & 2 - removal upward
- motion to supreme court and application to transferee court 3 - removal downward - consent of party adversely affected is required due to jurisdictional amounts. Can also be moved to alleviate calendar congestion - consent not required bc jurisdictional limits won't apply. |
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Limitations on Supreme Court SMJ
Forum Non Conveniens |
Court finds that in interest of substantial justice require an action to be heard in a court of another state. May dismiss in whole or in part.
Court must weigh convenience of court, P and D. Unless balance favors D, P's choice should remain undisturbed. |
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Limitations on Supreme Court SMJ - Foreign Corp. Suig or Being Sued in NY
Suits BY foreign corp without authority |
Unauthorized corp dbiny allowed to commence an action but prevents it from continuing the action unitil it pays all fees, taxes, and penalties owing for the period it did business without authority.
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Limitations on Supreme Court SMJ - Foreign Corp. Suing or Being Sued in NY
Suits Against Foreign Corps |
NY resident or corp may freely sue a foreign corp but a nonresident or foreign corp may not sue in NY unless underlying action has meaningful tie to the state.
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Limitations on Supreme Court SMJ - Contractual Choice of NY Law
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enforceable if transaction involved at least $1m and contract contains an agreement by the nonresident or foreign corp to submit to NY jurisdiction.
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Statute of Limitations
Interposition of Claim |
justice courts - date of service
all other courts (including Supreme) - date of filing process |
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Statute of Limitations - Commencement Against Party United in Interest
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If original summons omitted a party who is then added to the action after the expiration of the SoL, timely commencement against orig. D will toll IF:
1. both claims arise out of the same conduct 2. the parties share liability, either jointly or vicariously AND 3. the new party knew or should have known that, but for P's mistake in identifying all parties, the action would also have been brought against him. |
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Statute of Limitations - Counterclaims
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If a counterclaim would have been timely as of the date of the P's commencement of the action, then the counterclaim is timely. Even if not timely, counterclaim can be used as a setoff if it arises out of events giving rise to P's claim.
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Statute of Limitations -
Claims in Amended Pleadings |
Claim asserted in amended pleading is measured for timeliness as of the date of the service of the amended pleading.
However, if the original pleading gives notice of the events on which the newly added cause of action is based, then the date relates back to the date of the original action. |
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Statute of Limitations as a defense
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must be raised in a preanswer motion or as an affirmative defense in the answer itself.
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Statute of Limitations -
Medical Malpractice - Fraudulent Concealment |
If doc knowingly conceals his act of mal and P reasonably relies on do, doc may be estopped from pleading SoL.
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Statute of Limitations -
Architects' Malpractice |
claim accrues when work is done or, at latest, when relationship between architect and client terminates.
injured 3rd party's claim accrues at time of injury. |
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Statute of Limitations -
Malpractice against non-physicians |
claims against learned professionals other than physicians accrue when work is completed. Accrual is delayed until termination of services if claim arises during a continuing course of professional services on a specific matter.
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Statute of Limitations -
Products Liability - breach of warranty |
4 year statute of limitations accrues when tender of delivery made. Action against a manufacturer or distributor accrues on date the party charged tender delivery of the product, not on the date some 3rd party sells it to P.
Remember, 6 year SoL governs a 3rd party claim by D-purchaser seeking indemnification from the 3rd party D-manufacturer. This claim accues when Purchaser-D pays the P. |
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Statute of Limitations -
Private agreements |
Parties may, by agreement before the cause of action accrues, shorten the time within which suit may be brought as long as shortened period is reasonable.
After accrual, parties may, by written agreement, extend time for bringing an action. NOTE: part payment, acknowledgment or promise to pay an obligation states the statute running anew from date of such payment, acknowledgment or promise to pay. Agreement not to raise SoL as defense made before accrual of cause of action is void. |
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Tolling of SoL - D's absence from NY
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Absence by D from state under circumstances that prevent exercise of jurisdiction over him operates to toll the SoL during period of absence.
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Tolling of SoL - Disability of Party
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disability - tolled until disability is removed.
disability, infancy or military service: - if SoL is three years or more: P has 3 years accruing from when disability removed - if SoL is less than 3 year: P has the normal SoL from when disability removed 10 year max time within which to commence action from time of accrual if claim is by infant for medmal or claimant is insane at time of accrual. |
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Tolling SoL - Death of party
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If P dies and cause is one that survives, action may be brought by representative within the actual SoL period or within one year after death.
Death of D tolls the SoL for 18 months. |
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Tolling SoL - Effect of Dismissal
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If a timely action is terminated, P may commence a new action based upon the same transaction or occurrence within 6 months after termination, provided new action would have been timely at the time of the commencement of the prior action.
This does not apply if first action terminate because of: 1. judgment of dismissal on the mertis 2. voluntarily discontinuance 3. dismissal for neglect to prosecute if court notes the neglect to prosecute consisted of a general pattern of delay and sets forth facts demonstrating such neglect 4. dismissal for lack of personal jurisdiction In English: if you bring timely suit and it gets dismissed on a technical issue, then you can refile within the next 6 months. |
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Statute of Limitations
Borrowing Statute |
A non-resident P with a claim accruing out of state gets the shorter of the foreign and NY SoL.
A resident P with a claim accruing out of state gets only the NY SoL. |
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Jurisdiction -
What does due process require? |
a basis of jurisdiction and adequate notice and an opportunity to defend.
there must be minimum contact between the state and the D so that exercise of the state's jurisdiction over the D does not offend "traditional notions of fair play and substantial justice." |
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Jurisdiction -
Who can serve papers in NY? |
Anybody over 18 who is not a party to the action.
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Jurisdiction -
When can you not serve? |
Sundays. Holidays are ok as long as it is not a Sunday.
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Jurisdiction -
Types of Service |
Personal Delivery
Leave and Mail Service Service upon Designated Agent Nail and Mail Expedient Service |
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Jurisdiction -
Personal Delivery |
Direct notification of D. Handing it to them, delivering it near them or leaving it at a door they refuse to open and announcing that they have been served.
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Jurisdiction -
Leave and Mail Service |
Delivery to a person of suitable age and discretion at D's actual place of business, dwelling place, or usual place of abode AND mailing to either the D's last known residence or actual place of business.
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Personal Jurisdiction - Proper service
Leave and Mail - Mailing Requirements |
1st class mail. if to work, must be marked "personal and confidential" with no indication its from an attorney.
Must be sent within 20 days of leave. You do not need to attempt personal delivery for this to be valid. |
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Personal Jurisdiction - Proper Service
Nail and Mail |
Affixing to door of D's residence or business. Cannot be done without numerous attempts at personal delivery or if leave and mail is available.
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Personal Jurisdiction- Proper service
Service on designated agent |
duh
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Personal jurisdiction - proper service
Expedient Service |
if other methods are impracticable, court can improvise method to make sure D will receive service.
ex parte motion (obviously) and must be before the service was attempted by non-statutory method. Cannot be used to ratify an improper service. D can still challenge adequacy of service |
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Service on Infants
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to guardian or person having legal custody. If infant is married, may be made to adult spouse.
If not reside in state, then to who infant lives with or infant's employer. If 14 or older, summons shall also be personally served on him. |
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Service on Incapacitated persons
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If committee/guardian has been appointed as caregiver, it goes to the committee/guardian.
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Service outside the stated
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Can be made by anyone who would be eligible in NY, anybody eligible in the foreign territory or an attorney in that territory.
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Service to Corporations
Who and how? |
can go to:
officer director managing or general agent cashiner or asst. cashier (person with substantial fiscal responsibility) agent authorized by appoinment or law personal delivery or expedient service |
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Alternate Service under NY Business Corporations Law
Domestic and Authorized Foreign Corporations |
Two copies to Secretary of State who sends to last address on record
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Alternate Service under NY Business Corporations Law
Unauthorized Foreign Corporations |
a copy to Sec of State and either mailing a copy via registered mail OR personal service to officer.
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Service via 1st Class Mail
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must contain an acknowledgment of receipt form that D may sign and return to P by mail or personal delivery w/i 30 days. service is complete when D mails or delivers form.
If D fails to get form back to P, P must use a traditional method but P may immediately seek reimbursement from D for reasonable expense of 2nd service. |
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Basis for Personal Jurisdiction
Overview |
- physical presence of D in state
- DBINY - Domicile in state - single act or long arm basis - Express consent by contract or designation of instate agent - Use of NY Courts (if you sue in NY, your attorney becomes your agent for any action that could have been a counterclaim. lasts during the pendency of original action.) - Implied Consent (like the nonresident motorist statutes that imply a designation that Sec of State can accept service.) - Appearance |
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Basis for Personal Jurisdiction
Physical presence - general rule and exceptions |
While actually within borders of state, subject to jurisdiction of state to any and all claims
Exceptions: fraudulent enticement into jurisdiction and physical presence to which immunity attaches |
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Basis for PJ
Physical presence exemptions - physical presence to which immunity attaches |
- applies only to non-domicillaries
- voluntarily presence in state for another proceeding triggers immunity (subpoena is non-voluntarily presence) - Involuntary Presence by Extradition (limited immunity applies only to civil suits related to the criminal proceeding and dissolve upon the case ending). - Immunity does not apply if there is some other basis for service other than presence. |
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Basis for PJ
Corporate Presence - DBINY as corp or natural person |
Only arise in cases of unauthorized foreign corps.
Presence Test - whether in-state activity is sufficiently substantial to any and all suits in NY courts. Permamence and continuity are required, there is no necessity to find that the in-state activity was substantial in volume. Subsidiaries and Affilates - pierce corporate veil Independent Corporate Entities - if no stock owned by out of state corp, then no piercing Independent Contractors - if only soliciting, no piercing. But if authorized to make contracts, pierce away. |
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Personal Jurisdiction -
Domicile in NY |
If D is a NY domiciliary at the time of service, this option is available and the cause of action need not arise out of NY activities.
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Personal Jurisdiction -
Long arm statute - initial questions |
Does the long arm statute cover the acts performed by D? If yes, go to next question.
Does the assertion of jurisdiction conform to the Due Process Clause? (will usually be yes) |
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Personal Jurisdictions -
Long arm statute - acts performed that give PJ over D |
1. Transaction of business w/in state or contracts anywhere to supply goods or services w/in state
2. Commits a tortious act w/in state except for defamation 3. Commits a tortious act outside state causing injury to person or property in state (except for injury from defamation) IF: -- D regularly does or solicits business or engages in other persistent course of conduct or derived from goods and services used in state -- Expect or should reasonably expect act ot have consequences in state and derives substantial revenue from interstate or international commerce. 4. Owns, uses or possesses any real prop w/in state. |
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Personal Jurisdiction
Long arm statute - Transaction of Business within NY |
Long arm extends to person or entity that engages in a transaction of business in NY if the suit arises out of that transaction.
Can be a single transaction. You do not need the same substance as DBINY. Has to be more than simply signing a piece of paper but electronic negotiations can be enough. If goods and services are to be in NY, this shoe fits! |
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PJ
Long Arm Statute - Tortious act outside state causing injury to person or property in state |
To attach:
-- D regularly does or solicits business or engages in other persistent course of conduct or derived from goods and services used in state -- Expect or should reasonably expect act ot have consequences in state and derives substantial revenue from interstate or international commerce. |
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PJ - Long Arm
Nonresident Motorist |
User and owner (if not user) of a vehicle involved in an accident in NY is subject to personal jurisdiction provided vehicle was being used in NY with owner's permission or for owner's business.
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PJ - Long Arm
Nonresident motorist - service |
1. a copy to Sec of State
2. In person or certified mail with return reciept |
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PJ - In Rem Jurisdiction
General |
If over a piece of land in NY, then it's NY jurisdiction
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Response to P's Service
Summons with Notice |
P sends summons and notice - D's notice of appearance or demand for complaint - 20 days of personal delivery / 30 days if other method
P must send copy of complaint w/in 20 days D must send answer to P or MTD - 20 days from complaint |
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Response to P's Service
Summons and Complaint |
D must answer or MTD - 20 days if personal delivery / 30 if any other method
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Permissive Joinder - Questions
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Is there a single, substantial common question? (There need not be total identity of issues)
Do they arise out of the same series of transaction? |
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Pleadings
Pre-Answer Motion to Dismiss |
DOWNFALL
1. Documentary evidence 2. Other action pending 3. Want of capacity 4. Non-joinder of necessary party 5. Failure to state a cause of action 6. Affirmative defenses 7. Lack of PJ 8. Lack of subject matter jurisdiction |
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Affirmative Defenses
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SPARERIBS
1. Statute of limitations 2. Payment 3. Arbitration & award 4. Res judicata 5. Estoppel (collateral) 6. Release 7. Infancy of D 8. Bankruptcy discharge 9. Statute of Frauds |
