Ny Practice For Bar

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Subject matter jurisdiction

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The constitutional or legislative authority to grant the relief a party seeks. May not be waived. An objection can be raised at any time by any party, including the court. A court of general, original subject matter jurisdiction is a trial court with the power to hear any type of action. (Court’s power to try the case).

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Supreme Court jurisdiction

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Supreme Court: only trial court in NY that has general subject matter jurisdiction.
• One Supreme court in each county (62). If one Supreme Court has jurisdiction, they all have it. County is a venue issue.
• Unlimited monetary jurisdiction; only court in NY with full equity jurisdiction.
• Can hear cases where neither party resident (might have personal jurisdiction issue)
• Exclusive subject matter jurisdiction
○ Matrimonial action: action in which court is asked to adjudicate the status of a marriage (divorce, separation, annulment, declaration of validity of the marriage). Family Court does not have jurisdiction to grant this relief
○ CPLR Article 78 proceeding (e.g., judicial review of administrative action)
○ Declaratory judgment action (judicial declaration of the rights and obligations of the parties to an actual controversy before one of them engages in conduct that could cause liability.

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Exceptions to Supreme Court jurisdiction

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○ Federal exclusive jurisdiction: Cases as to which federal law confers exclusive jurisdiction on federal court, e.g., bankruptcy, patents, copyrights
○ Court of Claims: Claims for money damages in tort or contract against the State of NY--Only can be brought instead in Court of Claims, only D in Court of Claims in State of NY.
§ State cannot implead in Court of Claims.
§ Employees of the state get sued in Supreme Court, not Court of Claims.
§ No jury in Court of Claims.
§ Governmental subdivisions (county, city, village or town)

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When does S/L begin to accrue?

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• S/L begins to run when the cause of action accrues (when injury occurs).
○ Personal injury or property damage action, the cause of action accrues on the date of the injury (not discovery)
○ In a breach of contract action, the cause of action accrues on the date of the breach
○ Discovery of harm is generally irrelevant.
○ Under the substantive law, when an infant is injured in utero, the child has no cause of action unless the child in born alive, in which case the S/L begins to run from date of birth

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When is action commenced for S/L purposes?

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• To satisfy S/L, action must be commences no later than the last day of the prescribed period of limitations
○ Commencement consists filing of process. Process = summons and complaint, or summons with notice. The filing must be made with the clerk of the court on or before the last day of S/L
§ To compute s/L and any other time period in CPLR, exclude the day upon which the triggering event occurs and begin counting the next day.
§ If the last day of performing any procedural act, such as commencing an action of serving a paper, falls on a Saturday, Sunday, or public holiday, P gets until the end of the next business day to perform the required act.

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S/L chart

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• 20 years: State action to recover real property; enforcement of judgment; recover principal/interest on bonds.
• 10 years: Recover real property, annul letter patent, redeem mortgage.
• 7/10/3 Years (Crime Victims): Against convicted D—7 years from crime. Against convicted Dfor serious crime (violent felony)—10 years from conviction. Discovery of D's receipt of money or property from any source—3 years from discovery, regardless of 10 year SOL expiration.
• 6 years: Contracts (non-UCC); notes/bonds secured by real property, fraud, indemnity, equity actions.
• 4 years: UCC Contracts (sale of goods).
• 3 years: Negligence; personal injury; damage to personal property; strict liability, non-medial malpractice.
• 2.5 years: Medical malpractice.
• 2 years: Wrongful death (must also show that SOL on underlying personal injury claim did not expire).
• 1 year, 90 days: Torts claims against city, town, village, or school. (Notice filed 90 days after claim arises).
• 1 year: Intentional Torts – assault, battery, false imprisonment, defamation (tolled for criminal prosecution).
• 4 months: Special proceedings for mandamus or certiorari (Art. 78 proceedings).

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Medical malpractice S/L

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applies to doctors, dentists, podiatrist, nurses and hospital. Period is 2.5 years, date of accrual (S/L begins to run) on date of injury
○ Discovery of malpractice is generally irrelevant
○ Action in respondeat superior against hospital for the malpractice: same period as for doctor applies. Other Negligence action not based on medical malpractice (i.e. independently negligent in hiring) = 3 year limitation period for ordinary negligence.

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Exceptions to medical malpractice S/L

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§ Continuous treatment rule: 2 .5 year period begins to run from the date of the last treatment if there has been continuous treatment of the same condition that gave rise to the malpractice).
□ Failure to diagnose condition, such as cancer, constitutes medical malpractice. Series of misdiagnoses does not constitute "continuous treatment" because there has been no treatment.
§ Foreign object rule: If the claim is based on the fact that the doctor left a foreign object in the patient’s body, suit may be brought either within 2.5 years of the operation OR within 1 year from the date of discovery of the foreign object (or should have discovered it with reasonable diligence), whichever is longer.
□ Foreign object is something doctor did not intend to leave behind--temporary surgical clamps, sponges, scalpels.
□ Not foreign objects (no discovery rule): chemical substance, prosthetic device, fixation device (item doctor deliberately place in body with intent that it remain to serve some continuing treatment function). Period runs from date placed in body, not discovery.

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Other professional malpractice

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• Other Professional Malpractice (architects, engineers, accountants, attorneys, who are members of a learned profession, but not insurance brokers, securities analysts, plumbers.
○ Client's cause of action for malpractice against non-medical professional for financial loss has an exclusive S/L of 3 years that runs from termination of particular service in which malpractice occurred
§ Architect or engineer: period runs from completion of building
§ Accountant or attorney, from delivery of work product to client.
§ Non-medical professionals are subject to the doctrine of "continuous representation" which is similar to the continuous treatment doctrine applied to doctors.
○ CPLR specifically states that for non-medical professional malpractice, statute of limitations is three years, REGARDLESS OF WHETHER THE THEORY IS TORT OR CONTRACT (Cannot try for 6 years SOL for contract claims).

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Exception to other professional malpractice

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injured person can sue responsible tortfeasor (architect) up to three years from date of bodily injury, regardless of the date of completion of building.
§ Procedural Limitations: if the action is brought more than 10 years after the building completed:
□ P must serve a notice of claim on the architect or engineer at least 90 days before suit;
□ P may obtain discovery from the potential defendant during the 90 day waiting period; and
□ after suit is commenced, if D moves for summary judgment, the burden will be on P to make an immediate evidentiary showing that there is a “substantial basis” to believe that D's negligence was the proximate cause of the injuries.

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Municipal tort liability S/L

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○ Statute of limitations: in an action of personal injury or property damage against governmental subdivision of state (county, city, town, school district or municipal hospital) S/L is 1 year and 90 days.
○ Separate notice of claim prerequisite: as condition precedent to tort action against a municipal D, P must serve a notice of claim on the potential municipal D no later than 90 days from the date of the accident.
§ Service of notice of claim is not commencement of the action. Notice of claim simply gives potential municipal D advance warning of potential lawsuit to enable municipality to engage in early investigation and possible settlement without need for litigation.
§ If P commences action without prior timely compliance with the notice of claim prerequisite municipal D is entitled to dismissal on ground of failure to state a claim or failure to establish condition precedent.
§ After service of notice of claim on municipal entity, P must also commenced an action against municipal entity. Complaint must plead compliance with notice of claim requirement.
§ If 90 days period to serve a notice of claim on municipal entity has expired, but time remained on 1 year 90 days statute of limitations is still alive, P may make motion to serve late notice of claim.

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Products liability S/L

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when defective product causes personal injuries, P has 3 possible causes of action which, as matter pleading, can all be asserted in same complaint.
○ Negligence: S/L 3 years running from date of injury
○ Strict products liability: S/L 3years running from date of injury
○ Breach of warranty: S/L 4 years, running from date D delivered the product.
○ Indemnity and contribution claims: S/L 6 years, running from date of actual payment of judgment for which indemnity or contribution is sought.
○ Discovery rule in cases of exposure to toxic substances: any inherently harmful toxin that has latent or slow-developing effects (asbestos, HIV, leaking petroleum). Exposure is any sort of assimilation into one's body or property.
§ 3 year S/L running from 1) discovery of injury by P, OR 2) date injury should have been discovered with reasonable diligence, whichever earlier.
§ Discovery rule for toxic substances is inapplicable to claims of medical malpractice.

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Toll for D's absence

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○ if D is not in NY when cause of action accrues, S/L does not begin to run until D comes to NY, OR
○ 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.
○ Exception: Unless P has basis for personal jurisdiction over the absent D such that D could be served outside NY
§ Usually swallows the rule and P is rarely entitled to absence toll.

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Toll for P's infancy or insanity

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Infants (under 18) or insane P may sue within regular S/L through competent adult representative, but they also get benefit of toll.
○ If P is infant or insane at time of cause of action accrues, S/L is tolled until disability ends (infant reaches 18 or until insanity clears up.
§ Insanity defined as any mental disorder that causes an overall inability to function in society. To be "insane" P need not have gone through formal judicial proceeding for appointment of guardian).
○ When disability ends:
§ If original S/L was three year or more, then get a) three years from end of disability or b) statutory period measured from accrual, whichever is longer.
§ If original S/L was less than 3 years, when disability ends P gets original S/L.
○ Outside limit of 10 years for commencement of action:
§ When relying on toll for infancy, claim for medical malpractice must be commence no later than 10 years from date of accrual.
§ Claims of insane P regardless of nature of cause of action become time-barred after 10 years from date of accrual when relying on toll for insanity
§ Caveat: in medical malpractice, continuous treatment toll and infancy toll are separate tolls. Do not add tolls together when computing S/L. If both tolls are applicable, run each toll separately and determine if action is timely under either toll.

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Toll for death

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§ Distinguish survival claim from wrongful death claim (Party who sues on behalf of decedent's estate as to either type of claim is executor (with will) or administrator (without will):
□ Survival claim is any cause of action P herself could have brought if she were still alive. Not limited to torts and recoverable damages include all damages incurred by P prior to death (pain and suffering).
® If P dies before S/L expires, estate representative get time remaining on S/L or 1 year from P's death to commence the survival action, whichever is longer.
□ Wrongful death cause of action is tort claim for pecuniary (economic) damages of decedent's statutory distributees (surviving spouse and children). Punitive damages recoverable, but not emotional suffering of distributees or decedent's personal pain and suffering.
® S/L 2 years from date of death, but must be shown that decedent possessed timely cause of action at the time of death.
○ Potential Ds: if potential D dies at any time before the S/L expires, 18 months are always added to relevant limitations period (regardless of whether P needs extra time).

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6 month grace period

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if an NY action is timely commenced, but is thereafter dismissed before trial AND at time of dismissal S/L has either expired or has less than 6 months remaining, P gets 6 months from date of dismissal to re-file same action and serve process same D.
○ Exceptions:
§ Prior dismissal on the merits
§ Voluntary discontinuance by P
§ Dismissal for neglect to prosecute, but court must make finding on the record of pattern of neglect and delay
§ Lack of personal jurisdiction
○ Dismissal for lack of subject matter jurisdiction is entitled to 6 month extension
○ Federal action dismiss: Timely action dismissed from federal district court in NY, if S/L has expired in meantime, P will get 6 months to start over gain in NYS court:
§ Lack of diversity of citizenship--yes, dismissal on subject jurisdiction ground.
§ Defect in form of summons/improper service of process/out of state service in a case where long-arm jurisdiction lacking: no 6 month extension. All defects are based on lack of personal jurisdiction.
§ 6 month extension will not apply to dismissals from courts outside NY.

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Borrowing statute

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if the cause of action arises outside NY, choice of law problem is presented in S/L of other state is different from that of NY. "Borrowing statute" is intended to prevent forum shopping by non-resident P's seeking longer S/L in NY.
○ If P was non-resident of NY when out of state claim arose:
§ NY court will apply S/L of state where claim arose if it is shorter than that of NY.
§ NY court will apply its own S/L if state where claim arose has longer S/L.
○ If P was NY resident when out-of-state claim arose, apply NY S/L, no borrowing. NY resident P always gets NY S/L
○ Borrowing statute is based on residency, not domicile.

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Commencement procedures

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• action is commenced by filing process (process = summons and notice, or summons and complaint) with the clerk of the court. In Supreme Court action, clerk of the court is the County Clerk, not Supreme Court Clerk. Filing must be accompanied by payment of fee for purchase of index number, followed by service of process on Ds.
○ Filing of process is valid commencement (for S/L), provided process is served with 120 of filing.
○ If P is have trouble serving D within 120 period, court has discretion to extend time to make service if P can demonstrate: 1) Good cause OR 2) Interests of justice warrant an extension
§ Di wants to challenge P's untimely service of process, D must preserve defense and make a motion upon it. I f D fails to raise defense of untimely service, it is waived.

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• Form of process (initiatory papers that invoke the courts' jurisdiction):

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○ Summons and complaint: summons advises D that P is suing D in particular court. Complaint is P's pleading, which specifies transaction or occurrence that is subject matter of action and spells out essential elements of P's cause of action
○ Summons with notice: when summon is not accompanied by complaint, it must have sufficient "notice" inscribed on the face of summon or on a one-page attachment
§ 1) brief statement of nature of the action (breach of contract, negligence),
§ 2) statement of relief sought (monetary, equitable);
§ 3) if for monetary relief, notice must specify amount being sought.
□ In medical malpractice action, notice may NOT include amount of damages being sought.
§ Naked summons (no complaint or notice): jurisdictional defect and case is subject to dismissal. Same result for defective notice or naked complaint/notice without summons.

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Who may serve process and what day?

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○ Process may be served by any person who is at least 18 years old, provided person is not party to the action.
○ Process may be served on any day of the week, except:
§ Sunday
§ if D is Saturday-Sabbath observer and P knows it, P cannot serve, but innocent service ok.
§ Service on holiday is ok, but not on Sunday.
○ Actual notice is irrelevant to determination of whether there has been proper service of process. Unauthorized service, but D finds process, not sufficient that D has notice of action. P must comply with statutory methods to the letter.

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Natural persons--Traditional methods
Personal delivery to D

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service by personal delivery is complete upon process server's tender of summons directly to D (D's response time is measured from date that service is complete).
§ If D refuses, as long as announced, can drop at his feet, it is proper service.
§ Re-delivery is not valid service of process. Process server must serve D directly.

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Natural persons--Traditional methods
Leave and Mail

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○ Process server may deliver process to person of suitable age and discretion 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.
§ 2 service steps must be performed within 20 days of each other and both steps must take place within 120 days from filing process, order does not matter.
§ Location does not have to be the same: mail to home and deliver to business.
§ No certified mail required.
§ Suitable age and discretion does not mean an adult. Delivery could be to 15 or 16 year old, but not 8 year old.
§ Each D in an action must be properly served with one set of papers or action is subject to dismissal.

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Natural persons--Traditional methods
Affixing and mail ("nail and mail")

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○ Affixing: attaching process to door (tape or tack). 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
§ Affixing and mailing, in either order, must be performed within 20 days of each other, and both steps must be performed within 120 days from filing process. Mailing need not be made to same location as the affixing.
§ BUT process server must first exercise due diligence by 1) making an attempt to serve D directly and 2) to leave process with a person of suitable age and discretion at the home or place of business.
□ Due diligence requires several attempts on different days of the week at different times of day.

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Natural persons--Traditional methods
Filing proof of service

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○ for both leave and mail, and affix and mail service, proof of service must be filed after the two service steps have been performed. Affidavit by process server describing details of service--date, time, place, description of person served, due diligence if relevant).
§ Purpose of filing proof of service: it is a necessary step to make service COMPLETE---D's response time run from date on which service is complete: 10 days after filing proof of service.
§ Not a jurisdictional defect if P fails to file proof of service, but results in postponement of D's response time.
§ Although 2 service steps of leave and mail and affix and mail must occur within 120 days, filing proof of service need not take place within 120-day period.
No requirement that proof of service be filed when service is made by personal delivery to D

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Natural persons--Traditional methods
Expedient service

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○ Expedient service "court invented service": if the foregoing methods of service are not practicable, P may make an ex parte motion to the court for an order allowing an improvised expedient method--some reasonable alternative appropriate in the circumstances (examples: service on liability insurer, family member, business associate or email).
§ Cannot validate service after the fact.

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Natural persons--Traditional methods
Agent specifically designate by D to Receive Process

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

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Natural persons--Traditional methods
Service on Infants and the Mentally Incapacitated

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when D is infant, D's name goes on summons but process must be served on: 1) parent, 2) guardian, 3) any person having legal custody of D, 4) if infant is married, on adult spouse with whom infant resides.
§ If infant is 14 or over, process must be served on an eligible adult AND the infant. Two sets of process will be necessary.
§ When D is mentally incapacitated person for whom the court has appointed a guardian, process must be served on the guardian AND incapacitated person. Two sets of process necessary.
§ If D is mentally incompetent but no judicial proceeding has been brought for the appointment of guardian, D is served in same manner as any other D. Court will later appoint guardian ad litem (guardian for purpose of the pending litigation).
When serving adult, or adult plus infant, any of traditional methods may be used.

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Natural persons--Traditional methods
Service outside NY

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• same methods used to serve D within NY are used when D is located outside NY.
○ Who can serve process (open up a bit):
§ Anyone authorized under NY law who is a resident of NY
§ Anyone authorized to serve process by laws of jurisdiction where service is made
§ Any attorney licensed in jurisdiction where service is made

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Service on Corporations

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○ Personal delivery to anyone of the following corporate representatives: officer, director, designated agent, managing agent (any person who has general supervisory authority), cashier/assistant cashier.
○ If there's a basis of jurisdiction over the corporation, any one of the eligible corporate representatives may be served with process by personal delivery anywhere in the U.S.
○ P cannot use leave and mail or affix and mail to corporation, but use personal delivery.

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Service on the NY Secretary of State

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for domestic corporation (incorporate in NY) OR foreign corporation authorized to do business in NY (licensed corporation).
○ Personally deliver 2 copies of process to NY Secretary of State
§ Secretary, who is designated agent as per certificate of incorporation or certificate of doing business, will mail one copy by certified mail to corporation at the address on file in Secretary's office.
§ Service of process is complete upon delivery of process to Secretary of State regardless of when corporation receives it.
○ Unlicensed foreign corporation: personally deliver 1 copy to NY secretary of state PLUS P must send one copy to the corporation by certified mail, return receipt requested.

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• Non-traditional Method-- Service by First-Class Mail PLUS Acknowledgment

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mail process by to D for first-class mail, enclosing 2 copies of statutory acknowledgment form, plus a return envelope, postage prepaid, addressed to sender. 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. Service is complete upon D's posting of the signed form.
○ If D does not return acknowledgment form: service by mail is not effective, P must serve process via one of the other methods. D must pay for process server.
○ Service by first class mail plus acknowledgment may be used regardless of whether D is within or outside NY
○ Service by first class mail plus acknowledgment is available to all times of Ds EXCEPT infants and mentally incapacitated persons for whom guardians have been appointed, must be served by traditional methods.
○ Returning acknowledgment form is not a concession that court has jurisdiction

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Personal Jurisdiction--General jurisdiction
Physical presence in NY

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• Personal delivery to D while D is physically present in NY
○ Tag jurisdiction: Even when D is non-domiciliary and cause of action has nothing to do with NY, can personally serve when physically present in NY.

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Personal Jurisdiction--General jurisdiction
Doing business

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domestic corporation is subject to personal jurisdiction in NY on any claim whatsoever, no matter where in the world claim arose. Same applies to foreign corporation (incorporated outside NY) that has become authorized to do business in NY.
○ Unlicensed corporation: said to be present in NY is it is doing business in NY
§ Test: at time action is commenced, are corporation's agents or employees in NY engaging in commercial activity for the corporation on a regular, systematic, ongoing basis.
□ Most significant factor in determining if corporation is doing business in NY: office in NY with employees coming and going on a regular basis.

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Personal Jurisdiction--General jurisdiction
Doing business con't

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§ P does not need to be suing on a claim that arose from corporation's NY business.
§ Corporate officers presence in NY does not give basis of jurisdiction (even though service might be proper)
§ Mere sales or advertising in NY does not constitute doing business in NY
§ Satisfaction of doing business standard is usually only necessary if cause of action arose outside NY. If cause of action arose within NY, long-arm jurisdiction will probably be available and P won't need to show that corporation is doing business on continuous and systematic basis within NY
§ Doing business basis can probably be used to get jurisdiction over individuals and partnerships as well as corporation.
○ Corporations that are incorporated in NY or have license to do business in NY, can also be sued in NY on any claim.

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Personal Jurisdiction--General jurisdiction
Domicile

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• Domicile: D who is domiciliary of NY at the time the action is commenced can be served with process anywhere in US in a NY action, regardless of where claim arose.
○ Distinguish domicile from residence: Residence is place where person lives for fair amount of time with some degree of permanency, can have multiple residences
○ Domicile is one residence at which person intends to remain indefinitely and is treated by her as principal home. Only one domicile.

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Personal Jurisdiction--Specific jurisdiction
Long arm

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• Long arm: origins in "minimum contacts" standard of jurisdiction that allows for out of state service conferring personal jurisdiction on the basis of certain acts by D that have a sufficient connection with NY, provided P's claim arises from those acts
○ Big difference between long arm jurisdiction and general jurisdiction doing business and domicile, it doesn't matter where the claim arose. For long-arm, facts of P's case must arise out of any one of 5 categories of NY-related activity.
○ Covers all types of D: corporations, individuals, partnerships
○ Acts giving rise to jurisdiction can be performed by D herself or by her agent or employee. Also agent's acts in NY will subject agent herself to jurisdiction.
○ Even if D dies, decedent's estate representative can be served outside NY
○ Serving process: P must use same methods of service on D outside NY as would be used inside NY

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Personal Jurisdiction--specific jurisdiction
1. P's claim arises from a transaction by D in NY

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(not doing business so could be sued for any claim, just on claims based on transaction that took place in NY).
○ No need to show contract actually signed in NY, but it is a factor, but substantial negotiations in NY are sufficient.
○ "projecting yourself into NY": in some case, D's phone, email and mail transmissions from out of state, if substantial in number and relating to performance of significant contract can rise to level of transaction of business of NY. Even if D never enters NY, so long as D's activities in NY were purposeful and there is a substantial relationship between transaction and claim asserted.

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Personal Jurisdiction--specific jurisdiction
2. P's claim arises from contract made outside NY in which D agrees to provide goods of services in NY.

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Contract must be economically significant (otherwise violated DP).
○ One-shot telephone call or mail order to NY entity by out of state buyer is not enough to qualify as transaction in NY.
Promise to pay money is not a contract to supply goods or services in NY.

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Personal Jurisdiction--specific jurisdiction
3. P's claim arises from D's commission of a tortious act in NY

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3. P's claim arises from D's commission of a tortious act in NY
○ Defamation exception (excluded from tortious act categories 3 and 4)

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Personal jurisdiction specific jurisdiction
4. P's claim arises from D's tortious act outside NY which causes injury in NY

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(example: D manufactures defective product in WI and explodes in NY) PLUS there exists an additional like between D and NY:
○ D regularly solicits business or engages in any other persistent course of conduct in NY (does not need to rise to same level as doing business in NY) OR
○ D derives substantial revenue from goods used or consumed or services rendered in NY (need not be the goods and services involved in the action) OR
○ D expects or should reasonably expect act to have consequences in NY and derives substantial revenue from interstate or international commerce.
○ "injury in NY": injury must originate here--commercial tort, must suffer direct financial effects in NY (loss of NY customers or sales).
○ No defamation claims

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Personal jurisdiction specific jurisdiction
5. P's claim arises from D's ownership, use or possession of real property in NY

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5. P's claim arises from D's ownership, use or possession of real property in NY

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Personal jurisdiction specific jurisdiction
Due process

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• Due process: will be satisfied if claim arises out of conduct of D that is purposefully directed to NY, such that D should reasonably anticipate being sued in an NY court.

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Nonresident motorist statute

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• Non-resident motorist statute: confers personal jurisdiction over an accident claim arising from non-domiciliary motorist's ownership or use of an auto on NY roadway. Often overlaps with long-arm category of tortious act in NY but has two unique features
○ Service of process: P serves process on D by personally serving one copy on NY secretary of state PLUS mailing second copy to D by certified mail to D's out of state residence
○ Applies to vehicle owner who gave permission to drive in NY (drive is subject to long arm, but owner need non-resident motorist statute).

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Personal jurisdiction agreed in advance

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

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Matrimonial jurisdiction

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• To obtain divorce, separation or annulment, all that is necessary is that P spouse is a domiciliary of NY
○ Court has rem jurisdiction over marriage (like a piece of property that P carries around with him). Personal jurisdiction is not necessary.
• To obtain monetary support, need basis of personal jurisdiction
○ Matrimonial Long-arm statute: when P-spouse is resident of NY, long arm jurisdiction can be acquired over D-spouse for monetary support:
§ NY was matrimonial domicile of P and D prior to separation OR
§ D abandoned P in NY
§ D's monetary obligation accrued under an agreement executed in NY (eg separation agreement)
§ D's monetary obligation accrued "under laws of NY"
○ In matrimonial action, must have personal service unless court order otherwise

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Durational requirements for matrimonial jurisdiction

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○ Durational residency requirements: part of the substance/merits of matrimonial action (action that seeks to affect marital status--separation, divorce or annulment), not element of court's jurisdiction. Purpose is to insure that NY has sufficient interest in marriage to adjudicate marital status of spouses. P's complaint must allege (or fails to state a claim):
§ If both parties are NY residents at time action is commenced and ground for matrimonial action arose in NY, no period of prior residence is required OR
§ One year residency: if either party has been an NY resident for a continuous period of at least 1 year immediately prior to the action and NY has any one of three prior links to marriage:
□ Marriage took place in NY Or
□ NY was matrimonial domicile of spouses at some point Or
□ Ground for divorce action arose in NY
§ Two year residency: if either party has been NY resident for a continuous period of at least 2 years immediately prior to the action is sufficient.
○ Durational requirements do not apply in an action solely to enforce monetary support obligations, only in actions seeking to affect marital status.

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Venue rule

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• If Supreme Court has acquired jurisdiction, every Supreme Court in state regardless of county, would have power to hear case. Rules of venue regulate appropriate county in NY for trial of Supreme Court action.
• Rules for proper venue---P chooses venue and specifies it in summons:
1. In an action in which judgment would affect title or possession to real property: county in NY in which real property is located
2. In all other actions: in any county in NY in which one of the parties resides at time action is commenced.
§ If no party is resident of NY, any county in NY is proper.
○ Situs of cause of action is generally irrelevant to a determination of proper venue

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Improper choice of venue

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• P's choice of an improper venue is not a jurisdiction defect, and therefore is not a basis for dismissal.
○ D's remedy for improper venue is to serve demand for change of venue to proper county designated by D. Demand must be served before or with the answer
§ If P consents to demand, change of venue to proper county is automatic
§ If P objects to demand or fails to respond to it, D must make motion to change venue. Motion will be granted it P chose improper county and D chose a proper county.

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• Discretionary ground for change of venue

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○ Convenience of material witnesses. Either party, by motion may request the court for a change of venue to the county that would be most convenient for witness. Often county whet cause of action arose
○ If there is reason to believe that impersonal trial cannot be had in county where action is commenced, either party may make a motion to change venue.

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Pleadings

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• Answer--Denials of the allegation that D wishes to contest. Failure to deny allegation is a deemed admission.
○ Any affirmative defense (S/L, lack of jurisdiction, P's comparative negligence) Affirmative defenses not raised in answer are waived (subject only to D's possible amendment of pleadings).
○ If D wishes to assert her own cause of action against P, she may do so in answer by means of counterclaim.
• Reply: P's pleading in response to counterclaim. Reply consists of denial and affirmative defenses. If there is no counterclaim, P cannot serve a reply without permission.
• Cross-claim: In multi-D case, D may assert any cross claim against any other D, asserted in D's answer and may be based on any type of claim that D has against other Ds. Cross-claim need not relate to the main claim
• Parties must serve copies of their pleading on all other parties who have appeared in action.

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• Service for answer and other interlocutory papers

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after P's initial service of process, all other litigation papers are interlocutory papers. Must be served on all other parties to the action
○ Methods: Regular mail, Personal delivery, Fax, but only if recipient has consented, Overnight courier
○ Service of interlocutory paper by mail is deemed made upon mailing, not receipt.
○ Service by mail must be made through a post office or official depository under exclusive care and custody of the U.S. postal service within NY.
○ If party serves an interlocutory paper by fax, must follow up fac by serving document by mail, not complete until paper is mail.

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• Time limits for serving answer

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○ If D served with process by Personal delivery with NY: 20 days.
○ If D was served with process by first class mail, plus acknowledgment, D return of acknowledgment is merely a notification of D's receipt of process, not a pleading. D must serve answer 20 days after mailing acknowledgment.
○ If D was served by any other method, 30 days after service was complete.

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Motion to dismiss grounds--D may move to dismiss cause of action prior to service of answer

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○ Documentary evidence as the basis for a defense, e.g., mortgage, deed or contract (cannot supplement with affidavit, document must speak for itself)
○ Other action pending between same parties on same cause of action
○ Want of capacity of P, e.g., P is infant suing without proper representative, or P as beneficiary is suing on behalf of trust (only trustee has
○ Nonjoinder of necessary party (joint property owners)
○ Failure to state a cause of action--directed to substantive insufficiency of complaint on its face, even if all allegations are deemed true, substantive law does not recognize cause of action standard used by court: P is entitled to every favorable inference that can be drawn; motion denied if there is any basis for relief under the substantive law.
○ All affirmative defenses: SPARERIBS
§ Statute of limitations; Payment; Arbitration and award; Res judicata; Estoppel (collateral estoppel); Release; Infancy of D; Bankruptcy discharge; Statute of Frauds
○ Lack of personal, in rem, or quasi in rem jurisdiction
§ Includes: 1) improper commencement or filing; 2) improper service of process; 3) lack of jurisdictional basis
○ Lack of subject matter jurisdiction

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• Procedural aspects of pre-answer to motion to dismiss

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○ Motion is made before service of answer (on or before last day or prescribed time limit for service of answer)
○ Making motion extends D's time to answer. If motion is denied, D must then serve answer within 10 days. D can only make one motion to dismiss, but can make it on multiple grounds.
○ Optional: can save up all defenses and put them in the answer OR D can assert all defenses in motion to dismiss.

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• Procedural aspects of pre-answer to motion to dismiss
Waiver

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○ Waiver: pre-answer motion to dismiss does not preclude raising any other grounds in the answer except for lack of personal jurisdiction (improper service of process, etc).
§ How to preserve personal jurisdiction defenses:
□ Before serving the answer, include lack of personal jurisdiction in a pre-answer motion to dismiss
□ Make no motion to dismiss on any ground and include lack of personal jurisdiction as an affirmative defense in the answer.
§ Improper service: Although pleading improper service of process as defense in answer is proper way to assert , objection of improper service will nevertheless be waived if D does not make follow-up motion for summary judgment on that ground within 60 days after serving answer. (does not apply to defense that court lacks basis of personal jurisdiction).
§ Must include all affirmative defenses in answer or they are waived. Only hope is to move for permission to amend answer to add affirmative defense
□ 3 defenses are never waived (can be raised at any point): non-joinder of necessary party, failure to state a cause of action, lack of subject matter jurisdiction.

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• Response to summons with notice:

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D's goals are to avoid default and force P to serve complaint, so D serves notice of appearance and demand for complaint
○ D's time limit for serving either notice of appearance and demand for complaint is same as response time for responding to summons and complaint :
§ 20 days for Personal service in NY
§ 20 days after acknowledgment for service via first class mail
§ 30 days for all other service methods
○ D's service notice of appearance and/or demand for complaint both have effect of require P to serve complaint within 20 days of D's service.
○ If P timely serves complaint, D has 20 days from such service to either serve an answer or file pre-answer motion to dismiss
○ If P fails to meet 20-day time limit to serve complaint, D may move to dismiss action based on P's noncompliance. When defending against such motion, P must 1) establish reasonable excuse for the delay and 2) must submit affidavit of merit of P's claim (attorney's affidavit is usually not sufficient, need personal knowledge).
○ After P serves complaint, D may still object to court's personal jurisdiction in answer or pre-answer motion to dismiss. No waiver of jurisdictional objections occurs by service of notice of appearance or demand for complaint (similar to acknowledgment of service by first class mail).

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• Amendments of pleadings:

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Each party is entitled to amend her pleading once as a matter of right, i.e., without the need to obtain judicial permission, party can put anything into the pleading that could have been in the original. One amendment as of right can be made by either party within 20 days after D served the answer.
○ When period for amendment as of right has expired, or party has already used up her amendment as of right, a motion for leave to amend is required.
§ Decision to permit an amendment lies in court's discretion: In general amendment will be allowed if opponent has suffered no incurable prejudice.
§ Show prejudice with detrimental change in permission (loss of evidence, witnesses died,
Party opposing motion to amend can also demonstrate that proposed amendment has no merit. Failure to state cause of action.

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Impleader

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• Impleader is procedural device used by D to join another party alleged to be liable in whole or in part to D for damages that D may have to pay P.
○ Usual claim is indemnity or contribution, both of which involve claims by D for reimbursement arising out of the same transaction or occurrence as P's cause of action
○ Rather than forcing D to wait until after she has paid judgment to P, impleader enables P to join the other party as third-party D.
○ D does not need court order, no need to make motion. D may implead third-party D at any time D serves answer to complaint
§ file: summons and third party complaint with county clerk and pay for index number
§ Serve: summons and third-party complaint and all prior pleading on third-party D within 120 days of filing
§ P is also entitled to a copy of all papers served on third-party D

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Impleader con't

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○ third-party D must serve third-party answer on D, P and all other parties who have appeared. third-party D time limit for answering is same as ordinary D.
○ After third-party D is joined, P may amend her complain to assert claim directly against third-party D, making third-party D an additional D in P's action.
§ P can make amendment as of right within 20 days after P served with third-party answer.
§ Relation back doctrine: for S/L purposes, P's additional claim against third-party D will be deemed interposed on date third-party D was impleaded (when D filed impleader papers) provided P's claim same transaction or occurrence as impleaded claim
□ Policy: third-party D was given notice of possible claim within S/L.

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Grounds for impleader--indemnity

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• Indemnity: allows one party to shift 100% of responsibility to another party
○ By contract (subcontractor indemnifies contractor)
○ Implied-in-law indemnity
§ Products liability: retailer held liable for selling defective product is entitled to indemnity from manufacturer
§ Vicarious liability situations

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Grounds for impleader--Contribution

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• Contribution: sharing of the loss, apportionment, among multiple tortfeasors who are all actual participants in the tort. Purpose is to mitigate harshness of joint and several liability.
○ Joint and several liability: each tortfeasor is liable to P for full amount of P's claims regardless of individual D's percentage of fault (NY distinction: modification below)
○ Intentional tortious conduct
§ MS: contribution not available where nature of conduct is intentional wrongdoing
§ NY distinction: allows contribution in all tort cases

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Ways to assert claims for contribution/indemnity

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§ If P originally joined tortfeasors as co-Ds, they can assert cross claims against each other
§ If P omits tortfeasor, D can implead outsider as third-party D.
§ Tortfeasor may sure third-party D in separate action. (6 years from payment of judgment to sue third-party D).
□ Findings of fact and percentage of fault are not binding in second action. A party cannot assert collateral estoppel (issue preclusion) against a party who has not had their day in court.

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Equal shares versus comparative contribution

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○ Equal shares formula of contribution--minority view: contribution shares are always equal in amount. Individual shares of fault are irrelevant in pro rata jurisdiction.
○ Comparative degrees of fault (MS and NY formula): amount of contribution tortfeasor is entitled to is excess actually paid by him over and above his equitable share of the judgment.
§ A party from whom contribution is sought cannot be required to pay more than her proportionate share.
§ Rules of contribution do not change P's right to joint and several liability.

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○ Substantive law rule for contribution:

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general rule is right to contribution exists whenever third-party D breached duty in tort which contributed to or aggravated damages for which D may be held liable to P--third-party D may be held for contribution even if third-party D has no direct liability to P.
§ Exculpatory clauses do not exempt from liability for contribution as against other D when conduct contributed to claims for which other D is held liable to P .

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○ NY Exception for workers compensation: minimize contribution and indemnity liability of employers.

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third-party D sued by employee is barred from seeking contribution or indemnity from P's employer unless P has sustained a grave injury.
§ Grave injury is applied strictly: death, total loss of arm, leg, hand, foot, nose, ear or index finger; total loss of multiple fingers or toes, paraplegia or quadriplegia, severe facial disfigurement; total deafness or blindness or brain damage causing total disability.
§ MS: third party D never has right to contribution against employer

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Contribution for successive tortfeasors

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○ Successive tortfeasors: D is liable for all injuries that proximately flow from accident, including subsequent malpractice. § S/L for contribution claim: governed by 6 year statute of limitations. Statute runs from moment of payment of the judgment

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○ Settlement in cases involving multiple tortfeasors

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§ Pre-trial release of tortfeasor in partial satisfaction of a claim does not discharge liability of other tortfeasors.
§ Reduction formula: Law prohibits excess recovery, so any judgment against a non-settling tortfeasor will have to be reduced by 1) amount of settlement or 2) settling tortfeasor's equitable share of fault, whichever is LARGER.
§ Effect of settlement on contribution claims: claims for contribution cannot be asserted by or against settling tortfeasor
□ Indemnification: settling party and non-settling party can pursue indemnification claim against each other.

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○ NY modification of joint and several liability by article 16:

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(subject to certain exclusions) in a personal injury claim, when a joint tortfeasor is 1) 50% or less at fault and 2) P has sustained non-economic damages, then the joint tortfeasor can only be required to pay her own share of non-economic damages. Still jointly and severally liable for any economic damages.
§ Non-economic damages: pain and suffering, mental anguish, loss of consortium
§ To extent article 16 applies, it reduces P's rights against D under traditional law of joint and several liability.
§ To extent particular D is liable to P only for his own percentage of fault, his need for contribution from other tortfeasors is eliminated.

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§ Exclusions from article 16 (subject to full joint and several liability for all damages):

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□ Tortfeasors who acted with intent or reckless disregard from safety of others. Multiple tortfeasors, where some negligent and some intentional, only intentional tortfeasors are subject to full joint and several liability
□ Tortfeasors who released hazardous substance into environment
□ Drivers and owners of motor vehicles other than police and fire vehicles

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Service and timing of motions on notice

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Motions on notice: give adversary opportunity to be heard in opposition (most motions)
• Service: 1) notice of motion (what asking for, day asking for it, day response is due); 2) affidavits (why entitled to relief seeking); 3) memo of law
• Timing: motion is made when papers are served. Day motion papers are presented to court is return date or hearing date of the motion.
○ Advanced notice: moving party must serve motion papers on opponent at least 8 days before the return date.
○ All motion papers, moving party's and opponents, must be filed with court no later than return date. Court begins decision-making process on return date and then issues order either granting or denying motion.
○ Party making motion or cross motion must pay a fee.

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Order to show cause (alternate way to make motion on notice): preliminary order, signed ex parte by a judge, directly adversary to "show cause" on date specified by judge , why motion should not be granted. Judge rather than party is giving notice of motion.

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• 3 reasons for order to show cause rather than ordinary notice of motion:
i. Means of accelerating return date where exigent circumstance make usual 8-day advance notice too long to wait for judicial assistance.
ii. Judge can grant immediate stay of proceedings or temporary retraining order
iii. Statute which governs particular motion may require it.
○ Procedure: moving party drafts order to show cause and submits directly to judge, ex parte, along with supporting affidavits for underlying motion. Judge sets return date and specifies method of service on adversary (usually personal delivery). After order to show cause is signed, order and underlying motion papers are served on opponent, then opponent submits opposition papers on return date.

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Deciding order

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• Deciding order: after return date of motion on notice, court's decision must be embodied in written order signed by court. Prevailing party (whether it be moving party or opponent serves a copy of order on losing party with notice of entry of order. Even if court provides parties with order, prevailing party must serve order.
○ Two effects of service: 1) necessary to give effect to order; 2) service starts time to appeal from order.

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Appeals from interlocutory orders

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• Appeals of orders from motions on notice: party can appeal from most interlocutory orders: order that awards some relief to party but does not finally determine all matter in controversy in the action. Action is concluded with final judgment.
○ To appeal from interlocutory order or judgment, party must file and serve a notice of appeal within 30 days from service of the order or judgment with notice of entry.

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Ex parte motions

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• Ex parte motion: no advance notice is given to adversary (without giving opportunity to be heard in opposition. Goes straight to court with motion papers and requests order granting relief sought
○ Circumstances are rare: need express statutory authorization
○ Remedy for opponent who is aggrieved by ex parte order: ex parte orders are no appealable, party must first make a motion to vacate ex parte order before judge, can appeal denial of motion to vacate.

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Purpose and procedure for motion for summary judgment

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• Purpose: enable party to show, before trial, that even though pleading may be sufficient on their face, there is no genuine issue of material fact requiring trial. Moving party is contending that reasonable persons cannot differ and that is entitled to judgment as matter of law--discuss elements of underlying cause of action.
• Procedure: cannot move for summary judgment before service of answer. After service of the answer, any party can move for summary judgment with respect to any claim or defense asserted in pleadings. Must file no later than 120 days after note of issue (places case on trial calendar).
○ Exception for past 120 days: good cause (procedural excuse, such as law office failure or delayed disclosure may be good cause, merit itself does not qualify as good cause).

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Burden on summary judgment

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• Burden: moving party must submit evidence in form of affidavits (personal knowledge of facts), documentary evidence, or discovery materials. Moving party must produce proof that establishes entitle to judgment as a matter of law
○ Defeat motion: by producing evidence showing there is a triable issue of fact. Opponent cannot rely on allegations in pleading, generally cannot use attorney's affidavit.
§ Continuance: if opponent establishes affidavit that not yet able, through no fault of his own, to produce opposing evidence, court can either deny motion or grant continuance (adjournment) to permit additional evidence to be obtained.

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Boomerang effect and Denial of summary judgment

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• Searching record: court reviews all evidence in record and court can find nonmoving party is entitled to summary judgment, even if no cross motion (Boomerang effect)
• Denial: triable issue of fact and proceeds normal path to trial.
○ If only remaining issue is damages, Court can grant partial summary judgment to P on issue of liability and order immediate trial on issue of damages.

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• Pre-answer motions for summary judgment-- Conversion of motion to dismiss:

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D's pre-answer motion to dismiss for failure to state a cause of action can be converted by court into summary judgment, allowing for decision on basis of evidence rather than on face of pleadings.
§ Prerequisites: 1) parties must have submitted factual affidavits in connection with motion; 2) court must give advance notice to parties of conversion to submit additional evidence.

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Pre-answer motions for summary judgment

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○ Motion for summary judgment in lieu of complaint: P may move for summary judgment at same time serves process by accompanying summons with motion papers for summary judgment.
§ Types of action: action based on instrument for payment of money only (promissory note, negotiable instrument, contract alone will not suffice); an action on an out of state judgment. Both actions are based on documents that are prima facie valid when supported by affidavit of noncompliance.
§ Procedure: after filing process with court, P must serve on D summons, notice of motion for summary judgment with supporting documentation and affidavits. Advance notice must be at least equivalent to time limit for D's appearance in action
Personal service upon D: 20 days; service of papers via any other method, 30 days.

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Provisional remedies

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• Provide measure of security to P for ultimate enforcement of potential judgment: attachment, preliminary injunction, temporary receivership, order to seize chattel in action to recover the chattel (replevin), notice of pendency (lis pendens)
○ Court order is required for all provisional remedies, except notice of pendency

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Attachment

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purpose to provide security for enforcement of money judgment. P obtains order of attachment from court and give it to a NY sheriff who levies on D's property in NY, imposes a lien on property pending outcome of action. Give P a security interest in property that is superior to that of any subsequent lien holder
Either real property or personal property (tangible or intangible--debt owed to D from garnishee), if located in NY.
§ Sheriff's levy is made on real property by filing order of attachment with county clerk in county where real property is located.
Sheriff's levy on personal property by actual seizure (tangible personal property) or constructive seizure--sheriff delivers order of attachment to garnishee. Delivery imposes lien on personal property and serves as injunction against transfer of D's interest in property

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Attachment--types of action

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○ Types of action: P must be seeking money damages (OK to join other claims seeking equitable relief) AND
§ D is unlicensed foreign corporation or a non-domiciliary residing outside NY OR
§ D is about to conceal or remove assets from NY with INTENT to defraud creditors or frustrate enforcement of judgment.

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Attachment procedure

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○ Procedure: P must make motion for order of attachment, with 1) affidavits showing grounds, 2) P must show probability of success on merits, 3) undertaking--P must post bond to indemnify D for any damages or expenses caused by P.
§ D is entitled to damages if: 1) attachment was wrongfully obtained--if it was vacated because requirements not met; 2) D wins on merits.

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Ex parte attachment procedure

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§ Ex parte: Motion can be made on notice or ex parte, but if P opts for ex parte, additional requirements to satisfy due process--DP requires prompt hearing after seizure of D's property so D can attack attachment
□ Ex parte order will automatically become void if P fails to make follow up motion to confirm with proper number of days after levy on D's property
® If D is unlicensed foreign corporation or non-domiciliary, motion to confirm must be served on D no later than 10 days after levy
® If D is fraudulently moving assets, motion must be served on D no later than 5 days after levy.

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• Preliminary injunction: used to maintain status quo while an equity action is pending.
Types of action and procedure

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○ Types of action: an equity action in which P's complaint seeks either 1) permanent injunction OR 2) D threatens to harm P's interest in subject matter of action.
§ Action seeking SOLELY MONEY DAMAGES WILL NOT SUPPORT PRELIMINARY INJUNCTION.
○ Procedure: motion for preliminary injunction must be made ON NOTICE. Motion papers can be served with, or after summons.
§ Requires: 1) P's affidavits must show grounds for equitable relief, including irreparable injury ; 2) affidavits must show probability of success on merits; 3) if motion is granted, P must post undertaking to indemnify D for damages if later determined that preliminary injunction should not have been granted.

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TRO

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○ Immediate injunctive relief: immediate irreparable harm, P may request Temporary restraining order ex parte to maintain status quo while motion for preliminary injunction is pending.
§ Procedure: Make motion for preliminary injunction by order to show cause (go direct to the judge), judge includes TRO in order to show cause. Serve D with order to show cause, TRO and affidavits for preliminary injunction. D will be immediately restrained by TRO pending resolution for motion for preliminary injunction.
□ Any ex parte application for TRO must contain affidavit demonstrating will be significant prejudice to party seeking TRO if notice is provided to adversary.

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Temporary receivership

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• Temporary receivership: person appointed by court to manage D's property pending outcome of equity action in which property is subject of action.
○ Type of action: P must be asserting equity claim in which specific property is subject matter of action AND there is danger that D will injure or destroy value of property while action is pending.
§ Appointment of temporary receiver requires motion on notice
§ If action seeks solely money damages, temporary receivership is not available.

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• Seizure of Chattel:

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• Seizure of Chattel: function is to insure enforcement of judgment awarding possession of chattel to P. Sheriff, who seizes chattel, will retain custody of chattel (impoundment). Otherwise, if chattel is lost or destroyed while action is pending judgment will be limited to monetary value of chattel
○ Type of action: replevin action seeking to recover possession of a chattel
○ Procedure: 1) P's affidavits must show probability of success on merits; 2) P must give an undertaking to indemnify D.
§ Ex parte requires: 1) threat of immediate loss of chattel; 2) if ex parte order is granted P must make follow-up motion by order to show cause within 5 days of impoundment to confirm ex parte order.

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Notice of pendency
Types of action

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• Notice of pendency: equity action where judgment will have direct effect on real property, notice of pendency gives record notice to any potential buyers or mortgagee that any interest they acquire in property will be subordinate to that P.
○ Type of action: equity action in which judgment will have direct effect on title, possession or use of real property (specific performance, ejectment). In mortgage foreclosure, filing of notice of pendency is statutorily required. (not for coop or shares of real estate corporation)

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Notice of pendency
Procedure

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Procedure: P filed notice of pendency with County clerk of county in NY where property located, which give notice of pendency of P's action.
§ No need to get court order or file a bond.
§ Remedy: notion to cancel notice of pendency.
§ Duration: effective for 3 years after filing. P can move for 3-year extension but must make motion prior to three year period.
□ Consequences from failure to obtain an extension prior to expiration: 1) notice of pendency becomes void and has no further effect AND 2) P cannot obtain another notice of pendency on same property for the same cause of action
□ Exception: mortgage foreclosure action, court may grant motion for a new notice of pendency even though original notice expired without renewal

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Jury trial procedure

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• When discovery complete, case ready for trial, either party may serve and file note of issue with county clerk to place on trial court's calendar
○ Jury: Party who files note of issue makes demand for jury in note of issue. If filing party does not ask for jury in note of issue, waives right to jury
§ Other party who want jury trial when filing party does not request, must serve and file own demand within 15 days of service of original note of issue.
§ Right to trial by jury in civil action: 1) action seeking solely money damages; 2) replevin; 3) claim to real property; 4) annulment of marriage; 5) divorce action on issue of grounds for divorce (not monetary support or child custody).
Civil jury is 6 jurors--5 out of 6 is enough.

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Res judicata

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• Res judicata (claim preclusion): avoidance and prevention of relitigation of same claim
○ NY uses transactional approach to claim preclusion: when claim against particular D has been brought to final judgment on merits, all other claims by P against that D are barred if they arise out of the same transaction even if based on different theories or seeking different remedies.
○ Policy exception in matrimonial disputes: Suit #1: divorce based on cruel and unusual treatment judgment granted. Suit #2 allowed to proceed: Personal injuries arising out of assault during marriage that was also basis for divorce action.
§ However, claim for property distribution in second action would be barred.

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Collateral estoppel

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• Collateral estoppel (issue preclusion)--avoids and prevents need for relitigation of specific fact issues that were decided in prior proceeding upon 3 part showing: 1) issue identical in former and current proceeding; 2) issue was necessarily litigated and decided in former proceeding; 3) party against whom issue preclusion is asserted had full and fair opportunity to litigate issue in former proceeding.
○ Issue preclusion cannot be used against someone who was not a party in prior action.

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Special proceedings

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• Speedy, streamlined procedure, akin to motion practice, purpose to obtain judgment as final resolution of dispute (probate will, election disputes, summary proceeding by landlord for eviction; dissolution of corporation, habeas corpus, enforcement of arbitration agreement, CPLR article 78 proceeding).
○ Special proceeding requires specific statutory authorization, but if sue erroneously will be converted into an action as long as jurisdiction acquired over D.

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Special proceedings procedure

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1. Petitioner files a petition (similar to complaint) with county clerk and pay fee for index number;
2. petition and notice of petition must be served on respondent within 15 days after expiration of S/L of special proceeding. Service is made by same methods to serve process in an action.
3. notice of petition advises respondent to serve an answer to appear on specified return date for hearing.
§ Return date: no sooner than 8 days from when service is complete.
§ Exception: article 78 proceeding 20 days notice must be provided.
§ If petitioner needs accelerated return date, can initiate special proceeding by order to show cause.
4. Affidavits are usually served in support of, and opposition to, petition. All pleadings and affidavits are submitted to court on return date and dispute is decided same way as summary judgment.

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Judicial gatekeeping for arbitration

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• Judicial gate keeping: courts may be called upon to decide threshold issues. If resolved in favor of arbitration, court's involvement ends and arbitrator decides merits
○ 5 threshold issues presented to court to avoid arbitration:
1) did parties agree to arbitration: agreement must be in writing but need not be signed, right to arbitration need not be mutual, agreement must be clear, express and unequivocal.
2) Is dispute within scope of arbitration clause: "arising out of or in connection with" sends disputes to arbitrator, except S/L and condition precedent
3) Arbitration clause valid: Public policy of NY strongly favors arbitration, so presumption of validity to arbitration clause. Fraud, duress and coercion can render an arbitration clause invalid.
4) Express condition precedent and has it been complied with.
5) Statute of limitations: can be decided by court

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Threshold issues for arbitration procedure

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○ Contract tainted by fraud does not attack validity of arbitration clause itself--goes to arbitration.
○ To bring threshold issues to court
§ In pending action: move for stay of the action and to compel arbitration
§ If proponent of arbitration serves "notice of intention to arbitrate", opponent must seek judicial protection by commencing a special proceeding for stay of arbitration. Time limit to commence special proceeding to stay arbitration is 20 days from receipt of notice of intention to arbitrate.

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Judicial review of arbitration awards

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• Judicial review of arbitration awards: 1) corruption, fraud or misconduct in arbitration proceeding; 2) partiality or bias of arbitrator chosen to be neutral; 3) arbitrator exceeded powers.

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Alternative dispute resolution

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Other forms of Alternative Dispute Resolution in NY: mediation, neutral evaluation and summary jury trial.
• Like arbitration other devices are creatures of contract and are enforce in accordance with terms of agreement. NY public policy is in favor of alternative dispute resolution
○ Court can recommend, but not require parties to use alternative dispute resolution
• Two major differences: usually not binding because purpose is to held parties read voluntary settlement; no specific statutory rules governing mechanics of enforcing other ADR agreements

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Types of alternative dispute resolution

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• Mediation: non-binding process in which neutral mediator attempts to facilitate settlement by speaking confidentially to each party and then jointly with both parties present. Parties can make agreements about confidentiality of discussion with mediator.
• Neutral Evaluation: non-binding process in which neutral expert in subject matter at issue receives condensed presentation about merits, evaluates merits, and predicts how court will decide to help parties reach voluntary settlement.
• Summary Jury Trial: condensed version of a trial in which real judge presides and real jury is empanelled to hear the case and render verdict. Usually one day. Each side is limited to 2 to 3 hours for its presentations. After verdict each side question jurors about their thought processes. Parties must agree in advance whether binding or non-binding (usually chose non-binding).

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Article 78

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• Article 78: authorizes judicial proceeding for judicial review of action (or inaction) by governmental or quasi-governmental officers or bodies of any kind.
• Procedure:
○ Court: Supreme court
○ S/L: 4 months, begins to run from petitioner's receipt of action being challenged.
§ Papers must be served 20 days before return date
Type of relief: declaratory or injunctive relief. Monetary damages incidental to main relief.

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Article 78 right to relief

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• Right to relief: depends upon showing that petitioner's case would have been subject to review under one of 4 common law prerogative writs
○ Mandamus to compel: to compel performance of act required by law--an act as to which no discretion is involved. Corporation is quasi-governmental entity, subject to mandamus to compel.
○ Prohibition: proceeding to stop judicial officer form exercising power that exceeds officer's lawful jurisdiction.
§ Excess must be gross in nature: violation of double jeopardy; order to depose witnesses that neither party wishes to depose.
○ Certiorari: proceeding to challenge final results of "trial type" hearing conducted by administrative agency, where testimony was taken under oath with right of cross-examination. Persons with vested property or quasi-property right are entitled to trial-type hearing prior to divestiture.
§ Standard for review: whether agency's determination supported by substantial evidence in record.
○ Mandamus to review: proceeding to review any type of administrative action not covered in other categories--often without trial type hearing because no property interest (gun permit; variance from zoning board)
§ Standard for review: whether agency's determination arbitrary and capricious.