Ny Practice For The Ny Bar

Front 1

Commencement of the Statute of Limitations consists of...

Back 1

1. Filing (summons and complaint OR summons and notice)

2. Filing with the proper court clerk on or before the last day of SoL (for Supreme Court it's county clerk)

Front 2

SoL for medical malpractice

Back 2

2.5 years

Front 3

When does SoL begin to run for med mal?

Back 3

Upon date of injury, NOT date of discovery.

Front 4

Exceptions to the date of injury rule for med mal SoL

Back 4

1. Continuous treatment rule - SoL begins to run from end of continuous treatment

2. Foreign object rule - Either 2.5 years from operation OR 1 year from date PL discovers/reasonably should have discovered the object

Front 5

SoL for professional malpractice

Back 5

3 years

Front 6

When does SoL begin to run against architects for professional malpractice?

Back 6

Upon completion of the building

DON'T BE TRICKED BY A PERSONAL INJURY COA AS OPPOSED TO PRO MAL

Front 7

3 possible causes of action for injury from defective product and each applicable SoL

Back 7

1. negligence: 3 years from date of injury

2. strict product liability: 3 years from date of injury

3. breach of warranty: 4 years from date DEF delivered the product

Front 8

SoL for indemnity and contribution claims

Back 8

6 years

Front 9

SoL for cases involving exposure to toxic substances

Back 9

3 years from discovery of injury or date it should have been discovered w/reasonable diligence

Front 10

SoL for breach of contract

Back 10

6 years

Front 11

Tolling for infants (if original SoL is 3 years or more)

Back 11

Tolled until 3 years after end of disability OR original SoL from accrual - whichever is longer

Front 12

Tolling for infants (if original SoL is < 3 years)

Back 12

When disability ends, PL gets period of original SoL

Front 13

SoL for Survival Claim

Back 13

If PL dies before SoL expires, representative gets time remaining on SoL or 1 year from decedent's death

Front 14

SoL for Wrongful Death Claim

Back 14

2 years from date of death, but it must be shown that at the time, SoL for decedent's underlying claim had not expired

Front 15

The "Borrowing Statute" for SoL

If PL is NON-RESIDENT OF NY when claim arose...

Back 15

NY will apply the SoL of state where claim arose if it is shorter than NY. If longer, then we apply NY.

Front 16

The "Borrowing Statute" for SoL

If PL is RESIDENT OF NY when claim arose...

Back 16

NY will apply NY SoL

Front 17

Within how many days must a party serve process on opposition?

Back 17

120 days

Front 18

On what days can process NOT be served

Back 18

1. Sunday
2. If DEF is Saturday-Sabbath observer, and PL knows this, then no Saturday service (innocent service is not a defect)
3. Service on holiday IS OK

Front 19

When is personal delivery complete

Back 19

Upon process server's TENDER of summons DIRECTLY to DEF

Front 20

Definition of leave and mail

Back 20

process server may DELIVER process to person of suitable age and discretion at DEF's ACTUAL dwelling place or ACTUAL place of business PLUS mail a copy by regular mail to DEF at DEF's ACTUAL place of business or last known residence

The 2 steps must occur within 20 days of eachother (and still 120 days from filing process)

Front 21

Definition of affixing and mailing (aka nail and mail)

Back 21

process server may AFFIX process to the door of DEF's ACTUAL dwelling place or ACTUAL place of business PLUS mail a copy by regular mail to DEF at his ACTUAL place of business or last known residence. Must also show due diligence in attempting to serve with other methods

20 days within each other (and regular 120 days from filing)

Front 22

When is service complete for nail and mail and leave and mail

Back 22

10 days after filing of proof of service

Front 23

Is nail/mail or leave/mail permissible for corps?

Back 23

No, must use personal delivery

Front 24

Bases of personal jurisdiction over DEF's person

Back 24

1. Presence in NY
2. Doing business
3. Domicile in NY (even if served elsewhere)
4. Long-arm jurisdiction
5. Non-resident motorist statute
6. Consent

Front 25

Will personal delivery based to a non-resident in NY confer PJ?

Back 25

YES

Front 26

An unlicensed foreign corp is subject to NY jurisdiction if...

Back 26

it is doing business on a regular, systematic and ongoing basis.

Front 27

If a foreign unlicensed corp is doing business in NY, need the CoA arise in NY?

Back 27

No

Front 28

domicile v. residence

Back 28

domicile is more permanent - can only have 1. you can have more than 1 residence

Front 29

long-arm jurisdiction requires

Back 29

minimum contacts

Front 30

5 situations involving minimum contacts

Back 30

1. Specific transaction in NY (less than doing business)
2. K outside of NY in which DEF agreed to supply goods/services in NY
3. DEF's commission of a tortious act in NY
4. claim arises from DEF's ownership, use or possession of real property in NY
5. claim arises from DEF's tortious act outside NY which causes injury inside NY PLUS the existence of some additional link between DEF and NY

Front 31

Service required under Non-resident Motorist Statute

Back 31

PL serves process on DEF by personally serving 1 copy on NY secy of state PLUS mailing 2nd copy to DEF by certified mail

Front 32

Can non-resident motorist statute get jurisdiction over owner if driver is different? How about via long arm?

Back 32

NRMS will get jurisdiction of driver if driving with owner's permission.

Long arm will get jurisdiction over driver only.

Front 33

personal jurisdiction is not required in matrimonial action so long as...

Back 33

PL is a NY resident - confers in rem jurisdiction.

Front 34

If ex-spouse is seeking monetary support, then...

Back 34

Matrimonial long-arm statute:

Where PL is resident of NY, can acquire long-arm over DEF if:
1. NY was the matrimonial domicile of DEF and PL prior to separation, OR
2. DEF abandoned PL in NY, OR
3. DEF's monetary obligation accrued under an agreement executed in NY

Front 35

Require service for matrimonial action

Back 35

Personal service. Can only use nail and mail if PL first gets court order

Front 36

Residency requirements in PL's complaint

Back 36

1. if both parties are NY residents at time action is commenced, AND the grounds for the matrimonial action arose in NY, then NO prior period of residency is required.

2. If EITHER party has been NY resident for a continuous period of at least 1 YEAR immediately prior to the action AND NY has prior link to marriage (marriage in NY, NY was domicile at one point, or grounds for action arose in NY)

3. If EITHER party has been a NY resident for continuous period of at least 2 years immediately prior to the action.

Front 37

If DEF was served with process by personal delivery in NY, he has how many days to answer?

Back 37

20 Days

Front 38

If DEF was served with process by mail PLUS acknowledgment, he has how many days to answer?

Back 38

20 days

Front 39

If DEF was served with process under any other circumstances, he has how many days to answer?

Back 39

30 days

Front 40

Grounds for motion to dismiss

Back 40

DOWNFALL
Documentary Evidence, Other action pending, Want of capacity, Non-joinder of necessary party, Failure to state CoA, Add'l affirmative defenses, Lack of PJ, Lack of SMJ

Front 41

Affirmative defenses

Back 41

SPARERIBS

SoL, Payment, Arbitration (already awarded), Release, Estoppel, Res judicata, Infancy of DEF, Bankruptcy, SoF

Front 42

How to preserve PJ defenses

Back 42

1. Before serving the Answer, make a 3211 MTD that includes lack of PJ, OR

2. Make no 3211 MTD on ANY ground and instead include lack of PJ as an affirmative defense in the Answer

Front 43

ADs not raised in Answer are deemed waived, EXCEPT

Back 43

1. non-joinder of necessary party

2. failure to state CoA

3. lack of SMJ

Front 44

Upon receipt of summons with notice, DEF must serve

Back 44

a demand for the complaint OR a notice of appearance

Front 45

After DEF's service of demand for complaint or notice of hearing, PL must serve a complaint within how many days

Back 45

20 days

Front 46

Time limits for amendments for PL and DEF

Back 46

PL has 20 days after DEF serves the answer.

DEF has 20 days after he serves the answer.

Front 47

Steps for joining third party defendant

Back 47

1. DEF files summon and third party complaint
2. DEF, within 120 days of filings, must serve copies on third party defendant and PL.

Front 48

Minority rule of contribution - equal shares formula

Back 48

regardless of fault, all TFs must pay equal amount to PL

Front 49

NY and MS formula of contribution

Back 49

actual % of fault.

Front 50

The reduction formula for payments due to settlements

Back 50

any judgment against a non-settling TF must be reduced by EITHER the amount of the settlement OR the settling TF's equitable share of fault - whichever is LARGER

Front 51

NY CPLR Article 16

Back 51

In a personal injury claim - a joint TF whose fault is less than or equal to 50% CANNOT be required to pay PL more than his equitable share of PL's noneconomic damages

nonecomonic damages include medical damages or lost income

Front 52

Effects of service of the copy of the deciding order (SRO)

Back 52

1. service of order is necessary for order to take effect

2. starts running of 30 day time limit of the appeal from the order

Front 53

when can a party move for SJ

Back 53

after filing of the answer

Front 54

what kind of evidence must movant rely on for SJ?

Back 54

affidavits and other relevant docs or discovery materials

Front 55

When can SJ be possible before answer?

Back 55

1. DEF's pre-answer MTD for failure to state CoA can be converted into SJ by the court (so long as factual affidavits were filed with MTD and court gives notice to parties), OR

2. Motion for SJ in lieu of complaint (available for actions based on an instrument or out of state judgment)

Front 56

NY Provisional Remedies

Back 56

1. Attachment
2. Preliminary injunction
3. Temporary receivership
4. Replevin
5. Lis pendens

Front 57

when can attachment be used?

Back 57

if PL is seeking $ damages AND
1. DEF is unlicensed foreign corp or non-dom of NY, OR
2. DEF is about to conceal or remove assets from state with intent to defraud creditors or frustrate the enforcement of a judgment

Front 58

effect of attachment order delivery

Back 58

delivery automatically imposes a lien on the personal property interest AND delivery serves as an injunction against transfer

Front 59

when can preliminary injunction be sought?

Back 59

an equity action where PL's complaint seeks either permanent injunction OR DEF threatens to harm PL's interest in subject matter of action

Front 60

in what civil actions does a party have a right to jury trial?

Back 60

1. action seeking solely $ damages
2. replevin
3. claim to real property
4. annulment of marriage
5. divorce action on issue of grounds for divorce, but NOT issues of child custody

Front 61

Transactional Approach to res judicata

Back 61

When a claim against a particular DEF is brought to final judgment based on merits, all other claims by PL against the same DEF are barred if they arise out of the same transaction (even if they are based on different theories and seek different remedies)

Front 62

Required showing for issue preclusion (collateral estoppel)

Back 62

1. Issue in former proceeding and current proceeding is identical,

2. Issue was actually litigated and decided in the former proceeding, AND

3. Party against who issue preclusion is asserted had a full and fair opportunity to litigate the issue in the prior proceeding

Front 63

MTD standard

Back 63

A court will grant a motion to dismiss for failure to state a cause of action in instances where, viewing the facts as stated in a light most favorable to the nonmoving party, the pleadings fail to state a cause of action for which relief may be granted.