Ny Practice (P-Jur'n)

Front 1

P-Jur'n (3 req'ts)

Back 1

- Proper commencement of the action
- Proper service of process on D (each D must get own!)
- Proper basis of jur’n over the person/property involved

Front 2

Proper commencement

Back 2

- Begin by filing process w/ clerk of Ct
- Serve process on D w/in 120 days from filing

Front 3

Forms of process (2)

Back 3

- Summons & complaint (pleading)
- Summons w/ notice (abbreviated complaint)

Front 4

Forms of process (Summons & complaint)

Back 4

Complaint is P’s pleading, which specifies the transaction/occurrence that is the SM of the action and describes essential elements of P’s CoA

Front 5

Forms of process (Summons & notice)

Back 5

Very abbreviated complaint w/in the summon or in 1-page attachment, containing:
- Brief statement of the nature of the action
- Type of result sought
- If P seeks damages, specify amount of injury (EXCEPT for personal injury & wrongful death)

Front 6

Who can serve process?

Back 6

Any person ≥18 & not a party to the action

Front 7

When can serve process?

Back 7

Any day of the week (including holidays) EXCEPT
- Sunday
- Saturday if P KNOWS D is a Saturday-Sabbath observer

Front 8

Service of process on natural persons (traditional, 5)

Back 8

- Personal delivery
- Leave & mail
- Affix & mail
- Expedient service (Ct-ordered)
- Agent specifically designated by D to receive process

Front 9

Service on Corps (traditional, 2)

Back 9

- Personal delivery to one of the Corp reps anywhere in the U.S.
- Service on the NY SoS

Front 10

Basis of Jur'n over D's Person (6)

Back 10

General Jur'n
- Presence in NY
- Doing business in NY
- Domicile in NY
Specific Jur'n
- Long-arm jur'n
- Non-Resident Motorist Statute
- Consent

Front 11

Personal delivery

Back 11

- Serve w/in 120 days of filing process
- Service is COMPLETE: Upon tender of summons directly to D

Front 12

Leave & mail

Back 12

- 2 req’ts done w/in 20 days of each other (+ w/in 120 days from filing process)
-- Delivery of process to person of suitable age and discretion at D’s ACTUAL dwelling place or place of business
-- Mail a copy by REGULAR mail to D’s ACTUAL place of business or LAST KNOWN residence
- Service is COMPLETE: 10 d from filing proof of service

Front 13

Affix & mail

Back 13

- 2 req’ts done w/in 20 days of each other (+ w/in 120 days from filing process)
-- Affix process to door of D’s ACTUAL dwelling place or place of business
-- Mail a copy by REGULAR mail to D’s ACTUAL place of business or LAST KNOWN residence
- Service is COMPLETE: 10 d from filing proof of service

Front 14

Expedient service (or Ct-ordered)

Back 14

If the traditional methods of service are not practicable, P may make an ex parte motion to the Ct for an order allowing an improvised, expedient method – some reasonable alternative appropriate in the circumstances

Front 15

Agent (service)

Back 15

Service upon agent specifically designated by D to receive process

Front 16

Service on Corp (Personal delivery)

Back 16

Personal delivery to one of the corp reps anywhere in the U.S.:
- Officer of the corp
- Member of the BoD
- Designated agent
- Managing agent (a corp employee w/ supervisory ability)

Front 17

Service on Corp (SoS)

Back 17

- For a domestic corp (inc in NY) OR a foreign corp (inc outside NY) authorized to do business in NY (aka a licensed corp):
-- Personally deliver two copies of process to the NY SoS
- For an unlicensed corp: 2 req’ts
-- Personally deliver one copy of the process to the NY SoS
-- Mail one copy to the corp via certified mail, return receipt requested

Front 18

Non-traditional method: 1st class mail + acknowledgement

Back 18

- Mail process to D by 1st class mail, enclosing two copies of a statutory acknowledge 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 w/in 30 days after receipt
-- Return of acknowledgment form is NOT a concession that Ct has jur’n
- Service is COMPLETE upon ∆’s posting of the signed form

Front 19

Basis of Jur'n (Presence in NY)

Back 19

Personal delivery to D while D is physically present in NY

Front 20

Basis of Jur'n (“Doing business” in NY)

Back 20

- Domestic corp → always personal jur’n
- Licensed foreign corp (authorized to do business in NY) → always personal jur’n
- Unlicensed foreign corp → personal jur’n if it is “doing business” in NY: @ time action is commenced, corp employees/agents are in NY doing business for corp on a CONTINUOUS, REGULAR & SYSTEMATIC basis
-- Service of process can be made either inside or outside NY

Front 21

Basis of Jur'n (Domicile)

Back 21

- Def: One residence where person intends to remain indefinitely and is treated by her as the principal home
-- Residence: A place where a person lives for a fair amount of time w/ some degree of permanency → a person may have ≥1 residences
- Service of process can be made ANYWHERE in the US

Front 22

Basis of Jur'n (Long-arm jur'n (CPLR 302))

Back 22

P’s claim must arise from those acts w/ sufficient connection w/ NY:
#1 Transaction of business by D in NY
#2 K made outside NY in which D agrees to supply goods & services in NY
#3 ∆’s tortuous act in NY (EXCLUSION for defamation)
#4 D’s tortuous act outside NY which causes injury in NY + Add’n link
-- Add’l links
-- #1 D regularly solicits business or engages in any other persistent course of conduct in NY
-- #2 D derives substantial revenue from goods used or consumed, or services rendered, in NY
-- #3 D expects or reasonably expects the act to have consequence in NY AND derives substantial revenue from interstate or int’l commerce
- Add’l links do not have to rise to the level of doing business in NY
- Injury must ORIGINATE in NY, suffering in NY not enough
#5 ∆’s ownership, use, or possession of real property in NY

Front 23

Basis of Jur'n (Non-resident motorist statute)

Back 23

- Confers personal jur’n over an accident claim arising from a nondomiciliary motorist’s OWNERSHIP or USE of an auto on a NY roadway
- Often overlaps w/ long-arm tortuous act, but has two unique features
-- Service of process: P serves process on D by personally serving 1 copy on NY SoS + mailing 2d copy to D by certified mail to D’s residence
-- Confers jur’n to vehicle owner who gave permission to drive in NY

Front 24

Basis of Jur'n (Consent)

Back 24

Forum selection clauses generally enforceable absent fraud, overreaching, or unreasonableness

Front 25

Marital jur'n (marital status)

Back 25

- P needs to be a domiciliary of NY to affect marital status
- Matrimonial long-arm statute
-- NY was the matrimonial domicile of P and D prior to their separation
-- D abandoned P in NY
-- D’s monetary obligation accrued under an agreement executed in NY (e.g., separation agreement)
-- D’s monetary obligation accrued “under the laws of NY”

Front 26

Grounds for MTD (CPLR 3211)

Back 26

DOWNFALL:
- Documentary evidence as the basis for a defense
- Other action pending between the same parties on the same CoA
- Want of capacity
- Non-joinder of a necessary party
- Failure to state a CoA → Even if all allegations are true, substantive law do not recognize a CoA
-- STANDARD: P is entitled to every favorable inference that can be drawn from the allegations of the complaint & therefore the motion must be denied if there is any basis for relief under the substantive law
- Additional affirmative defenses as specified below
- Lack of personal jur’n
-- Defect in the form of the summons
-- Improper service of process
-- Lack of basis of jur’n
- Lack of SM jur’n

Front 27

Grounds for MTD (CPLR 3211 (affirmative defenses))

Back 27

SPARERIBS
- SoL
- Payment
- Arbitration award
- Release
- Estoppel (collateral)
- Res judicata
- Infancy of D
- Bankruptcy discharge
- SoF

Front 28

Preserving personal jur'n defense

Back 28

- Before serving the answer make a 3211 MTD that includes lack of personal jur’n as one of the grounds
- Make no 3211 motion (on ANY ground) and instead include lack of personal jur’n as an affirmative defense in the answer

Front 29

Must D raise CPLR 3211 defenses before serving answer?

Back 29

No, D has an option to serve pre-answer motion but is not required to do so → Can save the defenses and include them in the answer
- A 3211 motion can only be done once, but on multiple grounds

Front 30

Waiver of affirmative defenses

Back 30

- Can raise affirmative defenses in pre-answer MTD
- Can raise affirmative defenses in the answer
- Any other affirmative defense not included in the answer is waived, the only recourse is to amend the answer, EXCEPT
-- Non-joinder of a necessary party
-- Failure to state a CoA
-- Lack of SM jur’n

Front 31

Amendments to pleadings

Back 31

Each party is entitled to amend her pleading once as a matter of right (w/o need to obtain judicial permission); when doing so, party can put anything that could have been in the original
- TIME: Must be w/in 20 days after D serves the answer
- When the period for free amendment has expired, or the party has already used up her free amendment, a motion for leave to amend is required

Front 32

Matrimonial jur'n (durational residency)

Back 32

Durational residency req’ts are part of the substance/merits of a matrimonial action (P’s complaint must allege (at least 1 of 3)):
- No residency req’ts: If both parties are NY residents at the time the action is commenced AND the grounds for the matrimonial action AROSE in NY
- 1-yr residency: If EITHER party has been a NY resident for a continous period of ≥1 yr immediately prior to the action & NY has possible prior links to the marriage:
-- Marriage took place in NY
-- NY was the matrimonial domicile @ some point
-- If grounds for the action arose in NY
- 2-yr residency: If EITHER party has been a NY resident for a continuous period of ≥2 yrs immediate prior to the action