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29 Cards in this Set
- Front
- Back
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Pleadings Signature req
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1. Every NY pleading, motion, or document filed with the ct MUST be signed by an atty
a. The signature impliedly certifies that, to the best of the atty’s knowledge formed after a reasonable inquiry, it’s contents are NOT frivolous |
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Frivolous Pleadings
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b. “frivolous”:
i. Asserting a legal argument that is completely without legal merit and which cannot be supported by a good faith argument for modification or reversal of existing law ii. Any conduct (motion or pre-trial discovery) that is taken primary to deny or harass, or iii. Knowingly making a false material statement c. If an atty engages in frivolous conduct, PUNITIVE SANCTION on the atty, the client, or both can be imposed in a detailed written ct order BUT ONLY after giving atty notice and an opportunity to be heard i. But that sanction CANNOT exceed $10,000 for each frivolous incident ii. There is NO LIMITATION on compensatory sanctions awarded by a court to compensate the opposing atty for the time wasted in opposing the frivolous conduct |
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Engagement Letters
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a. Where the legal fee is $3,000+, the NY atty MUST provide the client with an engagement letter, EXCEPT for a regularly represented client who will be charged the same fee previously established
b. This letter MUST EXPLAIN: i. The scope of the legal services to be performed, ii. Hourly fees and expenses to be charged, iii. The billing cycle, iv. The approximate amount of time lawyer will spend on the matter, AND v. The client has the right to arbitrate any fee dispute between $1,000 and $50,000 1. If above $50,000, parties can agree to arbitrate EITHER in a retainer letter, or after dispute arises c. A lawyer’s failure to provide client with engagement letter will NOT automatically forfeit the atty’s right to sue for a legal fee, BUT she forfeits the right to sue for breach of K AND is limited to a suit in quasi-contract for quantum meruit (fair value) of her services |
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Pleadings generally
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a. In a NY personal injury or WD claim, a π CANNOT plead a specific amount of damages in the complaint, BUT D can request a supplemental pleading setting forth the amount of damages π is seeking
b. The complaint is the first pleading served i. Π can assert ANY related or unrelated claims in the complaint against the named D ii. Claims may be pleaded inconsistently, alternatively, or even hypothetically (i.e .pleadings in the alternative) c. D’s answer is the second pleading served i. It responds to π’s complaint ii. May contain affirmative defenses (SPARE RIBS), and may also assert related or unrelated counterclaims against π iii. Π does NOT respond to D’s answer UNLESS it contains a counterclaim 1. Π has 20 days to respond to a counterclaim (25 days if answer was mailed) |
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✪Amended Pleadings
1/2 |
a. Defect or omissions in pleadings are easily corrected by motion
i. Court-permission to amend or supplement a pleading SHALL be freely granted at any time UNLESS amendment is: 1. Palpably insufficient as a matter of law, OR 2. Would directly prejudice the opposing party because of the delay in seeking the amendment b. As of 2012, ANY motion to amend or supplement a pleading SHALL be accompanied by a copy of the proposed pleading, which highlights the differences between the original pleading and the proposed pleading -– mere lateness is NOT a barrier to amending pleading i. If must be lateness PLUS substantial prejudice that directly resulted from the delay in making the amendment |
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Amended Pleadings
3025(a) -as of right |
d. Under CPLR 3025(a), EVERY pleading may be amended once as of right (without having to go to court) to correct errors, omissions, add new causes of action or defenses, or to add a new party within:
i. 20 days after pleading was served, ii. at any time before time period for responding to pleading expires (within 20, 30, or 40 days), OR iii. within 20 days after service of a response to the pleading sought to be amended iv. If the pleading does NOT require a response (a D’s answer containing no counterclaims), then D’s time to amend the answer as of right is 20 days from when it was served (25 if mailed) |
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Difference between an amended pleading and a supplemental pleading
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i. Supplemental → adds a coa that arose after the pleading was served
1. A pleading can be supplemented ONLY BY stipulation of the parties (consent), OR by ct permission ii. Amended → to fix the existing pleading |
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Bill of Particulars
1/2 |
a. A party’s demand for a BP is limited to requesting evidence that amplifies a party’s pleading on those issues which that party has the burden of proof
i. Ex. Demand for BP can be made on a π to particularize the elements of her claim as well as the damages she has suffered ii. Likewise, a BP claim can be made to particularize affirmative defenses (SPARE RIBS) in D’s answer and to particularize any counterclaims iii. If don’t include something in BP may limit type of evidence you can introduce b. A π does NOT have to particularize how she was free from negligence BECAUSE it is the D who has the burden of proving π’s comparative negligence. CPLR 1412. c. If a pleading was verified (signed under oath), then a subsequent BP to that pleading must also be verified i. HOWEVER, regardless of whether a pleading was verified, a BP amplifying a negligence claim must be verified |
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Bill of Particulars
2/2 |
d. A BP is a PAL:
i. P – prevents surprise at trial ii. A – amplifies pleading iii. L – limits proof that can be offered at the trial e. Answer: answer to a BP must be served within 30 days i. All other discovery devices must be answered within 20 days, EXCEPT for a demand for addresses = 10 days f. A BP is deemed a pleading and may be freely amended or supplemented by ct order i. It may be amended once as of right prior to filing note of issue when the case is placed on the trial calendar g. In personal injury actions, BP may be supplemented once as of right WITHOUT a court order at ANY TIME up to 30 days before trial to update and elaborate on the continuing consequences of π’s previously listed injuries |
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Jury trials
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a. No jury trials for equitable claims, ONLY legal claims
b. CPLR requires only a 5/6 vote for jury trials c. A federal civil jury allows a judge to seat not less than 6, but not more than 12 jurors, and federal jury MUST BE unanimous UNLESS parties stipulate otherwise d. If NY π joins an equitable claim with a related legal claim, this waives π’s right to demand jury trial on the legal claim i. BUT does NOT waive D’s right to demand jury trial on the legal claim (within 15 days after being served with a copy of π’s notice of issue ii. If π joins unrelated equitable and legal claims, this does NOT waive π’s right to demand a jury trial on the legal claim iii. The jury demand is made when π files the note of issue and places case on trial calendar f. After NY jury reaches its verdict, EVEN THOUGH each juror has signed the verdict sheet, ct MUST grant a party’s request to have the jury polled in open court i. Failure to do so results in an automatic new trial |
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Jury Trials-contractual waiver
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e. Contractual Waiver: The right to a jury trial can be waived in a contract, and ALMOST ALWAYS IS in a landlord’s lease when the LL sues to recover possession or unpaid rent
i. Rationale: jury prejudice against LL ii. Against NY PP for tenant to waive a jury trial in tenant’s claim against LL for negligence, to recover property damage, or personal injury |
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Impleader
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a. Π is free to choose which Ds to sue, BUT once a D serves an answer to π’s complaint, a D can then bring into the lawsuit (implead) ANYONE who was not named in π’s original action BUT who may be liable for all or part of π’s claim
b. Impleader is used ONLY where the third person has NOT been named as a D i. Cross-claim is the appropriate procedure to assert a claim against a co-D named in π’s action c. D who is now the third party π CAN implead a new party called the third-party D by filing a third-party summons and complaint with the clerk (but no new index number given), and then serving the third-party D with the third-party summons and complaint within 120 days from filing d. TP∏ must then simultaneously mail a copy of the TP complaint to the atty for the original π e. ✪The original π can amend her complaint as of right within 20 days from receiving a copy of the TPD’s answer to add the TPD as a named D to the original complaint |
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Indemnification
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a. Indemnification → the right of one party to shift the entire loss onto another
i. This right may be based on an express contract OR on an implied obligation ii. Express indemnification → where a K expressly provides that one contracting pty will hold the other party harmless from any claims 1. The right to indemnification depends on the specific language in the contract and such language is strictly (narrowly) construed by cts 2. Hypo: NY’s GOL prohibits a general contractor from requiring a sub-contractor to indemnify the GC for 3d pty tort claims proximately caused by the GC’s own negligence. HOWEVER, the K between the GC and the SC CAN provide that S will indemnify the GC “to the fullest extent allowed by the law.” This implies that the SC will indemnify the GC for 3d pty tort claims against the GC proximately caused by the SC’s negligence. |
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Implied Indemnification (agent indemnification)
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A more frequent basis for indemnification is common law implied indemnification, which arises by operation of law in tort claims
1. POOPE Relationship: WHENEVER liability is vicariously imputed (agent) to a D who committed no wrongful conduct, but is subject to liability solely because of a POOPE relationship to the tortfeasor a. A principal, the owner of a vehicle, joint owners of RP; a partner, or an employer (parties united in interest) 2. A manufacturer of a defective product impliedly agrees to indemnify a wholesaler or retailer in the vertical chain of privity who is sued by an injured π where the injury was proximately caused by the defective product |
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Contribution →
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An MBE or CPLR 1401 contribution claim arises when two or more tortfeasors have actively contributed to π’s injury (personal injury, property damage, or WD)
i. It is an equitable remedy that apportions tort damages among several active tortfeasors by requiring each to pay his own share of fault 1. It is the jury that does the apportioning of fault ii. If because of joint and several liability, one tortfeasor is compelled to pay more than his apportioned percentage of fault, then to avoid the unjust enrichment of the other tortfeasor, the paying tortfeasor can seek contribution from the other tortfeasor based on a quasi-contract theory iii. CPLR 1401 extends the apportioning rationale from just negligence to any type of joint tortfeasor REGARDLESS of whether the claim is based on negligence, intentional tort, or strict products liability |
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A claim for contribution or indemnification can be asserted EITHER:
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i. In a cross-claim by co-defendants in a pending suit,
ii. By impleading an active tortfeasor into the lawsuit, OR iii. In a separate subsequent action not advisable, too much trouble and money, other problems d. The contribution doctrine MAY be invoked against successive or concurrent tortfeasors AND it applies to claims for personal injury, property damage, OR WD i. Concurrent → acted at the same time to inflict injury ii. Successive → inflict/aggravate injury at different times, i.e. person injured in car accident and doctor screws up |
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Joint and Several Liability
Common law & MB |
where the acts of several tortfeasors contribute to π’s injury, each tortfeasor is fully jointly liable for 100% of π’s damages, REGARDLESS of each tortfeasors apportion share of fault
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Joint and Several Liability
NY |
b. NY: continues to follow CL J&S for injured π’s out-of-pocket economic losses
i. BUT to remedy the unfairness of this harsh rule, CPLR 1601 provides that whenever a tortfeasor is found to be 50% or less at fault for a π’s personal injuries, that D is severally liable ONLY to the extent of her apportioned share of fault for π’s non-economic losses (pain & suffering) ii. A co-defendant asserting art 16 limitation to J&S liability must plead and prove this issue iii. NY continues to apply CL J&S liability to recover for π’s out of pocket economic losses, which would include lost wages, medical bills, or 100% of a WD judgment, as well as claims to recover property damage |
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An injured π in NY continues to get the full benefit of CL J&S liability in certain cases based on IN WARM:
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i. π must plead this in her complaint and prove it at the trial. NYAA 159-60.
ii. I – claims of intentional tortious conduct iii. N – where a D owes a non-delegable duty to the injured π 1. Ex. A store owes a non-delegable duty to provide a safe place for customers coming into the store. NYAA 159-60. iv. W – worker’s compensation cases if the worker has suffered a grave injury v. A – where π’s injuries were caused by D’s ownership, operation, or use of an automobile, motorcycle, or other motor vehicle 1. HOWEVER, municipal fire trucks and police cars continue to receive the benefit of art 16’s limitation on J&S liability, BUT NOT other municipal vehicles vi. R – where a co-D is found by the jury to have been reckless vii. M – co-D more than 50% responsible for π’s injury |
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Workers’ Compensation Laws →
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protect employers from CL suits by injured employees for injuries negligently caused to an employee EITHER by a fellow employee or by employer’s negligent conduct
i. WC’s Insurance is E’s exclusive remedy against R ii. When the injured employee sues a third party, WC insurance does NOT prevent the employer from being impleaded into that tort claim to share in the employee’s injury, BUT ONLY if the employee has suffered a grave injury: 1. Loss of an index finger, 2. Loss of multiple toes or fingers, 3. Permanent brain damage, rendering the worker unemployable in any capacity, 4. Severe and permanent facial disfigurement, 5. Permanent deafness or blindness, 6. Quadriplegia, or paraplegia, 7. Amputation of a limb, 8. Loss of a nose or one ear, OR 9. Death. iii. ★do not confuse serious injury under NY’s no-fault law iv. This statute is strictly construed by NY courts. NYAA 154-57. I.e. wont’ recognize a thumb. |
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Comparative Negligence
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g. A jury is permitted to apportion fault not only among co-Ds, BUT under comparative negligence, it can apportion the fault of the injured π, which would diminish jury’s monetary award by the apportioned share of π’s fault
i. Problem: H and W are out for a drive. H is the owner driver. H collides with D’s vehicle, and W was seriously injured. Due to the concurrent negligence of H and D, can W sue her husband for personal injuries? 1. YES – 31 states (NY) have totally abolished intra-family immunity, and 11 more states have partially abolished it 2. Variation: assume W did not sue H, but sued D instead. Can D implead H? a. YES for contribution. 3. If jury returned a $200,000 verdict for W, and it found D was only 10% at fault and H 90% at fault, could W recover 100% of the judgment from D? a. YES because art 16’s limitation on a π’s right to use J&S liability does NOT apply because W’s injuries arose out of D’s negligent use of an automobile as an owner or operator (IN WARM) |
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Release of one Joint Tortfeasor, CL
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a. At CL, a π’s release of one joint tortfeasor
b. A released all other tortfeasors, and the party who paid for the release could then sue the other tortfeasors for contribution to share in the cost of the release based on their proportionate (%) share of fault in causing π’s injury |
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Release of one Joint Tortfeasor, (NY, others)
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By statute, a majority of states have modified this CL rule so that a release of one tortfeasor DOES NOT release all other tortfeasors
i. In NY a co-D who negotiates and buys release from liability PRIOR TO JUDGMENT is released from any liability on π’s claim, as well as any claims for contribution by the remaining tortfeasors ii. It provides the released party with a CPLR A5 SPARE RIBS ground to dismiss any subsequent claim for liability iii. The released NY party CANNOT seek contribution from the other tortfeasors to share in the cost paid to π for the release iv. To be effective, a NY release has to be in writing, signed by π, OR the release terms must be made in open court v. A π’s release affects a π’s right to recover against the remaining Ds because the ct will reduce π’s jury verdict by the greater of the following two amounts: 1. Amount paid to π for release, OR 2. Released party’s apportioned share of fault, assessed by the jury |
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High-Low Agreements
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in a bifurcated trial (trial on the merits and for damages separately) where D’s liability has been established, π and D can enter into a high-low agreement, which is NOT a release from liability, but simply places a maximum on D’s liability AND a minimum amount that π is assured of recovering
i. A jury’s award outside this range invokes the high-low amount ii. If the verdict is within the range, then the verdict governs 1. If amount is under low amount, OR it returns a $10 million verdict, then the high amount (the cap) is all π can recover. NYAA 115. |
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4 rules apply to NY jury verdicts or judgments:
Rule 1 |
The verdict must be itemized by setting forth:
i. Categories of both past and future economic and non-economic injuries, ii. The compensation awarded for each category of injury (past and future), AND iii. Apportionment of fault of π (comparative negligence) and D or co-D’s |
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4 rules apply to NY jury verdicts or judgments:
Rule 2 |
Under the CL collateral source rule, a π’s recovery for economic loss COULD NOT be reduced by any payments previously received by π from collateral sources, SUCH AS disability insurance, health insurance, no-fault automobile insurance payments, or property damage insurance
i. To prevent a π’s double-recovery, CPLR 4545 has abolished the CL collateral source rule on claims for personal injury, WD, or property damage ii. THE COURT will reduce jury’s verdict by the amount of any collateral source payments for each corresponding category of economic loss (jury is never made aware of the collateral source recovery): 1. That has been paid to the injured π, OR 2. With reasonable certainty will be paid to the π in the future 3. NYAA 149 (ct didn’t reduce because not clear and convincing that insurance co would keep compensating π for his troubles in the future) iii. The cost of π’s health or disability insurance premiums for two years prior to injury PLUS any future cost for continuing that i |
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4545 DOES NOT apply to:
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1. life insurance or pension payments, because they are not paid to replace lost salary, AND
2. any collateral payments that result in a statutory lien on jury’s award: a. Medicare, b. Medicaid, c. Social Security Disability payments, OR d. Worker’s compensation payments vi. A conclusive irrefutable presumption arises that a personal injury settlement does NOT include any economic losses suffered by the π 1. The settlement amount is presumed conclusively to be for non-economic losses 2. Rationale: this prevents a health or disability insurance co from seeking ANY reimbursement from a settling π or D, EXCEPT for statutory liens (1-4 above). NYLO 151. |
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4 rules apply to NY jury verdicts or judgments:
Rule 3 |
Once the NY jury renders its personal injury or wrongful death verdict ($2 million), NY ct then divides it into 2 separate judgments:
i. Judgment A is a lump sum judgment IMMEDIATELY paid to π for all past economic and non-economic damages, PLUS first $250,000 of ANY future damages ($500,000 in a med mal action), ii. Judgment B is for the balance of π’s future damages, BUT ONLY in an amount to purchase a single premium insurance annuity to provide for π’s future tax-free payments iii. Assignment: In order for a π to assign away any of these future payments, a special proceeding must be commenced in the Sup Ct, and before the ct will approve the assignment, the buyer’s discount rate MUST BE fair, and the sale of those future payments MUST BE in the best interest of the injured π |
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4 rules apply to NY jury verdicts or judgments:
Rule 4 |
UNLESS OTHERWISE PROVIDED BY A STATUTE, a NY $ judgment earns 9% interest/year from the date of verdict, the date of the DJ, the date of a SJ, or in a bifurcated trial, the date liability was first established at the first trial
i. This interest continues until the judgment is paid ii. Pre-judgment interest CAN be recovered from: 1. The date of death for a WD claim, BUT there is no pre-verdict interest on personal injury claims, 2. The date of property damage in a property damage claim, 3. The date a K was breached in a breach of K claim iii. If the jury’s verdict, or the ct’s decision, does NOT compute the pre-verdict interest, it shall be done by the clerk of the ct |
