New York Bar Exam: Ny Civil Practice

Front 1

What is the discovery rule in cases of exposure to toxic substances?

Back 1

Toxic substance = any inherently harmful toxin that has latent or slow developing effects, e.g., asbestos, insecticide, HIV, leaking oil, etc. Exposure is any sort of assimilation into one's body or property. S/L begins to run on date injury is discovered by P or when injury should have been discovered w/ reasonable diligence.

Front 2

When can S/L be tolled for D's absence? (2)

Back 2

1) If D is not in NY when COA accrues, S/L doesn't begin to run until D comes to NY, or

2) If D is in NY when COA accrues, but D thereafter leaves the state and is continuously absent for at least 4 months, then toll applies to entire period of absence,

EXCEPT (for 1 and 2): The toll for absence is not available if P has basis of PJ over absent D that would allow process to be validly served on D outside NY.

Front 3

When can S/L be tolled for P's Infancy or Insanity (Legal Disability)

Back 3

1) Infants (<18) or insane Ps may sue w/in regular S/L through a competent adult rep, but also get benefit of toll: If P is infant or insane at time COA accrues, S/L is tolled until disability ends, i.e., until infant reaches 18 or until disability clears up. To be insane, P need not have gone through formal judicial proceeding for appt of guardian.

2) When disability ends, if original S/L was 3+yrs, P gets 3 years from date disability ended. If original S/L was < 3yrs, P gets whatever period was specified by original S/L.

3) Outside limit of 10yrs for commencement of action in 2 situations:

i) when relying on infancy toll, claim for med mal must be commenced no later than 10yrs from date of accrual.

ii) Claims of insane Ps, regardless of nature of COA become time barred after 10yrs from date of accrual when relying on toll for insanity. [In medmal cases, continuous treatment and infancy tolls are separate tolls. Don't add them together. If both applicable, run each separately, and determine whether timely under each toll. (P gets benefit of later toll)]

Front 4

Tolls for death?

Back 4

1) Potential Ps:

i) Wrongful Death COA is a tort claim for pecuniary damages of dec's statutory distributees. Punitive damages recoverable, but not the emotional suffering of the distributees or the dec's personal pain and suffering. S/L for WD is 2yrs from date of death but it must also be shown that at the time of death, dec's underlying personal injury claim would still be timely.

ii) Survival claim = any COA P herself could have brought if she were still alive. Not limited to torts, damages include those incurred by P prior to death - e.g., pain and suffering. If on date of death, underlying claim would still be timely, exec/admin get either the time still remaining on dec's claim, or 1yr from date of death, whichever is longer.

2) Potential Ds: If potential D dies at any time before S/L expires, 18 months are always added to the relevant limitation period (regardless of whether P needs extra time).

Front 5

6 month grace period toll?

Back 5

If NY action timely commenced, but is then dismissed before trial, AND at the time of dismissal S/L has either expired or has less than 6mths left, P gets 6mths from date of dismissal to re-file the same action and serve process on same D.

NOT APPLICABLE to:

i) Dismissal on the merits,

ii) Voluntary discontinuance by P,

iii) P's neglect to prosecute,

iv) Dismissal for lack of PJ (as dist from SMJ, which does give 6mth grace period).

Front 6

Borrowing statute?

Back 6

1) If P was a non-resident of NY when OOS claim arose - NY will apply S/L of state where COA arose if it is shorter than that of NY. If other states S/L is longer, NY will apply NY S/L.

2) If P was a NY resident when OOS claim arose - NY will always apply NY S/L regardless of whether NY S/L period is longer or shorter than that of where OOS claim arose.

Front 7

What are 3 possible COAs that a P has if a widget causes personal injuries? What is the S/L as to each theory and when does it begin to run?

Back 7

ANALYZE EACH SEPARATELY

1) Negligence - 3 years running from date of injury as against all D's in chain of distribution.

2) Strict Products Liability - Same answer as Negligence.

3) Breach of Warranty - governed by UCC Art 2: 4 year S/L governing sale. 4 year S/L begins to run when particular D against whom warranty claim is asserted made its delivery of product. Go down the chain of distribution and look at each D. If any D then seeks indemnity/contribution from another D, 6 years S/L running from date of actual payment of judgment for which indemnity or contribution is sought.

Front 8

Special procedure for personal injury actions against arch/eng when action is brought more than 10 years after building completed.

Back 8

(1) P must serve a notice of claim on architect or engineer at least 90 days before suit,

(2) P may obtain pre-action discovery from the potential D during the 90 day waiting period, and

(3) after suit is commenced, if D moves for SJ, 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.

Front 9

What are exceptions to the foreign object exception which don't get the discovery rule.

Back 9

Chemical Substance (medicine), Prosthetic Device (hip joint), Fixation device (pacemaker, sutures, diaphragm).

Hint 9

C P D

Front 10

What is a Wrongful Death COA

Back 10

It's a statutory COA in favor of decedent's distributees where D's tortious conduct caused death. Damages are limited solely to distributees' economic losses.

Front 11

When does S/L begin to run?

Back 11

Not based on discovery, when COA accrues (when injury occurs). Accrual is the date of the original impact. NY uses date of breach, even when ∏ unaware, except for toxic torts.

Front 12

How to compute S/L date?

Back 12

To compute S/L, AND ANY OTHER TIME PERIOD IN THE CPLR, exclude the day upon which the triggering event occurs and begin counting the next day.

EX: Tort COA accrues 6/1/06. S/L period is 3 years. Last day of timely commencement of P's action against D would be 6/1/09.

Exception: If the last day for performing any procedural act, such as commencing an action or 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.

Front 13

When must action be commenced to satisfy S/L

Back 13

The action must be commenced no later than the last day of the S/L period. Commencement consists of filing of process (process=summons and complaint, or summons with notice). Filing must be made with the clerk of the court on or before the last day of S/L. (Exception: In Justice Court, process must be served on D on or before the last day).

Front 14

What is SMJ?

Back 14

SMJ means the constitutional or legislative authority to grant the relief a party seeks. SMJ may not be waived. An objection based on lack of SMJ may be raised at any time, even appeal.

Front 15

What's the SMJ of NY Sup Ct?

Back 15

May adjudicate all claims except those against state of NY. Has unlimited monetary jurisdiction. Only court with full equity jurisdiction. For SMJ, can hear any type of action.

Front 16

What discretion does SC have with regard to forum non conveniens (FNC)?

Back 16

The non-residency of the parties in NY and the lack of relationship to the claim to NY do not deprive the court of SMJ. But court has discretion, upon motion, to dismiss on the ground of FNC when the action lacks any substantial nexus to NY. Any such motion must be made by ∆. The court may not dismiss on this ground on its own.

Front 17

What are the exceptions to NY SC General Jurisdiction?

Back 17

1) Cases as to which federal law confers exclusive jurisdiction on federal courts, e.g., bankruptcy, patents, copyrights.

2) Claims for money damages in tort or K against State of NY. These can be brought in the NY Court of Claims. Only court in which NY can be sued in tort or K. Only ∆ here is NY.

(Note: NY Counties are subdivisions, can sue them in SC. Amy/Joe B. hypo - Amy can sue Nassau and Joe B. as cop together in Nassau SC

Front 18

Over what does NY Supreme Court have exclusive SMJ?

Back 18

Matrimonial action (action in which court asked to adjudicate marital status),

CPLR Article 78 proceeding (e.g., judicial review of administrative action),

Declaratory judgment action (judicial declaration of rights and obligations of the parties to an actual controversy before one of them engages in conduct that could cause liability).

Front 19

In addition to SMJ, what other 3 reqs must be met for a court to enter a valid judgment?

Back 19

1) Proper Commencement of the Action,

2) Proper service of process on the D,

3) Proper basis of jurisdiction over the person or property involved in the action.

Front 20

How is an action commenced.

Back 20

By filing process (summons and notice, or summons and complaint) with the clerk of the court.

Filing must be accompanied by a fee to purchase an index number. Then, serve process on D.

Process must be served on D w/in 120 days from filing w/ county clerk. If P has difficulty locating D, court has discretion to extend 120 day period if P makes ex parte motion showing either good cause or interest of justice. Good cause = P exercised due diligence. Interest of justice = more flexible. If D wants to challenge timeliness of service, would have to make motion to dismiss. Even then, in its discretion, court may still grant P retroactive extension.

Front 21

What are the 2 types of process?

Back 21

1. Summons and complaint - advises D that P is suing D in a particular court. Complaint = P's pleading, which specifies the transaction or occurrence that is the SM of the action and spells out essential elements of P's COA. It's long.

2. When summons is not accompanied by a complaint, it must have sufficient notice inscribed on the face of the summons or on a one-page attachment. Must have

i) brief statement of nature of action - 'action for breach of K,'

ii) Nature of relief sought,

iii) If P seeks damages, amount of damages, except in personal injury/wrongful death action, P not allowed to spec amt of damages in summons/complaint or summons/notice.

Front 22

What happens if P files 'naked' summons - w/o either a complaint or notice.

Back 22

Defect in PJ. Action subject to dismissal for this alone, assuming D makes timely jurisdictional motion.

Front 23

What are the basic requirements of service or process?

Back 23

i) may be served by any person at least 18 y.o., provided person not party to action. P's spouse can, P can't.

ii) may be served any day of week except Sun. If P knows D is Sat sabbath observer, P can't serve that D on Sat. Innocent Sat service OK.

iii) Service may be made on holiday, so long as holiday isn't Sun.

Front 24

Service on Natural Persons, Traditional methods: When is personal delivery to D complete?

Back 24

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. Re-delivery by a go-between does not qualify as personal delivery. Action subject to dismissal.

Front 25

Service on Natural Persons, Traditional methods: What is Leave and Mail service?

Back 25

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. Each D gets his own process. 2 steps must be performed within 20 days of each other, and both steps must take place w/in 120 days from filing process. If apt building, lobby OK if security doesn't allow server to go to apt.

Front 26

Service on Natural Persons, Traditional methods: What is Affixing and Mailing service?

Back 26

Affixing consists of taping process to door or using rubber band on door knob. P/S 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. A/M, in either order, must be performed w/in 20 days of each other, and both steps must be done w/in 120 days from filing process. Mail needn't be sent to same location as affixing. BUT, P/S must first exercise due diligence by making an attempt to serve D directly or to at least leave process w/ a person of suitable age and discretion at the home or place of business.

Front 27

Service on Natural Persons, Traditional methods: What else is required only for both leave-and-mail and affix-and-mail service (but not for personal delivery)?

Back 27

For both, proof of service must be filed after the 2 service steps have been performed.

Proof of service is an affidavit by the process server describing the details of service, e.g., date, time place, description of person served, due diligence if relevant - it's necessary to make service COMPLETE.

For both leave and mail and affix and mail, service is COMPLETE 10 days after proof of service is filed. Then D's response time begins to run.

Not a jurisdictional defect if P fails to file Proof of service Just delays D's response time.

Front 28

Service on Natural Persons, Traditional methods: What is expedient service?

Back 28

If the first three methods are not practicable, P must first make an ex parte motion to the court for an order allowing an improvised, expedient method, a reasonable alternative appropriate in the circumstances, e.g., service on D's liability insurer, a family member or business associate, or via e-mail.

Front 29

Service on Natural Persons, Traditional methods: May process be served on D's designated agent?

Back 29

Yes, e.g., where in a written commercial K, a party expressly specifies agent upon whom process may be served in dispute arising from K.

Front 30

Service on Natural Persons, Traditional methods: How is service on Infants and the Mentally Incapacitated handled?

Back 30

i) When D is an infant, D's name goes on the summons but process must be served on any one of the following adults: a parent, a guardian, a person w/ legal custody, or if the infant is married, process can be delivered to infant's spouse where infant resides.

If infant is 14+ y.o., process must be served on an eligible adult and the infant. When serving the adult, or the adult-plus-infant, any of the traditional methods mentioned above may be used.

ii) When D is mentally incapacitated person for whom the court has appointed a guardian, process must be served on the guardian and the incapacitated person. If D is mentally incompetent but no judicial proceeding has be brought for the appointment of a guardian, D is served in same manner as any other D. Court will later appoint guardian ad litem (for purpose of pending lit).

Front 31

Service on Natural Persons, Traditional methods: What methods are used to serve D outside of NY?

Back 31

Assuming that there is a basis for out of state service, the same methods that are used to serve D within NY are used when D is outside NY.

Front 32

Service on Natural Persons, Traditional methods: who may serve process in the other jurisdiction?

Back 32

i) Any NY resident authorized under NY law, ii) Anyone authorized to serve process by laws of jurisdiction where service was made, iii) Any atty licensed in jurisdiction where service is made.

Front 33

Service on Corporations, Traditional methods: What are the 2 methods used to serve corporations?

Back 33

1. Personal delivery to any one of the following: Officer of Corp, Director of Corp, Designated Agent, or Managing Agent. If there is a basis of jurisdiction over the corp., any one of the eligible corporate representatives may be served with process by personal delivery anywhere in the US.

2. Service on NY Sec'y of State:

i) for a domestic corp. OR a foreign corp. authorized to do business w/in NY (licensed corp.), personally deliver 2 copies of process to the NY Sec'y of State (the designated agent as per cert of incorp/doing business), who will mail one copy by certified mail to corp. at address on file in secy's office,

ii) for an unlicensed foreign corp., personally deliver 1 copy of process to NY sec'y of state PLUS P mails one copy to the corp. by certified mail, return receipt requested.

Front 34

What is a Non-traditional service method?

Back 34

Service by first class mail PLUS acknowledgment: mail process to D by first-class mail, enclosing two copies of a statutory acknowledgment form, plus a return envelope, postage prepaid, addressed to sender.

Service effective only if D signs and returns 1 of the acknowledgment forms to P w/in 30 days after D receives the mailed process.

Service complete upon D's posting of the signed form. If D doesn't return acknowledgment form, service by mail not effective. P would have to serve process all over gain, using 1 of the traditional methods. But D must pay P's expenses in making 2nd service of process.

May be used regardless of whether D w/in or outside NY. Available to all types of Ds personal and corporate, EXCEPT Infants and Mentally Incapacitated persons for whom guardian appointed.

D's return of acknowledgment not= concession that court has jurisdiction.

Front 35

Basis of jurisdiction over D's person, general jurisdiction: What is personal jurisdiction?

Back 35

Enables a judgment for money damages to be enforced in full.

Front 36

Basis of general jurisdiction over D's person: What are the bases for personal jurisdiction?

Back 36

General: Presence in NY, Doing Business in NY, Domicile in NY. Specific (claim must be specific to NY activity or w/in terms of K): Long-Arm jurisdiction, Non-resident motorist statute, Consent.

Front 37

Basis of general jurisdiction over D's person: What qualifies as presence in NY for the purposes of general PJ?

Back 37

Gotcha! If personal delivery of process is made to D while D is physically present in NY, D's physical presence in state at time of service is a valid basis for general PJ.

Front 38

Basis of general jurisdiction over D's person: Doing business in NY

What claims are domestic corps subject to PJ in NY?

When is a foreign corp said to be doing business in NY?

What is the test for doing business in NY as it applies to unlicensed foreign corps?

Back 38

1. A domestic corp. is subject to PJ in NY on any claim whatsoever, no matter where in the world the claim arose. Same applies to a foreign corp. that authorized to do biz in NY, a 'licensed' corp.

2. An unlicensed foreign corp. is said to be present in NY if it is doing business in NY.

Test: At time action commenced, are corp.'s agents or business in NY engaging in continuous, regular, and systematic activity for benefit of corp.? This requires that corp. must maintain office in NY continuously staffed by one or more Ees. If corp. activity in NY is continuous, regular, and systematic, no need to show connection between D and NY (P doesn't have to be suing on a claim that arose from corp.'s NY business). It's a form of GJ.

Hint 38

C R S Activity

Front 39

Basis of jurisdiction over D's person, general jurisdiction: Can a P acquire GJ over corp. NOT doing business in NY by serving its officer while he is in NY?

Back 39

No. If the doing business requirement isn't met, transient presence of corp. officer in NY not enough for jurisdiction over corp. even though officer is served while physically present in NY.

Front 40

Basis of jurisdiction over D's person, general jurisdiction: Do either corp.'s advertisements OR sales of a corp.'s product in NY by independent retailers qualify as doing business in NY?

Back 40

NO. Corp advertisements in NY or sales of corp.'s product in NY don’t qualify as doing business in NY.

Front 41

Basis of jurisdiction over D's person, general jurisdiction: When is satisfying the 'doing business' standard usually necessary?

Back 41

Satisfaction of the 'doing business' standard is usually only necessary if the COA arose outside NY.

If COA arose within NY, long-arm J will probably be available and P won't need to show that the corp. is 'doing bus' on a continuous and systematic basis w/in NY.

Note: If a foreign corp. is doing business inside NY, service of process can be made either inside or outside NY.

Note: Doing business basis can probably be used to get jurisdiction over individuals and partnerships, as well as corporations. An argument to be made.

Front 42

Basis of jurisdiction over D's person, general jurisdiction: If D domiciliary of NY at time action commences, where can D be served?

Back 42

D can be served anywhere. D's status as a NY domiciliary will give GJ over D.

Front 43

Basis of jurisdiction over D's person, general jurisdiction: What's the distinction between domicile and residence?

Back 43

Residence is a place where a person lives for a fair amt of time w/ some degree of perm. A person can have multiple residences. Domicile is the one residence at which a person intends to remain indefinitely and is treated by her as the principal home. A person has only one domicile.

Front 44

Basis of jurisdiction over D's person, Specific Jurisdiction: What's the basic concept of long-arm jurisdiction?

Does it matter where the claim arose?

What must be true in order to obtain LA jurisdiction over D?

Back 44

CPLR 302: based on the 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 w/ NY, provided P's claim arises out of those acts.

It doesn't matter where the claim arose.

To obtain LA jurisdiction, facts of P's case must arise out of any one of 5 categories of NY Related activity.

Front 45

Basis of jurisdiction over D's person, Specific Jurisdiction: What are the 5 LA categories?

Back 45

P's claim arises from:

1) Transaction of business by D in NY,

2) K made outside NY in which D agreed to supply goods or services in NY,

3) D's tortious act in NY,

4) D's tortious act outside NY which causes injury in NY,

5) D's ownership, use, or possession of RP in NY.

Hint 45

T C T T DO

Front 46

Basis of jurisdiction over D's person, Specific Jurisdiction: What's an example of LA 1), D's transaction of business in NY?

Back 46

Pete Rose travels to NY for 1 day to negotiate K to manage casino in OH. Signs K, and never sets foot in NY again. If P wants to sue D on a claim that arose from the negotiation in NY, has LA jurisdiction over D based on the business transaction in NY. Doesn't have to sign the K in NY, just needs to transact business in NY.

Front 47

Basis of jurisdiction over D's person, Specific Jurisdiction: What's an example of LA 2), K made in NY in which D agreed to supply goods or services in NY?

Back 47

K must be economically significant, such as agreement by D to ship a sizeable qty of merchandise in NY or perform in a show there.

If D in MA calls P in NY to order goods, promising to pay by check upon delivery of goods, and after P ships goods, D doesn't pay, not enough.

A single boilerplate telephone (or fax or email) order coming from an OOS buyer not enough.

Would need a significant # of comm. by D relating to perform of signify K. Also, an agreement to send $ to NY not enough to be considered supplying goods or services in NY.

Front 48

Basis of jurisdiction over D's person, Specific Jurisdiction: What's an example of LA 3), D's tortious act in NY?

Back 48

Driving negligently on NY roadway, making fraudulent statements during a sales negotiation in NY, converting goods while in NY, assaulting P in NY>

Front 49

Basis of jurisdiction over D's person, Specific Jurisdiction: What's an example of LA 4), D's tortious act outside NY which causes injury in NY?

Back 49

D makes a defective product in WI and it explodes in NY

PLUS

an additional link between D and NY:

(a) D regularly solicits biz or engages in any other persistent course of conduct in NY,

(b) D derives substantial revenue from goods used or consumed, or services rendered, in NY; or

(c) D expects or should reasonably expect the act to have consequences in NY and derives substantial revenue from interstate or international commerce. D's interstate commerce must purposefully include NY, to assure compliance with DP limitations.

Front 50

Basis of jurisdiction over D's person, Specific Jurisdiction: What's an example of LA 5), D's ownership, use or possession of RP in NY?

Back 50

D of CT owns building in NY and enters into transaction in CT to sell it to P. If D backs out of the deal, P would have LA jurisdiction over D in NY to sue for damages or specific performance. D would also be subject to LA for a claim arising out of a slip-and-fall at D's NY building.

Front 51

Basis of jurisdiction over D's person, Specific Jurisdiction: General Points about LA statute

Back 51

1> It covers all types of Ds.

2> The acts giving rise to jurisdiction can be performed by D herself or by her agent or Employee. Also, the A's acts in NY will subject the A herself to jurisdiction.

3> Even if D dies, D's estate representative can be served outside NY.

4> Serving process: P must use the same methods of service on D outside NY as would be used for service inside NY.

Front 52

Basis of jurisdiction over D's person, Specific Jurisdiction: Tip for jurisdiction analysis on exam essay

Back 52

First, discuss whether P can establish jurisdiction under any non-LA categories. (Shows you recognize that other methods don't apply.)

Second, discuss whether facts of P's case fall w/in one or more of the LA categories.

Third, briefly discuss whether the particular assertion of jurisdiction would satisfy const DP.

Test: For LA jurisdiction, DP satisfied if P's claim arises out of conduct by D that is so purposefully directed toward NY that D reasonably should anticipate being sued in a NY court.

Front 53

Basis of jurisdiction over D's person, Specific Jurisdiction: Non-resident motorist statute.

Back 53

Refers to non-domiciliary and confers PJ over an accident claim arising from a nondomiciliary motorist's ownership or use of an auto on a NY roadway. Often overlaps with LA category of tortious act in NY, but has 2 unique features:

1) P serves process on D by personally serving one copy on the NY Sec'y of State PLUS mailing second copy to D by certified mail to D's out-of-state residence (Sec'y implied agent of non-res motorist).

2) Applies to owners - if car owned by person being driven in NY by someone else w/ owner's permission causes tort, non-resident motorist statute would apply to owner, b/c car being driven through NY w/ owner permission.

Front 54

Basis of jurisdiction over D's person, Specific Jurisdiction: Consent

Back 54

Parties to a K may consent in advance to PJ in NY in a "forum selection clause" ("any dispute relating to the K shall be resolved in NY courts"). Generally enforceable in absence of fraud, overreaching, or unreasonableness.

Front 55

Basis of Matrimonial jurisdiction where P is a domiciliary of NY

Back 55

Supreme Court of NY has SMJ for matrimonial actions. If P NY domiciliary, SC has in rem jurisdiction over the marriage. Can grant divorce, separation or annulment.

Front 56

Basis of Matrimonial jurisdiction: What must be true if P also seeks monetary support in addition to the divorce?

Back 56

P must also have a basis for PJ over D. If D can't be served in NY, and P is NY resident, use Matrimonial LA statute. When P is NY res, LA juris can be acquired over D-spouse for monetary support if

1) NY was the matrimonial domicile of P and D prior to their separation, OR

2) D abandoned P in NY, OR

3) D's monetary obligation accrued under an agreement executed in NY (e.g., separation agreement), OR

4) D's monetary obligation accrued "under the laws of NY" [Catchall, not usually tested]

Front 57

Basis of Matrimonial jurisdiction: what methods of service of process must be used in a matrimonial action?

Back 57

The matrimonial LA statute creates a preference for personal delivery. In a matrimonial action P can't use leave and mail or affix and mail w/o 1st getting court order.

Front 58

Basis of Matrimonial jurisdiction: What are NY's durational residency requirements to ensure that NY has sufficient in the marriage to adjudicate the marital status of the parties?

Back 58

P's complaint must allege satisfaction of any 1 of 3 optional durational residency categories:

a. If BOTH PARTIES are NY RESIDENTS at the time the action is commenced, AND the GROUNDS for the matrimonial action AROSE in NY, then no period of prior NY residence is required.

b. If EITHER PARTY has been a NY RESIDENT for a continuous period of at least 1 YEAR immediately prior to the action AND NY has a PRIOR LINK TO THE MARRIAGE:

i) The marriage took place in NY,

ii) If NY was matrimonial domicile at some point,

iii) If grounds for action arose in NY.

c. If EITHER PARTY has been a NY RESIDENT for a continuous period of at least 2 YEARS immediately prior to the action, standing alone, no need to show any other NY link to marriage.

Front 59

Basis of Matrimonial jurisdiction: what happens if P fails to prove satisfaction of at least one of the residency requirements?

Back 59

Action would be subject to dismissal on the merits -- D would file failure to state a COA. NOTE: durational residency requirements don't apply in an action solely to enforce monetary support obligations. They apply only in actions seeking to affect the marital status.

Front 60

Venue: What is the proper venue in an action in which the judgment would affect title or possession to RP?

Back 60

Proper venue is the county in NY in which RP located.

Front 61

Venue: What is the proper venue in all other actions?

Back 61

Any county in NY in which any one of the parties resides at the time the action is commenced. Don't use county where COA arose as test. Residency of parties is key. If none of the parties resides in NY, P can choose any county.

Front 62

Venue: Is P's choice of an improper venue a jurisdictional defect?

Back 62

No. Therefore, it is not a basis for dismissal.

Front 63

Venue: What is D's remedy for improper venue?

Back 63

D must serve a demand on P for change of venue to a proper county designated by D. D serves demand w/ or b/f service of the answer. P may concede he made a mistake. If so, change of venue to proper county automatic. If P objects, or simply fails to respond, then D must make motion for change of venue. If P chose improper venue, and D has designated proper venue, D's motion must be granted as a matter of right.

Front 64

Venue: Is there a DISCRETIONARY GROUND for CHANGE OF VENUE based on the convenience of material witnesses?

Back 64

Yes. Either party, by motion, may request the court for a change of venue to the county that would be most convenient for the witnesses. This will often (but not always) be the county where the COA arose.

Front 65

D's Response: Response to Summons and Complaint. What 2 methods can D use to respond to summons and complaint and avoid default?

Back 65

1) Serve an answer. Answer is D's pleading and it responds to allegations of P's complaint. 2) Make a motion to dismiss under CPLR 32.11

Front 66

D's Response. Response to Summons and Complaint: What are the 2 basic pleadings?

Back 66

P's COMPLAINT and D's ANSWER.

Front 67

D's Response: Response to Summons and Complaint: What does D's answer consist of?

Back 67

1) DENIALS of the allegations that D wishes to contest (failure to deny and allegation is an admission) and 2) any AFFIRMATIVE DEFENSES (e.g., S/L, lack of juris., P's comparative neg). Affirmative defenses not raised in the answer are WAIVED (subject only to D's possible amendment of the pleadings).

Front 68

D's Response: Response to Summons and Complaint: What if D wishes to assert her own COA against P?

Back 68

She may do so in a COUNTERCLAIM.

Front 69

D's Response: Response to Summons and Complaint: What is the reply?

Back 69

The REPLY is the P's pleading in response to a counterclaim. It consists of denials and affirmative defenses. If there is no counterclaim, P cannot serve a reply w/o court permission .

Front 70

D's Response: Response to Summons and Complaint: What is a CROSS-CLAIM?

Back 70

In a multi-D case D may assert any Cross-Claim against any other D. Cross-claims are asserted in D's answer, and they can be based on any type of claim that D has against other Ds. No requirement that cross-claims be related to P's COA (Ds can cross claim against each other on P's personal injury claim against Ds).

Front 71

D's Response: Response to Summons and Complaint: What are the requirements for copies of the pleadings.

Back 71

Parties must serve copies of their pleading on all other parties who have appeared in the action.

Front 72

D's Response: Response to Summons and Complaint: What are interlocutory papers?

Back 72

After P's initial service of process, all other litigation papers are called INTERLOCUTORY PAPERS. These include D's ANSWER, all other pleadings, motions, discovery notices, etc.

Front 73

D's Response: Response to Summons and Complaint: How are interlocutory papers served?

Back 73

Regular 1st class mail OK. Commencement must be served on party, interlocutory papers served to party's atty.

Front 74

D's Response: Response to Summons and Complaint: When is service of an interlocutory paper deemed made?

Back 74

Service of an interlocutory paper is deemed made upon the mailing of the paper, not its receipt.

Front 75

D's Response: Response to Summons and Complaint: What are the time limits for serving the answer?

Back 75

1) If D was served with process by PERSONAL DELIVERY WITHIN NY STATE: D must serve answer w/in 20 days of delivery. 2) If D was served w/ process by FIRST CLASS MAIL PLUS ACKNOWLEDGMENT, D's return of acknowledgment is merely a notification of D's receipt of process. It is not a pleading. Therefore, D must serve an answer w/in 20 days of D's mailing of acknowledgment. 3) If D was served w/ process UNDER ANY OTHER CIRCUMSTANCES: D must serve answer w/in 30 days after service is complete. NOTE: If bar exam says D 'timely responded,' don't discuss this issue.

Front 76

D's Response: Response to Summons and Complaint: Under CPLR 3211, on what grounds may D move to dismiss a COA prior to service of the answer? (8)

Back 76

DOWNFALL:
D: DOCUMENTARY Evidence as the basis for a defense, e.g., mortgage, deed, or K.
O: OTHER action pending b/t the same parties on the same COA.
W: WANT of capacity (P infant suing w/o proper rep, P as B suing on behalf of trust (only T has capacity).
N: NON joinder of a necessary party (co-makers of a promissory note, joint property owners).
F: FAILURE to state a COA. [Motion is directed at the substantive insufficiency of the complaint on its face, i.e., even if all the allegations are deemed to be true, the substantive law doesn't recognize a COA. Standard: P entitled to every favorable inference that can be drawn from allegations of complaint. This motion must be denied if there is any basis for relief under the substantive law. TIP: Remember to discuss the underlying elements of the COA w/ this.]
A: ADDITIONAL AFFIRMATIVE Ds.
L: LACK of PJ [includes all 3 potential defects in PJ: 1) Commencement defects, 2) Improper service of process, 3) Lack of basis jurisdiction.]
L: LACK of SMJ.

Front 77

D's Response: Response to Summons and Complaint: What are the Affirmative defenses in the A of DOWNFALL? (9)

Back 77

SPARE RIBS: S: S/L. P: PAYMENT. A: ARBITRATION AWARD. R: RELEASE. E: ESTOPPEL (as in COLLATERAL). R: RES JUDICATA. I: INFANCY of D. B: BANKRUPTCY discharge. S: STATUTE OF FRAUDS.

Front 78

D's Response: Response to Summons and Complaint: What are procedural aspects of the pre-answer motion to dismiss?

Back 78

1) The motion is made BEFORE service of the answer (20 or 30 days), on or before the last day of prescribed time limit for service of the answer. 2) Making the motion automatically extends D's time to answer. If motion denied, D must then serve the answer w/in 10 days.

Front 79

D's Response: Response to Summons and Complaint: If D has one or more of the defenses listed in CPLR 3211, must D raise the defenses by this motion?

Back 79

No. Making CPLR 3211 motion is D's option. D not required to make DOWNFALL D's by pre-answer motion. D may save them and put them into answer as affirmative defenses. Alternatively, D could assert all of his DOWNFALL defenses in a pre-answer motion. Also, D can only make one 3211 motion, but can do so on multiple grounds.

Front 80

D's Response: Response to Summons and Complaint: What are the rules on waiver? (If D makes a pre-answer motion on only one of the 3211 grounds and loses, to what extent may D thereafter raise the other 3211 objections in the answer?)

Back 80

A motion to dismiss on any ground listed in 3211 does not preclude raising any other 3211 ground in the answer EXCEPT lack of PJ.

Front 81

D's Response: Response to Summons and Complaint: If D makes a pre-answer motion to dismiss on the ground of release and the motion is denied, when D serves his answer, could he properly assert as affirmative defenses Statute of Frauds, and Improper service of process?

Back 81

S/F would be proper b/c it was not waived. Improper service of process would be considered waived b/c it is one of 3 potential defects in PJ. Since he failed to include it as a defense in the 3211 pre-answer motion to dismiss, it is considered waived.

Front 82

D's Response: Response to Summons and Complaint: How to preserve PJ defenses?

Back 82

1) Before serving answer, make 3211 motion to dismiss that includes lack of PJ, or 2) Make no 3211 motion on any ground and instead include lack of PJ as an aff def in answer. Failure to do 1) or 2) is a waiver of PJ defenses. Warning: although pleading improper service of process as def in the answer is proper way to assert that particular juris defect, the objection of improper service will still be waived if D doesn't make a follow-up motion for SJ on that ground w/ in 60 days after serving answer. Note that the 60 day follow up rule doesn't apply to the defense that court lack a basis of PJ. Only applies in improper service of process.

Front 83

D's Response: Response to Summons and Complaint: What happens to Defs not raised in the answer?

Back 83

All defenses (except for 3) not raised in the answer are waived. Only recourse for D is to seek to amend the answer.

Front 84

D's Response: Response to Summons and Complaint: What three defenses are never waived, even if D fails to include them in answer?

Back 84

1) Non joinder of necessary party, 2) Failure to state COA, 3) Lack of SMJ. These can be raised to at any point in the litigation.

Front 85

D's Response: Response to Summons with notice: If D wants to avoid default, and/or force P to serve the complaint, what should she do?

Back 85

D should serve either: 1) A demand for the complaint, or 2) a notice of appearance.

Front 86

D's Response: Response to Summons with notice: What is the time limit for serving either a demand for the complaint or a notice of appearance?

Back 86

Same as the response time to a summons and complaint. 20 days if D served w/ summons w/ notice by personal delivery in NY, 30 days after service is complete in all other circumstances.

Front 87

D's Response: Response to Summons with notice: What effect on P does D's service of a demand for the complaint and/or a notice of appearance have?

Back 87

They both have the effect of requiring P to serve the complaint w/in 20 days of D's service.

Front 88

D's Response: Response to Summons with notice: If P timely serves the complaint, what then?

Back 88

D has 20 days from such service to either: 1) Serve the answer, or 2) Make a 3211 motion to dismiss.

Front 89

D's Response: Response to Summons with notice: What if P fails to meet the 20 day time limit to serve the complaint?

Back 89

D may move to dismiss the action based on P's noncompliance, which is a form of NEGLECT TO PROSECUTE.

Front 90

D's Response: Response to Summons with notice: When defending against a Neglect to Prosecute motion, what must P do to avoid dismissal?

Back 90

P must show a reasonable excuse for delay and make an evidentiary showing that there is merit to P's claim such as in an affidavit which is a written statement of facts under oath from P or W have personal knowledge of such facts.

Front 91

D's Response: Response to Summons with notice: Aft P serves the complaint may D still object to the court's PJ?

Back 91

Yes. In other words, neither a demand for the complaint nor a notice of appearance is a waiver of jurisdictional objections. D may still raise lack of PJ as a def in answer or he can include it in a 3211 pre-answer motion to dismiss.

Front 92

Amendments of Pleadings: How often may each party amend her pleading as a matter of right (w/o need to obtain judicial permission)?

Back 92

Each party is entitled to amend her pleading once as a matter of right.

Front 93

Amendments of Pleadings: What may a party put into this free amendment?

Back 93

Anything that could have been in the original.

Front 94

Amendments of Pleadings: When can the free amendment be made?

Back 94

At any time up to 20 days after D serves answer.

Front 95

Amendments of Pleadings: May D raise PJ objection by means of amendment to the answer?

Back 95

F: D has PJ objection, but D makes no pre-answer motion to dismiss and also fails to include PJ def in answer. H: If D amends answer w/in 20 day period to amend as a matter of right, D may still include by way of amendment PJ defense.

Front 96

Amendments of Pleadings: What's the standard applied by courts on a motion for leave to amend?

Back 96

In general, amendment will be allowed, so long as opponent will suffer no incurable prejudice. To establish prejudice, opponent would have burden of showing that b/c of the delay in amending, opponent has suffered a detrimental change of position, such as W dying, documents destroyed/lost, W disappearing.

Front 97

Third Party (TP) Practice - Procedure: What is impleader?

Back 97

A proc 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. Instead of forcing D to wait until after she's paid a judgment to P, impleader enables D to join the other party as a TP D. In relation to TPD, D = TPP.

Front 98

Third Party (TP) Practice - Procedure: When may D implead TPD?

Back 98

At any time after D serves the answer to complaint.

Front 99

Third Party (TP) Practice - Procedure: What are the steps for joining TPD?

Back 99

1) File a summons and TP complaint. 2) D Serves w/in 120 days of filing a copy of summons and TP complaint on TPD and P. Must be a basis of PJ over TPD. Must also be proper service of process on TPD.

Front 100

Third Party (TP) Practice - Procedure: Once served, what does TPD have to do?

Back 100

TPD must serve a TP answer on D, P, and all other parties who've appeared in the action. TPD's time limit for answering is the same that would apply to an ordinary D: 20/30 days depending on where and how TPD was served w/ process.

Front 101

Third Party (TP) Practice - Procedure: What happens after TPD is joined?

Back 101

P may amend her complaint to assert a claim directly against TPD, making TPD an additional D in P's action. P can make this amend w/o need to obtain judicial permission if she does so w/in 20 days after P was served w/ TP answer. If P waits beyond 20 days, P must make motion to get court's permission for such amendment.

Front 102

Third Party (TP) Practice - Procedure: How should S/L be applied w/ respect to P's newly added claim against TPD?

Back 102

Relation back: For S/L purposes, P's added claim against TPD will be deemed interposed on the date TPD was impleaded (when D filed the impleader papers) PROVIDED P's claim is based on the same transaction or occurrence as D's impleader claim on TPD. Thus, regardless of when P actually asserts his related claim against TPD, the amendment will RELATE BACK FOR S/L PURPOSES TO THE DATE THAT D IMPLEADED TPD.

Front 103

Third Party (TP) Practice - Procedure: Relation back example?

Back 103

Cars driven by A, D, and T collide on 6/1/05. A sues D for injuries on 4/1/08, and D impleads T for contribution on 5/1/08. On 8/1/08, A seeks permission to assert a claim for his injuries against T. A's claim against T will be deemed timely, b/c T was impleaded for contribution w/in 3yrs of S/L on A's claim

Front 104

Third Party (TP) Practice - Indemnification: What is indemnity?

Back 104

Allows one party to shift 100% of the responsibility to another party.

Front 105

Third Party (TP) Practice - Indemnification: What is indemnity by K?

Back 105

Ex: In construction K, sub-K-or may agree to indemnify Gen-K-or for any losses that Gen-K-or has to pay as a result of sub-K-or's inadequate performance in the construction project.

Front 106

Third Party (TP) Practice - Indemnification: What is implied-in-law indemnity?

Back 106

In products liability, a retailer held liable for selling defective product is entitled to indemnity against manufacturer. In vicarious liability situations, Ex: In NY owner of car is vicariously liable for damages caused by negligent driving of any person to whom owner has given permission to drive car. Owner who pays victim is entitled to indemnity from the driver.

Front 107

Third Party (TP) Practice - Contribution: What is it?

Back 107

Contribution involves sharing of the loss - apportionment - among multiple tortfeasors who are all actual participants in the tort. Purpose is to mitigate harshness of the law of joint and several tort liability.

Front 108

Third Party (TP) Practice - Contribution: What is the MS and general NY rule of joint and several liability?

Back 108

Each TF is liable to P for full amount of P's damage, regardless of each individual TF's % of fault. EX: If A, B, and C smash into P, and P sues all three, if a jury finds Ds equally at fault and awards a judgment of 100k, P could compel one D to pay entire amt.

Front 109

Third Party (TP) Practice - Contribution: What are the mechanics of a judgment for joint/several liability?

Back 109

In the previous example, P is entitled to collect only a max of 100k, but he may seek to collect it from any one of them. The D that P seeks to collect from has the right of contribution which enables that D to seek partial reimbursement from other TFs.

Front 110

Third Party (TP) Practice - Contribution: Different outcome if D liability based on intentional tortious conduct?

Back 110

DISTINCTION: If the liability of Ds are based on intentional tortious conduct, in MS, contribution is not available when liability is based on intentional wrongdoing. BUT NY allows contribution in all cases, including intentional torts. But, unless the trigger for the distinction is given, MS = NY.

Front 111

Third Party (TP) Practice - Contribution: What ways to assert claims for contribution (also applies to indemnity)?

Back 111

1) If P originally joined TFs as co-Ds, they can assert cross-claims against each other. 2) If P omits a TF, a D can implead the outsider as a TPD. 3) TF may sue TPD in a separate action. NOTE: If D1 chooses this option, the findings of fact and % of fault in the action against D1 are not binding on D2 in D1's action for contribution against D2. Res J and Collateral E can't be used against the other TF's who weren't joined in action against D1. D1 will have to prove case all over again against D2. Strong incentive for D1 to cross-claim/implead D2 in 1st action.

Front 112

Third Party (TP) Practice - Contribution: What is the equal shares formula of contribution? (minority view )

Back 112

Minority view - a MS issue. The contribution shares are always equal in amount, individual % of fault is irrelevant in ES juris. If ES juris, will tell you b/c it's minority. Unless MS Q says ES, use NY rule which is also MS majority rule.

Front 113

Third Party (TP) Practice - Contribution: How are comparative degrees of fault computed?

Back 113

MS and NY formula: The amount of contribution to which a TF is entitled is the excess actually paid by him over and above his equitable share of the judgment. EX: In a P's action against 3 TFs, where % of fault are assigned: A, 45%, B, 35%, C, 20%, if A pays the 100k judgment, and seeks contribution in a juris that uses a comparative degrees of fault formula (NY and MS maj), R would be entilted to 35k in contribution from B, and 20% from C. Each TF liable for cont. in accordance w/ each TF's individual fault.

Front 114

Third Party (TP) Practice - Contribution: What if one of the of the TFs (B) is insolvent? Can A require C to pay not only C's share, but also B's share?

Back 114

No. C is protected: A party from whom contribution is sought cannot be compelled to pay more than his own equitable share.

Front 115

Third Party (TP) Practice - Contribution: What if both A and B are insolvent? Can P then require C to pay the full amount of the judgment?

Back 115

Yes. C is not protected against full 100% liability to P. The contribution rules don't change P's right under law of joint/several liability. P can still compel 100% from either A, B, or C. Contribution rules only affect reimbursement rights amongst the Ds.

Front 116

Third Party (TP) Practice - Contribution: What is the substantive law rule for contribution?

Back 116

General rule: A right to contribution exists whenever TPD breached a duty in tort which contributed to or aggravated the damages for which D may be held liable to P. Thus, TPD may be held liable for contribution even if TPD has no direct liability to P. Fire sprinkler company hypo.

Front 117

Third Party (TP) Practice - Contribution: Exception to the rule for contribution?

Back 117

Woker's compensation cases (to minimize cont and indemnity liability of Ers) If Ee injured on job, can't sue Er, regardless of fault on Er's part. But, Ee can sue 3rd person who is partially at fault for accident (manufacturer of prod that Ee was using at work when injured). In NY only, 3rd person is barred from seeking contribution or indemnity from P's Er UNLESS P sustained grave injury (death, loss of limb, multiple fingers/toes, paralyzed, severe face disfig, total deaf/blind, brain damage w/ total disability) Ct of App construes grave injury categories strictly - blind in one eye not grave. MS - TP NEVER has a right to contribution from P's Er.

Front 118

Third Party (TP) Practice - Contribution: Cases involving multiple TFs

Back 118

Under the law of successive tort liability, D liable to P for all injuries that proximately flow from the accident, including subsequent medical malpractice. But if medmal aggravates injuries for which D can be held liable, there is a substantive-law basis for a contribution claim by D against medmal MD. NOTE: S/L for contribution is 6yrs running from date of payment of judgment for which a D seeks contribution. So even if D were to implead medmal MD for contrib after the expiration of S/L that P might have had against medmal MD, so long as the judgment has not yet been paid, the S/L for contribution will not have begun, and when it does, D has 6yrs from date of his payment of the judgment.

Front 119

Third Party (TP) Practice - Contribution: Settlements in cases involving multiple TFs

Back 119

P sues A and B, and A and B then cross-claim against each other for contribution. Before trial P settles with A for 30k. P's pre-trial release of one TF in partial satisfaction of claim does not discharge P's claim against other TFs.

Front 120

Third Party (TP) Practice - Contribution: What if after P settles with A for 30k, P's case against B goes to trial. Jury finds in favor of P for 100k, assigning fault of 10% to A and 90% to B. What is the proper judgment to be entered by P against B?

Back 120

Law prohibits excess recovery. Since P has already received a portion of compensation for his loss as a result of settling with A, any judgment against a non-settling TF (B) will have to be reduced to take the settlement into account.

Front 121

Third Party (TP) Practice - Contribution: What is the reduction formula for a judgment for P against a non-settling TF if there is an excess recovery?

Back 121

Any judgment for P against a non-settling TF must be reduced by EITHER: (1) the amount of the settlement, OR (2) the settling TF's equitable share of the fault, whichever is LARGER.

Front 122

Third Party (TP) Practice - Contribution: Application of the rule to P's judgment against B

Back 122

(1) applies. Since A's 30k settlement was larger than the equitable share of his fault (10%), the 100k jury verdict must be reduced by A's 30k settlement. the maximum judgment that can be entered against B is 70k, even though she was found to be 90% liable (otherwise, P would collect A's 30k plus B's 90k = 120k, 20k excess judgment for P).

Front 123

Third Party (TP) Practice - Contribution: What if A was found to have been 40% at fault, and B 60%?

Back 123

(2) applies. Now, the settling TF's equitable share of fault (40%) is larger than what he paid in settlement (30k or 30% fault). Even though A was 40% liable, he settled for what amounts to 30%. So P's judgment against B must be reduced by 40%. The most P can get from B is 60k, since she was 60% liable. So P winds up with 90k.

Front 124

Third Party (TP) Practice - Contribution: What is the effect of settlement on contribution claims? In the situation where A settled for 30k but was found to be only 10% at fault, could A seek contribution from B?

Back 124

No. A pre-trial settlement extinguishes contribution claim by and against settling settling party.

Front 125

Third Party (TP) Practice - Contribution: What is the effect of settlement on indemnity claims? If car A was driving was owned by D, and P sued D alone, asserting D's vicarious liability for A's driving. If D settles w/ P for 60k, would a claim by D agains A for 60k reimbursement be barred.

Back 125

No. Settlement doesn't extinguish claims for indemnity by or against a settling TF. D's claim against A is based on indemnity - his liability is totally vicarious.

Front 126

Third Party (TP) Practice - CPLR Article 16: To what extent does CPLR Art. 16 modify the rule of joint/several tort liability in NY?

Back 126

NY ONLY RULE: Subject to certain exclusions, in a personal injury claim: A joint TF whose fault is found to be 50% or less cannot be required to pay P more than his own equitable share of P's non-economic damages. (But any D found liable for 51%+ of total liability is jointly and severally liable for the entire judgment.)
NOTES:
To the extent Art. 16 applies, it reduces P's rights against D under the trad law of joint/several liability.
To the extent a particular D is liable to P only for his own %age of fault, his need for contribution from other TFs is eliminated.
Article 16 applies only to personal injury, not property damage, which is governed by the traditional law of joint/several liability.
Article 16 does not apply to economic damages, even if they come as a result of personal injury - tradtional law of joint/several liability controls.

Front 127

Third Party (TP) Practice - CPLR Article 16: What TFs are excluded from Article 16?

Back 127

1)TFs who acted w/ intent or reckless disregard for the safety of others. In a case involving multiple TFs, where some of the TFs have acted intentionally and some have acted negligently, only the intentional TFs are subject to full joint and several liability.
2)TFs who released a hazardous substance into the environment.
3) Drivers and owners of motor vehicles other than police and fire vehicles.

Front 128

Motion Procedure: What's a motion?

Back 128

An application for an order of the court (a request for some type of preliminary or incidental relief. (P serves a motion to obtain an order requiring D to comply w/ a discovery request.

Front 129

Motion Procedure - Motions: What's a motion on notice?

Back 129

Gives adversary an opportunity to be heard in opposition.
Papers served -
1) Notice of motion - a paper advising opponent of the natur of the motion, specifies the return date.
2) Supporting affidavits - written statements under oath showing why motion should be granted.

Front 130

Motion Procedure - Motions: When is the motion made?

Back 130

Motion made when motion papers are served on the other party. If served by mail, motion made when papers dropped into mailbox.

Front 131

Motion Procedure - Motions: what is the return date, A/K/A the hearing date of the motion?

Back 131

The day upon which the mtion papers are presented to the court.

Front 132

Motion Procedure - Motions: How must advance notice must be given to the opponent?

Back 132

The moving party must serve the motion papers on the opponent at least 8 days before the return date.

Front 133

Motion Procedure - Motions: What is the deadline for all motion papers?

Back 133

All motion papers, those of the moving party as well as those of the opponent, must be filed w/ the court no later than the return date. The court begins the decision-making process on the return date and then issues an order either granting or denying the motion.

Front 134

Motion Procedure - Motions: What is an order to show cause?

Back 134

It's an alternative way to make a motion on notice. The order to show cause is a preliminary order, signed ex parte by a judge, directing the adversary to 'show cause,' on a date specified by the judge, why the motion should not be granted. The judge, rather than the party, is giving the notice of motion.

Front 135

Motion Procedure - Motions: What are 3 reasons for moving by order to show cause rather than the ordinary notice of motion?

Back 135

1) It is a means of accelarating the return date where exigent circumstances make the usual 8 day advance notice too long to wait for judicial assistance.
In signing the order to show cause, the judge can specify a return date that is sooner than the 8 day minimum that would otherwise apply.
2) Judge can grant immediate stay of the proceedings or a TRO.
3) The statute which governs the particular motion may require it.

Front 136

Motion Procedure - Motions: What's the procedure of order to show cause?

Back 136

The moving party drafts the order to show cause and submits it directly to a judge, along w/ supporting affidavits for the underlying motion. Judge will set the return date in the order and will specify the method of service on the adversary (usually personal delivery). "Let D show cause on May 5, 2008, why an order shouldn't be granted requiring D to produce documents x, y, and z." After the order to show cause is signed, the order and the underlying motion papers are then served on the opponent. The opponent may then submit opposition papers on the return date.

Front 137

Motion Procedure - Motions: What is the deciding order?

Back 137

After the return date of a motion on notice, the court's decision must be embodied in a written order signed by the court. The prevailing party (whether it's the moving party or the opponent) serves a copy of the order on the lossing party.

Front 138

Motion Procedure - Motions: What are 2 effects of service of the copy of the order?

Back 138

1) Service is necessary to give effect to the order.
2) Service starts the running of a 30 day time limit to appeal from the order.

Front 139

Motion Procedure - Motions: What is the NY rule on appeals of order from motion on notice?

Back 139

NY allows an immediate appeal from the Supreme Court to the Appellate Division as a matter of right w/in 30 days of service of any order determining a motion on notice. NY allows interlocutory appeals. The losing party is not required to take an appeal, she can wait and take an appeal on the final judgment. If not w/in 30 days, would have to wait and appeal on final judgment. (Majority rule is final judgment) Bar likes this - it's so unusual.

Front 140

Motion Procedure - Motions: What is an ex parte motion?

Back 140

It's a motion in which no advance notice is given to the adversary, i.e., w/o giving any opportunity to be heard in opposition. The moving party goes straight to the court with the motion papers and requests an order granting the relief sought.

Front 141

Motion Procedure - Motions: When may an EP motion be made?

Back 141

An EP motion can be made only w/ specific statutory authorization, which is rare. 2 Examples: P can obtain an order for EP service of process, P seeks extenstion of time to serve process.

Front 142

IfMotion Procedure - Motions: If the opponent is aggrieved by the EP order, what is her remedy? Can she appeal the EP order?

Back 142

No. No appeal can be taken from an EP order. Remedy: Make a motion on notice to vacate the EP order. If motion to vacate denied, aggrieved party can appeal from denial (interlocutory to App Div).

Front 143

Motion for SJ: What is the purpose of this motion?

Back 143

To enable a party to show, before trial, that even thought the pleading may be sufficient on their face, there is no genuine issue of material fact requiring a trial. ***The moving party is contending that reasonable persons cannot differ, and that she is therefore entitled to judgment as a matter of law.*** QTIP - remember to discuss the elements of the underlying COA (as with Failure to State a Claim)

Front 144

Motion for SJ: May either party move for SJ immediately after serving process?

Back 144

No. Neither party may move for SJ at this point. A motion for SJ cannot be made until after D has served his answer.

Front 145

Motion for SJ: Which party can move for SJ?

Back 145

After servie of the answer, any party - P or D - can move for SJ w/ respect to any claim or defense asserted in the pleadings.

Front 146

Motion for SJ: What is the outside time limit for making SJ motion?

Back 146

120 days from the filing of the note of issue (placing of case on trial calendar) unless the moving party shows good cause, i.e., good excuse for delay. (A strong showing of merit does not qualify as good cause for a delay.)

Front 147

Motion for SJ: On what grounds can a party move for SJ?

Back 147

Once an answer has been served, either party can move for SJ on any claim or defense in pleadings.

Front 148

Motion for SJ: How does the moving party satisfy the burden of showing that there are no material issus of fact requiring a trial?

Back 148

Must submit evidence in the form of affidavits, relevant documents, or discovery materials. Affidavits must be by persons (parties or Ws w/ same type of evidence) who have actual personal knowledge of facts. All evidence must demonstrate moving party is entitled to JMOL.

Front 149

Motion for SJ: How does the opponent defeat a motion for SJ?

Back 149

Come fother w/ evidence that shows that there is a genuine issue. Opponent's burden - show that a triable issue of fact does exist. Cannot rely on pleadings - they are not evidence, just allegations.

Front 150

Motion for SJ: What if the opponent establishes w/ an affidavit that he is not yet able, through no fault of his own, to produce opposing evidence?

Back 150

The court can either deny the motion or grant a continuance (adjournment) to permit additional evidence to be obtained.

Front 151

Motion for SJ: How does a motion for SJ "search the record"?

Back 151

It means that on a motion for SJ, the court reviews all of the evidence in the record, regardless of which side submitted it. If the court concludes that the opponent, rather than the moving party, is entitled to SJ on an issue addressed by the parties, the court may grant summary judgment to the opponent even if the opponent did not make a cross-motion for such relief. Ex: If D moves for SJ attempting to show absence of neg, and P's evidence in opposition, which merely seeks to show an issue of fact as to neg, is found by the court to be so strong as to justify SJ for P, court will grant SJ for P.

Front 152

Motion for SJ: What if the motion for SJ denied?

Back 152

It means that a triable issue of fact exists. Case will resume its normal progression to trial. If the only factual issue that remains is amount of damages, court can grant SJ on issue of liability and order immediate trial on issue of damages.

Front 153

Motion for SJ - pre-answer motions for SJ: In what 2 situations is SJ possible prior to service of answer?

Back 153

1) Conversion of motion to dismiss - SJCMD
2) Motion for SJ in lieu of a complaint (accelerated SJ) - SJLC

Front 154

Motion for SJ: How does SJCMD work?

Back 154

D's pre-answer motion to dismiss for failure to state a COA can be CONVERTED BY THE COURT into SJ, thereby allowing for decision on the basis of evidence rather than on the face of the pleadings. prequisites:
i) At least 1 party has submitted factual affidavits in connection w/ motion to dismiss,
ii) THe court must give notice to parties of the conversion to SJ - **which gives opportunity for to submit additional evidence**

Front 155

Motion for SJ: In what 2 types of actions can P move for SJLC?

Back 155

P may, if she wishes, move for SJ at the same time she serves process by accompanying the summons w/ motion papers for SJ in 2 types of actions:
i) Action on an instrument for payment of $ only. An instrument must contain an unconditional promise by D to pay money. Promissory note. Can't use this procedure for an ordinary breach of a written K.
ii) An action on an out of state judgment. NY P wants to enforce FL judgment against D. (rationale for both - they are prima facie valid and easy to prove)

Front 156

Motion for SJ: What's the procedure for SJLC?

Back 156

Procedure: After filing process with the court P must serve on D, with the summons, a notice of motion for SJ w/ supporting documentation and affidavits.

Front 157

Motion for SJ: What is the minimum advance notice for the return date on a motion for SJLC?

Back 157

Usual rule is 8 days. But here P commencing action, so return date for P's motion for SJ can be sooner than due date for D's response for service of process:
- No sooner than 20 days if D served by personal delivery in NY.
- 30 days after service is complete in all other circumstances.

Front 158

Trial Procedures and Res Judicata: When discovery is complete and case ready for trial, how is matter placed on court's calendar?

Back 158

Either party may file a note of issue. It's a doc that tells court that case is ready for trial. Filer must serve copies to other parties.

Front 159

Trial Procedures and Res Judicata: How does a party entitled to jury obtain it?

Back 159

1. Party who files note of issue: Must make demand for jury trial in the note of issue. If no jury demand made, that party waives right to jury.
2. Other parties: Must file own separate demand for jury.

Front 160

Trial Procedures and Res Judicata: When does a party in a civil action have a RIGHT TO TRIAL BY JURY?

Back 160

1. In an action seeking solely $ damages,
2. Replevin - action to recover a chattel,
3. A claim to real property,
4. Annulment of a marriage,
5. In a divorce action, entitled to a jury on the issue of the ground for the divorce.

Front 161

Trial Procedures and Res Judicata: Must a jury in a civil trial be unanimous?

Back 161

No. In civil trial, 6 jurors, need 5/6.

Front 162

Trial Procedures and Res Judicata: What is the purpose of RJ?

Back 162

Claim preclusion: Avoid and prevent re-litigation of the same claim.

Front 163

Trial Procedures and Res Judicata: What is the NY approach to claim preclusion?

Back 163

Transactional approach. When claim against D brought to final judgment on merits, all other claims against D barred if they arise out of same transaction even if other claims are based on a different theory or seek a different remedy. Ex: If the original action a breach of K action, a subsequent QM claim is barred.

Front 164

Trial Procedures and Res Judicata: IS there an exception to the transactional approach?

Back 164

Yes. Policy exception for matrimonial disputes. Transactional approach not applied in matrimonial action based on domestic abuse. NY allows 2nd action arising out of same transaction. Resolve divorce quickly, then sue.

Front 165

Trial Procedures and Res Judicata: Collateral Estoppel (Issue Preclusion) What is it?

Back 165

Issue preclusion avoids (and prevents) the need for re-litigation of specific fact issues that were decided in a prior proceeding on a 3 part showing:
1. The issue in former and current proceeding is identical.
2. The issue was actually litigated and decided in the former proceeding,
3. Party against whom IP is asserted had a full and fair opportunity to litigate the issue in the former proceeding.

Front 166

Special Proceedings: What is it?

Back 166

A SP is a speedy, streamlined procedure akin to motion practice, the prupose of which is to obtain a judgment as a final resolution of a dispute. Probate of will, election disputes, summary proceeding by L for eviction, dissolution of corp., habeas corpus, enforcement of arbitration agreement, CPLR Art 78 proceeding.

Front 167

Special Proceedings: What is required to pursue a remedy by means of SP

Back 167

Requires specific statutory authorization.

Front 168

Special Proceedings: What's the procedure for SP?

Back 168

1. To commence SP, PETITIONER files a petition w/ court. Analagous to complaint. Filing itself is the commencement of SP.
2. Petition and notice of petition must be served on the RESPONDENT using the same methods used to serve process. Jurisdiction must be acquired over respondent.
3. Notice of petition advises the respondent to serve an answer and to appear on the specified return date for the hearing. Return date for SP can be no sooner than 8 days from service of process. If petitioner needs an accelerated return date, P can commence SP by order to show cause.
4. Affidavits usually served in support of, and opposition to, the petition. All pleadings and affidavits are submitted to the court on the return date for decision by court. Dispute is decided in the same manner as SJ.

Front 169

Arbitration: What is it?

Back 169

Private procedure, based on K, for the binding resolution of disputes. 2 parties may agree to submit any existing or future dispute to arbitration, e.g., arbitration clauses are common in commercial Ks.

Front 170

Arbitration: Are arbs bound by substantive law or rules of evidence?

Back 170

No. They may do justice as they see fit, and the scope of judicial review is extremely narrow.

Front 171

Arbitration: What is judicial gatekeeping?

Back 171

When 1 party to an arb agreement resists arbitration in an effort to resolve the case by a conventional judicial proceeding, courts may be called upon to decide certain threshold issues as to whether the arbitration should proceed. If the threshold issues are resolved in favor of the particular arbitration, the court's involvement ends, and the merits of the dispute are for the arbitrator to decide. Public policy of NY favors arbitration.

Front 172

Arbitration: What are the five threshold issues that can be presented to the court in an effort to avoid arbitration?

Back 172

1. Did the parties agree to arbitrate? 2 requirements to be enforced, K law Qs > 1. Agreement to arbitrate must be in writing. 2. Agreement to arb must be clear, explicit, and unequivocal.
2. Is the dispute w/in the scope of the arbitration clause? Ex of broad clause: "All disputes or claims arising out of or in connection with this K shall be resolved by arbitration." If clause broad, arb will decide everything.
3. Is the arb clause valid? Arb clause invalid if clause was unduced by fraud, duress, or coercion, or if it involves a matter contrary to public policy.
4. Is there an express condition precedent to arb, and has it been complied with? Ex: Construction industry - arb clause, but dispute must first go to architect b/f arb.
5. S/L - Under NY arb., courts decide S/L issue.

Front 173

Arbitration: Arb example

Back 173

Doctrine of severability. Validity of an arb clause is determined separately from the validity of the overall K in which arb clause appears. Thus, a contractual duty to arbitrate is enforceable separate and apart from the K. If a party was arguing that the K is invalid, would have to argue this in front of arb.

Front 174

Arbitration: Procedure - How to bring threshold issues to court?

Back 174

1. In pending action - if issue arises in pending action D should make motion to stay action and compel arbitration, and in the context of the pending action, court will decide claim.
2. If proponent of arb serves a notice of intention to arbitrate - If opponent wants to avoid arb would have to commence SP for stay of arb then opponent can raise 5 issues to get the stay of arbitration.

Front 175

Arbitration: Time limit to commence special proceeding to stay arbitration.

Back 175

Within 20 days of receipt of notice of intent to arbitrate, otherwise opponent waives threshold obligation.

Front 176

Arbitration: Judicial review of arbitration awards?

Back 176

Only 3 grounds provide for a basis of vacating an arbitration award:
1. Corruption, fraud, or misconduct in the arbitration proceeding.
2. Bias of an arbitrator who was chosen to be neutral.
3. If arbitrator has exceeded his powers (usually a loser, arbitrator has unlimited powers unless parties agreed otherwise). Under NY law, arbitrator can't award punitive damages.

Front 177

Article 78 Proceedings: What are they

Back 177

Article 78 of CPLR authorizes a special proceeding for judicial review of action (or inaction) by gov't or quasi-gov't officer or bodies of any kind.

Front 178

Article 78 Proceedings: On what does the right to relief in an Article 78 proceeding depend?

Back 178

Depends upon a showing that the petitioner's cases would have been subject to review under one of the 4 common law 'prerogative writs.'

Front 179

Article 78 Proceedings: What are the 4 grounds for an Article 78 Proceeding?

Back 179

1. Mandamus to Compel.
2. Prohibition.
3. Certiorari.
4. Mandamus to review.

Front 180

Article 78 Proceedings: In what court may an Art 78 proceeding by brought?

Back 180

Only in Supreme Court.

Front 181

Article 78 Proceedings: What is the S/L to bring an Article 78 proceeding?

Back 181

4 months.

Front 182

Article 78 Proceedings: What type of relief may be sought in an Article 78 proceeding?

Back 182

Declaratory (annulment) or injunctive (reinstatement) relief.

Front 183

Article 78 Proceedings: When are damages recoverable in an Article 78 proceeding?

Back 183

If incidental to main relief being sought.