New York Practice 2011

Front 1

the court in which an action is commenced

Back 1

The court of original subject matter jurisiction

Front 2

What type of actions can a court with original subject matter jurisdiction here

Back 2

any!

Front 3

which court has general subject matter jurisdiction in NY

Back 3

Supreme Court is the only one. there is one in every NY county

Front 4

what is the monetary jurisdition of the supreme court

Back 4

unlimited

Front 5

Which couts have full equity jurisdiction?

Back 5

Supreme court

Front 6

supreme court subject matter jurisdiction residency requirement

Back 6

3. For purposes of SMJ, it is immaterial whether neither party in a case is a NY resident; the Supreme Court has general power and can hear any type of action

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Forum Non-convience

Back 7

Despite that the non-residency of parties does not deprive a court of SMJ, the court has discretion, upon motion, to dismiss on grounds of forum non conveniens when the action lacks any substantial nexus to NY. Such motion must be made by Δ.

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Exceptions to supreme courts general jurisdiction

Back 8

i. Cases as to which federal law confers exclusive jurisdiction on federal courts
ii. Claims for money damages in tort or contract against the State of New York; such claims may be brought in the New York Court of Claims only

If Π injured by a state trooper, must sue state trooper personally in Supreme Court, and sue the state in the Court of Claims

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Actions the Supreme court has exclusive subject matter jurisdiction over

Back 9

1. Matrimonial action
2.CPLR Article 78 proceedings
3. Declaratory Judgement Action

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limited monetary jurisdiction of the county courts is

Back 10

$25,000

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limited monetary jurisdiction of the civil courts is

Back 11

$3,000

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New york hierarchy of courts

Back 12

1. Court of appeals - highest
2.Appellate Division 2nd
3.Supreme Court - Lowest

Front 13

Statue of limitations is what type of defense

Back 13

Affirmative, based on passage of time

Front 14

When does a S/L begin running

Back 14

when a cause of action accrues on the date of breach

6 year SOL

Front 15

Date of Discovery?

Back 15

. New York does not use the date of discovery of injury/breach; the SOL runs from when the action accrues under law, even if Π is unaware of the injury/breach.

Front 16

An Infant injured in utero case S/L

Back 16

Under the substantive law, when an infant is injured in utero, the child has no cause of action unless the child is born alive, in which case, the S/L begins to run from the date of birth.

Front 17

How do you satisfy the S/L

Back 17

, the action must be commenced no later than the last day of the prescribed period of limitations.

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Commencement

Back 18

consists of filing process (process = summons and complaint or summons with notice). The filing must be made with the clerk of the court on or before the last day of S/L.

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How to compute the S/L

Back 19

To compute S/L (and any other CPLR time period), exclude the day upon which the triggering event occurs and begin counting the next day (anniversary date).

Front 20

If exam says timely filed

Back 20

DONT ADDRESS SOL!

Front 21

Who does Med Mel S/L apply to

Back 21

: The medical malpractice S/L applies to doctors, dentists, podiatrists, nurses, and hospitals (on respondeat superior theories). The period is 2½ years, and the date of accrual (S/L runs from) the date of the malpractice.
1. Note: Discovery of malpractice generally irrelevant
2. Note: If claim is based on theory that a hospital was independently negligent in hiring a doctor, use three year S/L, not 2 ½ year

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Exceptions to the Med Mal S/L

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1. The Continuous Treatment Rule. If a doctor continues to treat person after an operation for the exact same medical condition that gave rise to the malpractice, Π gets 2 ½ years from the end of the continuous treatment. Note that the condition must relate!


2. The Foreign Object Rule. If a doctor was responsible for introducing a foreign object into Π’s body and leaving it behind, Π gets the longer of either
a. 2 ½ years from the date of operation; or
b. One year from that date Π discovers the presence of the object, or the date Π should have discovered the object with reasonable diligence.

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Other professionals for S/L purposed

Back 23

Members of a learned profession e.g., architects, engineers, accountants, attorneys; NOT insurance brokers, securities analysts, plumbers, etc.

Front 24

S/L for financial Loss

Back 24

Client’s cause of action (whether based on contract or tort) for malpractice against a non-medical professional for financial loss as an exclusive S/L of 3 years that runs from the termination of the particular services in which the malpractice occurred.

Front 25

Architect S/L

Back 25

3 Years from COMPLETION OF BUILDING NOT INJURY

Front 26

S/L for accountant/Attorny and when does it begin?

Back 26

3 years. S/L runs from delivery of work product.
Note: Non-medical professions subject to the doctrine of “continuous representation,” which is similar to the continuous treatment doctrine applied to doctors

Front 27

Personal Injury/Arcitect S/L

Back 27

When personal injury (not financial loss) is at issue, an injured Π can sue tortfeasor for up to 3 years from date of injury, regardless of date of completion (e.g., building completed in 1990, collapses in 2010; Π can sue until 2013).

Front 28

Proceedure for personal injury action against Architects more than 10 years after building completed

Back 28

If personal injury suit brought
a. Π must serve a notice of claim on the architect or engineer at least 90 days before suit;
b. Π may obtain pre-action discovery from the potential Δ during the 90 day waiting period; and
c. After suit is commenced, if Δ moves for summary judgment, the burden will be on Π to make an immediate evidentiary showing that there is a “substantial basis” to believe that Δ’s negligence was the proximate cause of the injuries.

Front 29

S/L against Municipal Subdivisions for PERSONAL INJURY/PROPERTY DAMAGE.(county, city, town, school district, municipal hospital)

Back 29

the statute of limitations is 1 year plus 90 days from the date of the accident

Front 30

Separate notice claim for Personal Injury//property COA's against municipal subdivisions

Back 30

. As a condition precedent to a tort action against a municipal defendant, Π must serve a notice of claim on the potential municipal defendant no later than 90 days from the date of the accident.
1. Note: Service of the notice of claim is not commencement of the action; simply gives the municipal defendant advance warning, allows it to investigate or consider settling.
2. Failure to comply with notice of claim prerequisite → municipal defendant is entitled to have action dismissed on ground of failure to state a cause of action.
3. After Service of Notice of Claim. Π must also commence an action, and complaint must plead compliance with the notice of claim requirement; if not → failure to state a cause of action.
4. If 90 day notice of claim requirement has expire but S/L has not. Π may make a motion to serve a late notice of claim; court has discretion to grant motion if municipal defendant will not be prejudiced.

Front 31

Products liability S/L (Negligence, Strict Liability, Breach of Warranty)

Back 31

i. When a defective product causes personal injuries, that Π has three possible causes of action which, as a matter of pleading, can all be asserted in the same complaint.
1. Negligence. Has a 3 year S/L running from the date of injury; applies against all Δ’s in chain of distribution.
2. Strict Products Liability. Has a 3 year S/L running from the date of injury; applies against all Δ’s in chain of distribution.
3. Breach of Warranty. Governed by the UCC, which has a 4 year S/L for Sales; 4 year period begins to run when the particular Δ against whom the warranty claim is asserted made its delivery of the product.

Front 32

Products Liability Ex. Man sold scooter to Whole in 2003, Whole sold it to Retailer in 2004, Retailer sold it to Π in 2005, Π injured in 2008.

When do actions expire?

Back 32

1. Negligence/Strict Liability Claims: will expire in 2011, three years from date of injury. (Applies to all Δ’s).
2. Breach of Warranty Claims:
a. Man: expired in 2007
b. Whole: expired in 2008
c. Retailer: expires in 2009.

Front 33

Indemnity/contribution S/L

Back 33

Have a S/L of 6 years running from the date of actual payment of the judgment for which indemnity or contribution is sought.
1. Ex: Π injured by product in 2000. Π gets a judgment against Retailer that is paid in full on May 1, 2008. Retailer’s claim for indemnity or contribution against Wholesaler and/or Manufacturer would be timely through May 1, 2014.

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Discovery Rule for Toxic substance S/L

Back 34

1. “Toxic Substance” – any inherently harmful toxin that has latent or slow-developing effects (e.g., DES, asbestos, insecticides, HIV)


S/L measured in a toxic substance-exposure case by using a 3 year S/L that begins to run on the earlier of
a. Discovery of the injury; or
b. The date the injury should have been discovered with reasonable diligence.

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If D isnt in NY when COA accrues

Back 35

S/L does not begin to run until Δ comes to NY. (think discovery, or continuous service S/L)

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2. If Δ Is In New York When Cause of Action Accrues, but Δ Thereafter Leaves NY and is Continuously Absent for At Least 3 Months

Back 36

THe Toll aplies to the whole period

BIG EXCEPTION: The toll for absence is not available if the Π has a basis for Personal Jurisdiction over Δ such that process could be validly served over Δ

Front 37

Infants/Insane people may sue through

Back 37

competnet adult, or the y may get S/L tolled

Front 38

Tolled Statue for Infants and insane

Back 38

If Π is an infant or insane at the time the cause of action accrues, the S/L is tolled until the disability ends

Front 39

Definition of insanity for Tolled Statue purposes

Back 39

any mental disorder that causes an overall inability to function in society. A formal judicial proceeding for the appointment of a guardian not required to be insane.

Front 40

after disability (insanity, infancy) ends. how must they sue? Tolled statue of Lim purposes

Back 40

a. If original S/L was 3 years or more: Π gets the longer of
i. 3 years from the end of the disability; or
ii. The time remaining on the statutory period as measured from the date of accrual.

Front 41

Outside limit on tolled COA for infancy/insanity

Back 41

a. When relying on the toll for infancy, a claim for medical malpractice must be commenced no later than 10 years from the date of accrual

Front 42

Wrongful death COA S/L

Back 42

2 years from the time of death, but it must also be shown that decedent possessed a timely cause of action at the time of death.

Front 43

Survival Claim COA S/L

Back 43

if Π dies before the S/L expires, the estate representative gets the time remaining on the S/L or 1 year from the Π’s death to commence a survival action, whichever is longer.
1. Note: Both claims often asserted in one action.

Front 44

Death of potential defendants S/L

Back 44

: If potential Δ dies at any time before the S/L expires, 18 months are always added to the relevant limitations period (regardless of whether Π needs extra time).

Front 45

S/L 6 month grace period

Back 45

If a NY action is timely commenced, but is thereafter dismissed before trial, AND at the time of dismissal the S/L has either expired or has less than 6 months remaining, Π gets 6 months from date of dismissal to re-file the same action and serve process on same Δ.

Front 46

: 4 types of prior dismissals as to which 6 month grace period is not applicable

Back 46

a. If dismissal was on the merits;
b. Voluntary discontinuance by Π;
c. Dismissal was based on Π’s neglect to prosecute consisting of a general pattern of delay; or
d. Dismissal based on a lack of personal jurisdiction

Front 47

Borrowing Statue

Back 47

: If the cause of action arises outside of NY, a choice of law problem is presented if the S/L of the other state is different from that of NY. The “borrowing statute” is intended to prevent forum-shopping by non-resident Π’s seeking a longer S/L in NY


1. If Π was Non-Resident of NY When Out-Of-State Claim Arose
a. NY court will apply S/L of state where claim arose if it is shorter than that of NY.
b. NY will apply its own S/L if the state where the cause of action arose has a longer period than that of NY. [So basically, shortest time wins].
2. If Π was Resident of NY When Out-Of-State Claim Arose
a. NY will always apply NY SOL, regardless of whatever S/L is longer or shorter than the place where the claim arose. [NY Π’s get NY S/L

Front 48

Jurisdiction over the particular case.

Back 48

. In addition to subject matter jurisdiction, three additional jurisdictional elements must be satisfied in order for a court to render a valid judgment


i. Proper commencement of the action
ii. Proper service of the action
iii. Proper basis of jurisdiction over the person or property involved in the action.

Front 49

What is process

Back 49

summons and notice/summons and complaint

Front 50

a. In a Supreme Court action, the clerk of the court is the County or surpeme court clerk?

Back 50

County

Front 51

Trouble serving p in 120 days what can you do?

Back 51

court has discretion, upon Π’s motion, to extend the time, provided that Π
i. Shows good cause (e.g., diligence); or
ii. The interests of justice warrant extension.

Front 52

D wants to challenge untimely service? what must he do?

Back 52

b. If Δ wants to challenge Π’s untimely service of process, Δ must preserve this defense and make a motion upon it. If Δ fails to raise the defense of untimely service, it is waived.

Front 53

steps on game day for proper service of process

Back 53

: Do S/L Analysis, referencing filing of process; then 120 day analysis, to determine whether service of process proper

Front 54

Summons and complaint

Back 54

The summons advises Δ that Π is suing Δ in a particular court. The complaint is Π’s pleading, which specifies the transaction or occurrence that is the subject matter of the action and spells out the essential elements of Π’s cause of action.

Front 55

Summons with Notice

Back 55

When the 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. Notice must consist of
a. A brief statement of the nature of the action;
b. The type of relief being sought; and
c. If Π seeking damages, the amount must be specified, unless a personal injury or wrongful death action, where neither notice nor complaint may specific damages amounts.
i. Think of Notice as an abbreviated complaint.

Front 56

What happends if u file a naked summons (no complaint, or no notice)

Back 56

)? This is a defect in Personal Jurisdiction, which means that the action is subject to dismissal for this alone, provided that Δ timely objects. Same if Π serves a naked complaint/notice.

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Who may serve process?

Back 57

any person who is at least 18 years old provided the person is not a party to the action.

Front 58

Which days of the week may process be served?

Back 58

any day of the week except sunday. ii. If Δ is a Saturday-Sabbath observer and Π knows it, Π may not serve that Δ on Saturday. Innocent service on such a Δ is not a defect.

Front 59

service on Holidays

Back 59

YEs. if not sunday

Front 60

Is defective service grounds for dismissal

Back 60

Yes Sir. GOtta follow satatuory methods precisly

Front 61

Personal delivery service

Back 61

Service by personal delivery is “complete” upon process server’s tender of summons directly to Δ. (Δ’s response time is measured from date that service is complete

Front 62

What if D refuses PErsonal delivery of service?

Back 62

Process can be left in Δ’s immediate vicinity (e.g., at his feet, on his desk, etc).

Front 63

Leave and Mail

Back 63

Process server may deliver process to person of suitable age and discretion at Δ’s actual dwelling place or actual place of business PLUS mail a copy by regular mail to Δ at Δ’s actual place of business of Δ’s last known residence.

Front 64

LEave and Mail against more than 1 D

Back 64

If suit against more than one Δ, each Δ must be served with his own set of process

Front 65

Other Service rules

Back 65

1. The two service steps must be performed within 20 days of eachother, and both steps must take place within 120 days from filing process.
2. Delivery need not occur prior to the mailing.
3. Same location of delivery and mailing not required (e.g., deliver to business, send to home is OK).
4. Certified mail not required; Regular first class mail sufficient.
5. Person of suitable age and discretion need not be an adult; under caselaw, can be teenager, but if under 12, not suitable age and discretion.

Front 66

Affix and mail

Back 66

i. “Affixing” consists of taping, rubber-banding to door
ii. Rule: Process server may affix process to the door of Δ’s actual dwelling place or actual place of business PLUS mail a copy by regular mail to Δ at Δ’s actual place of business or last known residence.
1. In addition, the process server must first exercise due diligence by
a. Making an attempt to serve Δ directly and
b. Leaving process with a person of suitable age and discretion at the home or business place.
c. Due diligence requires several attempts in different days of the week at different times of the day to serve by personal delivery or leave and mail.
2. Note: Affixing and mailing, in either order, must be performed within 20 days, and both must be performed within 120 days of filing process. Mailing need not be at same location as affixing.

Front 67

Whats proof of service?

Back 67

1. Proof of service is an affidavit by the process server describing the details of service (date, time, place, description of person served, etc).

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Whats the purpose of proof of service?

Back 68

it is a necessary step to make service complete. (Recall that Δ’s time to respond runs from date on which service is complete). Service is complete 10 days after proof of service filed.

Front 69

Consequnece of failure to file proof of service?

Back 69

failure to file proof of service NOT a jurisdictional defect; only consequence of Π’s delay in filing proof of service is that it postpones Δ’s time to respond.

Front 70

Does proof of service need to be within 120 days of two service steps?

Back 70

No. Although the two service steps must be completed within 120 days of service, filing proof of service need not be within 120 days.

Front 71

Expediant service

Back 71

: If the foregoing methods of service are not practicable, Π may make an ex parte motion to the court for an order allowing an improvised, expedient method (i.e., some reasonable alternative appropriate in the circumstances, like email, serving a liability insurer, publishing copy of complaint and summons in newspaper, etc).
1. Requires Court Order!

Front 72

Agent for recieving process

Back 72

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

Front 73

Defendant is an Infant how may they be served/ who may recieve process?

Back 73

When Δ is an infant, Δ’s name goes on the summons but process must be served on any of the following adults:
1. A parent
2. A guardian
3. Any person having legal custody
4. If infant married, upon adult spouse with whom infant resides. Hmm.
a. Note: If infant over 14, process must be served on eligible adult AND the infant; 2 sets necessary

Front 74

Service on mentally incapacitated person

Back 74

when Δ is a mentally incapacitated person for whom the court has appointed a guardian, process must be served on the guardian AND the incapacitated person.
1. Note: If Δ is mentally incompetent but there has been no judicial proceeding for the appointment of a guardian, Δ is served in same manner as any other Δ; Court will later appoint a guardian ad litem.

Front 75

service outside NY

Back 75

1. : the same methods that are used to serve Δ within NY are used when Δ is located outside NY.

2.The following persons may serve process in other jurisdictions:
1. Any New York resident who is at least 18
2. Anyone authorized to serve process by the laws where the service is made
3. Any attorney licensed in the jurisdiction where service is made.


HUGE POINT: While out-of-state laws that determine who may serve process are controlling, the out-of-state rules that address methods of service are irrelevant → Use NY Methods!

Front 76

Service of corporation

Back 76

Two traditional methods


a. Personal Delivery to any one of the following corporate representatives:
i. An officer of the corporation;
ii. A director of the corporation (member of the Board);
iii. A designated agent;
iv. A managing agent (i.e., a corporate employee with supervisory responsibility)

Front 77

in which states can a officer of a crop be served?

Back 77

: If there is a basis for jurisdiction (see below) any one of the eligible corporate representatives may be served with process by personal delivery anywhere in the US.

Front 78

Leave and mail service on corporation?

Back 78

Leave-and-mail method not valid process method of service to corporation; personal delivery must be made into hands of corporation (e.g., giving process to Corp. receptionist, who hands it to president, then mailing copy

Front 79

Service on Secretary on state

Back 79

: For a domestic corporation (incorporated in NY) OR a foreign corporation authorized to do business in NY (licensed corporation), server may personally delivery two copies of process to the NY Secretary of State.
1. Secretary will then mail one copy to the address on file
2. Note: Service of process is complete upon delivery of process to Secretary of State, regardless of when Δ corp. receives it.

Front 80

How must process be served on Unlicensed foreign corp.

Back 80

Personally delivery one copy of process to the NY Secretary of State PLUS Π mails one copy to the corporation by certified mail, return receipt requested

Front 81

5. Non-Traditional Method: Service by First-Class Mail PLUS Acknowledgement

Back 81

? Mail process to Δ by first-class mail, enclosing two copies of a statutory acknowledgment form, plus a return envelope, postage prepaid, addressed to sender. Service will be effective only IF Δ signs and returns one of the acknowledgment forms to Π within 30 days after Δ receives the mailed process. Service is complete upon Δ;s posting of the signed form.
i. Note: service here is completely dependent on Δ’s cooperation.
ii. If Δ does not return acknowledgment form? Service by mail is not effective. Π must serve process again using one of the traditional methods. If Δ refuses to sign, he must pay Π’s expenses in making the second service of process.
iii. Note: Service by mail plus acknowledgment may be used regardless of whether Δ is in-state or out-of-state.
iv. Note: Available to all types of Δ’s except infants and mentally incapacitated persons w/ legal guardians (who must be served by traditional methods).

Front 82

Personal Jurisdiction

Back 82

Jurisdiction enables a judgment for money damages to be enforced in full. Some kind of territorial connection is required between a Δ and NY.

Front 83

General Jurisdiction(doesn't matter where claim arose)

Back 83

i. Presence in NY
ii. Doing Business in NY
iii. Domicile in NY

Front 84

b. Specific Jurisdiction (claim must be specific to Δ’s NY activity or within terms of consent clause in contract)

Back 84

i. Long-Arm Jurisdiction
ii. Non-Resident Motorist Statute
iii. Consent

Front 85

2. Personal Delivery to Δ While Δ Physically Present in NY

Back 85

: Physical presence of Δ in state is valid basis of personal jurisdiction (aka Gotchya jurisdiction)(e.g., Δ (NJ) runs over Π in NJ; comes to NY for first time, served by Π. Valid).

Front 86

Doing Business” in NY for personal jurisdiction purposes

Back 86

. Domestic corporations are subject to personal jurisdiction in New York on any claim whatsoever, regardless of where claim arose. Same rule applies to a foreign corporation authorized to do business in NY (licensed corporation). Same rule applies to corporations that are incorporated in NY.

Front 87

Unlicensed Foreign Corporation Diong business in NY. [Bar Exam Favorite]

Back 87

An unlicensed foreign corporation is said to be “present” in NY is it is “doing business” in NY.

Front 88

Whats doin business in NY for a foreign corporation

Back 88

Satisfaction of doing business standard usually only necessary if cause of action arose outside of NY, since if cause of action arose in NY, lcan be made ong-arm jurisdiction will probably be available.

Front 89

Service on someone domiciled in NY

Back 89

A Δ who is a domiciliary of NY at the time the action is commenced can be served with process anywhere in the US. This gives Π a basis of general jurisdiction over Δ

Front 90

Domicile definition

Back 90

: is the one residence at which a person intends to remain indefinitely and is treated by her as the principle home. A person has only one domicile.

Front 91

residence definition

Back 91

: a place where a person lives for a fair amount of time with some degree of permanency; a person can have multiple residences.

Front 92

Idea of Long-Arm jurisdiction

Back 92

allows for out-of-state service conferring personal jurisdiction on the basis of certain acts by Δ that have a sufficient connection with NY, provided Π’s claim arose from those acts performed in NY.

Front 93

5 catagories for long arm jurisdiction

Back 93

1. Plaintiff's claim arose from a transaction of business by D in NY.

2.Plaintiff's case arose from a conract in which D agred to supply good/service in NY

3. arisies from tortious act in NY

4.Act outside NY that causes harm in NY.

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

Front 94

Long arm jurisdiction: Transaction of business

Back 94

Transactions” include substantial negotiations, even for one day, that form basis of a contract; such contract need not be executed in NY.
b. Caveat: Plaintiff’s claim must arise out of the transaction of business in NY.

Front 95

Long arm jurisdiction: A contract for services/goods supplied to NY

Back 95

a. The contract must be economically significant (e.g., agreement to ship sizeable quantity of merchandise or perform on a broadway show).
b. Insufficient: A one-shot. Boilerplate phone call, fax, or mail order from an out-of-state buyer not enough to qualify as a transaction of business in NY

Front 96

Long Arm jurisdiction: P's claim arises fromtortious conduct in NY

Back 96

a. Examples: driving negligently on NY roadway, making fraudulent statements during NY sales negotiation, converting goods/assaulting while in NY. NOT defamation;

Front 97

Long arm jurisdiction: Plaintiff’s Claim Arises from Δ’s Tortious Act Outside NY Which Causes Injury in NY

Back 97

Need extra link to D and NY. they could be.

a. Δ regularly solicits business or engages in any other persistent course of conduct in NY; or
b. Δ derives substantial revenue from goods used or consumed, or services rendered, in NY; or
c. Δ expects or should reasonably expect the act to have consequences in NY and derives substantial revenue from interstate or international commerce.
d. Foreseeability Requirement: In addition, the Δ’s interstate commerce must purposefully include NY (due process requirement).

Front 98

Long arm jurisdiction: Plaintiffs Claim Arises from Δ’s Ownership, Use, or Possession of Real Property Located in NY.

Back 98

Δ of CT owns building in NYC, agrees to sell it to Π but backs out. Π can sue Δ in NY for damages or specific performance

Front 99

Long arm state additional notes

Back 99

a. It covers all types of Δ’s (e.g., corporations, individuals, partnerships)
b. The acts giving rise to jurisdiction can be performed by Δ herself or by her agent/employee. The agents acts in NY will also subject the agent herself to jurisdiction.
c. Even if Δ dies, decedent’s representative can be served outside NY.
d. Serving Process: Δ must use the same methods of service on Δ outside of NY as would be used inside NY.

Front 100

ANALYSIS FOR PERSONAL JURISDICTION ESSAY QUESTION

Back 100

1. First, discuss whether plaintiff can establish jurisdiction under any non-long-arm categories (presence, domicile, doing business)
2. Second, discuss whether facts of Π’s case fall within one or more of the five long-arm categories.
3. Third, briefly discuss whether the particular assertion of jurisdiction would satisfy constitutional due process:
a. Test: Due process will be satisfied if claim arises out of conduct of Δ that is so purposefully directed towards NY that the Δ should reasonably anticipate being haled into a NY court. [Memorize!]

Front 101

Non-resident motorist statue

Back 101

This statute confers personal jurisdiction over an accident claim arising from a nondomicilliary motorist’s ownership or use of an auto on a NY roadway. Often overlaps with long-arm category of “tortuous act in NY) but has 2 unique features:
1. Service of Process: Π serves process on Δ by personally serving one copy on NY secretary of State PLUS mailing second copy to Δ by certified mail to Δ’s out-of-state residence.
2. Applies to Vehicle Owner who Gave Permission to Drive in NY. (E.g., Alaskan mother loans car to son to check out NYC; he causes injury to Π; Π can get jurisdiction over mother, even though she did not commit tortuous act herself/do so by her agent).

Front 102

Consent for personal jurisdiction

Back 102

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

Front 103

Divorce action personal jurisdiction

Back 103

1. Divorce Action Rule: Having a valid basis of personal jurisdiction over a Δ is not necessary in a matrimonial action. To obtain a divorce, separation, or annulment, all that is necessary is the plaintiff spouse is a domiciliary of NY.
a. The court has in rem jurisdiction over marriage. The proper court is the Supreme Court. Personal Jurisdiction is not necessary.

Front 104

Monetary Support rule jurisdictionally

Back 104

: When Π spouse is a resident of NY, long-arm jurisdiction can be acquired over Δ-spouse for monetary support if:
i. NY was the matrimonial domicile of Π and Δ prior to their separation; or
ii. Δ abandoned Π in NY; or
iii. Δ’s monetary obligation accrued under an agreement executed in NY (e.g., separation agreement); or
iv. Δ’s monetary obligation accrued under the laws of NY

Front 105

In a matrimonial action how may process be served

Back 105

The only proper method of serving process in a matrimonial action is personal delivery to Δ. Alternative methods may not be used without judicial permission in a court order.

Front 106

Long Arm jurisdiction: P's claim arises fromtortious conduct in NY

Back 106

a. Examples: driving negligently on NY roadway, making fraudulent statements during NY sales negotiation, converting goods/assaulting while in NY. NOT defamation;

Front 107

Long arm jurisdiction: Plaintiff’s Claim Arises from Δ’s Tortious Act Outside NY Which Causes Injury in NY

Back 107

Need extra link to D and NY. they could be.

a. Δ regularly solicits business or engages in any other persistent course of conduct in NY; or
b. Δ derives substantial revenue from goods used or consumed, or services rendered, in NY; or
c. Δ expects or should reasonably expect the act to have consequences in NY and derives substantial revenue from interstate or international commerce.
d. Foreseeability Requirement: In addition, the Δ’s interstate commerce must purposefully include NY (due process requirement).

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Long arm jurisdiction: Plaintiffs Claim Arises from Δ’s Ownership, Use, or Possession of Real Property Located in NY.

Back 108

Δ of CT owns building in NYC, agrees to sell it to Π but backs out. Π can sue Δ in NY for damages or specific performance

Front 109

Long arm state additional notes

Back 109

a. It covers all types of Δ’s (e.g., corporations, individuals, partnerships)
b. The acts giving rise to jurisdiction can be performed by Δ herself or by her agent/employee. The agents acts in NY will also subject the agent herself to jurisdiction.
c. Even if Δ dies, decedent’s representative can be served outside NY.
d. Serving Process: Δ must use the same methods of service on Δ outside of NY as would be used inside NY.

Front 110

ANALYSIS FOR PERSONAL JURISDICTION ESSAY QUESTION

Back 110

1. First, discuss whether plaintiff can establish jurisdiction under any non-long-arm categories (presence, domicile, doing business)
2. Second, discuss whether facts of Π’s case fall within one or more of the five long-arm categories.
3. Third, briefly discuss whether the particular assertion of jurisdiction would satisfy constitutional due process:
a. Test: Due process will be satisfied if claim arises out of conduct of Δ that is so purposefully directed towards NY that the Δ should reasonably anticipate being haled into a NY court. [Memorize!]

Front 111

Non-resident motorist statue

Back 111

This statute confers personal jurisdiction over an accident claim arising from a nondomicilliary motorist’s ownership or use of an auto on a NY roadway. Often overlaps with long-arm category of “tortuous act in NY) but has 2 unique features:
1. Service of Process: Π serves process on Δ by personally serving one copy on NY secretary of State PLUS mailing second copy to Δ by certified mail to Δ’s out-of-state residence.
2. Applies to Vehicle Owner who Gave Permission to Drive in NY. (E.g., Alaskan mother loans car to son to check out NYC; he causes injury to Π; Π can get jurisdiction over mother, even though she did not commit tortuous act herself/do so by her agent).

Front 112

Consent for personal jurisdiction

Back 112

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

Front 113

Divorce action personal jurisdiction

Back 113

1. Divorce Action Rule: Having a valid basis of personal jurisdiction over a Δ is not necessary in a matrimonial action. To obtain a divorce, separation, or annulment, all that is necessary is the plaintiff spouse is a domiciliary of NY.
a. The court has in rem jurisdiction over marriage. The proper court is the Supreme Court. Personal Jurisdiction is not necessary.

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Monetary Support rule jurisdictionally

Back 114

: When Π spouse is a resident of NY, long-arm jurisdiction can be acquired over Δ-spouse for monetary support if:
i. NY was the matrimonial domicile of Π and Δ prior to their separation; or
ii. Δ abandoned Π in NY; or
iii. Δ’s monetary obligation accrued under an agreement executed in NY (e.g., separation agreement); or
iv. Δ’s monetary obligation accrued under the laws of NY

Front 115

In a matrimonial action how may process be served

Back 115

The only proper method of serving process in a matrimonial action is personal delivery to Δ. Alternative methods may not be used without judicial permission in a court order.

Front 116

3. Durational Residency Requirements

Back 116

Even if a Π is able to obtain sufficient jurisdiction in NY for a divocrce, action may be subject to dismissal on the merits due to Π’s failure to comply with these requirements.

Front 117

When is durational residency requirement not needed

Back 117

i. If both parties are NY residents at the time the action is commenced, and the grounds for the matrimonial action arose in NY, no period of prior NY residency is required.

Front 118

1 year residencey requirement in matrimonial divorces

Back 118

If either party has been a NY resident for a continuous period of at least one year immediately prior to the action AND NY has any 1 of 3 possible prior links to the marriage:
1. Marriage took place in New York; or
2. New York was the matrimonial domicile of the spouses at some point; or
3. Grounds for divorce action arose in NY

Front 119

2 year residencey requirement in matrimonial divorces

Back 119

If either party has been a NY resident for a continuous period of at least 2 years immediately prior to the action, then the two-year residency standing alone is sufficient; need not show any other connection to NY

Front 120

Durational residency requirements apply to which types of actions

Back 120

actions affecting marital status, not support actions.

Front 121

venue def

Back 121

i. If the Supreme Court has acquired jurisdiction, every Supreme Court in the state, regardless of county, would have power to hear the case. Rules of venue regulate the appropriate county in NY for the trial of a Supreme Court action

Front 122

how venue is determined

Back 122

Π chooses venue and specifies it in the summons in accordance with the following rules:
1. In an action in which the judgment would affect title or possession to real property: proper venue is county in NY in which property is located.
2. In all other actions: proper venue is any county in NY in which any one party resides at time action is commenced.
a. Note: If no party resides, Π may choose any county

Front 123

Improper venue

Back 123

Π’s choice of an improper venue is not a jurisdictional defect, and therefore it is not a basis for dismissal.

Front 124

Remedy fro improper venue

Back 124

i. Δ’s remedy for improper venue is to serve a demand for change of venue to a proper county designated by Δ. The demand must be served before or with the answer

Front 125

If plaintiff object or consents to demand for change of venue

Back 125

1. If Π consents to the demand: Change in venue to Δ’s designated county will be automatic.
2. If Π objects to the demand or fails to respond to it: The Δ must make a motion for change in venue.
a. Note: Δ’s motion must be granted as a matter of right if Π chose an improper venue and Δ chose a proper venue in his demand.

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d. Discretionary Grounds for Change of Venue

Back 126

i. Convenience of Material Witnesses. Either party, by motion, may request the court for a change in venue to the county that would be most convenient for witnesses. This will often (but not always) be the county where the cause of action arose.
ii. Impartial Trials. If there is reason to believe that an impartial trial cannot be had in the county where the action is commenced, either party may make a motion to change venue.

Front 127

Defendants response to summons and complaint

Back 127

serve and answer or make a pre-answer motion to dismiss

Front 128

ANswer consists of?

Back 128

a. Denials of the allegation Δ wishes to contest (failure to deny an allegation is an implied admission); and
b. Any affirmative defenses (e.g., S/L, lack of jurisdiction, Π’s comparative negligence). Affirmative defenses not raised in the answer are waived (subject only to Δ’s possible amendment of the pleadings;

Front 129

Counter claims

Back 129

Done in answer

Front 130

Reply

Back 130

P's pleading in response to counter claim. consists of denials and affirmative defenses

Front 131

cross claims

Back 131

In a multi-Δ case, Δ may assert a cross-claim against any other Δ. Cross-claims are asserted in Δ’s answer, and they can be based on any type of claim that Δ has against other Δ’s.

Front 132

service of pleadings on other parties in a crossclaim suit

Back 132

must be done.

Front 133

INterlocutory papers

Back 133

These include the Δ’s answer, all other pleadings, motions, discovery notices, etc. if an interlocutory paper is served on one party, it must be served on all other parties.
2. How Served. By regular first-class mail. Service of an interlocutory paper by mail is deemed made upon the mailing, not the receipt

Front 134

Serving answer if D is served by personal delivery within NY

Back 134

Must be within 20 days of delivery

Front 135

serving answer If Δ was served with process by first class mail plus acknowledgment

Back 135

Δ’s return of acknowledgment is merely a notification of Δ’s receipt of process; it is not a pleading. Therefore, Δ must serve answer within 20 days of Δ’s mailing of the acknowledgment.

Front 136

8 grounds for motion to dismiss prior to answer.

Back 136

(Downfall) a. Documentary Evidence as the basis for a defense, e.g., mortgage, deed, contract, or some other legally operative document.
b. Other Action Pending between the same parties on the same cause of action.
c. Want of Capacity of the Π, e.g., Π is an infant suing without a proper representative, or Π as beneficiary is suing on behalf of a trust (only the trustee has capacity).
d. Nonjoinder of a Necessary Party e.g. co-makers of a promissory note, joint property owners.
e. *Failure to State a Cause of Action. This motion is directed to the substantive insufficiency of the complaint on its face, i.e., even if all of the allegations are deemed to be true, the substantive law does not recognize a cause of action.(gotta discuss elements of COA)

Front 137

ALL of Downfall for grounds for dismissal prior to answer

Back 137

f. Additional Affirmative Defenses as specified below (include “SPARERIBS”)
i. Statute of Limitations
ii. Payment (e.g., hey I paid that!)
iii. Arbitration Award (we already resolved that)
iv. Release
v. Estoppel (collateral estoppels)
vi. Res Judicata
vii. Infancy of Defendant (comes up in k’s claims)
viii. Bankruptcy Discharge
ix. Statute of Frauds
g. Lack of Personal Jurisdiction. This category includes:
i. Improper commencement procedure (wrong clerk)
ii. Improper service of process
iii. Lack of basis jurisdiction
h. Lack of Subject Matter Jurisdiction

Front 138

When must motion to dismiss be served

Back 138

The motion is made before service of the answer. (On or before the last day of prescribed time limit for service of the answer).

b. Making the motion extends Δ’s time to answer. If the motion is denied, Δ must then serve the answer within 10 days.

Front 139

How many pre-answer motions can a D make

Back 139

1, but may be on multiple grounds

Front 140

Rules on waiver of 3211 motion.

Back 140

a motion to dismiss on any ground listed in 3211 does not preclude raising any other 3211 ground in the answer, except Lack of Personal Jurisdiction

Front 141

How can you preserve Lack of personal jurisdiction

Back 141

i. Before serving answer, make 3211 motion to dismiss that includes lack of personal jurisdiction
ii. Make no 3211 motion to dismiss on any grounds and instead include lack of personal jurisdiction as affirmative defense in answer.
iii. *Warning – Improper Service Defense: Although pleading improper service of process as a defense in the answer is a proper way to assert that particular jurisdiction defect, the objection of improper service will nevertheless be waived if defendant does not make a follow-up motion for summary judgment on that ground within 60 days after serving the answer.

Front 142

Affirmative defenses not raised in the answer

Back 142

Are waived

Front 143

the 3 defenses that are never waived even if D doesn include them in answer. These can be raised at any point.

Back 143

1. Nonjoinder of a necessary party
2. Failure to state a cause of action
3. Lack of subject-matter jurisdiction

Front 144

Goals in responding to summons with notice

Back 144

Δ’s goals are to (1) avoid default, and (2) force Π to serve the complaint. Can be accomplished by either:
1. A Demand for the Complaint (a simple paper); or
2. Notice of Appearance

Front 145

ways to respond to a summons with notice

Back 145

A demand for the complaint( just a single paper) OR Notice of appearance

Front 146

Time requierment for demanding complaint or notice of appearance

Back 146

Δ’s time limit for serving either a demand for the complaint or a notice of appearance is the same as the response time for responding to a summons and complaint:
1. 20 days if served by personal delivery
2. 20 days from acknowledgment if served by first class mail plus acknowledgment
3. 30 days after service complete in all other circumstances

Front 147

Once P serves complaint after D demanded the complaint how long does p have to respond?

Back 147

1. If Π timely serves the complaint, Δ has 20 days from such service to either:
a. Serve the answer or
b. Make a pre-answer motion to dismiss

Front 148

amendement of pleadings?

Back 148

: Each party is entitled to amend her pleading once as a matter of right, i.e., without the need to obtain judicial permission. When making an amendment as of right, the party can put anything into the pleading that could have been in the original

Front 149

A Δ may raise an omitted Personal Jurisdiction objection by means of amendment of right to the answer, provided that

Back 149

a. The Δ made no pre-answer motion to dismiss, and
b. Δ adds the jurisdictional amendment to answer within 20 days after serving the original answer.

Front 150

When is a motion to amend pleadings needed

Back 150

When the period for the amendment as of right has expired, or the party has already used up her amendment as of right, a motion for leave to amend is required. The decision to permit an amendment on a motion lies in the court’s discretion. That standard applied is that “the amendment will be allowed if the opponent will suffer no incurable prejudice

Front 151

What must a party show to oppose a motion to amend + demonstrating predjudice

Back 151

a detrimental change of position as a result of the delay.

Front 152

Impleader

Back 152

Impleader is a procedural device used by Δ to join another party alleged to be liable in whole or in part to Δ for damages that Δ may have to pay Π.

Front 153

Procedural steps for impleader

Back 153

1. File a summons and third party complaint
2. Serve a copy of summons/third party complaint within 120 days of filing. 3. TPD must serve a third-party answer on Δ, Π and all other parties who have appeared in the action. 4. After TPD is joined, Π may amend her complaint to assert a claim directly against TPD, thereby making an additional Δ in Π’s action.

Front 154

Relation back doctrine

Back 154

IDK figure it out dumb ass. Somthing to do with the SOL having run and a new party getting impleade and the complaint relating back to within theSOL.

Front 155

Indemnity.

Back 155

. This allows one party to shift 100% of the responsibility to another party.

Front 156

common indemnity situations?

Back 156

Products liablity/ciarious liability situations

Front 157

Contribution

Back 157

. Involves a sharing of the loss – apportionment – among multiple tortfeasors who are all actual participants in the tort. The purpose of contribution is to mitigate the harshness of the law of joint and several tort liability.

Front 158

Mechanics of a Judgment for Joint and Several Liability

Back 158

The potential inequity to a joint and several tortfeasor who is held liable for the full amount is cured by the right of contribution, which enables him to seek partial reimbursement from the other tortfeasors.

Front 159

3 ways to assert indemnity/contribution

Back 159

1. If Π originally joined the tortfeasors as co-Δ’s they can assert cross-claims against eachother.
2. If Π omits a tortfeasor, a Δ can implead the outsider as TPD.
3.Tortfeasor may sue TPD in a separate action.

Front 160

Equal Shares Formula (minority view) of contribution

Back 160

The contribution shares are always equal in amount.

Front 161

comparative degrees of fault.(NY RULE) of contribution

Back 161

The amount of contribution to which a tortfeasor is entitled is the excess actually paid by him over and above his equitable share of the judgment.

Front 162

How much can a contribution be obligated to pay

Back 162

his equitable share

Front 163

when is there a right to contribution

Back 163

: a right to contribution exists whenever TPD breached a duty in tort which contributed to or aggravated the damages for which Δ may be held liable to Π. Thus, Δ may seek contribution from TPD even if the injured Π has no right of recovery against TPD.

Front 164

what are the limitaitons on contribution/indemnity in workers comp cases

Back 164

If an employee is injured on the job, she cannot sue her employers, regardless of fault on the part of the employer, because of the Workers’ Compensation Law. However, the employee can sue a third person who is partially at fault for the accident, e.g., the manufacturer of a product that the employee was using at work when she was injured. The third person is barred from seeking contribution or indemnity from Π’s employer unless the injured employee (Π) sustained a grave injury.

Front 165

“Successive Tort Liability” Rule

Back 165

: A Δ is liable to Π to all damages that proximately flow from the accident, including subsequent medical care and malpractice inflicted by successive tortfeasors.

Front 166

Settlements in multi tortfeasor cases

Back 166

: Π’s pre-trial release of one tortfeasor in partial satisfaction of claim does not discharge Π’s claim against other tortfeasors. However, the law prohibits excess recovery, so any judgment against a non-settling tortfeasor will have to be reduced to take account of the settlement.

Front 167

How do you reduce a multi-tortfeasor judgement once settlement has taken place

Back 167

ii. The Reduction Formula: Any judgment for Π against a non-settling tortfeasor must be reduced by EITHER
1. The amount of the settlement; OR
2. The settling tortfeasor’s equitable share of the fault, whichever is LARGER

Front 168

Settlement in contribution claims

Back 168

A party who settles cannot sue or be sued for contribution.

Front 169

settelment in Indemnity

Back 169

A party who settles can sue, and be sued, for indemnity.

Front 170

NY Joint and several liability rule

Back 170

whe n D is less than 50% at fault, and P has sustained economic damage:

i. THEN the joint tortfeasor can only be required to pay her own share of the Π’s non-economic damages. Therefore, any Δ found liable for 51% or more of the total liability is jointly and severally liable for the entire judgment.

Front 171

Non-economi damages for CPLR 16(joint and several liability)

Back 171

1. Pain and suffering
2. Mental anguish
3. Loss of consortium

Front 172

Exclusions from article 16.

Back 172

The following tortfeasors are subject to full joint and several liability for all damages:


a. Tortfeasors who acted with intent or reckless disregard for the safty of other. In a case involving multiple tortfeasors, where some have acted intentionally and some negligently, only intentional tortfeasors are subject to full joint and several liability.
b. Tortfeasors who released a hazardous substance into the environment.
c. *Drivers and owners of motor vehicles other than police and fire vehicles.

Front 173

Motion on Notice

Back 173

i. A motion on notice gives the adversary an opportunity to be heard in opposition.
ii. Papers served on the other party:
1. Notice of Motion (a piece of paper advising of the nature of the motion and specifying a return date)
2. Affidavits of Facts (showing why the motion should be granted)
3. Memoranda of Law (sets forth legal arguments – optional).

Front 174

Procedure for motion on notice

Back 174

1. The motion is “made” when the motion papers are served on the other party (e.g., if by mail, when dropped in a mailbox).

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

Front 175

Order to show cause definition

Back 175

This is 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 the 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 176

Why make a motion by order to show cause rather than ordinary motion?

Back 176

a. It is a means of accelerating the return date where exigent circumstances make the usual 8-day notice too long to wait for judicial assistance. In signing the order to show cause, the judge can specify a return date than is sooner than the 8-day minimum that would otherwise apply.
b. The judge can grant an immediate stay of the proceedings or a temporary restraining order.
c. The statute which governs the particular motion may require it.

Front 177

THe deciding order????

Back 177

i. 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 the moving party or the opponent) serves a copy of the order on the losing party with notice of entry of the order. Even if the court provides the parties with the order, the prevailing party must serve the order as described above.

Front 178

Ex-parte Motion

Back 178

: this is a motion in which no advance notice is given to the adversary, i.e., without giving any opportunity to be heard in opposition. The moving party goes straight to the court with the motion papers and request an order granting the relief sought.

Front 179

when is ex parte motion allowed

Back 179

Ex parte motion is not allowed without express statutory authorization. Very rare.

Front 180

remedy for aggrieved party ex parte order

Back 180

. Appeal is not a remedy; opponent may make a motion on notice to vacate the ex parte order. If the motion is denied, the aggrieved party can appeal from the denial of the motion.

Front 181

Motion for summary judgement

Back 181

To enable a party to show, before trial, that even though the pleadings may be sufficient on their face, there is no genuine issue of material fact requiring a trial.

DISCUSS underlying COA

Front 182

When can SUm Judge motion be made?

Back 182

i. Parties generally cannot move for summary judgment prior to service of Δ’s answer; such motion would be premature.
ii. After service of the answer, any party can move for summary judgment with respect to any claim or defense asserted in the pleadings.
iii. The outside time limit for making a summary judgment motion is 120 days from the filing of the note of issue .

1. Exception: Motion may be permitted after expiration of 120 days from filing of note of issue if moving party shows “good cause” (procedural excuse, such as law office failure or delayed disclosure responses provided after the filing of the note of issue; the merits of the motion itself does not qualify as good cause.)

Front 183

when is Sum Judgment permitted prior to service

Back 183

1. In two types of actions, Π may, If she wishes, move for summary judgment at the same time she serves process by accompanying the summons with motion papers for summary judgment; in these instances, the MSJ is served “in lieu of the complaint”:
a. An action on an instrument for the payment of money only. The instrument must contain Δ’s unconditional promise to pay money (e.g., a promissory note; very rare.).
b. An action on an out-of-state judgment (e.g., Π sues Δin FL and obtains default judgment; Π comes to NY; quick way to convert this out-of-state judgement into a state judgment is to make this motion).

Front 184

Motion for summary judgement in lieu of complaint

Back 184

1. In two types of actions, Π may, If she wishes, move for summary judgment at the same time she serves process by accompanying the summons with motion papers for summary judgment; in these instances, the MSJ is served “in lieu of the complaint”:
a. An action on an instrument for the payment of money only. The instrument must contain Δ’s unconditional promise to pay money (e.g., a promissory note; very rare.).
b. An action on an out-of-state judgment (e.g., Π sues Δin FL and obtains default judgment; Π comes to NY; quick way to convert this out-of-state judgement into a state judgment is to make this motion).
2. Rationale: both of these actions are based on documents that are prima facie valid when supported by an affidavit of noncompliance.

Front 185

need for provisional remedies

Back 185

Lawsuits can take time to resolve, and Π’s rights may be jeopardized while the matter is pending. Provisional remedies provide a measure of security to Π for the ultimate enforcement of a potential judgment.

Front 186

5 provisional remedies

Back 186

1. Attachment
2. Preliminary Injunction
3. Temporary Receivership
4. Order to Seize Chattel in an action to recover the chattel (replevin)
5. Notice of Pendency (lis pendens)

Front 187

Attachment

Back 187

The purpose of attachment is to provide security for the enforcement of a money judgment, to ensure that money is in place for a possible judgment. The concept is that Π obtains an order of attachment from the court and gives it to a NY sheriff who levies upon the property pending the outcome of the action. This gives Π a security interest in the property that is superior to that of any subsequent lien holder

Front 188

Either real or personal property, if located in N, can be levied upon

Back 188

a. On real property, sheriff files an order of attachment with the county clerk in the NY county in which the property is located.
b. Personal property that qualifies for a levy includes tangible property (a car, boat) or intangible property (such as a debt owed to Δ; a bank account is a prime example).

Front 189

Types of action in which attachment may be used.

Back 189

1. Δ is an unlicensed foreign corporation or a non-domiciliary residing outside of NY; or
2. Δ is about to conceal or remove assets from NY with the intent to defraud creditors or frustrate the enforcement of a judgment.

Front 190

Types of actions for preliminary injunctions?

Back 190

An equity action in which Π’s complaint seeks either
1. A permanent injunction; or
2. A showing that Δ threatens to harm Π’s interests in the subject matter of the action.

Front 191

must a preliminary injunction be made on notice

Back 191

yes

Front 192

TRO summary

Back 192

a. Π commences an action seeking equitable relief.
b. Π moves (by order to show cause) for a preliminary injunction to maintain status quo until overall action is resolved.
c. In the order to show cause, Π requests TRO to obtain immediate injunctive relief pending the outcome of the motion for the preliminary injunction.