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271 Cards in this Set

  • Front
  • Back
What is an answer?
D's pleading, which responds to a complaint with denials, defenses, or counterclaims that the D wishes to assert
What is a D's pleading, which responds to a complaint with denials, defenses, or counterclaims that the D wishes to assert?
An answer
What is arbitration?
An agreement to submit a controversy, which is otherwise subject to litigative disposition in the courts, to extrajudicial resolution by artitrators
What is an agreement to submit a controversy, which is otherwise subject to litigative disposition in the courts, to extrajudicial resolution by artitrators
Arbitration
What is Certiorari?
A special proceeding (Article 78) to obtain judicial review of a quasi-judicial administrative action after a trial-type hearing and determination made by an agency
What is A special proceeding (Article 78) to obtain judicial review of a quasi-judicial administrative action after a trial-type hearing and determination made by an agency
Certiorari
What is collateral estoppel?
Doctrine known as issue preclusion, applied when a litigant attempts to retry an issue that has been determined against her on the merits
What is the Doctrine known as issue preclusion, applied when a litigant attempts to retry an issue that has been determined against her on the merits?
Collateral Estoppel
What is a complaint?
The P's pleading, which gives D information on all material facts and transactions that are the subject of P's cause of action
What is contribution?
The right of a joint tortfeasor, who has been found liable and paid the P in full, to seek from other tortfeasors the amount that exceeds his equitable share
What is a counterclaim?
A claim of D against a P that may be asserted in the answer
What is a cross claim?
Where there are co-D's in a lawsuit, it is a claim asserted by one D against another that may be asserted in the answer
What is an ex parte motion?
A motion made without notice to the other party
What is forum non conveniens?
The power of a court, upon D's motion, to dismiss an action where the court finds that the convenience of witnesses and interests of justice require that the action be heard in a court in a different state
What is impleader?
The procedure whereby D joins another party to the lawsuit on the ground that the other party may be liable to D in whole or in part (usually a claim for indemnification or contribution)
What is indemnity?
The right of a vicariously liable D to bring a 3rd Party action against the person whose misconduct he is answerable for and seek 100% reimbursement
What are interlocutory papers?
litigation papers served after P's summons and complaint or summons with notice (pleadings, motions, discovery notices)
What is a motion for summary judgment?
A pretrial motion that can be made by any party asking the court for judgment as a matter of law. It requires that the court find that no genuine issue of fact exists requiring a trial
What is a motion on notice?
A motion that requires notice be given to the adversary
What is personal jurisdiction?
The power of the court to adjudicate claims for gamaes or injunctive relief against particular parties
What is pleading?
The formal written statement of a party's claim or defenses (the complaint, answer, reply, 3rd Party complaint, petition)
What is process?
Initiatory papers that are filed and then served on a D to invoke the court's jurisdiction. In an action: summons and complaint or summons with notice. In a special proceeding: notice of ptition and petition, or order to show cause and petition
What are provisional remedies?
Remedies that operate while the action is pending to prevent ineffectual judgments
What is prohibition?
A special proceeding (article 78) to obtain judicial review of judicial action that grossly exceeds an officer's jurisdiction
What is a reply?
P's pleading in response to a counterclaim
What is res judicata?
The doctrine known as claim preclusion, meaning that once a claim is brought to final conclusion, all other claims arising out of the same transaction or series of transactions are barred, even if based upon different theories or if seeking a different remedy
What is a statute of limitations?
Fixed period of time within which a lawsuit must be commenced
What is subject matter jurisdiction?
The power of a court to adjudicated particular types of claims
What is a summons?
Initiatory paper that notifies D that an action has been instituted against him and that he is required to answer at the place and time named
What is venue?
The county in which an action is brought
What is toll?
Toll extends the applicable period of time (S/L) within which a cause of action may be brought
What is a long arm jurisdiction?
It allows jurisdiction over a nondomiciliary D where the cause of action arises from NY activity
What is a petition?
The pleading of the complaining party in a special proceeding
What is issue preclusion?
collateral estoppel
What is claim preclusion?
res judicata
What is P's pleading, which gives D information on all material facts and transactions that are the subject of P's cause of action?
A complaint
What is the right of a joint tortfeasor, who has been found liable and paid the P in full, to seek from other tortfeasors the amount that exceeds his equitable share?
Contribution
What is the claim of D against a P that may be asserted in the answer?
Counterclaim
Where there are co-D's in a lawsuit, what is a claim asserted by one D against another that may be asserted in the answer?
Cross Claim
What is a motion made without notice to the other party?
Ex Parte Motion
What is the power of a court, upon D's motion, to dismiss an action where the court finds that the convenience of witnesses and interests of justice require that the action be heard in a court in a different state?
Forum Non Conveniens
What is the procedure whereby D joins another party to the lawsuit on the ground that the other party may be liable to D in whole or in part (usually a claim for indemnification or contribution)?
Impleader
What is the right of a vicariously liable D to bring a 3rd Party action against the person whose misconduct he is answerable for and seek 100% reimbursement?
Indemnity
What are litigation papers served after P's summons and complaint or summons with notice (pleadings, motions, discovery notices)?
Interlocatory Papers
What is a pretrial motion that can be made by any party asking the court for judgment as a matter of law?
Motion for Summary Judgment
What is a motion that requires notice be given to the adversary?
Motion on Notice
What is the power of the court to adjudicate claims for injunctive relief against particular parties?
Personal Jurisdiction
What is the formal written statement of a party's claim or defenses (the complaint, answer, reply, 3rd Party complaint, petition)?
Pleading
What are the initiatory papers that are filed and then served on a D to invoke the court's jurisdiction?
Process
What are remedies that operate while the action is pending to prevent ineffectual judgments?
Provisional Remedies
What is a special proceeding (article 78) to obtain judicial review of judicial action that grossly exceeds an officer's jurisdiction?
Prohibition
What is P's pleading in response to a counterclaim?
Reply
What is the doctrine known as claim preclusion called, meaning that once a claim is brought to final conclusion, all other claims arising out of the same transaction or series of transactions are barred, even if based upon different theories or if seeking a different remedy?
res judicata
What is the Fixed period of time within which a lawsuit must be commenced?
Statute of Limitations
What is the power of a court to adjudicated particular types of claims?
Subject Matter Jurisdiction
What are the Initiatory paper that notifies D that an action has been instituted against him and that he is required to answer at the place and time named?
Summons
What is the county in which an action is brought?
Venue
What extends the applicable period of time (S/L) within which a cause of action may be brought?
Toll
What allows jurisdiction over a nondomiciliary D where the cause of action arises from NY activity?
Long Arm Jurisdiction
What is the pleading of the complaining party in a special proceeding?
Petition
What is the process served for an action?
Summons and complaint or summons with notice
What is the process served for a special proceeding?
Notice of petition and petition, or order to show cause and petition
What is the jurisdiction of the NY Supreme Court?
Statewide court of unlimited jurisdiction with branches in every county
What must the court have in order to haul a person into court?
Subject-matter jurisdiction and personal jurisdiction
What is the only court that has general jurisdiction in NY?
The Supreme Court
What is general jurisdiction?
When you can hear anything, the power to hear any type of action
How many Supreme Courts are in NY?
One branch per county in NY
What does the Supreme Court have?
Full Equity Jurisdiction and unlimited monetary jurisdiction
Can the SC hear a case on bankruptcy or patents/copyrights?
NO, federal law confers exclusive jurisdiction on these types of action on federal courts
What court can you get claims for money damages in tort or contract claims against the STATE OF NY itself?
NY Court of Claims
What 3 things does the SC have exclusive subject matter jurisdiction over?
1) Matrimonial actions
2) CPLR Article 78 Proceedings
3) Declaratory judgment actions
What are declaratory judgment actions?
judicial declaration of the rights and obligations of the parties to an actual controversy before one of them engages in conduct that could cause liability
What is the highest court in NY?
Court of Appeals
What is the intermediate appellate court in NY?
Appellate Division
When may a case be transfered or removed?
1) Original court lacked SMJ from the inception of the suit;
2) Original court had SMJ, but later events require transfer to a court of wider jurisdiction to obtain complete relief; and
3) Original court had SMJ, but where a court of lesser jurisdiction also has authority to handle it.
How does removal upward occur?
In situations where (1) Original court lacked SMJ from the inception of the suit or (2) Original court had SMJ, but later events require transfer to a court of wider jurisdiction to obtain complete relief; respectively, removal is accomplished by motion to the supreme court and application to the transferee court.
How does removal downward occur?
Consent of the party adversely affected is required, because the amount recoverable may not exceed the monetary jurisdiction of the (lower) transferee court.

Removal downward can also be ordered to alleviate calendar congestion; consent is not required, however, because recovery can exceed the lower court’s jurisdictional limits.
What factors are considered by the court for a forum non conveniens motion?
The court must weigh the convenience of the court, the plaintiff, and the defendant.
May there be a forum non-conveniens dismissal where all parties are NY residents?
YES
May an unauthorized foreign corp doing business in NY sue in NY?
The BLC permits them to commence an action, but can't continue the action until it pays all fees, taxes, and penalties owing for the period it did business without authority.
What is the S/L on Action on a Judgment?
20 years
What is the S/L on an Action to Recover Realty?
10 years
When does the S/L start to run on an Action by a Crime Victim Against Convicted Ds for serious crimes?
The period runs from the date of conviction
What is the S/L on an Action by a Crime Victim Against Convicted Ds for serious crimes?
10 years
When does the S/L start to run on an Action by a Crime Victim Against convicted Ds for any crime?
The period runs from the date of the crime
What is the S/L on an Action by a Crime Victim Against convicted Ds for any crime?
7 years
What is the S/L on Contracts, express or implied (that are non-UCC Article 2 Sales Contracts)
6 years
What is the S/L on Indemnity and Contribution?
6 years
What is the S/L on Fraud?
6 years
What is the S/L on Equity Actions (recession, reformation, accounting)?
6 years
What is the S/L on an action by a victim of a rape-related felony?
5 years
What is the S/L on Contracts governed by UCC Article 2 (Sales)?
4 years
What is the S/L on Personal Injury based on negligence and strict products liability?
3 years
What is the S/L on Property Damage (including conversion and replevin)?
3 years
What is the S/L on Professional Malpractice (other than medical malpractice)?
3 years
What is the S/L on Medical, Dental, and Podiatric Malpractice?
2 1/2 years
What is the S/L for Wrongful Death?
2 years
What is the S/L for Intentional torts to the person
1 year
What is the S/L for Article 78 Proceedings?
4 months
When does the S/L begin to run for personal injury and property damage?
Action accrues on the date of injury, NOT discovery of the injury
When does the S/L begin to run for an infant's injury in utero?
Begins to run from the date of birth
When does the S/L begin to run for breach of contract?
From the date of breach, NOT discovery of the breach
How do you satisfy the S/L?
The action must be commenced no later than the last day of the preserived period of limitations
What is the last timely date for commencing an action?
Usually the anniversary
What if the last day of the S/L falls on a Saturday, Sunday, or public Holiday?
The last day then will become the end of the next business day
What are the two exceptions to the Medical Malpractice S/L?
1) Continuous Treatment Doctrine AND
2) Foreign Object Doctrine
What is the continuous treatment doctrine?
If the doctor continues to treat the patient, P gets 2 1/2 years from the termination of the treatment ** Must relate to the same original condition that gave rise to the malpractice in the first place
How do parties agree to arbitration?
Two parties may agree to submit any existing or future disputes to arbitration via contract
What are 3 major characteristics of arbitration?
1) Arbitrators are not bound by substantive law or rules of evidence
2) Arbitrators may do justice as they see fit
3) The scope of judicial review is extremely narrow
Does NY Public Policy favor Arbitration or Conventional Judicial Proceedings?
Favors ARBITRATION
What happens when one party wants to quit arbitration in an effort to use conventional judicial proceedings?
The courts are called upon to decide certain threshold issues as to whether arbitration should proceed
What are the 5 questions that courts ask to see if arbitration is valid?
1) Did the Parties Agree to Arbitrate?
2) Is the dispute within the scope of the arbitration clause?
3) Is the arbitration clause valid
4) Is there an express condition precedent to arbitration, and has it been complied with?
5) Is the S/L okay?
What are the 2 special contract requirements needed for arbitration?
The agreement to arbitrate MUST be in writing (doesn't have to be signed) and MUST be clear, explicit, and unequivocal
How can an arbitration clause be invalid?
If the clause was induced by fraud, duress, or coercion OR if it involves a matter contrary to public policy
** This is very rare
Who decides the S/L for an arbitration clause?
In NY, the court decides S/L
If the contract is found to be invalid, does that mean that the arbitration clause is also invalid?
NO. The contractual duty to arbitrate is enforceable separate and apart from the remainder of the contract. If the contract is invalid, the clause can still be valid
What are the 3 grounds for vacating the arbitration award?
1) Corruption, Fraud, or Misconduct in the Arbitration Proceeding
2) Bias of an Arbitrator that was chosen to be neutral
3) The Arbitrator has exceeded his powers
What kind of power do arbitrators have?
Almost unlimited power
What is the only type of damages that the arbitrator cannot award?
Punative damages
What does Article 78 do?
It authorizes a special proceeding for judicial review of actions by government or quasi-governmental officers or bodies of any kind
Are corporations quasi-governmental for Article 78 purposes?
YES, b/c they get their rights from the state by filing
What are the 4 grounds for Article 78 proceedings?
1) Mandamus to Compel
2) Prohibition
3) Certiorari
4) Mandamus to Review
What is a mandamus to compel?
Used to compel performance of an act required by law, to which no discretion is involved (such as with marriage licenses, shareholder meetings, etc.)
What is prohibition?
A proceeding to stop a judicial officer from exercising power that exceeds his lawful jurisdiction (Must be a grossly improper exercise of jurisdiction)
What is a mandamus to review?
A review of any administrative action that made determinations without a trial-type hearing
What is the standard of judicial review for a mandamus to review?
The court will uphold the agency's determination unless it was arbitrary and capricious
What court has sole jurisdiction over Article 78 proceedings?
The Supreme Court
What type of relief is granted for Article 78 proceedings? (3 types)
1) Declaratory Relief (annulment)
2) Injunctive Relief (reinstatement)
3) Money Damages (IF they are incidental to the main relief 1 and 2 being sought)
What is the foreign objects doctrine for S/L?
If the doctor is responsible for introducing a foreign object that he did not intend to leave behind into P's body, P has the option of 2 ½ years from the date of operation OR 1 year from the date P discovers (or should have discovered with reasonable diligence) – whichever period is longer
When does the S/L run for members of a learned profession?
From the termination of the particular service in which the malpractice occurred
When does the S/L run for architects that make a building?
From the date the building was complete, NOT the date of collapse
Can you sue for personal injury after more than 10 years a building was completed?
YES, but P must serve notice of claim on the architect or engineer at least 90 days before the suit, P may obtain discovery from potential D during the 90-day waiting period, AND after the suit is commenced, D may more to dismiss & the burden will be on P to make an immediate evidentiary showing of “substantial basis” to believe D's negligence was proximate cause of injuries
What are the 3 causes of action for defective products?
1) Negligence
2) Strict Products Liability
3) Breach of Warranty
What is a toxic substance?
Any inherently harmful toxin that has latent or slow-developing effects
What are 2 applications of Tolls based on D's absence?
1) D was not in NY when the cause of action accrues (whereby the S/L doesn't run until D comes to NY)
2) D is in NY when the cause of action accrues, BUT D thereafter leaves the state & is continuously absent for at least 4 months

** UNLESS P has a basis of personal jurisdiction over absent D, such that process could be validly served outside NY
How do you enforce S/L when dealing with Infancy or Insanity?
You may sue within regular S/L through a competent adult representative OR get the benefit of a toll (until disability is removed or infant reaches 18)
What is a wrongful death cause of action?
A tort claim for the pecuniary damages (economic loss only) of decedent's statutory distributees
Can you recover for emotional suffering or loss of consortum in a wrongful death cause of action?
NO, must be for pecuniary damages only
What is a survival claim?
Any cause of action (not limited to torts) that P could have brought had he still have been alive (like pain and suffering)
What is a borrowing statute?
When the cause of action arises outside NY, a choice of law problem is presented if the S/L of the other state is different from that of NY-- If P is resident of NY, NY S/L will always apply, if P is non-resident of NY, the shorter S/L will apply
In order for a court to render a valid judgment, what are the 4 jurisdictional elements that must be satisfied?
1) Subject Matter Jurisdiction
2) Proper Commencement of the Action
3) Valid and proper service of process on D
4) Proper Personal Jurisdiction (jurisdiction over the person or property involved in the action)
How is an action commenced in Lower Civil Courts (Justice Courts)?
Action is commenced by proper serving of process on D
How is an action commenced in Supreme Court or County Court?
Action is commenced by filing process with the court clerk & payment of a fee
Which clerk do you file with, the County Clerk or the Supreme Court Clerk?
County Clerk
Within how many days must process be served on D from filing with the court?
120 days
If P is having trouble serving process on D within 120 days, for what 2 ways can the Court extend this period?
1) for good cause 2) in the interest of justice
What initiatory papers are filed and served on D to invoke a court's jurisdiction?
Summons + Complaint OR Summons with Notice
What is Summons + Complaint?
“P is suing D in a particular court” and P's pleading
What must the summons with notice have?
1) brief statement of the nature of the action
2) nature of the relief sought
3) if P is seeking monetary damages, the specific amount of damages (excluding personal injury or wrongful death)
Is defective service grounds for dismissal?
YES
How must process be served?
By any person at least 18 years old, provided he is not a party to the action
When can process be served?
Any day of the week excluding Sundays or Saturday if D observes the Sabbath
What are the 5 ways that process may be served on natural persons?
1) Personal delivery to D
2) Leave & Mail
3) Nail & Mail
4) Expedient Service
5) Through D's agent specifically designated to receive process
When is process by personal delivery complete?
Complete upon process server's tender of summons directly to D
What are the 2 requirements for Leave & Mail service of process?
1) Process server may DELIVER process to person of suitable age and discretion at D's actual dwelling place or actual place of business; PLUS
2) mail a copy by regular first class mail to D at D's place of business or last-know residence
When must the 2 requirements for Leave & Mail be performed?
Within 20 days of one another
When is process by Leave & Mail complete?
Service is complete 10 days after proof of service is filed
If there is more than 1 D, can serve process on just one of them?
NO. Each ONE must be mailed and delivered a separate copy
What happens if a doorman blocks the process server?
The lobby becomes the outer boundary of D's dwelling place, and you can leave the summons there
What are the 2 requirements for Nail & Mail?
1) Process server must first exercise DUE DILIGENCE in attempting to serve D directly or to leave process with a person of suitable age & discretion;
2) Process server 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 place of business or last known residence
What is due diligence for Nail & Mail?
Several attempts on different days of the week at different times a day
What is proof of service?
An affidavit stating that service was filed (sometimes spelling out due diligence)
When is process by Nail & Mail complete?
10 days after proof of service is filed
What is expedient service?
Improvised method of serving process
Can you create your own method of serving process?
NO, all expedient methods need prior court approval
How can you serve process on an Infant? (4 ways)
1) To a parent
2) To a guardian
3) To any person who has legal custody
4) If the infant is married, to the adult spouse with whom the infant resides
Must the infant or incapacitated person be served as well as the guardian?
YES
Are the same methods of service used when the D is located either inside or outside NY?
YES
Who may serve process outside NY?
1) Any NY resident who is authorized under NY law
2) Anyone authorized to serve process by laws of jurisdiction where service is made
3) Any attorney licensed in the jurisdiction where service is made
What two ways may you serve process on a Corporation?
1) Personal delivery to an officer, director, designated agent, or managing agent
2) Service on the NY Secretary of State
How do you serve process on an unlicenced foreign corporation with the NY Secretary of state?
Personally deliver 1 copy to the Secretary of State AND mail 1 copy to the corporation by certified mail
How do you serve process on a domestic or registered foreign corporation with te NY Secretary of State?
Deliver 2 copies to NY Secretary of State (who in turn mails one to the corporation)
May you mail process to D by first class mail for valid service of process?
ONLY if D signs and returns an acknowledgment form to P within 30 days after D receives the mailed process
What are the 6 basis of jurisdiction over D's person?
1) Physical Presence
2) Doing Business in NY
3) Domicile in NY
4) Long-Arm Jurisdiction
5) Non-resident Motorist Statute
6) Consent
Are domestic or registered foreign corps subject to personal jurisdiction?
ALWAYS, on any claim whatsoever, no matter where in the world the claim arose
What is the basis for jurisdiction over unlicensed foreign corps? (doing business in NY requirement)
At the time the action is commenced, the corp's employees or agents are in NY, engaging in commercial activity for the corp on a continuous, regular, and systematic basis
Are sales and advertising considered doing business in NY?
This is an insufficient contact with NY
What is a residence?
A place where a person lives for a fair amount of time with some degree of permanency (you can have multiple residencies)
What is a domicile?
The one residence at which a person intends to remain indefinitely and is treated by the person as the principal home (you can only have one domicile)
What is the Domicile rule for basis of jurisdiction?
Service of process can be made anywhere in the US regardless of where the claim arose if D is a domiciliary of NY at the time that action is commenced
What is a long-arm jurisdiction?
It allows jurisdiction over a nondomiciliary D where the cause of action arises from NY activity
What are the 5 factors of long-arm jurisdiction?
1) Transaction of business in NY -- with a substantial nexus between P's cause of action and D's transaction
2) Contract made outside NY to supply goods or services in NY
3) Tortious act within NY
4) Tortious act outside NY which causes injury in NY + D solicits business, derives substantial revenue from NY, or D can reasonably foresee consequences in NY
5) Ownership, Use, or Possession of NY Realty
Is personal jurisdiction necessary for matrimonial actions?
NO
What is the requirement for a matrimonial action in NY?
That P spouse is a domiciliary of NY (and therefore the marital status is in NY)
What are the NY durational residency requirements for matrimonial jurisdiction? (3 things)
1) Both parties are NY residents when the action is commenced and the grounds for the matrimonial action arose in NY

2) Either party has been a NY resident for a continuous period of at least 2 years prior to the action, OR

3) Either party has been a NY resident for a continuous period of at least 1 year prior AND NY has a prior link to marriage because it took place there, was the matrimonial domicile, or the grounds for the action took place there
What are the 2 rules that P's chosen venue must conform to?
1) For actions that effect title or possession of real property, venue must be the county in which the property is located

2) For all other actions, venue can be any county in which any party resides at the time the action is commenced
Is improper venue a jurisdictional defect or a basis for dismissal?
NO, and either party, by motion, may request the court to change the venue to the county most convenient
What are the 2 ways D can respond to the summons + complaint to avoid default?
1) Serve an answer
2) Make a motion to dismiss under CPLR 3211
What does D's answer consist of?
1) Denials of allegations that D wishes to contest

2) Affirmative defenses that D wants to raise
How can P respond to a counterclaim by D?
P can give a reply, which consists of denials and affirmative defenses
What are all litigant papers called after P's initial service of process?
Interlocutory papers
What is the time limit for serving the answer if service was by personal delivery within NY?
20 days of delivery
What is the time limit for serving the answer if service was by 1st class mail + acknowledgment?
20 days from D's return of the acknowledgment
What is the time limit for serving the answer if service was NOT by personal delivery within NY?
30 days after service is complete
What are the 8 ways that D can make a pre-answer motion to dismiss (CPLR 3211)?
DOWNFALL:

D - Documentary evidence; legally operative document (like mortgage, deed, or contract)
O - Other Action; something is pending between the same parties on the same cause of action
W - Want of Capacity; P is an infant suing without proper representative
N - Non-joinder of a Necessary Party (like co-maker of promissory note)
F - Failure to State a Cause of Action; even if all the allegations are true, the substantive law does not recognize the cause of action
A - Affirmative Defenses
L - Lack of Personal Jurisdiction
L - Lack of Subject Matter Jurisdiction
What are the 3 potential defects of Personal Jurisdiction?
1) Lack of basis jurisdiction
2) Improper service of process
3) Defective form of summons
What are the 9 Affirmative Defenses?
SPARERIBS

S - Statute of Limitations
P - Payment (D has already paid the debt)
A - Arbitration (parties already litigated in arbitration)
R - Release (they've already settled)
E - Estoppel (issue preclusion)
R - Res Judicata (claim preclusion)
I - Infancy (of D)
B - Bankruptcy Discharge
S - Statute of Frauds
If you do not raise the proper affirmative defense in your answer, what happens?
Affirmative defenses that are not raised in the answer are waived (and your only hope is to amend your answer)

**Non-joinder of necessary party, failure to state a cause of action, and lack of subject matter jurisdiction CAN NEVER be waived
What two ways can D compel P to serve a complaint?
1) Serve a demand for the complaint
2) Serve a notice of appearance
How many times may parties amend their pleadings?
Each party is entitled to amend his pleading once as a matter of right (without judicial permission)
What is joint and several liability?
Where each tortfeasor is liable to P for the full amount and P can seek to obtain the entire judgment from just one D if he wishes
What is 3rd party practice?
T (the third party) is answerable to D (the defendant) if, and only if, D is held liable.
What is contractual indemnity?
When one party contractually agrees to indemnify another against all claims, suits, etc., arising from the subject matter of the contract. **This relationship will support a third-party action against the indemnitor.
What is implied indemnity?
In certain circumstances, a vicariously liable defendant may bring a third-party action against the person for whose misconduct he is answerable.
What is contribution?
joint tortfeasor may ordinarily seek contribution from other joint tortfeasors who participated in the tort (subject to the release statute) for any excess that he pays over his equitable share.
What is the effect of release of a tortfeasor?
1) The settling tortfeasor may not seek or be subject to a claim for contribution 2) Judgment in favor of P against the non-settling tortfeasor will be reduced by the greater of the amount paid for release or settlor's shar of fault; and 3) If more than one tortfeasor has settled with P, the reduction is made on an aggregate basis.
What is the effect of release of a party who entitled complete indemnification from another?
The release statute does not apply.
How much non-economic loss can tortfeasor be held liable for?
1) If more than 50% culpable he can be held liable for the entire amount.

2) If less than 50% culpable, his total liability can not exceed 50%.
What is non-economic loss?
“Noneconomic loss” includes pain and suffering, mental anguish, and loss of consortium.
What are the exceptions ot the non-economic loss limitation?
Does not apply to: 1) Persons who acted intentionally or recklessly; 2) Persons who released hazardous substance into the environment 3) Persons held liable in a strict liability case wher the manufacturer is not a party; 4) Persons held for use, opp, or owning a motor vehicle.
How much economic loss can tortfeasor be held liable for?
Full recovery regardless of relative share of fault.
What is an impleader?
A stakeholder may join conflicting claimants in an action to determine to whom he is liable. Alternatively, if either claimant sues the stakeholder, he may file an interpleader summons and then serve the other claimant.
What is intervention?
This involves a situation where a person not joined wishes to become a party.
When may a person intervene as a matter of right?
Unless a statute expressly confers the right, intervention as of right is limited to: 1) situations where the intervenor may be bound by judgment and his interests are inadequately represented by existing parties, or 2) where he may be adversely affected by the disposition of property subject to the court’s control.
What is mandatory joinder?
If a necessary party who is omitted is beyond the jurisdictional reach of the forum and indispensable to the maintenance of the suit, then dismissal results.
What classes of parties have been held to be necessary?
(i) joint obligors; (ii) joint obligees; (iii) a corporation in a derivative stockholders’ suit; (iv) an absent party claiming ownership of property sought to be recovered by plaintiff; (v) a member of a joint venture not joined in a suit by another joint venturer against a third joint venturer to impress a trust on assets allegedly belonging to the venture; and (vi) beneficiaries of a trust in an action by other beneficiaries against the trustee seeking an accounting.
What is permisive joinder?
Ps or Ds may join(be joined) if there is a common question of which will arise as to each of the parties sought to be joined, and if it arises out of the same transaction or series of transactions.
Is misjoinder of a permissive party grounds for dismissal?
No. The improper party is merely dropped.
Does a party have an absolute right to permissive joinder?
No, even where joinder is technically proper, when “embarrassment, delay, or expense” will result, the court may sever a multiparty suit
What is a class action?
One or more members of a class may sue or be sued on behalf of all.
What factors determine whether to allow the action to proceed as a class action?
1) Number in the class; 2) Common questions of law or fact; 3) Fair and adequate representation of class members; 4) Typicality of the representative’s claims or defenses; 5) Superiority of the class action; 6) Individual members’ interest in individual control of separate actions, if any; 7) Impracticality or inefficiency of separate actions; 8) Nature and extent of other relevant pending litigation; 9) Desirability of concentrating the litigation in one court; and 10) Manageability of the class action.
What does due proces require with respect to class actions?
That state class action statutes assure adequate protection of the interest of the entire class.
When must plaintiff move for certification of the class?
within 60 days after the time for answer has expired.
What is the minority view on contribution?
The shares of contribution must always be equal in amount, regardless of % of fault
What is the NY view on contribution?
The amount of contribution depends on the % of fault

If one co-D is insolvent, another D cannot compel other D's to pay more than their equitable share

If all but one D is insolvent, P can still seek payment 100% by one D
What is a motion?
A motion is an application for an order of the court, a request for some type of preliminary or incidental relief
What is an accelerated motion on notice?
A preliminary order, signed by the judge, directing the adversary to "show cause" on the date specified by the judge of why the motion should NOT be granted
What is an ex parte motion?
A motion where no advance notice is given to the adversary; the moving party goes straight to court with the motion papers & requests an order granting the relief sought
Is there any appeal on an ex parte motion?
There is no appeal; the only remedy is to make a motion on notice to vacate the ex parte order
What is the purpose for a motion on summary judgment?
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
Who can make a motion for summary judgment?
Any party that wants to ask the court for judgment as a matter of law
Does a summary judgment have any genuine issue of material fact?
NO, the moving party is contending that reasonable persons cannot differ on the facts and therefore entitled to judgment as matter of law
What is the moving party, and what must he submit (for summary judgment)?
The party that submits the motion, evidence in the form of affidavits by people who have actual knowledge of the facts, documents, or other discovery materials
What is the opponent party, and what must he submit (for summary judgment)?
The party that tries to defeat the motion with the same type of evidence that shows there is a triable issue of fact

**If the party is unable to product opposing evidence, the court can either:
- deny the motion
- grant a continuance to permit additional evidence to be obtained
What happens when summary judgment is denied?
The case resumes its normal progression
When can a court grant summary judgment?
If the court concludes, upon searching the record (and reviewing all the evidence), that there can be judgment as a matter of law on that issue.

Sometimes, a boomerang effect occurs whereby the court may grant SJ to the opponent even if it didn't make a cross-motion
Is summary judgment possible prior to service of the answer?
YES
What are the 2 situations where summary judgment is possible prior to service of the answer?
1) Pre-answer Motion for Summary Judgment - D's pre-answer motion to dismiss for failure to state a cause of action is converted to SJ for the court

2) Motion for summary judgment in lieu of a complaint - P may move for SJ at the same time he serves process by accompanying the summons with motion papers for SJ, BUT ONLY in 2 ways:
- Action on an instrument for the payment of money only
- Action on an out-of-state judgment
If the P wishes to make a motion for summary judgment in lieu of a complaint, must he serve D a notice of the motion?
YES, after filing process with the court
What are provisional remedies?
Remedies that operate while the action is pending to prevent ineffectual judgments
Since lawsuits can take time to resolve and since P's rights may be jeopardized while the matter is pending, what may P seek?
A provisional remedy
What are the 5 provisional remedies?
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)
Do the provisional remedies require a court order?
YES, all except Notice of Pendency
Does Notice of Pendency require a court order?
NO
What is the purpose of an Attachment, and what does it do?

(Provisional Remedy)
To provide security for the enforcement of money judgments

P obtains the order from the court and gives it to a NY sheriff who then levies upon the NY property of the D (a lien on the property pending the outcome of the action)
What is the purpose of an Preliminary Injunction?

(Provisional Remedy)
To maintain the status quo while an EQUITY action is pending

** This is NOT for actions solely for money damages

**It may be used when seeking a permanent injunction OR if D threatens to harm P's interests
What is the purpose of an Temporary Receivership?

(Provisional Remedy)
To stop harm to D's property or business by taking over management of property in D's possession y a person appointed by the court
What is the purpose of an Replevin?

(Provisional Remedy)
To ensure enforcement of a judgment awarding possession of the chattel; an action that seeks to recover possession of tangible personal property
What is the purpose of an Notice of Pendency?

(Provisional Remedy)
In an action in which the judgment will have a direct effect on real property, the filing of a notice of pendency gives record notice to any potential buyers or mortgages that any interest they acquire in the property will be subordinate to that of the P
What is a sheriff's levy in an order of attachment?
For Real Property -> filing of an order of attachment with the county clerk where the real property is located

For Personal Property -> actual seizure or constructive seizure by order imposing a lien
When can P get an order of attachment?
When P is seeking money damages AND:
- D is an unlicensed foreign Corp or a non-domiciliary of NY, OR
- D is about to conceal & remove assets from the state with intent to defraud
What are the 3 requirements P must fulfill for an order of attachment, preliminary injunction, temporary receivership, and replevin?
P must make a motion for the order along with:
1) Affidavits in support of the motion, AND
2) The affidavits must show the probability of success on the merits
3) P must post an undertaking (bond) in order to indemnify D for any damages caused by the motion
Can an action for attachment be made on notice or ex parte?
BOTH on notice and ex parte
Can an action for a preliminary injunction be made on notice or ex parte?
ONLY on notice
What is the difference between a preliminary injunction and a temporary restraining order?
A TRO is used for cases involving the threat of immediate injury, to maintain the status quo while the motion for the preliminary injunction is pending
What types of action are for Temporary Receivership?
P must be asserting an EQUITY claim (not solely for money) in which specific property is the subject matter of the action, AND
There is a danger that D will injure or destroy the value of the property while the action is pending
Can an action for a temporary receivership be made on notice or ex parte?
ONLY on notice, NOT ex parte
Can an action for replevin be made on notice or ex parte?
BOTH
What is impoundment in a replevin action?
Where the sheriff seizes the chattel and retains custody of it pending the outcome of the case
When are notice of pendency actions used?
Used when the judgment will have a direct effect on REAL property

** Title, Possession, Use - Ejectment, Partition, Mortgage Foreclosure, Specific Performance to Sell Property
Can an action for Notice of Pendency be made on notice or ex parte?
NEITHER! This is a trick. Lis Pendens does not need a court order
What is the procedure for filing a notice of pendency?
P files a notice of pendency with the County Clerk of the county where the real property is located
(This is what puts a lien on the property)

No affidavits are required
No court order is required

The duration is 3 years after filing
How do you place a case on the court calendar?
Either party files a note of issue, which stops discovery and says "the case is ready"

AND serves a copy to all other parties
How do you obtain a jury trial when you want it?
1) The party who files a note of issue can request it (otherwise, waived)
2) If no demand is made, the other party can request it
3) You have a right to a jury trial for 5 types of civil actions:

- Action seeking solely money damages
- Action for replevin
- Claim for real property
- Annulment of Marriage
- Divorce action (but not for child custody or alimony)
What does Res Judicata provide?
It avoids and prevents needless re-litigation of the same claim
What is the NY approach to res judicata?
Transactional Approach:

When a claim against D is brought to a final judgment on the merits, all other claims by P against that D arising out of the same transaction are barred, even if based on different theories or if seeking a different remedy
What does Collateral Estoppel provide (3-factor test included)?
It avoids and prevents the need for re-litigation of specific fact issues that were decided in a prior proceeding upon a showing of 3 things:

1) The issues in the former proceeding & current proceeding are identical
2) The issue was actually litigated and decided in the former proceeding
3) The party against whom issue preclusion is asserted had a full & fair opportunity to litigate the issue in the former proceeding
Can collateral estoppel be used against someone who was not a party in the prior action?
NO
What is a special proceeding?
A speedy, streamlined procedure to obtain a judgment as a final resolution (similar to motion practice)

** Examples: Probate on a will, election disputes, Landlord eviction, Corporate dissolution, habeus corpus, Article 78, enforcement on arbitration agreements, etc.
How do you receive remedy in a special proceeding?
To get a remedy, you need specific statutory authorization (authorized by statute to receive it)
What are the 4 steps to a special proceeding?
1) File a petition
2) Serve the petition and notice of petition on Respondant
3) Include in Notice of petition that answer should be served + given on specified return date for the hearing
4) Serve affidavits (both sides) submitted to the court on the return date so the court can make a decision