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43 Cards in this Set
- Front
- Back
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SMJ
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-Competency of court to hear a particular case.
-If lacks SMJ --> orders, judgments, findings of fact are void. -Cannot be waived & parties can't consent to it -Can be raised as: (i)an affirmative defense in an answer, (ii) motion for summary judgment, (iii) at trial, (iv) on appeal, or (v) motion to vacate judgment. |
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Supreme Court
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- Filing Court
- Unlimited jurisdiction for all legal & equitable relief - Exclusive jurisdiction over matrimonial actions, CPRL Article 78 proceedings, and declaratory judgments |
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Limits of Supreme Court
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- Cannot entertain cases against NYS, except cases testing the constit. of a NY statute, claims regarding real property (where state is a party) and an Article 78 proceeding against the state.
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Foreign Corps Suing or Being Sued in NY
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- An unauthorized foreign corp. doing biz. in NY can commence an action, but must pay all fees, taxes, and penalties owing for the pd. it did biz. w/o authority.
- Any NY resident or domestic corp may freely sue a foreign corp. - However, a non-resident or foreign corp. may not sue a foreign corp. in NY unless the underlying action has a meaningful tie to the stste. |
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County Courts
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- Filing Courts
- Outside of NYC - Money & Real Property Actions - All D's must reside in the county; or a D must have an office for the transaction of business in the country and the coa must have arisen in that county. |
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NYC Civil Court
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- Filing Court
- $25,000 limit - Small Claims Court - Limit of $5,000 - A corp. can only be a P in the commercial part - A corp. D must be represented by an attorney, director, officer, or employee of the corp. |
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District Court
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- Filing Court
- $15,000 limit - Only in Nassau & Suffolk |
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Family Court
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- Service Court
- Has concurrent jurisdiction w/ SC over family actions invovling abuse and neglect, support, paternity, juvenile deliq., & persons in need of supervision. - Can enforce or modify alimony or support decrees granted by foreign courts and of NY (if so provided by SC) - Has exclusive jurisdiction over criminal conduct between family members, although SC does too by case law - Has concurrent juris w/ Surrogage court over adoptions - Note: Only SC can dissolve marriages |
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Surrogate Court
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- Service Court
- Has jurisdiction for all matters relating to decedent's, estates, probate of wills, administration of estates, guardianship of the property of minors - Concurrent jurisdiction over adoptions w/ Family Court |
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Justice Court
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- Service Court
- $3,000 limit |
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Court of Claims
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- Service Court
- Exclusive jurisdiction over tort & K claims against NYS - Only NYS can be sued in this ct. |
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Transfer & Removal
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- If ct. has PJ over the D or his property, but case is placed in court that lacks SMJ, the case is subject to dismissal, although it may be transferred or removed to a court that has SMJ
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Transfer & Removal (cont'd)
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- Court never had SMJ (mistake by P)
- Motion for relief is made in SC - Court originally had SMJ, but events that occurred after the suit requires the transfer of the suit to a ct. of greater jurisdiction - Application for removal is made in transferee (new) ct. - Court has SMJ but a lower court also has SMJ - Removal downward requires consent from the party adversely affected. However, caselaw asserts that the court can remove downward without consent. |
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Transfer & Removal (cont'd)
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- Removal can be ordered to alleviate calendar congestion to a lower court that would have jurisdiction but for the amount demanded.
- Consent is NOT required, b/c the recovery can exceed teh lower court's juirsidictional limits |
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Transfer & Removal (Misc. Transfers)
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- Removal of administration of decedent's estate from supreme to surrogate's court.
- Removal by SC to SC, where county court judge is incapacitated. |
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FNC
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- When ct. finds that in the interests of substantial justice the action should be heard in another state the court has the discretion to decline jurisdiction and dismiss the action.
- Issue cannot be raised by court, D must raise it. |
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FNC Factors
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- P's choice of forum, location of witnesses, burden placed on the D litigating in NY vs. litigating in another forum, and the court's convenience
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FNC (cont'd)
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- Court may impose conditions on the moving party as a condition to granting the change of forum.
- Court cannot grant FNC if the parties to a K agreed to apply NY law CPLR 327b and the non-resident agreed to submit to jurisdiction in NY and the K involves $1mill or more. |
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County - Venue
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Venue refers to the place of trial within the state, i.e., county
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Commencement in Filing Courts
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An action is commenced on the date the S&C is filed with the clerk of the court provided service is then made on the D within 120 days of filing.
- If no service within 120 days, or service after 120 days, the D may move to dismiss; however, the P may seek an extension of time before or after the 120 days upon "good cause" (reason for delay including a D's avoidance) or "in the interest of justice" (merits are relevant but so is lack of P's diligence) |
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Non-Compliance by P w/ Commencement Rules
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- Is waived by the D unless properly objected to in the answer or pre-answer motion to dismiss.
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Can P's correct mistakes?
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- They can with court approval.
- At any stage of the action, including the filing of a summons w/ notice, S&C, or petition to commence an action, the court may permit a mistake, omission, defect, or irregulariy, including the fialure to purchase or acquire an index number or other mistake in the filing process, to be corrected, upon such terms as may be just, or, if a substantial right of a party is not prejudiced, the mistake, omission, or defect, or irregularity shall be disregarded, provided that any applicable fees shall be paid. |
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In Service Courts what does service on D accomplish?
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- Commenced the action; and
- Acquires jurisdiction over the D |
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Who can give notice?
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- Someone 18 years or older who is a non-party in NYS.
- Out of state: Anyone authorized to serve in NY or in the state where serving; or an attorney - Non-Parties = An officer or director of plaintiff-corporation, spouse, P's attorney - Parties = SHs |
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Service on Corporation
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In hand to an officer, director, a managing or general agent, any agent authorized by the corporation or anyone authorized by law or (if all other methods are impracticable, including service by mail or BCL service) by court order.
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Service on an Individual - Personal Delivery
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- In hand or within the vicinity of resisting D
- The D has 20 days to answer if served in-state and 30 days to answer if out of state |
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Service on Individual - SAD
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- Delivery in hand or within the vicinity of a person of suitable age and discretion at the D's actual place of business, dwelling, or usual place of abode AND by mailing to either the D's last known residence or by first class mail to the actual place of business in a plain envelope.
- Delivery and mail may be done in either order but must be done within 20 days of each other. - Jurisdiction is acquired on the latter - To complete service the affidavit of service must be filed within 20 days of the latter. - Service is complete 10 days after filing. - Then D's 30 day time to answer begins to run. |
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Service on Individual - Nail & Mail
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- Only after due diligence
- Affix service to door at either actual dwelling place or actual place of business & mail a copy by first class mail either to residence or place of business - 2 steps have to be w/i 20 days of each other - Must file affidavit of service w/i 20 days - Service is complete 10 days later |
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Service on Individual - Service on a Designated Agent
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- Agent's authority must be on file in the county clerk's office
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Service on Individual - Expedited Service
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- Permission of court
- Used when all other means of service are impracticable such that the court improvises a method of giving notice that complies with due process. |
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Service on Partnerships
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(i)Personal Service on a partner using any method available on an individual, or
(ii) Substitute service on the managing or general agent or person in charge of the office, and within 20 days mailed by first class mail service to the partner at either last known residence or place of business. File proof of service within 20 days; serveice is complete 10 days later, or (iii) If (i) and (i) cannot be accomplished with due diligence, then nail and mail at place of business, or (iv) delivery to agent authorized to receive service, or (v) Expedited Service with the permission of the court when other methods of service are impractical Note: Service by mail may also be used. |
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Alternative Service
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- Service by Mail
- Can be made on any D other than infants and incompetents. - Mailing must contain an acknowledgment of receipt form that the D may sign and return, if D fails to do so, P must serve process pursuant to one of the traditional methods above. |
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Service on Corp. pursuant to the BCL - Domestic & Authorized Foreign Corps
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- Both subject to general jurisdiction and appoint the SoS as their agent for service of process
- Send two copies of pleadings to SoS (service is then complete) - The SoS mails one copy to the corporation at the filed address |
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Service on Corp. pursuant to the BCL - Unauthorized Foreign Corps
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- Must establish a jurisdictional predicate
- One copy of the pleadings delivered to SoS - The P must then serve the corp. w/ another copy of the pleadings by hand or mail the pleadings and file proof the mail was received. |
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Common Service Rules
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- Can serve on legal holidays
- CANNOT serve on Sunday - Cannot serve on Sabbath upon a person known to observe Sabbath. - A trick may be used - Luring is void - D has to be aware he is being served - A P not subject to PJ designates the clerk of the court or their attorney as agent for service of process for any claim the D may have against the P. |
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Immunity from Service of Process
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- A non-resident party or witness who comes voluntarily into NY to testify or assist at a proceeding of a judicial or quasi-judicial nature who would not otherwise be subject to PJ by service outside the state is immune from service of process.
- Immunity ends within a reasonable time after teh need for their presence terminates. - There is no immunity if D could be served out of state or does not voluntarily come into NY (e.g., by subpoena) |
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How does a D appear?
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- A D appears by serving a notice of appearance, motion to dismiss, motion to correct a pleading, or by serving an answer.
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Are all appearances submissions to in personam jurisdiction?
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- All appearances are submissions to in personam jurisdiction unless it is a limited appearance.
- A D in an action where the P has acquired only in rem jurisdiction may appear in rem by making an appearance limited to the issue of contesting in rem jurisdiction. - It becomes in personam only if the D loses and rather than defaulting and forfeiting the property stays and defends on the merits. - An appearance in a quasi in rem action is automatically limited in jurisdictional amount to the value of the property attached. |
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Objections to Jurisdiction
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- Must be raised at the earliest opportunity by a pre-answer motion to dismiss, or as an affirmative defense in the answer or amended answer as of right or the objection is waived.
- Therefore, an appearance by the first of either must contain an objection to jurisdiction or it is waived. - Appearance by notice of appearance or by a motion to correct a pleading does not waive a jurisdictional objection. - If improper service is raised as a defense in the answer or amended answer, the D must move for a judgment within 60 days from service of the original answer. However, CPLR 3211(e) allows the D to move for a judgment after 60 days upon either "undue hardship" or upon application for "good cause shown" |
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By What Time Must the D Appear?
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- 20 days if individual D is served by in hand delivery within the state (includes CPLR 311 service on a corp. and service by mail)
- 30 days if served in any other way in or out of NY |
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What are the D's options after service?
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i. Default - Under CPLR 3012(d) D can move for an extension of time to appear or plead provided he shows some reasonable excuse for delay or default.
ii. Demand a complaint if D was only served a summons and notice - P has 20 days from demand to serve the complaint. The D has 20 days to serve the answer from service of the complaint. If P does not serve a complaint within 20 days of the demand, the D can move to dismiss for failure to serve a duly demanded complaint. iii. File a notice of appearance to avoid an ex parte default iv. Make a pre-answer motion to dismiss v. Make a motion to correct the pleading vi. Appear to defend on the merits by serving an answer vii. Counterclaim (raising an unrelated counterclaim will waive any previously raised jurisdictional objections) - Any and all causes of action may be raised. viii. Make an in rem (to contest jurisdiction only) or quasi in rem (to defend on the merits) limited appearance. - If jurisdictional issue is lost by D in an in rem limited appearance, the appearance converts to in personam, if D stays and defends. If they withdraw, it is an in rem default. |
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Jurisdictional Predicate - In Rem
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Property is the subject matter of the cause of action (status of marriage, suit to quiet title, and replevin of chattel)
-Recovery is limited to D's interest in the property |
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Jurisdictional Predicate - Quasi in Rem
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The relief sought is money. D's contact w/ NY is a minimum contact not recognized in NY so there is no PJ. The P must attach D's property in the state prior to service of process and the jurisdiction and recovery is limited to the value of the property.
- Automatic limited appearance to defend on the merits. |
