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63 Cards in this Set
- Front
- Back
Commencement of the Statute of Limitations consists of...
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1. Filing (summons and complaint OR summons and notice)
2. Filing with the proper court clerk on or before the last day of SoL (for Supreme Court it's county clerk) |
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SoL for medical malpractice
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2.5 years
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When does SoL begin to run for med mal?
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Upon date of injury, NOT date of discovery.
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Exceptions to the date of injury rule for med mal SoL
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1. Continuous treatment rule - SoL begins to run from end of continuous treatment
2. Foreign object rule - Either 2.5 years from operation OR 1 year from date PL discovers/reasonably should have discovered the object |
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SoL for professional malpractice
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3 years
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When does SoL begin to run against architects for professional malpractice?
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Upon completion of the building
DON'T BE TRICKED BY A PERSONAL INJURY COA AS OPPOSED TO PRO MAL |
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3 possible causes of action for injury from defective product and each applicable SoL
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1. negligence: 3 years from date of injury
2. strict product liability: 3 years from date of injury 3. breach of warranty: 4 years from date DEF delivered the product |
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SoL for indemnity and contribution claims
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6 years
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SoL for cases involving exposure to toxic substances
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3 years from discovery of injury or date it should have been discovered w/reasonable diligence
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SoL for breach of contract
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6 years
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Tolling for infants (if original SoL is 3 years or more)
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Tolled until 3 years after end of disability OR original SoL from accrual - whichever is longer
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Tolling for infants (if original SoL is < 3 years)
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When disability ends, PL gets period of original SoL
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SoL for Survival Claim
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If PL dies before SoL expires, representative gets time remaining on SoL or 1 year from decedent's death
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SoL for Wrongful Death Claim
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2 years from date of death, but it must be shown that at the time, SoL for decedent's underlying claim had not expired
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The "Borrowing Statute" for SoL
If PL is NON-RESIDENT OF NY when claim arose... |
NY will apply the SoL of state where claim arose if it is shorter than NY. If longer, then we apply NY.
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The "Borrowing Statute" for SoL
If PL is RESIDENT OF NY when claim arose... |
NY will apply NY SoL
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Within how many days must a party serve process on opposition?
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120 days
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On what days can process NOT be served
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1. Sunday
2. If DEF is Saturday-Sabbath observer, and PL knows this, then no Saturday service (innocent service is not a defect) 3. Service on holiday IS OK |
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When is personal delivery complete
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Upon process server's TENDER of summons DIRECTLY to DEF
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Definition of leave and mail
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process server may DELIVER process to person of suitable age and discretion at DEF's ACTUAL dwelling place or ACTUAL place of business PLUS mail a copy by regular mail to DEF at DEF's ACTUAL place of business or last known residence
The 2 steps must occur within 20 days of eachother (and still 120 days from filing process) |
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Definition of affixing and mailing (aka nail and mail)
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process server may AFFIX process to the door of DEF's ACTUAL dwelling place or ACTUAL place of business PLUS mail a copy by regular mail to DEF at his ACTUAL place of business or last known residence. Must also show due diligence in attempting to serve with other methods
20 days within each other (and regular 120 days from filing) |
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When is service complete for nail and mail and leave and mail
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10 days after filing of proof of service
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Is nail/mail or leave/mail permissible for corps?
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No, must use personal delivery
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Bases of personal jurisdiction over DEF's person
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1. Presence in NY
2. Doing business 3. Domicile in NY (even if served elsewhere) 4. Long-arm jurisdiction 5. Non-resident motorist statute 6. Consent |
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Will personal delivery based to a non-resident in NY confer PJ?
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YES
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An unlicensed foreign corp is subject to NY jurisdiction if...
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it is doing business on a regular, systematic and ongoing basis.
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If a foreign unlicensed corp is doing business in NY, need the CoA arise in NY?
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No
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domicile v. residence
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domicile is more permanent - can only have 1. you can have more than 1 residence
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long-arm jurisdiction requires
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minimum contacts
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5 situations involving minimum contacts
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1. Specific transaction in NY (less than doing business)
2. K outside of NY in which DEF agreed to supply goods/services in NY 3. DEF's commission of a tortious act in NY 4. claim arises from DEF's ownership, use or possession of real property in NY 5. claim arises from DEF's tortious act outside NY which causes injury inside NY PLUS the existence of some additional link between DEF and NY |
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Service required under Non-resident Motorist Statute
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PL serves process on DEF by personally serving 1 copy on NY secy of state PLUS mailing 2nd copy to DEF by certified mail
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Can non-resident motorist statute get jurisdiction over owner if driver is different? How about via long arm?
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NRMS will get jurisdiction of driver if driving with owner's permission.
Long arm will get jurisdiction over driver only. |
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personal jurisdiction is not required in matrimonial action so long as...
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PL is a NY resident - confers in rem jurisdiction.
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If ex-spouse is seeking monetary support, then...
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Matrimonial long-arm statute:
Where PL is resident of NY, can acquire long-arm over DEF if: 1. NY was the matrimonial domicile of DEF and PL prior to separation, OR 2. DEF abandoned PL in NY, OR 3. DEF's monetary obligation accrued under an agreement executed in NY |
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Require service for matrimonial action
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Personal service. Can only use nail and mail if PL first gets court order
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Residency requirements in PL's complaint
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1. if both parties are NY residents at time action is commenced, AND the grounds for the matrimonial action arose in NY, then NO prior period of residency is required.
2. If EITHER party has been NY resident for a continuous period of at least 1 YEAR immediately prior to the action AND NY has prior link to marriage (marriage in NY, NY was domicile at one point, or grounds for action arose in NY) 3. If EITHER party has been a NY resident for continuous period of at least 2 years immediately prior to the action. |
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If DEF was served with process by personal delivery in NY, he has how many days to answer?
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20 Days
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If DEF was served with process by mail PLUS acknowledgment, he has how many days to answer?
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20 days
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If DEF was served with process under any other circumstances, he has how many days to answer?
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30 days
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Grounds for motion to dismiss
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DOWNFALL
Documentary Evidence, Other action pending, Want of capacity, Non-joinder of necessary party, Failure to state CoA, Add'l affirmative defenses, Lack of PJ, Lack of SMJ |
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Affirmative defenses
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SPARERIBS
SoL, Payment, Arbitration (already awarded), Release, Estoppel, Res judicata, Infancy of DEF, Bankruptcy, SoF |
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How to preserve PJ defenses
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1. Before serving the Answer, make a 3211 MTD that includes lack of PJ, OR
2. Make no 3211 MTD on ANY ground and instead include lack of PJ as an affirmative defense in the Answer |
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ADs not raised in Answer are deemed waived, EXCEPT
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1. non-joinder of necessary party
2. failure to state CoA 3. lack of SMJ |
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Upon receipt of summons with notice, DEF must serve
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a demand for the complaint OR a notice of appearance
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After DEF's service of demand for complaint or notice of hearing, PL must serve a complaint within how many days
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20 days
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Time limits for amendments for PL and DEF
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PL has 20 days after DEF serves the answer.
DEF has 20 days after he serves the answer. |
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Steps for joining third party defendant
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1. DEF files summon and third party complaint
2. DEF, within 120 days of filings, must serve copies on third party defendant and PL. |
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Minority rule of contribution - equal shares formula
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regardless of fault, all TFs must pay equal amount to PL
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NY and MS formula of contribution
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actual % of fault.
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The reduction formula for payments due to settlements
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any judgment against a non-settling TF must be reduced by EITHER the amount of the settlement OR the settling TF's equitable share of fault - whichever is LARGER
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NY CPLR Article 16
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In a personal injury claim - a joint TF whose fault is less than or equal to 50% CANNOT be required to pay PL more than his equitable share of PL's noneconomic damages
nonecomonic damages include medical damages or lost income |
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Effects of service of the copy of the deciding order (SRO)
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1. service of order is necessary for order to take effect
2. starts running of 30 day time limit of the appeal from the order |
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when can a party move for SJ
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after filing of the answer
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what kind of evidence must movant rely on for SJ?
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affidavits and other relevant docs or discovery materials
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When can SJ be possible before answer?
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1. DEF's pre-answer MTD for failure to state CoA can be converted into SJ by the court (so long as factual affidavits were filed with MTD and court gives notice to parties), OR
2. Motion for SJ in lieu of complaint (available for actions based on an instrument or out of state judgment) |
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NY Provisional Remedies
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1. Attachment
2. Preliminary injunction 3. Temporary receivership 4. Replevin 5. Lis pendens |
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when can attachment be used?
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if PL is seeking $ damages AND
1. DEF is unlicensed foreign corp or non-dom of NY, OR 2. DEF is about to conceal or remove assets from state with intent to defraud creditors or frustrate the enforcement of a judgment |
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effect of attachment order delivery
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delivery automatically imposes a lien on the personal property interest AND delivery serves as an injunction against transfer
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when can preliminary injunction be sought?
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an equity action where PL's complaint seeks either permanent injunction OR DEF threatens to harm PL's interest in subject matter of action
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in what civil actions does a party have a right to jury trial?
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1. action seeking solely $ damages
2. replevin 3. claim to real property 4. annulment of marriage 5. divorce action on issue of grounds for divorce, but NOT issues of child custody |
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Transactional Approach to res judicata
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When a claim against a particular DEF is brought to final judgment based on merits, all other claims by PL against the same DEF are barred if they arise out of the same transaction (even if they are based on different theories and seek different remedies)
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Required showing for issue preclusion (collateral estoppel)
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1. Issue in former proceeding and current proceeding is identical,
2. Issue was actually litigated and decided in the former proceeding, AND 3. Party against who issue preclusion is asserted had a full and fair opportunity to litigate the issue in the prior proceeding |
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MTD standard
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A court will grant a motion to dismiss for failure to state a cause of action in instances where, viewing the facts as stated in a light most favorable to the nonmoving party, the pleadings fail to state a cause of action for which relief may be granted.
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