Glossary of New York Bar Exam - Civil Practice
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- What is the jurisdiction of the NY Supreme Court?
- Statewide court of unlimited jurisdiction with branches in every county
- What are the other 9 courts' jurisdiction?
- 1) county court ($25k limit);
2) civil court NYC ($25k limit);
3) district courts ($15k limit);
4) city courts;
5) justice courts ($3k limit);
6) small claims courts ($3k limit);
7) Family Court;
8) Surrogate’s Court; and
9) Court of Claims.
- 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 (i) and (ii) above, 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 is forum non conveniens?
- If, upon motion of a party, the court finds that the interests of substantial justice require an action to be heard in the court of some other state, it may stay or dismiss the action in whole or in part.
- 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?
- May an unauthorized foreign corp doing buisness 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.
- When may a non-resident or foreign corp sue a foreign corp in NY?
- Only when the underlying action has a meaningful tie to the state.
- When may a resident or domesitc corp sue a foreign corp?
- Any New York resident or domestic corporation may freely sue a foreign corporation.
- May parties contractually chose NY law?
- Yes if:
1) Transaction involves at least $1 mil; and
2) The K contains an agreement by the nonresident or foreign corp/party to submit to NY jurisdiction.
- What is the statute of limitations?
- The time period within which a claim must be interposed.
- What is accrual?
- When the cause of action accrues, the statute of limitations starts to run.
- When is the claim interposed?
- 1) On the date of filing with the clerk in the supreme and county courts;
2) On the date of service in other courts.
- What happens if a defendant united in interest with a co-defendant is not timely served?
- If the summons names that D and is served on the co-D within the SOL, the action is timely against the defendant.
- What is the standard for a timely counter claim?
- If the claim would have been timely as of the date of the plaintiff's commencement, it is timely as a counter claim.
- What if the a counter claim would not have been timely when the action was commenced?
- It can be asserted as a setoff if it arises out of events giving rise to P's claim.
- How is timeliness measured for claims in an amended pleading?
- It is measured as of the date of service of the amended pleading.
- What is the exception to measuring claims in an amended pleading?
- If original pleading gives notice of the events upon which the newly added COA is based, the claim relates back to time of commencement of the original action.
- How is the applicable statute of limitations determined?
- Based on the remedy sought.
- How is a SOL defense raised?
- 1) In the a preanswer motion to dismiss; or
2) As an affirmative defense in the answer.
- What actions have a 20 year SOL?
- Action on judgment.
- What actions have a 10 year SOL?
- 1)Action to recover realty.
2)Action by crime victim against convicted defendant for a serious crime
- What actions have a 7 year SOL?
- Action by crime victim against convicted defendant for any crime.
- What actions have a 6 year SOL?
- 1) Contracts, express or implied (other than UCC Article 2—Sales).
2) Indemnity and contribution.
4) Equity actions (rescission,
- What actions have a 4 year SOL?
- Contracts governed by UCC Art 2—Sales.
- What actions have 3 year SOL?
- 1) Personal injury based on
negligence and strict products
2) Property damage, including
conversion and replevin.
3) Professional malpractice, other than medical malpractice.
- What actions have a 2.5 year SOL?
- Medical, dental, and podiatric
- What actions have a 2 year SOL?
- Wrongful death. (Statutory cause of action in favor of decedent’s distributees where defendant’s tortious conduct caused death; damages limited solely to distributees’ economic losses).
- What actions have a 1 year SOL?
- Intentional torts to the person
(e.g., assault, baftery, false
- What actions have a 4 month SOL?
- Article 78 proceedings.
- When does an action by a crime vicitim against D for a serious crime accrue?
- Period runs from the date of conviciton.
P may also sue for damages for up to 3 years from the discover of D's receipt of money from any source.
- When does a non-ucc contract cause of action accrue?
- On date of breach regardless of P's lack of knowledge.
- When does an indemnity and contribution cause of action accrue?
- On the date of payment for which the indemnity is sought
- When does a ucc contract cause of action accrue?
- Breach of warranty -- claim accures upon tender of delivery.
**The COA against the manufacturer or distributor accrues on the date delivery is tendered, not the date some 3rd party sells it.
- When do personal injury and property damages claims accrue?
- On the date the original injury occurs
- When do medical malpractice claims accrue?
- 1) Single treatment > On the date of malpractice,
2) Continuous treatment > Runs from end of treatment, or
3) Foreign objects > one year from discovery from the date of discovery of facts that would have led to discovery OR 2.5 years from the surgery.
- When does a wrongful death cause of action accrue?
- The date of death, except it must also be shown that the SOL on decedent's underlying personal injury claim had not expired on the date of death.
- When does a malpractice claim against an architect accrue?
- When the work is done, or at the latest, when the relationship of the architect and client terminates.
** An injured 3rd party's claim accrues at the time of injury
- When do all other non-medical malpractice claims accrue?
- Generally, when the wrong is completed. Upon termination of the relationship in a continuing course of professional service on a specfic matter.
- Can parties shorten or lengthen the statute of limitations?
- Yes. The parties can agree to shorten the SOL by agreement b/f the COA accrues. The may agree to extend the SOL after accrual.
- What will restart the applicable SOL?
- Any of the following will restart the period from the date they are made:
1) Part payment
3) Promise to pay an obligation
- What effect D's absence have on the SOL?
- Absence from the state that prevents exercise of jurisdiction over him operates to toll the SOL during the absence.
- What is the effect of disability on the SOL?
- If P is disabled (eg isane) at the time of accrual, the SOL is tolled until disability is removed.
**Where the SOL is tolled for infancy, military service, or disability, the action must be commenced in at most 3 years of when it begins to run OR less if the applicable period is shorter.
- What is the maximum toll for infant medical malpractice or claimant insanity?
- 10 year max time within which to commence.
- What happens if the case is dismissed and the applicable SOL has now run?
- P may commence a new action based upon the same transaction w[in 6 months.
So long the new action would have been timely at commencement of prior action and 1st action was not terminated for:
1) judgment of dismissal on the merits
2) voluntary discontinuance
3) neglect to prosecute
4) lack of personal jurisdiction
- What is a condition precedent?
- A period of time that is a substatve part of the claim and which must be pleaded and proved.
- What is the borrowing statute?
- A claim accruing out of state in favor of a nonresident of NY must be timely under both the foreign and NY SOL.
**A claim accruing out of state in favor of a resident of NY at the time of accrual is measured only by the NY SOL.
- What are the requriments of due process?
- 1) A basis of jurisdiction; and
2) Adequate notice and an opportunity to defend.
- What is the role of minimum contacts?
- A state’s exercise of jurisdiction must be founded on at least a minimum contact between the state and the D so that exercise of the state’s jurisdiction over the D does not offend “traditional notions of fair play and substantial justice.”
- What are minimum contacts?
- Under the min contacts test, there be some tie among the state, the litigation, and the defendant.
- What is the standard for notice to D?
- If D reasonably should have known that he was the person meant to be named, notice is sufficient.
- What is the role of service of process?
- It satisfies the notice requirement.
**In some case it will be a jurisdictional basis too.
- Who can make service of litigation papers?
- Service must be made by a person over age 18 and not a party to the action.
**A party’s attorney or guardian ad litem is not a party.
- Can service be made on a sunday?
- Service of process upon a defendant on Sunday is void even when made in another state.
- Can service be made on a holiday?
- Service on a legal holiday is permissible, provided it is not a Sunday.
- What are the 5 methods available to accomplish service?
- 1) Personal delivery (within the presence or purview of the defendant);
2) Leave and mail — delivery to one of suitable age at the D’s actual place of business, dwelling place, or usual place of abode, and a first class mailing of a copy of the summons to the defendant’s last known residence or actual place of business;
3) Service upon a designated agent;
4) Nail and mail — cannot be used if service can be accomplished with due diligence by physical delivery or leave and mail service. The “affixing” must be followed by a first class mailing either to the defendant’s last known residence or actual place of business; and
5) Expedient service — can only occur with court permission after an ex parte application is made.
- How must service be made on an infant?
- 1) Personally serving the summons within the state upon a parent, any gaurdian or any person having legal custody; or
2) If none of the above is in state, service is made on any person the infant resides with.
**If infant is over 14, summons must also be personally served on him.
- How must service be made on a person delcared incapacitated?
- A person judicially declared to be incompetent is served by personally serving the summons within the state upon the incompetent and his committee.
- Can service be made outside the state?
- A person domiciled in NY or subject to its jurisdiction may be served outside the state in the same manner as service is made within NY.
- How may a NY or registered foreign corp be served?
- 1) By delivering a summons to an officer, director, or agent authorized by appointment or law to receive service; OR
2) by delivering duplicate copies of the summons to the secretary of state.
**The secretary retains a copy and mails the other to the corporation.
- How can one serve unauthorized foriegn corp?
- By serving the secretary of state and mailing a copy to (or personally serving a copy outside NY on) an officer of the corporation.
- Can the plaintiff be served by first class mail alone?
- Yes. The mailing must contain an acknowledgment form, which the D may sign and return to the P by mail or personal delivery w/in 30 days after the receipt of process.
- What happens if D fail to return the acknowledgment of service by first class mail?
- If the D fails to return the acknowledgment, P must then serve process pursuant to one of the traditional methods.
- What are the 9 bases for personal jurisdiction?
- 1) Physical presence of D in NY at time of service;
2) "Doing business" in NY (corp presence)
3) Long Arm jurisdiction
4) Express consent.
5) Use of NY courts in a seperate action
6) Implied consent
- What is the doing business test for corporate presence?
- Permance and continuance in the state are required but the activity volume need not be substantial.
- Must the doing business test be applied to a domestic corp or authorized foreign corp?
- No. They are always ameniable to personal jurisdiction in NY.
- When may corp be said to be "doing business" in NY through a subsidary?
- Where there is complete identity of stock ownership or interlock corporate structure.
- When may corp be said to be "doing business" in NY through an independant contractor?
- If the activities of the in-state independent contractor go beyond mere solicitation and include authority to make contracts for the out-of-state corporation.
- What are the requirements for domicile as a basis for personal jurisdiction?
- 1) That D's actual domicile is in NY; and
2) That the domicile continues at the time of service.
- When may long-arm jurisdiction be used?
- Long arm jurisdiction is limited to a COA arising from the comission of certain acts by nondomiciliaries within the state.
- What are the bases for of long arm jurisdiction under CPLR 302?
- 1) Transacts of business w/in NY
2) Tourtious act in NY
3) Tourtious act outside NY causing injury within
4) Owenership or possession of NY realty
5) Certain matrimonial or family court cases.
- When may a tortious act outside NY causing injury within, be a basis for long-arm?
- Only if:
1) D regularly does or solicts buisness in NY; OR
2) D reasonably foresees the NY consequences of his tort
- What constitutes transacting business in NY for long-arm purposes?
- 1) Purpoesful NY activity;
2) In person or through an agent;
3) With a contract to supply goods or services in NY; and
4) The tort suit arises out of this NY business.
- When are martial or family court proceeds a basis for long arm jurisdiction?
- When P resides or is domiciled in NY at the time the demand is made and one of the following applies:
1) NY was the matrimonial domicile of the parties before they separated;
2) The claim for support arises out of an agreement made in NY;
3) The defendant abandoned the plaintiff in NY; or
4) The claim for support arose under NY law.
- When long-arm statute is the basis for jurisdiction, can an appearance confer personal jurisdiction with respect to COAs not arising from a long arm act?
- How may D be served in a long arm case?
- A long arm D may be served out of state in the same manner that would be proper in state.
- What is the most important form of implied consent?
- The non-resident motorist statute, which provides that a non-resident user or operator of a motor vehicle is subject to personal juridiction if involved in a NY accident.
- Does the non-resident motorist implied consent extend to the vehicle owner who was not involved in the accident?
- yes, provided the vehicle was being used for the owner’s business or with the owner’s permission (express or implied).
- Can a person consent to personal jurisdiction?
1) by voluntary appearance after commencement of the suit
2) by appointing an agent to recieve service prior to the suit.
- What is "in rem" jurisdiction?
- Grants the court jurisdiction to proceed even if personal jurisdiction can't be obtained, if the court has jurisdiction over the property involved in the suit.
- What is "qausi in rem" jurisdiction?
- Method to obtain jurisdiction by attaching D's NY property, even though the property as nothing to do with the action.
- How may service be effected where in rem actions?
- 1) Personal service - even if outside the state
2) Publication 2 designated newspapers - at least once in each of 4 consec weeks
- Is service by publication effective in matrimonial actions?
- Yes, but it needs to be published in one english language newspaper at least once a week in 3 consecutive weeks?
- When publication service considered complete?
- 28 days after first publication in in rem actions; 21 days after first publication in matrimonial actions.
- What is the effect of apperance?
- What defendant must do to avoid entry of a default judgment
- What constitutes an appearance when D is severd by summons with notice?
- D must respond by answer or motion to dismiss or to correct the complaint.
**Either response must be served within the same time periods specified for service of summons with notice.
- What is D's response time to the summons and notice/complaint if he was served by ordinary mail?
- If process is served by ordinary mail, the D’s response is due within 20 days after the D mails or delivers an acknowledgment of receipt to the P.
- How can D appear, yet not waive objections to personal jurisdiction?
- 1) By preanswer motion to dismiss based on such objection; or
2) By an answer containing the affirmative defense of lack of jurisdiction.
- Other than curative appearance, how might D waive objection to lack of personal jurisdiction?
- If the D moves to dismiss on grounds other than lack of jurisdiction and fails to join any jurisdictional objection in that motion, he is deemed to have waived any challenge.
- Will the assertion of counter claims by D waive his objection to lack of personal jurisdiction?
- No, if the objection is properly preserved and the counterclaim related to the P’s cause of action.
**However, pleading an unrelated counterclaim is a waiver.
- What is the procedural effect of losing on a motion to dismiss for lack of jurisdiction?
- He may make an interlocutory appeal on the question or appeal the question after the case if he loses on the merits.
- If D makes no motion to dismiss and interposes an answer without jurisdictional objection, will timely answer amendment save the objection?
- What is limited appearance?
- In a quasi in rem action, if the D loses after defending on the merits, the judgment will be limited to the attached property.
- Is there limited appearance in an In Rem action?
- No. D should take an interlocutory appeal b/c if he defends on the merits he may confer personal jurisdiction.
- What is the effect of appearance in a long arm case?
- Does not establish a basis for jurisdiction as to causes outside the reach of the long arm statute.
- What is "informal" appearance?
- No such thing. A D may not participate in the merits of a lawsuit as a genuine participant while also contending that he has not “appeared” because he has done none of the formal things that constitute a technical appearance.
- What is venue?
- Venue is concerned with convenience rather than competence.
- What is the proper venue for local action?
- Suits involving title to real estate (local actions) must be filed in the county where some part of the realty is located.
- What is the proper venue for transitory actions?
- Transitory actions are to be commenced in the county where any one of the parties resides.
- What is the residence of a partnership or sole proprietorship?
- The county where its principal office is located or where one of its partners or owners resides.
- What is the residence of a unincorporated association?
- The county where its president or treasurer resides.
- What is the residence of corporation?
- NY corps and authorized foreign corps are residents of the county where its principal place of business is located.
- What is the proper venue for a municipality or county?
- Suits against a city or county must be filed in county where its principal office is located, except that suits against NYC must be filed in the county where the COA arose.
- What is the proper venue when neither party is a resident?
- If neither party is a resident, then venue is proper in any county.
- What if a party is a resident of more than 1 county?
- A resident of more than one county is a resident of each county for purposes of venue.
- What is the proper venue in a replevin action?
- Suits in replevin may be filed either in the county of residence of any party or where the personal property to be replevied is located.
- How is venue changed?
- Must be motion by one of the parties.
- What are the 2 types of motions for change of venue?
- 1) Change "as of right"
2) Change in discretion of the court
- What is the special rule for venue in consumer credit transaction?
- When the consumer is the D, proper venue is either the D’s county of residence or the county where the transaction occurred.
**The clerk must refuse to accept the summons for filing in any consumer credit case where venue is improper.
- 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 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 liabilty 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 interpleader?
- 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.
- When is it permissive for a person to intervene?
- The court may in its discretion to allow him to intervene if:
1) a statute grants such a conditional right, or
2) if he has a claim or defense containing a common question of law or fact with that being litigated.
- When are pleadings sufficient?
- Pleadings should give notice to the court and adversary of the material elements of each cause of action or defense asserted.
- What happens if the facts in the pleading do not entitle the pleader to the releif sought?
- The pleading is subject to dismissal for insufficiency.
- What is the rule regarding division of a single claim?
- P may not divide a single claim into several parts and bring separate suits on each part.
- What is the rule regarding pleading in the alternative?
- Separate causes of action may be alleged in a single pleading. The causes may be inconsistent, stated hypothetically, and stated in the alternative.
- What special pleading rules exist for defamation?
- P must allege the particular words of alleged liable or slander.
- What special pleading rules exist for fraud?
- P must allege details of the misconduct.
- What special pleading rules exist for divorce or separation?
- P must allege details of the misconduct.
- What special pleading rules exist for satisfaction of judgment?
- P must allege the extent to which the judgement has been satisfied
- What special pleading rules exist for no-fault?
- Pleading must contain statement that P has suffered a serious injury or economic loss greater than basic economic loss
- What special pleading rules exist for medical malpractice?
- Pleading must contain no specific damage amount and certificate of merit after review of the facts and consultation with expert.
- What are responsive pleadings?
- The answer and reply.
- What may an answer contain?
- An answer may contain specific or general denials, affirmative defenses, and counterclaims.
- What is the effect of failure to plead affirmative defense?
- The failure to plead an affirmative defense constitutes a waiver of the defense.
- Where may counterclaims be asserted?
- Only in the answer.
- What counterclaims are compulsory?
- There are no compulsory counter claims in NY.
- What is a cross-claims?
- If there are co-defendants, one may assert any and all claims existing in his favor against the other.
**These cross-claims may be unrelated to the P’s suit.
- What is a bill of particulars?
- If a party believes his adversary’s pleading to be deficient in particularity, he may demand or move for a bill of particulars.
- From whom may a BP be demanded?
- May be demanded from a pleader only on an issue as to which the pleader has the burden of proof.
- What is the remedy for a party's failure to provide a BP?
- Upon a showing that the responding party’s failure was willful, the demanding party may seek an order of preclusion.
**Such an order would preclude the defaulting party from offering evidence at the trial as to the matters about which she has failed to respond.
- What types of motions are there?
- Ex parte and motion on notice.
- When may a motion be ex parte?
- When there is either:
1) Express authority (eg, attachment or TRO); or
2) It is necessary (eg, motions to make expediant service).
- What is the procedure for motion on notice?
- See notes.
- What motion addresses the face of the pleading?
- 1) Motion for more definite statement;
2) Motion to strike unnecessary, scandalous, or prejudicial matter; and
3) Motion that pleading allegations be separately stated and numbered.
- What regulatory motions?
- 1) Motions affecting venue;
2) Motions to consolidate or sever actions; and
3) Motions for separate trials (severance of claims or issues).
- What is the rule with respect to motions to amend the pleadings?
- An amended pleading may be served without leave of court if served:
1) Twenty days after service of the original pleading;
2) Before the time to reply to the original pleading has expired; or
3) Within 20 days after service of the pleading responding to the original pleading.
- When can pleadings be amended by stipulation or motion?
- Pleading may be amended anytime (before or after judgment), so that they conform with the proof offered at trial.
- What are the bases for preanswer motion to dismiss?
- 1) Documentary evidence defenses;
2) Lack of subject matter jurisdiction;
3) Want of capacity to sue;
4) Another action pending between the same parties on the same claim in another state or federal court;
5) Affirmative defenses—a claim may not be maintained because of: arbitration and award, collateral estoppel or res judicata, discharge in bankruptcy, infancy or disability of the moving party, payment, release, statute of limitations, or Statute of Frauds;
6) Counterclaim not properly interposed;
7) Failure to state a cause of action;
8) Lack of personal, rem, or quasi-in-rem jurisdiciton;
9) Absence of a necessary party.
- Which of the basis for presanswer motion to dismiss must be asserted by motion or repsonsive pleading or you waive them?
- 1) Documentary evidence
4) Another action
5) Affirmative defenses
6) Improper counter claim
- Can a party make a motion to dismiss a defense?
- A defense may be dismissed on motion that the defense has no merit or that a defense is not stated.
- What is a motion for summary judgment?
- A motion for summary judgment is used when the pleadings, on their face, state a cause of action, but, in reality, there is no genuine issue of material fact to be tried.
- What papers must accompany a motion to dismiss?
- The motion will generally be accompanied by affidavits that show there is no genuine issue.
**The court will also consider the pleadings, admissions on file, and the products
- What papers must the party opposing the summary judgment file?
- The adverse party must generally file similar evidence in order to defeat the motion.
- What is the standard for granting a motion for summary judgment?
- If the court determines there is no genuine issue for trial, it will grant the motion. If only damages are in issue the court will order an immediate trial on the issue of damages.
- May court grant partial summary judgment?
- May the court grant summary judgment someone other than the movant?
- If the court determines that someone other than the movant is entitled to summary judgment, it may grant relief in the absence of a cross-motion.
- What effect do counter claims have on motions for SJ?
- The existence of triable issues on a counterclaim does not preclude the court from granting summary judgment as to the plaintiff’s claim,
- When can a motion for summary judgment be served in lieu of a complaint?
- If P's claim is based on an instrument for payment of money only or on any judgment.
**If the motion is denied, them moving and answer papers shall be deemed the complaint and answer unless the court orders otherwise.
- What are the types of provisional remedies?
- 1) Attachment
2) Preliminary injunction
4) Notice of Pendency
- When is attachment available?
- In any action (except matrimonial) where P demands a money judgment
- What are the statutory grounds for attachment as jurisdiction?
- 1) the defendant is an unauthorized foreign corporation or nonresident nondomiciliary of the state;
2) D is a resident or dom who cannot be served personally; 3) D, with intent to defraud creditors or frustrate enforcement of judgment, has disposed of or secreted property, re moved it from the state, or threatens to do any of these acts;
5) the action is brought to enforce a judgment or decree entitled to full faith and credit; or
6) the action is by a felony victim to recover from a convicted defendant who earned profits from the crime.
- What property is subject to attachment?
- Any property within the state unless that property would be exempt from execution.
**Can includes debts due to the defendant.
- When and how may a motion for an order for attachment be made?
- The motion for an order of attachment may be made either ex parte or on notice before or after service of the summons.
** if the order is granted prior to service of the summons, the summons must be served within 60 days after the order is granted.
- What are the 3 adversary hearing on the question of the propriety of the grant of a order for attachment?
- 1) upon the notice motion;
2) upon the motion to confirm an order of attachment granted ex parte; and
3) upon a motion to vacate or modify the order of attachment.
- What are the grounds for a preliminary injunction in an action seeking a permanent injunction?
- P is required to show:
1) that D is now doing or threatens to do that which the suit seeks to enjoin permanently, and
2) that continuance of such conduct during the pendency of the suit would produce injury to P.
- What are the grounds for a preliminary injunction in an action not seeking a permanent injunction?
- P must establish that D is doing or threatening to do an act in violation of the P’s rights which, if continued, would render the ultimate judgment ineffective.
- What is the standard for grant a TRO?
- The court insists upon the clearest of evidence of threatened and immediate injury before granting a TRO.
- What is recievership?
- There is danger that the property that is the subject matter of the action will be:
1) removed from the state,
3) materially injured, or
**Examples of receivership include mortgage foreclosures and corporate dissolutions.
- What is notice of pendency?
- Notice of pendency can be filed only in an action “affecting title to or possession or use of real property.” It places on record an impediment on the title to the realty involved in the action.
- What is replevin?
- See notes
- What happen is D fails to appear, plead, or proceed to trial?
- P may seek a default judgment.
- What is the procedure for seeking a default judgment?
- P must make an application to the court for judgment by default within 1 year after default.
- What happens if P fails to seef judgment?
- The complaint may be dismissed
1) by the court sua sponte; or
2) upon motion of the defendant unless P shows good caused
- When can the plaintiff be in default?
- If P (i) unreasonably neglects to proceed generally or otherwise delays prosecution of his claim, or (ii) unreasonably fails to serve and file a notice of issue.
- What relief is available from default?
- A party may make a motion for relief from default judgment in the court that rendered the verdict within 1 year after judgment or order.
- What showing must be made to obtain relief from default?
- A party seeking relief from default must show
1) reasonable excuse for the delay, and
2) a meritorious claim or defense as established by affidavit.
- What is the rule for relief from default when D was not personally served?
- D may move to open the default provided:
1) less than one year has elapsed from the time the defendant obtained knowledge of the judgment;
2) less than five years have elapsed from the time judgment was entered;
3) the defendant did not have personal notice of the action in time to defend; and
4) he has a meritorious defense to the action. If the motion is granted and the defense is successful, the defendant is entitled to restitution.
- What matters must be disclosed?
- All matters material and necessary in the prosecution or defense of an action regardless of the burden of proof.
**extends to facts that will lead to discovery of admissible evidence.
- What privileges are applicable in disclosure and pretrial discovery?
- All privileges available at trial.
- Who must make dislosure?
- 1) Parties
2) Predecessors in interest of parties
3) Nonparty witness
- In what circumstance can disclosue be had from a nonparty witness?
- Where the nonparty is:
1) About to leave the state;
2) Absent from the state;
3) So sick or infirm it is reasonable to believe;
4) Witness lives more than 100 miles from place of trial;
5) Doctor who has provide care or will be an expert witness;
6) Other person under special circumstances.
- How can discovery and inspection be obtained from a nonparty gov't office?
- Only by court order.
- What are the devices for disclosure?
- 1) Depositions
2) Discovery and Inspection
3) Notice to admit
4) Demand for address
5) Physical and Mental examinations
6) Written interrogatories
- How is a deposition of a party obtained?
- By serving notice upon the attorney for the party to be examined, at least 20 days (25 if by mail) prior to the exam.
- How is a deposition of a nonparty obtained?
- By service of a subpoena on the nonparty at least 20 days prior to EBT and notice on all parties.
- What may be request through discovery and inspection?
- Any relevant document or physical evidence may be examined on request served on any party.
- How is discovery and inspection obtained from a nonpary
- By service of a subpoena duce tecum on the nonparty.
- When can physical or mental exams be requested?
- When a party's physical condition, mental condition, or blood relationship is in controversy.
**Can also contain a demand for hospital authorizations.
- When is a party's physical condition "in controvery"?
- The defendat opens the door by:
1) Affirmatively making his condition an issue; OR
2) making an affirmative claim in a related investigative procedure.
- When may both depositions and interogatories be used?
- Without court order, you can only use one or the other in personal injury, property damage or wrongful death action based solely on negligence.
- What is res judicata?
- Doctrine that bars relitigation of any claim actually decided in the first case by a court of competent jurisdiction. (claim preclusion).
- What is collateral estoppel?
- Doctrine that prevent religation of an issue when:
1) The issue is identical to the issue decided in the prior proceeding;
2) The issue was necessarily decided in the prior proceeding; and
3) The litigant had a full and fair opportunity to litigate the issue in the prior proceeding.
- When must an appeal be taken?
- Within 30 days after the appellant is served with a copy of the judgment or order and written notcie of entry.
- How can the time to appeal be extended?
- By statue, may only be extended where:
1) an alternative method of appeal is available
2) the appellant's attorney becomes disabled
3) the appellant dies or there is a transfer of his interest before the 30 days is up.
- When is an arbitration agreement valid?
- Only if in writing.
- What is the review for arbitration decisions?
- Ordinarily review of the arbitrator's actions in any appellate court. (even if he committs errors of law).
- What are the only grounds for challenging an arbitrator's decision?
- 1) Corruption, fraud, or misconduct (by the arbitrator, litigator, or 3rd person) in procuring the award;
2) Arbitrator has exceeded the powers granted to him or failed to make an award within the scope of controversy;
3) Failure to follow procedure.
- What are the article 78 proceedings?
- 1) Certiorari
- What is a certiorari proceeding?
- Proceeding used to obtain judicial review of a quasi-judical admin action.
- What is a prohibition proceeding?
- Proceeding used to obtain judical restrain of actual or threatened admin action in excess of the lawful agency powers.
- What is mandamus proceeding?
- Preceeding seeking judical direction that an agency perform an act or seeks review of agency dertminations made when no hearing was required.
- What is the procedure for pleading in an Art 78 proceeding?
- 1) Commenced by filing a petition with the clerk of the SC
2) Petitioner must serve notice upon the respondent with a verified petition and affidavits in support;
3) Respondent must serve a verified answer
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