Glossary of New York Practice (FINAL)
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- What is subject matter jurisdiction?
- • = competence to hear/adjudicate the type of claim being brought
- Is subject matter jurisdiction waiveable? When can it be raised?
- • NO!
• At ANY time, even on appeal
- Describe the supreme courts in NY. What can they not hear & what do they have EXCLUSIVE jurisdiction over?
- •= statewide court of unlimited original jurisdiction
• May adjudicate ALL claims EXCEPT against State of NY & if federal law gives exclusive jurisdiction to Federal Cts (e.g. bankruptcy, patents, copyright)
• Unlimited $ jurisdiction
• Full Equity Jurisdiction
• EXCLUSIVE jurisdiction over – Matrimonial actions, Art. 78 proceedings, declaratory judgment actions
- What court has exclusive jurisdiction to hear claims against STATE of NY?
- • NY State = Only ∆ for NY Ct of Claims
• County, city, etc NOT = State
- What cases can the NY Supreme Courts NOT hear?
- • May adjudicate ALL claims EXCEPT against State of NY & if federal law gives exclusive jurisdiction to Federal Cts (e.g. bankruptcy, patents, copyright)
- What are the limited jurisdiction CTs in NY?
- • 9 in NY
Civil Court of NYC,
Small Claims Cts,
Surrogates Ct, &
Ct of Claims
- What does the cplr apply to?
- • CPLR applies ONLY to Supreme Ct & County Ct
- What is Forum Non Conveniens?
- • = has jurisdiction but discretion to dismiss if lacks substantial nexus to NY
- What is the highest court in NY?
- •COURT OF APPEALS
- What is a SOL when does it begin to run?
- • AFFIRMATIVE DEFENSE
• Must be raised by ∆
• When does it begin to run?
• Begins when CoA accrues/injury occurs
• Personal injury & property damage = impact occurs
• Contract = date of breach
• NOT when Π discovers injury/breach
• If fetus injured, no CoA unless born & then runs from DOB
- When & how is an SOL defense commenced?
- • No later than last day of prescribed period
• Commenced by FILING summons & complaint OR summons w/ notice
• Exception = Justice Ct: process must be served on ∆
- What are common SOLs that you must know?
- • Action to recover realty & Adverse Poss = 10yrs
• Crime V against convicted ∆ = 7yrs from DOCrime
• Indemnity & contribution = 6yrs from DOPayment to P
• Ks, express or implied, other than UCC Art 2 = 6yrs from breach regardless of knowledge
• Fraud = 6yrs from commission or 2yrs from discovery (actual or imputed), whichever = longer
• personal injury from neg OR SL:products = 3yrs from DOInjury (discovery rule only for toxic substances)
• Property damage = 3yrs
• Professional malpractice other than medical = 3yrs
• medical/dental/podiatric malpractice = 2 1/2yrs
• wrongful death = 2yrs from DOD but must also be shown SOL on underlying personal injury claim had not expired at DOD
• Intentional torts = 1yr
• Art 78 Proceedings = 1yr
- How do you compute SOL?
- • Exclude the day upon which triggering event occurs
• Put on anniversary
• If last day for performance = Saturday, Sunday, or public holiday, then Π has until next COB
- Who qualifies under the medical malpractice exception?
- • Doctors, dentists, podiatrists, nurses, & hospitals
• BUT action brought against hospital under a different theory – e.g. negligent hiring – = back to 3yr rule
- What is the significance of the date of discovery in a medical malpractice claim?
- •NOTHING, it is irrelvant!
- What are the exceptions under medical malpractice?
- • Continuous Treatment Rule
1. Only for EXACT same medical condition
2. 2 ½ yrs from termination of treatment (give chance to fix)
• Foreign Object Rule
1. 2 Options for Π
a. 2 ½ yrs from date of operation OR
b. 1yr from date of discovery or reasonable opportunity
2. MUST = something Doc did NOT mean to leave behind
- What does NOT count under the foreign object rule?
- a. Chemical Substance
b. Prosthetic Device
c. Fixation Device (internal sutures, pacemaker, etc)
d. Cancerous Tissue (or object/growth not put in by Doc)
- Describe malpractice for other professionals (who is covered, who is not, and how it runs).
- • Architects, Engineers, Accountants, Attorneys
• NOT insurance brokers or plumbers, etc.
• = 3yrs running from termination of service
i. Completion of building
ii. Delivery of work product to client
• Attorneys/Accountants also get Cont Representation Rule = Cont Treat. Rule
- How does the underlying claim affect the SOL?
- • DOES NOT MATTER if underlying claim is TORT or CONTRACT; for Professionals ALWAYS 3yrs (even if underlying claim = longer SOL)
• BUT can still sue insurance broker for normal SOL
• AND personal injury = NOT subject to shorter (services) SOL
- How is the SOL for architects & engineers modified?
- • Recent Legislation → limit for personal injury for Architects/Engineers
• If brought more than 10yrs after building completed
1. Π must serve architect/engineer 90 days in advance of suit
2. Π may obtain discovery during 90 days (UNUSUAL)
3. ∆ can move for summary judgment when commenced & burden will be on Π to make immediate E showing that ∆’s negligence = proximate cause of injury (NO intervening cause)
- What are the options when a defective product causes personal injury?
- = 3 Π Options
(1) Negligence – 3yrs from date of injury against ALL ∆s in distribution chain
(2) Strict Products Liability – same as negligence
(3) Breach of Warranty – governed by UCC & = 4yrs
1. Runs for each ∆ from HIS particular sale
- How do you pick which personal injury claim in a defective products case - negligence, SL, or breach of warranty?
- • ALL 3 can be asserted in SAME claim – alternative claims
- What must you look out for in products liability cases?
- • LOOK OUT for INDEMNITY & CONTRIBUTION
i. 6yr SOL from date of actual payment of judgment
ii. Date of transaction or occurrence = irrelevant
- How does the discvoery of exposure to toxic substances differ & when does it begin to run?
- • = inherently harmful toxin that has latent or slow-developing effects
• E.g. asbestos, DES, insecticides, HIV
• Exposure = any sort of assimilation into body or property
• Includes implantation (breast implants)
• SOL begins on date on which INJURY DISCOVERED by Π or should have been by reasonable diligence
• NOT APPLICABLE TO MEDICAL MALPRACTICE
- When does an SOL toll for absence?
- • Tolls for ∆’s absence:
i. ∆ is NOT in NY when CoA accrues = SOL does NOT begin to run UNTIL ∆ comes to NY OR
ii. ∆ is in NY when CoA accrues, but then leaves NY & is continuously absent for at least 4mths = toll applies to ENTIRE period of absence
iii. UNLESS Π can get VALID PERSONAL JURISDICTION & process can be served on ∆ outside NY
- How does infancy & insanity affect SOL?
- • Infants (under 18) OR insane Π may sue w/in SOL through adult rep OR
1. Π = infant/insane when CoA accrues = SOL tolls until disability ends
• i.e. until reaches 18 or insanity clears up
• insanity = mental disorder that causes inability to function in society
• Need not go through formal judicial proceeding for guardian to = insane
- How does a toll for infancy affect parents & spouses?
- • Parents & Spouses do NOT get SOL advantage
- What happens when the disability ends?
- • When disability ends = 3yr SOL IF original SOL ≥ 3yrs
• If original SOL < 3yrs, gets original SOL
- What outer limits are there on tolling?
- OUTSIDE LIMIT IN 2 SITUATIONS:
1. Medical malpractice claim no later than 10yrs from accrual
2. Claims of insane Πs time-barred after 20yrs regardless of claim
- What is the caveat for tolling, infancy & medical malpractice?
- •Continuous Treatment Toll & Infancy Tolls = separate
1. Do NOT add together
2. If 10yr infancy toll finishes but continued to treat for 12yrs then SOL is 2 ½ years from end of 12yrs (10yr infancy already tolled)
3. Π can take advantage of whichever is better
- What is a survival claim?
- • = CoA Π herself could have brought if still alive
1. NOT limited to torts
2. Recoverable damages include ALL damages incurred BY Π prior to death (e.g. pain & suffering)
- What is a wrongful death claim?
- • = CoA in tort for pecuniary (economic) damages of decedent’s distributees (e.g. spouse, children)
1. Punitive damages also recoverable BUT NOT emotional suffering of distributes OR decedent’s personal pain & suffering
- Who handles estates after person dies (2 differing terms)?
- • Executor = if decedent died w/ a will
• Administrator = decedent died w/ no will
- What is the SOL for a survival claim vs. a wrongful death claim?
- • Survival claim = if on date of death underlying claim would still be timely, executor gets either time still remaining OR 1yr from date of death
a. = whichever longer
• Wrongful death claim = 2yrs from date of death BUT must also be shown that at time of death, decedents underlying personal injury claim would also have been timely
- What happens if death is a result of a tort? What claims can be brought?
- • If fact-pattern where death = result of tort, can bring BOTH wrongful deaht & survival claim BUT MUST compute SOLs separately
- What if a potential ∆ dies - what happens to SOL?
- • If potential ∆ dies at ANY TIME before SOL expires, 18mths are always added to relevant SOL
- What is the 6mth grace period?
- • If NY action timely-commenced, but thereafter dismissed before trial & at time of dismissal SOL has either expired or has < 6mths remaining, Π gets extra 6mths from date of dismissal to re-file
- What dismissal disqualify re-filing under the 6mth grace period?
- i. Dismissal on merits
ii. Voluntary discontinuance by Π
iii. Π neglect to prosecute
iv. Dismissal for LACK of personal jurisdiction (tricky b/c have to distinguish personal from subject matter; dismissal for SUBJECT MATTER = DO NOT get 6mths)
• E.g. Lack of diversity of citizenship? Yes to 6mths
• Defect in the form of the summons? No to 6mths
• Improper service of process? No to 6mths
• Out of state service where long-arm jurisdiction lacking? No to 6mths
- What does the Borrowing Statute do in NY?
- • If CoA arises outside NY = choice of law problem if other state’s SOL = different
• If Π = non-NY-resident when out-of-state claim arose, NY applies SOL of state where claim arose IF SHORTER than NY
• If Π = NY-resident when out-of-state claim arose, will ALWAYS APPLY NY SOL, regardless of whether shorter/longer
• Intended to prevent forum-shopping by non-resident Πs seeking longer NY SOL
- In addition to subject matter jurisdiction, what 3 additional jurisdictional elements are required?
- i. Proper Commencement of the Action
ii. Proper Service of Process on ∆
iii. Proper basis of jurisdiction over PERSON OR PROPERTY INVOLVED in the action
- How is a judicial action commenced in almost all of the NY CTs?
- • commenced by filing process w/ CT clerk (= County Clerk, NOT Supreme Court Clerk)
i. Must be accompanied by payment of a fee for purchase of an index #
- What is the one CT exception for the commencment method of a case?
- • In Justice Courts, commenced by serving process on ∆
- What is process?
- Process =
i. Summons + Complaint OR
ii. Summons + Notice
- How much time does the ∏ have to serve the ∆ after filing & commencing the procedure?
- • service of process on ∆(s)=
1. w/in 120 days of filing
• CT has discretion to extend 120 days if ∏ makes a showing of good cause or interests of justice
1. Good cause = Due Diligence
- What happens (what can ∆ do)if ∏ fails to serve ∆ w/in 120 days of filing?
- • If ∆ wants to challenge timeliness, up to ∆ to make a motion to dismiss for untimely service (& even at that pt, CT has discretion to give extra time retroactively)
- What are the possible forms for process?
- • Summons + Complaint
1. Summons advises ∆ that ∏ is suing ∆ in a particular CT
2. Complaint = ∏’s pleading
a. Specifies transaction/occurrence = subject matter of CoA
b. Spells out essential elements of CoA
• OR Summons W/ Notice (like a mini-complaint)
- What are the 3 requirements for the Notice when a Summons w/ Notice is served?
- (1) Brief Statement of nature of CoA (e.g. this is an action in negligence)
(2) Specify nature of relief being sought (e.g. injunction, damages, or declaratory judgment)
(3) If seeking damages, must state amount (EXCEPT in action for personal injury or wrongful death)
- What is a naked summons & what happens with it?
- • = defect in personal jurisdiction
• action subject to dismissal for that reason alone if ∆ makes a timely jurisdiction objection
- Who can serve process?
- • Process may be served by ANY person ≥ 18 provided NOT a party to action
• ∏’s spouse or lawyer COULD serve
- When may process be served?
- • May be served any day EXCEPT Sunday
• If ∆ is a Sat-Sabbath observer, and ∏ knows it, ∏ may not serve on Sat; innocent service on such ∆ NOT = defect
• Service on a non-Sunday HOLIDAY = OK
- What happens if the service is unauthorized by ∆ receives it anyway? Does it count?
- • NO – even if ∆ got it (i.e. no prejudice), defective service = GROUND FOR DISMISSAL
• Strict compliance required
- What are the traditional methods for service of process on a person in NY?
- • Personal Delivery to ∆
• Leave & Mail
• Affix & Mail
• Expedient Service
• Sevice on a designated agent (sometimes designates in commercial Ks but must be very specific)
- How does a ∏ accomplish personal delivery?
- 1. Service by personal delivery = complete upon tender directly to ∆ (even if ∆ turns around & runs)
2. NOT complete if service completed by a go-btw (e.g. ∆’s child in yard delivers it)
- How does a ∏ accomplish leave& mail?
- 1. Process server may DELIVER to person of suitable age at ∆’s ACTUAL dwelling OR ACTUAL place of business PLUS mail a copy by reg. mail to ∆ actual place of business OR last known residence
2. 2 Steps MUST be performed w/in 20days & both w/in 120 days from filing process
3. Order of 2 steps does NOT matter
4. Can mix locations
5. E.g. if guard blocks access to apartment, then that marks outer boundary of ∆’s dwelling place
- What happens if there are multiple ∆s living/working at one location?
- • when multiple ∆’s live/reside in 1 location, then must deliver/mail multiple copies
- How & when may a Π affix & mail?
- 1. May affix to door of ACTUAL dwelling OR ACTUAL place of business PLUS mail a copy by reg. mail to ∆ actual place of business OR last known residence
2. Same timing rules
3. BUT process server MUST FIRST exercise DUE DILIGENCE in attempting to serve directly
a. Must make more than 1 attempt & must be different times/days of wk
- When is service of process complete for both Leave/Affix & Mail?
- • = COMPLETE 10 days after proof of service filed
• Proof = affidavit by process server – date/time/place/description
• 10 days after = beginning of ∆’s time running for response
- What if Π fails to file proof?
- • Failure to file proof NOT = jurisdiction defect
• Consequence = postponement of response time
• Proof Filing does NOT have to be within 120days
• NO need to file proof if directly deliver to ∆
- How & why does a Π file expedient service?
- • If previous 2 are NOT practical, Π can make ex parte motion for an order allowing an improvised method (e.g. to ∆’s liability insurer, via email, publication, etc)
- How is process served on an infant?
- • ∆ = infant, 4 options to serve it on:
(3) Any person having legal custody
(4) If infant married, adult spouse w/ whom infant resides
• If infant ≥ 14, process goes to BOTH eligible adult AND the infant
- How is process served on someone who is mentally incapacitated?
- • If CT appointed a guardian, served on BOTH
• If no CT appointment, serve in normal ∆ manner
- How is process served in a ∆ outside NY?
- • = SAME methods as within, assuming there is a basis for out-of-state service (must have that 1st!!!)
- Who may serve process on a ∆ outside NY?
- (1) Any NY resident who is authorized under NY law
(2) Anyone authorized by laws of jurisdiction where service is made
(3) Any attorney who is licensed in jurisdiction where service made
• E.g. → 17 yr-old uses affix & mail in CA where not legal = OK?
• YES by NY methods control for NY action & 17yr-old ok to serve under CA law
- What are the traditional methods for serving process on a corporation?
- • Personal delivery to ANY of following
1. Officer of Corp.
2. Director (member of Board)
3. Designated agent
4. Managing Agent (any employee w/ supervisory role)
• Another Method = Service on NY Secretary of State
- Can you leave/affix & mail process for a corporation? & Where can process be served?
- • Leave/Affix & Mail NOT = valid (can’t leave w/ secretary)… must make personal delivery
• If basis for jurisdiction over Corp., any eligible person can be served anywhere in USA
- How does service methods differ for a licensed vs. unlicensed corporation if the Secretary of State is used?
- 1. For domestic corporations (incorporated w/in NY) OR a foreign corporation that is authorized to do business in NY (aka a licensed corporation)
= personally deliver 2 copies of process ontp Secretary & he will mail 1 copy certified mail to corporation at address on file)
2. For an UNLICENSED corporation
= personally deliver 1 copy to Secretary + Π mails one copy to Corporation by certified mail w/ return receipt requested
- What is a non-traditional method for service of process?
- i. Mail process by 1st class mail, enclosing 2 copies of statutory acknowledgment form + return envelope w/ postage addressed to sender
ii. Service will be effective ONLY IF ∆ signs & returns 1 acknowledgment form to Π w/in 30 days of receipt
iii. Service = complete when ∆ posts signed form
iv. If ∆ does NOT return it, then service by mail NOT = effective & Π has to try again using traditional method
v. If ∆ refuses to acknowledge receipt then ∆ has to pay costs for 2nd service of process
vi. Method may be used regardless of whether ∆ is IN OR OUTSIDE NY
(If outside, though, must have basis for serving)
vii. Available for all ∆s EXCEPT infants & mentally incapacitated persons
- What does ∆’s return of acknowledgment form signify about his position on the case, after non-traditional service of process?
- • ∆’s return of acknowledgment form NOT = concession that CT has jurisdiction (not admitting anything, just acknowledging)
- What are the 6 basis of personal jurisdiction over a ∆? How are they categorized?
- 1. General Jurisdiction (any CoA regardless of where arose)=
a. Presence in NY
b. Doing Business
c. Domicile in NY
2. Specific Jurisdiction =
a. Long-Arm Jurisdiction
b. Non-Resident Motorist Statute
- Describe Personal Delivery to ∆ while ∆ is physically present in NY.
- 1. Assume ∆ lives in NJ & runs over Π in NJ… if ∆ comes to NY for 1st time in her life then can be served w/ process & = personal jurisdiction
2. Valid personal jurisdiction EVEN THOUGH CoA has NOTHING to do w/ NY
- Describe "Doing Business" in NY.
- 1. Domestic Corporation is subject to personal jurisdiction in NY on ANY claim no matter where in the world claim arose
a. SAME for FOREIGN Corp. licensed in NY
2. ***UNLICENSED corporation only present in NY if “doing business” in NY
- What is the test for an unlicensed corporation "doing business" in NY?
- TEST =
i. At time action is commenced, the corporations employees or agents are in NY engaging in commercial activity for a continuous, regular & systematic basis
ii. What’s generally required = Corp. retains office in NY staffed continuously by 1 or more employees
- Does a Π have to sue on a claim that arose out of Corp’s business in NY if "doing business" is the basis for jurisdiction?
- i. NO!!!!! Gives general jurisdiction.
ii. So NO need to show relationship btw claim & NY
- Suppose Ink Inc has company in Delaware & President comes to NY for trade show. Ink sells products & advertises in NY but nothing more. Can Π injured in PA serve process & get personal jurisdiction?
- i. No
ii. Not doing business in NY (mere sales not enough)
iii. Advertising not enough
iv. Would only work against that office in his individual capacity
When must you satisfy the DOING BUSINESS standard?
- = ONLY necessary if CoA arose outside of NY
a. If arose within state then long-arm jurisdiction will probably be available, so don’t need to show doing business
Where may service of process be made if jurisdiction based on "doing business" in NY?
- As to service of process – remember that if foreign corporation is doing business in NY, service of process can be made inside OR outside NY
Once basis of jurisdiction, service can be made anywhere!!!
- What is domcile & how does it affect service of process?
- 1. If ∆ is domiciliary in NY, can serve w/ process ANYWHERE in USA
2. General jurisdiction, regardless of where claim arose
3. Domicile NOT = residence
- What is the difference btw domicile & residence?
- a. Residence = place where someone lives for a fair amount of time w/ some degree of permanency
b. Domicile = one residence at which a person intends to remain indefinitely (principal home) (have ONLY 1 domicile)
- Describe Long-Arm Jurisdiction.
- 1. BASIC CONCEPT = provides personal jurisdiction for out-of-state service on basis of certain acts by ∆ provided the claim arises from those acts
2. In previous 3, it did not matter where claim arose (not the case w/ long-arm)
3. CLAIM MUST ARISE OUT OF 1 OF 5 CATEGORIES OF NY-RELATED ACTIVITY
- What are the 5 categories of long-arm jurisdiction in NY?
- (1) Transaction of business by ∆ in NY
(2) Π claim arises from a contract made outside NY in which ∆ agreed to supply goods or services in NY
(3) Π’s claim arises from ∆’s tortious act w/in NY (exclusion for defamation)
(4) Π’s claim arises from ∆’s tortious act outside NY, but causes injury in NY + some additional link btw ∆ & NY
(5) Π’s claim arises from ∆’s ownership, use, or possession of real property in NY
- Describe long-arm jurisdiction:
Transaction of business by ∆ in NY.
- i. No need to show in any continuous or ongoing way – can be substantial negotiations for 1 day in NY (even if no K signed)
ii. Just need a substantial nexus btw CoA & transaction in NY
iii. Just having NY driver’s license & registration not enough if accident elsewhere & no one lives in NY
- Describe long-arm jurisdiction:
Π claim arises from a K made outside NY in which ∆ agreed to supply goods or services in NY
- i. K must = economically significant
ii. 1 shot telephone/fax/email order coming from out-of-state buyer to NY seller NOT = enough to qualify as transaction in NY by buyer
iii. K by out-of-state ∆ to pay $ NOT = supplying goods/service in NY
- Describe long-arm jurisdiction:
Π’s claim arises from ∆’s tortious act w/in NY
(exclusion for defamation)
- i. Tort Claim
ii. E.g. driving negligently on NY roadway, making fraudulent statements during sales negotiation in NY, assaulting the NY practice professor in NY
- Describe long-arm jurisdiction:
Π’s claim arises from ∆’s tortious act outside NY, but causes injury in NY + some additional link btw ∆ & NY
- Tort Claim +
Additional Link =
1. ∆ regularly solicits business or engages in any other persistent course of conduct in NY OR
2. ∆ derives substantial revenue from goods used or consumed or services rendered in NY OR
3. ∆ expects or should reasonably expect the act to have consequences in NY & derives substantial revenue from interstate or international commerce
(Interstate commerce must purposefully include NY)
- What about an out-of-state manufacturer that sells to independent retailers in all 50 states?
- • See e.g. in book – no general jurisdiction over an out-of-state manufacturer that sells to independent retailers in all 50 states BUT injury takes place in NY & substantial revenue (only 7% & = adequate) from NY…
BUT questionable whether purposefully directed at NY) … no jurisdiction over retailer in MA that only advertises in MA.
- What about medical services provided out-of-state? Does that qualify for long-arm jurisdiction?
- • even when provided by a well known specialist who attracts many out-of-state patients – is STILL inherently local in nature … injury must ORIGINATE in NY & patient dying in NY after treatment elsewhere NOT enough
- When is NY the situs for a commercial tort?
- • commercial tort = fraud, conversion, theft of trade secrets, etc.
NY = situs of Π’s injury ONLY IF suffers direct financial effects in NY:
1. Loss of NY customers or sales
2. If loss of sales in some other state there is no injury in NY even if Π = NY Corp.
- What about defamation claims & long-arm jurisdiction?
- • Defamation claims are excluded from both of the tortious act categories (from BOTH previous c & d) (B/c NY = media capital)
1. Defamation =
• Libel = written
• Slander = oral
2. Many ∆s would be doing business in NY & could get jurisdiction that way
- What types of ∆s are covered by Long-Arm statutes & how is process served on them?
- • Covers ALL types of ∆s
• Acts can be performed by ∆ or agent/employee
• Even if ∆ dies decedent’s estate Rep can be served outside NY
• Serving Process: may use same methods for service outside as would use on service inside NY
- What 3 things should you do if Long-Arm jurisdiction comes up in an essay Q?
- • 1st – discuss whether Π can establish jurisdiction under any non-long-arm categories
• 2nd – discuss whether facts of Π’s case fall w/in 1 or more long-arm categories
• 3rd – briefly discuss whether the particular assertion of jurisdiction would satisfy C DP
(TEST: If Π claim arises out of conduct by ∆ that is so purposely directed to NY that ∆ should reasonably anticipate being hailed into NY CT)
- Describe the non-resident motorist statute as a basis for personal jurisdiction.
- • = non-domiciliary
• Confers personal jurisdiction over an accident claim arising from ownership or use of an auto on NY roadway
- What are the differences btw non-resident motorist statute & long-arm statute?
- (1) Can hold owner liable (driver not necessarily agent of owner – e.g. friend or family member)
(2) Service of Process - Π personally serves 1 copy on NY Secretary of State + mailing 2nd copy to ∆ by certified mail to ∆’s out-of-state residence
- Describe consent as a basis for personal jurisdiction.
- 1. Parties to K may consent in advance to personal jurisdiction in NY
2. = “Forum Selection Clause”
3. Generally enforceable absent fraud, overreaching, or unreasonableness
- Do you have to have personal jurisdiction over a ∆ in a matrimonial action?
What is a matrimonial action?
What happens w/o personal jurisdiction?
- • Having basis for personal jurisdiction over ∆ not necessary in matrimonial action (= divorce, annulment, or separation)
• Only Π must be domiciliary of NY
• BUT that WILL NOT be enough to get $ (would need personal jurisdiction over out-of-state spouse) (NEED mat. long-arm statute)
- What is required for the matrimonial long-arm statute?
- 1. NY was the matrimonial domicile prior to separation OR
2. ∆ abandoned Π in NY OR
3. ∆’s monetary obligation accrued under an agreement executed in NY (like separation agreement) OR
4. ∆ monetary obligation accrued under laws of NY (no case law)
- How can process be delivered in matrimonial actions?
- Preference for personal delivery (need CT’s permission to leave/affix & mail)
- What is the durational residency requirement for matrimonial actions?
- 1. Even if Π can get jurisdiction over ∆, residency requirements are part of the MERITS of the mat. action (= divorce, separation or annulment)
2. Purpose = ensure NY has sufficient interest to adjudicate marital status of spouses
3. Π’s complaint MUST ALLEGE satisfaction of any 1 of 3 optional durational residency categories
4. If Π fails to allege & prove defense = failure to state a CoA
- What are the 3 optional durational residency categories?
- a. If BOTH parties are NY residents at the time the action is commenced AND the grounds for the mat. action arose in NY (no period of prior residence required)
b. If EITHER party = NY resident for a continuous period of at least 1YR immediately prior to the action AND NY has a PRIOR LINK to marriage (3 possible)
i. Marriage took place in NY
ii. NY was matrimonial domicile at some point OR
iii. If grounds for action arose in NY
c. If EITHER party = NY resident for a continuous period of at least 2Yrs immediately prior to action (need no other link)
- What is venue & what determines it?
- • Regulate proper county in NY for trial of a SC action
• Π chooses venue & specifies it in summons – following rules
i. In action in which judgment would AFFECT TITLE OR POSSESSION OF REAL PROPERTY = NY County in which real property located
ii. ALL OTHER ACTIONS = ANY NY county in which any 1of the parties resides at time action is commenced
- If NO PARTY resides in NY then ANY county = proper
- What happens of venue is improper?
- • NOT = jurisdictional defect & therefore NOT = basis for dismissal
• ∆’s remedy = must serve on Π demand for change of venue to a proper county designated by ∆
• ∆ must serve w/ or before Answer
i. If Π concedes = automatic
ii. If Π objects or NOT respond = ∆ has to go to CT & make motion (will be granted as a matter of RT to ∆ if Π chose improper & ∆ chose proper)
- What is the discretionary ground for change of venue?
- • Based on convenience of material witnesses
• Either party, by motion, may request CT to change (only for witness convenience)
• Will often but not always be to country where action arose
- What does a ∆ do after served process?
- • Goal = avoid a default
• ∆ can respond by EITHER of the following 2
1. Serve answer to complaint = ∆’s pleading & responses to allegations of complaint
2. Make a Motion to Dismiss under CPLR
- What can a ∆ put in his Answer?
- • Answer = denials & affirmative defenses
• ∆ can assert Counterclaim (own CoA) against Π
• In a multi-∆ case, ∆ may assert Cross-claim against any other ∆
- What happens if the ∆ doesn't raise an affirmative defense in his Answer? or a denial?
- • Affirmative defenses not raised = waived (possible amendment – see below)
• If not denied, considered an admission
- Describe a counter-claim.
- • Reply = Π’s pleading in response to counterclaim
• = denials & affirmative defenses
• NO reply w/o counterclaim unless CT approves
- Describe a cross-claim.
- • ANY CLAIM IN X-CLAIM
• NO requirement that X-claim be related at all to Π’s action
E.g. K breach case & ∆ X-claims about car crash
- How many people have to get copies of the pleadings in a multi-party case?
- • EACH Party must serve copy of pleadings on ALL OTHER parties who appear in the action
- On who & when are the Answer & Other Interlocutory Papers Served?
- • After Π’s initial [proper] service of process, all other litigation papers = interlocutory papers (including ∆’s Answer)
• Served by 1st class mail on Attorneys of Parties (after initial service on ∆)
• Service of interlocutory paper = MADE UPON MAILING & NOT receipt
- What are the time limits for ∆ serving an Answer?
- • If ∆ was served by personal delivery W/IN NY = w/in 20 days of delivery of S&C
(Service by personal delivery = complete upon delivery)
• If ∆ served by 1st Class Mail + Acknowledgment = w/in 20 days of mailing of acknowledgment
• If ∆ served UNDER ANY OTHER CIRCUMSTANCES = w/in 30 days of service being complete
• “Timely Responded” = don’t waste time bringing it up
- What are the grounds for a motion to dismiss?
1. Documentary E
(Some legally operative doc – mortgage, deed, K)
2. Other Action Pending (same parties on same CoA)
3. Want of Capacity
4. Non-Joinder of Necessary Party
5.***Failure to State CoA
6. Additional Affirmative Defenses
7. Lack of Personal Jurisdiction
8. Lack of Subject Matter Jurisdiction
- What does a motion to dismiss for want of capacity mean?
- E.g. infant suing w/o proper Rep
E.g. beneficiary suing on behalf of trust, even though only trustee has capacity
- What is an example of Non-Joinder of Necessary Party?
- - Co-maker promissory note or co-owner real estate
- Describe a motion to dismiss for failure to state a CoA & how it should be discussed in an essay.
- • Even if allegations true, no basis for relief
• Standard = Π entitled to every favorable inference & motion should be denied if ANY basis for relief under substantive law)
• REMEMBER to discuss elements of underlying CoA (don’t just state standard)
(E.g. social snub when guest doesn’t show for dinner)
- What are the 3 categories of defects in personal jurisdiction?
- i. Commencement Defects
ii. Improper Service of Process
iii. Lack of basis for jurisdiction
- What are the 9 Affirmative Defenses?
2. Payment (∆ already paid this debt)
3. Arbitration Award
4. Release (already given by Π)
5. Estoppel (collateral)
6. Res judicata
7. Infancy of ∆ (infants can weasel out of things like K obligations)
8. Bankruptcy Discharge
- What are the procedural Aspects of a Pre-Answer MOTION TO DISMISS?
- 1. Motions made BEFORE service of Answer
• On or before last day of time limit
• 30 or 20 days
2. Making Motion extends ∆’s time to Answer
• If denied w/in 10 days
3. If ∆ has 1+ defenses listed in Spareribs, he doesn’t have to raise in Motion to Dismiss… may put them in Answer
• Alternatively could put ALL affirmative defenses in pre-Answer motion (can only make 1 motion but can do so on multiple grounds)
4. Rules on Waiver
• Motion to Dismiss on any ground DOES NOT preclude raising any of the OTHER GROUNDS in Answer EXCEPT Lack of Personal Jurisdiction
- How do you preserve personal jurisdiction defenses?
- • Before serving Answer make Motion to Dismiss that includes Lack of Personal Jurisdiction as 1 of the grounds OR
• Make NO Motion to Dismiss on ANY ground & instead include Lack of Personal Jurisdiction as Affirmative Defense in Answer
- What happens if you only plead improper service of process as a defense in the Answer?
- • WARNING – although pleading improper service of process as a defense in Answer = proper way to assert, objection WILL STILL BE WAIVED if ∆ DOES NOT make a follow-up motion for Summary Judgment on this ground w/in 60 days after serving Answer
- Can ∆ make post-Answer motion on ground that Complaint fails to state CoA?
- • YES - 3 Defenses NEVER WAIVED even if fails to include in Answer & can be raised ANY point
1. Non-Joinder of Necessary Party
2. Failure to State CoA
3. Lack of Subject Matter Jurisdiction
- How does a ∆ serve a response to a Summons w/ Notice?
- (1) EITHER serve a Demand for Complaint OR
(2) Serve Notice of Appearance (∆ hereby appears in action via her attorney)
- What is the time limit for ∆'s response to a summons w/ notice?
- = same as S&C
i. If ∆ was served by personal delivery W/IN NY = w/in 20 days of delivery of S&C
1. Service by personal delivery = complete upon delivery
ii. If ∆ served by 1st Class Mail + Acknowledgment = w/in 20 days of mailing of acknowledgment
iii. If ∆ served UNDER ANY OTHER CIRCUMSTANCES = w/in 30 days of service being complete
- How long does a Π have to serve complaint after demand & service of notice?
- Both Demand & Service of Notice = require Π to serve Complaint w/in 20 days of ∆’s Service
- How long does ∆ have after Π serves a Complaint?
- Assuming Π timely serves Complaint, ∆ has 20 days from such service EITHER
i. Answer OR
ii. Motion to Dismiss
- What happens if Π fails to meet the 20 day limit after demand & service of notice?
- If Π FAILS to meet 20 day limit ∆ may move to dismiss action based on noncompliance = form of NEGLECT TO PROSECUTE
- If a Π is defending against a motion to dismiss for noncompliance (neglect to prosecute) what must the Π show?
- When defending against such a Motion Π must make a 2 Part Showing
1. Show Reasonable Excuse AND
2. Make E showing of merits to CoA (“Affidavit of Merit”)
- ***Has ∆ waived jurisdiction after Π serves the Complaint?
- ***After Π serves Complaint, ∆ may still object to Personal Jurisdiction b/c neither Demand nor Notice of Appearance = waiver of jurisdiction objections
- Can a party amend their pleading, & if so, how often?
- Each Party = entitled to amend her pleadings ONCE as matter of RT w/o judicial permission
ONE free AMENDMENT can be MADE during FOLLOWING TIME PERIODS:
(1) Π can amend at any pt up to 20 days after ∆ serves Answer
(2) ∆ can amend up to 20 days after ∆ serves Answer
- What can go into the "free amendment"?
- Party can put anything into “free amendment” that could have been in original pleading
- If ∆ is a personal jurisdiction objection but makes no motion to dismiss and fails to put it in their answer?
- Recent Ct of Appeals Decision = assume ∆ has PJ objection BUT makes no motion to dismiss AND fails to put it in answer BUT if ∆ amends Answer w/in 20 day period as a matter RT, ∆ will still be able to include personal jurisdiction defense
In other words, has NOT waived it
- What happens when the period for free amendment has expired or the party has already used up her free amendment?
- A motion for leave to amend required
- What is the standard for a motion for leave to amend?
- Standard = in general, allowed so long as opponent will suffer no incurable prejudice
- What must an opponent to a motion for a leave to amend establish?
- Opponent has to establish Prej by showing she has suffered a detrimental change of position as a result of the delay
E.g. E lost, witnesses no longer available, etc
- What is impleader of a 3rd Party?
- = procedural device by ∆ to join another party alleged to be liable to ∆ for whole/part of damages ∆ must pay
- Why would a ∆ implead a 3rd Party? Why would they not wait?
- 1. Usually for indemnity or contribution
2. Rather than waiting until Π has judgment, can join as TP∆
- What are the mechanics of impleading a 3rd Party? When & how does the ∆ do it? Does the CT need to be involved?
- 1. ∆ does NOT need a CT order (no motion needed)
2. May implead at any time AFTER ∆ serves Answer to Complaint
3. Steps for Joining TP∆ (IF HAVE jurisdictional basis over TP∆):
a. File: S& 3rd P C
b. Serve w/in 120 days of his filing (must serve on all Ps)
- How must a 3rd Party ∆ respond to impleader?
- TP∆ must serve Answer on all parties (like ordinary ∆ - 20/30days)
- What can the original Π do if a TP∆ is impleaded? What is the time limit?
- Π may amend complaint to include TP∆ w/o judge if made w/in 20days of being served
- How is the SOL affected by impleading? Does the original SOL for the original case apply?
- Π gets benefit of “relation-back” w/ SOL = relates back to date ∆ FILED the impleader papers PROVIDED Π’s claim is based on the same facts as the impleader (e.g. same car accident)
Policy = no Prej to TP∆ b/c made a full-fledged P to case w/in original SOL
- What is indemnity?
- = allows 1 P to shift 100% responsibility to another party
- When is there indemnity? What about implied-in-law indemnity?
- Often by K – e.g. construction & sub-contractor
(1) Products Liability – manufacturer to retailer
(2) Vicarious Liability situations – borrower of car to owner
- What is contribution and what is its purpose?
- i. Sharing of the loss – apportionment – amongst multiple tortfeasors who are all actual participants
ii. Purpose = mitigate harshness of J&S liability
- What is joint & several liability?
- J&S liability = EACH tortfeasor liable to Π for FULL amount
- What is the exception to J&S Liability?
- Intentional tortious conduct NOT entitled to contribution on MS BUT entitled to contribution in ALL tort cases in NY
- What are ways to assert claims for contribution & indemnity?
- 1. If Π originally joined – cross-claims
2. If Π omits 1+, ∆ can implead TP∆s
3. ∆ may sue TP∆ in a separate action
- What is the problem of seeking contribution in separate action, instead of impleading?
- = TP∆ not bound by original case’s findings of fact
1. ∆ must prove it all over again
2. Res. Jud. & Collateral Estoppel can’t be used against new parties
- What is the Equal Shares Formula?
Is it a minority or majority view?
- = minority view
= contribution shares ALWAYS EQUAL in amount
So if 3 ∆s, 1st ∆ entitled to 1/3 from other 2 regardless of fault % (fault % = irrelevant)
- What is Comparative Degrees of Fault? Is it a minority or majority view?
- = Majority + NY view
Amount of contribution = excess actually paid by him over & above his equitable share of fault
1. Means P will never have to contribute to ∆ more than his share
2. Does not affect Π’s RT to collect 100% from 1 ∆ (so if other 2 are insolvent, then all comes from remaining ∆)
- What is the Substantive Law Rule for Contribution?
- RT to contribution exist whenever TP∆ breached a duty in tort which contributed to or aggravated the damages ∆ liable for
= TP∆ can be liable to ∆ EVEN IF NO direct liability to Π
E.g. B has exculpatory clause in contract w/ Π & so has no liability to Π but can be liable to A if B’s conduct made A’s liability to Π greater
- What is the exception to the Substantive Law Rule for Contribution?
- = worker's compensation cases
If injured on the job, Π cannot sue her employer b/c workers compensation law
- Who can Π sue in a worker's compensation case?
- Π CAN sue 3rd party who is partially at fault for accident (e.g. manufacturer of product that injured Π
Multistate Rule = 3rd P barred from seeking contribution from employer
- When can a 3rd Party seek contribution from an employer in a worker's compensation case in NY?
- = 3rd P barred UNLESS GRAVE INJURY
Grave Injury = death, total loss of arm, leg, hand, foot, nose, ear, or index finger, total loss of multiple toes, paraplegic, severe facial disfigurement, total deafness/blindness
= total loss of use
BUT NOT – loss of thumb, tips of 3 middle fingers, blindness in 1 eye, etc.
- What happens if a doctor adds to the injury committed by another tortfeasor? What is the legal term for the doctor?
- Doctor = successive tortfeasor
original ∆ still liable for ALL injuries although ∆ can implead Doc
- How does settlement affect a case w/ multiple tortfeasors?
- ***MS & NY Rule –Π’s pre-trial release of one tortfeasor in partial satisfaction of the claim DOES NOT discharge Π’s claim against other tortfeasors
- How does settlement affect Π's recovery?
- Any judgment against non-settling ∆ will take into account settlement; in other words Π NOT allowed excessive recovery
- What is the reduction formula?
- = any judgment against a non-settling tortfeasor must be reduced by EITHER the amount of the settlement OR the settling tortfeasor’s equitable share of fault, whichever is larger
Shows risk in settling for Π
- What is the effect of settlement on contribution?
- 1. = a pre-trial settlement extinguishes contribution claims BY & AGAINST the settling party
2. Policy = encourage settlement
3. Settling ∆ becomes immune to contribution claims BUT ALSO gives up RT to seek contribution from others
- What is the effect of settling on indemnity claims?
- = does NOT extinguish claims for indemnity by or against settling tortfeasor
- What is the NY Art 16 modification of J&S liability?
- = in PERSONAL INJURY claim, joint tortfeasor whose fault is found to be 50 % or less CANNOT be required to pay Π more than his own equitable share of non-economic damages
51% + = liable entire judgment
Reduces Π’s RTs against ∆
Limited ∆ has no RT of contribution from other ∆s
- Why do you have to watch for numerous claims in one suit when dealing w/ J&S liability?
- ALL ∆s J&S liable for NON-PERSONAL injury claims
Does NOT apply to economic damages even if from a personal injury claim (e.g. medical expenses, & loss of income)
Pain & Suffering = covered by modification (b/c non-economic damages)
- What are the 3 exceptions to NY's Art 16 modification on J&S liability?
- (1) Tortfeasors who acted w/ intent or reckless disregard for safety of others
(2) Tortfeasors liable for releasing hazardous substance
(3)***Drivers & Owners of motor vehicles other than Gov vehicles
(police & fire vehicles = eligible for Art 16)
- What is a motion?
- = application for an order of the CT; request for preliminary or incidental relief
E.g. motion to obtain order for compliance w/ a disclosure request
- What is a motion on notice & what papers are involved?
- = gives adversary opportunity to be heard in opposition
1. Notice of Motion (nature & timing)
2. Supporting Affidavits
- When is a motion on notice made?
- Motion made as soon as papers served on other P (or dropped into mail)
- What is the "return date" / "hearing date"?
- = the day that papers presented at CT for a motion on notice
- When must a motion on notice be served on the other party?
- Must serve on other P at least 8 days prior to return date
- When must papers be filed w/ the CT for motions on notice?
- All motion papers from both Ps must be filed w/ CT no later than return date
- What is an order to show cause?
- = Alternative way to make a motion on notice
Signed by judge & directs adversary to “show cause” on date specified by judge why motion should not be granted
Judge rather than P giving notice
- What are 3 possible reasons for an order to show cause?
- (1) Statute governing motion may require it
(2) Accelerate return date (judge can specify < 8 days)
(3) Judge can grant immediate stay or proceedings OR temporary restraining order (TRO) (put in order to show cause & get that form of relief immediately)
- What is the procedure for an order to show cause?
- (1) Moving party drafts the order to show cause AND submits to judge along w/ supporting affidavits for underlying motion
(2) Judge will set return date in order & specify method of service (usually personal delivery)
(3) Then signed by Judge & served on opponent & opponent may submit opposition papers on return date
- What are 5 types of provisional remedies? See CMR Chart!
- (1) Attachment
(2) Preliminary Injunction
(3) Temporary Receivership
(4) Order to Seize Chattel in an action to recover the chattel
Replevin (get back a piece of property)
(5) Notice of Pendency (lis pendens)
- Which provisional remedies require a CT order & which do not?
- All of the provisional remedies require a CT order EXCEPT for notice of pendency
- What does an attachment do & what happens when it is granted?
- = provides security for a $ judgment
o When given one of these, NY sheriff goes out & levies on property of ∆
(puts a freeze/lien on property of ∆ & gives a security interest to Π & will be superior to an subsequent lien holder)
- What happens if the attachment is for real property?
- Sheriff simply files order of attachment w/ county clerk in the county where ∆’s real property located
- What happens if the attachment is for personal property & what are examples of personal property?
- = tangible (car, boat, etc) OR intangible (such a debt owed to ∆ - e.g. bank account – bank owes ∆ a debt)
Sheriff delivers order of attachment to person in possession of the ∆’s property
(might be ∆ himself OR it might be the garnishee in case of debt owed to ∆)
- What happens when there is delivery of an attachment for personal property? What is the effect?
- = DELIVERY = levy (act that imposes a lien on the property)
Injunction AGAINST TRANFER of the property pending the outcome of the action
- What is a garnishee?
- = 3rd person who owes debt to ∆ OR 3rd person has possession of tangible property of ∆ (e.g. loans his car to someone)
- ***What type of action is attachment used in?
- = P seeking $ damages AND must show one of the following
∆ is an unlicensed foreign corporation or a non-domiciliary of NY OR
∆ is about to conceal or remove assets from the state w/ intent to defraud creditors or frustrate the enforcement of a judgment
- What is a decididng order?
- After the return date of a motion on notice, the court's decision must be embodied in a written ORDER signed by the CT
- What does the one party who wins a deciding order have to do?
- serve a copy of the order on the losing party
- What are the 2 effects of service of the copy of a deciding order on a losing party?
- (1) It takes effect - service of the deciding order is necessary for it to take effect AND
(2) service of the copy of the order starts the running of a 30 day time limit to take an appeal from the order
- What is the NY rule on appeals of orders from motions on notice?
- NY allows immediate appeal from the Supreme Court to Appellate division as a matter of RT w/in 30 days of service of ANY order that results from a motion on notice (e.g. order denying motion to dismiss or to change venue)
= VERY different from federal practice to allow interlocutory appeals
* can also wait & appeal from final judgment like in fed system
- What is an ex parte motion?
- = a motion in which no advance notice is given to the adversary (i.e. w/o opportunity to be heard in opposition)... the moving party goes straight to the CT & requests order granting relief sought
- May any type of motion be ex parte?
- NO - can ONLY make it if there is express statutory authorization
- What are 3 examples of express statutory authorization to make an ex parte motion?
- (1) expedient service of process
(2) extension of the time to serve process
(3) provisional remedies
- If the opponent is aggrieved by the ex parte order, what is her remedy? Can she appeal the ex parte order?
- NO - no appeal can be taken from an ex parte order
Remedy = make a motion on notice to vacate the ex parte order (if denied then aggrieved P can appeal from the denial of the motion to vacate... in other words, can't directly ex parte motion but can in a roundabout way)
- *** What is a motion for summary judgment?
- = purpose of this motion is to enable a P to show BEFORE trial that even though the pleadgins may be sufficient on their face, there is no genuine issue of material fact requiring a trial
- What is the moving party contending in a motion for summary judgment?
- = that reasonable persons cannot differ & that she is therefore entitled to judgment as a matter of law
- EXAM TIP - what must you remember to do when discussing a motion for summary judgment?
- Discuss the elements of the underlying CoA!!! = Way for them to combine procedure w/ substantive elements of the law!!!
- When can a motion for summary judgment be made?
- NOT UNTIL AFTER the ∆ has served the Answer
- Who can move for motion for summary judgment after service of the answer & what can they make the motion based on?
- After service of the answer ANY party can make the motion w/ respect to ANY claim OR defense asserted in the pleadings
- What is the time limit for a motion for summary judgment?
- outside time limit = 120 days fomr filing of note of issue (=placing a case on trial calendar) unless moving party shows "good cause"
- What is filing a note of issue?
- = procedure to indicate to CT that case is ready for trial (goes on CT calendar)
- What is "good cause" in a failure to file w/in 120 day limit for a motion for summary judgment?
- = something in the nature of unexpected circumstances
merits = irrelevant in getting extension after 120 days has expired
- Can a moving party for summary judgment demand it for her own affirmative defenses?
- Yes, she can ask the CT to decide if her affirmative defenses decide the case or she can ask the CT to agree w/ her by challenging opponents allegations (e.g. "I am not negligent as a matter of law")
= can try to knowck out other sides claims & defenses w/ summary judgment or try to have the CT decide in favor of your own assertions
- How does the moving party satisfy her burden of showing that there are no material issues of fact requiring a trial?
- = moving party must submit E in the form of affidavits (& witnesses must have actual knowledge of acts - 1st hand)
Can also submit docs or discovery materials (e.g. deposition transcripts or responses to interrogatories)
- How does the opponent defeat a motion for summary judgment?
- = must come forward w/ E (same types as can be used in proving the motion to begin w/)
- Can a Party just rely on his pleading when providing E in the summary judgment process?
- No - his pleading is NOT E!
- If the opponent establishes through affidavits that he is not yet able, through no fault of his own, to produce opposing E, what can the CT do?
- EITHER deny the motion OR grant a continuance to permit additional e to be obtained
- What does it mean to say that a motion for summary judgment "searches the record"?
- = CT reviews all the E in the record regardless of which side submitted it. If it concludes the opponent is entitled to Summ. Judgment, CT may grant it to opponent even though he did NOT make a cross-motion
- What is the "boomerang effect" w/ summary judgment?
- = even if an opposing party is merely trying to show an issue of fact, if the CT finds his E so strong, it can grant summary judgment for him
- What happens if CT denies motion for summary judgment but thinks the only fact issue = amount of damages?
- = Ct can grant summary judgment on issue of liability & order an immediate trial on issue of damages
- In what 2 situations is summary jdugment possible prior to service of the answer?
- (1) ∆'s pre-answer motion to dismiss for failure to state a CoA can be converted BY THE CT into summary judgment, thereby deciding the case on the basis of the facts rather than on the face of the pleadings AND
(2) Motion for summary judgment in lieu of complaint
- What are the 2 prerequisites for a pre-answer motion to be converted by the CT into summary judgment?
- (1) parties must have submitted factual affidavits in connection w/ the motion to dismiss AND
(2) CT must give notice to the parties of the conversion to summary judgment
- What are the 2 types of actions in which a Π may, if she wishes, move for summary judgment at the same time she serves process by accompanying the summons w/ motion papers for summary judgment?
- (1) action on an instrument for payment of $ only (e.g. promissory note... CANNOT be used for ordinary breack of K)
(2) Action on an out-of-state judgment
- Why can a Π move for summary judgment when she serves process on out-of-state judgments & things like promissory notes?
- Both of these actions are prima facie valid
- What is the procedure for a summary judgment in lieu of a complaint?
- After filing process w/ the ct, Π must serve ∆ w/ the summons, a notice for summary judgment w/ supporting docs & affidavits
- What is the min advance notice for the return date for a summary judgment in lieu of a complaint?
- = (although usually 8 days advance notice) IN THIS CASE no sooner than date for ∆'s response for service of process (20 or 30 days, depending on how served)
- What is the procedure for attachment & what are the 3 requirements?
- MUST make a motion &
3 Requirements in making motion
(1) Affidavits in support of the motion must show one or the other of 2 grounds we just identified (= ∆ is an unlicensed foreign Corp or = a non-domiciliary of NY OR
∆ is about to conceal or remove assets from the state w/ intent...) AND that it is an action for $ damages
(2) Affidavits must show a probability of success on the merits of the Π’s cause of action
(3) Π must post an undertaking (= a bond... purpose = to indemnify the ∆ for any damages or expenses caused by the attachment)
- Why must a Π post an undertaking for an attachment?
- (1) ∆ entitled to such damages if attachment was wrongful (improper procedures) OR
(2) If ∆ ultimately wins the case on the merits
- How can a motion for attachment be made?
- = can be made on notice OR ex parte
• Often make ex parte so ∆ cannot move property
- What extra procedures are required for ex parte attachment motions & why?
- • Triggers DP concerns so requirements =
(1) there MUST be a hearing promptly after the seizure of ∆’s property
(gives ∆ opportunity to contest attachment)
(2) After Sheriff levies on property, Π must make a motion on notice to confirm ex parte order of attachment
- When will an ex parte attachment motion become automatically void?
- = will become automatically void if Π fails to make proper motion to confirm w/in certain # days after the attachment:
• If ∆ = unlicensed corp. or non-domiciliary of NY then must make motion NO LATER than 10 days after levy
(= you have to SERVE motion papers w/in 10days)
• If 2nd ground for attachment (i.e. may transfer property out of state w/ intent...), motion to confirm NO LATER than 5 days
- How does a party show intent to leave the state w/ property or harm property that is subject of an action?
- can show using circumstantial E
- How many appropriate claims do you need for an attachment to go forward?
- JUST ONE CLAIM
- What is the implication of their being a non-domiciliary as a ∆ in an case where there is a motion for attachment?
- (= non-domiciliary which = AUTOMATIC ATTACHMENT)
- What if a ∆ has a a person who is indebted to them in NY?
- Since the debtor lives in NY, we have a proper garnishee that lives in NY so we can go after him
- What is a preliminary injunction? What does it do?
- = maintain the status quo while suit pending
- What is required for a preliminary injunction? WHat must P seek?
- HAS TO BE an equity action where P seeks EITHER
(1) Permanent injunction OR
(2) if ∆ threatens to harm P’s interest in the subject matter of the action
- Out of the claims, how many ones is equity do you need for a preliminary injunction?
- Only 1 claim/CoA that is for equity
e.g. say 2nd claim listed is for for rescission of stock - then ok
- ***Can you get a preliminary injunction if the claim is for $ damages?
- ***If it's an action that seeks SOLELY $ damages you CANNOT get preliminary injunction
Only remedy, if any, = attachment
- What is the procedure to get a preliminary injunction?
- - Must make a motion for PI & MUST BE on notice
- Can serve the papers w/ summons or afterward & any time up until final judgment
- What are the 3 procedural requirements when getting a preliminary injunction? (HINT: think attachment requirements for a Party bringing it)
- • P’s affidavit must show grounds for equitable relief including a threat of irreparable injury
• Probability of success on the merits (merits of the underlying CoA)
• P must post an undertaking (another bond) to indemnify ∆ for damages if later determined that PI should not have been granted
- How does the TRO relate to the preliminary injunction?
- Provides immediate injunctive relief in a case until a preliminary injunction can be decided
- What are the rules that relate to a TRO?
- • In a case involving threat of immediate injury, P may request a TRO ex parte
• Function of TRO = limited (= maintain status quo until motion for PI is decided)
• Has a short duration
- How does a person get a TRO?
- • Make motion of PI by order to show cause
• = go directly to CT and ask judge to sign an order to show cause for motion for PI
• Ask Judge to INCLUDE TRO (when signing the motion to show cause)
• = have an order to show cause w/ TRO in it, and then serve that to ∆ along w/ supporting affidavits for PI
• ∆ then will be immediately restrained by TRO pending resolution of motion for PI
- What is a TEMPORARY RECEIVERSHIP & how often/when is it available to a party?
- • Not available in very many actions
• = Person appointed by the CT to manage property within ∆’s possession (can mean taking management away from ∆) (= very drastic remedy)
• P must be seeking an equity claim in which specific property is the subject matter of the action AND there is a danger that ∆ will injure or destroy the value of the property while action is pending
- Can a party get a temporary receivership if they are seeking $ damages?
- If action seeks solely $ damages, temp receivership is NOT available
- What motion does a temporary receivership require?
- A motion on notice
- When is a SEIZURE OF A CHATTEL allowed? & what is a chattel?
- Only allowed in 1 type of action = action that seeks to recover possession of a chattel
(chattel = tangible personal property... pet monkey, computer, car, etc)
- What is the function/purpose of a seizure of chattel? How is it carried out? What is its rationale?
- = to make sure you will be able to enforce your judgment
• If you get the order, Sheriff will seize the chattel (impound it) & will hold onto it while action is pending
• rationale = if chattel was lost while action pending then Π would have to get $ value back & in these cases Π doesn’t want that
- What is the procedure for a seizure of chattel? What must a party do/show?
- • P’s affidavits must show that P will probably succeed on the merits of the underlying CoA
• P must give an undertaking (a bond) to indemnify ∆
• Can be made on notice or ex parte
- What are the 2 special requirements for an ex parte motion for a seizure of chattel?
- It implicates DP, so special requirements:
(1) P must show threat of immediate loss of the chattel AND
(2) If granted by CT, P must make a follow-up motion on notice w/in 5 days of the seizure to confirm the ex parte order (that’s how ∆ gets a hearing to challenge what has happened)
- What is a notice of pendency? What does it do?
- • In an action in which a judgment will have direct effect on real property, a filing of a notice of pendency gives record notice to any potential buyers/mortgagees who comes along that any interest they acquire in the property will be subordinate to that of P
- What type of action is sufficient for a notice of pendency to be filed?
- • An equity action in which judgment will have a direct effect on title, possession or use of real property (e.g. specific performance, ejectment, etc)
- When is a notice of pendency statutorily required?
- In a mortgage foreclosure, the filing of notice of pendency is statutorily required
- What is the procedure for filing a notice of pendency? What is & is not required?
- (1) File w/ county clerk in county where property located (gives record notice)
• CAN be filed W/O a CT order (unlike other remedies – only 1 that can be used w/o CT order)
• NO requirement that P file a bond
- What is a ∆'s remedy when there is a motion of pendency filed?
- • ∆ does not have much of a remedy – can only make a motion to cancel the motion of pendency if it was improperly filed to begin w/
- Does an action to re-acquire stock count for a notice of pendency? If yes/no, why?
- NO – not type of action in which judgment would have direct effect on title to real property... she is suing to reacquire her stock... direct effect only on corporate stock (not real property) & so there are no grounds for filing notice of pendency
- What are the requirements for the "effect" in a notice of pendency?
- = drastic remedy & so availability is STRICTLY applied (since P can get it w/o CT)... effect MUST be direct (specific performance, ejectment, partition)
- How long does a notice of pendency stay in effect? What happens when it expires?
- Stays in effect for 3 years
• May need to make a motion for a 3 yr extension BUT must make it before original 3yrs expires otherwise it will lose its effect & party who has allowed the lapse MAY NOT seek another notice of pendency
• Don’t get another bite at the apple EXCEPT in mortgage foreclosure cases
- What happens if a party shows grounds for more than 1 provisional remedy?
- CT has discretion to require the party to elect btw those remedies... (idea = can’t completely ruin ∆’s life)
- When discovery is completed & the case is ready for trial, how is the matter placed on the trial CT's calendar?
- • When discovery is complete, either party may file note of issue (tells CT that it is ready to be put on calendar) & then serve all the parties w/ it
- What RT must a party ask for in the note of issue if they don't want to waive it?
- • The Party who files it should make a demand for jury trial in note of issue
• If filing party makes no such demand then that party waives the RT to JT
- What must other parties do if they want a JT & they don't file a note of issue?
- • If a Party wants to demand a JT then they have to file a separate demand
- When does a party in civil action have a RT to JT? Who can demand it?
- • Either party can demand
- Action seeking solely $ damages
- Replevin action (trying to get monkey or car or something back)
- Claim to real property
- Anullment of a marriage
- Divorce action – can get a jury on issue of the grounds for the divorce (e.g. acts of adultery)
(BUT NOT entitled to JT on children or $ issues)
- How many jurors are on a civil jury in NY? Does it need to be unanimous?
- • Civil Jury in NY = 6 jurors & does NOT need to be unanimous (5/6 = sufficient for a verdict)
- What is the rule for res judicata?
- RULE = When a claim to a particular ∆ has been brought to final judgment on the merits, all other claims by the P against same ∆ are barred IF they arise out of the same transaction
Even if those claims are based on a different theory OR seek a different remedy (= irrelevant)!!!
- What is a policy-based EXCEPTION TO CLAIM PRECLUSION?
- = matrimonial actions involving domestic abuse
• Spouse #1 sues #2 for divorce based on cruelty
• Judgment of divorce granted
• Same #1 brings 2nd suit for personal injury damages as a tort claim (usual rule says no b/c same transaction… BUT CT of Appeals has said they are going to allow it)
- What is collateral estoppel? What is the rule & what is the 3 part showing involved?
- RULE = allow issue preclusion on a 3 part showing:
(1) Issue in the former case & current case = identical AND
(2) Issue was actually litigated & decided in the 1st case AND
(3) Party against whom issue preclusion is asserted had a full & fair opportunity to litigate the issue in the former proceeding
***Issue preclusion CANNOT be used against someone who was NOT a party in the prior action
- What are special proceedings in NY? what kinds of situations is it allowed in (7 listed)?
- = Special streamlined procedure that acts like a motion BUT purpose is to resolve a dispute & to get a judgment
Kinds of Situations:
• Probate of a will
• Election law disputes
• Summary proceeding by a landlord for eviction
• Dissolution of corporation
• Enforcement of an arbitration
• CPLR Art 78 proceeding
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