Glossary of NY Practice
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- Transfer and Removal
- 1) Cases in which original court lacked subject matter jurisdiction from the inception of the suit (transfer upward, removal accomplished by motion to the supreme court and application to transfer court)
2) Cases in which the original court had subject matter jurisdiction, but where events occurring after suit was brought require transfer to a court of wider jurisdiction to obtain complete relief (transfer upward, removal accomplished by motion to the supreme court and application to transfer court)
3) Cases in which the original court had subject matter jurisdiction, but where a court of lesser jurisdiction also has ample authority to dispose of the matter (transfer downward, requires consent of the party adversely affected because the amount recoverable may not exceed the monetary jurisdiction of the lower transferee court)
Removal can also be ordered to alleviate calendar congestion, in which case recovery can exceed the lower court's jurisdictional limits so no consent is required
- Forum Non Conveniens
- If the court, upon motion of the party, finds interests of substantial justice require an action to be heard in the court of another state, it may stay or dismiss the action in whole or in part. The court must consider the convenience of the court, the plaintiff, and the defendant. Unless the balance of the factors favor the defendant, the plaintiff's choice of forum should not be disturbed. Forum non conveniens can still occur if all parties are NY residents.
- Suits by Unlicensed Foreign Corporations
- They can commence an action but must pay all fees, taxes and penalties they owe from when they did business without authority before the action can continue.
- Suits against Foreign Corporations
- Any person or corporation can sue a foreign corporation but nonresidents or foreign corporations may not sue a foreign corporation unless the underlying action has a meaningful tie to the state.
- Contractual Choice of NY Law
- Enforceable if the transaction involves at least $1 million and the contract contains an agreement by the nonresident or foreign corporation to submit to NY jurisdiction.
- Interposition of Claim
- At all courts except justice courts, the date of filing process with the clerk is when the action is commenced. At justice courts, the action is commenced at the date of service.
- Commencement against Party United in Interest
- If original summons omitted a party who is then added after statute of limitations expired, timely commencement against the original defendant will toll the statute of limitations against the new party if:
1) Both claims arise out of the same conduct
2) The parties share liability, either jointly or vicariously and
3) The new party knew or should have known that, but for the plaintiff's mistake, the action would also have been brought against him
- Counterclaim Commencement
- If counterclaim would have been timely at the time of plaintiff's commencement of the action, it is timely. Even if not timely, it can be asserted as a setoff if it arises from events giving rise to the plaintiff's claim.
- Timeliness of Claims in Amended Pleadings
- Measured for timeliness as of the date of the service of the amended pleading. But claims in amended pleadings relate back to the time of commencement of the original action if the original pleading gives notice of the events on which the newly added cause of action is based.
- Pleading Statute of Limitations as a Defense
- Must be raised either in a preanswer motion to dismiss or as an affirmative defense in the answer.
- Twenty Years Statute of Limitations
- Actions by the state or its grantee to recover real property, enforcement of judgments, and actions to recover principal or interest on certain bonds.
- Ten Years Statute of Limitations
- Actions to recover real property, annul letters of patent, and redeem a mortgage. Actions by victims of certain specific serious crimes (eg: violent felonies) must be commenced within 10 years of the date of conviction.
- Six Years Statute of Limitations
- Non-UCC contractual obligations (including indemnity and contribution claims), actions upon sealed instruments or notes or bonds secured by real property, actions for public property, fraud actions and those based on mistake, shareholder derivative acitons, or those by a corporation against its directors, and all other civil actions not specified by statute.
- Seven Years Statute of Limitations
- Actions by victims against a convicted defendnat that are not the certain serious crimes given 10 years.
- Four Years Statute of Limitations
- UCC contracts
- Three Years Statute of Limitations
- Actions for nonpayment of money on execution, actions for statutory liability, replevin actions, actions for damage to property, personal injury actions based on negligence and strict liability and all malpractice actions other than medical malpractice, actions to annul a marriage on the basis of fraud, and strict liability in tort.
For serious crimes where the 10 year statute of limitations has run, victims can still commence an action against a convicted defendant up to three years form the discovery of the defendant's receipt of money or property from any source.
- Two Years and Six Months (2.5 Years) Statute of Limitations
- Medical malpractice actions with exceptions:
1) Continuous treatment - 2.5 year statute of limitations begins to run from the date of last treatment if there is continuous treatment of defendant for the same condition
2) Foreign Objects - Can bring suit 2.5 years from doctor leaving foreign object in body or 1 year from date of discovery or date should have been discovery. Note: chemical substances, prosthetic devices, and fixation devices are not foreign objects and anything that the doctor is not responsible for putting in your body and was already there is not a foreign object
3) Fraudulent concealment - If doctor knowingly conceals his malpractice and the patient relies on the concealment, the doctor may be estopped from pleading the statute of limitations
- Two Years Statute of Limitations
- Wrongful Death Actions
- One Year and Ninety Days Statute of Limitations
- Tort claims against a city, town, village, fire, or school district. There is also a condition precedent that a notice of claim be served on the municipal defendant within 90 days after the claim arises.
- One Year Statute of Limitations
- Intentional tort, actions for official acts or omissions, actions to recover overcharges of interest and those to enforce a penalty or fofeiture, retaliatory evictions, actions on arbitration awards.
For intention torts and wrongful death, the statute is tolled for the period of criminal prosecution of the defendant arising out of the same occurrence.
For defamation actions, the statute begins to run when the first defamatory statement is made, and is not revived by repeated publications of the same statement unless the repeated publication is intended to reach different audiences.
- 4 Months Statute of Limitations
- Special proceedings in the anture of certiori or mandamus against a body or its officers.
- Must be no later than the last day of the statute of limitations and you have to file process (either summons with complaint or summons with notice) with the clerk. Note: at justice court commence proceeding by serving process on the defendnat
- Statute of Limitations: Toxic Torts
- 3 years after date of discovery/should have known of the toxic injury OR 1 year from discovery of the cause if:
1) Discovery of the cause occurs less than 5 years after discovery of the injury and
2) Technical or medical knowledge concerning the relationship between the injury and its cause could not have been determined within 3 years of discovery of the injury
Note: This does not apply to medical malpractice
- Statute of Limitations: Toll for Defendant's Absence from NY
- 1) If the defendant is not in NY at the time the time of action accrues: statue of limitation doesn’t begin until comes to NY
2) If defendant is in NY but leaves and is continually absent for 4 months then a toll of absence will apply for the entire period of the absence
BIG exception: Toll of absence is not available if the plaintiff has a basis of personal jurisdiction over the absent defendant such that process could be validly served on the defendant outside of NY
- Statute of Limitations: Toll for Plaintiff's Infancy or Insanity
- Infants (under 18) or insane plaintiffs may sue within the regular statute of limitations if they are represented by a competent legal represented but such individuals also get the benefit of a toll. If they are infant/insane at time of action accrues then there is a toll until the disability ends.
After the Disability Ends:
1) If the original statue of limitations was 3 or more years then the plaintiff gets 3 years from the date the disability ends.
2) If original statute of limitations was less than 3 years then when the disability ends the plaintiff gets the period specified by the original statute of limitations.
3) When relying on the toll for infancy a claim for medical malpractice must be commenced no later than 10 years from the date of accrual.
4) If it’s a claim of insane plaintiff always time barred after 10 years – always have a 10 year cap
- Statute of Limitations: Toll for Death: Potential Plaintiff
- Survival Claim:
Any cause of action plaintiff herself could have brought if she was still alive. With torts get all damages prior to death, including pain and suffering with personal injury cases. Also applies to contract claim.
Strictly a tort claim for pecuniary damages of the decedent’s statutory distributaries (surviving spouse/children) – only economic/pecuniary loss like lost income. Cannot get damages for their own emotional suffering or pain and suffering of decedent.
The party suing on behalf of descendent has to be: Executor (die with a will) or Administrator (die without a will)
- Statute of Limitations: Wrongful Death
- Statute of limitations is 2 years from the date of death but it must also be shown that at the time of death the decedents underlying personal injury claim would have been timely.
- Statute of Limitations: Survival Claim
- If on the day of death the claim would still be timely the executor either gets the time still remaining on the decedents claim or 1 year from the date of death, whichever of those 2 is longer.
- Statute of Limitations: Toll for Defendant Death
- If potential defendants die at any time, 18 months are always added to the statute of limitations
- Statute of Limitations: 6 Month Grace Period
- If NY action is timely commenced but then action is dismissed at trial and time of action has run out or has less than 6 months left then have 6 months from the dismissal to re-file and start over again
Dismissals that do NOT get the grace period:
1) Not applicable if the dismissal was on the merits
2) A voluntary discontinuance by the plaintiff was responsible for the dismissal – plaintiff dropped lawsuit
3) Plaintiff’s neglect to prosecute
4) Dismissal for lack of personal jurisdiction
- Statute of Limitations: "Borrowing Statute"
- 1) If the cause of action arose outside of NY, there is a choice of law problem:
If the plaintiff was a non-resident when the out of state claim arose, NY will apply the statute of limitations of the state where the claim arose if it is shorter than that of NY.
2) If the other state’s statute of limitations is longer, then NY will apply the NY statute of limitations. Non-resident is going to be stuck with whatever is shorter
3) If the plaintiff was a NY resident on the date that the out of state claim arose, then NY will always apply the NY statute of limitations – regardless of whether it is longer or shorter than the place where the claim arose
- When must process be served on the defendant?
- Within 120 days of filing the summons and notice or summons and complaint with the county clerk
- What must the intial filing with the county clerk be accompanied with?
- The filing must be accompanied with the fee for the purpose of purchasing an index number.
- What happens if you do not meet the deadline for serving process?
- Court has discretion to extend the 120 day service period upon a showing by the plaintiff of either good cause or the interest of justice.
- How does the defendant challenge the plaintiff's service?
- If defendant wants to challenge timeliness of the plaintiff’s service of process then defendant needs to make a motion to dismiss for untimely service – burden is on the defendant to make that motion.
- Summons and Complaint
- Summons is piece of paper advising defendant being sued in particular court. Complaint is the plaintiff’s pleading saying subject matter of the action, all the essential elements of the plaintiff’s claim.
- Summons and Notice
- Summons not accompanied by complaint but does have NOTICE (mini-complaint) which consists of:
1) Brief statement of the nature of the action (“claim for personal injuries),
2) The nature of the relief being sought (“damages” or “injunction” or “declaratory judgment”),
3) Exception if the plaintiff is seeking damages, specify the amount of damages: for personal injury or wrongful death claim the plaintiff is not allowed to specify the amount of damages seeking
- Who can serve process and when?
- 1) Process has to be served by someone at least 18 years old who is not a party to the action. Plaintiff lawyer, family member, etc can serve process but plaintiff herself cannot serve process.
2) Cannot be served on Sunday and if defendant is a Sat Sabbath observer and plaintiff knows that, then can’t be served on Saturday.
3) Service is allowed on a holiday as long as it isn’t a Sunday.
- Personal Delivery of Process
- Go up to defendant and tender the process. If they run away drop it on the floor/desk/etc. It is “complete” when the process server makes direct tender to the defendant. Defendant’s response time is measured from the date that service is complete
Cannot give it to someone who gives it to the defendant – cannot have redeliver by go-between but need the processor to deliver it directly to the defendant. Action subject to dismissal as improper service of process because no personal delivery.
- Leave and Mail Method of Process
- Process server must deliver process to person of suitable age and description at their actual dwelling place or place of business AND mail a copy by regular mail to the defendant’s actual place of business or last known residence.
Must be performed within 20 days of each other and within 120 days from the filing process.
Requires Delivery + Mailing
If there are multiple defendants residing/working at the same location, the person to whom the delivery is made must be given multiple copies of the process (1 for each defendant) and separate individual process must be mailed to each defendant – each defendant gets own delivery and mailing.
- Nail and Mail Method of Process
- Affix it with tape or rubber band to keep it to the door. Do it to the actual dwelling place or place of business and you mail a copy to the actual place of business or last known residence.
The 2 steps must be within 20 days of each other and within 120 days of filing of process.
Prerequisite of due diligence: plaintiff must demonstrate that due diligence was attempted or exercised in attempting to serve the defendant directly or person of age and description. Must try one of the first 2 ways of delivery and try to get it into the hands of a living human before doing this one, have to make more than 1 attempt to do it by the personal or leave and mail method.
- Proof of Service
- Service is complete 10 days after proof of service is filed. Proof of service is generally referred to as the process server’s affidavit describing the details of the service, steps of due diligence, etc.
Filing of proof of service does not have to occur within the 120 day period from the date of filling of the process. Can file proof of service later
- Expedient Service
- If other means of service are not working, the plaintiff can make an ex parte motion straight to the court for a court order allowing an improvised method of serving process = whatever seems reasonable under the circumstances. Can order that they serve process on a family member, even if not living with them, or insurance carrier or via email or in newspaper or whatever.
Need the court order to improvise in this way
- Serving Infants Process
- When defendant is an infant, under 18 – put infant name on process because infant is the defendant but have to serve process on an adult.
3) Any person having legal custody of the infant
4) If the infant is married, serve adult spouse with whom the infant resides
If infant is under 18 but over 14 then you need to make service on one of those adults AND on the infant himself
You can use any of the methods of serving natural persons discussed above
- Serving Mentally Incompentent Process
- 1) If the defendant is a mentally incapacitated with an appointed guardian then you have to serve process on the guardian and the incapacitated person.
2) If the defendant is mentally incompetent but no guardian has been appointed then serve the defendant as any other defendant and eventually the court will appoint a guardian ad litem
- Serving Process Outside of NY
- Use same methods as in NY
Who can serve process outside NY?
1) You can use any NY resident who is authorized under NY law
2) Anyone authorized to serve process by the laws of the jurisdiction where service is made
3) Any attorney licensed in the jurisdiction where service is made
- Personal Service of Process on Corporations
- You can serve process with personal delivery on:
1) Officer of the corporation
2) A director of the corporation
3) The designated agents of the corporation
4) A managing agent (employee with supervisory responsibility)
- Serving Process on Corporations through the Secretary of State
- 1) If it’s a domestic corporation or licensed foreign corporation (incorporated anywhere than NY) then you can personally deliver 2 copies of process to the NY Secretary of State.
The Secretary of State is the designated agent of a domestic or licensed foreign corporation.
2) For unlicensed foreign corporation the Secretary of State is just an implied agent so deliver 1 to Secretary of State and mail the second copy to the corporation by certified mail – plaintiff has burden to figure out address of the company and send the service
- Service by First Class Mail Plus Acknowledgment
- Can send process by first class mail if you enclose 2 copies of an acknowledgement form and service will be effective if and only if the defendant signs and returns one of those acknowledgement forms to the plaintiff – supposed to do that within 30 days. Service is complete at the time of the defendants sending the form.
There is no service if defendant doesn’t sign and return the form. If defendant does not return the form then service by mail is not effective and the plaintiff must start all over again and serve process by using one of the traditional methods.
There is a penalty for a defendant that refuses to send back the acknowledgement form – the defendant must pay the plaintiff’s expenses in doing the follow up process.
This may be used regardless of whether you mail inside or outside of NY, if you have a basis for jurisdiction outside NY.
Can do this with all defendants who are not infants or mentally incompetent
- General Basis of Personal Jurisdiction
- 1) Presence in NY
2) Doing Business in NY
3) Domicile in NY
- Specific Forms of Personal Jurisdiction
- 1) Long arm Jurisdiction
2) Non-Resident Motorist Statute
- How do you get long arm jurisdiction?
- 1) Where the plaintiff’s claim arises out of a transaction of business by the defendant
2) If there is a contract to provide goods or services to NY, then can have long arm jurisdiction even if the contract isn’t signed in NY.
3) Plaintiff claim arises from the defendant’s committing a tortious act in the state of NY (except this doesn't apply to defamation)
4) Plaintiff claim arises from the defendant’s tortious act outside NY that causes injury in NY AND there has to be an additional link between NY and the defendant. Possible Links: Defendant regularly solicits business or engages in any other persistent course of conduct in the state; Defendant gets substantial revenue from goods used or consumed or services rendered in the state; Defendant expects or should reasonably expect the act to have consequences in the state and derives substantial revenue from interstate or international commerce
5) When the plaintiff’s claim arises out of the defendant’s ownership, use, or possession of real property in NY
- Specific Long Arm Personal Jurisdiction
- Origin from the minimum contacts jurisdiction – allow for service of process outside of NY, (NY is “reaching out” to serve process) and only allows it if the defendant has a sufficient connection to NY and the plaintiff’s claim is specific to the defendant’s activities in the state of NY
- General Personal Jurisdiction: Presence in NY
- Personal Delivery to defendant while defendant is physically present in NY
Applies even if defendant is a non-domiciliary of NY and/or cause of action has nothing to do with NY. This is constitutional, “tagging” defendant while in particular state gives the state jurisdiction over the defendant
1) Physical presence in the state resulted from fraudulent enticement into the state and
2) Physical presence to which immunity attaches
- General Personal Jurisdiction: Doing Busines in NY
- If corporate defendant is doing business in state of NY then can get jurisdiction
1) If domestic corporation (incorporated in NY) then subject to personal jurisdiction for any claim wherever it came from. Same thing for foreign company licensed to do business in NY – those companies are “present” in NY
2) Unlicensed foreign corporations – considered present in NY if it is actually doing business in NY even if it doesn’t have a license
- How do you measure if the corporation is "doing business" in NY for personal jurisdiction?
- At the time the action is commenced the corporation’s employees or agents are in NY engaging in commercial activity for the corporation on a continuous, regular, and systematic basis. If have that, then consider it physically present in NY. Look for corporation’s maintaining an office in NY staffed by employees who work there on a regular basis
Mere sales of a foreign corporation’s products in NY do not qualify as “doing business,” mere sales are not enough. Even if you have advertising, that is not enough.
Need multiple employees continuously in NY.
- General Personal Jurisdiction: Domiciliary
- A defendant who is a domiciliary of NY at the time the action is commenced can be served with process anywhere in the US and that will be a basis for general personal jurisdiction over the NY domiciliary
Doesn’t matter where the cause of action arose
- Points About Long Arm Jurisdiction
- 1) Covers all types of defendants
2) The acts giving rise to jurisdiction can be performed by the defendant or by her agent or employee. Also, the agent’s acts in NY will subject the agent herself to jurisdiction
3) Even if defendant dies, decedent’s estate representative can be served outside NY (even if representative never stepped into NY in her life)
4) Serving process: when serve process on defendant out of state use the same methods as if serving in NY
- Long Arm Jurisdiction Test for Due Process
- For long arm jurisdiction, due process is satisfied if the plaintiff’s claim arises out of conduct by the defendant that is so purposefully directed toward NY that defendant reasonably should anticipate being hailed into a NY court.
- Specific Jurisdiction: Non-Resident Motorist Statute
- Confers jurisdiction when accident arises from negligence of driver in NY or owner is in NY
o Many times this overlaps with the tortuous act within NY long arm jurisdiction
1) Provides for unique method of serving process: personally serve 1 copy of process on NY Secretary of State and then mail second copy by certified mail to the defendant’s out of state resident. Secretary of State becomes the implied agent for the out of state defendant
2) Specifically allows for jurisdiction over the owner of the car if the car was being driven in NY with the owner’s permission
- Specific Jurisdiction: Consent
- See this a lot in commercial contracts where the parties put a clause specifically consenting to personal jurisdiction in NY – “forum selection clause.”
NY enforces the clauses unless it’s the product of fraud, overreaching, or unreasonableness.
- Matrimonial Domicile Long Arm Jurisdiction Statute
- If the plaintiff spouse is a domiciliary of NY then can get long arm jurisdiction over the spouse for monetary support if:
1) If NY was the matrimonial domicile prior the separation or
2) If the defendant abandoned the plaintiff in NY or
3) If the defendant’s monetary obligation accrued while the defendant was in NY or
4) If the monetary accrued under the laws of NY
- Serving Process for Matrimonial Actions
- In a matrimonial action the plaintiff is not allowed to use the nail and mail or leave and mail methods without first getting a court order (judicial permission), which is a pain
In effect, the statute creates a preference for personal delivery to the defendant in a matrimonial action
- NY Durational Residency Requirments (for matrimonial actions)
- These are non-jurisdictional but affect ability to bring a claim
Plaintiff complaint have to allege 1 of 3 possible duration categories:
1) If both parties are NY residents when the cause of action arose and grounds of matrimonial action arose in NY, then no period of prior residence is required
2) A 1 year period of residence: If either party has been a NY resident for a continuous period of at least 1 year immediately prior to the action and NY has a prior link to the marriage, have it. Links: If the marriage took place in NY or if NY was the matrimonial domicile at some point or if the grounds for the action arose in NY
3) If either party has been a NY resident for 2 years prior to the cause of action, the 2 year residency standing alone is sufficient (don’t have to show any other link to the marriage)
If you fail to satisfy one of these requirements, you have to wait until you fulfill them to bring the action or get thrown out of court
- How do you determine the venue?
- The supreme court has state-wide jurisdiction and the venue is the specific county where the case is tried.
1) If its an action in which judgment would affect title or possession of real property, then proper venue is the county in NY where the real property is located
2) For all other actions, proper venue is any county where any one of the parties resides at the time the action is commenced
Residence is the key for venue. If none of the parties reside in NY then any county in NY would be proper venue.
- Procedure for Change of Venue as a Matter of Right
- If Plaintiff chooses improper venue the worst thing that would happen is that there would be a change of venue.
Defendant remedy: Defendant must serve a demand on the plaintiff for a change of venue to the proper venue designated by the defendant.
The defendant serves it with or before service of the answer (attack issue early in the litigation)
If the plaintiff concedes, then the change of venue to the proper county will be automatic.
If the plaintiff objects or simply does not respond, then the defendant must make a motion for change of venue.
Motion must be granted as a matter of right if the plaintiff chose an improper venue and the defendant designated a proper venue
- Discretionary Ground for Change of Venue
- Either party can make a motion asking the court to change the venue to a place most convenient for the witnesses, many times sending it to where the cause of action did arise
- Response to a Plaintiff's Summons and Complaint
- 1) Serve an answer (answer = the defendant’s pleading which responds to the allegations of the complaint) or
2) Make a motion to dismiss under CPLR 3211
If defendant fails to deny a particular plaintiff allegation, that allegation is deemed omitted.
- Interlocutory v. Initiatory Papers
- Interlocutory papers = everything other than the initiatory papers. They are served by regular 1st class mail. Initiatory papers have to be served on parties directly while the interlocutory just have to be served on the attorneys for the parties.
Service of interlocutory papers by mail is deemed to be made upon the mailing, not receipt.
- Time Requirements for the Defendnat to Serve the Answer
- 1) If the defendant was served with process by personal delivery within NY then the defendant must serve the answer within 20 days from the delivery of process
2) If the defendant was served with process by first class mail and acknowledgement the defendant must serve the answer within 20 days from the defendant’s mailing of the acknowledgment
3) If defendant was served with process under any other circumstance, defendant must serve the answer within 30 days after service is complete
- Motion to Dismiss (CPLR 3211)
1) D: Documentary evidence – Some legally operative document upon which the party’s transaction was based has some showing of defense
2) O: Other Action Pending – between the same parties on the same cause of action
3) W: Want of Capacity – Plaintiff lacks capacity to sue (ex: infant without proper adult representative, trust beneficiary suing on capacity of the trust instead of the trustee)
4) N: Non-joinder of a Necessary Party
5) F: Failure to State a Cause of Action - ***BIG ONE*** - nature of the motion is directed at the substantive insufficiency of the complaint on its face – substantive law doesn’t recognize a right to recovery even if everything you allege is true. If get this, explain why there is no cause of action under the substantive law and then say that the motion to dismiss should be granted.
“In deciding this motion, the plaintiff is entitled to every favorable inference that can be drawn from the allegations of the complaint and the motion should be denied if there is any basis for relief under the substantive law.”
Don’t forget to discuss the elements of the cause of action: what is needed, missing, etc
6) A: Additional Affirmative Defenses – There are 9 that we will discuss later.
7) L: Lack of Personal Jurisdiction – includes all 3 of the potential defects of personal jurisdiction - Improper Commencement Procedures (filing with wrong clerk, failing to pay index fee, etc), Improper Service of Process and Lack of a Proper Basis of Jurisdiction
8) L: Lack of Subject Matter Jurisdiction
- Defendant's Affirmative Defenses
- 1) S: Statute of Limitations
2) P: Payment
3) A: Arbitration Award
4) R: Release
5) E: Estoppel (as in collateral estoppel)
6) R: Res Judicata
7) I: Infancy of the Defendant
8) B: Bankruptcy Discharge
9) S: Statute of Frauds
- Motion to Dismiss: Procedure
- The motion is made before service of the answer – time limit is on or before the time limit of the answer (within 20 days if personal delivery or 30 days after service complete in any other circumstance)
Making the motion automatically extends the time to serve an answer and if the motion to dismiss is granted the defendant never has to serve an answer. If it is denied, the defendant has to serve the answer within 10 days of the denial.
- Must the Defendant raise the affirmative defenses in the motion to dismiss?
- No, the motion is the defendant’s option, he is not required to make any of these defenses in pre-answer motion. The defendant could skip the motion and save these defenses and put them into the answer as affirmative defenses
Alternatively the defendant could raise all of these grounds in the motion. The defendant can only make 1 pre-answer motion to dismiss but the defendant may do so on multiple grounds.
There is a potential danger of waiver:
Motion to dismiss on any of the grounds listed in CPLR 3211 does not preclude raising any of the other grounds in the answer EXCEPT lack of personal jurisdiction.
This includes the possible defects of personal jurisdiction
- How does the Defendant preserve personal jurisdiction?
- 1) Before serving the answer, make a 3211 motion to dismiss and be sure that it includes lack of personal jurisdiction as one of the grounds OR
2) Make NO 3211 motion on any ground and instead include lack of personal jurisdiction as an affirmative defense in the answer
Failure to do one of these is a waiver of the personal jurisdiction defense
- How does the defendant preserve the improper service of process defense?
- One of the potential personal jurisdiction defenses is improper service of process. Even if you put that as a defense in the answer, which is a proper way to preserve that defense, nonetheless that particular objection will be WAIVED if the defendant fails to make a follow-up motion for summary judgment on that ground within 60 days of serving the answer.
- How are affirmative defenses waived?
- Affirmative defenses not raised in the answer are WAIVED – if don’t raise them only hope is to amend the answer but generally if you don’t raise the defense you’ve waived it
3 Defenses are NEVER waived, even if Defendant fails to include them in the answer:
1) Non-joinder of a Necessary Party
2) Failure to State a Cause of Action
3) Lack of Subject Matter Jurisdiction
Note: These can be raised at any point in the litigation and are never waived
- What is the Defendant's response to the Plaintiff's summons with notice?
- 1) A Demand for the Complaint (“Defendant demands plaintiff serve the complaint” OR
2) A Notice of Appearance (“Defendant appears through attorney at X address”)
Either document avoids default and requires plaintiff to serve the complaint
- What is the Defendant's time limit in responding to the Plaintiff's summons with notice?
- Same as initial response times for Summons and Complaint (20 days if served by personal delivery in NY or 30 days after service is complete in all other circumstances)
- What must the Plaintiff do after the Defendant responds to its summons with notice?
- Defendant’s service of Demand for Complaint or Notice of Appearance both require plaintiff serve the complaint within 20 days of the defendant’s service
- What must the Defendant do after the Plaintiff's complaint after a summons with notice?
- 1) Assuming the plaintiff does timely serve the complaint, the defendant has 20 days to either answer or a 3211 motion to dismiss
2) If Plaintiff fails to serve complaint in 20 days, defendant can serve a motion to dismiss based on failure to serve the complaint. It is considered a form of neglect to prosecute.
3) Then, to avoid dismissal, Plaintiff must have a reasonable excuse of the delay AND a evidentiary showing that there is merit to the plaintiff’s cause of action. Plaintiff must serve an affidavit of merit = written statement of facts under oath – have to show in writing that there is merit to the cause of action
- If there is a summons with notice and the Plaintiff serves the complaint, can the defendant still object to jurisdiction?
- YES, neither the demand for complaint or notice of appearance is a waiver of jurisdictional objections – can put it in the answer or put it in the pre-answer motion to dismiss
- Amendment as a Matter of Right in Initiatory Pleadings
- Each party gets one free amendment as a matter of right for their pleadings:
1) Plaintiff can amend the complaint as matter of right anytime within 20 days of defendant serving answer
2) Defendant can amend answer as a matter of right within 20 days of serving the answer
- Leave to Amend
- If you use up the 1 free amendment or let the time go by, you are at the mercy of the court’s discretion and make a motion for leave to amend – you are no longer entitled to the amendment.
Liberal standard used for amendments: in general it is allowed so long as the opponent will suffer no incurable prejudice – opponent has burden to show suffered detrimental change of position in other side’s delay in amending.
Typical incurable prejudice that may result in denial of ability to amend: Key witness is missing, died, key document destroyed
- Third Party Practice: Impleader
- Procedural device to join another party that may be liable in whole or part to defendant for damages may have to pay the plaintiff. This is more efficient then suing for contribution/indemnification later – lets you resolve it all in one action.
Allows defendant to join the other party as a 3rd party defendant and the defendant who is doing the pleader is also referred to as a “3rd party plaintiff.”
No court order is needed, can implead the 3rd party at any time after serving the answer to the complaint.
- How does the defendant join a third party defendant?
- 1) First the defendant files a summons and third party complaint with the court and then
2) The defendant serves the impleader papers within 120 days of the filing – serve copy to 3rd party defendant and copy to the plaintiff
Defendant has to serve process properly over the 3rd party defendant and have a basis of jurisdiction.
After the papers have been filed and served, the 3rd party defendant has to serve a 3rd party answer on the defendant AND the plaintiff AND any other parties. Remember that the papers have to be served on ALL parties.
- After a 3rd Party is impleaded, how long do they have to answer?
- 20 days if served by personal delivery in NY or 30 days from time service is complete if served any other way
- Amendment as a matter of right in the case of an impleaded 3rd party
- The plaintiff may now amend her complaint to make a direct claim against the 3rd party to make it an additional defendant to the plaintiff’s cause of action. The plaintiff can only enforce the judgment against someone in their action so this is a good idea. The plaintiff can do this without judicial permission IF she amends within 20 days of being served with the 3rd party’s answer. If she waits beyond those 20 days she’ll have to make a motion and get judicial permission to add the 3rd party as a defendant.
- Can the Plaintiff still bring a claim against a 3rd party defendant impleaded after the statute of limitations has run?
- If the 3rd party defendant is impleaded within the statute of limitations of the plaintiff’s cause of action then the plaintiff can make the 3rd party a defendant in her action.
The plaintiff gets the benefit of the “relation back doctrine” = for statute of limitations, the amended claim adding the 3rd party defendant is deemed to be when the defendant filed the impleader papers provided that the plaintiff’s claim is based on the same facts as the impleader claim.
Regardless of whether the plaintiff amends the claim against the 3rd party defendant, the statute of limitations will relate back to when the 3rd party is impleaded.
There is no prejudice to the 3rd party defendant because she was brought into the action as a full fledged party within the statute of limitations.
- It is a rule of law that allows one party to shift 100% of responsibility to another party. It can arise from contract or implied in products liability or through vicarious liability
- It involves a Sharing of the loss, called apportionment, among actual tortfeasors. The purpose is to help eliminate the harshness of joint and several tort liability.
- Joint and Several Liability
- Each tortfeasor is liable to the plaintiff for the full amount of the plaintiff’s damages regardless of the individual tortfeasor’s percentage of fault
In NY: there has been a slight modification, but remember the general rule is the same as the multistate rule!
To compensate for the potential inequity, the tortfeasor with joint and several liability can seek partial reimbursement from the others, or Contribution.
For multistate, contribution is not available when liability is based on intentional wrong doing. In NY we allow for contribution in all tort cases, including intentional torts.
- Procedure to get Contribution or Indemnity
- 1) If the plaintiff originally joined the tortfeasors as co-defendants can assert cross claims
2) If the plaintiff emitted a defendant then the defendant can implead the others as 3rd party defendants
3) The tortfeasor can bring a separate action against the others for contribution/indemnity
If you do the separate actions, then the findings of fact and percentages of fault in the first action cannot be binding on the other tortfeasors in the separate action who were not joined as parties in the 1st action
Practical effect is that if the defendant does a separate cause of action against the other tortfeasors he will have to prove liability all over again – more expensive/time/etc so better and more efficient and economical to do the impleader
Remember: Contribution is a Defendant remedy only, Plaintiff cannot get contribution
- Formula for Contribution
- 1) Equal Shares Formula (minority view, strictly multi-state): Contribution shares are always equal in amount – individual percentages of fault are irrelevant. On the multistate exam they will tell you if it is an equal shares jurisdiction – if they don’t tell you to do that, use the majority/NY approach
2) Comparative Degrees of Fault (majority and NY approach): Amount of Contribution a tortfeasor is entitled is the excess paid by him over and above his equitable share/actual percentage of fault – liable for contribution in amount of actual percentage of fault. A party from whom a contribution is sought cannot be compelled to pay more than his own equitable share. Defendant can pay 100% liability to the plaintiff if other joint tortfeasors are insolvent – rules of contribution do not change the plaintiff’s rights to full 100% payment from one of the joint tortfeasors. Plaintiff gets the benefit of the law of joint and several liability. Contribution affects only the rights among defendants, it doesn’t change the plaintiff’s rights. Plaintiff can still collect 100% from any one of the defendants.
- How can a 3rd Party get contribution from and employer?
- Intended to protect employers from contribution liability. If an employee is injured on the job generally he doesn’t have a right to action against the employer because of the worker’s compensation laws. But, for an employee injured on the job, we do allow the plaintiff to sue a 3rd person (not the employer) if the 3rd person’s conduct contributed to/helped cause the injuries.
Can the 3rd person then seek contribution/indemnity from the employer? NO, cannot seek contribution/indemnity from the plaintiff’s employer, UNLESS the plaintiff suffered a “grave” injury (very serious).
Grave Injury = death, total loss of arm, leg, hand, foot, nose, ear or index figure; total loss of multiple fingers or toes; paraplegia or quadriplegia; severe facial disfigurement; total deafness or blindness; or brain damage causing total disability
This is strictly interpreted by the court. If the plaintiff’s injury was the loss of a thumb it is not considered a grave injury.
Tips of fingers shaved off is not a grave injury. Blindness in one eye is not a grave injury as it is not total blindness. Of course, plaintiff can still sue the 3rd party, 3rd party just can’t get contribution for this from the employer
Multistate/Majority Rule: in workers compensation cases the 3rd person NEVER has a right to compensation from the plaintiff’s employer – employer is completely off the hook
NY: 3rd person right to compensation from plaintiff’s employer if the plaintiff’s injuries are grave
Remember: Contribution has a 6 year statute of limitations and it runs from the date of payment of the judgment from which contribution is sought
- What affect does a partial settlement of a claim with one tortfeasor have on the plaintiff and the rest of the tortfeasors?
- Plaintiffs pre-trial release of one tortfeasor in partial satisfaction of part of the claim does not discharge the other tortfeasors – can still sue them for the unpaid balance of the claim
The law prohibits double or excess recovery for the plaintiff
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 the fault, whichever is larger
Risk of settling is that you might not get the most possible – can come up short – have to guess, may guess wrong, but that happens
- What affect does a partial settlement of a claim with one tortfeasor have on contribution claims of the rest of the tortfeasors?
- Pretrial settlement extinguishes contribution claims by and against the settling party
Supposed to encourage settling so become immune to contribution claims against him – also deemed to give up own rights to contribution from others
- What affect does a partial settlement of a claim with one tortfeasor have on indemnity claims of the rest of the tortfeasors?
- Settlement does not cut of claims for indemnity by or against settling tortfeasors
Can try to get 100% back – need to tell the difference between indemnity and contribution because it has a big effect on post-settlement effects, no effect on indemnity rights
- Contribution in NY
- Subject to personal exclusions in a joint tortfeasor claim, a joint tortfeasor who’s fault is found to be 50% or less cannot be required to pay the plaintiff more than his own equitable share of the plaintiff’s non-economic damages
If defendant found to be 51% or more at fault then it remains at fault for the entire judgment
- Practical Effects of Contribution in NY
- CPLR Article 16 reduces plaintiff’s rights against defendant, limiting to that percentage. If a defendant is able to take advantage of the 50% or less situation then it will also limit his need for contribution from the other tortfeasors.
Plaintiff needs to keep this in mind when trying to get damages and deciding who to go after. May limit how much the plaintiff can get if one of the defendants is insolvent but if not insolvent then should consider who to go after that gives the maximum recovery.
Remember Article 16 applies only to personal injury claims with respect to non-economic damages (ex: pain and suffering, mental anguish, loss of companionship, etc)
Article 16 does not apply to property damage claims.
Article 16 does not apply to a wrongful death claim.
Article 16 does not apply to economic damages (lost income, medical costs, etc), even if they arise out of a personal injury claim.
- Exclusions from CPLR Article 16 (NY Contribution Rule)
- Some situations where even when you’re talking about a personal injury claim some tortfeasors remain jointly and severally liable for all damages:
1) A tortfeasor who acted with intent or reckless disregard for the safety of others (“real bad guy”)
If some tortfeasors acted negligently and the others with intent, the ones who acted negligently will get the benefit of Article 16 but those who acted with intent are exclude from Article 16.
2) Tortfeasor responsible for introducing a hazardous substance in the environment
3) ***Drivers and owners of motor vehicles other than police and fire vehicles***
This is pro-plaintiff for the big tort case
- What is a motion?
- Application to the court in which you’re seeking an order/requesting some kind of preliminary/incidental relief (motion to amend pleadings, to change venue, etc)
- Motion on Notice
- Need to serve a Notice of Motion (piece of paper saying “notice of motion,” says what kind of relief seeking, timing, etc) and Supporting Affidavits (written statements under oath showing why the motion should be granted, to convince the court to grant the motion)
- Timing of Motion on Notice
- The motion is made when the motion papers are served on the other party
They are usually served by mail
You have “made a motion” when you drop it in the mail
Return or Hearing Date:
When you present the motion to the court = the “return date” or the “hearing date” and the moving party picks that date
8 Day Requirement:
Serve the motion papers on the opponent at least 8 days before the return date – need to give opponent at least 8 day notice
The papers are filed with the court no later than the return date as the papers are presented to the court on the return date and that’s the date when the court begins the decision making process. The court deliberates and comes to a decision on the motion.
It is the order of the court that grants or denies the motion.
- Order to Show Cause
- A specialized way to make a motion on notice. It is a preliminary order of the court – it is a direction to the opponent that the judge signs, on a date the judge specifies, as to why the motion should not be granted.
In this context the judge gives the opponent party the notice of motion and the judge specifies the return date. As opposed to the regular notice of motion, here the judge gets involved earlier on.
- Why would you get an Order to Show Cause instead of doing a motion on notice?
- 1) Statute may require it
2) If you have exigent circumstances and need court involved before the 8 day notice time period you may do this because the judge can specify a return date sooner than the typical requirement – speed up process
3) The judge when signing the order to show clause can put a stay or temporary restraining order and give some immediate injunctive relief – can get immediate relief on the outset
- Procedure for an Order to Show Cause
- Moving party drafts the order, takes it to the court house, submits it to a judge with the supporting affidavits for the underlying motion.
Presumably the judge signs it, sets the return date, and specifies the method of serving the papers on the adversary. Usually since moving quickly the judge has it be served by personal delivery.
Judge gives the motion back to the moving party who has to serve it, with the motion itself, on the opponent. That way the opponent is given notice of the return date and can submit opposition papers on the return date.
- Deciding a Motion
- After deliberation, the court makes a decision
It must be in a written order signed by the court
The prevailing party takes a copy of the order and serves the order on the other side
The service of the copy of the order has 2 effects:
1) Service of the copy of the order gives effect to the order itself – nothing is official/binding until it is served on the other side, service is necessary to give effect to the order, and
2) It starts the running of a 30 day time limit for taking an appeal of the order
- Interlocutory Appeal
- NY has an extraordinary rule regarding appeals for motion on notice. In NY we allow an immediate appeal from the Supreme Court to the Appellate Division as a matter of right within 30 days of the service of an order determining a motion on notice.
This applies to any time of motion on notice – usually you have to wait until a final judgment to appeal so this is a very different from other practices so likely to be on the bar!***
This ability to appeal as a matter of right for any order on motion of notice = interlocutory appeal
There is no requirement to take an immediate appeal, you can instead wait for a final judgment if you want, but you have the option to bring the appeal right away BUT there is a 30 day limit and if you don’t do it within 30 days then you have to wait for the final judgment.
If you appeal the final judgment there is another 30 day time limit.
- Ex Parte Motion
- Don’t give the adversary an opportunity to be heard, don’t give them notice, and instead just go straight to the courthouse and ask the judge to sign an order without any input from the other side
You can only do these motions for motions that have express statutory authorization
1) Court order for expedient service of process (if can’t find the adversary)
2) Court order to get extension for the 120 day time period to serve motion
3) Some provisional remedies orders
Unless you know otherwise you should always assume the motion has to be made on notice. If get the ex parte motion and adversary is aggrieved by it, there is no appeal from an ex parte order
The remedy is to make a motion on notice to vacate the ex parte order. If the motion to vacate is denied, you can appeal from the denial of the motion to vacate (because the motion to vacate is a motion of notice)
- What is the Purpose of a Motion for Summary Judgment?
- To enable a party to make a showing before trial that even though the pleadings look good on their face nevertheless there is no genuine issue of material fact requiring trial. Moving party contends that he is entitled to judgment as a matter of law – no evidence to back up the allegations on the pleadings.
***Remember to discuss substantive law along with the procedure of summary judgment***
- What is the timing of a Summary Judgment?
- A motion for Summary Judgment cannot be made until after the defendant has served her answer
After service of the defendant answer any party can move for summary judgment subject to anything in the pleadings
The outside time limit for moving for Summary Judgment is 120 days from the filing of the note of issue UNLESS the moving party makes a showing of good cause
Note of Issue = Document filed with the court indicating to the court that the case is ready for trial. It is usually after there has been pre-trial discovery.
Good Cause = good excuse for the delay (new documents surfaced, new witness materialized, you’ve been engaged in settlement discussions, etc).
A strong showing on the merits of the summary judgment motion does NOT constitute good cause. Have the time limits to try and get the lawyers to act within the limits so if don’t have reason for delay then have to go to trial.
- How does the moving party satisfy the burden of Summary Judgment?
- Must submit evidence in the form of affidavits (written statements under oath) or relevant documents or discovery materials.
The written affidavits must be from people who have actual knowledge of the facts (the parties or actual witnesses)
The evidence must demonstrate moving party is entitled to judgment as a matter of law
- How do you defeat a motion of Summary Judgment?
- Come forward with the same type of evidence seeking to demonstrate that a genuine issue of fact does exist (could be a question of credibility)
Evidence must come from affidavits of people with actual knowledge of the facts – it is NOT sufficient to rely upon your pleadings alone
- What if the opponent, at no fault of their own, cannot yet produce the evidence necessary for Summary Judgment?
- The court can deny the motion or grant a continuance, giving the opponent time to obtain the additional evidence
- How do you "search the record" for Summary Judgment?
- A motion for Summary Judgment “searches the record” = looks at all evidence in the record regardless of which party submits it and if the court decides the opponent, rather than the moving party, deserves summary judgment, the court can grant summary judgment to that party even if the party didn’t ask for Summary Judgment.
This only includes issues the parties themselves raise
- Denial of Summary Judgment
- If the motion for Summary Judgment is denied = there are genuine issues of fact requiring a trial and the case resumes its normal procession to trial BUT, if the only fact issue is on the amount of damages, then the court can grant the plaintiff summary judgment on the issue of liability and order an immediate trial on the issue of damages.
Immediate trial on issue of damages speeds things up
- Pre-Answer Motion for Summary Judgment: Court converts Defendant's motion to dismiss
- Defendant makes a pre-answer motion to dismiss before stating a cause of action, then the court can convert that action into a motion for summary judgment and decide the answer based on the facts rather than on the face of the pleadings provided:
1) Parties must have submitted factual affidavits in connection with the motion to dismiss AND
2) The court must give notice to the parties of the conversion to summary judgment to give them the opportunity to submit additional evidence
- Pre-Answer Motion for Summary Judgment: Motion of Summary Judgment in Lieu of a Complaint
- 2 Types of actions where the plaintiff can in effect move for summary judgment at the outset of initiating the action in lieu of a complaint – 2 types of actions when dealing with documents that on their case show prima facie the plaintiff’s right to recover:
1) An action on an instrument for the payment of money only
Very narrow concept – instrument contains the defendant’s unconditional promise to pay money – very few documents qualify for this, best example is a promissory note. Note: A typical written contract is not an unconditional promise to pay money – this is a very narrow concept
2) An action on an out of state judgment
- Pre-Answer Motion for Summary Judgment: Motion in Lieur of a Complaint
- 2 Types of actions where the plaintiff can in effect move for summary judgment at the outset of initiating the action in lieu of a complaint – 2 types of actions when dealing with documents that on their case show prima facie the plaintiff’s right to recover:
1) An action on an instrument for the payment of money only. Very narrow concept – instrument contains the defendant’s unconditional promise to pay money – very few documents qualify for this, best example is a promissory note. Note: A typical written contract is not an unconditional promise to pay money – this is a very narrow concept
2) An action on an out of state judgment
Procedure: File a summons in court, then serve it with the motion papers for summary judgment on the defendant – making motion for summary judgment right on the outset. Need to give defendant proper time to respond so return date has to be the same as to which he would be entitled if he were responding to an action = no sooner than 20 days from service if the defendant was served by personal delivery in the state of NY or 30 days after service is complete if you serve him in a method other than personal delivery in NY
- The Provisional Remedies
- 1) Attachment
2) Preliminary Injunction
3) Temporary Receivership
4) Order to Seize Chattel in an action to recover the chattel
5) Notice of Pendency, A/K/A = lis pendens
Note: All of these require court order except the Notice of Pendency
- The main purpose is to provide security for the enforcement of a money judgment. The plaintiff obtains an order of attachment from the court and when we get that we turn it over to the sheriff and then the sheriff levies upon property of the defendant located in NY. The levy imposes a lien on the property pending the outcome of the action. The lien gives the plaintiff a security interest in the property that will be superior to that of any subsequent lien holder – gives the plaintiff a priority to the property ahead of anyone else who later tries to take an interest in the property. It also imposes a freeze so that the property cannot be moved once the lien is imposed. The property can be real or personal.
- Attachment of Real Property
- The sheriff is the enforcement officer. For real property he simply files the order of attachment with the county clerk in the county in which the real property is located.
- Attachment of Personal Property
- Personal Property can be tangible (car, boat, etc) or intangible (such as a debt owed to the defendant, ex: bank account)
Garnishee = third person who owes a debt to the defendant or person who has possession of the defendant’s tangible personal property
The sheriff puts a levy on the personal property by delivering an order of attachment to the person holding the defendant’s personal property interest – might be delivery to the defendant or the garnishee
Delivery by the sheriff imposes the lien on the personal property and in addition the delivery serves as an injunction against transfer of the property pending the outcome of the action
Levy gives security interest and freezes/keeps in place the property until the judgment so property will be there for enforcement of the judgment
- Type of Actions where Attachment can be used
- Plaintiff must be seeking money damages
It would be ok if your complaint also had a request for equitable relief of some kind but at least one claim must be for money damages
You must also have one of the following situations:
1) If the defendant is an unlicensed foreign corporation or non-domiciliary of NY or
2) If the defendant is about to conceal/remove assets from the state in NY with the intent to defraud creditors or frustrate enforcement of a judgment
Both of these involve defendants of some kind of security risk
- Attachment Procedures
- 1) The affidavits in support of the motion must show one of those 2 grounds for attachment and you have to show that you are seeking money damages and
2) The affidavits must show a probability of success on the merits of the plaintiff’s cause of action
3) Plaintiff must post an undertaking. Undertaking = a bond to indemnify the defendant for any damages/expenses caused by the attachment
The defendant will be entitled to damages if the attachment is wrongful or if the defendant ultimately wins the case on the merits
The motion for the order can be made on notice or ex parte – you probably want the ex parte one because the assets might disappear if you do it on notice
Due Process Concerns: you are tying up the defendant’s assets without giving him notice – therefore, if the plaintiff proceeds ex parte there must be a hearing promptly after the seizure of the defendant’s property in order to give the defendant an opportunity to contest the attachment
- Attachment: Motion to Confirm
- After the levy occurs the plaintiff must make a motion on notice to confirm the ex parte attachment – that motion gives the defendant the opportunity to be heard at the hearing for the motion to confirm
Ex parte order becomes null and void if the plaintiff fails to make the follow-up motion to confirm on time = stiff burden on plaintiff
- Attachment: Time Limits
- 2 time limits depending on ground for attachment
1) If the ground for attachment is based on the 1st category of attachment, then the motion to confirm must be served no later than 10 days after the levy
2) If it’s the second category of attachment, then the motion to confirm must be served no later than 5 days after the levy
- Preliminary Injunction
- Purpose: Put a freeze on things while the case is pending
Requirements: Needs to be an equity action where
1) Seeking permanent injunction or
2) If the defendant threatens to harm the plaintiff’s interest in the subject matter of the action
Limitation: An action that seeks solely money damages will not support a preliminary injunction
If seeking solely money damages then your only provisional remedy is attachment
- Preliminary Injunction: Procedure
- Motion for preliminary injunction must be made on notice and the motion papers can be served with or after the summons at any time up to final judgment
3 Requirements for Motion:
1) Plaintiff affidavits must show the grounds for equitable relief, including a threat of irreparable injury
2) Plaintiff must show a probability of success on the merits of the plaintiff’s underlying cause of action
3) Plaintiff must post an undertaking (bond) to indemnify the defendant for damages if it is later determined that the preliminary injunction should not have been granted
- Temporary Restraining Order
- This is a method of getting immediate injunctive relief. In a case involving a threat of immediate injury, the plaintiff can ask the court to grant a TRO. The purpose of the TRO is to maintain the status quo until the motion for preliminary injunction is decided.
You can get a TRO ex parte if the plaintiff demonstrates that prior notice to the defendant would result in significant prejudice.
Getting a TRO:
Make the motion for preliminary injunction by order to show cause setting up a return date for the preliminary injunction motion. In the order to show cause, the judge can include the TRO. Upon service of these motions on the defendant, the defendant will be immediately restrained by the TRO pending the resolution of the motion for preliminary injunction.
- Temporary Receivership
- Temporary Receiver = appointed by the court to manage property of the defendant’s property
Equity claim with specific property the subject matter and a danger that the defendant will injure/destroy the value of the property while the case is pending. If the case is solely money damages then this is not available.
Temporary Receivership requires a motion on notice
The Court upon motion of notice could appoint a temporary receiver to protect corporation’s assets and properly manage the corporation while the action is pending
- Seizure of Chattel: Purpose and Overview
- Allowed in action seeking to recover possession of a chattel. Chattel = piece of tangible personal property (car, laptop, pet, etc)
Purpose: To ensure enforcement of judgment awarding possession of the chattel. Once you get the order, give it to the sheriff who seizes the chattel and retains possession while the case is pending
Custodial function of the sheriff: Impoundment
You’re avoiding the situation of losing the chattel and at the end of the day if the chattel is missing the court can just give you the money value – this ensures getting the return of the chattel itself since it is in the protected custody of the sheriff during the case.
- Seizure of Chattel: Procedure
- Requirements for motion:
1) Plaintiff affidavits must show plaintiff will probably succeed on the merits of the underlying cause of action
2) Plaintiff must give an undertaking to indemnify the defendant. Motion for seizure can be made on notice or ex parte BUT special requirements must be met for an ex pate motion that the plaintiff must show threat of immediate loss of the chattel. If go ex parte have to worry about due process: if ex parte order of seizure is granted then the defendant must make a follow-up motion on notice within 5 days of the seizure to confirm the ex parte order of seizure
- Notice of Pendency: Purpose
- In an action in which will have direct effect on real property this gives notice to an potential buyers or mortagees that any interest they acquire in the property will be subordinate to the plaintiff’s. This renders title unmarketable. Must be an equitable case where judgment being sought would have a direct effect on the title, possession, or use of real property. Mortgage foreclosure, trying to eject someone from property, etc
Note: notice of pendency is mandatory for mortgage foreclosures
- Notice of Pendency: Procedure
- File it with county court where property is located and that gives notice of the pendency and gives plaintiff the lien on the real property.
This is the only provisional remedy that doesn’t require a court order – no judicial involvement required. Don’t have to file a bond, no undertaking requirement to protect the defendant
- What remedy does the Defendant have if the Notice of Pendency is incorrectly filed?
- Defendant remedy is to make a notice to cancel the notice of pendency. If just have indirect effect on real property then can’t get the notice of pendency – courts interpret notice of pendency narrowly
- Notice of Pendency: Durational Limit
- Good for 3 years from date of filing and if the litigation looks like its going beyond 3 years then can make a motion for extending it but the motion must be made prior to the expiration of the original 3 year period. Otherwise, if you don’t make the motion on time, the notice of pendency becomes void and loses its effect and you aren’t allowed to file a second notice of pendency in the same action if you already allowed the first one to expire.
EXCEPT: mortgage foreclosures must file notice of pendency and even if the mortgagee allows the original notice of pendency to expire the court allows a refilling regardless of whether you let the first one expire.
- How do you get a case on the trial calendar?
- File a note of issue = signifying to the court that the case is ready for trial. The party that is ready, done with discovery, then files note of issue with court and serves a copy on the other parties.
- How does a party obtain a jury trial?
- The filing party makes a demand for jury trial in the note of issue. If the filing party makes no such demand then the filing party waives her right to jury trial.
If the other parties want jury trials then they can file their own separate demands for a jury trial – don’t have to do that if the filing party already demanded a jury trial.
- When is a party entitled to a jury trial?
- 1) Either party may demand a trial in an action seeking solely money damages
2) Replevin actions (trying to recovery personal property)
3) Claims for real property
4) Annulment of a marriage
5) In a divorce action, a party can get a jury on the issue of the grounds for the divorce
Don’t get jury for issues of child custody or monetary relief, just for the grounds
- What is a civil jury composed of?
- NY civil jury = 6 jurors, need 5 out of 6 for a verdict.
- Res Judicata
- Claim Preclusion
Purpose is to avoid and prevent the re-litigation of the same claim
When a claim against a particular defendant has been brought to a final judgment on the merits, all other claims by the plaintiff against the same defendant are barred if they arise out of the same transaction or occurrence – doesn’t matter if seek different remedy or have different evidence/theory
Exception to Transactional Approach:
In a matrimonial dispute regarding domestic abuse
First Spouse 1 sues Spouse 2 on the grounds of cruelty, gets judgment
Thereafter Spouse 1 sues Spouse 2 based on the same facts on which she seeks tort damages for the assaultive behavior of the defendant. NY COA says yes, can do this, for policy reasons – don’t want to bog down the first lawsuit with tort issues so let the spouse get divorce first and resolve all the issues of the matrimonial dispute and then follow up later with the tort claim
- Collateral Estoppel
- Issue Preclusion
Doctrine of issue preclusion avoids and prevents the need for relitigation of specific fact issues decided in a prior proceeding upon:
1) Issue in prior proceeding and current proceeding is identical and
2) The issue was actually litigated and decided in the former proceeding and
3) The party against whom issue preclusion is asserted had a full and fair opportunity to litigate that issue in the former proceeding
Cannot be used against someone who was not a party in the first action – no opportunity to litigate the issue on own behalf, would be unfair
- Special Proceedings: Overview
- It is a speedy stream-lined procedure but the purpose of it is to get a judgment as a final resolution of a dispute – quick/easy way of dispute resolution
Examples: Probate of a will, election disputes, landlord evicting tenant, dissolution of a corporation, habeas corpus, enforcing arbitration agreements, CPLR Article 78 proceeding
Can only litigate in this way if you have specific statutory authorization:
If try to do something not allowed in special proceeding/make a mistake then the court will convert the special proceeding into an action – it is not a ground for dismissal
- Special Proceedings: Procedure
- Person who commences the special proceeding is not called the plaintiff but is instead called the petitioner. The petitioner files a petition with the court which is analogous to the complaint – lays out the facts and commences the special proceeding.
The petition and a notice of petition (analogous to a summons) are then served on the respondent (party from whom your’s seeking relief, not called a defendant here). Service methods are the same as serving process
- Special Proceedings: Return Date
- Notice advises the defendant to serve an answer and return on a specific date for the hearing
The return date for a special proceeding can be no sooner than 8 days of service of process
If an accelerated return date is needed you are allowed to initiate a special proceeding by order to show cause
Bring evidence to court’s attention by means of affidavits which support the petition and are in opposition to the petition. The petition and answer are submitted to the court on the return date and that’s when the court begins the decision-making process. It’s kind of like a summary judgment motion.
- Arbitration: Overview
- Private procedure based on contract to arbitrate for the process of achieving a binding resolution of the dispute – typically agree in commercial contracts to arbitrate existing or future disputes that may arise out of the contract
1) Not bound by substantive law or rules of evidence
2) Arbitrators may do justice as they see fit
3) Scope of judicial review is extremely narrow
Judges need to decide whether the arbitration is binding, decide threshold issues as to whether the arbitration should proceed
If the threshold issues are resolved in favor of arbitration then the merits of the dispute go to the arbitrators for the decision
***Public policy of NY favors arbitration***
- Arbitration: Potential Threshold Issues
- 1) Did the parties agree to arbitrate? Question of contract law. For arbitration to be enforceable the Agreement must be in writing – does not have to be signed by the parties, just in writing and the arbitration agreement must be clear, explicit, and unequivitable
2) Is the particular dispute within the arbitration clause? Typically the clauses are worded broadly and if that is the kind of clause used then there are very few issues the court may be able to decide – arbitrator decides virtually everything
3) Is the arbitration clause valid? If invalid then unenforceable. Invalid if the clause was induced by fraud, duress, or coercion or the particular arbitration is contrary to public policy
4) Is there an express condition precedent and has it been complied with? (ex: “before arbitration, must first present matter to the architect”)
5) Is the case barred by the statute of limitations?
- Arbitration: Doctrine of Severability
- The validity of an arbitration clause is determined separately from the validity of the overall contract in which the arbitration clause appears
Contractual duty to arbitrate is enforceable separate and apart from the remainder of the contract
Validity of the contract as a whole will be determined by the arbitrator
The only way to avoid arbitration of the contract as a whole and to keep the merits of the case away from the arbitration is to successfully argue the arbitration clause itself was induced by fraud, coercion, or duress – very difficult to prove but what you would have to do
- How are arbitration issues brought to the court?
- 1) In the context of a pending action – a party makes a motion in the pending action to stay the action and to compel arbitration
2) Where the proponent for arbitration serves a notice of intention to arbitrate – serve notice and then opponent, resisting arbitration, would have the burden of commencing a special proceeding to stay the arbitration
If you are the party served with notice of intention to arbitrate and you want to commence a special proceeding you have 20 days within the receipt of the notice to arbitrate to commence a special hearing for a stay of the arbitration – make it hard on parties opposing arbitration. If you don’t act within the 20 days you waive the threshold objections.
- Judicial Review of Arbitration
- Assuming the matter does go to arbitration and the arbitrator issues a reward, can you get judicial review of the arbitration award and get the award thrown out? Yes, on 3 grounds:
1) If there was corruption, fraud, or misconduct in the arbitration proceeding or
2) Demonstrate bias of an arbitrator who was chosen to be neutral or
3) Make a showing that the arbitrator exceeded her powers (almost always a loser since arbitrator has virtually unlimited power to do anything on the merits unless the parties decide otherwise – as it’s a matter of contract and the arbitration clause could have narrowed the arbitrator’s powers, without that then likely not exceeding power)
Under NY arbitration governed by NY law, the arbitrator is NOT authorized to award punitive damages (for public policy reasons)
- Article 78 Proceeding: Overview
- Devoted to judicial review of governmental and quasi-governmental action
Special proceeding when challenging governmental or quasi-governmental officers/action
Typically the respondent is a government official
- Article 78 Proceeding: Right to Relief: Mandamus to Compel
- Relief seeking is to compel the performance of act required by law, act which does not involve any discretion
Ex: if won’t give you an absentee ballot when you satisfy the requirements for it then you can take that issue to court through mandamus to compel
Corporation = quasi-governmental body and president is quasi-governmental officer for mandamus purposes (because the corporation obtains right to exist from the state – owes its existence to the state)
- Article 78 Proceedings: Right to Relief: Prohibition
- Purpose: To stop judicial officer from exercising power that exceeds the officer’s lawful jurisdiction
It is reserved for a grossly improper exercise of jurisdiction
Appeal is the remedy for a routine judicial error to jurisdiction
Ex: second prosecution against criminal defendant for same crime after prior acquittal – violation of double jeopardy provide basis for a prohibition proceeding against the judge
- Article 78 Proceedings: Right to Relief: Certiorari
- Challenge result of trial like hearing conducted by government agency
Standard for Judicial Review: Court should uphold results if the determination was supported by substantial evidence
- Article 78 Proceedings: Right to Relief: Mandamus to Review
- Kind of catchall that covers all other actions not within the first 3 categories
Most often, this is used to challenge agency determinations made without a trial type hearing
Standard for Judicial Review: Court will uphold the agency determination unless it was arbitrary and capricious
- In what court do you bring an Article 78 Proceeding?
- Supreme Court – only court that has jurisdiction for an Article 78 proceeding
- What is the Statute of Limitations for an Article 78 Proceeding?
- 4 months (protect government from extensive litigation)
Begins to run from the petitioner’s receipt of notice of the act being challenged
- What type of relief is sought from an Article 78 proceeding?
- Declaratory or Injunctive
Ex: declaration annulling the agency’s determination or to reinstate a discharged civil service employee (get job back)
Damages are recoverable in the Article 78 proceeding if they are incidental to the main relief being sought
- If the respondent in an Article 78 proceeding is the state of New York, can you sue the state?
- Yes – can only sue NY in court of claims for tort or contracts damages but this is an Article 78 proceeding so by specific statute you can sue the state in the Supreme Court if it is in the context of an Article 78 proceeding
Can also get damages from the state if they are incidental to the main relief being sought
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