Glossary of ny Bar Exam - ny practice

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What is the only court in NY with general subject matter jurisdiction and what does that mean?
NY Supreme court. A court of general jurisdiction has the jurisdiction to hear any type of case.
what are the monetary restrictions on the NY surpreme court?
none - the SC has unlimited jurisdiction. The other civil courts have limited monetary jurisdiction.
what is the only court in NY that has full equity jurisdiction?
supreme court. Eg for injunction, specific performance, etc…
If none of the parties reside in NY, does the NYSC have subject matter jurisdiction to hear the case?
Yes - but the court would have discretion to dismiss the action on the ground of forum non-conveniens – though this requires a motion on the part of one of the parties. But it is discretionary. The court has jurisdiction to hear the case.
what are the two exceptions to the NYSC's general jurisdiction?
1. cases as to which federal law confers exclusive jurisdiction to federal courts eg bankruptcy, patents, etc…
2. claims for money damages in tort or contract against the state of NY
what court has exclusive jurisdiciton to hear claims for money damages in tort or contract against the state of NY?
the NY court of claims
who can be sued in the Court of Claims?
only the state of NY.
Assume Amy Fisher, while driving on the NY State Thruway, is injured in a collision with a state police car being driven by State Trooper Joey Buttafuco. In what court could Amy bring an action jointly against the State of NY and Trooper Buttafuco?
No court, since while there is the same transaction, there is no one court with competence in respect to both Δs. NYS can be sued only in the Court of Claims where Joey cannot be sued, and Joey can be sued in the SC where the State cannot be sued.
In what court can Nassau County, NY be sued?
the SC, since government subdivisions are NOT the state and can be sued in the SC (counties, cities, schools, etc.).
What court has exclusive subject matter jurisdiction over Matrimonial actions (divorce, separation, annulment, declaration of validity of a marriage);
the NYSC
What are the three areas in which the NYSC has EXCLUSIVE subject matter jurisdiction?
1. Matrimonial actions (divorce, separation, annulment, declaration of validity of a marriage);
2. CPLR Article 78 proceedings (e.g., judicial review of administrative action);
3. Declaratory judgment actions (judicial declaration of the rights and obligations of the parties to an actual controversy before one of them engages in conduct that could cause liability).
Where can cases from the NYSC be appealed to?
With respect to appeals, the highest court in New York is the Court of Appeals. The intermediate appellate court is the Appellate Division.
what is the statute of limitations
An affirmative defense, based on the passage of time, to be raised by the D.
in general, when does the SOL begin to run?
When the cause of action accrues. This means when the injury accrues.
For personal injury and property damage, when does the SOL begin to run?
when the physical injury first occurs
For breach of contract, when does the SOL begin to run?
from the date of the breach.
as a general rule, can the SoL run even before the damage is discovered?
when an infant is injured in utero, when does the SOL begin to run?
the child has no cause of action unless the child is born alive, in which case the SoL begins to run from date of birth.
To satisfy SoL, the action must be commenced no later than the last day of the prescribed period of limitations. How is this done?
In the SC and County Courts -- process (summons and complaint, or summons with notice) must be filed on or before the last day of S/L;
and in all other courts, it means that process must be served on ∆ on or before the last day.
Assume Andretti's car collides with the Batmobile on June 1, 2000. The last day for timely commencement of Andretti's action for damages for personal injury and/or property damages would be:
June 1 2003, since personal injury and property damage has a 3 year SoL. In case of years, the anniversary day is the last date of the SoL.
what is the SoL for Action on judgment?
20 years (the longest SoL)
what is the SoL for an Action to recover realty?
10 years - same as period for adverse possession.
what is the SoL for an action by crime victim against convicted defendant?
7 years -- Period runs from date of crime.
In case of felony conviction, victim may also sue for damages for up to 3 years from discovery of "profits" of the crime (e.g. book contract).
what is the SoL for Contracts, express or implied (other than UCC Article 2 - Sales).
6 years - Accrual on date of breach, regardless of plaintiff's lack of knowledge.
what is the SOL for fraud?
Plaintiff may sue within 6 years of commission of fraud, or 2 years of discovery (actual or imputed), whichever is longer.
what is the SOL for indemnity & contribution?
6 years - Accrual on date of payment for which indemnity or contribution is sought.
SOL for Contracts governed by UCC Article 2 - Sales?
4 years
SOL for Personal injury based on negligence and strict products liability, property damage, including repelvin and conversion and non-medical professional malpractice?
3 years - Personal injury and property damage claims accrue on date original injury occurs. No discovery rule applies except in cases of toxic substances.
SOL for Medical, dental and podiatric malpractice?
2.5 years. Cause of action generally accrues on date of malpractice. Exceptions for continuous treatment (period runs from end of treatment) and "foreign objects" (one year from discovery if insufficient time under regular rules).
SOL for Wrongful death. (Statutory cause of action in favor Δ's distributees where Δ's tortious conduct caused death; damages limited solely to distributees' economic losses).
2 years. 2 years runs from date of death, except it must ALSO be shown that SoL on Δ’s underlying personal injury claim had not expired on date of death.
SOL for Intentional torts to the person (e.g., assault, battery, false imprisonment, defamation)?
1 year.
SOL for Article 78 proceeding? (to challenge action (or inaction) by agencies and officers of state and local government.)
4 months.
Does the date of discovery of medical malpractice affect the SOL?
No. SOL runs from date of treatment. Exceptions for continuous malpractice (period runs from end of treatment) and "foreign objects" (one year from discovery if insufficient time under regular rules).
Where a hospital is sued for the vicarious liabilty for the malpractice of a doctor working there, what is the SoL?
2.5 years, since vicarious liability has the same SoL as that in effect in respect to the employee
if a Hospital is sued on the grounds that it was negligent in hiring a doctor who committed malpractice, what SOL?
three years - this is not a malpratice claim
what is the continuous treatment rule for medical malpractice SOL?
If Dr. continues to treat Patient, after the malpractice occurs -- for the EXACT same medical condition that gave rise to the malpractice, then P gets 2.5 years from the termination of the treatment.
what is the foreign object rule for medical malpractice SOL?
If Dr was responsible for introducing a foreign object into P's body and leaves it behind: The SoL is either 2.5 years from the date of the operation or 1 year from the date the P discovered or should have discovered with due diligence the object, whichever is longer.
for malpratice against a lawyer, what SOL?
for an accountant or attorney, SOL runs from delivery of work product to client -- also subject to the doctrine of “continuous representation,” which is similar to the continuous treatment doctrine applied to doctors.
If a building that was completed in 1990 collapses in 2001 and causes personal injuries, what is the last year in which the injured persons may sue the architect and contractors?
2004, since now personal injury is involved and the SoL runs from the date the bodily injury occurred, regardless of the date of completion of the building.
When a defective widget causes personal injuries, the P has three possible causes of action which, can all be asserted in the same complaint. What is the S/L as to each theory and when does it begin to run?
Negligence: 3 years from the date of injury as to all Δs in the chain of distribution.
Strict products liability: The same as negligence: 3 years from the date of injury as to all Δs in the chain of distribution.
Breach of Warranty: UCC determines a 4 year SoL from when the particular Δ against whom the warrant claim is asserted made its sale of the product.
What is the SOL for an indemnity & contribution claim
6-year - running from the date of ACTUAL PAYMENT of the judgment for which indemnity or contribution is sought. The date of the original transaction or occurrence is irrelevant.
How is the S/L measured in a toxic substance-exposure case?
The SoL starts to run from the date the injury is discovered by π or should have been discovered by him with due diligence, whichever is earlier.
If a doctor injects a toxic substance into P, what is the SOL for malpractice wrt the injection?
2.5 years. The discovery rule for toxic substances is inapplicable to claims of medical malpractice. it applies only to negligence and products liabilty against eg the manufacturer of the substance.
When does the absence of the D toll the SOL?
when he is outside NY and the P has no basis for personal jurisdiciton.
if the SOL is tolled for a minor or an insane person, and the P reaches 18 or the insanity clears, what is the SOL?
If original S/L was 3 years or more: P gets 3 years from the date the disability ends.
- (2) If original S/L was less than 3 years: P gets the period specified by the original SoL.
What is the SOL for a 3 year old who suffers injury resulting from medical malpractice?
10 years. When relying on the toll for infancy, a claim for medical malpractice must be commenced no later than 10 years from date of accrual.
How long can the SOL be tolled for an insane person?
10 years from date of accrual, regardless of the claim
what is the difference between a survival claim and a wrongful death claim?
Survival claim is any cause of action π herself could have brought if she were still alive. It is not limited to torts, and recoverable damages include all damages incurred by π prior to death, e.g., pain and suffering.
Wrongful death cause of action is a tort claim for the pecuniary (economic) damages of decedent's statutory distributees (e.g., surviving spouse, children). Punitive damages are also recoverable, but not the emotional suffering of the distributees or the decedent’s personal pain and suffering.
what is the sol for Wrongful death cause of action?
SoL is 2 years from the date of death, but is must also been shown that on the date of death decedent's underlying personal injury claim was still timely.
what is the SOL for a Survival claim?
If on the date of death the underlying claim was still timely, the executor would get the time remaining on the original claim or 1 year from the date of death, whichever is longer.
if a potential D dies, what is the effect on the SOL?
If potential D dies AT ANY TIME before the S/L expires, 18 months are always added to the relevant limitations period.
1. How is an action commenced in the lower civil courts, i.e., NYC Civil Court, all other city courts, District Courts of Nassau and Suffolk Counties, and Justice Courts?
Serving process on the Δ (either summons and complaint or summons with notice). Therefore, for these courts the proper commencement and proper service requirements are one and the same.
how is an action commenced In Supreme Court and County Court?
by FILING process, i.e., summons and notice or summons and complaint, with the court clerk, which is the County Clerk, not the “Supreme Court Clerk.” The filing must be accompanied by payment of a fee for the PURCHASE OF AN INDEX NUMBER.
After an action commenced In Supreme Court and County Court, how long does P have to served D with process?
120 days - The court has discretion to extend this period if π shows either good cause (π has been exercising due diligence in attempting to serve process) or interests of justice.
If process is not served in a timely basis, what is D's remedy?
If Δ wants to challenge the timeliness of π's service of process he has to file a motion to dismiss for untimely service. The court still has discretion to grant an extension, even retroactively.
Assume π was injured by ∆ in an auto accident on March 1, 2000. She files
process in an action against ∆ on March 1, 2003, and process is served on ∆ on June 25, 2003. Has π complied with the statute of limitations?
Yes, since the filing occurred on the last day of the SoL. The service of process was timely as well - within 120 days of the filing.
What are the two forms of process?
summons and complaint, and summons with notice.
What is a summons and complaint?
The summons advises ∆ that π is suing ∆ in a particular court. The complaint is π's pleading, which specifies the transaction or occurrence that is the subject matter of the action and spells out the essential elements of π 's cause of action;
what is a summons with notice?
When the summons is not accompanied by a complaint, it must have sufficient "notice" inscribed on the face of the summons or on a one-page attachment.
what is sufficient notice for a summons with notice?
An abbreviated complaint which has to include:
1. A brief statement of the nature of the action (one sentence is sufficient).
2. Specify the nature of the relief being sought (damages, injunction, etc.).
3. If π seeks damages he must state the specific amount. But in case of personal injury or wrongful death π is NOT allowed to state the amount.
What is the consequence if π files and/or serves a "naked" summons, i.e., unaccompanied by either a complaint or notice?
It is a defect in personal jurisdiction subject to dismissal for that reason alone.
who can serve process?
Process may be served by any person who is at least 18 years old, provided the person is not a party to the action.
on what days of the week can process be served?
Process may be served on ANY day of the week except:
(1) Sunday
(2) If ∆ is a Saturday-Sabbath observer, and π knows it, π may not properly serve that particular ∆ on Saturday. Innocent service on such ∆ is not a defect.
(3) Service on a holiday, if it does not fall on a Sunday, is allowed, e.g., Thanksgiving.
Assume that ∆ has been served with process in an unauthorized manner (e.g., tied with a red ribbon on the steering wheel of ∆'s car) but ∆ finds the process. Is it sufficient that ∆ has "notice" of the action?
No. Defective process is ground for dismissal. The statutory methods must be observed precisely.
When is personal service to a natural person "complete?
Service by personal delivery is "complete" upon process server's tender of summons DIRECTLY to ∆
what is the "leave and mail" form of service on a natural person?
Process server may DELIVER process to person of suitable age and discretion at ∆'s actual dwelling place OR actual place of business, PLUS mail a copy by regular mail (i.e. first class mail) to ∆ at ∆'s actual place of business OR last known residence (the 2 service steps must be performed within 20 days of each other, and both steps must take place within 120 days from filing process).
The delivery and mailing can be done in any order and can mix and choose between the residence and place of business.
When multiple Δs reside in the same place of business or residence, can P leave one copy of the process with them?
no - multiple copies of process must be delivered and mailed.
What is "affix and mail" form of service on a natural person?
Process server may AFFIX process to the door of ∆'s actual dwelling place OR actual place of business PLUS mail a copy by regular mail to ∆ at ∆'s actual place of business or last known residence (affixing and mailing must be performed within 20 days of each other, and both steps must be performed within 120 days from filing process).
BUT the process server must first exercise due diligence in attempting to serve ∆ directly and to leave process with a person of suitable age and discretion
Assume the process server arrives at ∆'s place of business at noon and finds no one minding the store. Will service be valid if process is taped to the door and a second copy is mailed to ∆ at ∆'s last-known residential address?
No, due to the lack of due diligence. One attempt is not enough; several attempts on different days of the week, at different times of the day, is necessary at the least.
For both leave-and-mail and nail-and-mail, when is service COMPLETE ?
10 days after proof of service is filed. Personal delivery has no requirement for filing proof of service. Proof can be filed, but is not required.
What is the consequence of P's failure to file proof of service?
it is not a jurisdictional defect, i.e., it is NOT a ground for dismissal. The only consequence of delay or failure to file proof of service is postponement of ∆'s response time.
Assume that, after exercising due diligence, π has been unable to find a
residential address or place of business for ∆. π then publishes, once a week for 4 weeks, a copy of the summons and complaint in a newspaper distributed in the neighborho
No, since there is no indication π got a court order allowing this method.
When ∆ is an infant, how is process served?
∆'s name goes on the summons but process is served on an eligible adult:
1. Parent.
2. Guardian.
3. Any person having legal custody.
4. If the infant is married, upon an adult spouse with whom he resides.
If infant is 14 or over, process must be served on an eligible adult AND the infant.
How is process served when ∆ is a mentally incapacitated person for whom the court has appointed a guardian?
process must be served on the guardian AND the incapacitated person.
How is process served if ∆ is mentally incompetent but no judicial proceeding has been brought for the appointment of a guardian?
∆ is served in same manner as any other ∆. Court will later appoint guardian ad litem.
Who may serve process in a non-NY jurisdiction?
1. Any NY resident who is authorized under NY law.
2. Anyone authorized to serve process by the laws of the jurisdiction where the process is served.
3. Any attorney licensed in the jurisdiction where process is served.
what methods of service may be used when D is located out-of-state?
The same methods that are used to serve ∆ within NY are used when ∆ is located outside NY (this assumes that there is a basis for out-of-state service).
how is service of process made on a corporation?
by personal delivery to any of:
1. Officer of the corporation.
2. Director of the corporation.
3. Designated agent.
4. Managing agent, i.e. employee who has supervisory responsibility.
--> anywhere in the U.S.
Assume π 's process server walks into the headquarters of Ink, Inc., and leaves process with the receptionist, who later hands it to the president of Ink, Inc. A second copy is mailed to Ink, Inc. at its headquarters. Valid service?
No. The Leave and Mail method is NOT a valid method for serving process on a corporation; only the personal delivery method is valid.
How else can process be served on a domestic corporation (incorporated in NY), OR a foreign corporation that is authorized to do business in NY (Aka a licensed corporation):
Personally deliver 2 copies of process to the NY Secretary of State (Secretary, who is the designated agent as per certificate of incorporation or certificate of doing business, will mail one copy by certified mail to corporation at the address on file in Secretary's office).
How can process be served on an unlicensed foreign corporation?
by personal service, or by Personally delivering one copy of process to the NY Secretary of State PLUS π MAILS one copy to the corporation by certified mail with return receipt requested.
how is the non-traditional method of Service by First-Class Mail PLUS Acknowledgment performed?
Mail process to ∆ by first-class mail, enclosing two copies of a statutory acknowledgment form, plus a return envelope, postage prepaid, addressed to sender. Service will be effective only IF ∆ signs and returns one of the acknowledgment forms to π within 30 days after ∆ receives the mailed process. Service is complete upon ∆'s posting of the signed form.
Who may be served by mail & acknowledgement?
Service by this method is available as to all types of ∆s (e.g., natural persons, corporations) EXCEPT infants and mentally incapacitated persons for whom guardians have been appointed. The latter must be served by traditional methods, previously discussed.
Assume ∆, a NJ domiciliary runs over π in NJ. One day ∆ comes to NY for the first time in her life to visit Grant's Tomb, and π 's process server tags ∆ on the steps of the monument. Valid personal jurisdiction?
Yes. Even though Δ is non-domiciliary and cause of action arose outside NY, USSC determined physical presence is sufficient to grant personal jurisdiction.
when is a corproation "present in NY"?
NY corps are always doing business in NY - BUT An unlicensed foreign corporation is said to be present in NY if it is “DOING BUSINESS” in NY.
what is the test for an unlicensed foreign corproation "doing business in NY?"
If at the time the action is commenced the corporation's employees or agents are in NY engaging in commercial activity for the corporation on CONTINUOUS, REGULAR & SYSTEMATIC basis. Maintaining an office of some kind in NY enables to conclude the test is satisfied.
if an unlicensed foreign corproation that is not otherwise present in NY has an officer that is present temporarily in NY can he be served with process for his corporaiton?
Transient presence by the corporation's officer in NY is NOT enough. It is enough to acquire personal jurisdiction over the president by not the corporation.
If Δ is domiciliary of NY at the time the action is commenced, but subsequently moves, does the court have personal jurisdiction?
Yes - If Δ is domiciliary of NY at the time the action is commenced, he can be served with process anywhere in the US. π gets a basis of general personal jurisdiction.
Distinguish domicile from residence:
Residence is a place where a person lives for a fair amount of time with some degree of permanency. A person can have multiple residences. Domicile is the one residence at which a person intends to remain indefinitely and is treated by her as the principal home. A person has only one domicile.
what are the five categories of NY-related activity that can give rise to long-arm jurisdiction?
(1) π's claim arises from a transaction of business by ∆ in NY.
(2) π's claim arises from a contract made outside NY in which ∆ agreed to supply goods or services in NY.
π's claim arises from ∆'s commission of a tortious act within NY. (See note below about exclusion for defamation.)
π's claim arises from ∆'s tortious act outside NY which causes injury in NY- PLUS there exists some additional link between ∆ and NY
5. π's claim arises from ∆'s ownership, use or possession of real property in NY.
What are the 6 grounds for personal jurisdiction in NY?
Presence in NY (natural persons)
Doing Business in NY (corporations)
Domicile in NY (nat. persons)
Long-Arm Jurisdiction (any D)
Non-Resident Motorist Statute
what is the basis for the long-arm statute?
that an ohterwise not-present D has done one of the 6 things in NY that are sufficient links to NY to assert jurisdiciton over him. CONTACTS IN NY.
what is the test to determine whether the particular assertion of long-arm jurisdiction would satisfy constitutional due process?
Due Process is satisfied if the π's claim arises out of conduct by the Δ that is so purposefully directed towards NY,that Δ reasonably should have anticipated being haled into a NYcourt.
what is the non-resident motorist statute?
confers personal jurisdiction over an accident claim arising from a nondomiciliary motorist's ownership or use of an auto on a NY roadway.
Where P is a domiciliary of NY, what is the requirement for personal jurisdiction over the D for divorce, separation and annulment?
None - Only need that π be a domiciliary of NY. The reason is that this is an in rem claim and only the marital status needs to be located in NY.
what are the 4 grounds for long-arm matrimonial jurisdiction for monetary support?
(1) NY was the matrimonial domicile of π and ∆ prior to their separation, OR
(2) ∆ abandoned π in NY, OR
(3) ∆'s monetary obligation accrued under an agreement executed in NY, OR
(4) ∆'s monetary obligation accrued "under the laws of NY."
Can a P in a matrimonial action serve process on D by leave & Mail or nail & mail?
only with a court order. In a matrimonial action a court order is a requisite for both Leave andMail and Nail and Mail. Meaning there is a preference for personal deliveryin matrimonial action.
what is the durational residency requirement if If BOTH PARTIES are NY RESIDENTS at the time the action is commenced, AND the GROUNDS for the matrimonial action AROSE IN NY?
no period of prior residency is required.
If EITHER PARTY has been a NY RESIDENT for a continuous period of at least 1 YEAR immediately prior to the action, what else is required to satisfy the durational residency requirement?
NY must also have a PRIOR LINK to the marriage, i.e. either:
1. The marriage took place in NY.
2. NY was the matrimonial domicile at some point.
3. The grounds for the action arose in NY.
If EITHER PARTY has been a NY RESIDENT for a continuous period of at least 2 YEARS immediately prior to the action, what is the durational residency requirement?
there is no need to show any other link between the marriage and NY.
If π FAILS to allege and prove satisfaction of at least one of the residency requirements, what is the proper defense?
Dismissal of the action on its merits due to failure to state cause of action; not lack of jurisdiction.
in an action not affecting title or possession to real property, where is the correct venue for the action?
Proper venue is any county in NY in which any one of the parties resides at the time the action is commenced (not where the action arose). If no party resides in NY any county is proper venue.
what is ∆'s remedy for improper venue?
improper venue is not a jurisdictional defect, and therefore is not a basis for dismissal. ∆'s remedy is:
Δ must serve a demand on the π for change of venue to a proper county designated by the Δ. Δ serves the demand with or before service of the answer.
If π concedes there is automatic change of venue. If π objects or doesn't respond Δ needs to make a motion. The motion will be granted as a matter of right if π chose an improper county and Δ designated a proper county.
can the court grant a CHANGE OF VENUE based on the convenience of a material witnesses?
Yes - This is a DISCRETIONARY GROUND. Either party, by motion, may request the court for a change of venue to the county that would be most convenient for witnesses. This will often (but not always) be the county where the cause of action arose.
what are the two methods by which a Defendant can respond to the summons and complaint (and thereby avoid default)?
1) Serve an answer. The answer is the Δ's pleading. In the answer the D responds to the π's allegations in the complaint.
2) Motion to dismiss under CPLR 3211.
What is contained in the D's answer?
∆’s answer consists of DENIALS of the allegations that ∆ wishes to contest, and any AFFIRMATIVE DEFENSES (e.g., S/L, lack of jurisdiction, π’s comparative negligence).
If D does not raise a particular affirmative defense in its answer, can it raise it later?
No - Affirmative defenses not raised in the answer are WAIVED (subject only to ∆’s possible amendment of the pleadings).
If ∆ wishes to assert her own cause of action against π, how can she do this?
she may do so IN THE ANSWER by means of a COUNTERCLAIM.
what is the reply?
The REPLY is π’s pleading in response to a counterclaim. The reply consists of denials and affirmative defenses. If there is no counterclaim, π cannot serve a reply without court permission.
If there is no counterclaim, can π serve a reply?
If there is no counterclaim, π cannot serve a reply without court permission.
In a multi-D case, how can one D assert a claim against another D?
a ∆ may assert any CROSS-CLAIM against any other ∆.
Cross-claims are asserted in ∆’s answer, and they can be based on any type of claim that ∆ has against other ∆s.
who must be served with an answer or a reply?
Each party must serve a copy of her pleading on all other parties who have appeared in the action.
After π’s initial service of process, all other litigation papers are called INTERLOCUTORY PAPERS. These include the ∆’s ANSWER, all other pleadings, motions, discovery notices, etc. . .
How are interlocutory papers served?
First class mail.
On whom are interlocutory papers served?
If the party is represented the interlocutory papers must be served on the party's attorney.
if interlocutory papers are sent by mail, when are they deemed to be served?
Service of an interlocutory paper by mail is deemed made upon the mailing, not receipt.
If ∆ was served with process by PERSONAL DELIVERY WITHIN NY STATE, what is D's Time Limits for Serving the Answer?
Δ must serve the answer within 20 days of the delivery.
If ∆ was served with process by FIRST CLASS MAIL PLUS ACKNOWLEDGMENT, when must D's answer be served?
∆ must serve an answer:
Within 20 days from the date of the return of the acknowledgment ("return" means mailing).
defendant’s return of acknowledgment is merely a notification of ∆’s receipt of process. It is not a pleading.
If ∆ was served with process other than by PERSONAL DELIVERY WITHIN NY STATE or FIRST CLASS MAIL PLUS ACKNOWLEDGMENT, when must D's answer be served?
Δ must serve the answer within 30 days after service is complete.
Assume ∆ was served with process by personal delivery in OH on March 1, 2000. What’s the last timely date for ∆’s service of the answer?
March 31, 2000; i.e. 30 days after service is complete (remember for personal delivery service is complete on the date of delivery).
what are the 8 grounds on which ∆ may move to dismiss a cause of action, prior to service of the answer?
D Documentary evidence as the basis for a defense (a legally operative document),
O Other action pending between the same parties on the same cause of action.
W Want of capacity of π to bring an action e.g., π is an infant suing without a proper representative
N Non-joinder of a necessary party e.g., co-maker of a promissory note.
F Failure to state a cause of action. This motion is directed to the substantive insufficiency of the complaint on its face. ( should be denied if there is any basis for relief under substantive law.)
A Affirmative defense as specified by CPLR 3211
L Lack of personal jurisdiction. (This category includes Lack of basis, Improper service of process, Defective form of the summons.)
L Lack of subject matter jurisdiction.
what are the affirmative defenses?
S Statute of limitation.
P Payment.
A Arbitration award.
R Release.
E Estoppel (collateral estoppel).
R Res judicata.
I Infancy of the Δ.
B Bankruptcy discharge.
S Statute of frauds.
If D brings a motion to dismiss, what happens to his time to serve an answer?
Making the motion extends ∆'s time to answer. If the motion is denied, ∆ must then serve the answer within 10 days.
Assume ∆ makes a pre-answer motion on only one of the 3211 affirmative grounds and loses the motion. To what extent may ∆ thereafter raise the other 3211 objections in the answer, i.e., what is the rule on potential waiver of 3211 defenses?
A motion to dismiss in any of the grounds listed in 3211 does NOT preclude raising any of the other grounds in the answer except that of personal jurisdiction.
Assume ∆ makes a pre-answer motion to dismiss on the ground of release, and the motion is denied. When ∆ serves the answer, could he properly assert, as an affirmative defense:
Statute of frauds? or Improper service of process?
Statute of frauds - Yes.
Improper service of process - no - No. Improper service of process is a lack of personal jurisdiction defect which is waived if not included in the pre-answer motion to dismiss.
(1) Before serving the answer make a 3211 motion to dismiss and include lack of personal jurisdiction as one of the grounds.
(2) Make no 3211 motion (on any grounds) and instead include lack of personal jurisdiction as an affirmative defense in the answer.
what additional step is required if the D objects on the grounds of improper service of process?
Although pleading improper service of process as a defense in the answer is a proper way to assert jurisdictional objection, the objection will nevertheless be waived if defendant does not make a follow-up MOTION FOR SUMMARY JUDGEMENT on this ground within 60 days after serving the answer. Note that the 60-day time limit DOES NOT apply to the defense that court lacks a BASIS of personal jurisdiction.
What are the 3 defenses that are never waived?
1. Non-joinder of a necessary party.
2. Failure to state a cause of action.
3. Lack of subject matter jurisdiction.
These can be raised at any stage of the litigation.
what are the D's possible Responses to Summons with Notice?
Serve either:
(1) A demand for the complaint. (2) A notice of appearance.
Both have the same effect.
what is the effect of ∆’s service of a demand for the complaint and/or a notice of appearance?
both require π to serve the complaint within 20 days of ∆’s service.
if P serves the timely complaint, what must D then do?
∆ has 20 days from such service to serve either:
(1) An answer to the complaint.
(2) A 3211 motion to dismiss.
Each party is entitled to amend her pleading once as a matter of right,. What can this amendment be used for and what are the time limits?
When making a free amendment,
can put anything into the pleading that could have been in the original. The one free amendment can be made during the following time periods:
a. π can amend the complaint as a matter of right at any time up to 20 days after ∆ serves the answer
b. ∆ can amend the answer as a matter of right up to 20 days after ∆ serves the answer.
after the one free amendment to the pleadings has been made or the time has expired - what is The standard applied by courts on a motion for leave to amend?
Amendment will be allowed so long as the opponent will not suffer any incurable prejudice. The opponent has the burden to show a detrimental change of position as a result of the delay in amending; e.g. loss of evidence.
what is impleader?
Impleader is a procedural device used by ∆ to join another party alleged to be liable in whole or in part to ∆ for damages that ∆ may have to pay π. The usual claim in these circumstances is for indemnity or contribution.
when can D implead a third party D?
∆ may Implead TPD at any time after ∆ serves the answer to the complaint.
what are The steps for joining TPD?
1) FILE with the court a summons and third party complaint.
(2) SERVE within a 120 days of the filing a copy of the summons and third party complaint on the TPΔ and a copy on the π.
Note there has to be a personal jurisdiction basis on the TPΔ.
After TPD is joined, can π amend her complaint to assert a claim directly against TPD, thereby making TPD an additional ∆ in π’s action?
Yes. π can make this amendment without the need to obtain judicial permission if she does so within 20 days after π was served with the third-party answer. If π waits beyond 20 days, π must make motion to get court's permission for such amendment.
Assume Rachel, Monica and Phoebe collided on June 1, 2000. Rachel sues Monica for her injuries on April 1, 2003, and Monica impleads Phoebe for contribution on May 1, 2003. On August 1, 2003, Rachel seeks permission to amend her complaint to assert a cla
No. π's claim against TPΔ is deemed timely since the TPΔ was impleaded as such within the SoL period.
what is indemnity?
This allows one party to shift 100% of the responsibility to another party.
what are the two situations that give rise to indemnity?
1. By contract: E.g., in construction contract, subcontractor may agree to indemnify general contractor for any losses that contractor incurs in connection with subcontractor's performance in the construction project.
2. Implied-in-law indemnity:
a. Products liability: retailer held liable for selling defective product is entitled to indemnity from manufacturer.
b. Vicarious liability situations: E.g., in New York, owner of car is vicariously liable for damages caused by negligent driving of any person to whom owner has given permission to drive the car. Owner who pays victim is entitled to indemnity from driver.
what is contribution?
Contribution involves a sharing of the loss–-apportionment--among multiple tortfeasors who are all actual participants in the tort. Its purpose is to mitigate the harshness of the law of joint and several tort liability.
Assume that on the way to the World Series, cars driven by Jeter, A-Rod and Torre negligently smash into Piazza, who sues them all. A jury finds the ∆s each equally at fault and awards a judgment of $100,000. Could Piazza compel A-Rod to pay the entire
Yes. MS and general NY rule of joint and several tort liability is that each tortfeasor is liable to the π for the full amount of the damages regardless of the individual percentages of the fault among the tortfeasors.
However, in NY this general rule is subject to CPLR Article 16
If the liability of three Ds is based on intentional tortious conduct, can one D who has had to pay the P's full award get contribution from the others?
MS RULE: No. Contribution is NOT available when the nature of the liability involves intentional wrong doing.
NY RULE: Yes. Contribution is available in all torts, including intentional torts.
what are the 3 ways to Assert Claims for Contribution/Indemnity?
a. If π originally joined the tortfeasors as co-∆s, they can assert cross-claims against each other.
b. If π omits a tortfeasor, a ∆ can implead the outsider as TPD.
c. Tortfeasor may sue TPD in a separate action.
Assume Piazza sues Torre alone and gets a judgment for $100,000. During the course of the trial, it was established that Jeter’s conduct also
contributed to Piazza's injuries. If Torre thereafter sues Jeter in a separate action for contribution,
No. The findings of fact and percentages of fault in action #1 are not binding on the other tortfeasors in action #2. Res judicata and collateral estoppel cannot be raised against tortfeasors who weren't a party to action #1.
what is the Equal Shares Formula of Contribution?
minority view (relevant only to MS) – the contribution shares are always equal in amount, regardless of apportionment of percentage liability.
what is the Comparative Degrees of Fault formula of contribution?
Multistate and NY formula: The amount of contribution to which a tortfeasor is entitled is the excess actually paid by him over and above his equitable share of the judgment.
can a TPD may be held liable for contribution even if TPD has no
direct liability to π?
yes - The general rule is that a right to contribution exists whenever TPD breached a duty in tort which contributed to or aggravated the damages for which ∆ may be held liable to π.
π, a building owner, installed a fire alarm system manufactured by A, and entered into a written contract with B to provide monitoring services. The contract with B limited B's liability to gross negligence. In a fire at π's building, the alarm system
YES - contribution liability is broader than liability to π. B's negligence aggravated the damages for which A may be held liable to π.
Assume Piazza was an employee of Torre, and Piazza was on the job when the auto accident with Jeter, A-Rod and Torre occurred. Piazza suffered two broken legs, a broken arm and several puncture wounds. Piazza sues only Jeter and
A-Rod, who implead T
The motion will be granted. Since Piazza's injury is not "grave injury" there is no contribution from the employer
MS: Third person has no right of contribution from π's employer.
NY: Third person has a right of contribution from π's employer if π's injury is grave injury.
Assume that immediately after the accident, which took place on June 1, 2000, Piazza was taken to a hospital where Dr. Pain, in the course of treating Piazza for his injuries, made matters worse by severing some arteries. Piazza sues Jeter alone in Febru
No. Dr. Pain was indeed impleaded more than 2.5 years after the medical malpractice, HOWEVER Jeter's claim is for contribution which has a 6 year SoL from the date of payment and not medical malpractice. Here Jeter hasn't paid yet so that the SoL hasn't even started running yet.
Assume Piazza sues Jeter and A-Rod, who cross-claim against each other for contribution. Before trial, Piazza settles with Jeter for $30,000. Does this extinguish Piazza’s claim against A-Rod?
MS and NY: π's pretrial release of a tortfeasor in partial satisfaction of the claim does NOT discharge the π's claim against the other tortfeasors for the balance of the claim.
Assume that, following Piazza's $30,000 settlement with Jeter, the case against A-Rod goes to trial. The jury finds in Piazza's favor, assessing damages at $100,000 and apportioning fault at 10% for Jeter and 90% for A-Rod. What is the proper judgment to
The law prohibits excess recovery, so any judgment against a non-settling tortfeasor will have to be reduced to take account of the settlement.
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 the fault, whichever is larger.
In the situation where Jeter settled for $30,000 but was found to be only 10% at fault for the $100k award, could Jeter seek contribution from A-Rod?
No. A pre-trial settlement extinguishes contribution claims BY AND AGAINST the settling party.
Assume the car being driven by Jeter was owned by Steinbrenner. Piazza sues Steinbrenner alone, asserting Steinbrenner’s vicarious liability for Jeter’s driving. Steinbrenner settles with Piazza for $60,000. Would a claim by Steinbrenner against Jete
No. Settlement does NOT cut off claims for indemnity by and against the settling tortfeasor. Here Steinbrenner's claim is indemnity and not contribution.
what is the NY RULE that modifies the law of joint and several tort liability wrt personal injury claims?
CPLR Article 16 states that in a personal injury claim:
A joint tortfeasor who's fault is found to be 50% or less cannot be compelled to pay more than his equitable share of the π's non-economic damages.
Non-economic damages include pain and suffering, loss of consortium and mental anguish.
CPLR Article 16 does NOT apply to a claim for wrongful death; only to personal injury claim of the victim.
What are the three categories of tortfeasors that are subject to full joint and several liability for all damages, regardless of equitable share of responsibility?
a. Tortfeasors who acted with intent or reckless disregard for the safety of others.
b. Tortfeasors who are liable for releasing a hazardous substance into the environment.
c. Drivers and owners of motor vehicles other than police and fire vehicles.

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