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NY Practice


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CPLR Article 78 - authorizes special proceedings for judicial review of government action/inaction. Right to relief - show that petitioner's case would have been subject to review under four common law prerogative writes: 1) mandamus to compel; 2) prohibition; 3) Certiorari; 4) Mandamus to review
Failure to State a Cause of Action
The standards governing a motion to dismiss are P is entitled to every favorable inference that can be drawn from the allegations and the motion should be denied if there is any basis for relief under the substantive law.
Nonpayment of Money
3 Years. Nonpayment of money on execution; statutory liability; replevin; Annulment on basis of fraud;
Doctrine of continuous representation
like continuous treatment rule
Unlicensed foreign corp - doing business in NY
TEST: At time action is commenced, corp.'s employees or agents are in NY engaging in business activity for corp. on continuous regular and systematic basis. 1) Corporation has an officer or other physical prescence in the state. General requirement of maintaining office or facility, at least 1 employee - C of A Does not have to arise out of NY business; Mere sales of product NOT ENOUGH; 2) Not needed if C of A arose in NY; 3) Sevice of process inside/outside NY; 3) Could probably sue for J over individual or partnership - never tested, no statute
SOL on actions by crime victims
1) Actions by Vs against convicted Ds - 7 yrs. of crime; 2) Vs of violent felonies w/n 10 yrs of conviction; 3) Discovery of D's recipt of money from any sources - 3 yrs; 4) Vs of rape related crimes: 5 yrs from date of criminal act, or end of criminal proceedings
Order to show cause
preliminary order, directs adversary to show cause on date specified on why motion should not be granted, Judge gives notice. Used to: 1) accelerate return date before days; 2) Grant immediate stay or TRO; 3) Government statute might require.
Speedy, streamlined procedure to obtain judgment as final issue in dispute - E.g.: probate of will, election disputes, habeas corpus, CPLR Art. 78. Must have specific statutory authorization. Error in bringing - court converts into an action. Procedure: 1) Petition - like complaint, commences proceedings; 2) Process the same to acquire J over respondent; 3) GENERAL RULE: Return date > or = 8 days after service (Accelerated return date - need special proceedings); 4) Affidavits served in support of and opposition to
domiciliary of NY can be served anywhere in US. General PJ over D REGARDLESS of where claim arose. Remember to distinguish from residence - many residences, only one domiciliary.
Corp. Service on NY Secretary of State
1) For domestic corp. or foreign corp. authorized to do business in NY: Personally deliver 2 copies of process to Secretary of State 2) Unlicensed foreign corp. - Personally deliver 1 copy to Sec. and mail 1 copy certified mail, return receipt requested to corp.
Right to jury trial
either party can request: 1) action solely money damages; 2) replevin; 3) Claim to real property; 4) Annulment of marriage; 5) Divorce action - on issue of GROUND only. 6 per. Jury doesn't have to be unanimous.
Intentional Tort
1 Year. intentional tort; interest overcharges; enforce penalty or forfeiture; defamation
P's pleading to respond to counterclaim. Many Ds - may assert cross-claim as well, don't need relation to c of a.
Doing business in NY
Domestic corp., or corp. authorized to DB in NY (licensed) subject to PJ in NY on ANY CLAIM WHATSOEVER, does not matter where claim arose.
proceeding to stop Judicial officer from exercising power beyond lawful J. for gross excess, like violating double jeopardy - routine error → remedy of appeal.
Non-traditional: First-class mail AND acknowledgement
Mail to D - include 2 copies statutory acknowledgement form, return envelope, postage paid: Only effective when D signs and returns one of the froms to P within 30 days after D recevies the mailed process. Service is complete upon D's posting of the signed form. Use regardless of location of D. Available for all types of Ds EXCEPT infant and incapacitated. Service by mail is not effective and must start all over again and serve by traditional method.
Collateral Estoppel/issue preclusion
avoids and prevents re-litigation on specific fact issues - 3 parts: 1) identical issue; 2) Issue actually litigated and decided; 3) party against had full and fair opportunity to litigate in former proceedings
SOL is an affirmative defense, based on passage of time, D raises. Begins to run when cause of action accrues (injury occurs).**NY GENERAL RULE: accrual begins even if P unaware of injury. For infants C of A does not begin to run until birth. Action must be commence on or before last day of limitation: 1) Commence = beginning filing process, papers; 2) Exclude day when triggering event occurs - day after injury; 3) Last day on Saturday, Sunday or holiday - get next weekday to file.
Matrimonial Jurisdiction
NYSC is only SMJ court for matrimonial action = seeking to affect marital status (divorce, separation or annulment). To obtain a divorce, separation or annulment, all that is necessary is that plaintiff spouse is a domiciliary of NY.
P chooses venue, specifies in summons. RULES: 1) An action w/ judgment affecting title or possession of real property - venue is county where property is located; 2) All other actions - any NY county where one party resides at time action commenced.
Agent specifically designated to receive process
maybe in a written commercial K, parties designate agent
Proceeding challenges result of "trial-type" hearing conducted by admin agency. trial-type = testimony under oath, subject to cross. Judicial standard of review: must uphold results of determination if supported by substantial evidence.
Jury trial
Party that files and other parties MUST demand jury trial in note of issue - no demand = waiver of jury right
Response to summons and complaint
D must respond to summons and complaint to avoid default: 1) Serve and answer - responds to allegations of P's complaint; 2) Make motion to dismiss under CPLR 3211.
Service on Natural persons
Service is complete when delivered directly to D. Refusal - leave in vicinity of D. 1) Leave and mail; 2) nail and mail; 3) Motion for expedient service
Accountant, attorney
date of delivery of work product
Long-arm jurisdiction
Under CPLR 302, plaintiff's claim must arise from the D acts in NY to establish personal jurisdiction.
Preserving PJ Defense
otherwise you waive the defense: 1) Before answer, make 3211 motion to dismiss that includes lack of PJ; 2) Make no 3211 motion on any ground - make PJ affirmative defense; Pleading improper service of process → follow with motion for summary judgment < or = 60 days after answer, Only about service of process - need to resolve early
Mandamus to review
review types not covered by the other categories. Usually used for non-trial-type hearings. Judicial standard of review: uphold agency determination unless arbitrary and capricious.
Procedure for motion to dismiss
1) Before service of the answer - 20-30 days; 2) Extends D's time to answer - on denial, ten more days; 2) D DOES NOT have to raise pre-answer motion - can save up and put as affirmative defense in answer; 4) Could also put all in pre-answer motion - can to multiple grounds
Other professional malpractice
(e.g. architects, engineers, accountants, attorneys - members of a learned profession): 3 yrs. Exclusive SOL - can't use breach of K, inapplicable. NOT insurance brokers, securities analysts, plumbers. Non-client injured in accident - SOL runs from injury.
P's claim arose from D's transaction of business in NY
There must be a substantial nexus between P's claim and NY transaction: 1) Out of state D to work for NY employer, negotiates, signs K in NY - C of A based on D's NY transaction; 2) If K signed out of state - No need to show K actually executed in NY, negotiations enough; 3) What about for auto accident in OH: No - No substantial nexus; 4) D's ownership , use or possession of real property in NY
NY State Appellate Court Hierarchy
Court of Appeals > Appellate Division > Supreme Court
Outside NY
if there is basis for out of state service, any method ok: 1) Any NY resident authorized under NY law - NY process server; 2) Authorized by law of J where service is made; 3) Any attorney licensed in J where service is made
Corp Personal delivery
Officer of the corp; director (member of BOD); designated agent; managing agent - corporate employee w/ supervisory responsibility
Statutory conditions precedent to matrimonial action
P's complaint must allege satisfaction of one category: 1) Both parties NY residents at commencement, AND grounds for matrimonial action arose in NY (No prior NY residence required); 2) If either party continuous NY resident at least 1 yr. prior to action and NY has prior link to marriage (Link 1: Marriage in NY; Link 2: NY matrimonial domicile at some point; OR Link 3: Grounds arose in NY); 3) If either party NY resident for continuous period > or = 2 yrs. prior to action. Say one req not satisfied - proper defense: failure to state a cause of action. Does not apply solely to enforce monetary support obligations.
application for an order of the court (request for preliminary or incidental relief. Most common is motion on notice.
Court must have SMJ (power, competence) to hear and adjudicate type of controversy brought before it. Original SMJ court - where action is commenced. General J court - power to hear any action that comes before it.
Improper venue
not J defect - remedy: D serves demand on P for change of venue to proper county D designates, D serves demand before answer served. If P concedes mistake → automatic change. P objects or does not respond → D makes motion for change. If proper venue asked for: grant as a matter of right.
Amendments of pleadings
Matter of right: EACH party may amend once w/n 20 days of D serving answer. You can put anything you would have in original. After 20 days - you need motion for leave to amend, discretion of court. Very liberal standard: allowed as long as P will suffer no incurable prejudice. Other side has burden of showing delay or detrimental change in position, like losing witnesses.
Leave and mail
1) deliver to person of suitable age and discretion at D's actual dwelling or place of business, AND mailing to last known residence or actual place of business; 2)Perform w/n 20 days of each other, <120 days from filing; 3) No specific age, doesn't have to be same location, regular mail is fine; 4) A copy of each document must be served on each D; 5) Blocked entry → becomes outer boundary of service. ONLY for natural persons
Three additional reqs. for SMJ
1) proper commencement of the action; 2) proper service of process on the D; 3) Proper basis of jurisdiction over person or property in the action
Parties to K may consent in advance to PJ in NY in a forum selection clause, generally enforceable in absence of fraud, overreaching, unreasonableness
sharing loss by apportionment among multiple tortfeasors, all are participants in the tort, only affects reimbursement rights. NY AND MULTISTATE RULE: Joint and several liability - each tortfeasor liable for full amount of P's damages. Entered against each D, P may choose to collect from any one. **NY RULE: CPLR 11 modified.
Tolls for D's absence
D not in NY: SOL does not begin until D comes to NY; Or D in NY on accrual, but leaves for > 4 mos.: toll for entire absence. EXCEPTION: P has PJ basis that allows process to be validly served on D outside NY - Long arm → No need to toll.
Service of answer and other interlocutory papers
all papers other than service of process and answer are interlocutory papers. Send regular mail, serve party's attorney - mailbox rule. Time for serving answer: 1) D personally served w/n state - answer w/n 20 days; 2) Service mail + acknowledgement - answer w/n 20 days of mailing; 3) Any other service - answer w/n 30 days of completed service. Service by mail in NY.
NYSC Exclusive SMJ
1) Matrimonial action in which the court is asked to adjudicate martial status (i.e. divorce, separation, annulment, declaration of validity of marriage; 2) CPLR Art. 78 - e.g. judicial review of administrative action; 3) Declaratory judgment action
General long arm issues and Analysis
Covers all types of Ds. Acts by D or agents or employees, subjects principle and agent. D dies - Decedent's estate rep can be served outside of NY. Use same service of process inside/outside NY. Analysis: 1: Discuss whether P can establish J under general jursidiction. 2: Discuss whether facts of case fall in long-arm statute; 3: Discuss whether assertion of J would satisfy con. Due Process TEST: Due Process is satisfied if claim arises out of conduct of D that is purposefully directed towards NY that D should reasonably anticipate being sued in NY court.
Non-resident motorist statute
Non-resident motorist statute confers PJ over an accident claim arising from a nondomiciliary motorist's ownership or use of a car on NY roadways. Can be overlap with tortious act. Unique features: 1) service of process - Serve through personal service to Sec of State + mailing second copy by certified mail to D's out-of-state residence; 2) Applies to car owners who gave permission to drive car in NY
Procedure for art. 78
ONLY IN NYSC; SOL: 4 mos.; Must seek declaratory or injunctive relief - maybe reinstatement of employee.
Discovery Rule In Exposure to Toxic Substances
The SOL begins to run when injury is discovered by P, or when should have been discovered with reasonable diligence. Toxic substance - inherently harmful toxin with latent or slow-developing effects: E.g. - DES, asbestos, insecticides HIV, leaking petroleum. EXCEPTION: medical malpractice, would have to try to get continuous treatment
NY Court obtains J when
Corp is 1) domiciled in NY; 2) does sufficiently substantial business in NY; 3) Performs an act falling under NY's long arm statute; 5) Consents to jurisdiction
Products liability SOL
1) Negligence: 3 yrs. from injury, for all Ds 2) Strict products liability: same as negligence 3) Breach of warranty: 4 yrs., governed by UCC - begins to run when D made delivery of product → Will have different times against manufacturer < wholesaler < retail
Actions by state to recover real property and Actions to Recovery Real Property SOL
20 - Actions by state to recover real property, enforcement of judgments, some bond recovery; 10 - Actions to recover real property, redeem a mortgage, annul letters to patent
Municipal Tort Liability SOL
1 year plus 90 days. Must provide notice of claim on the potential municipal defendant no later than 90 days from the date of te accident . Failure to comply results in the municipal defendant filing for dismissal on the ground of failure to state a COA.
Deciding order
judge's decision, winner serves on loser: 1) Necessary to give effect to order; 2) Starts running of 30 day limit for appeal
show that there is no genuine issue of material fact requiring a trial, reasonable minds cannot differ → entitled to J as matter of law. 1) Look at elements of underlying C of A to determine; 2) Moving party submits evidence of affidavit, relevant docs. and discovery materials to show entitled to; 3) Court searches the record - can grant to opponent even without cross-motion for relief. WHEN: After service of answer: ANY PARTY can move for summary judgment with respect to any claim or defense in pleadings. 120 days w/n filing note of issue - moving party can show good cause (procedure) for delay.
note of issue
doc. that says case is ready for trial, copies served n other parties
Expedient service
if none are practicable, P may make ex parte motion for order allowing improvised, expedient method, reasonable alternative under the circumstances
Tolls for death
1) Survival claim - If still timely at death, whatever time is left or 1 yr., depending on which is more timely; 2) Wrongful death -2 yrs from death, must also show that at time of death, decedent's underlying claim would still be timely; 3) Death of potential D before SOL expires - 18 mos. Added
Vicarious liability SOL
- use same SOL as for employee. Tort of negligent hiring is different - personal injury SOL.
Res judicata/claim preclusion
avoid and prevent re-litigation of same claim. when claim brough to final J on merits, all other claims P → D are barred if arising out of same transaction. Policy exception for domestic abuse and matrimonial disputes - get out of the marriage as fast as possible, sue for tort damages later.
Exceptions to NYSC General Jurisdiction
1) Cases where federal law confers exclusive jurisdiction on federal courts - examples: bankruptcy, patents, copyrights; 2) Court of claims when tort or K claim against the State of NY: a) the only defendant in the Court of Claims is the State of NY; b) Gov. subdivisions must be sued in SC- (i.e. counties, cities, towns school districts)
CPLR Art. 16 - Joint and several liability
**NY RULE on joint and several liability: 1) in personal injury or wrongful death claim, joint TF w/ < or = 50% fault CANNOT be required to > equitable share of non-economic damages; 2) >50% → still jointly and severally liable; 3) non-economic damages = pain and suffering, loss of consortium, etc. EXCLUSIONS: 1) TFs acting w/ intent or reckless disregard for safety of others; 2) TFs who release hazardous substances into enviro; 3) Drivers and owners of motor vehicles other than police or fire vehicles
P serves complaint
w/n 20 days D: 1) Serves the answer; or 2) makes 3211 motion to dismiss
Settlements for multiple TFs
Pre-trial release does not discharge claim - still go to other TFs for balance. NO excess recovery - reduce for amount of settlement. Formula for reduction for non-settling TF - choose the largest: 1) reduce by settlement; 2) Settling TF's share of fault - Always risk for settling P to come up short.
Matrimonial long-arm statute
When P-spouse is a resident of NY, long-arm J over D-spouse for MONETARY SUPPORT when: 1) NY was matrimonial domicile of P and D prior to separation; 2) D abandoned P in NY; 3) D's monetary obligation under NY agreement, like separation; 4) D's monetary obligation accrued under laws of NY. Only method of service is personal delivery to D. Durational residency requirements - part of the substance of action.
Form of process
1) Summons and complaint - advises D that P is suing in a particular court. Complaint = P's pleading, specifies t/o subject matter of action, spells out essential elements of C of A; OR 2) Summons with notice - if no complaint, must have sufficient notice on face of summons or in one-page attachment [Notice = very abbreviated complaint: a) Brief statement of nature of action; 2) Nature of relief sought; 3) Specify damages UNLESS personal injury or wrongful death]; Naked summons - NO complaint or notice. PJ defect can make action subject to dismissal for reason alone - D must object.
Nail and mail
1) affix process to door of actual dwelling or place of business AND mail to actual place of business or last known residence; 2) W/n 20 days of each other, <120 days from filing; 3) DIFFERENT from leave and mail - exercise DUE DILIGENCE to perform direct service or leave and mail; 4) Due diligence = several attempts, different days of week, time of day
Settlement and contribution
pre-trial settlement extinguishes contribution claims by/against settling party - Policy: to encourage settlement, automatic insulation from contribution liability
Motion for summary judgment in lieu of complaint
Can move for summary judgment w/ summons: TYPE 1: (Very narrow) Action on instrument for payment of money only - Instrument must contain unconditional promise by D to pay money (Usually promissory note, NOT ordinary K breach); TYPE 2: Action on out of state judgment, trying to collect judgment from out of state easily - File process w/ court, P serves D: summons + notice of motion for summary judgment with supporting docs. and affidavits. Return date must be >20 days for personal delivery, >30 for all other service.
Special procedure when suit >10 after building is completed
1) P must serve notice 90 days before suit begins; 2) P may obtain discovery D before suit begins; 3) D moves for summary judgment: P has burden to show that there is a substantial basis to believe D's negligence was proximate cause
Preliminary injunction
maintain status quo while equity action is pending. Equity action where B wants: 1) permanent injunction; OR 2) Threatens to harm P's interest, subject matter of action. NOT an option for only money damages. Procedure - make motion on notice, with, or after summons, until final judgment: 1) P affidavits show grounds for equitable relief for threat of irreparable injury; 2) P show probability of success on merits for underlying c of a; 3) P provides to indemnify D for damages if later determined that preliminary injunction should not have happened
employee can't sue employer, but can sue 3rd party partially at fault. ** NY RULE: 3rd party cannot sue employer for indemnity unless there is grave injury = death, total loss of limb, nose, ear, or index fingers, total loss of multiple fingers, plegia, severe faical disfigure, total blind or deaf brain damage causing total disability. very narrow construction - statutory policy and big purpose is to protect employers from only for contribution and indemnity. MS RULE: Never contribution for TPD from employer.
Continuous treatment rule
2 1/2 years from end of continuous treatment if the continuous treatment gives rise to the malpractice
Motion ex parte?
Due process requires hearing after levy, give D chance to contest attachment. P makes follow up motion on notice - there will be a prompt hearing. Motion to confirm - Ex parte automatically void if not w/n number of days. D unlicensed foreign corp. or non-domiciliary: no > 10 days. D fraudulently moving assets: no > 5 days.
P's claim arises from K made outside NY in which D agreed to supply goods and services in NY
K must be economically significant (i.e. sizeable quantity of merchandise or perform in a Broadway show). Case law 1) Simple boiler plate order by phone, mail, fax, internet is not enough → If you get enough contacts relating to significant K, can become enough; 2) Sending a check to NY is not a K to provide goods and services in NY
Notice of pendency
equity action with direct effect on real property, notice for record for buyers or mortgagees, their interest will be subordinate to P - e.g. specific performance, ejectment, statutory requirement for mortgage foreclosure. P files notice w/ county clerk of county of property. No need for court order - ONLY provisional remedy you can do this for. D files motion to cancel notice of pendency if improperly filed. Effective for three years after filing - P can get extension - if P doesn't do it in time, if not mortgage foreclosure OUT OF LUCK: 1) Notice becomes void and has no further effect; AND 2) P can't get another.
NO complaint w/n 20 days
D moves to dismiss on P's noncompliance (form of neglect to prosecute). P must show reasonable excuse for delay and make evidentiary showing of merit to P's cause of action w/ affidavit of merit. Pleadings do not have personal knowledge of facts - need witness. D can still object to PJ in answer or pre-answer 3211 motion.
Procedure to commence an action
1) Commencement = filing with the County clerk (NOT the SC Clerk); 2) Pay fee - receive an index number; 3) Process MUST be served w/n 120 days of filing - Court can extend on discretion if P makes ex parte motion and showing of good cause (= due diligence) or interest of justice (= more flexible standard), Can apply extension retroactively on discretion; 4) P makes motion to dismiss for untimely service if wanting to challenge
Cap on commencement of claims
10 year cap on commencement of claims: 1) Medical malpractice: toll for infancy no later than 10 yrs. after accrual; 2) Insane Ps: 10 yrs. from date of accrual when using toll for insanity. Continuous treatment and infancy toll are separate - give P the benefit.
Foreign object rule
2 ½ years from date of operation or 1 year from date of discovery w/ due diligence to discover. Something Dr. did not intend to leave behind. Not foreign objects: chemical substance; prosthetic device; fixation device (like IUD). Go from date of actual malpractice - usually date of insertion.
procedural device for D to join another liable party for damages, become third party defendant. Indemnity and contribution - claims for reimbursement arising out of same trans or occurrence as P's c of a. Procedure: 1) D file summons and 3rd party complaint; 2) Serves summons and complaint on TPD w/n 120 days of filing - There MUST be basis for PJ; 3) TPD serves 3rd P answer on D AND P and any other parties - w/n 20 days for personal delivery, 30 for other service; 4) P may amend complaint to make claim against TPD - can do w/n 20 days of 3rd P answer. Relation-back of SOL - P's claim against TPD interposed from date impleaded provided claim against P based on same T or O.
Arbitration - Bringing threshold issue to court
1) Pending action - D makes a motion to stay action and compel arbitration (In a pending action, court will handle the threshold issues); 2) Notice of intent to arbitrate - proponent serves on opponent, opponent's remedy is to commence special proceeding for stay of arbitration (Then can raise any threshold Issue). MUST ACT QUICKLY - Time to commences special proceeding w/n 20 days of notice of intent to arbitrate. If does not commence - waive threshold objections.
NY Supreme Court
ONLY court in NY that has general SMJ: 1 bench in each county, 62 counties - county is question of venue, doesn't matter. POWERS: can grant damages - has unlimited monetary J; Can grant injunction, on NY court with full equity J; Does not require parties to be residents or that C of A arose there. Forum non conveniences can be an issue even if court has SMJ: Court has discretion to use; D MUST make motion, cannot be sua sponte
Three ground for judicial review of arbitration awards
vacate arbitration award: 1) corruption, fraud, misconduct in arbitration proceeding; 2) Bias of an arbitrator chosen for neutrality; 3) Arbitrator exceeded his powers - almost impossible cuz arbitrator has almost unlimited power unless otherwise agreed. **NY ARBITRATION LAW: Arbitrator cannot award punitive damages, C of A public policy.
Successive tortfeasors
Successive tort liability - liability for D for all injuries that proximately flow from accident, includes malpractice. If Dr. aggravates damages, may implead 3rd party doc. Contribution SOL: 6 yrs. from date of payment of judgment.
Temporary restraining order
D will be immediately restrained by TRO pending resolution of motion for preliminary injunction. Immediate injunctive relief when there is threat of immediate injury - maintain status quo until motion for preliminary injunction. Process: 1) P commences action for equitable relief; 2) P moves for preliminary injunction to maintain status quo while action being decided; 3) Order to show cause - P requests TRO for immediate relief pending preliminary injunction. Can be granted ex parte if shown advance notice → significant prejudice.
Seizure of chattel
replevin action, ensures enforcement of judgment awarding possession to P. sheriff obtains custody during proceedings to ensure award of chattel and not money damages. Procedure: 1) affidavit to show probability of P success on merits of underlying c of a; 2) P undertaking to indemnify D. For ex parte: 3) show threat of immediate loss of chattel; 4) for due process, P must make follow up motion on notice in 5 days for D's prompt hearing
Temporary receivership
drastic remedy, court appoints individual to manage company in D's possession. Must be equity claim with subject matter of specific property AND danger that D will destroy value of property. Requires making motion on notice.
Infants and mentally incapacitated
(1) Infants - D name on summons, but serve: Parent/guardian; Any person with legal custody; Married infant - leave with adult spouse; >14 yo infant - adult and infant get service; Use ANY method allowed to serve adult. (2) Incapacitated person - serve on D and guardian: If no decision on competency - just serve D.
Answer and other pleadings
BASIC PLEADINGS: P's complaint and D's answer. Answer is: 1) Denial of allegations (failure to deny is an admission); 2) any affirmative defenses (those not raised are waived). D may assert counterclaim.
Doctrine of severability
validity of arbitration clause determined separately from overall K, K duty to arbitration separate and apart from overall K. Have to show problems w/ clause itself invalid and unenforceable - difficult to prove.
Filing proof of service
For both leave and mail and affix and mail service, proof of service must be filed after the two service steps have been performed. This does not have to be w/n 120 days: 1) Proof of service = affidavit with details of service; 2) Proof of service needed to make service complete - 10 days after filing; 3) Not grounds for dismissal - postpones D's response time
Grace period for timely action dismissed
expired SOL or < 6 mos. - they get six mos. Left - Exceptions: Dismissal one merits; D drops suit - voluntary discontinue; P neglects to present case; Lack of personal J. A dismissal for lack of SMJ is entitled to the six month extension.
(SPARERIBS) 1) SOL; 2) Payment; 3) Arbitration award; 4) Release; 5) Estoppel, 6) Collateral; 7)Res Judicata; 8) Infancy of D; 9) Bankruptcy discharge; 10) Statute of frauds
Motion for summary judgment
same type of evidence to show a triable issue of fact exists. Look to witnesses w/ personal knowledge of facts, NOT from pleadings. Affidavit that opponent can't yet produce info - deny motion, or grant continuance to allow to get evidence
Procedure for attachment
P must make motion for order of attachment include: 1) Affidavit in support must have one of 2 grounds for attachment; 2) Show probability of success on the merits of P's underlying C of A; 3) P must give undertaking bond to indemnify D for damage or expense of attachment. D gets these damages if: a) improperly obtained attachment; b) D wins on merits
Indemnity and contribution SOL
Indemnity and Contribution claims have a SOL of 6 years running from the date of actual payment of the judgment for which indemnity or contribution is sought.
Threshold issues for court to avoid arbitration
1) Did parties agree to arbitration - question of K law - two reqs.: a) Agreement must be in writing, don't need signature; b) must be clear, explicit, unequivocal; 2) Is dispute w/n scope of arbitration clause? E.g. - all disputes or claims arising out of K, doesn't leave a lot for court; 3) Is it a valid arbitration clause? Invalid and unenforceable when induced by fraud, duress or coercion or involves matter contrary to public policy; 4) Is there an express condition precedent to proceeding, complied w/? E.g. - Construction K, clause like architect has to see; 5) SOL
enforces money judgment. Sheriff levies D's real/personal property - puts lien on property pending outcome, security interest in property for P. Delivers order of attachment to NY person w/ NY property interest - can be D or garnishee. Injunction against transfer of property for duration of action.
allows to shift 100% of responsibility to another party: 1) By K: like subKor indemnifying Kor for losses that that subkor may have caused; 2) Implied-in-law: Products liability - retailer liable for selling defective product gets indemnity from manu; 3) Vicarious liability - loan your car to someone
Motion to dismiss
Under CPLR, a D may file a motion to dismiss on the following grounds (DOWNFALL): 1) Documentary evidence as the basis for a defense (K); 2) Other action pending between the same parties on the same cause of action; 3) Want of capacity of the P; 4) Non-joinder of unnecessary party; 5) Failure to state a cause of action; 6) Additional afirmative defense; 7) Lack of personal jurisdiction (i.e. improper commencement procedure, improper service of process; lack of bases jurisdiction; 8) lack of subject matter jurisdiction
motion on notice
gives adversary opportunity to be heard in opposition. Papers served: 1) Nature of the motion paper advising opponent of the nature of motion; AND 2) supporting affidavits showing why motion should be granted. Motion made on service, when mailed use mailbox rule. Return/hearing date - when presented to court, all papers must be filed by then → MUST SERVE w/n 8 days of return date. **NY RULE MATTER OF RIGHT: interlocutory appeal - immediately from SC to Appellate div. w/n 30 days of service or appeal from final judgment
Important SOL
1) Personal injury/property damage: 3 years (Accrues on date of original impact); 2) Breach of K: 6 years (Accrues at date of breach) 3) UCC- 4 Yrs. 3) Medical mal: 2 1/2 years (date of malpractice) 4) Wrongful death: 2 yrs
Personal jurisdiction
enables judgment for money damages to be enforced in full - GJ; Specific J.
Personal delivery while D physically in NY
SCT: Physical presence in state at time of service is valid basis for personal service - gotcha service
Five types - all but notice of pendency require court order: 1) Attachment; 2) Preliminary injunction; 3) Temporary receivership; 4) Replevin - Order to seize chattel in action to recover chattel; 5) Notice of pendency. Court can require election of remedy on its discretion.
Ex parte motion
no advance notice, take motion papers to court and requests order. Only w/ specific statutory authorization - e.g. expedient service of process, extension of time to serve process. Don't like verdict: Make motion on notice to vacate ex parte order, on denial → appeal.
mandamus to compel
compel performance of act required by law, no discretion allowed - e.g. - election official refuses absentee ballot; city clerk refuses marriage license. Can do with corp. - tradition as quasi-gov. body, obtains right to exist from state.
Types of Attachment actions
For money damages AND: 1) D is unlicensed foreign corp. or Non-NY domiciliary; OR 2) D about to conceal/remove assets from NY w/ intent to defraud creditors or frustrate judgment enforcement - need purpose to leave w/ purpose of frustrating judgment enforcement
Settlement and indemnity
does not extinguish indemnity claims by or against settlting TF
Pre-answer motions for summary judgment
COURT can convert pre-answer motion to dismiss for failure to state a c of a → summary judgment. At least one party must submit factual affidavits. Court must give notice to parties - so they can submit additional evidence.
Specific Jurisdiction
claim must be specific to NY contact or part of terms of K. Long-arm J; Non-resident motorist statute; Consent.
Toll for P's infancy or insanity
Ps get toll if they want infant or insane at time until disability clears up. SOL after disability end: SOL of > or = 3 yrs.: 3 yrs. from the end of the original disability; SOL of < or = 3 yrs.: Whatever the original SOL was (Time remaining on statutory period measured from date of accural)
Personal Jurisdiction requires
1) Minimum contacts; 2) an opportunity to be heard; and 3) Proper service
Actions for Public Property
6 Years. actions for public property; sealed instruments or notes/bonds for mortgages; fraud and mistake; SH derivative actions; all other unspecified civil actions
P's claim arises from D's Ownership, Use, Possession of Real Property in NY
E.g.: slip and fall in NY, transaction in CT to sell NY property
Private procedure, foundation in K, for binding resolution of disputes, parties agree for present or future dispute. Arbitrators - not substantive law or rules of evidence, scope of Judicial review very narrow. Judicial gatekeeping - can decide threshold issues. **NY PUBLIC POLICY: Favors arbitration/
Ways to assert contribution
1) P originally joined tortfoeasors: They may assert cross-claims against each other; 2) D can implead TPD; 3) Tortfeasor may sue TPD; 3) Res judicata and collateral estoppel MAY NOT be used against other TFs - have to prove cause again. MINORITY RULE: Equal Shares formula - % fault does not matter; NY AND MS RULE: Comparative degrees of fault - entitled to contribution in excess of what was paid him: 1) Cannot compel party to pay more then equitable share; 2) Original P could end up paying entire amount. GENERAL RULE: right of contribution whenever TPD committed tort that aggravated or contributed to injury.
Borrowing statute
C of A arose outside of NY: 1) P non-resident of NY, apply - SOL of state where claim arose depending on which is shorter → pick shorter SOL; 2) P is NY resident when out of state claim arose - NY SOL regardless of which is longer
Tortious Acts Inside NY and Outside of NY
1) P's claim arises from D's tortious act in NY 2) P's claim arises from D's tortious act outside NY, which causes injury in NY (products) PLUS a) D regularly solicits business or engages in any other persistent course of conduct in NY or b) D derives substantial revenue from goods used or consumed, or services rendered in NY or c) D expects or should reasonably expect the act to have consequences in NY and derives substantial revenue from intereverything commerce - Must purposefully include NY, try to penetrate NY market. D's interstate commerce must include NY-Due Process and Dervive a substantial revenue. 3) C of A: Medical services is inherently local in nature. defamation IS NOT tortious act - would need transaction, or major network with offices here.
Rules on waiver
motion to dismiss on ground listed in 3211 DOES not preclude raising other 3211 ground in answer. Exception: Lack of PJ - Preserve, otherwise you waive. Basic rule on pleadings: you waive affirmative defenses not raised in answer. 3 Defenses are NEVER WAIVED - Can raise whenever: 1) non-joinder of necessary party; 2) failure to state c o a; 3) lack of SMJ.
General Jurisdiction
Does not matter where claim arose - In NY: Presence; Doing business; Domicile
Courts of Civil Jurisdiction in NY
All other courts of civil jurisdiction in NY are characterized by limited monetary jurisdiction.
Methods for serving process
1) Serve on anyone 18 years old who is not a party to the action - e.g. Ps' lawyer or spouse; 2) Any day of the week, including holidays, except: Sunday; P knows observes Sabbath; 3) Invalid if statutory methods not followed precisely; 4) Complete service → Response time begins to run
Responses to summons with notice
1) Demand for complaint; or 2) Notice of appearance. Same time frame as response to summons and complaint: Personal delivery: 20 days; All other delivery: 30 days. Both mean that P has to serve complaint w/m 20 days.
Service on corporations
NO LEAVE AND MAIL. 1) Personal delivery; 2) Service on Secretary of State
intentional tortious act
**NY RULE: allows contribution in all cases
Denial of motion for summary judgment
Triable issue of fact exists → back to normal progression of trial. Say court grants motion on liability → trial on damages.
If convenience of venue is issue for material witness
discretionary ground for change. Party, by motion, asks for. Usually to venue where c of a arose.

Deck Info